Company | Legal
Policies & Agreements
Motive Terms of Service
Effective Date: April 12, 2022
Table of Contents
- 1. Introduction
- 2. General Service Terms
- 3. Customer Use of the Services
- 4. Intellectual Property Rights
- 5. Data Security & Disclosure
- 6. Service-Specific Terms & Conditions
- 7. Fees and Payment
- 8. Term and Termination
- 9. Warranty
- 10. Disclaimers
- 11. Indemnity
- 12. Limitation of Liability
- 13. Arbitration Agreement
- 14. Miscellaneous
- 15. Definitions
- Change Log
These Terms of Service (“Terms”) are a legal agreement between you, as Customer, Administrator, and/or End User, and Motive Technologies, Inc. (“Motive”, “we”, “our”, or “us“) and govern your use of and access to Motive’s services, including the Motive App Marketplace (as defined below) and any software, hardware, mobile applications, tools, features, and other products and services that are made available through our website (https://www.gomotive.com) (“Site“) or otherwise made available by us (collectively, and together with the items set forth in the definition of Motive Services, “Services“).
By executing an Order Form or other contract that references these Terms, by purchasing the Services, by clicking to accept these Terms, or by otherwise entering into an Order Form or other contract with Motive, a Motive reseller, or any other entity or individual for the purchase of Services or under which Services are made available to you, or by otherwise accessing and/or using the Services, whichever is the earlier, you accept and agree to be bound by these Terms and any other legal notices or guidelines posted on the Site or provided to you with respect to the Services. If you are using our Services for an organization, such as your employer, you are agreeing to these Terms on behalf of that organization.
These Terms specifically include and incorporate the below referenced instruments, and any other terms, conditions, or policies referenced herein, including any additional terms specific to particular Services you use (collectively, “Additional Terms”):
- Acceptable Use Policy: https://gomotive.com/acceptable-use-policy/
- API Terms of Service: https://gomotive.com/api-tos/
- Hardware Terms: https://gomotive.com/hardware-terms/
- Limited Hardware Warranty: https://gomotive.com/warranty/
- Copyright Dispute Policy: https://gomotive.com/cdp/
- Professional Service Terms and Conditions: https://gomotive.com/professional-services/
- Live Streaming Terms: https://gomotive.com/live-streaming-terms/
1.4 For Customers
If you are accepting these Terms on behalf of your employer or another entity or for use of the Services by your employer or another entity (“Customer“), you represent and warrant that (a) you have the legal authority to bind the applicable entity to these Terms, and are 18 years or older, and (b) that you agree, on behalf of the entity you represent, to these Terms. If you are using our Services for an organization, such as your employer, you are agreeing to these Terms on behalf of that organization. If you don’t have the authority to bind your employer or the entity you represent to these Terms, you should not click the checkbox or button, countersign these Terms, or purchase or use the Services in any manner. If you are accepting these Terms on your own for your own use of the Services as a Customer with an account, you agree that you have the legal authority to agree to these Terms and are 18 years or older.
1.5 For End Users
If you are using the Services as an End User, you represent and warrant that you have the legal capacity to agree to these Terms, and are 18 years or older. Additionally, you agree and acknowledge that Motive, the Customer and any Administrator has the ability to access, disclose, restrict, and remove information in or from an End User account, and that the Administrator may be able to monitor, restrict, or terminate access to an End User account. The Motive Services are intended only as a business to business offering. If you are an End User and accessing Motive Services through a Motive Customer, the Motive Customer’s privacy policies and other legal agreements govern the use and sharing of your personal information throughout the Motive Services. Please check with your employer on their privacy policies and data sharing policies to better understand your rights.
1.6 Agreement to Arbitrate
FOR CUSTOMERS AND END USERS RESIDING IN THE UNITED STATES, PLEASE BE AWARE THAT THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE AND CLASS ACTION WAIVER LOCATED IN SECTION 13 OF THESE TERMS, AS IT REQUIRES ARBITRATION TO RESOLVE DISPUTES, IN MOST CASES, ON AN INDIVIDUAL BASIS. BY ACCEPTING THESE TERMS, CUSTOMER OR END USER, AS APPLICABLE, AGREES TO BE BOUND BY THE AGREEMENT TO ARBITRATE AND THE CLASS ACTION WAIVER.
2. General Service Terms
2.1 Provision of Services
- Customer and End Users may access and use the Services solely in accordance with these Terms and the Documentation. You may only use our Services and Hardware in accordance with these Terms, which we may change from time to time.
- Customer agrees that it has not relied on the availability of any future functionality of the Services or any other future product or service in executing these Terms or any Order Form. Customer acknowledges that information provided by Motive regarding future functionality should not be relied upon to make a purchase decision.
Motive may, at its discretion, change or update the Services and/or these Terms from time to time. Further, the Services allow Customer and End Users to download Apps that can update automatically.
2.3 Customer Support
2.4 Telephone Communications
- By providing us your phone number, you are consenting to us, our affiliates, or our partners contacting you via autodialed or prerecorded calls/messages. We may contact you at any telephone number you have provided us, including phone numbers you have made publicly available through your account, for the following purposes:
- Account notifications and troubleshooting;
- Dispute resolution and debt collection; or
- As necessary to service your account or enforce our Terms of Service and policies, applicable law, or any other agreement we may have with you.
- We may also contact you using autodialed or prerecorded calls and messages for marketing purposes (e.g., offers and promotions) if you explicitly consent to such communications, even if your number is on any national or state Do Not Call registry; your consent to receive such calls/messages is not a condition of purchasing any of our Services or using our Site. We may collect other telephone numbers for you and may place manual, non-marketing calls to any of those numbers and autodialed non-marketing calls to any landline.
- Standard telephone minute and text charges may apply and may include overage fees if you have exceeded your plan limits. If you do not wish to receive such communications, you can contact us at email@example.com or at the contact information listed below.
2.5 Free Services
Motive reserves the right to terminate access to Services provided on a free or free trial basis in its sole discretion.
