API Terms of Service

1. Definitions

For purposes of these API Terms, capitalized terms shall have the meanings set forth below.

1.1

“App Market” means any marketplace or other aggregator or public repository of code or applications that access or use any Motive API, including Motive’s App Marketplace.

1.2

“Confidential Information” means (a) with respect to Developer, any information provided to Motive related to compliance with Section 3.2 (Security), and (b) with respect to Motive, any code, inventions, know-how, User Data, business, technical, or financial information that Motive discloses to Developer or Developer accesses through any Motive API, or that is otherwise accessed by or disclosed to Developer and which a reasonable person would understand to be confidential or proprietary.

1.3

“Developer App” means web or other software service or application developed by Developer that utilizes or interacts with any Motive API.

1.4

“Developer Marks” means all trademarks, service marks, logos, or trade names used to identify Developer or its products or services.

1.5

“Effective Date” means the earlier of (a) the date that Developer agreed to these Terms or (b) Developer’s first access or use of any Motive API.

1.6

“Internal Use” means Developer’s access and use of a Motive API in connection with Developer’s internal testing, development, or use of a Developer App, in each case solely for Developer’s internal business purposes and in accordance with these API Terms. Internal Use explicitly excludes publishing or making available any Developer App, for pay or at no cost, whether by Developer or by any entity other than Developer.

1.7

“Motive API” means any Motive application programming interface and any accompanying or related documentation, source code, API SDKs, scripts, buttons, app keys, access tokens, executable applications and other materials made available by Motive, including, without limitation, through its developer website or any User, Customer, Administrator, or Driver.

1.8

“Motive Marks” means all trademarks, service marks, logos or trade names used to identify Motive or its products or services.

1.9

“Motive Policies” means any Motive policies and requirements set forth on Motive websites or other documentation provided by Motive, which may be modified from time to time, including but not limited to Motive’s Privacy Policy, Acceptable Use Policy, and the requirements in the Motive API documentation.

1.10

“User” means any customer or user of a Developer App.

1.11

“User Data” means any data that is collected, accessed, or transmitted by, on, through, or in connection with a Motive API accessed or used by Developer.

2. Purpose and License

2.1 Application of API Terms

These API Terms govern Developer’s rights to use and access a Motive API. By access or using any Motive API, Developer hereby agrees to comply with these API Terms, the General Terms (to the extent applicable) and all Motive Policies.

2.2 Use Limits

Developer acknowledges that Motive may limit the number of transactions it may send or receive through the Motive API, and such limits may be set and changed by Motive at any time in its sole discretion.

2.3 Limited API License

Subject to the terms and conditions of these API Terms, including the restrictions set forth in Section 3 of these API Terms, Motive hereby grants to Developer a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license during the term of these API Terms to use and make calls to the Motive API to test, develop, implement, and operate Developer Apps solely for Internal Use by Developer.

Developer acknowledges and agrees that it may not distribute any Developer App in any App Market (or otherwise make any Developer App available to any third party) without Motive’s prior written authorization and consent (which may withheld in Motive’s sole discretion). To obtain authorization and consent from Motive to distribute your Developer Apps to third parties or in any App Market, please contact Motive at techpartners@Motive.com. Please note that production and/or distribution of Developer Apps may require your acceptance of additional terms and conditions.

2.4 Performance Data

Developer hereby grants to Motive a worldwide, perpetual, irrevocable right to collect, use, and distribute data related to the use of and calls to any Motive API (the “Performance Data”) so as to provide, analyze, operate, and improve the performance of the related Motive API, and to create and distribute reports and materials about the Motive API.

2.5 Feedback

If Developer provides any feedback to Motive concerning the Motive API (including identifying potential errors and improvements) or any of the Motive products and services, Developer hereby assigns to Motive all right, title, and interest in and to such feedback, and Motive is free, but not obligated, to use such feedback without payment or restriction.

2.6 Reservation of Rights

Except with respect to the limited licenses expressly provided in these API Terms, nothing in these API Terms grants to Developer any rights in any Motive API, any User Data or any other Motive intellectual property. Motive and its licensors reserve all right, title, and interest, in and to the Motive API. Motive may provide you with support for the Motive API in our sole discretion and may stop providing support to you at any time without notice or liability to you.

Motive is not obliged to provide any training, support or technical assistance for the Developer App or the Motive APIs directly to users of any Developer App and you agree to communicate to users of any Developer App that you (and not Motive) are responsible for any such support.

