The Motus Agreement is between Motus Operations, LLC (“Motus”), a Delaware limited liability company and Client (“Client”), where Client procured Motus Services through separate agreement with Element Fleet Corporation (“Element”). By using Motus and/or Everlance products or Services, Client agrees to the terms of this Software as a Service (SaaS) Agreement (“Motus Agreement”). Motus and Client may each be referred to as a “party” and collectively as the “parties”. This Motus Agreement is incorporated into any Order Form that references it.
1.2 Use of the Services.
1.2.1 Use Rights. During the Service Term, and subject to all terms and conditions of the applicable Order Form, Motus will provide Client and Users a non-exclusive, revocable, non-assignable, and limited right to access and use the Services solely for Client’s internal business operations. For the avoidance of doubt, except as otherwise expressly set forth on an Order Form, all Client and User access to the Solutions will be over the Internet through a web or mobile application, and all software underlying the Solutions will be hosted on a server under the direction or control of Motus. If the Services include delivery of software, Motus will provide such software in object code form only and Client has no rights to any source code.
1.2.2 Client Account. Client will designate points of contact who are authorized to establish and manage Client’s account, and designate Users. Motus or Element will provide each User with the ability to access and use the Services. The Services may only be accessed by Users who have been issued a valid username and password (“Identity(ies)”). Any person who correctly enters an Identity into the Solutions will be considered the User entitled to hold such Identity (and the associated access to the Solutions), and Motus will have no duty to further inquire about the identity of such person. Motus is not responsible for any unauthorized person accessing the Services and/or Client Data through a valid Identity. Client assumes all responsibility and liability with respect to the access to and use of the Services by Users. Any failure by a User to comply with the Terms of Use or the terms and conditions contained in this Motus Agreement will be deemed a breach by Client of this Motus Agreement. Client will promptly notify Motus if Client believes that an unauthorized third party may be accessing or using a User account or if an Identity is lost or stolen.
1.2.3 Client Support of Services. As between Motus and Client, Client will be solely responsible for: (a) the accuracy and completeness of the Parameters; (b) the maintenance and use of Client Technology or User Technology, as applicable, needed to access the Services and otherwise ensuring that the Services are compatible with Client Technology or User Technology, as applicable; (c) the accuracy, quality and integrity of Client Data uploaded to the Motus Solution by Client or Users; (d) ensuring that its Users, Permitted Affiliates, employees, agents, and representatives comply with this Motus Agreement; (e) all actions taken via Client’s account; and (f) using the Services only in compliance with applicable laws and regulations. Client’s failure to commence or complete configuration or set up of the Services will not relieve Client from any of its obligations under this Motus Agreement, including payment of Fees.
1.2.4 Permitted Affiliates. Permitted Affiliates may execute separate Order Forms for Services under this Motus Agreement or receive the Services provided under a Client Order Form, subject to the terms of this Motus Agreement, provided that: (a) Client binds the Permitted Affiliates to comply with this Motus Agreement; and (b) Client and Permitted Affiliates agree to be jointly and severally liable to Motus for complying with this Motus Agreement. Client represents that it has the authority to act as an agent for Permitted Affiliates with respect to all interaction among Client, Permitted Affiliates, and Motus.
1.3 Services Restrictions. The Services are subject to the restrictions set forth in this Motus Agreement and the following: (a) Client does not acquire any right to use the Services in excess of the scope and/or duration stated in the Order Form; (b) upon the expiration of the Service Term, Client’s right to use the Solutions will terminate unless renewed in a manner consistent with this Motus Agreement; and (c) except as permitted in this Motus Agreement, Client will neither directly nor indirectly (i) make the Solutions (or any results from the Solutions) or Motus Materials available to any third party, except to Permitted Affiliates, (ii) license, sell, resell, rent, lease, transfer, assign, distribute, permit time sharing or service bureau use, host, outsource, or otherwise commercially exploit the Solutions or Motus Materials, (iii) interfere with or disrupt the integrity or performance of the Solutions, (iv) attempt to gain unauthorized access to the Solutions, (v) modify, copy, or make derivative works of the Solutions or underlying technology, or any data or other materials generated as part of the Solutions, (vi) disassemble, reverse engineer, decompile, or recreate any portion of the Solutions, Motus Materials, or underlying technology, except to the extent permitted by applicable law, or (vii) use the Solutions or Motus Materials to create any other (including competing) products or services, or to benchmark vehicle, mobile device, and/or remote worker expense rates against competing products or services..