3. Customer Use of the Services
3.1 Customer Responsibilities.
Customer is responsible for any use of the Services through its account, including all use of the Services by Customer’s End Users and Administrators. Customer’s responsibility extends to use of the Hardware by End Users, including damage to and misuse of the Hardware, as further set forth in these Terms. Customer is responsible for obtaining consents and complying with any laws necessary to allow the operation of the Services, collection of Customer Data and End User data, and permission for Motive to process, store, and transfer Customer Data. In addition, Customer and End User are solely responsible for all of their own software, network and internet connection costs related to their use of the Services (including with respect to any firmware or other software updates released by Motive), including but not limited to mobile phone or mobile network data usage fees and applicable roaming charges which are provided by the Customer’s or End User’s mobile network provider under the Customer’s or End User’s separate contracts with them, and Motive is not responsible for these data services or any costs related thereto whatsoever. The Services provide Customer with data for Customer to assess and use as it sees fit. Motive does not suggest, control, or monitor the choices Customer makes as to use of the data or changes in Customer’s business operations based on the data. Customer is solely responsible for any use made of the Services and for any data received through the Services. In particular, although the Services are intended to provide Customer with information that can help monitor and improve the efficiency, safety, and compliance record of Customer’s operations, Customer is solely responsible for those and all other aspects of its operations, and acknowledge that the Services do not constitute advice as to managing Customer’s operations.
3.2 Compliance with Laws and Regulations
Customer and End User assume sole responsibility for their compliance with all applicable laws and regulations, including but not limited to any audio or video recording laws (when using the Dashcam), FMCSA Hours of Service of drivers and IFTA.
3.3 End User Accounts
- Customers may provision accounts for End Users to access Customer’s Services account. Customer is responsible for maintaining the confidentiality of account credentials used by End Users to access the Services and preventing unauthorized use of the Services. Customer may not permit sharing of End User accounts or passwords. Customer agrees to (a) prevent any unauthorized access, sharing, or use by End Users and terminate any unauthorized use of or access to the Services and (b) provide Motive with notice of such unauthorized access or use.
- Customer and End Users must keep account credentials confidential and not allow any third parties to use their accounts to access our Services
3.4 Account Administration
- Customer is responsible for designating Administrators for its Services accounts, maintaining updated Administrator contact information, and managing access by Administrators to Customer Accounts. Administrators may have the ability to access, disclose, restrict or remove Customer Data in or from Customer’s Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Customer’s Services accounts. Motive’s responsibilities do not extend to a Customer’s internal management or administration of the Services.
- Customer and End Users must only access and use the Services in accordance with these Terms, the Documentation, the Additional Terms, and all applicable laws. Customer will ensure that no person under the age of 18 is allowed to become an End User.
3.5 Acceptable Uses
- Although Motive is not obligated to monitor access to or use of the Services or to review Customer Data, Motive has the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements.
- Motive reserves the right, but is not obligated, to remove or disable access to any Customer Data, at any time and without notice, including if Motive reasonably believes Customer Data to be in violation of these Terms or the Acceptable Use Policy or in order to comply with Motive’s legal obligations.
- You acknowledge that we do not screen Customer Data or any content that you or any third party make available through the Service, but that we shall have the right (but not the obligation) to refuse, move or delete any such content that is made available via the Service.
- Motive responds to notices of alleged copyright infringement if they comply with the law and are reported using our Copyright Dispute Policy (available at https://gomotive.com/cdp).
Customer will not (and will not allow any End Users or third party to): (a) reverse engineer, decompile, disassemble, decipher or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services; (b) modify or create derivative works based on the Services; (c) sell, resell, license, copy, rent, lease, distribute, time-share the Services or otherwise use the Services for the benefit of a third party; (d) remove or alter proprietary notices from the Services, (e) use the Services to create any competitive or other product or service; (f) use the Services for the purpose of benchmark testing; (f) share its Customer API Key with any third party; or (g) use, sell, copy, modify, create derivative works based on, publicly perform, publicly display, or distribute the Motive Output outside of the Services, except for regulatory compliance purposes or otherwise with Motive’s express consent.
Motive, in its reasonable discretion, may suspend Customer’s or End User’s right to use the Services if: (a) Customer’s or End User’s use of the Services poses a security risk to the Services, may violate the Acceptable Use Policy or any Additional Terms or may adversely affect the Services, Motive’s systems and infrastructure, Motive’s reputation, or a third party; (b) Customer or End User’s use of the Services could subject Motive to liability; (c) Customer is in breach of these Terms; or (d) any default on Customer’s payment obligations (including any payment obligation to any third party equipment financing company). Motive will use commercially reasonable efforts to provide prompt notice of a suspension.
3.8 Non-Motive Products
- Customer and/or End User(s) may authorize Motive to allow a Non-Motive Product to access or use Customer Data or other information or reports via the Services, email, phone, or other form of consent. If Customer or an End User uses any Non-Motive Product (including any Non-Motive Product made available by us, through the Motive App Marketplace, or through our Site), then: (i) Motive will not be liable for any act or omission of such Non-Motive Product, including the Non-Motive Product’s access to or use of Customer Data or other information or reports; and (ii) Motive does not warrant or support any Non-Motive Product. Customer and/or End User(s) are solely responsible for complying with licenses for Non-Motive Products and paying fees for Non-Motive Products.
- If Motive has an agreement with a Non-Motive Product, Motive may rely on a representation from that Non-Motive Product that Customer or End User has authorized access or use of Customer Data or other information or reports. Motive does not endorse any Non-Motive Product, or any opinions, recommendations, or advice therein. We are not responsible or liable for your use of any Non-Motive Product or any negative effect any Non-Motive Product may have on the Services.
3.9 Motive App Marketplace
- You acknowledge that the Motive App Marketplace includes listings for Apps that are created, offered, supported and maintained by third parties (“Third Party Developers”) unaffiliated with Motive or its affiliates (“Third Party Apps”). Notwithstanding anything to the contrary in these Terms, you acknowledge and agree that: (i) you must use your own discretion when you access or deploy Third Party App through the Motive App Marketplace and access Third Party Developer services; (ii) you should read the terms and conditions and privacy policies associated with any Third Party Applications as provided by the applicable Third Party Developer as they will govern your use of the Third Party Apps; and (iii) Motive does not own or control any of these Third Party Developers or the Third Party Apps, and you will not hold Motive responsible or liable for any such Third Party Apps or acts or omissions of Third Party Developers, under any circumstances.
