PLEASE NOTE THAT YOUR USE OF AND ACCESS TO THE MOTORQ SERVICE (DEFINED BELOW) AND ALL DATA MADE AVAILABLE THEREWITH IS SUBJECT TO THE FOLLOWING TERMS. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE MOTORQ SERVICE.USE OF THE MOTORQ SERVICE IS EXPRESSLY CONDITIONED UPON CUSTOMER’S (DEFINED BELOW) ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

These Terms of Service (the “Agreement”) are a binding contract between you and Motorq, Inc. (“Motorq”).You must agree to and accept all the terms of this Agreement, or you don’t have the right to use the Motorq Service.By clicking a box indicating your acceptance, executing an order form or similar document that references this Agreement, and/or using the Motorq Service in any way, you or the entity you (“Customer”) agree that you have read and agree to this Agreement and you represent and warrant that you are authorized to bind Customer. This Agreement will remain in effect while you use the Motorq Service or any data made available therewith. Motorq reserves the right to modify the terms and conditions of this Agreement at any time, provided Motorq will provide Customer with notice of change by email and/or by another reasonable means.

1. Definitions.

“Active Vehicle” shall mean a vehicle owned, possessed, managed or maintained by Customer for its use after its Enrollment and prior to its Unenrollment.

“Affiliate” shall mean any person or company which controls, is controlled by, or is under common control with, either Party, including any holding company, any subsidiary, or any service corporation of either Party.

“Business” shall mean the business of owning, leasing, managing or maintaining automotive vehicles, or any combination thereof.

“Commencement Date” shall mean the date agreed to in writing by the Parties as the date Motorq shall commence granting Customer access to the Motorq Service.

“Confidential Information” shall have the meaning set forth in Section 12.

“Consents” shall have the meaning set forth in Section 4.

“Contracted Data” shall mean data, including Telematics Data, which is provided to Motorq pursuant to a contract between Motorq and an applicable OEM or an aftermarket device manufacturer.

“Data Analytics” shall mean the output of Motorq Service, which consists of derived and calculated data and information.

“Disclosing Party” shall have the meaning set forth in Section 12.

“Drivers” shall mean the individual drivers of Active Vehicles.

“Enrollment” shall mean the point at which a vehicle is accepted by Motorq in accordance with its documentation.

“Feedback” shall have the meaning set forth in Section 3.

“Governmental Entity” shall mean any: (a) nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (b) federal, state, local, municipal, foreign or other government; (c) governmental or quasi-governmental authority of any nature (including any governmental division, department, agency, commission, instrumentality, official, organization, unit, body or Entity and any court or other tribunal); or (d) self-regulatory organization.

“Laws” shall mean all now existing or hereafter enacted or amended United States (a) federal, state, local or other laws or statutes, (b) rules or regulations issued by a regulatory body, (c) written or authoritative interpretations by a regulatory body of any such laws, statutes, rules or regulations, or (d) enforceable regulatory guidance, judicial, governmental, or administrative orders, judgments, decrees or rulings, or written and enforceable requirements of self-regulatory bodies and organizations, including, but not limited to, the California Consumer Privacy Act, the Auto Alliance Consumer Privacy Protection Principles, and the Canadian equivalent of all of the above.

“Malicious Code” shall mean code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Motorq Competitor” shall mean a business that offers a service substantially similar to Motorq Service.

“Motorq Service” means the service(s) Motorq provides to its Customer pursuant to this Agreement and as further set forth in applicable Orders.

“OEM” shall mean an automotive manufacturer providing Telematics Data to Motorq pursuant to an agreement between such manufacturer and either Motorq or Customer.

“Operational Data” means data required for Motorq to provide the Motorq Service that must be supplied by Customer as set forth in the Motorq Service documentation.

“Order” means the mutually-agreed order for Customer’s procurement of the Motorq Service.Orders may be between Motorq and Customer or a Third-Party Provider (defined below) and Customer.

“Party” shall mean a party bound by this Agreement.

“Person” shall mean an individual or entity, including a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a Governmental Entity (or any department, agency, or political subdivision thereof).

“PII” (personally identifiable information) shall mean information relating to an individual that identifies such individual or could reasonably be used to identify such individual and includes information from which an individual’s identity can be ascertained, either from the information itself or by combining the information with information from other sources created, collected or received pursuant to the services performed under this Agreement, or as otherwise defined under applicable data protection Laws.

