Terms and Conditions

This agreement (the “Agreement”) is made by and between The MVMNT Group, Inc. (“MVMNT”) and the customer (“Customer”).  By logging into your MVMNT account you agree to be bound by our Terms and Conditions as follows:

1. DEFINITIONS. Capitalized terms will have the meanings set forth in this Section 1, or in the section in which they are first used.
   1. “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the MVMNT Solution.
   2. “Authorized User” means each of Customer’s employees, agents, independent contractors and clientele who are authorized to access the MVMNT Solution pursuant to Customer’s rights under this Agreement for which applicable fees have been paid.
   3. “Customer Data” means all data, content, and information that is stored by Customer in, or transmitted by Customer by or through, the Service.
   4. “Deal Sheet” means the document agreed upon by the parties that sets forth the services to be made available by MVMNT pursuant to this Agreement, the period of time during which Customer may access such services, the fees therefor, and other terms and conditions set forth thereon.
   5. “Derived Data” means any aggregated, de-identified, and/or anonymized data that is derived from the Customer Data.
   6. “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
   7. “MVMNT Solution”  means the MVMNT transportation management system (TMS), which is a web-based software-as-a-service application.
   8. “Performance Data” means any log files, metadata, telemetry data and other technical performance data automatically generated by the Service relating to the use, performance, efficacy, reliability and/or accuracy of the MVMNT Solution, which does not contain any personally identifiable information or Customer Data.
   9. “Services” means any services provided by MVMNT to Customer under this Agreement as set forth in a Deal Sheet, including, but not limited to, provision of the MVMNT Solution.
2. PROVISION OF SERVICES
   1. Access. Subject to Customer’s payment of the fees set forth in the Deal Sheet (“Fees”), MVMNT will provide Customer with access to the MVMNT Solution in accordance with the terms of the Deal Sheet. On or as soon as reasonably practicable after the date the parties enter into a Deal Sheet, MVMNT will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the MVMNT Solution in accordance with the Access Protocols. Authorized Users may only access the Services during one (1) concurrent login session. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the MVMNT Solution, and notify MVMNT promptly of any such unauthorized use known to Customer. In addition to its other rights under this Section 2.1, MVMNT may suspend or terminate Customer’s access to the MVMNT Solution upon written notice in order to: (a) prevent damage to or degradation of, the MVMNT Solution caused by Customer; or (b) comply with any law, regulation, court order, or other governmental request or order which requires immediate action. If suspended, MVMNT will promptly restore use to Customer as soon as the event giving rise to the suspension has been resolved to MVMNT’s satisfaction.
   2. Support Services. Subject to the terms and conditions of this Agreement and the applicable Deal Sheet, MVMNT will exercise commercially reasonable efforts to (a) provide support for the use of the MVMNT Solution to Customer, and (b) keep the MVMNT Solution operational and available to Customer, in each case in accordance with its standard policies and procedures. MVMNT may modify the MVMNT Solution from time to time with or without notice by adding or deleting features to improve the user experience.
   3. Hosting. MVMNT will, at its own expense, provide for the hosting of the MVMNT Solution, provided that nothing herein will be construed to require MVMNT to provide, or bear any responsibility with respect to, any hardware or connectivity required by Customer or any Authorized User to access the MVMNT Solution from the Internet.
3. MVMNT SOLUTION AND MVMNT INTELLECTUAL PROPERTY
   1. License Grant. Subject to the terms and conditions of this Agreement, MVMNT grants to Customer a non-exclusive, non-transferable (except as permitted under Section 11.6) license, solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Deal Sheet: (i) to access and use the MVMNT Solution for Customer’s internal business purposes. Customer may permit any Authorized Users to access and use the features and functions of the MVMNT Solution as contemplated by this Agreement.
   2. Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the MVMNT Solution, except as expressly allowed herein; (b) modify, adapt, alter or translate the MVMNT Solution; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the MVMNT Solution for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the MVMNT Solution, except as permitted by law; (e) interfere in any manner with the operation of the MVMNT Solution or the hardware and network used to operate the MVMNT Solution; (f) modify, copy or make derivative works based on any part of the MVMNT Solution; (g) access or use the MVMNT Solution to build a similar or competitive product or service; (h) attempt to access the MVMNT Solution through any unapproved interface; or (i) otherwise use the MVMNT Solution in any manner that exceeds the scope of use permitted under Section 3.1 or in a manner inconsistent with applicable law or this Agreement.