2.7 Changes

Developer acknowledges and agrees that Motive may modify or release subsequent versions of the Motive APIs and require that you use those subsequent versions. Unless we release a new version of the Motive APIs for security or legal reasons, you will have a reasonable amount of notice (as determined by us), to migrate to subsequent versions of the Motive APIs.

You acknowledge that once Motive releases a subsequent version of an API, the prior version of such Motive API may stop working at any time or may no longer work in the same manner. Your continued use of the Motive APIs following a subsequent release will be deemed your acceptance of any modifications thereto. Motive shall have no liability of any kind to Developer or any User with respect to such changes or any adverse effects resulting from such changes.

2.8 Similar Products

Developer recognizes that Motive may now or in the future be engaged in the development, production, marketing, and/or sale of products and services similar and/or competitive to a Developer App. Nothing in these API Terms will be construed as limiting the ability or right of Motive to develop, produce, market, or sell such products and services.

3. Developer Restrictions and Responsibilities

3.1 Privacy

Developer agrees to post an appropriate privacy policy in its Developer App that describes Developer’s collection, use, and sharing of personally identifiable and non-personally identifiable information. Developer’s Developer App must collect, process, transmit, maintain, and use User Data solely in compliance with Developer’s privacy policy. Developer will comply with all applicable laws relating to the processing of data and information, including User Data, from Users.

Developer is responsible for notifying Users that Developer is responsible for the privacy, security, and integrity of User Data collected, used, or shared by the Developer App. Developer is responsible for obtaining any authorizations necessary for Developer’s collection, usage, or sharing of User Data by the Developer App.

3.2 Security. Developer will:

3.2.1

Maintain appropriate administrative, technical, and organizational safeguards designed to prevent unauthorized access, use, and disclosure of User Data.

3.2.2

Maintain the confidentiality and security of all credentials assigned by Motive to Developer for accessing a Motive API.

3.2.3

Maintain the confidentiality and security of all User credentials.

3.2.4

Use encrypted network connections for the collection or transmission of User Data to or from any Motive API.

3.2.5

Implement additional security safeguards as Motive may require from time to time.

3.2.6

Upon becoming aware of an actual or reasonably suspected unauthorized or unlawful access, disclosure, loss, or alteration of User Data, provide notice to Motive within twenty-four (24) hours that includes (a) identification of the User Data that has been or is reasonably believed to be affected and (b) explanation of the steps taken to remediate the incident. Developer will provide reasonable assistance to Motive on remediation efforts, including any additional information requested by Motive. In the event of a security breach, prior to issuing any public statements or responses to third party inquiries, Developer will work in good faith with Motive to coordinate a statement or response, unless prohibited by law.

3.2.7

Upon Motive’s or a User’s request, delete or destroy all User Data.

3.2.8

Permit Motive to conduct external vulnerability assessments and penetration tests of Developer’s network, and/or provide Motive a report from an independent third-party audit firm documenting completion of no less than annual vulnerability assessments and penetration tests.

3.2.9

Upon Motive’s request, submit to an audit of its facilities, databases, and information technology controls in order for Motive to verify compliance with these API Terms.

3.2.10

Upon request, provide Motive with any of Developer’s third-party audit reports (e.g., SOC2, ISO 27001).

3.3 Prohibited Actions

Developer warrants that it, its use of any Motive API, and the Developer App will not, and will not attempt to (or permit third parties to or attempt to):

3.3.1

Violate, encourage, or facilitate violation of Motive’s Acceptable Use Policy.

3.3.2

Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of any part of the Motive API, except to the extent this restriction is prohibited by law.

3.3.3

Remove, alter, or obscure any intellectual property or proprietary rights notices incorporated in or accompanying any portion of the Motive API.

3.3.4

Sublicense the Motive API for use by a third party.

3.3.5

Access or collect User Data in excess of what Motive has expressly authorized and permitted.

3.3.6

Make false or misleading statements about the Developer App.

3.3.7

Use the Motive API to create or augment Developer’s datasets, including delivery datasets.

3.3.8

Use User Data for any purpose (e.g., product improvement or development) other than their own Internal Use.

3.3.9

Submit for publication, publish, distribute, sell or otherwise make available any part of the User Data to third parties.

3.3.10

Process the User Data to determine or infer personally identifiable information of any individuals or to create derivatives, aggregations or other models built upon the User Data.

