Motorq Service Agreement

THIS AGREEMENT (THE "AGREEMENT") IS ENTERED INTO AS OF THE EFFECTIVE DATE BY AND BETWEEN CUSTOMER AND MOTORQ, INC., A DELAWARE CORPORATION ("MOTORQ") (EACH INDIVIDUALLY, A “PARTY” AND COLLECTIVELY, THE “PARTIES”). BY MUTUALLY EXECUTING ONE OR MORE ORDERS REFERENCING THIS AGREEMENT AND/OR BY ACCESSING OR USING THE MOTORQ SERVICE IN ANY MANNER, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. EACH PARTY REPRESENTS AND WARRANTS THAT THE PERSON EXECUTING THIS AGREEMENT OR ANY ORDER ON ITS BEHALF IS AUTHORIZED TO BIND SUCH PARTY. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. Motorq Services.

(a) Access to Motorq Service. Subject to all terms and conditions hereof and compliance therewith, Motorq shall provide Customer and (if applicable) its Clients (defined below) with access to the Motorq Service (defined below) solely for the Permitted Use Cases set forth in the applicable Order (defined below), during the Term of the Agreement. A "Client" means any Customer client who is granted access to the Motorq Service pursuant to this Agreement. The "Motorq Service" means the service(s) Motorq provides to Customer and (if applicable) its Clients pursuant to this Agreement and as further set forth in applicable Orders. An "Order" means a mutually-agreed order for Customer's procurement of the Motorq Service. An "Active Vehicle" means a vehicle owned, possessed, managed or maintained by Customer for its use or for use by Clients as part of Customer's fleet management services after such vehicle's Enrollment and prior to its Unenrollment (defined below). "Unenrollment" means the withdrawal of a vehicle from the Services by Customer or Motorq in accordance with the procedures provided on the Motorq Service. An "OEM" means an automotive or aftermarket device manufacturer. "Contracted Data" means data, including Telematics Data (defined below), provided by Motorq to Customer that was obtained by Motorq from an OEM pursuant to an agreement between Motorq and such OEM. 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.
(b) Access Restrictions. Customer and (if applicable) its Clients shall: (i) allow access to the Motorq Service and Contracted Data only to Persons (defined below) that require access in connection with Customer’s Business (defined below), provided that (A) such Persons are subject to confidentiality obligations at least as restrictive as those in Section 10, (B) Customer shall not allow access to any business offering a service substantially similar to the Motorq Service, (C) any access granted to Clients shall be under a written agreement imposing restrictions on use, disclosure, and re-use of Contracted Data no less protective than this Agreement, and (D) Customer shall be responsible for any violation of this Agreement by Persons to whom it has knowingly allowed access, including its Clients; (ii) not access the Motorq Service for the purpose of building or operating a competitive service, copying any ideas, features, or functions of the Motorq Service, or reverse engineering, decompiling, disassembling, or otherwise seeking to obtain the source code or non-public APIs to the Motorq Service, except to the extent such restriction is prohibited by applicable Law (defined below); and (iii) notify Motorq promptly after discovery of any unauthorized use. A "Person" means 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. The "Business" means the business of owning, leasing, managing or maintaining automotive vehicles, or any combination thereof.
(c) Use Restrictions. Customer and (if applicable) its Clients shall: (i) use Contracted Data solely for the Permitted Use Cases specified in the applicable Order; any use outside the Permitted Use Cases shall constitute a material breach of this Agreement; (ii) not re-sell Contracted Data in identifiable or anonymized form to third parties; (iii) not create derivative works based on Contracted Data except as expressly permitted in writing by Motorq; (iv) not use the Motorq Service to store or transmit material in violation of third-party rights; (v) not use the Motorq Service to store or transmit code, files, scripts, agents, or programs intended to do harm (e.g., viruses, worms, time bombs, or Trojan horses); and (vi) not remove, obscure, or alter any proprietary rights notices on or within the Motorq Service or any Contracted Data.
(d) Customer Obligations. Customer shall: (i) comply with all Laws (defined below) and OEM Terms (defined below) applicable to Customer's use of the Motorq Service and Contracted Data; (ii) respond promptly to Motorq's reasonable requests for access to personnel and other assistance; and (iii) keep all API credentials, access tokens, passwords, and account information issued by or through Motorq strictly confidential and not share such credentials with any third party. "Laws" means all now existing or hereafter enacted or amended (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. Customer shall promptly notify Motorq upon discovering any unauthorized access to or use of such credentials and shall cooperate with Motorq to revoke and replace any compromised credentials. Customer shall be responsible for all activity occurring under its account credentials.