- Motive does not in any way warrant the accuracy, reliability, security, completeness, usefulness, non-infringement, or quality of any Third Party Apps (including without limitation the content contained therein), even if a Third Party App complies with these Terms and the API Terms. You agree that you bear all risks associated with using or relying on Third Party Apps. If you have any questions about Third Party Apps or the terms that govern the use of the Third Party Apps, you should contact the Third Party Developer of the Third Party App directly. In the event that Motive is the publisher of an App available through the Motive App Marketplace, then use of such App will be governed by these Terms.
- Any support and maintenance of the Third Party Apps shall be provided by Third Party Developer, and only to the extent described in the related Third Party App’s terms of service or as otherwise communicated to you. You agree and acknowledge that Motive has no responsibility for providing such support and maintenance. Failure of a Third Party Developer to provide support and maintenance will not entitle you to any refund of fees paid, if any, for the App or the Services.
3.10 API Key
- Motive may make available an API Key to Customer and/or End User(s) solely for such Customer and/or End User’s internal use. Customer and/or End User(s) is solely responsible for use of its API Key by Customer, End User(s), or any third party, including any Non-Motive Product. By using any API Key, you are agreeing to the Motive API Terms of Service (available at https://gomotive.com/api-tos). You may not share any API Key with any third party. Motive may suspend your API Key in the event that it becomes aware that such API Key has been shared by you with any third party.
- In the event that Customer or any End User authorizes a third party to access any Customer Data or other data or information via an API Key, Motive will not be responsible or liable for any act or omission by such third party or use by such third party of the Customer Data or other data shared by Customer or its End Users.
3.11 Professional Services
To the extent applicable, the Professional Service Terms and Conditions available at https://gomotive.com/professional-services shall govern Motive’s provision of any Professional Services, as defined therein.
4. Intellectual Property Rights
4.1 Reservation of Rights
Except for the limited licenses granted to Customer and End User in these Terms, Motive and its licensors own and reserve all right, title, and interest in and to the Motive Technology (including the rights to any text, graphics, images, music, software, audio, video, documents, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available by us through the Services).
4.2 Motive License
Motive grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license for Customer and its End Users to access and use the Software (including, as required, to use the Hardware) for personal and internal business purposes during the Services Term.
4.3 Customer License
As between Motive and Customer, Customer shall own and reserve all right, title, and interest in and to the Customer Data. Customer and End User grant Motive, its affiliates, and its contractors (e.g., Amazon Web Services) a worldwide, irrevocable, perpetual, non-exclusive, right to: (a) use, copy, distribute, create derivative works based on, display, and perform Customer Data in order to provide, analyze, support, operate, and improve the Services, and its affiliates’ services, and in order to develop new products and services, (b) share the Customer Data with third parties (such as our partners and vendors) as necessary in order to provide the Services, and (c) as well as for any other lawful purpose authorized by Customer.
4.4 Motive Data
Motive may use and distribute the Motive Data (i) to provide, analyze, operate, and improve the Services and develop new products and services, (ii) to create and distribute reports and materials about the Services, and (iii) for any other lawful purpose. Motive owns and reserves all right, title, and interest in and to the Motive Data.
Motive has ownership in any feedback and suggestions, and Customer and End User agree that by submitting suggestions or other feedback regarding our Services or Motive, Motive may use such feedback for any purpose without compensation to Customer or End User. Motive appreciates all of your feedback and suggestions, and you can submit feedback by emailing Motive at firstname.lastname@example.org.
Customer grants Motive the right to use Customer’s name, trademark, and logo on Motive’s website and in marketing materials.
5. Data Security & Disclosure
Motive has implemented and maintains commercially reasonable administrative, technical, and procedural safeguards to protect the integrity, and security of Customer Data.
5.2 User Connections and Data Transmission
The Services enable Customers and End Users (the “Connecting Party”) to connect directly with other Customers, administrators, and End Users of Motive (the “Receiving Party”), allowing the Receiving Party to receive and access Customer Data and to interact with the Connecting Party in its use of the Services. When a Connecting Party connects with a Receiving Party through the Services, the Connecting Party consents to automatically and continuously transmitting its Customer Data with the Receiving Party. Further, the Connecting Party acknowledges that the Receiving Party’s End Users may interact with and manage the data of the Connecting Party and that Motive is not liable for any act or omission of a Receiving Party, including access to, use of, or sharing of the Connecting Party’s Customer Data.
5.3 Compelled Disclosure
Motive may disclose Customer Data and other information when (i) required by law, regulation or legal process, provided that Motive shall use reasonable efforts to give the Customer prior notice of the compelled disclosure, to the extent permitted, and reasonable assistance at the Customer’s cost to contest or limit the disclosure or (ii) to prevent or stop activity we consider to be illegal or unethical in our reasonable discretion.
5.4 International Transfers
Customer Data may be transferred to, and maintained on, computers located outside of your state, province, country or other governmental jurisdiction where the data protection laws may not be as protective as those in the Customer or End User’s jurisdiction of residence. If you’re located outside the United States and choose to provide Customer Data to us, we may transfer Customer Data to the United States, or other countries where we or our service providers operate, and process it there. Your consent to these Terms, followed by your submission of any Customer Data represents your agreement to that transfer.
6. Service-Specific Terms & Conditions
6.1 General Hardware Terms
Please see the Hardware Terms at https://gomotive.com/hardware-terms and the Limited Hardware Warranty at https://gomotive.com/warranty for specific terms related to your purchase and use of the Hardware.
Customer is solely responsible for installing the Hardware in accordance with Motive’s written instructions and Documentation. Customer agrees that Motive is not liable for any cost, expense or damages arising from the installation of the Hardware.
- Battery Drain
The Hardware connects to the battery of a vehicle and consumes a small drain on the vehicle’s battery, which may adversely affect the vehicle while not in operation. Motive is not liable for any consequences of the battery drain associated with use of the Hardware or the Services.
Customer is solely responsible for determining whether or not the Services and Hardware are compatible with any vehicles utilizing the Services and Hardware. Customer agrees that Motive is not responsible for any cost, expense or damage arising from compatibility issues.
6.2 Additional Service-Specific Terms
- Additional Terms for Facility Insights
Customer and End User acknowledge and agree that the information provided in Motive’s Facility Insights tool is provided for informational purposes only. Although Motive attempts to ensure that the information made available through the Facility Insights tool is complete, accurate, and up to date, Motive assumes no responsibility for its completeness, accuracy, or timeliness.