3.3.11

Incorporate any part of the Motive website or web elements into the Developer App.

3.3.12

Commingle or combine the User Data with other data in such a way that the User Data cannot be deleted or destroyed.

3.3.13

Use the Motive API or User Data to create a substitute for or substantially similar product or service to Motive’s products and services or any other use cases which Motive deems outside of the scope of these API Terms.

3.3.14

Use the Motive API for any activities where the use or failure of the Motive API could lead to personal injury, death, or property damage.

3.4 Responsibility for Developer App

Developer acknowledges that Developer is solely responsible, and that Motive has no responsibility or liability of any kind, for the content, development, operation, support or maintenance of any Developer App. Developer will not state or imply that Motive endorses the Developer App, or any other products or services, without Motive’s prior written consent.

3.5 Open Source

Nothing in these API Terms authorizes Developer to subject any portion of the Motive API or any Motive intellectual property right in any portion of the Motive API to the terms of any “open source” license, including a license that requires, as a condition of use, modification, or distribution of technology subject to such license, that such technology or other technology combined or distributed with such technology: (a) be disclosed or distributed in source code form, (b) be licensed for the purpose of making derivative works, or (c) be redistributable at no charge.

3.6 Responsibility for API Keys

Developer, and any Users, may not share any API keys or access credentials with third parties to be used in contravention of these API Terms, or allow access to any User Data to be used in contravention of these API Terms, except with prior written approval by both Motive and any Users. Developer is solely responsible for all activity that occurs under any API keys or access credentials shared with Developer.

4. Confidentiality

Motive and Developer may disclose Confidential Information to each other. The receiving party may use the disclosing party’s Confidential Information solely for the purpose of exercising its rights and performing its obligations under these API Terms and may not share the disclosing party’s Confidential Information with any third party. The receiving party must use a reasonable degree of care to protect Confidential Information. The receiving party may not disclose Confidential Information to any third party except to its employees, agents, or third-party contractors who need to know it and are bound by non-disclosure and confidentiality terms at least as restrictive as those set forth in these API Terms.

Confidentiality obligations do not apply to the extent the information: (a) was known to the receiving party without restriction before receipt from the disclosing party; (b) is publicly available through no fault of the receiving party; (c) is rightfully received by the receiving party from a third party without a duty of confidentiality; or (d) is independently developed by the receiving party without access to Confidential Information. A party may disclose Confidential Information to the extent it is compelled to do so by law if it provides reasonable prior notice to the other party, unless a court orders that the other party need not be given notice. Upon the disclosing party’s written request, the receiving party will promptly return all Confidential Information and copies to the disclosing party, or certify in writing that it has destroyed all such materials. Breach of this Section 4 could cause the disclosing party irreparable harm, and the disclosing party may seek immediate equitable relief, in addition to other rights and remedies it may have.

5. Developer Warranties

Developer represents and warrants that: (a) all information Developer provides to Motive is true, accurate, and complete; (b) Developer has the full right, power, and authority to make, distribute, operate, support, and promote the Developer App, use the Motive API, and enter into these API Terms; and (c) the Developer App, its contemplated use, and Developer’s use of the Motive API will not violate the intellectual property rights or other rights of any third party, or violate any laws.

6. Warranty Disclaimer

THE MOTIVE API AND MOTIVE PRODUCTS AND SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, MOTIVE AND ITS AFFILIATES, LICENSORS, SUPPLIERS, AND DISTRIBUTORS (A) MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE REGARDING THE MOTIVE API AND MOTIVE PRODUCTS AND SERVICES, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES OF (I) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, AND NON-INFRINGEMENT, AND (II) ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. IN PARTICULAR, MOTIVE AND ITS AFFILIATES, LICENSORS, SUPPLIERS, AND DISTRIBUTORS DO NOT REPRESENT OR WARRANT TO YOU THAT:

(A) THE MOTIVE API WILL MEET YOUR REQUIREMENTS, (B) THAT THE MOTIVE API WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THAT THE MOTIVE API WILL BE ACCURATE OR RELIABLE, OR (D) DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE MOTIVE API WILL BE CORRECTED. YOU ARE RESPONSIBLE FOR YOUR OWN RISK WITH RESPECT TO ANY CONTENT OBTAINED THROUGH THE MOTIVE API.

