GENERAL TERMS & CONDITIONS
Quotation is valid for 30 days from date of issuance.
All quotes are based on current rates unless otherwise specified.
Quoted sales tax is estimated and will be subject to confirmation upon receipt of an order.
Motion Intelligence will not be liable for any non-performance or other breach of any contract arising from or caused by, directly or indirectly, force majeure, war, strikes, riots and civil commotions and natural disasters.
Unless otherwise agreed in advance and noted on the quotation, all amounts invoiced are due and payable Net 30 days. A service charge of 1.5% will be charged on all accounts over 30 days. (18% annual rate). If collection becomes necessary, the customer accepts liability for all such costs.
Motion Intelligence cannot exercise control over the use of its products. Therefore, customer agrees to hold Motion Intelligence harmless for any and all claims that may arise from the misuse of its products. All products are provided as-is without warranty of any kind, except as expressly provided in the product documentation or by fully executed agreement. In no event will Motion Intelligence be liable for indirect, punitive or consequential damages, and in no event will the liability of Motion Intelligence exceed the fees paid to Motion Intelligence by customer.
By entering into an agreement with Motion Intelligence customer agrees to pay for the product specified in the agreement pursuant to the terms and conditions set forth within the agreement.
Pricing is good for one year from the date of a signed agreement unless different pricing terms or pricing changes have previously been negotiated in a pricing appendix of an existing fully executed agreement.
No further guarantees may be made or implied by any agent or employee of Motion Intelligence without the express written consent of an officer of the company. Any and all special arrangements or changes in the order terms and conditions, as set forth herein, shall be held invalid unless such consent is given in writing by an officer of the company.
Governing Law and Jurisdiction. The Laws of the State of Colorado, without regard to any choice law principles, govern all matters arising out of or related to this contract of sale. The parties agree that the exclusive forum and venue for any lawsuit arising out of or related to this contract of sale shall be the United States District Court for the District of Colorado, and the parties submit to the personal jurisdiction of that court.
Motion Intelligence reserves the right to decline any order made in response to this quotation; order acceptance will only occur pursuant to a fully executed agreement or subsequent invoice from Motion Intelligence.
***END USER LICENSE AGREEMENT***
This End User License Agreement (“Agreement”) is a binding agreement between you (“you,” “your”) and Driving Management Systems, Inc. d/b/a Motion Intelligence (“we,” “us,” “our”). This Agreement governs your use of the Motion Intelligence software, mobile application, updates, documentation and all content provided by, to or through mobile application or computer terminal (collectively, the “Software”). The Software is licensed, not sold, to you, and we and our licensors retain all right, title and interest in and to the Software.
BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE OR OVER THE AGE OF MAJORITY IN THE STATE/COUNTRY WHERE YOU ARE A RESIDENT/CITIZEN; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. UNLESS YOU AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT INSTALL, DOWNLOAD, COPY OR USE THE SOFTWARE AND YOU MUST DELETE OR DESTROY ANY COPY IN YOUR POSSESSION OR CONTROL.
Subject to your compliance with the terms of this Agreement, we grant to you a limited, non-exclusive, non-transferable, revocable, license, without right to sub-license, to use the Software in accordance with this Agreement and any other written agreement with us.
The Software contains copyrighted material, trade secrets and other proprietary material. The license granted in Section 1 is conditioned upon your full compliance with the following limitations:
2.1 Reverse Engineering. You may not decompile, decipher, disassemble, reverse engineer or otherwise attempt to derive or gain access to the source code of the Software or any part thereof, except as expressly permitted by applicable law notwithstanding this limitation.
2.2 No Distribution, Rental or Transfer. You may not distribute, publish, rent, lease, lend, sell, transfer, sublicense, disclose, or otherwise provide the Software to any third party.
2.3 No Modification or Derivative Works. You may not modify or create derivative works of the Software, in whole or in part.
2.4 Proprietary Notices. You may not remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices or labels on the Software or any copy thereof.
2.5 Rights Management. You may not remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Software.
2.6 Non-Permitted Uses. Without limiting any of the foregoing, you may not make any use of the Software in any manner not expressly permitted by this Agreement.
2.7 Evaluation Additional Restrictions on Trial or Evaluation Software. You agree that Software licensed on a trial or evaluation basis is provided on a personal, non-sublicensable, non-assignable, non-exclusive, term-limited basis, and shall be used solely for determining the Software’s suitability for use by you. In no event may you distribute, share or discuss and blog about the Software pursuant to a trial or evaluation license. We make no warranty on trial or evaluation Software of any kind, which is expressly provided as-is, without obligation for support, maintenance or updates. Your rights and this license will terminate on the earlier of the period identified on the applicable purchase order or enrollment form, or upon five (5) days written notice from us.
We and our subsidiaries, affiliates, licensors, vendors, or suppliers own the right, title, and interest in and to the Software, including all copyrights, trademarks, and other intellectual property rights in the Software therein or relating thereto and reserve all rights not expressly granted to you in this Agreement.
You will indemnify, hold harmless, and defend us, our subsidiaries, affiliates, employees, agents and distributors against any and all claims, proceedings, demands, damages and costs resulting from or in any way connected with your use or misuse of the Software or your breach of this Agreement.
We may at any time change or eliminate features and functionality of the Software, including through the use of bug fixes, patches and other updates, enhancements, supplements, and add-on components of the Software that we may provide or make available to you after the date you obtain your initial copy of the Software (the “Updates”). Based on device or computer settings, when your device or computer is connected to the internet either: (a) the Software will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. If you do not promptly download and install all Updates, the Software may not operate properly. This Agreement also applies to Updates. If we provide additional terms along with the Software, those terms will apply to the Update.