1.4 Compliance with Export Laws. Client will not permit the Solutions to be used by any person or entity located in a jurisdiction that is subject to any export restrictions (“Prohibited Jurisdiction”) or that is otherwise barred from using the Solutions under applicable law. Client will not permit Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions. Client represents and warrants that it is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, and that Client is not a national of, or a company registered in, any Prohibited Jurisdiction.
1.5 Use of Subcontractors. Client consents to Motus’ use of subcontractors and consultants to provide the Services. Any subcontractors or consultants Motus uses will be under Motus’ direction, and Motus will remain responsible and liable for the performance of the subcontractors or consultants used to render the Services.
1.6 Ownership.
1.6.1 Client. As between Motus and Client, Client will own all Client Data. Client hereby grants to Motus a worldwide, non-exclusive, non-assignable (except as otherwise permitted under this Motus Agreement) license to access, retrieve, host, store, copy, display, aggregate and otherwise use Client Data to provide the Services.
1.6.2 Motus. As between Motus and Client, Motus will own all right, title, and interest in and to (a) the Services, Aggregate Data, Motus Materials, and Suggestions, (b) all improvements, enhancements or modifications thereto, and (c) all Intellectual Property rights related to any of the foregoing.
1.7 Interrupted Access or Lost/Damaged Downloads.
1.7.1 With respect to Services that are provided by Client’s access to the Solutions solely via the internet, Motus will provide reasonable support to correct any access difficulties (i.e., if Client’s use of the Solutions is lost or damaged) experienced by Client or its Users at no charge; and
1.7.2 With respect to Services delivered in part through a Motus application downloaded by Client and its Users from an app-store, if a User loses, damages, or replaces the device on which the application is downloaded or removes the application unintentionally, or if the functioning of the application on the device is damaged, User will be allowed to re-download the application to the appropriate device in the manner described in the Order Form without extra charge.
1.8 Reservation of Rights. Motus and Client each reserves all rights not expressly granted in this Motus Agreement.
1.9 Data Protection Agreement. The parties understand and agree that the Motus Data Protection Addendum incorporated herein, also available at motus.com/dpa, is made part of this Motus Agreement.
Client will be billed by and make payment for the Services to Element. Notwithstanding the foregoing, should Client continue to use the Services after such time that Element ceases to be responsible for invoicing and collecting payment, Motus shall have the right to invoice and collect Fees payable under any from Client directly under the same payment terms as were agreed to between Client and Element. Client acknowledges and agrees that Motus is a third party beneficiary with respect to any agreement between Client and Element to the extent it requires the payment of Fees specifically for the use of the Services, collection of Fees for use of the Services, and any related obligations regarding Client’s payment of taxes arising from the purchase of the Services and Motus shall have the right to enforce such terms and conditions.
Each party (a “Disclosing Party”) may provide the other party (a “Receiving Party”) with Confidential Information. “Confidential Information” means all materials and information provided by a Disclosing Party to a Receiving Party that Receiving Party should reasonably know is confidential at the time of its disclosure, including, Client Data, Motus Materials, any unique user identifiers and passwords provided to Client to access and use the Services, information relating to pre-release offerings, business plans, proposed or actual pricing, products, policies, procedures, inventions, trade secrets, patents, and know-how of the Disclosing Party. “Confidential Information” does not include information that Receiving Party can establish: (a) has become publicly available without Receiving Party’s breach of any obligation owed to Disclosing Party; (b) has been rightfully received by Receiving Party from a third party without confidentiality restrictions; (c) has been independently developed by Receiving Party without use of Disclosing Party’s Confidential Information; (d) is Aggregate Data or a Suggestion; or (e) is known to Receiving Party without any restriction as to use or disclosure prior to first receipt by Receiving Party from Disclosing Party. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, or (ii) required by law, judicial or administrative order, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing in advance of disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
4.1 Representations and Warranties.
4.1.1 Mutual Warranty. Each party represents and warrants that it has the legal power and authority to enter into this Motus Agreement and to grant all rights, licenses, and authorizations given in this Motus Agreement.
4.1.2 Motus Warranty. Motus shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Motus or by third-party providers, or because of other causes beyond Motus’ reasonable control, but Motus shall use reasonable efforts to provide advance notice of any scheduled service disruption via https://status.motus.com or otherwise.