2. Intellectual Property.

(a) Data License. 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. "Telematics Data" means the data produced by a telematics device installed in an Active Vehicle, whether accessed directly from an aftermarket device in the vehicle or accessed from the OEM of such vehicle; Telematics Data may be Contracted Data if such Telematics Data is provided to Motorq pursuant to an agreement between Motorq and an OEM. 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 Motorq Service to Customer and its Clients and to create and improve the Motorq Service. "Operational Data" means any data provided by Customer, other than Telematics Data, that is required for Motorq to provide the Motorq Service and that must be supplied by Customer as set forth in the Motorq Service documentation. To the extent applicable, Customer shall be responsible for obtaining adequate rights and access from its Clients in order for this Section 2(a) to be applicable to Operational Data and Telematics Data sourced from such Clients.
(b) Ownership; Feedback. Nothing in this Agreement transfers 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.

3. Consents.

(a) Consent Requirements. Customer shall, when applicable and/or as set forth in an applicable Order, obtain or cause to be obtained opt-in consent to the collection, sharing, use, and retention of Contracted Data from each owner or lessee to the extent required by applicable Law or the OEM applicable to the Contracted Data. Each such consent is referred to herein as a "Consent." A form Consent, which includes applicable OEM Terms, will be made available to Customer and (if applicable) its Clients and is subject to update from time to time as deemed reasonably necessary by Motorq. Customer or its Clients shall also provide notice to Drivers and obtain Driver consent for the collection of Contracted Data. A "Driver" means an individual driver of an Active Vehicle. Customer acknowledges and agrees that access to certain Contracted Data will require Customer, or (if applicable) its Clients, 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. Such pass-through terms and conditions are referred to herein as "OEM Terms." Customer represents and warrants that, prior to the Enrollment of each Active Vehicle, Customer has obtained (or caused to be obtained) all required Consents. Customer shall not submit any vehicle for Enrollment unless and until all required Consents have been obtained. Customer shall maintain a commercially reasonable consent management system or process sufficient to document, track, and verify the status of all Consents. Upon Motorq's reasonable written request (not more than once per calendar quarter absent a suspected breach), Customer shall provide written certification confirming that all required Consents are current and valid for all Active Vehicles. Customer shall ensure that Motorq is notified of any withdrawal of any Consent or the sale or Unenrollment of an Active Vehicle promptly after Customer receives notice of same. Customer shall be solely responsible for any claims, losses, fines, penalties, regulatory actions, or other liabilities arising from Customer's or its Clients' failure to obtain, maintain, or comply with any required Consent, including without limitation any claim by a Driver, vehicle owner, lessee, OEM, or Governmental Entity. Customer's indemnification obligations under Section 9(a) apply to all such claims and liabilities.
(b) Consent Deficiency Notice. Customer shall promptly notify Motorq (and in no event later than forty-eight (48) hours after discovery) if Customer becomes aware that any required Consent or Driver Consent was not obtained, was defective, was obtained through fraud or misrepresentation, or has been withdrawn or revoked. Upon receipt of such notice (or upon Motorq's independent discovery of a consent deficiency), Motorq may immediately suspend the provision of Contracted Data with respect to the affected Active Vehicle(s) until Customer demonstrates to Motorq's reasonable satisfaction that the deficiency has been cured.
(c) RVD/RVE and ELRS Consent. Where an applicable Order includes remote vehicle disable/enable commands ("RVD/RVE") or enhanced location retrieval services ("ELRS"), Customer shall, prior to Motorq's activation of any such feature with respect to an Active Vehicle, separately notify and obtain express written consent from each Driver and, to the extent applicable, each end user of such Active Vehicle authorizing the use of RVD/RVE and/or ELRS, as applicable. Customer shall ensure that RVD/RVE is initiated only following a commercially reasonable determination that such action can be performed safely and in compliance with all applicable Laws. Customer shall not authorize or permit any third party, including any Client, to initiate RVD/RVE or ELRS on Customer's behalf. Customer shall retain copies of all consents obtained pursuant to this provision and shall make such copies available to Motorq upon reasonable request.

