Motive Technology, Inc. Professional Service Terms and Conditions
Effective Date: April 12, 2022
These Professional Service Terms and Conditions (together with any Professional Services Order and/or Order Form referencing Professional Services, this “Agreement”) shall set forth the terms and conditions pursuant to which Motive Technologies, Inc. (“Motive”) shall perform professional services (the “Professional Services”) for Customer. The Professional Services shall be treated separately from the Services as set forth in and defined in the Motive Terms of Service set forth at www.gomotive.com/tos (the “TOS”) and shall be governed by the terms set forth herein and in the Professional Services Order. Subsequent Professional Service Orders will also be subject to these attached terms and conditions unless otherwise mutually agreed in writing. The Professional Services Order is incorporated herein, and terms capitalized herein but not defined herein shall have the meanings ascribed to them on the Professional Services Order or the TOS, to the extent applicable. In consideration of the mutual promises contained herein, the parties agree as follows:
Subject to the terms and conditions of this Agreement, Motive shall perform the Professional Services identified on the applicable Professional Services Order or as otherwise mutually agreed. Any changes to the scope of such projects or other deliverable-specific engagements shall be similarly mutually agreed. Motive shall only be responsible for delivering the Deliverables set forth in the applicable Professional Services Order, and shall not be responsible for the functionality or implementation of any Non-Motive Products (as defined in the TOS) or any other third-party products.
2. Customer Responsibilities and Grant of Rights
Customer shall provide Motive with cooperation, personnel, resources, information, equipment, data, access to Customer’s premises and information systems, and support that may be reasonably required by Motive in performance of the Professional Services.
3. Payment Terms
Customer shall pay the fees specified on the Professional Services Order, Order Form, or as invoiced by Motive at the rates specified in a Professional Services Order or applicable Order Form. In addition, Motive shall be reimbursed by Customer for all reasonable expenses incurred in performance of the Professional Services, provided that they are approved by Customer, such approval not to be unreasonably withheld. Unless otherwise specified in the Professional Services Order or applicable Order Form, all amounts due shall be paid in U.S. Dollars (unless otherwise stated on an Order Form), and are due and payable within thirty (30) days of the date of invoice. Any unpaid invoice shall accrue interest at a rate of the lesser of one and one-half (1.5%) percent per month or the highest rate allowed by law. The fees payable under this Agreement shall not include local, state or federal sales, use, value-added, excise or personal property or other similar taxes or duties, and any such taxes shall be assumed and paid by the Customer except those taxes based on the net income of Motive.
4. Confidential Information
“Confidential Information” means (i) all information identified as confidential or proprietary, and (ii) all information that should reasonably be understood by to be proprietary and confidential because of legends or other markings, the circumstances of disclosure or the nature of the information itself, in each case disclosed by a disclosing party hereunder, whether before or after the Effective Date. Notwithstanding the foregoing, nothing received by a receiving party shall be construed as Confidential Information which: (a) is now available or becomes available to the public without breach of this Agreement; (b) is lawfully obtained from a third party without a duty of confidentiality; (c) is known to the receiving party prior to such disclosure; or (d) is, at any time, developed by the receiving party independent of any such disclosure(s). The receiving party shall not disclose the disclosing party’s Confidential Information to any third party (other than as set forth herein) and may only use the disclosing party’s Confidential Information for the intended business purpose related to this Agreement and for the benefit of the disclosing party. Both parties shall protect Confidential Information from disclosure or misuse by using the same degree of care as for their own confidential information of like importance, but shall at least use reasonable care. Further, both parties agree to have each of their employees or agents with access to any Confidential Information agree to be bound by an enforceable agreement that ensures the protection of the Confidential Information from disclosure. It is understood that said Confidential Information shall remain the sole property of the disclosing party unless otherwise expressly set forth herein. Notwithstanding the foregoing, a receiving party may disclose the other party’s Confidential Information if the information is required by law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving party must, to the extent allowable by law, give the disclosing party prompt written notice and obtain or allow for a reasonable effort by the disclosing party to obtain a protective order prior to disclosure.
5. Ownership; Propriety Rights
Motive hereby grants to Customer a non-exclusive, worldwide, non-transferable license to use, reproduce, distribute and modify the deliverables (if any) described on the Professional Services Order and delivered by Motive to Customer hereunder (“Deliverables”), for the Customer’s internal business purposes only and for use with the Services (as defined in the TOS) for so long as Customer utilizes the Services (as defined in the TOS). This license is contingent upon Customer’s full and final payment to Motive hereunder and/or under any applicable Order Forms (as defined in the TOS) and upon Customer’s adherence to the terms and conditions of this Agreement. All rights in and to Motive’s pre-existing intellectual property and technology and the Deliverables, including without limitation any improvements, modification, and enhancements thereto and derivative works thereof, and all related intellectual property rights, remain the property of Motive, provided that any Customer Confidential Information reflected in the Deliverables shall be handled in accordance with Section 4. In no event shall Motive be precluded from developing for itself, or for others, materials that are similar to the Deliverables. In addition, Motive shall be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, and techniques that are acquired or used in the course of providing the Professional Services. Nothing herein constitutes a license to Motive’s proprietary software, which shall be licensed to Customer (if at all) pursuant to a separate written agreement (or the TOS, if applicable) between the parties.