   3. Ownership. The MVMNT Solution and all worldwide Intellectual Property Rights therein, are the exclusive property of MVMNT and its suppliers. All rights in and to the MVMNT Solution not expressly granted to Customer in this Agreement are reserved by MVMNT and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the MVMNT Solution or any part thereof.
4. FEES AND EXPENSES; PAYMENTS
   1. Fees. In consideration for the access rights granted to Customer and the Services performed by MVMNT under this Agreement, Customer will pay to MVMNT the Fees pursuant to the terms set forth on the Deal Sheet. Except as otherwise provided in the Deal Sheet, all Fees will be paid by ACH or credit card accepted by MVMNT, or as otherwise agreed by MVMNT in writing. The Fees set forth on the Deal Sheet are the minimum amount that Customer shall pay during the Term. Customer acknowledges and agrees that if Customer adds additional Authorized Users, Customer shall pay additional Fees for each such Authorized User, at MVMNT’s then-current rate. In the event payment is made by credit card, MVMNT will accept and process such Fees (including renewals) from Customer based on the then-current credit card information provided by Customer to MVMNT. Customer’s credit card agreement governs its use of the designated credit card or account. By providing MVMNT with ACH or credit card information, Customer agrees that MVMNT is authorized to invoice and charge Customer’s account for all Fees due and payable to MVMNT and that no additional notice or consent is required. If Customer’s credit card issuer rejects any amount charged on Customer’s credit card, then MVMNT will notify Customer thereof and Customer will pay the Fees by ACH, check or wire transfer within thirty (30) days of the date of the notice. MVMNT reserves the right to modify the Fees payable hereunder upon written notice to Customer thirty (30) days prior to the commencement of the next Renewal Term. MVMNT will be reimbursed only for expenses that are expressly provided for in a Deal Sheet or that have been approved in advance in writing by Customer, provided MVMNT has furnished such documentation for authorized expenses as Customer may reasonably request. MVMNT reserves the right (in addition to any other rights or remedies MVMNT may have) to discontinue the MVMNT Solution and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing, payment and contact information at all times. Except as expressly set forth herein or in a Deal Sheet, all Fees are fully earned and non-refundable when due. Payments will be made without right of set-off or chargeback. All dollar amounts referred to in this Agreement are in United States Dollars.
   2. Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on MVMNT’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the MVMNT Solution to Customer. Customer will make all payments of Fees to MVMNT free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to MVMNT will be Customer’s sole responsibility, and Customer will provide MVMNT with official receipts issued by the appropriate taxing authority, or such other evidence as the MVMNT may reasonably request, to establish that such taxes have been paid.
   3. Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
5. CUSTOMER CONTENT, PROHIBITED CONTENT AND RESPONSIBILITIES
   1. License; Ownership; Performance Data, Derived Data, and Feedback. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Data.  Customer will obtain all third party licenses, consents and permissions needed for MVMNT to use the Customer Data to provide the Services and to exercise the licenses granted herein.  Customer grants MVMNT a non-exclusive, worldwide, royalty-free and fully paid license during the Term to use the Customer Data as necessary for purposes of providing the Services to Customer.  For clarity, MVMNT owns all Performance Data and Derived Data, and MVMNT may freely and perpetually use Performance Data and Derived Data, during and after the term hereof, for any lawful purpose, including, without limitation, developing aggregate statistical analyses, improving the MVMNT’s products and services, and sharing with third parties.  Customer also hereby grants to MVMNT a non-exclusive, sub-licensable, royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to: use or incorporate into the Service any suggestions, ideas, feedback, recommendations or other information provided by Customer or its Authorized Users with respect to the Service or MVMNT Solution (“Feedback”) and to reproduce, distribute, modify, create derivative works of, publicly perform and display, and sub-license Feedback. Performance Data, Derived Data, and Feedback are not Confidential Information of Customer.  The Customer Data, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Data not expressly granted to MVMNT in this Agreement are reserved by Customer.
   2. Customer Data Warranty. Customer represents and warrants that any Customer Data will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage MVMNT’s system or data; and (e) otherwise violate the rights of a third party. MVMNT is not obligated to back up any Customer Data; the Customer is solely responsible for creating backup copies of any Customer Data at Customer’s sole cost and expense. Customer agrees that any use of the MVMNT Solution contrary to or in violation of the representations and warranties of Customer in this Section 5.2 constitutes unauthorized and improper use of the MVMNT Solution.