- Additional Terms for Google Maps
- Additional Terms for Financed Equipment
If you are accessing the Services through a third party financing entity (“Lender”), the terms in this Section shall apply. Any obligation you may have to the Lender is absolute and unconditional, not subject to any setoff or counterclaim. You acknowledge and agree that when you sign the financing documents with the Lender, the Lender is prepaying for the Services on your behalf and such prepayment is final and cannot be refunded. You accept the risk that any Services are not provided or are not satisfactory. If you choose to discontinue use of the Services for any reason, you will continue to be liable for any outstanding payment obligations specified in your financing agreement with Lender. If you have any claim against or dispute with Motive, you may not take action by reason of such claims against Lender. If you are purchasing through a Lender, Motive may terminate your access to the Services should you breach these Terms or the terms between you and the Lender. Any refunds issued under these Terms by Motive shall be remitted to the Lender in reduction of the total number of remaining payments owed by you.
- Additional Terms for WiFi Hotspot
If Customer’s subscription package includes WiFi Hotspot service, the following terms and conditions apply:
(i) Data Allotment
Motive will provide Customer with a monthly allocation of WiFi data per unit (a “Monthly Data Plan”) as further specified in the applicable subscription plan and the Documentation, unless otherwise set forth in writing on Customer’s Order Form. Such Monthly Data Plan is subject to change or modification by Motive. There is no “roll-over” with respect to Monthly Data Plans. If Customer wishes to increase its Monthly Data Plan, Customer may contact its sales or support representative.
(ii) Over-usage and Misuse
In the event that Customer’s data usage goes over its allotted Monthly Data Plan, or Customer uses the WiFi Hotspot in violation of these Terms or the Acceptable Use Policy, Motive may reduce connection speeds, restrict or block Customer’s connections, or take other measures to curtail Customer’s over-usage or misuse. Motive reserves the right to charge Customer for any overage fees. Motive may restrict access to the types of applications available with the WiFi Hotspot.
(iii) WiFi Data Access
Customer and all End Users understand and agree that Motive will have access to Customer Data transmitted over the WiFi Hotspot as a part of Motive’s normal course of business in providing the Services.
(iv) WiFi Security
By using the WiFi Hotspot, Customer acknowledges and agrees that there are security and confidentiality risks inherent in accessing or transmitting information through WiFi. Security issues may include, among others, interception of transmissions, loss of data, and the introduction or viruses and other programs that can damage computers or other devices. Accordingly, Customer agrees that Motive is not liable for any interception of transmissions, computer worms or viruses, loss of data, file corruption, hacking or any other damages to Customer’s or its End Users’ computers or other devices that result from the transmission or download of information or materials through WiFi.
(v) Acceptable Uses
Customer’s use of the WiFi Hotspot is subject to the Acceptable Use Policy, located at gomotive.com/acceptable-use-policy.
- Additional Terms for Apple Apps
These Terms apply to your use of all the Software, including the iPhone and iPad applications available via the Apple, Inc. (“Apple“) App Store (each an “Apple Store App“), but the following additional terms in this Section 6.5 also apply to Apple Store Apps:
(i) Both Customer and Motive acknowledge that these Terms are concluded between Customer and Motive only, and not with Apple, and that Apple is not responsible for Apple Store Apps or the content;
(ii) The Apple Store Apps are licensed to Customer on a limited, non-exclusive, non-transferable, non-sublicensable basis, solely to be used in connection with the Services , subject to all the terms and conditions of these Terms as they are applicable to the Services;
(iii) Customer will only use the Apple Store Apps in connection with an Apple device that Customer owns or controls;
(iv) Customer acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple Store Apps;
(v) In the event of any failure of the Apple Store Apps to conform to any applicable warranty, including those implied by law, Customer may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to Customer will be to refund to Customer the purchase price, if any, of the Apple Store App;
(vi) Customer acknowledges and agrees that Motive, and not Apple, is responsible for addressing any claims Customer or any third party may have in relation to the Apple Store App;
(vii) Customer acknowledges and agrees that, in the event of any third-party claim that the Apple Store App or Customer’s possession and use of the Apple Store App infringes that third party’s intellectual property rights, Motive, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(viii) Customer represents and warrants that Customer is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Customer is not listed on any U.S. Government list of prohibited or restricted parties;
(ix) Both Customer and Motive acknowledge and agree that, in use of the Apple Store App, Customer will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and;
(x) Both Customer and Motive acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against Customer as the third-party beneficiary hereof.
- Additional Terms for Smart Load Board
The following additional terms and conditions apply to your use of the Smart Load Board and all related Services:
(i) Motive provides the Smart Load Board (“SLB”) so that carriers, brokers and shippers may offer to buy and sell freight services. Motive is not a freight broker and is not a party to the actual transactions facilitated by the SLB, and any terms and conditions of such transactions, including without limitation any pricing or payment terms, are solely among the users of the SLB. It is your responsibility, as a user of the SLB, to check the credentials of any party introduced to you by the SLB, including but not limited to information relating to safety ratings, proof of authority, credit history, necessary certifications and insurance coverage. Motive makes no warranty or guarantee concerning the SLB’s accuracy, completeness or suitability, and provides all information AS-IS. Use of the SLB is at your own risk.
(ii) In order to utilize the SLB, you represent and warrant to Motive that: (a) you are or represent a duly licensed and authorized freight broker, motor carrier, shipper, freight forwarder, third party logistics provider, or intermodal or rail company, as the case may be; (b) you will maintain all appropriate legal, governmental and regulatory authority necessary to engage in the transactions facilitated by the SLB to which you are a party, and specifically (i) you will not enter into a transaction to transport freight without the proper motor carrier authority and required licenses, equipment, certifications and insurance coverage, and (ii) you will not enter into a transaction to broker freight without the proper brokerage authority, licenses, certifications, insurance coverage and bond; (c) you will comply with all applicable laws when using the SLB and the Services, and you will use the SLB and the Services for lawful purposes only; and (d) you will not use the SLB and Services to advertise services for any third party entity or person. You further understand and agree that we reserve the right to restrict, in part or in full, access to the SLB and any of the Services if we learn that you are an entity, or are affiliated with an entity, that provides a service competitive to the SLB or our Services or if we believe you are attempting to create a competitive service.
7. Fees and Payment
- Upon agreement to an Order Form by the parties, Customer will pay Motive the fees for the Services set forth in the Order Form on the payment schedule set forth in the Order Form.