“Receiving Party” shall have the meaning set forth in Section 12.

“Reverse Engineer” shall mean, with reference to Motorq Service, to reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to Motorq Service (except to the extent prohibited by applicable Law and then only upon advance notice to Motorq).

“Subscription Fee” shall have the meaning set forth in each applicable Order.

“Telematics Data” shall mean the data produced by the telematics device installed in each Active Vehicle, whether accessed directly from an aftermarket device in the vehicle or accessed from the OEM of such vehicle.

“Unenrollment” shall mean the withdrawal of a vehicle from the Services by Customer or Motorq in accordance with the procedures provided on the Motorq Service.

2. Motorq Services.

Subject to all terms and conditions hereof and compliance therewith, Motorq shall exercise commercially reasonable efforts to provide Customer with access to, and Customer is hereby permitted to use, the Motorq Service solely for each Use Case set forth in applicable Orders, commencing on the Commencement Date and continuing through the Term. Motorq shall provide Customer with commercially reasonable email support during Motorq’s normal business hours. The Motorq Service is subject to modification from time to time at Motorq’s sole discretion, for any purpose deemed reasonably appropriate by Motorq. Motorq will use reasonable efforts to give Customer prior written notice of any such modification. Customer shall (i) allow access to the Motorq Services and Contracted Data only to those Persons that require access in connection with the conduct of Customer’s Business; provided that such Persons are subject to confidentiality obligations at least as restrictive as those set forth in Section 12 hereof and provided further that Customer shall not allow access to any known Motorq Competitor and shall be responsible for any violation of the terms of this Agreement by Persons to whom or which it has knowingly allowed access; (ii) not access the Motorq Service for the purpose of building or operating a competitive service, to copy any ideas, features or functions of the Motorq Service or to Reverse Engineer the Motorq Service; (iii) notify Motorq promptly after discovery of any unauthorized use; (iv) comply with all Laws and OEM Terms (defined below) applicable to Customer’s use of the Motorq Services and the Contracted Data; (v) not use the Motorq Services to store or transmit material in violation of third-party rights; (vi) not use the Motorq Services to store or transmit Malicious Code; (vii) respond promptly to Motorq’s reasonable requests for access to personnel and other assistance, and (viii) not re-sell Contracted Data in identifiable or anonymized form to third parties.

3. Intellectual Property.

(a) To the extent Motorq uses Telematics Data to create and improve the Motorq Service, Customer hereby grants Motorq (and its successors and assigns) a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide right and license to fully exploit such data solely for such purpose. Customer shall provide Motorq access to Operational Data and applicable Telematics Data that is not Contracted Data for Motorq’s use solely as necessary to provide the Services to Customer and to create and improve the Motorq Service.

(b) Nothing in this Agreement shall be deemed to transfer ownership of any intellectual property from one Party to the other Party, and Motorq retains all rights, title, and interest to the Motorq Service. To the extent Customer provides Motorq with any feedback relating to the Motorq Service, including, without limitation, feedback related to usability, performance, features or functions (“Feedback”), Customer hereby grants Motorq (and its successors and assigns) a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide right and license to copy, display, perform, modify, distribute, sell, offer for sale, develop and otherwise fully exploit such Feedback for any purposes.

4. Consents; OEM Terms.

(a) In cases where Customer is using Contracted Data, Customer shall, where applicable and/or as set forth in an applicable Order, obtain or cause to be obtained prior, affirmative, written consents to the collection, sharing, use and retention of data and information pursuant to this Agreement and other applicable agreements from each owner, lessee and Driver to the extent required by applicable law or the OEM applicable to the Contracted Data (“Consent(s)”).

(b) A form Consent, which includes applicable OEM Terms (defined below), will be made available to Customer and is subject to update from time to time as deemed reasonably necessary by Motorq. Customer shall ensure that a copy of each executed Consent is forwarded to Motorq promptly after execution, and that Motorq is notified of any withdrawal of any Consent or the Unenrollment of an Active Vehicle, promptly after Customer receives notice of same.

(c) Customer may elect in an applicable Order to permit Motorq to share Operational Data, Telematics Data, and Contracted Data with third-party fleet management providers with whom each of Motorq and Customer separately maintain a contractual relationship (each a “Third-Party Provider”). In such cases, Customer shall obtain or cause to be obtained Consents for such disclosure and usage.

(d) Customer acknowledges and agrees that access to certain Contracted Data will require Customer to agree to pass-through terms and conditions provided by the applicable OEM, which may be updated from time to time at the applicable OEM’s discretion (“OEM Terms”).

5. Data Privacy.

(a) Each Party agrees that it will not use PII or disclose PII to any third party except to the extent necessary to carry out the purpose or purposes for which such information was disclosed to such Party or as otherwise permitted by applicable Law and this Agreement. Each Party shall process PII solely in the United States and Canada.

(b) Each Party shall comply with the Data Security Requirements set forth at https://motorq.com/data-security-requirements

(c) Each Party shall retain PII only to the extent such Party has a legal obligation to maintain the information or it has a specific, demonstrable, business purpose to retain it, and the retention of such information complies with applicable Law.

6. Payment.

(a) Customer shall pay Motorq all Subscription Fees as are set forth in each applicable Order within thirty (30) days of the date of receiving a Motorq invoice.Where Customer has engaged a Third-Party Provider for access to the Services, Customer shall pay such Third-Party Provider in accordance with the agreement between Customer and such Third-Party Provider.

(b) Any Subscription Fees not paid when due shall bear interest at the rate of 1.5% per month and all of Motorq’s reasonable expenses and legal fees incurred in collecting such overdue Subscription Fees shall be reimbursed by Customer.

(c) All Subscription Fees payable under this Agreement are exclusive of tax and duty. Customer shall pay or reimburse Motorq for all value-added, sales, use, property, and similar taxes; all customs duties, import fees, stamp duties, license fees, and similar charges; and all other mandatory payments to Governmental Entities of whatever kind imposed with respect to the Services provided by Motorq under this Agreement, except taxes imposed on the net income of Motorq. All payments by Customer to Motorq pursuant to this Agreement shall be made without any withholding or deduction of any withholding tax or other tax or mandatory payment to Governmental Entities.

7. Term and Termination.

(a) Service Term. Subject to earlier termination as provided below, the Agreement shall commence on the Effective Date and expire at the end of the Service Term (defined below). The “Service Term” shall be the successive periods including the Trial Term (if any), the Initial Term, and each Renewal Term (if any).

(b) Trial Term. If applicable, the “Trial Term” shall commence on the Effective Date and expire following the trial period set forth in an applicable Order. During the Trial Term only, either Party may terminate this Agreement for any reason or no reason upon notice to the other Party.

(c) Initial Term and Renewals. The “Initial Term” shall commence on (i) the Effective Date or (ii) upon expiration of the Trial Term (if applicable) and expire following the Initial Term period set forth in the Order. Following the Initial Term, this Agreement will automatically renew for successive Renewal Terms (defined in the Order) unless either Party gives the other Party notice of non-renewal (“Non-renewal Notice”) at least sixty (60) days prior to the end of the then-current term.

(d) Default/Material Breach. In the event or material breach of this Agreement by one Party, the other Party may (reserving cumulatively all other remedies and rights under this Agreement and in law and in equity) terminate this Agreement by giving fifteen (15) days’ written notice thereof, provided, however, that any such termination will not be effective if the default or breach has cured such default or breach prior to the expiration of said fifteen (15) day period.

8. Effect of Termination.

Upon termination of this Agreement: (i) all rights granted to the Parties under Section 2 of this Agreement shall immediately terminate; (ii) the following sections shall survive expiration or termination of this Agreement: 1, 3, 5, 6 (to the extend amounts are unpaid), 8, 9(b), 10, 11, 12, and 13; and (iii) Customer shall delete all Contracted Data except for such Contracted Data that is contained in downloaded or printed reports made available through the Motorq Services.

9. Warranties.

(a) Each Party represents and warrants that: (i) it has all right, power and authority to execute this Agreement and perform its obligations hereunder, (ii) the person executing this Agreement on its behalf has authority to do so, (iii) its performance will not conflict with any obligations it has to any third party and (iv) its performance will comply with all laws, regulations and third-party rights.

(b) EXCEPT AS PROVIDED IN THIS SECTION 9(a), (I) MOTORQ HEREBY DISCLAIMS ALL WARRANTIES REGARDING THE MOTORQ SERVICE, BOTH EXPRESS AND IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTY OF NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND MERCHANTABILITY; AND (II) CUSTOMER ACKNOWLEDGES THAT IN ENTERING INTO THIS AGREEMENT CUSTOMER HAS RELIED UPON CUSTOMER’S OWN EXPERIENCE, SKILL AND JUDGMENT TO EVALUATE MOTORQ SERVICE AND THAT HE, SHE OR IT HAS SATISFIED ITSELF AS TO THE SUITABILITY OF MOTORQ SERVICE TO MEET HIS, HER OR ITS REQUIREMENTS.

10. Limitation of Liability.

WITH THE EXCEPTION OF LOSS, LIABILITY OR DAMAGE ARISING FROM A BREACH OF SECTIONS 3 (INTELLECTUAL PROPERTY), 4 (CONSENTS), 5 (DATA PRIVACY), AND 12 (CONFIDENTIAL INFORMATION) OF THIS AGREEMENT AND THE INDEMNITY OBLIGATIONS UNDER SECTION 11 OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR (a) LOST PROFITS, LOST REVENUES, LOST BUSINESS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (b) ANY CLAIMED LOSS, LIABILITY OR DAMAGE THAT EXCEEDS THE FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE SUCH CLAIM IS MADE.

11. Indemnification.

(a) Indemnification by Customer. Customer shall defend, indemnify, and hold harmless Motorq and its suppliers, licensors, and Third-Party Providers (and each of their respective employees, agents and directors) against any third party claim, suit, or proceeding (including resulting liabilities, damages and/or costs (such as, but not limited to, reasonable attorneys’ fees) paid to third parties (collectively, “Losses”)) to the extent arising out of: (A) Customer’s breach of Section 4 (Consents) or Section 5 (Data Privacy); (B) claims from Drivers; and (C) claims related to the Operational Data, including without limitation claims that the Operational Data infringes, violates, or misappropriates any third-party rights.

(b) Indemnification by Motorq. Motorq shall defend, indemnify, and hold harmless Customer against any third party claim, suit or proceeding (including Losses) to the extent arising out of (A) Motorq’s breach of Section 5 (Data Privacy); or (B) a finding that Customer’s use of the Motorq Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights. Motorq’s indemnity obligation does not extend to any claims arising out of or related to (i) a combination of the Motorq Service with software not provided by Motorq, or (ii) Customer’s use of the Motorq Service in breach of this Agreement. In the event of any such infringement claim, Motorq may, at its option: (i) obtain a license to permit Customer the ability to continue using the Motorq Service; (ii) modify or replace the relevant portion(s) of the Motorq Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of time; or (iii) terminate this Agreement by providing notice to Customer, and provide Customer with a refund of any prepaid, unearned Subscription Fees (prorated on a daily basis for the then-current billing period).

(c) Exclusions. Each party’s indemnity obligations as set forth in this Section 11 will not extend to any claim, suit, or proceeding for which (A) the indemnified party fails to promptly notify the indemnifying party of the claim, (B) the indemnified party fails to promptly give the indemnifying party sole control over the defense and settlement of the claim, provided that such indemnifying party may not agree without the indemnified party’s consent (not to be unreasonably withheld) to any settlement that imposes any obligations upon or admits any wrongdoing on the part of the indemnified party, or (C) the indemnified party fails to promptly provide the indemnifying party reasonable cooperation in such defense or settlement.

12. Confidential Information.

Each party (the “Receiving Party”) agrees that all code, inventions, know-how, business, technical, financial and other information it obtains and has obtained from the disclosing party (the “Disclosing Party”) constitutes the confidential property of the Disclosing Party (the “Confidential Information”), provided that it is or was identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. All information relating to the performance of the Motorq Service, all Data Analytics provided by the Motorq Service and all Motorq’s pricing and fee-related information, shall be deemed Motorq’s Confidential Information, and the terms of this Agreement shall be considered the Confidential Information of both Parties. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. Although certain information accessed through the Motorq Service constitutes Confidential Information, Customer is authorized to disclose such information to its Customers, employees, accountants and attorneys with a need for such information, subject to the restrictions in Section 2. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) is or has become generally available to the public other than through a violation of this Section 12 by the Receiving Party; (b) is or was obtained by the Receiving Party from a third party without, to the Receiving Party’s knowledge, breach of any confidentiality obligation to the Disclosing Party; (c) is independently developed by employees or contractors of the Receiving Party who had no access to such information; or (d) is required to be disclosed pursuant to a Law or court order (but only to the minimum extent required to comply with such regulation, Law or order and with advance notice to the Disclosing Party). The Receiving Party shall be responsible for any violation of its obligations in this Section 12 by its employees, Customers and contractors.