7. Indemnification

Developer will defend, indemnify, and hold harmless Motive and its affiliates, and their respective officers, directors, employees, agents, partners, licensors, suppliers, and distributors, from and against any and all claims, liabilities, damages, losses, and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to (a) Developer’s use of any Motive API, (b) Developer’s breach of these API Terms, (c) the Developer App, including, but not limited to, any allegation of infringement of any third party intellectual property rights, and (d) Developer’s collection or use of User Data. Developer will cooperate fully in the defense of any allegation or third-party legal proceeding or claim. Motive reserves the right, at its own expense, to assume the exclusive control and defense of any indemnified matter under this section.

8. Limitation of Liability

8.1

MOTIVE AND ITS AFFILIATES, LICENSORS, SUPPLIERS, AND DISTRIBUTORS WILL NOT BE LIABLE FOR: (A) ANY INCIDENTAL, SPECIAL, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF THE LEGAL THEORY, OR (B) COST OF SUBSTITUTE SERVICES OR LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE EITHER DIRECT OR INDIRECT), EVEN IF MOTIVE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

8.2

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL MOTIVE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE API TERMS OR FROM THE USE OF OR INABILITY TO USE ANY MOTIVE API EXCEED THE GREATER OF $100 OR THE TOTAL AMOUNT OF FEES RECEIVED BY MOTIVE FROM DEVELOPER FOR THE USE OF A MOTIVE API DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MOTIVE AND CUSTOMER.

8.3

TO THE FULLEST EXTENT PERMITTED BY LAW, MOTIVE AND ITS AFFILIATES, LICENSORS, SUPPLIERS, AND DISTRIBUTORS DISCLAIM AND WILL NOT BE LIABLE TO DEVELOPER FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR PROPERTY DAMAGE, REGARDLESS OF THE LEGAL THEORY AND REGARDLESS OF WHETHER MOTIVE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

9. Term and Termination

9.1 Duration

These API Terms will remain in effect until terminated as set forth in this section.

9.2 Termination by Motive

Motive may terminate these API Terms or suspend Developer’s access to all or any part of a Motive API: (a) if Developer is in material breach of these API Terms and fails to cure that breach within 15 days after receipt of notice; (b) if Motive is required to do so by law; (c) if Motive ceases to offer any services covered by these API Terms; (d) if Motive determines or has reason to believe the Developer or Developer App may cause harm or loss to Motive or any Users, or the Developer or the Developer App is or will be a threat to Users or the Motive API or other Motive products or services; (e) for any other reason or no reason with prior written notice to Developer (e-mail acceptable); or (f) in order to address any security threat.

9.3 Termination by Developer

Developer may terminate these API Terms by discontinuing all use of the Motive API.

9.4 Effect of Termination

Any termination or expiration of these API Terms shall also immediately terminate the rights and licenses granted to Developer hereunder, and Developer shall immediately cease all use, operation, support, and distribution of all Developer Apps and the Motive API. Upon termination, Developer may lose access to any content, materials, or information that Developer has provided to Motive related to any Developer App or through the Motive API.

9.5 Survival

In addition to any rights that accrued prior to termination, the provisions of Sections 1, 2.5, 2.6, 2.7, 3-8, 9.5, 10-11 shall survive termination of these API Terms.

10. Disputes

10.1 Informal Dispute Resolution

Except with respect to Claims described in the Exceptions to the Agreement to Arbitrate, Developer and Motive agree to attempt to resolve any disputes informally before initiating any arbitration or other formal proceedings, and neither Developer nor Motive may start a formal proceeding for at least 30 days after first notice regarding any dispute.

10.2 Agreement to Arbitrate

Developer and Motive agree to resolve any claims relating to these API Terms or the Motive API (“Claims”) through final and binding arbitration, except as set forth below in the Exceptions to the Agreement to Arbitrate. Arbitration proceedings will be conducted under the commercial rules then in effect for the American Arbitration Association (“AAA”). The arbitration will be held in San Francisco, California or any other location the parties mutually agree to in writing. At the time a party chooses to initiate a proceeding, it will send a notice to the other party in accordance with the notice provision in these API Terms.

10.3 Exceptions to the Agreement to Arbitrate

Either party may bring a lawsuit in the federal or state courts of San Francisco, California solely regarding Claims for injunctive relief to stop unauthorized use of the Motive API or infringement of intellectual property rights without first engaging in the informal dispute resolution and notice process described above. Both Motive and Developer consent to venue and personal jurisdiction in the federal and state courts of San Francisco, California.