- All payments are due in U.S. dollars unless otherwise indicated on the Order Form or invoice. Customer is responsible for providing complete and accurate billing and contact information to Motive and updating Motive of any changes. All fees are non-refundable unless otherwise set forth in these Terms and are not subject to set-off by Customer. If Customer is purchasing the Services from an authorized reseller, Customer’s payment obligations may be to the authorized reseller.
7.2 Invoicing & Payment
- Unless otherwise set forth in Customer’s Order Form, all fees will be invoiced or billed in advance. All invoices issued under these Terms are due and payable according to the payment terms in the Order Form, if applicable, or within 30 days from invoice send date if not specified therein. If Customer is paying by credit card, all fees are due and payable immediately, unless otherwise specified in Customer’s Order Form. If the Customer requires the use of a purchase order or purchase order number, the Customer (i) must provide the purchase order number at the time of purchase and (ii) agrees that any terms and conditions on a Customer purchase order will not apply to these Terms and are void.
- If Customer is purchasing the Services from an authorized reseller, any terms and conditions between Customer and the authorized reseller that conflict with these Terms are void.
7.3 Credit Card Payment
- MOTIVE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY, RENEWALS, ADDITIONAL ORDERS, AND FEES) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY MOTIVE) THAT CUSTOMER WILL TERMINATE THIS AUTHORIZATION OR WISHES TO CHANGE THE PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE MOTIVE REASONABLY COULD ACT.
7.4 Free Trials and Other Promotions
Any free trial or other promotion that provides access to Services must be used within the specified time of the trial. If Motive has provided Hardware as part of a trial at no cost to Customer (the “Trial Hardware”), and Customer does not wish to continue its Services at the end of the trial, Customer must return the Trial Hardware within thirty (30) days of the end of the trial period. If Customer does not return the Trial Hardware within such time-frame, Motive may bill and invoice Customer Replacement Fees for such Trial Hardware, and Customer is responsible to pay Motive for such Replacement Fees. IF THE CUSTOMER IS IN A TRIAL PERIOD AND THE CUSTOMER HAS ALREADY PROVIDED A METHOD OF PAYMENT TO MOTIVE FOR THE MOTIVE SERVICES, MOTIVE MAY CHARGE AUTOMATICALLY AT THE END OF THE TRIAL, UNLESS THE CUSTOMER NOTIFIES MOTIVE THAT THE CUSTOMER WANTS TO CANCEL.
7.5 Discontinuation of Services
If Customer chooses to discontinue, cancel or terminate any Services before the end of the applicable Subscription Term agreed to an such Order Form, Motive shall have the right to immediately invoice Customer or bill Customer’s authorized credit card for any balance due for the remainder of the applicable Subscription Term, including any Replacement Fees and Restoration Fees.
7.6 Late Payments
Past due amounts are subject to a finance charge equal to the lower of 1.5% per month or the highest rate permitted by law from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Motive in collecting past due amounts. If Customer’s fees are past due (including any fees owing to any third party equipment financing company), Motive may suspend the Services automatically and provide notice of termination for material breach.
7.7 Billing Disputes
If Customer disputes any invoices or charges, Customer must let Motive know within sixty (60) days after the date that Motive invoices or bills Customer for the disputed amount.
Customer is responsible for all taxes, except those directly relating to Motive’s net income, gross receipts, or capital stock. Motive will invoice Customer for sales tax when required to do so and Customer will pay such tax unless Customer provides Motive with a valid tax exemption certificate authorized by the appropriate taxing authority.
8. Term and Termination
8.1 Services Term
These Terms will continue in full force and effect during the Services Term until they are terminated as described herein.
8.2 Subscription Terms
- Except as otherwise specified in an Order Form, following any Subscription Term, whether the initial subscription term or a renewal term, the Subscription Term will automatically renew for a period of the same duration as the last Subscription Term but no longer than one (1) year, unless either party gives the other written notice of termination at least thirty (30) days prior to the expiration of the Subscription Term.
- UNLESS YOU GIVE NOTICE OF TERMINATION (WHICH CAN BE DONE BY EMAILING US AT SUPPORT@GOMOTIVE.COM OR BY CALLING US AT 855-434-3564), YOUR SUBSCRIPTION TERM WILL AUTO-RENEW, AND YOU WILL BE BILLED FEES AT MOTIVE’S THEN-CURRENT NON-PROMOTIONAL RATES.
8.3 Termination for Cause
Either party may terminate these Terms and any applicable Services if (a) the other party is in material breach of these Terms and fails to cure such material breach within thirty (30) days after receipt of written notice of such material breach, or (b) the other party ceases its business operations or becomes subject to insolvency proceedings. Motive may also terminate these Terms if it has the right to suspend the Services or in order to comply with law or regulation.
8.4 Motive Termination for Convenience
Motive may terminate Customer’s access to and use of the Services for convenience, at its sole discretion, any time upon notice to Customer. In the event of such termination for convenience by Motive, Motive will refund to Customer any prepaid fees for the Services on a prorated basis.
8.5 Customer Termination
Customer may terminate these Terms by providing notice at least thirty (30) days prior to the expiration of the Subscription Term. The Terms will then terminate at the end of the existing Subscription Term and Customer may access the Services until the end of the existing Subscription Term. Customer is responsible for all fees billable through the end of the existing Subscription Term.
8.6 Effect of Termination
If these Terms expire or are terminated, then (a) the rights granted by one party to the other will cease immediately except as otherwise set forth in this section, (b) Motive will have no obligation to maintain Customer Data and may delete any copies of Customer Data, and (c) the following sections will expressly survive: 4 (Intellectual Property Rights), 5.3 (Compelled Disclosure), 7 (Fees & Payment), 8.6 (Effect of Termination), 10 (Disclaimers), 11 (Indemnity), 12 (Limitation of Liability), 13 (Arbitration Agreement), 14 (General), 15 (Definitions), and any other term which by its nature would survive termination.
The warranty for the Hardware is set forth in the Limited Hardware Warranty (available at https://www.gomotive.com/warranty) and is incorporated into and made a part of these Terms. In the event of a conflict between these Terms and the Limited Hardware Warranty, the Limited Hardware Warranty will control.
