Terms of Service
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”).
PLEASE READ THIS AGREEMENT CAREFULLY AND CONSULT WITH AN ATTORNEY AS NEEDED. THIS AGREEMENT DETAILS YOUR RIGHTS AND OBLIGATIONS RELATED TO THE PRODUCTS AND SERVICES MOTUS NOVA PROVIDES, INCLUDING LIMITATIONS ON YOUR RIGHT TO A JURY TRIAL AND OTHER LIMITATIONS ON RECOVERING DAMAGES IN A LAWSUIT.
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”).
- Subscription Services.
- 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 on the 1st day of the month.
- 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 30 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 30 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.
- Disclaimer of Warranties. THE MOTUS NOVUS 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.
- General Provisions.
- 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 (30) 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 AgreementDevice 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.
- Limited Warranty.
- 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 SoftwareSubject 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.
Limitations. 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.
Customer Responsibilities. 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 and Risk of Loss. 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. Customer shall bear all risk of loss, damage, destruction, theft, and condemnation to or of the Device Products from any cause whatsoever (“Loss”) until the Device has 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.
- Indemnification.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.