4.1.3 Client Data Warranty. Client represents and warrants that it is and shall remain responsible for the collection and use of Client Data for purposes of all applicable laws relating to data privacy, personal data, transborder data flow and data protection and has or will obtain all rights necessary to provide Client Data to Motus for purposes of this Motus Agreement, and to the extent required, notify any individuals who own or have an interest in Client Data that Client Data will be provided to Motus for purposes of this Motus Agreement.
4.1.4 EXCEPT AS EXPRESSLY PROVIDED HEREIN, SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER, AND NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY CLAIM OR DAMAGES CAUSED BY ANY THIRD-PARTY TECHNOLOGY, EXCEPT THAT MOTUS SHALL PASS THROUGH APPLICABLE WARRANTIES AND/OR INDEMNIFICATION AVAILABLE TO IT FROM SUCH THIRD PARTIES. motus provides no guarantee or assurance OF ANY PARTICULAR (OR INTENDED) RESULTS. FURTHER, MOTUS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. FOR ANY BREACH OF WARRANTY, CLIENT’S EXCLUSIVE REMEDY AND MOTUS’ ENTIRE LIABILITY WILL BE THE CORRECTION OF THE DEFICIENcy THAT CAUSED THE BREACH OF WARRANTY; PROVIDED THAT CLIENT PROMPTLY PROVIDES MOTUS with WRITTEN NOTIFICATION DESCRIBING IN REASONABLE DETAIL THE NATURE OF THE DEFICIENCY AND A REASONABLE OPPORTUNITY TO CORRECT THE DEFICIENCY. IF MOTUS CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CLIENT MAY TERMINATE THE APPLICABLE ORDER FORM WITH RESPECT TO DEFICIENT SERVICES, AND MOTUS WILL REFUND TO CLIENT ANY unused pre-paid Fees for the DEFICIENT services, pro-rated for the remainder of THE Service Term.
5.1 Motus Indemnity. Motus will, at its expense, defend Client and its Permitted Affiliates (“Client Indemnitees”), and pay the amount of any adverse final and non-appealable judgement or settlement to which Motus consents (including reasonable attorney’s fees and litigation costs) resulting from any unaffiliated third party claim, demand, suit or proceeding (each, a “Claim”) that the Solutions, when used in compliance with the terms of this Motus Agreement, infringe on or misappropriate such third party’s valid U.S. patent, copyright, or trade secret. If Motus receives information about an infringement or misappropriation Claim related to the Solutions, Motus may at its option, and at no cost to Client : (a) obtain for Client the right to continue to use the Solutions; (b) replace or modify the Solutions so that they become non-infringing without material alteration; or (c) if (a) or (b) are not commercially reasonable for Motus to effect, then Motus may terminate this Motus Agreement upon written notice to Client and refund to Client any unused pre-paid Fees for the infringing Solutions, pro-rated for the remainder of the Service Term.
5.2 Exclusions from Motus Indemnification. Motus will have no liability or obligation under subsection 5.1 above with respect to any Claim based on Client’s use of the Services not in compliance with this Motus Agreement, any modifications or combinations of the Services or results thereof with information, data, software or other materials not provided by Motus (including, without limitation, Client Data and/or Parameters), or Client’s continued use of the Services after notification from Motus to cease or after being provided with modifications that would have avoided the Claim), or on Client’s, its Users’, or its Permitted Affiliates’ gross negligence or intentional misconduct.
5.3 Client Indemnity. Client will, at its expense, defend Motus and its Affiliates (“Motus Indemnitees”), and pay the amount of any adverse final and non-appealable judgement or settlement to which Client consents (including reasonable attorney’s fees and litigation costs) resulting from any Claim based on or related to: (a) Client’s (including Users’) use of the Services not in compliance with Sections 1.2.1, 1.2.2, 1.3 and 1.4 of this Motus Agreement; (b) Client Technology or User Technology; (c) Client’s not conveying to Motus all necessary rights, authorizations, or licenses to use Client Data; (d) Client’s Parameters; or (e) any Claim that the Client Data infringes, violates, or misappropriates the Intellectual Property of any un-Affiliated third party.
5.4 Exclusions from Client Indemnification. Client will have no liability or obligation under subsection 5.3 above with respect to any Claim based on Motus’ or its Affiliates’ gross negligence or intentional misconduct.