10.4 Opting Out of the Agreement to Arbitrate

Developer has the right to opt-out and not be bound by the binding agreement to arbitrate provided in these API Terms by sending written notice of the decision to opt-out either by emailing Motive at arbitration@Motive.com or by first class mail or overnight courier to Motive in accordance with the notice provision in these API Terms. In order for Developer’s opt-out to be valid, Developer’s notice must be sent within 30 days of first using the Motive API.

10.5 No Class Actions

Developer may only resolve disputes with Motive on an individual basis. And will not bring any claim in a class, consolidated, or representative action. Class actions, class arbitrations, private attorney general actions, and consolidations with other arbitrations are not allowed. Neither Developer nor Motive may consolidate a Claim or Claims as a plaintiff or a class member in a class action, a consolidated action or a representative action.

10.6 Consent to Jurisdiction

If the agreement to arbitrate provided for in these API Terms is found not to apply to Developer or Developer’s Claim, or if Developer or Motive challenges any arbitration award or seeks to have an arbitration award enforced, Developer and Motive agree that any judicial proceeding will be brought in the federal or state courts located in San Francisco, California. Developer and Motive consent and agree to both venue and personal jurisdiction in the federal and state courts located in San Francisco, California.

10.7 Release from Third-Party Claims

Because Motive is not party to any agreements between Developer and any third parties, including as regards the Developer App, or involved in the completion of any services for third parties, in the event that Developer has a dispute with one or more other third parties, as applicable (each, an ” Other Party”), Developer agrees to address such dispute directly with the Other Party in question and Developer releases Motive (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute. Developer hereby and irrevocably and forever waives all rights it may have under California Civil Code Section 1542 (or any analogous state, federal, or international statute or principle) with respect to the releases in these API Terms.

Developer understands that Section 1542 provides that: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” The Developer acknowledges that they have had an opportunity to be advised by counsel concerning the legal import of these API Terms under California Civil Code 1542 and other legal requirements. The parties acknowledge and agree that this waiver is an essential and material term of these API Terms.

11. General

11.1 Modifications

Developer acknowledges and agrees that Motive may modify these API Terms, including the Motive Policies, from time to time. When changes are made, Motive will make a new copy of these API Terms available on the Motive website. If, in Motive’s sole discretion, modifications are material, Motive will notify Developer by emailing the email associated with Developer’s account. Developer acknowledges and agrees that if Developer uses the Motive APIs after the date on which the modified API Terms become effective and available on the Site, Motive will accept Developer’s use of the Motive APIs as its acceptance of and agreement to the updated API Terms. If a modification to these API Terms is unacceptable, Developer may cease using the Motive API.

11.2 Assignment

Motive may, without Developer’s consent, assign these API Terms to any affiliate or in connection with any merger or change of control of Motive or the sale of all or substantially all of its assets. Developer may not assign any rights under these API Terms without Motive’s prior written consent.

11.3 Entire Agreement

These API Terms, together with the Motive Policies and the General Terms, constitute the entire agreement between Developer and Motive with respect to the subject matter of these API Terms, and supersede and replace any prior or contemporaneous agreements, terms, or conditions applicable to the Motive API.

11.4 Notices

Notices to Motive must be sent (a) by first class mail or overnight courier to Keep Truckin, Inc., Attn: General Counsel, 55 Hawthorne Street, Suite 400, San Francisco, CA 94105, and are deemed given when received and (b) by email to notices@Motive.com. Notices to Developer may be sent to the email address associated with Developer’s account.

11.5 Third-Party Beneficiaries

There are no third-party beneficiaries to the API Terms.

11.6 Waiver and Severability

Motive will not be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these API Terms. A waiver will only be effective if Motive expressly states in a writing signed by an authorized representative that Motive is waiving a specified term or condition. If any provision in these API Terms are held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and, in any event, the remaining provisions of these API Terms shall remain in effect.

11.7 Relationship of the Parties

Developer and Motive are independent contractors. These API Terms does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.8 Export Control

Developer may not use the Motive API and may not accept the API Terms if it is an organization or employs a person barred from using the Motive API under United States law. Developer will not permit use of the Motive API from a U.S. embargoed country or by any person or entity identified on OFAC’s List of Specially Designated Nationals, or any other government prohibited parties list. Developer will comply with all applicable export control laws.

11.9 Governing Law

These API Terms shall be governed by the laws of the State of California without regard to conflict of laws principles.