These Terms and Conditions for Administrative Users (these "Terms") are an agreement between you (" Admin User" or "you") and Movatic, Inc., a Delaware corporation (the "Company", " we", "us" or "our") for development, implementation, ongoing operation, use and maintenance of a mobility system (the "System") within the Movatic mobile application on the applicable mobile platform and certain functionality provided through the Company's website (including all related documentation, the "Application"). The Application is licensed, not sold, to you by the Company. You also agree to use designated hardware ("Hardware") from the manufacturer we mutually agree upon ("Manufacturer") in the implementation of the Application.
BY CLICKING THE "AGREE" BUTTON, USING THE APPLICATION OR BEGINNING THE DEVELOPMENT OF THE SYSTEM, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS; AND (B) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK THE "AGREE" BUTTON OR USE THE APPLICATION OR BEGIN THE DEVELOPMENT OF THE SYSTEM.
License Grant. Subject to the terms of these Terms, Company grants you a limited, non-exclusive, and nontransferable license to use the Application for your use in developing, implementing, operating and maintaining the System strictly in accordance with the Application's documentation, intended use and these Terms; and
License Restrictions. You shall not: (a)Copy, modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application, except as expressly permitted by this license; (b) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; (c) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof; (d) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; (e) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application; or (f) use the Application in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems or any mobility products or systems other than the Hardware.
Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under these Terms, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in these Terms. In addition, Company reserves the right to Relist and you hereby agree to the Relisting of all assets such as applications, platforms, information gathered from these applications and platforms, and User Data as defined below in other network applications. For purposes of this Agreement, Relisting shall mean Company’s right to list and use these assets as described in this Section on other third party websites or services, even if competitive with Admin User, without Admin User’s prior written consent.
Fees; Payment. (a)Company shall collect fees on your behalf as set by the Admin User from end users of the System (the "Fares") through third-party payment processing agents selected by Company from time to time (each, a "Payment Processor"). Company shall promptly remit those payments, in a manner consistent with Company's standard collection and payment terms, to Admin User or its designee, less the Fee (as defined below). Notwithstanding the foregoing, Company may delay the payment and processing of any Fees from a Payment Processor to Admin User for up to thirty-one (31) days to ensure availability and collection and processing of funds. (b) You hereby agree to Company automatically debiting an Admin User’s invoice for all Fees (as defined below). This Agreement expressly allows Company the right to automatically debit an Admin User’s invoice for all Fees (as defined below), including but not limited to license fees without notice to Admin User and without further consent from Admin User. Admin User shall not revoke Company’s rights to automatically debit an Admin User’s account and Admin User does not have the right to revoke Company’s rights to automatically debit an Admin User’s account unless this Agreement is terminated pursuant to the terms of this Agreement. The Admin User shall pay to Company a fee (the " Fee") in the form of commissions on digital fares purchased by end users' use of the System during such period, calculated as follows: (i) the Fares collected, minus (ii) any fees due or paid to the Payment Processor as a result of collection of the Fares, minus (iii) a fee as set forth in Company's User Fee Table, as may be published and amended from time to time by Company in its discretion, minus (iii) any amounts related to the costs or expenses passed through by the Payment Processor or resulting from the end users' use or non-use of the System during such period, including transaction fees, refunds, credits, chargebacks, or other make-goods granted. Additionally, Company may maintain a reasonable hold back for refunds that may be issued in a later month. (c) Company shall provide Admin User prompt notice of amendments to the Company's User Fee Table, which shall be made from time to time in the Company's sole discretion as its business needs dictate. Company shall attempt to provide no less than thirty (30) days' notice of amendments to the fees due or paid to the Payment Processor and in the event the Payment Processor provides Company with less than 30 days' notice, Company shall provide Admin User with commercially reasonable advanced notice. In connection with the foregoing, Company shall comply with applicable Card Networks' Operating Rules (i.e., applicable PCI standards, if any), as the same may be amended from time to time; provided, however, that you acknowledge and agree that Company uses the services of Payment Processors who, as between Company and such third party, shall be solely responsible for their acts and omissions. Company shall provide the