5.5 Indemnification Procedure. As a condition to the obligations set forth in Section 5.1 and 5.3 above, the responsible party (“Indemnitor”) must receive timely written notice of the Claim; provided that failure to provide such notification shall not relieve the Indemnitor of its indemnity obligations except to the extent Indemnitor is prejudiced thereby. Indemnitor will have sole control over the defense and settlement of the Claim with counsel of its own choosing, except to the extent that any settlement involves material commitments on the part of the indemnified party (“Indemnitee”), in which case such settlement will require the prior written consent of Indemnitee (which consent will not be unreasonably withheld, conditioned, or delayed). Indemnitee will provide reasonable and non-confidential information and cooperation as reasonably required by Indemnitor. Indemnitor will not be responsible for any settlement it does not approve in writing. Indemnitee reserves the right to participate at its own cost in any proceedings with counsel of its own choosing; provided, however, that the defense or settlement of any Claim will at all times be subject to Indemnitor’s sole control.
5.6 EXCLUSIVE REMEDY. THIS SECTION 5 DEFINES THE FULL SCOPE OF THE BASES AND REMEDIES FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS. Notwithstanding anything to the contrary in this Motus Agreement, this Section 5 does not apply to any claim (whether direct or indirect) for which a sole and exclusive remedy is provided under another section of this Motus Agreement.
6.1 EXCLUSION OF CERTAIN CLAIMS. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOLLOWING PARAGRAPH.
6.2 LIMITATION OF LIABILITY. THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY LICENSE, USE OR OTHER EMPLOYMENT OF THE SERVICES, NO MATTER THE TYPE OF CLAIM FROM WHICH LIABILITY ARISES, SHALL BE AN AMOUNT EQUAL TO THE FEES PAID OR PAYABLE BY CLIENT TO MOTUS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE OF THE EVENT GIVING RISE TO THE CAUSE OF ACTION OR CLAIM. THIS LIMITATION OF LIABILITY WILL NOT APPLY TO (I) CLIENT’S OBLIGATIONS TO PAY FEES AND EXPENSES TO MOTUS IF AND WHEN DUE, (II) ANY INFRINGEMENT OR MISAPPROPRIATION BY CLIENT OF MOTUS’ INTELLECTUAL PROPERTY, (III) CLIENT’S INDEMNIFICATION OBLIGATIONS, NOR TO (IV) EITHER PARTY’S ACTS OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO CLIENT AND ITS PERMITTED AFFILIATES AND SHALL NOT BE CUMULATIVE. MONETARY DAMAGES, AS LIMITED BY THIS SECTION, WILL BE EACH PARTY’S SOLE AND EXCLUSIVE REMEDY (AT LAW OR IN EQUITY) IN THE EVENT THAT ANY EXCLUSIVE REMEDY IN THIS AGREEMENT IS FOUND TO FAIL OF ITS ESSENTIAL PURPOSE. ALL CAUSES OF ACTION OR CLAIMS BROUGHT BY EITHER PARTY PERTAINING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR FROM THE DATE OF THE EVENT GIVING RISE TO THE CAUSE OF ACTION OR CLAIM; EXCEPT THAT AS TO ANY PARTY’S INDEMNIFICATION OBLIGATIONS, ALL RELATED CAUSES OF ACTION OR CLAIMS MUST BE BROUGHT BY THE LATER OF (A) ONE (1) YEAR FROM THE DATE OF THE EVENT GIVING RISE TO THE CAUSE OF ACTION OR CLAIM OR (B) ONE (1) YEAR FROM THE DATE THAT THE PARTY SEEKING INDEMNIFICATION SHOULD REASONABLY HAVE KNOWN OF ANY MATTER GIVING RISE TO SUCH CAUSE OF ACTION OR CLAIM. BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON THEIR LIABILITY.
7.1 Generally. Motus or Element may suspend Client’s right (including its Users) to access or use any portion of the Services immediately on notice and without liability or refunds/credits due to Client if Motus determines in good faith that: (a) Client’s (or its Users) use of the Services (i) poses a security risk to the Services, any related network or data, or to any third party, (ii) may subject Motus to liability, or (iii) is fraudulent; (b) the Services have been accessed or manipulated by a third party without Client’s consent or in violation of this Motus Agreement; (c) suspension is required by applicable law or court order; (d) suspension is required by third party providers that provide portions of the Services; (e) Client has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Client’s assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (f) if, after Motus notifies Client at least 72 hours prior to the suspension, Client is in breach of an agreement with Motus.
