Customer Agreement

This Customer Agreement (this “Agreement”) is between Customer and Dynepic, Inc. where the “Customer” is the Licensee and means the entity on behalf of which this Agreement is accepted or, if that does not apply, the individual accepting this Agreement. “Dynepic”, the Licensor, means the owner of the MOTAR Platform, the “Product”, that Customer is licensed to use under the terms (https://www.dynepic.com/pages/motar-terms-of-use).

If you (the person accepting this Agreement) are accepting this Agreement on behalf of your employer or another entity, you agree that: (i) you have full legal authority to bind your employer or such entity to this Agreement, and (ii) you agree to this Agreement on behalf of your employer or such entity.

If you are accepting this Agreement using an email address from your employer or another entity, then: (i) you will be deemed to represent that party, (ii) your acceptance of this Agreement will bind your employer or that entity to these terms, and (iii) the word “you” or “Customer” in this Agreement will refer to your employer or that entity.

By requesting a license (trial or paid), clicking on the “Agree” (or similar button or checkbox) that is presented to you at the time of placing an Order, downloading Products, or by using or accessing the Products, you confirm you are bound by this Agreement. If you do not wish to be bound by this Agreement, do not request a license (trial or paid), click “Agree” (or similar button or checkbox), download the Products, or use or access the Products.

By entering into this Agreement and using the Licensed Software, Licensee is agreeing to and is subject to the following terms and conditions:

1. Definitions.

As used in this Agreement, the following definitions shall apply:

(a) “Customer” shall mean the legal entity or individual with legal authority to bind the employer to this Agreement and who is requesting a License and responsible for paying the License fees.

(b) “Licensed Product” or “Product” shall mean collectively the Licensed Software (as hereinafter defined) and the documentation therefor.

(c) “Licensed Software” or “Software” shall mean the Licensor’s MOTAR® Platform.

(d) “Licensed User” shall mean any user with a valid account on the platform. The Licensed User shall not include the Licensee. Additionally, a set number of Licensed User "Accounts” are provided under this License for the Licensed User’s personnel, reference 2.(b).

(e) “Licensed Term” shall mean the authorized time allowed by Licensee to use the Product per the provided License File.

(f) “Modification” means deleting code from, adding code to, or altering the code in the Licensed Software.

(g) “Modify” means to create or engage in creating a Modification.

(h) “Copy” means the medium on which information is fixed on a temporary or permanent basis and from which the information can be perceived, reproduced, used, or communicated, either directly or with the aid of a device.

(i) “Data” means database data added under a user login or contributed on behalf of a Licensed User account.

2. Licensed Use.

Subject to this Agreement, holding a valid License and during the Licensed Term, Dynepic grants Customer a non-exclusive, worldwide right to use the Licensed Product for its internal business purposes, in accordance with the MOTAR Documentation and subject to the use specified in the Terms. No ownership rights are granted to the Licensee beyond the limited license to use the Licensed Software described herein.

Restrictions. Except to the extent otherwise expressly permitted by this Agreement, Customer must not (and must not permit anyone else to): (a) rent, lease, sell, distribute or sublicense the Products or (except for Affiliates) include them in an outsourcing offering, (b) provide access to the Products to a third party, other than to Licensed Users, (c) charge its customers a specific fee for use of the Products, but Customer may charge an overall fee for its own offerings (of which the Products are ancillary), (d) use the Products to develop a similar or competing product or service, (e) reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to the Products, (f) modify or create derivative works of the Products, (g) attempt to create or apply for intellectual property rights over any derivative works or modifications of the Licensed Software; (h) interfere with or circumvent Product usage limits or Scope of Use restrictions, (i) remove, obscure or modify in any way any proprietary or other notices or attributions in the Products, or (j) violate the Acceptable Use Policy, which Acceptable Use Policy is incorporated herein by reference.

3. License and Fees.

(a) Appropriate License fees are due and payable on an annual basis, paid up front before License or renewal License is issued, unless otherwise negotiated and mutually agreed to by Customer and Licensor. 

4. Term and Effective Date.

(a) The License file will include the valid duration of use of the Product (the “Term”) and the Effective Date, start date of the license, shall be the date the license is fully paid.

