MOVATIC, INC. TERMS OF SERVICE
IMPORTANT: READ THESE TERMS OF SERVICE CAREFULLY BEFORE DOWNLOADING, INSTALLING, COPYING OR USING THE APPLICATION AND DOCUMENTATION TO WHICH THIS AGREEMENT RELATES. BY DOWNLOADING, INSTALLING, COPYING OR USING THE APPLICATION AND DOCUMENTATION YOU CONFIRM THAT YOU HAVE READ THESE TERMS, UNDERSTAND THEM, ACCEPT THEM AND AGREE TO BE BOUND BY AND COMPLY WITH ALL OF THESE TERMS AND CONDITIONS BY CLICKING THE “I AGREE” CHECKBOX WHEN CREATING AN ACCOUNT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS BELOW, DO NOT DOWNLOAD, INSTALL, COPY OR USE THE APPLICATION AND DOCUMENTATION AND PROMPTLY DELETE THE APPLICATION.
1. Parties. These Terms of Service (“Agreement”) are between Movatic, Inc., a Delaware corporation with offices at 330 East Liberty, Lower Level, Ann Arbor, MI 48104 (“Movatic”, “us” or “we”) and the party accepting this Agreement by clicking the “I agree” checkbox when creating an account (“User”). This Agreement outlines the terms and conditions under which Movatic licenses to User the mobility application developed by Movatic (the “Application”). This Agreement applies to updates or supplements to the original Application provided by Movatic, unless other terms are provided along with the update or supplement.
2. License. The Application includes an application component(s) that are installed on User’s mobile devices. Subject to User’s compliance with the terms of this Agreement, Movatic grants User a non-exclusive and non-transferable license to install and use for the licensed term defined in the User’s agreement with the Customer (as defined below). The Application is only for User’s personal use and only under the User’s account. Creation of an account is required for the User to access the Application and a User may not use the Application from any account other than the account they create unless otherwise set forth herein. User shall not use the Application in excess of or beyond the feature set(s), license term, or other restrictions and limitations described in this Agreement or an applicable order for the Application. User may use any user documentation provided by Movatic for the Application (“Documentation”) as required to exercise the rights granted in this Section. User may not use the Application or Documentation except as expressly set forth in this Agreement, and Movatic reserves all rights not expressly granted to User by this Agreement. This Agreement is not a sale of the Application or Documentation or any copy thereof and remains subject to the agreement Movatic has with the local mobility service provider with which you contract for access to applicable hardware and services (the “Customer”) of the Application (the “Customer Agreement”). Other than as set forth in Section 6, 7 and 10 below, to the extent User’s use of the Application under the terms of this Agreement conflicts with the terms in the User’s Agreement with the Customer, the User’s Agreement with the Customer governs.
3. Restrictions. User may use the Application and Documentation for their personal use of the services specified by Customer only and not by, or for the benefit of, any affiliate, subsidiary, parent company, or any other third party, nor may the Application be used for service bureau services. User may physically transfer the Application from one mobile device to another only if the Application is completely removed from the previous mobile device. User shall not, and User agrees not to enable others to: remove or destroy any proprietary rights marks or legends on or in the Application or Documentation; adapt, translate, modify, enhance, or create derivative works of the Application or Documentation; assign, distribute, sublicense, rent, lease, sell, post on the Internet, or otherwise transfer or disclose the Application or Documentation in print or through any electronic or other medium to any third party; make copies of the Application or Documentation other than for archival and backup purposes; attempt to circumvent or disable the Application or any technology features or measures in the Application, including without limitation any access controls or copyright protection mechanisms, by any means or in any manner; or use the Application in any manner to aid in the violation of any third-party intellectual property rights, including without limitation copyrights, trademarks, trade secrets, and patents, or the applicable laws of any applicable jurisdictions, including without limitation libel, defamation, obscenity, and privacy-related torts. User shall have no rights with respect to any Application source code and User agrees not to reverse engineer, disassemble, decompile, or otherwise attempt to derive such source code from units of the Application provided to User under this Agreement.