4. Compliance.

(a) Data Privacy. To the extent Contracted Data includes personally identifiable information, Customer and its Clients (if applicable) shall not use or disclose such PII (defined below) except as expressly permitted by this Agreement and applicable Law. "PII" means 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. Customer and its Clients (if applicable) shall process such PII in the territories listed in the Order only. Each Party shall comply with the Data Security Requirements set forth at https://motorq.com/data-security-requirements.
(b) Data Processing. If necessary for the processing of the foregoing PII, Customer and Motorq will enter into a data processing agreement, the form of which Motorq will make available to Customer. Customer and its Clients (if applicable) may retain such PII only to the extent that 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 this Agreement and applicable Law.
(c) Re-Identification Prohibition. Customer and (if applicable) its Clients shall (i) not attempt to re-identify, or assist any third party in re-identifying, any de-identified or anonymized Contracted Data; (ii) not build or derive individual-level profiles of any vehicle owner, operator, driver, or lessee from Contracted Data; and (iii) not combine Contracted Data with any other data set in a manner that would enable identification of a specific individual, except as expressly permitted in writing by Motorq.
(d) Prohibited Uses. Customer shall not use the Motorq Service or any Contracted Data: (i) to generate a "consumer report" as that term is defined in the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA"); (ii) to make eligibility determinations regulated by the FCRA, including determinations relating to credit, insurance underwriting, employment screening, or government licensing; (iii) to take any "adverse action" against any individual as that term is defined under the FCRA; or (iv) in any safety-critical application or fail-safe environment where failure of the service could reasonably be expected to result in personal injury, death, or significant property damage (including, without limitation, emergency vehicle dispatch, autonomous vehicle control, or public safety communications). Customer acknowledges that the Motorq Service is not designed or warranted for such uses.
(e) Anti-Corruption; Export Controls. 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. "Governmental Entity" means 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. In addition, Customer shall comply with all applicable U.S. and foreign export control and economic sanctions laws and regulations, including those administered by the U.S. Department of Commerce, the U.S. Department of Treasury's Office of Foreign Assets Control (OFAC), and the U.S. Department of State. Customer shall not export, re-export, release, or make accessible the Motorq Service or any Contracted Data from or to any jurisdiction, entity, or individual prohibited under such laws.

5. Subscription Fees.

Customer shall pay all owed Subscription Fees (defined below) within thirty (30) days of the date it receives an invoice from Motorq. The "Subscription Fee" means all amounts payable or reimbursable by Customer in accordance with the fee schedule set forth in the applicable Order. Any Subscription Fees not paid when due shall bear interest at the rate of 1.5% per month (or the max permitted by applicable Law), and Customer shall reimburse all of Motorq’s reasonable expenses and legal fees incurred in collecting such overdue Subscription Fees. 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 Motorq Service, 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.

6. 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. The "Service Term" shall be the successive periods including the Trial Term (if any), the Initial Term, and each Renewal Term (if any) (each as defined below).
(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) Renewal. 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. The "Initial Term" means the initial period of the Agreement following the Effective Date or the Trial Term (if applicable), as set forth in the applicable Order. Following the Initial Term, this Agreement will automatically renew for successive Renewal Terms unless either Party gives the other Party notice of non-renewal at least sixty (60) days prior to the end of the then-current term. A "Renewal Term" means each successive renewal period following the Initial Term.
(d) Default/Material Breach. In the event of a 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 defaulting or breaching party has cured such default or breach prior to the expiration of said fifteen (15) day period.
(e) Effect of Termination. Upon expiration or termination of this Agreement: (a) all rights granted to Customer and its Clients under Section 1 of this Agreement shall immediately terminate (provided that Customer's obligations under Section 1 shall survive to the extent applicable to any Contracted Data or Confidential Information (defined below) retained pursuant to this Section 6(e)); (b) the Customer shall delete all Contracted Data from Toyota vehicles except if the Customer is the operator of the Toyota vehicle or if such Contracted Data is retained by Customer or its Clients in anonymized form; (c) the Customer shall delete all Contracted Data from Mercedes Benz vehicles, except for such Contracted Data found in downloaded or printed reports made available through the Motorq Service; (d) in all cases, Customer shall, within thirty (30) days of such expiration or termination: (i) certify in writing to Motorq that all required deletions have been completed; and (ii) continue to apply information security protections to any Contracted Data or Confidential Information retained pursuant to a legal obligation until such data is deleted; and (e) the following sections shall survive expiration or termination of this Agreement: 2, 3, 4, 5 (to the extent amounts are unpaid), 6(e), 7, and 8 through 11.

