TERMS OF USE AGREEMENT

LAST UPDATED: February 7, 2024

Mivation Inc. (“Mivation”), licenses and permits you to use the Racing Snail® Production Management, Performance Management and Compensation Software (“RacingSnail System”), Xcelerator – an Agency Commission and Compensation Software (“Xcelerator System”), the Leaderboard Legends™ Competition, Recognition, Gamification, Broadcasts, and Records Software (“Leaderboard Legends System”). The RacingSnail System, Xcelerator System and the Leaderboard Legends System are hereinafter collectively referred to as the “System” under the terms and conditions set forth below.

1. THE SYSTEM

The Racing Snail System utilizes proprietary Racing Snail® technology and know-how to allow multiple users, as well as authorized team members, to simultaneously track production, income-producing activities (IPAs), goals, and incentive programs through a Software as a Service (SaaS) system. The Xcelerator System utilizes proprietary Racing Snail® technology, professional services, additional proprietary technology, and know-how to consume and augment data from various carrier commission statements and third-party systems and data sources to track Agency Commissions, sub-producer assignment, and incentive programs through a Software as a Service (SaaS) system.  The Leaderboard Legends System utilizes proprietary Leaderboard Legends™ technology and know-how to provide a SaaS based motivation and gamification solution to improve performance and productivity. From time to time, Mivation may, but is under no obligation to, offer additional functionality, products or services at its website and may resell Mivation partner products and services. Those additional or resold products or services are subject to these same Terms of Use and are included in the definition of “System” in these Terms of Use.

2. TERMS OF USE

Please read this agreement (the “Agreement”) carefully before accessing or using the System. By accessing or using the System, you agree to be bound by this Agreement. Mivation provides the System to you, the user, conditioned on your acceptance without modification of the terms, conditions and notices contained herein. Your use of the System constitutes your agreement to all such terms, conditions and notices. THIS AGREEMENT APPLIES TO BOTH CUSTOMERS AND NON-CUSTOMERS OF MIVATION. IF YOU ARE USING THIS SYSTEM, YOU ARE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS OF USE.

The System is provided with the understanding that neither Mivation, nor its business partners, shareholders, officers, directors, employees, agents, representatives, consultants or agents are engaged in rendering legal, financial, insurance or other professional services or advice. Your use of the System is subject to the additional disclaimers and caveats that may appear throughout the System.

Mivation and its agents assume no responsibility for any consequence relating directly or indirectly to any action or inaction that you take or fail to take based on the information, services or other material on this System or the results displayed or provided. While Mivation strives to keep the information, functions, features, calculations and algorithms on this System accurate, complete and up to date, Mivation and its shareholders, officers, directors, programmers, contributors, or suppliers cannot guarantee, and will not be responsible for any damage or loss related to, the availability, accuracy, completeness or timeliness of the information or the System. It is possible that the System could become unavailable at any time without notice or include inaccuracies or errors, and that unauthorized additions, deletions and alterations could be made to the System. You agree to notify Mivation of these problems if you discover them.

3. LICENSE

Subject to the terms and conditions of this Agreement, Mivation grants you a limited, revocable, non-transferable and nonexclusive license to access and use the System in accordance with these Terms of Use. Your rights hereunder are not sub-licensable and are granted solely for your use. The license granted hereby does not include any right to any source code for any of the software in the System.

4. ACCOUNT, PASSWORD, AND SECURITY

To access the System you must complete the registration process by providing Mivation with current, complete and accurate information as prompted by the registration form, including your e-mail address, and password. Mivation will assign you a username. You are responsible for updating and maintaining the accuracy of your account information. If you provide any information that is untrue or inaccurate, not current, or incomplete, or if Mivation suspects that your registration information is untrue, inaccurate, or incomplete, then Mivation may, in its sole discretion, suspend, terminate, or refuse future access to the System. Registration information is subject to the Mivation Privacy Policy (which is incorporated by reference herein).