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS SET FORTH IN THESE TERMS AND THE LIMITED HARDWARE WARRANTY, 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 SERVICES AND ANY OUTPUT FROM THE MOTIVE 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, (II) ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR (III) THAT THE MOTIVE SERVICES OR ANY Motive OUTPUT ARE, SECURE, ERROR-FREE OR UNINTERRUPTED.
THE SERVICES AND MOTIVE OUTPUT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND MOTIVE MAKES NO WARRANTY REGARDING THE ACCURACY, COMPLETENESS, QUALITY, RELIABILITY, TIMELINESS, OR TRUTHFULNESS OF ANY MOTIVE OUTPUT. CUSTOMER IS SOLELY RESPONSIBLE FOR (AND MOTIVE DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES RELATING TO OR ARISING FROM CUSTOMER’S INSTALLATION OF THE HARDWARE, CUSTOMER’S OR END USER’S USE OF THE MOTIVE SERVICES OR HARDWARE, CUSTOMER’S VEHICLES, AND INTERNET CONNECTIVITY.
CUSTOMER AND END USER(S) ACKNOWLEDGE AND AGREE THAT THE MOTIVE SERVICES ARE A DRIVER AID ONLY. THEY ARE NOT A SUBSTITUTE FOR A SAFE, CONSCIENTIOUS DRIVER. THEY CANNOT COMPENSATE FOR A DRIVER THAT IS DISTRACTED, INATTENTIVE, OR IMPAIRED BY FATIGUE, DRUGS, ALCOHOL, OR OTHERWISE. THE DRIVER IS RESPONSIBLE TO AVOID AN ACCIDENT. CUSTOMER’S DRIVERS AND END USERS SHOULD NEVER WAIT FOR ANY OF THE MOTIVE SERVICES TO PROVIDE A WARNING BEFORE TAKING MEASURES TO AVOID AN ACCIDENT OR ANY VIOLATIONS.
CUSTOMER AND END USER(S) ACKNOWLEDGE THAT USE OF THE SOFTWARE (OTHER THAN SOFTWARE EMBEDDED IN HARDWARE), INCLUDING THE APPS, WHILE DRIVING IS STRICTLY FORBIDDEN. DISTRACTED DRIVING IS DANGEROUS AND ILLEGAL IN MANY JURISDICTIONS.
10.5 IFTA Reporting
While Motive strives to create accurate fuel tax reports based on Customer Data and state and federal requirements, these reports are not guaranteed to be correct and are provided to Customer and/or End User for informational purposes only. Customer and End User(s) accept responsibility to ensure the accuracy and the suitability of the reports generated by the Services before submitting them to any state or federal agency. Motive accepts no responsibility or liability for any setbacks, financial or otherwise, incurred by using our Services. It is Customer’s and End User’s sole responsibility to maintain compliance standards for IFTA filing purposes.
10.6 Wireless Providers
- Customer, End User(s) or Motive may use a third-party provider for cellular and wireless connectivity, including WiFi Hotspot connectivity (“Wireless Service Carriers“). Motive cannot and does not guarantee uninterrupted or continuous service or specific area coverage and is not responsible for downtime or loss of use of the Services caused by a Wireless Service Carrier’s lack of provision of such services.
- CUSTOMER AND END USER(S) UNDERSTAND AND AGREE THAT CUSTOMER AND END USER(S): (1) HAVE NO CONTRACTUAL RELATIONSHIP WITH THE WIRELESS SERVICE CARRIERS, (2) ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN MOTIVE AND THE WIRELESS SERVICE CARRIERS, (3) THAT THE WIRELESS SERVICE CARRIERS HAVE NO LIABILITY OF ANY KIND TO CUSTOMER OR END USERS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, (4) THAT MESSAGES OR DATA TRANSMISSIONS MAY BE DELAYED, DELETED OR NOT DELIVERED, AND 911 CALLS MAY NOT BE COMPLETED, AND (5) THE WIRELESS SERVICE CARRIERS CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES.
10.7 Beta Products
Despite anything to the contrary in these Terms, Customer and End User(s) acknowledge that (a) Customer and/or End User, as applicable, has the sole discretion whether to use any Beta Products, (b) Beta Products may not be supported and may be changed by Motive at any time, including in a manner that reduces functionality, (c) Beta Products may not be available or reliable, and (d) Motive provides Beta Products “as-is” and will have no liability arising out of or in connection with Customer’s or any End User’s use of the Beta Products.
11.1 Customer and End User Indemnity
Customer and End User(s) will indemnify, defend, and hold harmless Motive and its affiliates, officers, directors, employees, agents, licensors, and distributors from and against all liabilities, damages, losses, and costs and expenses, including settlement costs and reasonable attorneys’ fees, arising out of a third-party claim regarding (i) Customer’s or End Users’ access to or use of the Services; (ii) Customer Data; (iii) Customer’s or End Users’ breach of these Terms, (iv) Customer’s or End User’s interactions with an Other Party (as defined below), or (v) negligent acts or omissions of Customer or End Users.
11.2 Customer and End User Release
- Because Motive is not party to any agreements between Customer or End User and any third parties, in the event that Customer or End User has a dispute with any third parties (each, an “Other Party“), Customer and/or End User agree to address such disputes directly with the Other Party in question and Customer and End User(s) release Motive (and our officers, directors, employees, agents, investors, licensors, distributors, and affiliates from any and all claims, demands, or damages (actual, exemplary, special, punitive, 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.
- In consideration of the covenants under these Terms, Customer, on behalf of itself and its End Users (“Releasors”) hereby irrevocably and forever waives, releases, and discharges Motive and its affiliates, officers, directors, employees, agents, successors and assigns (“Releasees”) from any claims, suits, damages, losses, and liabilities of any kind that the Releasors had, now have, or may ever have against the Releasees in connection with disputes arising from, relating to, or in connection with an Other Party, during and after the Services Term. The Releasors have been made aware of and understand all rights they may have arising under California Civil Code Section 1542 (or any analogous state, federal, or international statute or principle) against Motive, which California Civil Code Section 1542 provides that:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT CREDITOR OR THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
- The Releasors expressly, knowingly, and intentionally waive any and all rights, benefits, and protections of California Civil Code Section 1542 (or any analogous state, federal, or international statute or principle). Customer and End User(s) acknowledge they have had an opportunity to be advised by counsel concerning the effect and import of these Terms under California Civil Code Section 1542 and other legal requirements. The parties acknowledge and agree that this waiver is an essential and material term of these Terms.