7. Representations and Warranties.

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. Motorq warrants to Customer that it will provide access to the Motorq Service with respect to Active Vehicles while such data are accessible from such vehicles’ telematics device. The sole remedy for Motorq’s breach of the foregoing warranty shall be to (a) correct the condition causing such breach within the periods set forth in the SLA (defined below); or (b), if such condition cannot be corrected within the designated period, to refund a portion of the Subscription Fee allocable to such function prorated for the period Motorq is in breach. Except as provided in this Section 7, (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 its own experience, skill and judgment to evaluate the Motorq Service and has satisfied itself as to the suitability of the Motorq Service to meet its requirements. CUSTOMER FURTHER ACKNOWLEDGES THAT NO OEM MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, TO CUSTOMER WITH RESPECT TO ANY CONTRACTED DATA OR THE UNDERLYING OEM DATA SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF ACCURACY, COMPLETENESS, AVAILABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO OEM SHALL HAVE ANY LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO CONTRACTED DATA OR THE MOTORQ SERVICE. CUSTOMER ACKNOWLEDGES THAT CONTRACTED DATA IS TRANSMITTED VIA WIRELESS NETWORKS AND THAT WIRELESS TRANSMISSIONS ARE NOT GUARANTEED TO BE SECURE, CONTINUOUS, OR FREE FROM DELAY OR ERROR. NEITHER MOTORQ NOR ANY OEM NOR ANY UNDERLYING WIRELESS CARRIER IS LIABLE FOR ANY FAILURE, DELAY, OR INTERRUPTION IN THE WIRELESS TRANSMISSION OF CONTRACTED DATA. CONTRACTED DATA AND THE MOTORQ SERVICE ARE NOT DESIGNED FOR USE IN EMERGENCY SITUATIONS, AND CUSTOMER ACKNOWLEDGES THAT EMERGENCY SERVICES (INCLUDING 911 CALLS) MAY BE DELAYED OR UNAVAILABLE IN CONNECTION WITH ANY VEHICLE TELEMATICS SYSTEM.

8. Limitation of Liability.

WITH THE EXCEPTION OF LOSS, LIABILITY OR DAMAGE ARISING FROM A BREACH OF SECTIONS 1 (MOTORQ SERVICES RESTRICTIONS), 2 (INTELLECTUAL PROPERTY), 3 (CONSENTS), 4 (COMPLIANCE), 10 (CONFIDENTIAL INFORMATION) AND THE INDEMNITY OBLIGATIONS UNDER SECTION 9, 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. THE SOLE REMEDY FOR MOTORQ’S FAILURE TO RESPOND TO FUNCTIONALITY ISSUES WITHIN THE TIME LIMITS SET FORTH IN THE SLA (AS DEFINED IN SECTION 11(m)) SHALL BE LIMITED TO A REFUND OF AN ALLOCABLE PORTION OF THE SUBSCRIPTION FEE BASED UPON THE PARTICULAR FUNCTIONALITY THAT IS UNAVAILABLE, THE NUMBER OF VEHICLES INVOLVED AND THE TIME PERIOD OF SUCH UNAVAILABILITY.

9. Indemnification.

(a) Indemnification by Customer. Customer shall defend, indemnify, and hold harmless Motorq and its suppliers and licensors (and each of their respective employees, agents and directors) against any third party claim, suit, or proceeding, including Losses, to the extent arising out of: (i) Customer's breach of Section 3 (Consents) or Section 4 (Compliance); (ii) claims from Clients or Drivers; (iii) claims related to the Operational Data, including without limitation claims that the Operational Data infringes, violates, or misappropriates any third-party rights; (iv) Customer's use of Contracted Data outside the Permitted Use Cases specified in the applicable Order; or (v) Customer's breach of Section 1 (Motorq Services) or any OEM Terms. "Losses" means liabilities, damages and/or costs, such as but not limited to reasonable attorneys' fees, paid to unaffiliated third parties.
(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 4 (Compliance); 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) Indemnity Procedures. Each party’s indemnity obligations as set forth in this Section 9 will not extend to any claim, suit, or proceeding for which (i) the indemnified party fails to promptly notify the indemnifying party of the claim, (ii) 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 (iii) the indemnified party fails to promptly provide the indemnifying party reasonable cooperation in such defense or settlement.