You are solely responsible for maintaining the security of your username and password. You may not disclose your username or password to any third party (other than third parties authorized by you to use your account in accordance with this Agreement) and are solely responsible for any use of, or action taken under, your password. If your password is compromised, you must immediately change your password.

From time-to-time Mivation authorized personal may log into the System under your username and password in order to maintain or improve service, including to assist you with technical or billing issues. You hereby acknowledge and consent to such access.

5. FEES

Mivation accepts payment via a valid credit or debit card for recurring subscriptions, set-up fees, and optional services. Set-up fees will be charged at the time of sign-up. Monthly subscription fees are charged monthly on the day of the original purchase date. Annual subscriptions are charged annually on the day of the original purchase date.  Xcelerator’s optional services for statement data input, and statement storage will be charged at the end of the calendar month if the procured services were purchased on a per transaction or data element basis or the same day as the monthly subscription if purchased on a fixed fee basis.

Unless timely terminated by you, you agree that recurring fees will be processed in accordance with this Agreement and you authorize Mivation to automatically bill your credit or debit card in accordance with this Agreement for the then-current subscription fees and purchased add-on services. The prices for renewals may be different than those paid for a prior subscription. Mivation shall not be responsible for any expenses you may incur as a result of overdrawing a bank account or exceeding a credit limit as a result of an automatic charge pursuant to this Agreement.

You agree to notify Mivation promptly of any changes to your credit card account number, its expiration date and/or your billing address, and you agree to notify Mivation promptly if your credit card expires or is canceled for any reason. In the event the credit card information is deemed invalid and another automatic payment option for all recurring charges is not set up prior to the charge date, access to the System may be deactivated.

If your account is suspended for non-payment, it will only be reactivated upon payment, in full of all overdue fees. Your subscription will not be activated or reactivated without prior payment.

6. CANCELLATION

Mivation does not issue refunds once an order is received.  You must notify us of your intent to cancel at least 10 days before the end of your subscription period. Upon cancellation by you, the right to use the System will stop at the end of your paid subscription period.   You may not have access to data that you stored on the System after cancellation of your account. You are responsible for backing up your data that you enter into the System.

7. TERMINATION OR SUSPENSION BY MIVATION

Mivation may terminate  or suspend the System or your access to the System at any time and for any reason without notice. Upon such termination  or suspension, your right to use the System will stop immediately. You may not have access to data that you stored on the System after suspension or termination of the System or your account. You are responsible for backing up your data that you enter into the System.

If your account is canceled in its entirety without cause by Mivation, you will receive a refund on a pro-rata basis the amount of your payment corresponding to the portion of your service remaining right before termination of the System or your account.

8. DATA

The System allows you to enter certain data for the purpose of obtaining various reports and information created by the System using various proprietary calculations and algorithms. You are solely responsible for the data you enter into the System and its accuracy. Mivation disclaims all responsibility and any warranties or guarantees as to the integrity, quality, accuracy, truth, ownership or lawfulness of the data or any part thereof. You represent and warrant that:

• The entered data, data you, or your service provider, provide to be inputted does not violate any person’s right of privacy or publicity, nor constitute an improper or unlawful use of any person’s name or likeness.
• The entered data or data you, or your service provider, provide to be inputted, or your service provider does not violate or infringe any person’s intellectual property rights, copyrights, trademarks, service marks, trade names, restricted material, trade secrets or other proprietary rights.
• The entered data or data you, or your service provider, provide to be inputted does not include any highly confidential information or other information protected under the applicable privacy policies of either party or any consumer privacy laws or violate any agreement with any third party.
• The entered data does not contain malicious code, including without limitation, worms, Trojan horses, viruses, cancelbots, time bombs, or other computer programs that might damage, intercept, interfere, or expropriate any program, system, other data, or personal information.