4. Confidentiality. â€‹User agrees to receive and hold in confidence and not disclose in any manner to any person, firm or entity, except for Customer’s employees with a need to know, the Application or any Documentation, or any other materials delivered to it or information disclosed to it under this Agreement (“Information”). “Information” includes the terms of this Agreement and pricing. User will use the Application, Documentation, and any Information delivered or disclosed to it under this Agreement only to further Customer’s use of the Application for its business purposes and not by, or for the benefit of, any other party. Upon termination of this Agreement, User shall return or destroy the Information and shall not use the Information for its own, or any third party’s, benefit.
5. â€‹Ownership. Movatic is the owner or licensee of all right, title and interest, including all intellectual property rights, in and to the Application and Documentation, and any works derived from or based on the Application or Documentation. User shall implement protection measures to prevent unauthorized use and reproduction of the Application. User’s obligations regarding confidentiality and intellectual property rights shall survive termination of this Agreement.
6. Customer Agreement – Payment; No Warranty for Customer Services.
(a) By your agreement to the terms set forth herein, you hereby agree to permit Movatic to take any action necessary on the Customer’s behalf to collect the payment of fees and expenses related to your use of the Application and Customer’s associates services and products.
(b) NotwithstandingMovatic’s authorization in Section 6(a), the support and maintenance requirements placed on Movatic related to the Application are detailed in the Customer Agreement and are solely for the benefit of Customer without any obligation to UserMOVATIC EXPRESSLY DISCLAIMS ALL RESPONSIBILITY FOR ANY HARDWARE PROVIDED TO USER BY CUSTOMER AND ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES OR PRODUCTS PROVIDED TO YOU BY CUSTOMER.
7. Disclaimer of Warrantiesâ€‹. The Application is provided “as-is” without any additional warranties of any kind. THE APPLICATION IS PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, MOVATIC, 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, MOVATIC 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.
8. Infringement Indemnification. Movatic shall, at its sole expense, defend and indemnify User for all damages awarded by a court of competent jurisdiction, or reached through a negotiated settlement, regarding any third party claim, demand or suit alleging that User’s authorized use of the Application or Documentation infringes a third party’s U.S. patent, trademark, copyright, or trade secret (a “Claim”); provided that User: (a) promptly notifies Movatic in writing of such Claim; (b) permits Movatic to have and retain sole control over the defense and settlement of the Claim; and (c) cooperates with Movatic, at Movatic’s expense, in the defense and settlement of such Claim. If the Application becomes, or in Movatic’s sole opinion is likely to become, the subject of such a Claim, Movatic may, at its sole expense and option, procure for User the right to continue using the Application or replace or modify the Application to make it noninfringing. If neither of the foregoing alternatives is reasonably available to Movatic, then Movatic may terminate this license and grant a credit to User for the then-depreciated value of the Application (which shall depreciate by one-fifth of the software license fees per year). This Section sets forth User’s exclusive indemnification remedy, and Movatic’s exclusive indemnification obligations, for the above referenced Claims.
9. Term and Termination. â€‹The term of this Agreement and the Application license granted herein shall begin on the date the Application is delivered to User and shall remain effective until the Customer Agreement is terminated or the User’s account is disabled by Customer. User may terminate the license granted above at any time by providing written notice to Movatic, at or requesting Customer deactivate User’s account and Application access. Movatic may terminate this Agreement and the license immediately, with or without notice, if User breaches this Agreement or uses the Application for a purpose other than its intended use. Upon termination of this Agreement for any reason, User shall: (a) immediately discontinue all use of the Application and Documentation; (b) return to Licensor any and all Application, Documentation, media kits, portions of media kits, and authorized copies of the Application, Documentation and media kits, whether used or unused, which refer or relate to the Application; and (c) deinstall and remove any and all copies of the Application, whether authorized or unauthorized, from any device upon which the Application has been installed by or on behalf of User. All provisions of this Agreement relating to ownership, confidentiality, and limitations of liability shall survive any termination of this Agreement.