   3. Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Data and will be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other Access Protocols required in order to access the MVMNT Solution. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
6. DISCLAIMERS
   1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” AND MVMNT MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. MVMNT DOES NOT WARRANT THAT ANY ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE MVMNT SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
7. LIMITATION OF LIABILITY
   1. Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA, LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, OR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
   2. Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, INCLUDING THE PERFORMANCE OF MVMNT’S INDEMNIFICATION OBLIGATIONS, WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO MVMNT DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL MVMNT’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
   3. Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 7 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
8. CONFIDENTIALITY
   1. Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving party”) knows or should have reasonably known is the confidential or proprietary information of the Disclosing party. The Services, and all enhancements and improvements thereto, will be considered Confidential Information of MVMNT.
   2. Protection of Confidential Information. The Receiving party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing party, except as expressly permitted under this Agreement. The Receiving party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to MVMNT). In addition, the Receiving party will protect the Disclosing party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing party’s request or upon termination or expiration of this Agreement, the Receiving party will return to the Disclosing party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving party does not have a continuing right to use under this Agreement, and the Receiving party will, upon request, certify to the Disclosing party its compliance with this sentence.
   3. Exceptions. The confidentiality obligations set forth in Section 8.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving party; (b) is lawfully provided to the Receiving party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving party who had no access to the Confidential Information. In addition, the Receiving party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving party promptly notifies the Disclosing party in writing of such required disclosure and cooperates with the Disclosing party if the Disclosing party seeks an appropriate protective order.
9. INDEMNIFICATION
   1. By MVMNT. MVMNT will defend at its expense any suit brought against Customer, and will pay any settlement MVMNT makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the MVMNT Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the MVMNT Solution becomes, or in MVMNT’s opinion is likely to become, the subject of a claim of infringement, MVMNT may, at MVMNT’s option: (a) procure for Customer the right to continue using the MVMNT Solution; (b) replace the MVMNT Solution with non-infringing software or services which do not materially impair the functionality of the MVMNT Solution; (c) modify the MVMNT Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the MVMNT Solution. Notwithstanding the foregoing, MVMNT will have no obligation under this Section 9.1 or otherwise with respect to any infringement claim based upon (i) any use of the MVMNT Solution not in accordance with this Agreement; (ii) any use of the MVMNT Solution in combination with other products, equipment, software or data not supplied by MVMNT; or (iii) any modification of the MVMNT Solution by any person other than MVMNT or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This Section 9.1 states the sole and exclusive remedy of Customer and the entire liability of MVMNT, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
   2. By Customer. Customer will defend at its expense any suit brought against MVMNT, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Customer’s breach or alleged breach of Sections 5.2 or 5.3. This Section 9.2 states the sole and exclusive remedy of MVMNT and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
   3. Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
10. TERM AND TERMINATION
    1. Term. This Agreement will begin on the Effective Date and continue in full force and effect for one (1) year thereafter (the “Initial Term”). Thereafter, this Agreement will automatically renew for additional terms of one (1) year (each, a “Renewal Term” and collectively with the Initial Term, the “Term”). Either party may give the other party written notice of non-renewal at least fifteen (15) days prior to the expiration of the then-current Term.
    2. Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
    3. Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 9; and (c) any amounts owed to MVMNT under this Agreement will become immediately due and payable. Sections 1, 3.2, 3.3, 4, 5.1, 7, 8, 9, 10.3, and 11 will survive expiration or termination of this Agreement for any reason.
11. MISCELLANEOUS
    1. Publicity. MVMNT may use Customer’s name and logo to identify Customer as a MVMNT customer in its marketing materials and website; unless Customer reasonably objects to same in writing, in which case MVMNT will either remedy or remove the objectionable use as soon as practicable.
    2. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Illinois, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Cook County, Illinois for any lawsuit filed there against Customer by MVMNT arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
    3. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    4. Waiver; Amendment. This Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms and conditions hereof may be waived, only by a written agreement between the parties. The waiver by any party of a breach of any provision of this Agreement must be in writing and shall not operate or be construed as a waiver of any subsequent breach.
    5. No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement to an affiliate or in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
    6. Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its performance of its obligations and/or exercise of the rights granted to it hereunder.
    7. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
    8. Independent Contractors. Customer’s relationship to MVMNT is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of MVMNT.
    9. Notices. All notices required or permitted under this agreement must be delivered in writing to the recipient’s address, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at said party's address by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
    10. Precedence.  To the extent that a conflict arises between the terms and conditions of a Deal Sheet and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Deal Sheet, expressly states that it supersedes specific language in the Agreement.
    11. Entire Agreement. This Agreement, together with any Deal Sheet(s), is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters.