Terms and Conditions
These terms and conditions outline the rules and regulations for the use of Motus Nova’s Website.
Motus Nova is located at:
2960 Brandywine Rd STE 100
Atlanta, GA, US 30341
The following terminology applies to these Terms and Conditions, Privacy Statement and Disclaimer Notice and any or all Agreements: “Client”, “You” and “Your” refers to you, the person accessing this website and accepting the Company’s terms and conditions. “The Company”, “Ourselves”, “We”, “Our” and “Us”, refers to our Company. “Party”, “Parties”, or “Us”, refers to both the Client and ourselves, or either the Client or ourselves. All terms refer to the offer, acceptance and consideration of payment necessary to undertake the process of our assistance to the Client in the most appropriate manner, whether by formal meetings of a fixed duration, or any other means, for the express purpose of meeting the Client’s needs in respect of provision of the Company’s stated services/products, in accordance with and subject to, prevailing law of US. Any use of the above terminology or other words in the singular, plural,capitalization and/or he/she or they, are taken as interchangeable and therefore as referring to the same.
Effective Date: November 2018
- Sources of Information About You
- Our Use of Information
- Sharing of Information
- Updating Information
- Links to Other Web Sites
- Children’s Privacy
- Your California Privacy Rights
- Contact Information
Sources of Information About You
We obtain information about you from a variety of sources, including from you, your interaction with Motus and our Services, and third parties. Such information may include your name, credit card/payment information, age, income range, gender, ethnicity, marital status, education, whether you have any children, employment information, zip code, e-mail address, mailing address, and telephone number, among other personally identifiable and technical information.
Information you provide to us: If you use certain Services, you may be required to provide us certain information.
Information that you provide by filling in forms on our website. This includes information provided at the time of registering to use our Services, subscribing to our Services, posting material or requesting further services.
We may also ask you for information when you report a problem with our Services.
Records and copies of your correspondence (including e-mail addresses), if you contact us.
Your responses to surveys that we might ask you to complete.
Details of transactions you carry out through our Services and of the fulfillment of your orders.
Your search queries on our website or through our Services.
Information we collect from your use of the Services and other interactions you have with Motus:
We may collect your usage information about how you use the Services, including the times at which you access and use Services, your location, browser types and language, and Internet Protocol addresses.
The information we collect automatically is statistical data and historical trends and may or may not include personal information. It helps us to improve and to deliver better and more personalized Services, including, but not limited to, by enabling us to:
– Estimate usage size and patterns.
– Store information about your preferences, allowing us to customize our Services according to your individual interests.
– Speed up your searches.
– Recognize you when you return to our Services.
Our Use of Information
We use information about you to provide, maintain, personalize and improve our Services and to deliver the information and support your requests, including receipts, technical notices, security alerts, and support and administrative messages.
We may use information we collect to send you news and information about our Services and to communicate with you about products, services, contests, promotions, incentives, and rewards offered by us.
You may opt out of receiving promotional emails from Motus by following the instructions in those emails. If you opt out, we may still send you non-promotional communications, such as messages about the Services, your account or our ongoing business relations.
We may also use information about you (i) to track and analyze trends and usage in connection with our Services; (ii) to protect our rights or property; (iii) to compare information for accuracy; (iv) to verify your identity; (v) to investigate and prevent fraud or other illegal activities; and (vi) for any other purpose disclosed to you in connection with our Services.
Additionally, we use information that we collect about you or that you provide to us, including any personal information:
– To provide you with information, products or services that you request from us.
– To provide you with notices about your account/subscription, including expiration and renewal notices.
– To carry out our obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collection.
– To notify you about changes to our Services or any products or services we offer or provide though them.
– To fulfill any other purpose for which you provide it or any other purpose with your consent.
We may use third-party service providers, including, but not limited to, PayPal, Stripe and MailChimp, to process and store personal information in the United States and other countries.
Sharing of Information
We may share personal information about you as follows:
– With your consent or direction.
– To our subsidiaries and affiliates, such as NCHPAD (National Center on Health, Physical Activity, and Disability) and UAB (University of Alabama at Birmingham).
– To our advisors, contractors, service providers and other third parties we use to support our business and who are bound by contractual obligations to keep personal information confidential and use it only for the purposes for which we disclose it to them.
– To comply with any court order, law or legal process, including to respond to any government or regulatory request.