6. Warranty and Disclaimer
Motive warrants that it will perform the Professional Services in a good and workmanlike manner and that any Deliverables delivered under the applicable Professional Services Order shall conform with the specifications set forth herein for thirty (30) days after completion of the Professional Services. THE FOREGOING CONSTITUTES MOTIVE’S ONLY EXPRESS WARRANTY CONCERNING THE PROFESSIONAL SERVICES, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT OR OTHERWISE. MOTIVE EXPRESSLY DISCLAIMS ANY PARTICULAR RESULTS WILL BE ACHIEVED BASED ON THE ADOPTION AND IMPLEMENTATION OF THE PLAN DESCRIBED IN THE DELIVERABLES. MOTIVE EXPRESSLY DISCLAIMS ANY WARRANTIES WITH RESPECT TO THE FUNCTIONALITY OF THE DELIVERABLES IN CONNECTION WITH ANY NON-MOTIVE PRODUCTS OR OTHER THIRD-PARTY PRODUCTS. ANY WARRANTIES WITH RESPECT TO THE SERVICES (AS DEFINED IN THE TOS) SHALL BE GOVERNED BY THE TOS.
Motive does not warrant that the Hardware or any systems protected by the Hardware will be free from vulnerability, intrusion, attack, or other damage. Motive does not warrant that the operation of the Hardware will be uninterrupted or error-free.
OTHER THAN THE WARRANTIES REFERRED TO IN THE HARDWARE WARRANTY AND THE TERMS OF SERVICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOTIVE AND ITS HARDWARE MANUFACTURERS AND SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING ANY DEVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
7. Limitation of Liability and Remedies
IN NO EVENT SHALL MOTIVE’S LIABILITY HEREUNDER IN THE AGGREGATE EXCEED THE FEES RECEIVED OR TO BE RECEIVED BY MOTIVE HEREUNDER. IN NO EVENT SHALL MOTIVE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGE, LOSS OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS, OR LOST SAVINGS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE AND REGARDLESS OF THE THEORY OF LIABILITY (BREACH OF CONTRACT, TORT OR OTHERWISE. The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties. Motive’s compensation for the Professional Services reflects such allocations, and the limitations and exclusions will apply notwithstanding the failure of essential purpose of any limited remedy contained herein.
Customer shall indemnify, defend, and hold harmless Motive from and against any and all claims, actions, damages, liability, expense (including reasonable defense costs and reasonable legal fees) to the extent arising from or related to Customers negligence or willful misconduct in connection with this Agreement.
9. Independent Contractor
In connection with this Agreement, each party is an independent contractor and as such will not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, partnership, fiduciary or agency relationship between the parties for any purpose.
Either party may terminate this Agreement by providing written notice of termination if the other party does not cure a breach of this Agreement in the thirty (30) day period following receipt of notice detailing the breach. Customer shall pay Motive for all Professional Services rendered and expenses incurred by Motive prior to the date of termination or expiration, as determined in good faith by Motive. The terms of Sections 3-10 shall survive termination of this Agreement. All other rights and obligations shall cease and be of no further force or effect.
This Agreement sets forth the entire understanding between the parties hereto with respect to the Professional Services, and supersedes all prior agreements, arrangements and communications, whether oral or written with respect thereto. This Agreement will be governed by and construed in accordance with the laws of the State of California. The parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to this Agreement and the performance of the parties contemplated herein, to the extent that such convention might otherwise be applicable. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts applicable to San Francisco County, California and the parties hereby consent to personal jurisdiction and venue therein. Motive reserves the right to utilize subcontractors to perform the Professional Services. In any court action at law or equity which is brought by one of the parties to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled. Except for the payment of fees due hereunder, neither party shall be deemed to have breached any provision of the Agreement as a result of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruptions in third-party telecommunications or Internet equipment or service, other catastrophes, or any other occurrences which are beyond such party’s control. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, provided that no consent is required with respect to Motive’s assignment in connection with a merger, reorganization, sale of assets or similar transaction. Any purported assignment in violation of this Section shall be null and void. The Agreement shall be binding on all permitted successors and assigns. The invalidity or unenforceability of any provision hereof, or any terms thereof, shall not affect the validity of the Agreement as a whole, which will at all times remain in full force and effect. The failure of either party to enforce at any time the provisions of the Agreement, or the failure to require at any time performance by the other party of any of the provisions of the Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of the Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.