7.2 Termination Rights. Motus’ right to suspend access or use the Services is in addition to all other rights Motus may have pursuant to this Motus Agreement (including, without limitation, Motus’ right to terminate this Motus Agreement).
8.1 Term. This Motus Agreement will commence on the Effective Date of the Order Form and will continue in effect for the duration of the Order Form, unless earlier terminated as set forth in this Motus Agreement or the Order Form.
8.2 Termination. Either party may terminate this Motus Agreement for cause if (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, (ii) the other party breaches its obligations related to Confidential Information, (iii) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, which is not resolved within 90 days of institution (in the cases of the foregoing Section 8.2(ii)-(iii), termination will be effective immediately on receipt of written notice). Upon termination of this Motus Agreement, all Order Forms will automatically terminate.
8.3 Obligations on Termination. Upon termination or expiration of this Motus Agreement, all rights granted to use the Services and all obligations to provide the Services will immediately cease. If this Motus Agreement is terminated by Client for cause in accordance with Section 8.2 (Termination), Motus will refund any prepaid Fees actually received, in a pro rata amount covering the remainder of the term of all Order Forms after the effective date of termination. If this Motus Agreement is terminated by Motus for cause in accordance with Section 8.2, Client will be obligated to pay any unpaid Fees covering the remainder of the term of all Order Forms. In no event will termination relieve Client of its obligation to pay any Fees payable for the period prior to the effective date of termination. Except as required by applicable law or pursuant to Motus’ data retention policies, upon Client’s written request within sixty (60) days following the termination or expiration of this Motus Agreement, Motus will return Client Data to Client, or at Client’s election and reasonable expense, destroy Client Data (excluding any copies located in Motus back-up or archival systems). With respect to Services that are provided by Client’s access to Motus Solutions solely via the internet, to the extent relevant under any state or local law, the obligation of Client to destroy or return Motus software under applicable law will be accomplished by Motus through disabling of Client’s access to the Solutions. With respect to Services delivered in part through a Motus application downloaded by Client and its Users via an app-store, the obligation of Client to destroy or return Motus software under applicable law will be accomplished by Client’s requiring Users to remove the applications from all devices and Motus will disable service to Client’s Users.
8.4 Survival. The Definitions section and Sections 1.6-1.7, 2, 3, 4.1.4, 5, 6, 8.3-8.4, and 9 will survive the termination or expiration of this Motus Agreement for any reason whatsoever.
8.5 Force Majeure. Neither party will be deemed in breach of this Motus Agreement for any cessation, interruption, or delay in performing its obligations under this Motus Agreement when prevented from doing so (other than obligations to pay Fees) due to causes beyond its reasonable control, including, without limitation: (a) earthquake, flood, or other natural disaster, acts of God, labor controversy, civil disturbance, terrorism, war, epidemic, pandemic, the inability to obtain sufficient supplies, transportation, or other essential commodities or services required in the conduct of its business, or any other cause beyond the reasonable control of the party whose performance is affected; or (b) any change in or the adoption of any law, rule, or regulation, or the entering of any judgment, order or decree that prevents or inhibits its performance under this Motus Agreement (each of (a) and (b) a “Force Majeure Event”); provided that financial inability in and of itself will not be a Force Majeure Event. Where there is a Force Majeure Event, the party prevented from or delayed in performing its obligations under this Motus Agreement must (i) promptly notify the other party giving full particulars of the Force Majeure Event and the reasons for Force Majeure Event preventing that party from, or delaying that party in performing its obligations under this Motus Agreement, (ii) use its reasonable efforts to mitigate the effect of the Force Majeure Event and, (iii) as soon as reasonably practicable recommence the performance of its obligations under this Motus Agreement.
9.1 Governing Law, Jurisdiction, and Venue. Any dispute relating to, or arising under, this Motus Agreement shall be determined in accordance with the laws of the State of Delaware (except to the extent that federal law is controlling), without regard to its conflict of law principles. The parties consent to exclusive jurisdiction and venue in the federal or state courts sitting in the State of Delaware that have subject matter jurisdiction over any such dispute. The parties waive all defenses of lack of personal jurisdiction and forum non-conveniens in the federal or state courts sitting in the State of Delaware for litigation regarding such disputes. The application of the UN Convention on Contracts for the International Sale of Goods and all its relevant and valid amendments shall expressly be excluded.
9.2 Notices. All notices provided by Motus to Client under this Motus Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or registered mail, with a copy by email, to the Client address listed on the Order Form; or (b) electronic mail to the electronic mail address listed on the Order Form. Client must provide notice to Motus in writing by U.S. mail to: 1 Beacon Street, Floor 15, Boston, MA 02108, Attn: Legal & Finance Departments; cc: [email protected]. Electronic mail notices (excluding email copies of mailed notices) shall be deemed to have been given immediately upon sending by electronic mail; or, if otherwise delivered, upon the earlier of receipt or four (4) business days after being deposited with a Courier or by mail as permitted above.
9.3 Relationship of the Parties. The parties are operating as independent contractors, and nothing in this Motus Agreement will be construed as creating a partnership, franchise, joint venture, employer and employee, or agency relationship. Neither party has the authority to obligate the other party in any manner. Where Motus makes payments to Users, this payment represent funds owed by Client to its employees as reimbursement for expenditures incurred by such employee(s) in their discharge of work duties. Motus’ processing of such funds is offered as a convenience only, and is neither mandatory nor separately compensated. Motus is not a money transmitter and does not engage in money transmission under state or federal law.
9.4 No Third-Party Beneficiaries. This Motus Agreement does not confer any rights or remedies upon any person other than the parties to this Motus Agreement and their respective successors and permitted assigns.
9.5 Waiver. Any delay or failure of a party to exercise a right or remedy under this Motus Agreement or at law will not result in a waiver of that, or any other, right or remedy. No waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
9.6 Severability. If any provision of this Motus Agreement is found to be unenforceable, the parties (or, if the parties cannot agree, a court) will revise it so that it can be enforced consistent with the intent of the parties as of the Effective Date. Even if no revision is possible, the rest of this Motus Agreement will remain in effect.
9.7 Assignment. Neither party will assign this Motus Agreement without the written consent of the other party; provided, however, that this Motus Agreement may be assigned by either party to any Affiliate of such party or to a successor organization acquiring all or substantially all of such party’s assets and/or business (including by means of a merger, acquisition, or similar transaction) without the written consent of the other party. Notwithstanding the foregoing, Motus, or its permitted successive assignees or transferees, may assign or transfer this Motus Agreement or delegate any rights or obligations hereunder without consent to any entity controlled by, or under common control with, Motus, or its permitted successive assignees or transferees. No assignment shall relieve either party of the performance of any accrued obligation which such party may then have under this Motus Agreement.
9.8 Interpretation. This Motus Agreement will be interpreted according to the plain meaning of its terms without any presumption that it should be construed either in favor of or against either party.
9.9 Entire Motus Agreement. As between Client and Motus, this Motus Agreement is the entire agreement between the parties (including, where applicable, a Motus Affiliate) regarding its subject matter and supersedes all prior and contemporaneous agreements or communications between the parties. This Motus Agreement may not be modified except by a written agreement signed by authorized representatives of the parties. Any terms included in Client’s administrative systems/processes (including without limitation purchase orders, order acknowledgements, third party tools, e.g. for invoice processing or diligence) that add to or conflict with the Motus Agreement are rejected and deemed null and void even to the extent Motus may “sign” or “accept” such terms as required within those systems/processes. Notwithstanding the foregoing, the Services may include the use of certain products and/or services (e.g., applications for download and use on mobile devices) that have terms of use, privacy statements, or other agreements to which Client and/or Users are subject by virtue of their use or that Client and/or Users must accept as a condition to their use, and Client and/or Users agree to be bound by any such terms. This Motus Agreement may be executed in counterparts, each of which will be deemed an original and together will constitute one Motus Agreement. The parties agree that this Motus Agreement may be signed by means of electronic signature technology pursuant to the U.S. Federal E-SIGN Act and any applicable state or country laws. Signatures, originally signed by hand, but transmitted via e-mail as PDF files or by fax will also be deemed valid and binding original signatures.
Capitalized terms used in this Motus Agreement have the following meanings or such meanings as defined elsewhere in this Motus Agreement or in an Order Form:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party. “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity, or the right to direct the management of the entity.
“Aggregate Data” means de-identified, anonymous data in the form of summary-level information that is derived from Client Data or otherwise from Motus’ performance of the Services, which does not identify individual Users or Client as the source of the information.
“Applicable Privacy Laws” means any applicable state data protection or privacy laws, including but not limited to the California Consumer Privacy Act, the Virginia Consumer Data Protection Act, the Colorado Privacy Act, the Utah Consumer Privacy Act, and the Connecticut Data Privacy Act, and any accompanying regulations.