– To enforce or apply our subscription service and other agreements we may have with you, including for billing and collection purposes.
– If we believe disclosure is necessary or appropriate to protect the rights, property, or safety of Motus, our employees and customers or others. This includes exchanging information with other companies and organizations for the purposes of fraud protection.
– To a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution or other sale or transfer of some or all of Motus’ assets, whether as a going concern or as part of bankruptcy, liquidation or similar proceeding, in which personal information held by Motus about our users is among the assets transferred.
– To fulfill the purpose for which you provide it, such as providing you Services.
– With third parties that run advertising campaigns, contests, special offers, or other events or activities in connection with our Services.
– For any lawful purpose, provided that the information has first been de-identified such that it cannot be used to identify or contact you.
We may also share non-personally identifiable information (aggregated or otherwise) with third parties for any reason.
Photo/Video Consent and General Release
I hereby authorize Motus Nova LLC to use pictures of me (or my child/ward) taken in a photograph, digital image, videotape, motion picture, and/or testimonial (written words). The undersigned hereby releases Motus Nova LLC, its agents or employees, as well as any and all users and exhibitors of said pictures, from any and all claims, demands, accountings, and causes for which the aforesaid videotape, testimonial, motion picture, digital image, or photograph likeness may be used pursuant to this Consent and General Release. It is also my understanding that I will receive no compensation for my likeness or testimonial.
Permission to use content you create and share: Some content that you share or upload, such as photos or videos, may be protected by intellectual property laws.
You own the intellectual property rights (things like copyright or trademarks) in any such content that you create and share on social media or on Motus Nova devices you use. Nothing in these Terms takes away the rights you have to your own content. You are free to share your content with anyone else, wherever you want.
However, we need you to give us some legal permissions (known as a ‘license’) to use this content. This is solely for the purposes of providing and improving our Products and services.
Specifically, when you share, post, or upload content that is covered by intellectual property rights on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). This means, for example, that if you share a photo on Facebook, you give us permission to store, copy, and share it with others (again, consistent with your settings) such as service providers that support our service or other social media products you use.
When you delete content, it’s no longer visible to other users, however it may continue to exist elsewhere on our systems where:
- immediate deletion is not possible due to technical limitations (in which case, your content will be deleted within a maximum of 90 days from when you delete it);
- your content has been used by others in accordance with this license and they have not deleted it (in which case this license will continue to apply until that content is deleted); or
- where immediate deletion would restrict our ability to:
- investigate or identify illegal activity or violations of our terms and policies (for example, to identify or investigate misuse of our Products or systems);
- comply with a legal obligation, such as the preservation of evidence; or
- comply with a request of a judicial or administrative authority, law enforcement or a government agency;
in which case, the content will be retained for no longer than is necessary for the purposes for which it has been retained (the exact duration will vary on a case-by-case basis).
In each of the above cases, this license will continue until the content has been fully deleted.
Permission to use your name and information about your actions with ads and sponsored content: You give us permission to use your name and information about actions you have taken on social media next to or in connection with ads, offers, and other sponsored content that we display , without any compensation to you. For example, we may show other people that you have used Motus Nova devices or provided testimony about Motus Nova devices.
Updating or Deleting Information
You may update, correct or delete information about yourself in our possession by emailing us at data@motusnova.
Links to Other Web Sites; Third Party Applications
The Children’s Online Privacy Protection Act was created to protect children under the age of 13 from unsuspecting acts or practices in conjunction with collecting, using, and disclosing any information about them. Our Services are not intended for anyone under the age of 13. If you are under 13, do not use or provide any information on or through our Services. If we learn we have collected or received personal information from a child under 13 without verification of parental consent, we will delete that information. If you are a parent or guardian or otherwise believe we might have any information from or about a child under 13, please contact us so that we can delete the child’s information. The Services will never knowingly accept, collect, maintain or use any information from a child under the age of 13. If a child whom we know to be under the age of 13 sends personal information to us online, we will only use that information to respond directly to that child or notify parents.
We implement a number of safeguards designed to maintain the security of your personal information using various physical, electronic, and managerial procedures. The safety and security of your personal information, however, also depends on you. Where we have given you (or where you have chosen) a password for access to certain parts of our Services, you are responsible for keeping this password confidential. We ask you not to share your password with anyone. Unfortunately, the storage and transmission of information over the internet is never completely secure. Although we do our best to protect your personal information, we cannot guarantee the security of your personal information transmitted to or through our Services. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on or within the Services.
“Do Not Track” Disclosures
Your California Privacy Rights
California Civil Code Section § 1798.83 permits users of our services that are California residents to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes. To make such a request, please send an email to email@example.com.
Please contact us with any questions or concerns regarding our policy at this address:
Attn: Motus Nova
Subscription Services Agreement
This Subscription Services Agreement (“Agreement”) is made and entered into as of the earlier of the date you begin using the Subscription Services or accept this Agreement (“Effective Date”) and is by and between you individually (“Customer”) and Motus Nova, LLC, a Georgia corporation (“Motus Nova”).
Motus Nova and Customer hereby agree as follows:
Background. Motus Nova has developed a Device (defined below) and certain computer software used in connection with the Device. Motus Nova offers the Device and the functionality of such computer software to persons as a service, as more particularly identified on the Order (“Subscription Services”). The terms and conditions related to the use of the Device and the software contained on the Device are set forth in this Agreement, together with the terms and conditions of Exhibit A and the order (the Order”).
License. Subject to Customer’s compliance with the terms and conditions of this Agreement and any additional limitations set forth on the Order, Motus Nova grants to Customer, and Customer accepts, a non-exclusive, limited, non-assignable, non-transferable right and license to access the functionality of the Subscription Services over the internet or in connection with Customer’s use of the Device solely for Customer’s use in Customer’s internal operations.
Limitations. All rights not expressly granted in this Agreement are reserved to Motus Nova. No rights are granted by implication. Without limiting the foregoing, Customer has no rights to (i) possess copies of the Subscription Software, (ii) transfer, rent, assign, lease, or otherwise use the Subscription Software in any time-sharing or service bureau arrangement, (iii) decompile, reverse assemble, or otherwise reverse engineer any of the Motus Nova Properties, (iv) circumvent any technological measures that control access to or use of the Deliverables, or (v) copy, distribute, sublicense, or modify the Deliverables.
Device Terms. The parties agree to the terms set forth on the Order with respect to the Devices. Customer must have the required Devices to be able to use the Subscription Services. Fees. Customer shall pay Motus Nova the fees set forth in the Order. Each monthly payment shall be due every subsequent month on the monthly corresponding day beginning on the initial order billing date.
Term. The term of this Agreement will commence on the Effective Date and continue until terminated by the parties as set forth herein (the “Term”). Either party may terminate this agreement for cause if the other party materially breaches this Agreement and fails to cure such breach within 10 days after receiving written notice specifying such material breach from the non-breaching party. Customer may, without penalty, terminate this Agreement for any reason or no reason only if Customer provides Motus Nova with written notice of such a termination within 10 days of the Effective Date, and Motus Nova will thereafter refund all amounts previously paid to Motus Nova pursuant to this Agreement. Upon any termination of this Agreement, for any reason, all rights and obligations of the parties hereunder and all Services and Subscription Services shall cease, except as follows:
Customer shall deliver to Motus Nova, at Customer’s expense, all originals and copies of the documentation of the Subscription Services and of the Confidential Information of Motus Nova in the possession or under the control of the Customer. Customer shall certify in writing to Motus Nova within ten days following termination that it has complied with this Section 5.1.
Customer shall deliver to Motus Nova, at Customer’s expense, any and all Devices provided to Customer or otherwise in Customer’s possession regardless of the condition of the Device, including, but not limited to, any broken or malfunctioning Devices.
“Content” means any and all information and data provided or updated by the customer from Effective Date until the termination of this Agreement. Content includes any personally identifying information of any sort.
All unpaid fees accrued prior to the date of termination, if any, shall remain in full force and effect. Sections 2.1, 3 (for accrued but unpaid fees), 5, 6, 8, 9, 10, and 10.4 and Sections 4.2, 4.3, 6, 9, and 11 of Exhibit B shall survive any termination or expiration of this Agreement.
Confidentiality. By virtue of this Agreement, the parties may be exposed to or provided with certain Confidential Information of the other party. Each party will protect the other’s Confidential Information from unauthorized dissemination and use with the same degree of care that each such party uses to protect its own Confidential Information, but in no event less than a reasonable amount of care. Except as required by law, neither party will use the other’s Confidential Information for purposes other than those necessary to further the purposes of this Agreement. Except as otherwise expressly set forth in this Agreement, neither party will disclose to third parties the other’s Confidential Information without prior written consent of the other party. “Confidential Information” means any information, including any trade secrets, of a party and its affiliates, and their personnel, suppliers, or customers that is both (i) of value to its owner and is treated as confidential and (ii) either identified as confidential or proprietary or that, based on the circumstances of the disclosure or the nature of the information, a reasonable person would understand that such information should be treated as confidential. Confidential Information shall not include information that the receiving party is ordered by an administrative agency or other governmental body of competent jurisdiction to disclose. Confidential Information shall not include information that (A) was already known to the receiving party, without obligations to keep such information confidential, at the time of receiving party’s receipt from the disclosing party, (B) was received by the receiving party in good faith from a third party lawfully in possession thereof and having no obligation to keep such information confidential; (C) was publicly known at the time of the receiving party receipt from the disclosing party or has become publicly known other than by a breach of this Agreement; or (D) the information was independently developed without reference to the Confidential Information.
Technology. Customer must have a functioning Device to be able use and enjoy the Subscription Services and must have acquired certain other equipment, software, and electrical and Internet access to be able to use both the Device and Subscription Services. Acquiring, installing, maintaining and operating equipment, any Customer software, and Internet access and power sources is solely Customer’s responsibility.
Proprietary Rights. Motus Nova and its suppliers retain sole and exclusive ownership of their respective Confidential Information, the Services, Subscription Services (including all underlying software thereto), the Device, Device Software and all intellectual property rights in, to, or embodied in or associated with the any of the foregoing, and all copies and modifications thereof, whether developed by Motus Nova, Customer, or a third party (collectively, the “Motus Nova Properties”). Notwithstanding anything to the contrary, any suggestions, feedback or ideas provided by Customer to Motus Nova may be freely used by Motus Nova without limitation, and any modification to the Motus Nova Properties resulting from such suggestions, ideas or feedback shall be exclusively owned by Motus Nova.
Discounts and Promotions. The eligibility criteria for any discounts and/or promotions are determined by multiple factors. There is a minium deposit required for all programs. Programs are available to new and existing customers. You are only eligible for the 30 day challenge and 10 day trial once, such that you cannot cancel your subscription and get the 30 hour challenge or 10 day trial again. As an existing customer to be eligible for Motus Cares you must show you are committed to using the Motus Hand and are not able to continue financially affording services from Motus Nova at the existing cost.To receive 3 months free as a part of the Motus Cares program you must also complete both the Longitudinal and MENTOR questionnaires from nchpad.edu. The minium deposit for all programs is $399 unless otherwise approved for less. If you do not complete the 2 questionnaires within 7 days of providing your deposit, your application for Motus Cares will be cancelled, and your deposit will be refunded. At the end of the 3 months for being a part of the Motus Cares program, your payment will be changed back to the normal $399/mo, so you must return before then to avoid any additional charges. Once you have returned your Motus product, your deposit will be refunded in full.
Disclaimer of Warranties. THE MOTUS NOVA PROPERTIES ARE PROVIDED TO CUSTOMER “AS IS”. NEITHER MOTUS NOVA NOR ITS LICENSORS MAKES ANY EXPRESS OR IMPLIED WARRANTY, REPRESENTATION, CONDITION, OR AGREEMENT WITH RESPECT TO THE MOTUS NOVA PROPERTIES. MOTUS NOVA AND ITS LICENSORS EXPRESSLY DISCLAIM AND EXCLUDE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM USAGE, CONDUCT, OR COURSE OF DEALING OR TRADE. MOTUS NOVA DOES NOT REPRESENT THAT THE USE OR OPERATION OF THE MOTUS NOVA PROPERTIES BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED. MOTUS NOVA EXPRESSLY DOES NOT REPRESENT OR WARRANT THAT THE USE OR OPERATION OF THE MOTUS NOVA PROPERTIES WILL ACHIEVE ANY PARTICULAR OUTCOME OR MEET CUSTOMER REQUIREMENTS OR OBJECTIVES. CUSTOMER ACKNOWLEDGES THAT IT MUST HAVE A FUNCTIONING DEVICE TO BE ABLE TO USE AND RECEIVE THE SUBSCRIPTION SERVICES.
Limitation of Liability, Remedy.