10. Confidential Information.

(a) Confidentiality Obligations. 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 ("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 and all Motorq’s pricing and fee-related information shall be deemed Motorq’s Confidential Information. The terms of this Agreement shall be the Confidential Information of both Parties. The Receiving Party will hold in confidence and not use or disclose any Confidential Information except as expressly authorized herein.
(b) Exceptions. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) is or has become generally available to the public other than through a violation of this Section 10 by the Receiving Party; (ii) 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; (iii) is independently developed by employees or contractors of the Receiving Party who had no access to such information; or (iv) 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 10 by its employees, Clients (in the case of Customer), and contractors.
(c) Security Incidents. Without limiting each Party’s obligations under the Data Security Requirements incorporated pursuant to Section 4(a), in the event the Receiving Party suspects the loss of, or a Security Incident (defined below) involving the Disclosing Party's Confidential Information, the Receiving Party shall communicate relevant details of the Security Incident with the Disclosing Party within forty-eight (48) hours of discovery. A "Security Incident" means any unauthorized disclosure of, use of, or access to the Disclosing Party's Confidential Information. Customer shall not make any public statement, press release, regulatory notification, or other external disclosure regarding any Security Incident involving Contracted Data without Motorq's prior written consent, except to the extent required by applicable Law, in which case Customer shall provide Motorq with as much advance notice as legally permissible and shall cooperate with Motorq in coordinating the content and timing of any required disclosure. Customer shall cooperate fully with Motorq in the investigation and remediation of any Security Incident involving Contracted Data, including by preserving relevant evidence, providing access to affected systems (subject to reasonable limitations), and implementing Motorq's reasonable remediation recommendations.

11. General Terms.

(a) Governing Law. This Agreement is 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. Customer shall not use the name, logo, trademark, or trade dress of any OEM in any marketing, sales, or promotional materials without Motorq's prior written consent (which consent requires the applicable OEM's advance written approval). Customer shall not represent or imply that any OEM endorses, sponsors, or has certified Customer's products or services. Customer shall not issue any press release, make any public statement, or otherwise communicate publicly regarding its use of Contracted Data from any specific OEM, or regarding Motorq's relationship with any OEM, without Motorq's prior written consent.
(c) Use of Third-Party LLM Providers. Customer acknowledges and agrees that Motorq may engage third-party large language model ("LLM") providers to assist in the provision of the Motorq Service. Motorq shall contractually direct such third-party LLM providers not to use Contracted Data, Telematics Data, or Operational Data for the purpose of inference-time retention or LLM train. Motorq's use of any such third-party LLM provider shall not relieve Motorq of its obligations under this Agreement, including its obligations with respect to Confidential Information under Section 10 and Data Privacy under Section 4.
(d) 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 create the relationship of partners, joint ventures, principal-agent or employer-employee.
(e) 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 may 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.
(f) 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.
(g) 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.
(h) 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 shall be sent to the addresses set forth in the signature block at the end of this section, labeled “ATTN: Legal”.
(i) Assignment. Except as otherwise provided herein, neither Party shall assign or transfer, by operation of law or otherwise, any of 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, this Agreement may be transferred to an Affiliate (defined below) 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. An "Affiliate" means any person or company that 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. 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.
(j) 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.
(k) Force Majeure. Notwithstanding any other provision herein, except for payment of money, neither Party shall be liable for failure to fulfill 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.
(l) OEM Terms. Additional terms for specific OEMs are found at https://motorq.com/terms-oem-consent/. To the extent there are conflicts between the terms above and the OEM Terms, the OEM Terms shall prevail.
(m) Service Level Agreement: Additional details about Motorq’s Service Level Agreement (“SLA”) are found at https://motorq.com/service-level-agreement. The Customer agrees to be bound by the SLA, which may be modified from time to time.