“Client Data” means any information uploaded to the Motus Solution by Client or Users, as well as the resulting Client-specific output that is generated by the Motus Solution when processing Client Data and provided by Motus to Client as set forth on an applicable Order Form.
“Client Technology” means Client software, hardware, network, internet connectivity, and other technology, whether developed and/or owned by Client or made available to Client by third parties other than Motus.
“Intellectual Property” means all copyright, trademark, trade name, or patent rights (whether registered or unregistered, and any applications for the foregoing), trade secrets, inventions, know-how, and any other proprietary and enforcement rights pertaining to the foregoing.
“Motus” means Motus or the Motus Affiliate referenced in an Order Form.
“Motus Materials” means Motus’ methodologies and proprietary components of the Services, including, without limitation, as applicable, reimbursement rates and/or reports, the methods used in reimbursement studies and calculations, expense optimization analysis and management, business methods, data inputs and algorithms contained therein, formulas, studies for specific vehicles or devices, and information about how reimbursement calculations and expense optimization analyses are performed.
“Order Form” means the documents for placing orders for the Services, and the specifications contained therein, that are entered into between Client and Motus or one of Motus’ Affiliates (as applicable) from time to time, including Solution Order Forms, Parameter selections, Statements of Work, Exhibits, Schedules, Addenda, and Supplements.
“Parameters” are Client’s selected Services configurations and/or specifications (and any subsequent modifications thereto elected by Client), including, without limitation, any configurations and/or specifications which Motus uses in computing vehicle, mobile device, and/or remote worker expense reimbursement rates and/or expense optimization analysis.
“Permitted Affiliates” means Client Affiliates, if any, listed in the Order Form or added by written consent of the parties.
“Personal Information” or “PI” means data that constitutes personal information and/or personal data under Applicable Privacy Laws in connection with Motus’ provision of Services to Client under this Motus Agreement.; provided, however, that “Personal Information” or “PI” shall not include information that is lawfully obtained from publicly available information, or from federal, state, or local government records lawfully made available to the general public.
“Services” means the Solutions and/or related professional or managed services to which Client subscribes or procures from Motus (such as implementation services) as specified in the Order Form.
“Service Term” means the duration for which Client subscribes to the Services as stated in the Order Form.
“Solutions” means the Motus Software-as-a-Service platforms, applications, programs,and/or other service offerings, in each case, that are specified in the Order Form; but excludes Third Party Technology.
“Suggestions” means any ideas, improvements, changes, features, functionality, or other ways of delivering the Services that Client communicates to Motus.
“Terms of Use” means the terms (which may be updated from time to time) made available to Users and to which they must abide in order to use the Solution.
“Third Party Technology” means any software, networks, equipment, data, managed services, hosted platforms, hardware, source code, and other technology or services provided by third parties un-Affiliated with Motus that may form a part of, or interoperate with, or that are used or provided by Motus as part of or in delivering the Services.
“User Technology” means User software, hardware, network, internet connectivity, and other technology, whether developed and/or owned by User or made available to User by third parties other than Motus.
“Users” means individuals who are designated by Client to be registered for and authorized to access, use and/or receive the Services, whether through Element .
This DATA PROCESSING ADDENDUM (“Addendum” or “DPA”) is incorporated into the Agreement between Motus Operations, LLC (“Service Provider”) and Client (“Controller”). By using Motus Services, Client agrees to the terms of the DPA. The defined terms in the Agreement control unless a specific definition is contained within this DPA.
1.1 “Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked with a specific individual pursuant to Data Protection Law(s).
1.2 “Processing” means any operation or set of operations which is performed on Personal Information or on sets of Personal Information, whether or not by automated means, pursuant to Data Protection Law(s), which may include collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.3 “Data Breach” means a breach of security resulting in the unauthorized acquisition of, or access to, Personal Information, as defined by a Data Protection Law governing the processing of the impacted data.
1.4 “Data Protection Law(s)” means the laws and regulations regarding Personal Information and/or data security applicable to Motus and Client Data in connection with Motus’s provision of Services under the Agreement, including the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100 – 1798.199) of 2018, including as modified by the California Privacy Rights Act; the Colorado Privacy Act C.R.S.A. § 6-1-1301 et seq. (SB 21-190) the Connecticut Data Privacy Act, S.B. 6 (Connecticut 2022); the Utah Consumer Privacy Act, Utah Code Ann. Sec. 13-61-101 et seq.; the Virginia Consumer Data Protection Act, Va. Code Ann. Sec. 59.1-575 et seq. (SB 1391); and the Canadian Personal Information Protection and Electronic Documents Act.