5. IP Rights. 

(a) Licensor retains all right, title, and interest in and to the Product, including, without limitation, deliverables, and upgrades. The Licensee recognizes that the Licensed Software and its components are protected by copyright, patent, and other laws.

6. Reproduction and Modification of Software.

(a) The Licensee and Licensed Users may NOT access, reproduce, nor modify the Licensed Software source code. Licensor will be responsible for maintenance and code changes to enhance the Licensed Product.

(b) The Licensed User may add “Data” to the Product during the term of this license. It is understood that this data may be added, modified, and deleted at the Licensee’s discretion.

7. Negation of Warranty.

THE LICENSED PRODUCT IS PROVIDED ON AN “AS IS” BASIS, AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT; 7) TITLE; 8) MARKETABILITY; 9) PROFITABILITY; 10) SUITABILITY; AND/OR 11) ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.

8. Indemnity.

8.1 General

(a) If a claim is made that the licensed Use of the Licensed Product infringes any United States patent, copyright, trade secret, or other proprietary right, or if Licensor believes that a likelihood of such a claim exists, Licensor, in its sole discretion, may either procure for the Licensed User the right to continue using the Licensed Product, modify it to make it non-infringing but continue to meet the specifications therefor, or replace it with non-infringing software of like functionality that meets the specifications for the Licensed Product; but if none of the foregoing is commercially reasonably available to Licensor, it may terminate/cancel the license granted herein and require that the Licensee return the Licensed Product to Licensor, including all copies and portions thereof. 

(b) Licensor shall have no liability to the Licensee or the Licensed User for any claim of infringement pursuant to this Section 8, if such claim is based upon:

(1) Combination of the Licensed Product with data or with software or devices not supplied by Licensor; or

(2) Modifications made to the Licensed Product by Customer or other third party; or

(3)  Customer’s use of the Licensed Product in a manner not permitted by this Agreement or in violation of applicable laws.

(c) The foregoing sets forth the entire liability of Licensor to Licensee for the infringement of proprietary rights by the Licensed Product or any portion thereof.

8.2 Indemnification by Customer

Customer shall indemnify, defend, and hold harmless Licensor, its affiliates, officers, directors, employees, and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from or related to:
(a) Customer’s misuse of the Licensed Product, including any unauthorized modifications, reverse engineering, or violation of use restrictions;
(b) Violations of third-party rights, including but not limited to claims related to unauthorized use, data privacy violations, or intellectual property infringement caused by Customer’s content, data, or integrations;
(c) Security breaches or unauthorized access to the Licensed Product caused by Customer’s failure to implement adequate security measures for user credentials and access controls;
(d) Failure to comply with applicable laws or regulations, including export control laws, data protection laws, or industry-specific compliance obligations;
(e) Any contractual or business obligations Customer has with third parties that are impacted by its use of the Licensed Product.

8.3 Indemnification Process

The party seeking indemnification shall:
(a) Provide prompt written notice of the claim to the indemnifying party;
(b) Grant the indemnifying party the sole authority to control the defense and settlement, provided that no settlement may impose any liability or obligations on the indemnified party without its prior written consent;
(c) Cooperate as reasonably requested in the defense at the indemnifying party’s expense.

8.4 Exclusive Remedy

This Section 8 states the sole and exclusive liability of Licensor for third-party claims of intellectual property infringement and the Customer’s sole remedy in such cases. Nothing in this Section shall limit Licensor’s right to seek equitable relief or additional legal remedies.

9. Limitation of Liability.

IN NO EVENT SHALL LICENSOR BE LIABLE TO THE LICENSEE OR THE LICENSED USER FOR ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OF THE SOFTWARE PRODUCTS, INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, OR DELAY OF THE LICENSOR IN THE DELIVERY OF THE LICENSED PRODUCT. IN NO EVENT SHALL LICENSOR BE LIABLE TO THE LICENSEE OR THE LICENSED USER FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS LICENSE AGREEMENT, OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. LICENSOR’S LIABILITY HEREUNDER TO THE LICENSE PURCHASER AND THE LICENSED USER, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL OF THE LICENSE FEES PAID TO LICENSOR BY LICENSEE.

10.  Termination by Dynepic for other than Infringement Claims.

Licensor may terminate this Agreement immediately upon written notice if:

(a) Material Breach: Customer fails to comply with any material provision of this Agreement (including failure to pay license fees) and does not cure such breach within thirty (30) days of receiving written notice from Licensor.