- If you use any Non-Motive Products, you agree that Motive is not a party to your agreements with the owners of such Non-Motive Products and you release us from any claims or disputes relating to such Non-Motive Products.
12. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, MOTIVE AND ITS AFFILIATES, LICENSORS, AND DISTRIBUTORS WILL NOT BE LIABLE UNDER THESE TERMS OR FROM USE OR INABILITY TO USE THE MOTIVE SERVICES FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (B) LOSS OF USE, DATA, BUSINESS, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), OR (C) 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.
TO THE FULLEST EXTENT PERMITTED BY LAW, MOTIVE AND ITS AFFILIATES, LICENSORS, AND DISTRIBUTORS WILL NOT BE LIABLE UNDER THESE TERMS OR FROM USE OR INABILITY TO USE THE MOTIVE SERVICES FOR AGGREGATE AMOUNTS THAT EXCEED THE GREATER OF (A) $100 USD OR (B) THE AMOUNT CUSTOMER HAS PAID OR IS PAYABLE FOR USE OF THE MOTIVE SERVICES IN THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MOTIVE AND CUSTOMER.
Some of the above limitations or exclusions may not be allowed in your jurisdiction and may not apply to you. The terms of this limitation of liability will apply to the extent permitted by applicable law.
13. Arbitration Agreement
13.1 Agreement to Arbitrate
- Unless otherwise agreed to by both parties in writing or set forth in the “Exceptions to the Agreement to Arbitrate”, you and Motive agree that, in order to expedite and control the cost of any disputes, any legal or equitable claim arising out of or relating in any way to the Services, these Terms, and this Arbitration Agreement (“Claim“) will be determined by binding arbitration or in small claims court as further described below.
- In the unlikely event we end up in a legal dispute, Motive and you agree to resolve it using arbitration (or in the courts located in San Francisco, CA if arbitration does not apply to the dispute or you opt out).
13.2 Informal Dispute Resolution
Except with respect to Claims listed in “Exceptions to the Agreement to Arbitrate” below, you and Motive agree to attempt to resolve any disputes informally. You and Motive agree to provide notice to the other party and attempt to resolve the dispute through discussion (“Informal Negotiation Period“). After 30 days, either party may bring a formal proceeding.
13.3 Arbitration Notice
If either you or Motive chooses to start an arbitration proceeding, the party initiating the proceeding will send a notice of its Claim (“Arbitration Notice“) to the other party. You will send the Arbitration Notice by email to email@example.com and by U.S. mail to: Motive Technologies, Inc., 55 Hawthorne Street, Suite 400, San Francisco, CA 94105.
13.4 Arbitration Procedures
- Any arbitration proceedings between you and Motive will be conducted under the commercial rules then in effect for the American Arbitration Association (“AAA”), except with respect to the provision of this agreement which bars class actions in Section 13.8 and any specific rules and procedures explicitly discussed in this Section 13.4.
- The award rendered by the arbitrator(s) shall include costs of arbitration, reasonable costs of expert and other witness and reasonable attorneys’ fees. For claims less than $10,000, Motive will advance to you AAA’s filing fees; provided, however, that such fees must be repaid to Motive if Motive prevails in the arbitration. Please see this link for the AAA’s current rules and procedures or contact the AAA at 1-800-778-7879.
13.5 Non-Appearance-Based Arbitration Option
Except with respect to the Exceptions to the Agreement to Arbitrate in Section 13.6, for Claims where the total amount of the award sought in arbitration is less than $10,000, the party seeking the award may choose non-appearance-based arbitration. If non-appearance-based arbitration is elected, the arbitration will be conducted online, by telephone, and/or solely based on written submissions to the arbitrator. The specific manner shall be chosen by the party initiating arbitration. Non-appearance-based arbitration involves no personal appearances by parties or witnesses unless otherwise mutually agreed to by the parties.
13.6 Exceptions to the Agreement to Arbitrate
- Notwithstanding the foregoing, the Arbitration Notice requirement and the Informal Negotiation Period do not apply to either lawsuits solely for injunctive relief to stop unauthorized use of the Services or lawsuits concerning copyrights, trademarks, moral rights, patents, trade secrets, claims of piracy or unauthorized use of the Services.
- Notwithstanding the forgoing Arbitration Agreement, Motive may assert Claims for nonpayment or billing and collections matters in any legal forum of its choosing.
- Either you or Motive may assert Claims which qualify for small claims court in San Francisco, CA or in any United States county in which you either live or work.
- If the Agreement to Arbitrate is found not to apply to your Claim, the parties consent and agree to both venue and personal jurisdiction in the federal and state courts located in San Francisco, CA.
13.7 Opting Out of the Agreement to Arbitrate
You have the right to opt-out and not be bound by the binding agreement to arbitrate provided in these Terms by sending written notice of your decision to opt-out to firstname.lastname@example.org or by U.S. Mail to Motive, 55 Hawthorne Street, Suite 400, San Francisco, CA 94105. In order for your opt-out to be valid, the notice must be sent within 30 days of first using the Services.
13.8 No Class Actions
UNLESS YOU AND MOTIVE AGREE OTHERWISE, YOU MAY ONLY RESOLVE DISPUTES WITH MOTIVE ON AN INDIVIDUAL BASIS. CLASS ACTIONS, CLASS ARBITRATIONS, PRIVATE ATTORNEY GENERAL ACTIONS AND CONSOLIDATIONS WITH OTHER CLAIMS ARE NOT ALLOWED. NEITHER YOU 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. If this specific section is found to be unenforceable, then the entirety of Section 13 (Arbitration Agreement) will be deemed void.
- All attachments to the Terms and any Order Forms executed by the parties are hereby incorporated into the Terms by reference. The Terms, including any such attachments and Order Forms, constitute the entire and exclusive understanding and agreement between Motive and you regarding the Services, and supersede and replace any and all prior or contemporaneous oral or written agreements between Motive and you regarding the Services, including any non-disclosure agreements.
- If there is a conflict between the documents that make up these Terms, the documents will control in the following order: Order Form, Additional Terms, Terms, and the Documentation.
If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
- Motive may modify these Terms periodically. If an update will materially affect your use of the Services, Motive will notify you prior to the update’s effective date (except for changes due to legal or regulatory reasons which may be effective immediately). Otherwise, updates will be effective as of the date posted on this website and it is your responsibility to monitor the Site for updates to these Terms.