Admin User access to an online reporting system for monitoring the calculation of the Fee. (d) Company shall charge Admin User a transaction fee per each transaction on the total value of each transaction (before Payment Processor fees, inclusive of holds) that occurs due to Admin User's, or an Admin User's end user's use of the System ("Transaction Fee"). Company does not receive any Payment Processor fees paid by Admin User, and Admin User shall be responsible and agrees to pay any Payment Processor fees selected by Company. Company shall charge Admin User a Transaction Fee of 3.1%. Admin User hereby agrees to all Transaction Fees charged by Company for Admin User's and Admin User's end user's use of the System. (e) Company shall provide Admin User prompt notice of amendments to the Company's User Fee Table, which shall be made from time to time in the Company's sole discretion as its business needs dictate. Company shall attempt to provide no less than thirty (30) days' notice of amendments to the fees due or paid to the Payment Processor and in the event the Payment Processor provides Company with less than 30 days' notice, Company shall provide Admin User with commercially reasonable advanced notice. Company shall provide Admin User notice by posting to the System or by using the contact information provided by Admin User in the Master Service and License Agreement. In connection with the foregoing, Company shall comply with applicable Card Networks' Operating Rules (i.e., applicable PCI standards, if any), as the same may be amended from time to time; provided, however, that you acknowledge and agree that Company uses the services of Payment Processors who, as between Company and such third party, shall be solely responsible for their acts and omissions. Company shall provide the Admin User access to an online reporting system for monitoring the calculation of the Fee.
Geographic Restrictions; Compliance with Laws. The Application is based in, and provided from, the state of Michigan in the United States. You acknowledge that you may not be able to, or may not be permitted by local law, to access all or some of the Application's functionality outside of the United States. Further, access to the Application, System and/or Hardware may not be legal by certain persons or in certain countries. If you access, or provide access to, the Application, System and/or Hardware from outside the United States, you are responsible for compliance with local laws, rules and regulations and the use of the Application by those you provide access to.
Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your settings of the device(s) used to access the Application: (a) the Application will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so or may continue to operate improperly if Updates are designed to remedy an issue in the Application. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of these Terms.
Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof,. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
Term and Termination. The term of these Terms commences when accept these Terms as set forth above and these Terms will continue in effect until terminated unilaterally by either party at any time in their sole and absolute discretion. Sections 3, 11, 12, 13, or 19 shall survive termination or expiration of these Terms.
Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT ANY OTHER WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE HARDWARE, CONTENT OR SERVICES FOR LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT OF FEES PAID TO US BY YOU IN THE PAST TWO (2) MONTHS PRECEDING THE DATE OF THE CLAIM GIVING RISE TO SUCH DIRECT DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
Indemnification. You agree to indemnify, defend, and hold harmless Company and its members, managers, officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Application or your breach of these Terms, including but not limited to the content you submit or make available through this Application.
Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
Hardware. You acknowledge that the Hardware is not provided by the Company and that Company has no responsibility or liability for the Hardware purchase by you and/or used by any Application end users. You are solely responsible for assuring that the Hardware and its sale, rental, license, purchase and use is in compliance with all applicable foreign and federal laws, regulations, and rules, whether with respect to exporting, re-exporting, importing, releasing, or otherwise.
US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
Severability. If any provision of these Terms is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of these Terms will continue in full force and effect; provided, however, that if any fundamental term or provision of these Terms, is invalid, illegal, or unenforceable, the remainder of these Terms shall be unenforceable.
Governing Law. These Terms are governed by and construed in accordance with the internal laws of the State of Michigan.
Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between these Terms and any applicable purchase or other terms, the terms of these Terms shall govern.
Amendments. These Terms may be amended from time to time by Company, but any changes to this Agreement will not be binding on Admin User unless Admin User affirmatively assents to the applicable changes. No purchase order or other administrative document will amend these Terms, even if accepted by the receiving party without objection.