9. DATA ENTRY AND TRANSMISSION

All information provided to Mivation is transmitted using SSL (Secure Socket Layer) encryption. SSL is a proven coding system that lets your browser automatically encrypt or scramble data before you send it to us. Mivation also protects account information by placing it in a secure location that is only accessible by appropriate Mivation personnel.

Unfortunately, no data transmission over the internet, software system or website is 100% secure. We cannot guarantee that the System is failsafe or that information is not subject to the interception, alteration, or unauthorized access by third parties. While we take responsible precautions to safeguard the confidentiality of your data, we cannot guarantee the security of any data you provide to Mivation or enter into the System. Furthermore, Mivation may disclose your data and information as required by law, rule, regulation or court order. Please review the Mivation Privacy Policy as it governs the handling of such information. By accessing the System you are agreeing to the Mivation Privacy Policy.

Entry of any user or third-party highly sensitive personal information into the System is strictly prohibited. Examples of highly-sensitive information include, but are not limited to, the following: Social security numbers (or in Canada, social insurance numbers) and tax identification numbers; Driver’s license numbers; Financial / card account numbers; Passwords / PINs; Dates of birth; Digital or electronic signatures; Mother’s maiden names; Biometrics (e.g., voiceprints); Medical information; Health Policy information, including an individual’s health insurance policy number or subscriber identification number. Accounts and/or data found in violation of this restriction are subject to deactivation or removal.

10:  DATA OWNERSHIP

Mivation does not own the data that is manually entered into the System Ownership of such data rests solely with the licensee of the System for data that is manually entered into your account and governed by the terms of service for 3^rd party systems from which Mivation receives data via integration.  

11. DATA LICENSE

You hereby grant Mivation a worldwide, transferable, nonexclusive, royalty-free license and right to use, modify, store, create derivative works of, and copy any data you provide to Mivation or enter into the System, in all media existing now or created in the future, as Mivation deems appropriate in its sole discretion. Mivation may sublicense the rights granted to it in this section to a third-party subcontractor where Mivation deems it necessary or advisable to facilitate Mivation’s services. Mivation reserves the right to excerpt data, compile data, aggregate data and make minor modifications to the data for technical or marketing reasons.

12. DIGITAL MILLENNIUM COPYRIGHT ACT

If you are a copyright owner or an agent thereof, and you believe that any content hosted on the System infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) to:

Mivation Inc.
1312 N Monroe St
Suite #257
Spokane WA 99201
Email: info@mivation.com

Your notice must contain:

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the System are covered by a single notification, a representative list of such works on the System.
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Mivation to locate the material. Providing URLs is best.
• Information reasonably sufficient to permit Mivation to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted.
• A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
• A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Please note that under Section 512(f) of the DMCA, any person who knowingly misrepresents that material or activity is infringing may be subject to liability.

13. PROPRIETARY MATERIALS AND RIGHTS

This System contains proprietary materials, such as programming code, algorithms, calculations, mathematical formulas, text, photographs, video, graphics, music, sounds or other materials, as well as trademarks, service marks, and trade dress of Mivation (hereinafter, the “Proprietary Materials”). All Proprietary Materials on this System (as well as the organization and layout of the System and its output) are (i) owned and copyrighted by Mivation and/or its affiliates or (ii) licensed to Mivation and/or its affiliates from third parties or (iii) or used by Mivation and/or its affiliates with permission from third parties.. No reproduction, distribution, or transmission of the copyrighted materials of this System is permitted without the prior written permission of Mivation.

All Proprietary Materials contained on the System are protected by law from unauthorized use. Mivation owns a copyright in the certain Proprietary Materials embodied in the System, as well as the entire contents of the System, including public domain content, which are protected as a collective work under the U.S. copyright laws. Mivation owns a copyright in the selection, coordination, arrangement and enhancement of all System content. These rights are valid and protected in all forms, media and technologies existing now or hereafter developed.