1.5 “Processing Services” means any and all Services provided by Service Provider under the Agreement that involve Processing of Personal Information pursuant to Data Protection Law(s).
2.1 The Parties acknowledge and agree that Service Provider is a “service provider,” as that term is defined under the California Consumer Privacy Act (“CCPA”).
2.2 Service Provider shall inform Controller without undue delay: (i) if it cannot comply with any material term of this DPA regarding the Processing Services. If this occurs, Service Provider shall use reasonable efforts to remedy the non-compliance. In the event of non-compliance, Controller may elect to suspend the communication of Personal Information and/or require Service Provider to cease further Processing of Personal Information; (ii) of any request for access to any Client Personal Information received by Service Provider from any government official (including any data protection agency or law enforcement agency), prior to any disclosure.
2.3 Controller represents and warrants that Controller has obtained any consent required by law to enable Service Provider to lawfully process Personal Information on Controller’s behalf and otherwise provide the Services under the Agreement.
2.4 Service Provider shall provide a clear and conspicuous privacy notice to Users of the Services in compliance with applicable Data Protection Laws.
2.5 Service Provider shall not transfer the Personal Information across any national borders or permit remote access to the Personal Information from any employee, affiliate, contractor, or other third party outside of the country unless Service Provider has first entered into a written confidentiality agreement with such employee, affiliate, contractor, or other third party. Such agreement must be consistent with the confidentiality and security obligations undertaken by the Service Provider in this Agreement. Service Provider shall be liable to Controller for such employee, affiliate, contractor, or other third party’s acts or omissions pursuant to the Agreement.
2.6 Service Provider shall cooperate with Controller in responding to inquiries (including but not limited to verifiable User requests under the CCPA), claims and complaints regarding the Processing of the Personal Information.
2.7 Service Provider’s Processing shall comply with Data Protection Laws.
3.1 The Service Provider shall, without undue delay, instruct any User seeking to exercise any rights under any Data Protection Law (including but not limited to the CCPA) to redirect such request(s) to Controller. The Service Provider will provide commercially reasonable support to Controller where required for Controller’s processing of such inquiries or requests. Controller is solely responsible for taking measures to identify the User the inquiry or request is relating to, including for the avoidance of doubt requesting further information from the data subject.
4.1 Service Provider has implemented and documented appropriate operational, technical and organizational measures designed to protect Personal Information against accidental or unlawful destruction, alteration, unauthorized disclosure or access, as set forth in Exhibit A.
4.2 If the Processing involves the transmission of Personal Information over a network, Service Provider shall have implemented appropriate supplementary measures designed to protect the Personal Information against the specific risks presented by the Processing.
4.3 Service Provider shall provide Controller with information about the Service Provider’s information security program as well as overall compliance with the obligations set forth in this Agreement by providing industry standard security questionnaire data and/or providing a copy of its annual SOC 2 Type II report upon request.
4.4 Service Provider will promptly and thoroughly investigate any Personal Information Breaches. Service Provider will notify Controller in compliance with applicable Data Protection Law, upon discovery of any Personal Information Breach. Service Provider will promptly mitigate such Personal Information Breach and reasonably cooperate with Controller by providing a report and/or details requested by Controller.
4.6 Service Provider shall carry appropriate insurance to address the risks from its Processing of the Personal Information.
4.7 The parties acknowledge that risks and data security laws, rules and regulations change over time and consequently, a data privacy and security program must evolve. As such, Service Provider may from time to time modify its policies and practices described in this DPA and Exhibit A, provided that any revisions to such practices shall not be any less protective of Client Personal Information than the policies and practices described herein.
1. Third Party Security Audit. Motus shall be audited annually against the SOC 2 Type II standard, at Motus’s expense. The audit shall be completed by an independent third party. Upon Client’s written request, Motus will provide a copy of the resulting annual audit report. Although that report provides an independently audited confirmation of Motus’s security posture annually, the most common points of interest are further detailed below.
2. Executive Summary of Web Application Penetration Test. Motus shall continue to annually engage an independent, third party to perform a web application penetration test. Upon Client’s written request, Motus shall provide the executive summary of the report to Client. Motus shall address all vulnerabilities in the findings of the report within a reasonable, risk-based timeframe.