Limitation of Remedy. EXCEPT TO THE EXTENT PROHIBITED BY LAW OR FOR CLAIMS ARISING FROM A BREACH OF SECTION 6, MOTUS NOVA, ITS LICENSORS, AND OTHER SUPPLIERS SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES OR LIABILITIES FOR ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR BY WAY OF INDEMNITY OR OTHERWISE, INCLUDING A BREACH THEREOF OR INCLUDING WITHOUT LIMITATION, DAMAGES OR LIABILITIES FOR LOST PROFIT, LOST REVENUE, LOSS OF USE, LOSS OF GOODWILL, LOSS OF REPUTATION, LOSS OF DATA, COSTS OF RECREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT, PROGRAM, OR CONTENT, OR CLAIMS BY ANY THIRD PARTY REGARDLESS OF WHETHER SUCH DAMAGES OR LIABILITIES HAVE BEEN COMMUNICATED TO MOTUS NOVA AND REGARDLESS OF WHETHER MOTUS NOVA HAS OR GAINS KNOWLEDGE OF THE EXISTENCE OF SUCH DAMAGES OR LIABILITIES.
Limitation of Liability. EXCEPT TO THE EXTENT PROHIBITED BY LAW OR FOR CLAIMS ARISING UNDER SECTION 6, THE CUMULATIVE, AGGREGATE LIABILITY (INCLUDING ATTORNEYS FEES AWARDED UNDER THIS AGREEMENT) OF MOTUS NOVA, ITS LICENSORS, AND OTHER SUPPLIERS TO CUSTOMER OR ANY THIRD PARTY, FOR ALL CLAIMS, LIABILITIES AND DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED ONE THOUSAND DOLLARS ($1,000.00).
Indemnification. Customer hereby indemnifies and holds harmless Motus Nova, their employees, officers, board members, agents, successors and assigns (“Indemnitees”) from and against all claims, suits, liabilities, damages, costs, fees (including, without limitation, attorneys’ fees), expenses or losses arising out of or resulting from Customer’s possession, use or operation of the Subscription Services, Device or Device Software, including, but not limited to, those related to personal injury or death and any third-party claims against Indemnitees arising from or related to Customer’s acts or omissions, negligence or misconduct, Customer’s improper or intentional misuse of any of the Device, any claims by third parties for malpractice, any and all claims by third parties based on patient satisfaction.
Acknowledgement. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MOTUS NOVA TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN SECTIONS 9 AND 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT. SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE MOTUS NOVA’S LIABILITY TO CUSTOMER SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
Injunctive Relief. The parties agree that if Section 6 or any Section of the Agreement involving license or proprietary rights are breached, the non-breaching party will suffer immediate and irreparable damage that will not be adequately compensated by money damages alone, and therefore, either party, in addition to any other legal or equitable remedies, shall be entitled to seek an injunction or similar equitable relief against such breach or threatened breach, without providing a bond.
Governing Law and Language. The validity, construction, and performance of the Agreement and the legal relations among the parties to the Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, U.S.A., excluding that body of law applicable to choice of law. The United Nations Convention on Contracts for the Sale of Goods shall not apply to the Agreement.
Waiver. A waiver by either party of any covenant or breach shall not be construed to be a waiver of any succeeding breach or any breach of any other covenant.
Severability. If any provision in this Agreement is invalid or unenforceable, that provision shall be construed, limited, modified, or severed to the extent necessary to eliminate its invalidity or unenforceability, and the other provisions of this Agreement shall remain in full force and effect.
Assignment. This Agreement and the rights and obligations hereunder, may not be assigned in whole or in part by Customer without the prior written consent of Motus Nova. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators, and assigns of the parties hereto. Any attempt assignment without such consent shall be null and void and of no force and effect.
Export. Customer acknowledges that one or more of the Motus Nova Properties are subject to export controls under the laws and regulations of the United States (“Export Laws”), including all provisions regarding the export, re-export, and deemed export of the Subscription Services and any prohibitions on use of the Subscription Services or Device by certain designated individuals and entities. Customer will comply strictly with all Export Laws and will not export or disclose the Motus Nova Properties to any destination or individual national or resident prohibited by any Export Laws.
Notices. Any notice or communication from one party to the other shall be in writing and either personally delivered or sent via email or nationally recognized overnight service, or certified mail, postage prepaid and return receipt requested, addressed to the attention of Legal at the address of the other party as specified in the first paragraph of the Signature Page of this Agreement or at such other address as such party may from time to time designate in a notice to the other party.