10. Limitation of Liability. In no event shall Movatic be liable to User in relation to this Agreement or the Application, regardless of the form of action or theory of recovery, for any: (a) indirect, incidental, consequential, special, punitive, or exemplary damages, regardless of whether Movatic has been made aware of their possibility; (b) lost profits, loss of data, or business interruption losses; or (c) direct damages in an amount in excess of the license fees paid to Customer by User but in no event in an amount to exceed $2501. Any claims relating to this Agreement shall be brought within one (1) year after the party asserting the claim knew, or reasonably should have known, of the existence of the claim.
11. Injunctive Relief. User acknowledges and agrees that its unauthorized disclosure or use of the Application, or any other breach of its obligations under this Agreement, will cause damage to Movatic that may not be adequately compensated through money damages. As such, User expressly consents to the entry of an order for equitable remedies, including, but not limited to, temporary, preliminary and permanent injunctions to remedy any actual or threatened unauthorized disclosure or use of the Application or breach of this Agreement, by User. These remedies are cumulative and in addition to all other remedies available at law or in equity.
12. U.S. Government Restricted Rights. The Application and Documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Application clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Application-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Movatic, Inc., 330 East Liberty, Lower Level, Ann Arbor, MI 48104.
13. Export Restrictionsâ€‹. User agrees not to export or re-export the Application to any country, person, entity or end user subject to U.S. export restrictions. User shall act in full compliance with all export control laws in regard to any Application, and shall comply with any and all restrictions or conditions imposed by the terms of any U.S. general or validated export license, authorization to re-export, or any other similar grant of authority then in effect, upon User’s use or disposition of the Application.
14. Prerelease Application. If any component of the Application or any of its components is marked “Prerelease” or “Beta”, the component of the Application constitutes pre-release code and may be changed substantially before commercial release. You may not use such component in a live operating environment where it may be relied upon to perform in the same manner as a commercially released software product or with data that has not been sufficiently backed up. You may not disclose the results of testing, the nature or features of the Prerelease Application, or any other information about Prelease Application to any other person.
16. â€‹Third-Party Materialsâ€‹. 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 Movatic is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Movatic 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.
17. General Provisions. In order to ensure consistency in interpretation, this Agreement is entered into and performed in Ann Arbor, Michigan, and shall be governed by the laws of the State of Michigan (exclusive of its choice of law rules) and the federal laws of the U.S.A. Any action brought by either party related to this Agreement shall be initiated and maintained in Washtenaw County, Michigan, or in the U.S. District Court of the Eastern District of Michigan, Southern Division, and the parties expressly submit to the exclusive personal jurisdiction and venue of these courts. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be deemed modified so as to make it valid in a manner consistent with the intent of the parties expressed in that section. Movatic’s failure to enforce at any time any of the provisions of this Agreement shall not be construed to be a present or future waiver of such provisions. In addition, the remedies accorded Movatic are cumulative and in addition to those provided by law. User shall not assign any of its rights or obligations under this Agreement without Movatic’s prior express written consent, which may be granted or withheld at Movatic’s sole discretion. Any attempted assignment without such consent shall be void. Subject to the foregoing, this Agreement is binding upon and shall inure to the benefit of each party’s successors and authorized assigns. This Agreement, together with the Customer Agreement, constitute the entire understanding of the parties with respect to the Application and Documentation. It replaces, supersedes and merges all prior written and oral communications, representations, promises or understandings. This Agreement may be amended from time to time by Movatic, but any changes to this Agreement will not be binding on User unless User affirmatively assents to the applicable changes. No purchase order or other administrative document will amend this Agreement, even if accepted by the receiving party without objection.