(b) Violation of Use Restrictions: Customer breaches Section 2 (Licensed Use) by engaging in prohibited activities, including unauthorized sublicensing, reverse engineering, or modification of the Licensed Product.

(c) Security Risks or Compliance Violations: Customer’s use of the Licensed Product poses a security risk, violates applicable laws or regulations, or causes Dynepic to be in non-compliance with legal or regulatory obligations.

(d) Insolvency or Bankruptcy: Customer becomes insolvent, files for bankruptcy, or undergoes liquidation or similar proceedings.

(e) Threat to Platform Integrity: Customer engages in activity that disrupts, degrades, or interferes with the proper functioning of the Licensed Product, including but not limited to excessive bandwidth consumption, attempted hacking, or denial-of-service attacks.

(f) Effect of Termination.

(1) Cessation of Use: Upon termination, Customer shall immediately cease all use of the Licensed Product and permanently delete or return all copies of the software, documentation, and any confidential information belonging to Licensor.

(2) No Refunds: All fees paid by Customer prior to termination are non-refundable, except in the event of termination by Customer due to Licensor’s uncured material breach.

(3) Survival: The following sections shall survive termination:

• Section 5 (IP Rights)

• Section 7 (Negation of Warranty)

• Section 8 (Indemnity)

• Section 9 (Limitation of Liability)

• Section 11 (General Terms, including Governing Law and Dispute Resolution)

(d) Suspension of Access

Licensor reserves the right to suspend access to the Licensed Product in lieu of termination if Customer’s breach is curable and Licensor, in its sole discretion, determines suspension is a reasonable remedy. Suspension does not relieve Customer of payment obligations.

11. General Terms.

(a) No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent that the delay, failure, or default was caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

(b) Assignment and Change of Control

Neither party may assign or transfer this Agreement, in whole or in part, without the prior written consent of the other party, except that:

(i) Licensor (Dynepic, Inc.) may assign this Agreement without Customer’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to the Licensed Product. In such an event, Dynepic shall provide notice to Customer, and the successor entity shall assume all rights and obligations under this Agreement.

(ii) Customer may assign this Agreement only with Dynepic’s prior written consent, which shall not be unreasonably withheld, except that no consent is required if Customer assigns the Agreement to an Affiliate, provided that the Affiliate agrees in writing to be bound by the terms of this Agreement and Customer remains liable for its obligations.

(iii) Any attempted assignment or transfer in violation of this Section shall be null and void.

(c) Notwithstanding anything to the contrary herein, Licensor shall not be liable to the Licensee or the Licensed User, or any third party, for any damages, losses, costs, liabilities, or expenses arising out of or related to a cybersecurity breach of the Licensed Product or of the Licensee or the Licensed User’s data contained on the product.  

(d) It is understood that the Licensed Software is to be hosted by the Licensee. Licensee if solely responsible for security, backups and updating the software as new releases are made.

(e) To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

(f) Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

(g) The Licensed Software and documentation are commercial items, as that term is defined in 48 CFR 2.101, consisting of commercial computer software (“Software”) and commercial computer software documentation (“Documentation”), as those terms are used in 48 CFR 12.212. If the Software or Documentation is acquired by or on behalf of the U.S. government or by a U.S. government contractor (including without limitation prime contractors and subcontractors at any tier), then in accordance with 48 CFR 227.7202-4 (for Department of Defense licenses only) and 48 CFR 12.212 (for licenses with all federal government agencies), the government’s rights to the Software and Documentation are limited to the commercial rights specifically granted in this Agreement, as restricted by this Agreement. The rights limited by the preceding sentence include, without limitation, any rights to reproduce, modify, perform, display, disclose, release, or otherwise use the Software or Documentation. This Section 10(e) does not grant Licensee or Licensed User any rights not specifically set forth in this Agreement.

(h) This Agreement may not be modified, supplemented, or amended, except by a written instrument signed by an authorized representative of each party.

(i) All references included herein are considered to be part of this Agreement.

(j) This Agreement shall be construed in accordance with the laws of the state of Delaware, without giving effect to principles of conflict of Laws.  Any suit hereunder will be brought solely in the state or federal courts located in Delaware.