4. DISCLAIMER OF WARRANTY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” WITH ALL FAULTS. WE AND OUR SUBSIDIARIES, AFFILIATES, LICENSORS, VENDORS, AND SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FURTHER, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, OR NON-INFRINGEMENT, LACK OF VIRUSES OR BUGS, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS WITH REGARD TO THE SOFTWARE, OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. IN PARTICULAR, WE AND OUR SUBSIDIARIES, AFFILIATES, LICENSORS, VENDORS, AND SUPPLIERS DO NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM US OR OUR SUBSIDIARIES, AFFILIATES, LICENSORS, VENDORS, AND SUPPLIERS, OR OTHERWISE IN CONNECTION WITH THE SOFTWARE, WILL CREATE ANY WARRANTY OR OBLIGATION ON BEHALF OF US AND OUR SUBSIDIARIES, AFFILIATES, LICENSORS, VENDORS, AND SUPPLIERS. THE ENTIRE RISK ARISING OUT OF THE USE, PERFORMANCE AND QUALITY OF THE SOFTWARE REMAINS WITH YOU. THE SOFTWARE IS ACCESSED AND USED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, DEVICE, OR OTHER SYSTEMS AND LOSS OF DATA IN CONNECTION WITH THE SOFTWARE.
5. EXCLUSION OF CERTAIN DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, in no event will WE OR OUR SUBSIDIARIES, AFFILIATES, LICENSORS, VENDORS, AND SUPPLIERS be liable for any consequential, incidental, indirect, special or punitive damages whatsoever (including, without limitation, damages for loss of profits OR REVENUE, loss of use, business interruption, DAMAGES TO YOUR COMPUTER SYSTEM, DEVICE, OR OTHER SYSTEMS, loss of information or data, LOSS OF GOODWILL, or pecuniary loss), HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, in connection with, arising out of or related to this Agreement, the Software or the use or inability to use the Software or the furnishing, performance or use of any other matters hereunder whether based upon contract, tort or any other theory including negligence, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER, OUR AND OUR SUBSIDIARIES’, AFFILIATES’, LICENSORS’, VENDORS’, AND SUPPLIERS’ MAXIMUM AGGREGATE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ALL CLAIMS, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER BASIS, WILL BE LIMITED TO THE ACTUAL DAMAGES YOU INCUR IN REASONABLE RELIANCE ON THE SOFTWARE UP TO USD100.00. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
7. OTHER MOBILE APPLICATIONS
The Software is intended to block all mobile applications while Software is operational on your device. If your device has been activated or authorized to use any distracting or non-recommended mobile applications, we will not be liable as a result. You will indemnify, hold harmless and defend us from and against any and all claims, expenses, liabilities, losses and costs arising from or relating to any use of the Software that authorizes or allows you to use distracting or non-recommended applications. We are not responsible for the support or operation of allowed applications developed by other organizations.
8. GOVERNING LAW
This Agreement shall be governed by the law of the State of Colorado. You hereby irrevocably consent and submit to the exclusive jurisdiction of the courts of the State of Colorado for any and all disputes, claims, and actions arising from or in connection with the Software and this Agreement. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. If any provision shall be considered unlawful, void or otherwise unenforceable, then that provision shall be deemed severable from this Agreement and not affect the validity and enforceability of any other provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
This Agreement will remain in effect until terminated. You may terminate this Agreement by ceasing all use of the Software and destroying all copies. Any failure to comply with the terms and conditions of this Agreement will result in automatic and immediate termination of this Agreement. Upon termination of this Agreement for any reason, you agree to immediately cease use of the Software and discontinue use and destroy all copies of Software supplied under this Agreement.
10. COLLECTION AND USE OF DATA
You agree that we may collect some information about you and any device or computer you use to access or use the Software automatically using a variety of technologies. In general, automatically collected information about use of the Software does not directly identify you and the information may include your diagnostic log information. We may use non-identifying information for any lawful purpose.
You also agree that the Software is detecting unauthorized mobile devices that are in range of the driver’s position while underway and that this data may be reported to your administrator if requested.
You hereby irrevocably grant to us a non-exclusive, fully paid up, royalty free, perpetual, irrevocable, unlimited, worldwide license to use, and otherwise distribute any information that you submit or transmit to us using the Software, and to authorize others to do so by means of a sublicense, subject to the limitations in this Agreement.
The section titles in this Agreement are used solely for the parties’ convenience and have no legal or contractual significance. Our failure to exercise, or delay in exercising, any right or any power hereunder shall not 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 including with respect to subsequent or similar breaches. No waiver of any provision of this Agreement will be effective unless it is in a signed writing, and no waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion. If a court of competent jurisdiction holds any term, covenant, or restriction of this Agreement to be illegal, invalid, or unenforceable, in whole or in part, the remaining terms, covenants, and restrictions will remain in full force and effect and will in no way be affected, impaired, or invalidated. You may not assign, transfer, or sublicense this Agreement or your rights (if any) under this Agreement. This Agreement will be binding upon all permitted successors and assigns. Any feedback, comments, or suggestions you may provide regarding the Software is entirely voluntary and we will be free to use such feedback, comments or suggestions as it sees fit without any obligation to you. This Agreement constitutes the entire agreement between you and us with respect to the Software and merges all prior and contemporaneous communications and proposals, whether electronic, oral, or written, between you and us with respect to the Software. We may give you all notices (including legal process) that we are required to give you by any lawful method, including by posting notice on our website and by sending it to any email or mailing address that you provide to us.
For information about how to contact Motion Intelligence, please contact us via www.motionintelligence.com.