- By continuing to use the Services or executing additional Order Forms after the changes become effective, you agree to be bound by the modified Terms.
You may not assign or transfer these Terms, by operation of law or otherwise, without Motive’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Motive may assign these Terms in their entirety, without notice, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
14.5 Governing Law and Venue
The Terms and the relationship between you and Motive shall be governed by the laws of the State of California except for its conflict of laws principles. You and Motive further agree that the exclusive venue for the resolution of any dispute relating to the subject matter of this agreement shall be in the state and federal courts located in San Francisco, CA.
14.6 Causes of Action
Any cause of action related to the Services or the Terms initiated by you must commence within one (1) year after the cause of action arises. Otherwise, such cause of action is barred permanently.
These Terms, Order Forms, and the Motive Technology will be the “Confidential Information” of Motive. You will not (a) use the Confidential Information except as expressly permitted by these Terms and (b) disclose Confidential Information to third parties.
Any notices provided by Motive under these Terms, including those regarding modifications to these Terms, will be given by Motive: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. Notices to Motive must be sent to Motive Technologies, Inc., Attn: Legal Department, Office of the General Counsel, 55 Hawthorne Street, Suite 400, San Francisco, CA 94105 with a copy to email@example.com,
14.9 Force Majeure
Motive will not be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, labor disputes, governmental action, utilities failures, third-party software or hardware, and Internet disturbance) that was beyond its reasonable control. If such event continues for more than twenty (20) days, Motive may cancel unperformed Services upon written notice.
14.10 Relationship of the Parties
The parties are independent contractors. These Terms do not create a partnership, joint venture, or agency relationship between the parties.
Motive’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Motive. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Any ambiguity in the Terms will be interpreted equitably without regard to which party drafted the Terms. “Including” and “include” will be construed to mean “including without limitation.”
14.13 Export Compliance
The Services may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction. and Customer and/or End User is responsible for compliance regarding Customer’s and its End Users’ use of the Services. Customer will not permit End Users to use the Services from a U.S. embargoed country.
14.14 Third-Party Beneficiaries
There are no third-party beneficiaries under these Terms.
The Terms and any Order Form may be executed in counterparts, which taken together will constitute one instrument, and may be executed and delivered electronically.
14.16 Contact Information
“Administrator” means a Customer-designated End User who administers the Services account and has access to permissions and other sensitive settings.
“API Key” means any API key for the Services that Customer can use or share with a third party for access, collection, and use of Customer Data.
“Apps” means downloadable software, including the mobile device software.
“Beta Products” means products, services, or software features available to Customer on a trial, beta, early access, or similar basis.
“End Users” means users of Customer’s Services account. End Users may include Customer, Customer’s and its affiliate’s employees, agents, and contractors.
“Customer Information” means any data and information Customer or its End Users upload, transmits, or submits to the Motive Software, including data and information from Non-Motive Products.
“Customer Data” means Customer Information and Hardware Data.
“Documentation” means any Motive-provided written documentation and policies.
“Hardware” means the Motive devices that are ordered by Customer under an Order Form or otherwise provided by Motive and used by Customer under these Terms.
“Hardware Data” means the data and information regarding use of the Hardware, and/or collected from the Hardware, that Motive makes available to Customer via the Services.
“IFTA” means the International Fuel Tax Agreement.
“Motive App Marketplace” means Motive’s online marketplace for web or other software services or applications that utilize or interact with the API and integrate with the Service.
“Motive Data” means (a) usage data, statistics, aggregate data, and other de-identified data derived from Customer Data and Hardware Data so that such data cannot be attributed to a particular Customer or (b) data and information used to generate the Hardware Data.
“Motive Output” means the Hardware Data and other information and reports to the extent made available to Customer through the Services.
“Motive Service(s)” means the (a) combined offerings of Software offered as a service, (b) Software offered as a service, either in combination with Purchased Hardware or otherwise, (c) the Motive App Marketplace, (d) support or other services described in an exhibit, attachment, or SOW referencing the Order Form or the Terms, (e) the Software, and (f) the Hardware, in each case that are ordered by Customer under an Order Form or otherwise provided by Motive and used by a Customer, End User, or Administrator under these Terms.
“Motive Technology” means the Services, Documentation, Motive Data, and Motive’s trademarks, logos, and other brand features.
“Non-Motive Product” means any Customer-provided or third-party services, products, websites, or applications, such as a service that interoperates with the Services, a website linked from the Services, and any application or service available through the Motive App Marketplace.
“Order Form” means the (a) ordering document, (b) ordering webpage, or (c) order confirmation or other communication of ordering, in each case for the Motive Services.
“Replacement Fee” has the meaning set forth in the Limited Hardware Warranty.
“Restoration Fee” has the meaning set forth in the Limited Hardware Warranty.
“Software” means the Site, software embedded in Hardware, and fleet management and other software, including the Apps, that are ordered by Customer under an Order Form or otherwise provided by Motive and used by Customer under these Terms.
“Services Term” means the term of these Terms, which begins on the Effective Date and continues until the earlier of the expiration of Subscription Term or these Terms are otherwise terminated.
“Subscription Term” means the initial subscription term set forth in an Order Form and all renewal terms for the Services and any applicable renewal terms.
December 20, 2021: The Terms were updated to (i) add terms and conditions for Live Streaming, (ii) remove billing and collections disputes from the agreement to arbitrate, and (iii) include terms related to responsibilities for and misuse of the Services.
May 5, 2021: The Terms were updated to include the Professional Services Terms and Conditions.
February 23, 2021: The Terms were updated to make adjustments to delivery of hardware and transfer of title and risk of loss.
August 6, 2019: The Terms were updated to include terms and conditions governing Customer and/or End User use of the Facility Insights tool. The Terms were also modified to change all references to “ELD” or “Cellular ELD” to “Vehicle Gateway,” which reflects the Company’s new names for these products as of August 6, 2019. Finally, the definition of “Hardware” has been modified to include the Company’s newest product – the Asset Gateway. We also updated our mailing address.
June 10, 2019: The Terms were updated to include terms and conditions governing Customer and/or End User use of the WiFi HotSpot.
April 1, 2019: The Terms were updated to include easy-to-understand notes in the right margin to assist Customers and End Users with understanding the Terms, as well as adding language pertaining to how we work with our subsidiaries and affiliates.