Entire Agreement. All Exhibits attached to this Agreement and Orders are incorporated herein wherever referenced. This Agreement represents the entire understanding of the parties concerning the subject matter hereof and supersedes all prior communications and agreements, whether oral or written, relating to the subject matter of this Agreement.
Compliance with Healthcare Laws. The parties acknowledge and agree that it is their intent to comply with all state, federal, and any other Healthcare Laws. Accordingly, the parties shall at all times comply with all state, federal and other healthcare laws and regulations, including but not limited to the Stark Law and its related regulations, the Anti-Kickback Statute and its related regulations, and HIPAA. The parties represent and warrant that no payment has been or will be made or received by either party in return for the referral of patients or in return for the purchasing, leasing or ordering, or arranging for or recommending the purchasing, leasing or ordering of any good, service, item, or product for which payment could be made in whole or in part under a federal or state healthcare program. The parties represent that all payments hereunder are fair market value.
Renegotiation. In the event of any change in any federal or state law or regulation or a change in the interpretation thereof following the Effective Date that would render this Agreement or any part of this Agreement illegal, as determined by counsel to either party, then upon the written request of either of the parties hereto, the parties shall immediately commence negotiations to modify this Agreement to comply with then current law. If the parties are unable to renegotiate this Agreement to comply with the then current law within thirty (10) days of receipt of written notice by one party to the other, then the party which gave written notice may immediately terminate this Agreement upon written notice to the other party.
Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, ORDERS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, ORDERS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Exhibit A: Device Terms
Definitions. Capitalized terms not defined in this Exhibit have their same meaning as set forth elsewhere in the Agreement Device Service. As part of the Subscription Services, Motus Nova provides Customer the Device to be used during the Term of the Agreement. Customer’s right to use the Device shall terminate upon the expiration or termination of use of the Subscription Services.
Operation. Customer shall not remove the Device from Customer’s address specified on the signature page above without prior written approval of Motus Nova. Customer shall allow Motus Nova to enter Customer’s premises at all reasonable times to locate and inspect the state and condition of the Device. Customer shall at its expense keep and maintain the Device in a good state of repair, normal wear and tear excepted, and shall use the Device only for its intended purpose and follow Motus Nova’s instructions regarding the use and maintenance of the Device.
Replacement. Motus Nova shall replace the Device with identical or similar Device if the Device fails to operate in accordance with the manufacturer’s specifications and operation instructions. Such replacement shall be made as soon as practicable after Customer returns the non-conforming Device. Customer shall return all non-conforming Device at its expense and risk of loss to Motus Nova to the destination specified by Motus Nova. Products manufactured by a third party (“Third-Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Device. Third-Party Products are not covered by the above limited warranty.
Exceptions. The limited warranty above does not apply where the Device has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Motus Nova, or used with any Third-Party Product, hardware, software, or product that has not been previously approved in writing by Motus Nova.
Disclaimer. OTHER THAN AS SET FORTH ABOVE, MOTUS NOVA MAKES NO WARRANTY WHATSOEVER, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INTERFERENCE; OR (d) WARRANTY AGAINST INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. THE REMEDIES SET FORTH IN THIS SECTION 4 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND MOTUS NOVA’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
License to Device Software
Subject to the terms and conditions of this Agreement, Motus Nova grants to Customer, solely for the benefit of Customer, and Customer accepts, the following non-exclusive, non-assignable, non-transferable, non-sublicensable, and Term-limited rights and licenses: (a) to use one copy of the Device Software on each Device; (b) to access and use the functionality of the Device Software and Subscription Services in connection with Customer’s use of the Device; and (c) to access and use the documentation of the Device Software solely in furtherance of the use of the Device Software. “Device Software” means the software included within the Device for the purposes of supporting and interacting with the Device and Subscription Services. “Device Product” means the Device and the Device Software.
The rights and licenses granted under this Agreement are further limited by and conditioned on the requirements set forth below.
The Device Software shall only be accessed or used by Customer and solely for the internal use and benefit of Customer in accordance with the documentation.
Customer shall not transfer, rent, donate, assign, lease, or otherwise use the Device Software in any time-sharing or service bureau arrangement.
Customer shall not copy, reproduce, distribute, sublicense, create derivative works of, or otherwise modify or commercially exploit the Device Software.
Customer shall not alter or remove any printed or on-screen copyright, trademark, patent, proprietary, or other legal notice contained on or in any Device Software, documentation, or copies thereof.