13. General Terms.

(a) Governing Law. This Agreement shall be governed in all respects by the laws of the State of California notwithstanding such state’s law that would otherwise specify the law of a different state. The Parties hereby waive and disclaim any trade usage or course of dealings or performance between the Parties.

(b) Publicity. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Motorq.Motorq is permitted display Customer’s logo on Motorq’s corporate website for the sole purpose of identifying Customer as a Motorq customer.

(c) No Agency; Relationship of Parties. Customer is not, and shall not be deemed to be, the legal representative or agent of Motorq for any purpose whatsoever, and Customer is not authorized by Motorq to incur obligations (express or implied), pledge credit, or make any promises, warranties or representations in the name of or on behalf of Motorq. Motorq and Customer are acting as independent contractors, and nothing contained in this Agreement shall be construed to create the relationship of partners, joint ventures, principal-agent or employer-employee.

(d) Entire Agreement; Modification. This Agreement, including any exhibits attached hereto, constitute the entire agreement between the Parties, and supersede all previous and contemporaneous negotiations, representations and agreements heretofore made by the Parties with respect to the subject matter hereof. This Agreement shall not be modified except by a subsequently dated written amendment signed on behalf of the Party to be bound thereby. Customer represents that no oral or written comments by Motorq, including comments regarding future or modified functionality, have induced Customer to enter into this Agreement.

(e) Waiver. Any failure to enforce, or delay in enforcing, any provision of this Agreement by either Party shall not be construed to be a waiver of any breach of such provision or any other provision of this Agreement. No waiver of any breach of a provision of this Agreement shall be effective unless made in writing and signed by the waiving Party. The waiver of a breach of a provision of this Agreement shall in no way be construed as a waiver of any subsequent breach of such provision or as a waiver of the provision itself.

(f) Severability. In the event that any provision of this Agreement is unenforceable or invalid under any applicable Law or is so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable Law or applicable court decision.

(g) Notices. All notices required or permitted under this Agreement shall be in writing, shall reference this Agreement and shall be deemed given: (i) when delivered personally; (ii) when sent by email if the recipient of such email responds to it or confirms its receipt; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial express carrier, specifying delivery in one (1) day or less, with written verification of receipt. All communications from Customer shall be sent to the addresses set forth below:

To Motorq: Motorq, Inc.
325 Sharon Park Dr #743
Menlo Park CA 94025-6805
ATTN: Legal

(h) Assignment. Except as otherwise provided herein, neither Party shall assign or transfer, by operation of law or otherwise, any of his, her or its rights, nor shall either Party be relieved of any of its obligations, under this Agreement without the prior written approval of the other Party, and any attempt to make such assignment without such approval shall be invalid and void. Notwithstanding the previous sentence, such rights may be transferred to an Affiliate or in connection with a merger, corporate reorganization, or transfer of all or substantially all the assets of one Party to a Party that is not a direct competitor of the first party and is fully capable of assuming, and does assume, all of the obligations hereunder. Subject to the foregoing, the rights and obligations of the Parties under this Agreement shall inure to the benefit of, and shall be binding upon, their respective permitted successors and assigns.

(i) Counterparts. Each counterpart of this Agreement (including a pdf copy) may be signed and delivered by fax or other electronic means, each of which counterpart shall be deemed an original, but which together shall constitute one instrument.

(j) Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act, the Parties and their employees and agents shall not directly or indirectly make any offer, payment, or promise to pay; authorize any payment; nor offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing any act or decision of an official of any government worldwide or the United States Government (including a decision not to act) or inducing such person to use his or her influence to affect any such governmental act or decision in order to assist such Party in obtaining, retaining or directing any such business.

(k) Force Majeure. Notwithstanding any other provision herein, except for payment of money, neither Party shall be liable for failure to fulfill his, her or its obligations under this Agreement (in part or in whole) or for delays in such fulfillment, due to causes beyond its reasonable control, including but not limited to acts of God, man-made or natural disasters, earthquakes, fire, riots, flood, material shortages, strikes, delays in transportation, inability to obtain electricity or electronic transmission through its regular sources, the failure of any third party data source to provide data or any interruption in access to such Party’s cloud computing service. The time for performance of any such obligation shall be extended for the time period lost by reason of the delay.