RACING SNAIL®, the RACING SNAIL logo, XCELERATOR, the XELERATOR logo, LEADERBOARD LEGENDS™, the LEADERBOARD LEGENDS logo and other trademarks, logos, product and service names used in association with the System (the “Marks”) are trademarks and service marks owned by or licensed to Mivation. You agree not to display or use in any manner the Marks without the prior express written permission of Mivation,

If you elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to Mivation in connection with or related to the System (including any related technology), Mivation will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner it chooses and without any compensation to you. You agree that Mivation has no obligation to keep any suggestions or ideas confidential and you hereby release any and all claims or liability against Mivation relating to the same.

14. PROHIBITED USES AND COPYRIGHT INFRINGEMENT

The System is offered through a secure website only. You may not attempt to access the System through fraudulent or deceptive means or the use of account information and passwords not authorized by Mivation. You may not attempt to circumvent the username and password requirements or any other security measures in effect on the System. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, or create derivative works from the System or sell any information, results, products or services obtained through or from the use of the System. If and when requested by Mivation, you agree to provide true, accurate and complete information. You agree not to impersonate or falsely represent your affiliation with any person or entity. Except with the express permission of Mivation, you agree not to access or attempt to access password protected, secure or non-public areas of the System. Unauthorized individuals attempting to access prohibited areas of this System may be subject to prosecution.

You may not without the prior written permission of Mivation (a) use any computer code, data mining software, “robot,” “bot,” “spider,” “scraper” or other automatic device, or program, algorithm or methodology having similar processes or functionality, or any manual process, to decompile, reverse engineer, monitor or copy any of the System, algorithms, formulas, data or content found on the System or accessed through the System; (b) attempt to unlock or bypass any initialization system or encryption technique within the System; (c) write or develop any other software program by using or which is based upon any Proprietary Materials; or (d) provide, disclose, divulge, or make the System available to, or permit use of the System by any third party, or any party for any unlicensed use. Your access and use of the software within the System is restricted to machine-readable, executable, object-code or bytecode form only

15. NO UNLAWFUL OR PROHIBITED USE

As a condition of your use of this System, you warrant to Mivation that you will not use this System for any purpose that is unlawful or prohibited by these terms, conditions and notices. If you violate any of these terms, your permission to use the System automatically terminates.

Mivation has the right to monitor your access to the System, your data, and your communications with Mivation and others through the System. Mivation reserves the right to remove any data that it determines, in its sole discretion, violates this Agreement. In order to cooperate with governmental requests, to protect the System, and to ensure the integrity and operation of the Systems, Mivation may access and disclose to others any information its considers necessary or appropriate, including, but not limited to, user contact details, IP addresses and traffic information, usage history and posted content.

16. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

• YOUR USE OF THE SYSTEM IS AT YOUR SOLE RISK. NEITHER MIVATION, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, PROGRAMMERS, CONTRIBUTORS, EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY CONTENT PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, WARRANT THAT YOUR USE OF THE SYSTEM AND ITS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SYSTEM AND ITS SERVICES, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, OUTPUT, SERVICE, OR MERCHANDISE PROVIDED THROUGH THEM.
• THE SYSTEM AND ITS SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
• OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO RECORDS, PROGRAMS OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO FUNCTIONS AND PROCESSES AND INFORMATION AVAILABLE THROUGH THE SYSTEM.
• NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MIVATION OR THROUGH OR FROM THE USE OF THE SYSTEM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
• MIVATION DOES NOT WARRANT THAT THE SYSTEM WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION OR THAT IT WILL OPERATE WITH YOUR SOFTWARE, HARDWARE OR NETWORK CONFIGURATIONS.
• ADDITIONALLY, MIVATION SPECIFICALLY DISCLAIMS ANY AND ALL COMPETITION RESULTS OR PRIZES, INCLUDING WHEEL SPINS OR PRIZES, ARISING IN CUSTOMER’S AND ALL USERS’ (INCLUDING AUTHORIZED USERS) USE OF THE SYSTEM.

17. LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT MIVATION, ITS SHAREHOLDERS, OFFICERS, DIRECTORS, AFFILIATES, EMPLOYEES, CONTRACTORS AND AGENTS (“MIVATION PARTIES”), SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF MIVATION PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SYSTEM; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY TRANSACTIONS ENTERED INTO OR RESULTS PROVIDED BY THE SYSTEM;(iii) ANY OTHER MATTER RELATING TO THE SYSTEM OR THE SERVICES, INCLUDING SYSTEM CONTENT OR CALCULATIONS OR FORMULAE OR ALGORITHMS OR INFORMATION CONTAINED WITHIN THE SYSTEM; OR (v) MISTAKES OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO RECORDS, PROGRAMS OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO FUNCTIONS AND PROCESSES AND INFORMATION AVAILABLE THROUGH THE SYSTEM.

18. INDEMNIFICATION

You agree to indemnify, defend and hold harmless Mivation, its contributors, affiliates and suppliers from any liability, loss, claim and expense (including reasonable attorneys’ fees) related to your breach of this Agreement or your use of the System.

19. THIRD PARTY SERVICES AND SITES

The System may include materials provided by third parties or hyperlinks to websites operated by parties other than Mivation or its affiliates. Such third-party software and hyperlinks are provided for your use and reference only. Mivation does not control such third-party services or websites and is not responsible for their performance or content. Inclusion of hyperlinks by Mivation to third-party websites does not imply any endorsement of the material on such websites or any association with their operators, and you access and use such sites, including information, material, products and services therein, solely at your own risk. Furthermore, because the Mivation Privacy Policy is applicable only when you are on this System, once linked to another website, you should read that site’s privacy policy before disclosing any personal information.

20. CHANGES TO SYSTEM AND THIS AGREEMENT

Mivation, its contributors, affiliates and/or its suppliers may make improvements or changes in the information, services, products, and other materials on the System, in whole or in part, at any time without notice. The System may become unavailable at any time, with or without notice. Mivation may discontinue offering or supporting the System altogether at any time, with or without notice. Mivation may modify this Agreement at any time, and such modifications shall be effective immediately upon posting of the modified Agreement on Mivation website or other portal. Accordingly, you agree to review this Agreement periodically, and your continued access or use of this System shall be deemed your acceptance of the modified Agreement.

21. NOTICES

All notices required or permitted under this Agreement shall be in writing and shall be sent by Postal Service Certified Mail with a copy via e-mail to the address set forth below:

Mivation Inc.
1312 N Monroe St
Suite #257
Spokane WA 99201
Email: info@mivation.com

22. MISCELLANEOUS

This Agreement and the resolution of any dispute related to this Agreement or the System shall be governed by and construed in accordance with the laws of Delaware, without giving effect to any principles of conflicts of law. Failure by Mivation or its affiliates to insist upon strict enforcement of any provision of this Agreement shall not be construed as a waiver of any provision or right. You agree that regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to use of the System or your rights under this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. Any legal action or proceeding between Mivation, and/or its contributors or affiliates and you related to this Agreement shall be brought exclusively in a federal or state court of competent jurisdiction sitting in the State of Washington, County of Spokane. No waiver of any breach of any provision of the Agreement will constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision of the Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions will remain in full force and effect. If any provision of the Agreement is, for any reason, determined by a court of competent jurisdiction to be excessively broad or unreasonable as to scope or subject, the provision will be enforced to the extent necessary to be reasonable under the circumstances and consistent with applicable law while reflecting as closely as possible the intent of the parties as expressed herein. The headings, subheadings, and other captions in the Agreement are for convenience and reference only and will not be used in interpreting, construing, or enforcing any of the terms of the Agreement. You and Mivation are independent contractors under the Agreement, and nothing herein will be construed to create a partnership, joint venture, franchise or agency or fiduciary relationship between you and Mivation.