All rights not expressly granted in this Agreement are reserved to Motus Nova. No rights are granted by implication.
Except as required by applicable law, Customer shall not decompile, reverse assemble, or otherwise reverse engineer the Device Software, including use of any similar means to discover the source code of the Device Software, to discover the Confidential Information therein, or to otherwise circumvent any technological measures that control access to or use of the Device Software.
In addition to any other obligations of Customer, unless otherwise expressly stated in this Exhibit B, Customer is responsible for the following, at Customer’s sole expense:
- Customer shall provide a suitable environment for the operation and use of the Device Products.
- Customer shall provide access to Customer’s internal network systems (as needed) and access to the Internet.
- Customer shall use the Device Products with due care to prevent injury thereto, and to any person or property, and in conformity with all applicable laws, ordinances, rules, regulations and other requirements of any insurer or governmental body and with all requirements of the manufacturer with respect to the use, maintenance and operation of the Device Products.
- Customer shall not modify any Device Products without the prior written consent of Motus Nova, which may be granted or withheld in its sole discretion.
- Customer shall install any new versions, upgrades, error corrections, or other modifications to the Device Software as provided by Motus Nova from time to time.
Title to the Device Products remains with Motus Nova throughout the Term, and Customer shall acquire no right, title, or interest in the Device Products. Customer shall not pledge or encumber the Device Products in any way.
Risk of Loss.
In the event of any loss, damage, destruction, theft, and condemnation (“Loss”), regardless of fault, Customer shall bear all risk of Loss, to the Device Products extending to the full list value of the Device Products at the time of subscription, plus expenses for shipping, storage fees, an administrative fee and a reasonable charge for loss of use until the Device Products have been returned to Motus Nova to the destination specified herein. Customer shall notify Motus Nova in writing within 10 days of any such Loss.
Return of Device.
Obligation to Return Device. Customer shall, at its risk and expense, within fourteen (14) calendar days of the expiration or termination of the Term (a) deinstall, inspect, and properly pack the Device; and (b) return the Device, freight prepaid, to Motus Nova’s facility set out on the first page of this Agreement by delivering the Device on board such carrier as Motus Nova may specify.
Condition of Device Upon Return.
Customer shall cause the Device returned for any reason under this Agreement to (a) be free and clear of all liens (other than liens of Motus Nova) and rights of third parties; (b) be in the same condition as when delivered to Customer, ordinary wear and tear excepted; (c) have all Customer’s insignia or markings removed or painted over and the areas where such markings were removed or painted over refurbished as necessary to blend with adjacent areas; and (d) be in compliance with applicable law.
Compliance with Law.
Customer shall (a) comply with all applicable laws, regulations, and ordinances and (b) maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
Customer shall indemnify, defend, and hold harmless Motus Nova and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or, expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by Indemnified Party, relating to/arising out of or resulting from any claim of a third party arising out of or occurring in connection with the Device Products or Customer’s negligence, willful misconduct, or breach of this Agreement. Customer shall not enter into any settlement without Motus Nova’s or Indemnified Party’s prior written consent.
- Ground shipping for $39 on all orders within the continental US.
- Estimated time of delivery is approximately 2 weeks from sign up date.
- We typically use UPS but shipping vendor is subject to change.
- Additional rates will apply for expedited shipping. Motus Nova will cover up to $39 in shipping costs and the balance will need to be paid by the customer.
- Expedited shipping may not be available for all customers.
- We process and deliver orders Monday-Friday (excluding holidays). Saturday and/or Sunday deliveries may be available for some orders.
- We use a variety of shipping carriers to make sure we deliver your order as soon as possible.
- If you order multiple items, you may get multiple deliveries. We’ll send you a shipping confirmation email for each shipment, so you’ll know exactly what to expect and when to expect it.
- The estimated delivery date in checkout is based on your delivery address and the shipping option you’ve selected.
- We do not offer international shipping and are unable to ship to US territories, PO boxes, re-shippers, or package forwarding services.
- Customer shall, at its risk and expense, within fourteen (14) calendar days of the expiration or termination of the Term (a) deinstall, inspect, and properly pack the Device; and (b) return the Device, freight prepaid, to Motus Nova’s facility.
- All return expenses must be covered by the customer. The customer has the option of paying Motus Nova for a prepaid shipping label or can use a vendor of their own choosing.