This Subscription Agreement (“Agreement”) between Mobility Route, Inc. (“Mobility Route” “Provider” “We” “Us”), and you and the legal business or organization you represent (the “Customer” “You” “Your”), and for which these services are intended, both personally and in your capacity with your company/organization, relating to the Customer’s use of the Services defined herein. Please read this Agreement carefully. Your use of the Services is expressly conditioned on your acceptance of this Agreement.
THE CUSTOMER AGREES TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT AND THE CUSTOMER IS PERMITTED TO PROCEED TO ACCESS THE SERVICES. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, PROVIDER IS UNWILLING TO GRANT CUSTOMER ANY RIGHTS TO USE THE SERVICES, AND CUSTOMER MUST STOP USING AND ACCESSING THE SERVICES.
This Agreement sets forth the terms under which Mobility Route will provide Customer with access to and use of a certain proprietary web based software-as-a-service offering called “Mobility Route.” The Mobility Route platform is a cloud-based dispatch, scheduling, billing, and management software platform designed for non-emergency medical transportation (NEMT) provider companies (the “Services”).
“Electronic Communications” means any information transmitted in whole or part, electronically received and/or transmitted through the Services.
“Equipment”means that Customer shall be responsible for the cost of, and for providing, its own devices to access the Services.
“Patient” or “Medical Patient” means any individual whose protected health information (PHI) is uploaded by Customer or the patient to the Services which such personal information is protected by HIPAA.
“Statement of Work Order Form” shall mean the Order Form and mutually agreed upon Statement of Work (a “Statement of Work”) to create any derivative versions (“Deliverables”) of the Services. When both Mobility Route and Customer have executed an Order Form, that Order Form becomes effective, and a part of this Agreement, as of the effective date set forth therein (the “Order Effective Date”).
“Sites” means the Mobility Route websites.
“Term” has the meaning set forth in Section 10.1 below.
“Third Party Integrated Services” means applications or services that are provided and managed by third party providers, and interoperate with the Services including but not limited to any third party that enables the Services to act as a conduit to send Customer Data or any type of information to the intended party.
- Limited Rights; Ownership
2.1 Mobility Route grants to Customer and Customer accepts from Mobility Route, a limited, revocable, non-exclusive, non-transferable right to access and use and permit Administrative Users and Authorized Users to access and use the Services solely for the internal business operations of Customer during the Term. The Services shall not be used by Customer or by Authorized Users for, or on behalf of, third parties that are not authorized under this Agreement. Customer shall use its best efforts to ensure that the Authorized Users use the Services in accordance with the terms and conditions of this Agreement. Customer acknowledges that its right to use the Services will be conditioned upon: (i) Customer’s payment of the Fees associated with using the Services; and (ii) the Services being web-based only and will not be installed on any servers owned or controlled by Customer or otherwise provided to Customer without Mobility Route’s consent. Nothing in this Agreement shall be deemed or construed to limit, in any way, Mobility Route’s rights to use or license the Software to others, in any manner or for any purposes during the term of this Agreement.The Services shall not be used by Customer or by Authorized Users for, or on behalf of, third parties that are not authorized under this Agreement. Customer shall use its best efforts to ensure that the Authorized Users use the Services in accordance with the terms and conditions of this Agreement. Customer acknowledges that its right to use the Services will be conditioned upon: (i) Customer’s payment of the Fees associated with using the Services; and (ii) the Services being web-based only and will not be installed on any servers owned or controlled by Customer or otherwise provided to Customer without Mobility Route’s consent. Nothing in this Agreement shall be deemed or construed to limit, in any way, Mobility Route’s rights to use or license the Software to others, in any manner or for any purposes during the term of this Agreement.Each Party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is requlired in connection with such Party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.You warrant that (i) You have the legal right and ability to enter into this Agreement, (ii) You have all necessary rights, licenses, consents and permissions to use Your Data with the Services, (iii) Your billing information is correct, (iv) You are not a competitor of Us, or someone acting on behalf of a competitor, and (v) Your use of the Services will not violate or breach any applicable laws, regulations or agreements or unreasonably interfere with Our other customers’ use of Our services. You further warrant that you understand that all laws applicable to this Agreement, including those governing data and privacy, may change on a regular basis and vary by jurisdiction, and You are solely responsible for compliance with any and all applicable laws and regulations.You and any Users cannot exceed the number of Users for which You have contracted for. You may reassign licenses to new Users only for the purpose of replacing terminated Users.You agree not to take any action(s) inconsistent with Our ownership interests. Any and all suggestions, ideas, enhancement requests, feedback, recommendations or other similar information provided by You (the “Suggestions”), as well as all improvements, updates, modifications or enhancements, whether made, created or developed by Us or otherwise relating to the Services (the “Revisions”), are and will remain Our property. No Suggestions or Revisions provided by You shall be construed to grant You any rights or licenses in and to Our Intellectual Property Rights or such Suggestions and Revisions. All Suggestions and Revisions shall become Our sole and exclusive property and We reserve the right to use the Suggestions and Revisions in or for any manner or purpose whatsoever.Intellectual Property Infringement. If We or any of Our customers are faced with a claim that the Services infringe on the Intellectual Property Rights of a third party, and using commercially reasonable standards, We are unable to obtain the right to use the infringing element on commercially reasonable terms or modify the Services such that they do not infringe on such third party’s rights, then We may terminate the Services on reasonable advance notice to You, not to be less than ninety (90) days. You acknowledge that You are only entitled to a refund of any amounts paid to Us by You for Services not provided as of the date of such termination.
2.2 Authorized Users: Passwords, Access, and Notification. Customer, through its Administrator, shall authorize access to for all employees authorized to access the Services. Authorized User logins are for designated Authorized Users and cannot be shared or used by more than one Authorized User. Customer will be responsible for the confidentiality and use of Authorized User’s password, but shall itself not store or require the Authorized User to provide their own password to You or anyone else in accordance with HIPAA. Mobility Route will act as though any Electronic Communications it receives under Customer’s passwords, user name, and/or account number will have been sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services and shall promptly notify Mobility Route of any unauthorized access or use of the Services and any loss or theft or unauthorized use of any Authorized User’s password or name and/or Services account numbers.
2.6 Hosting Center Facilities. The hosting center facilities supporting the Services, all related Applications and the Third Party Integrated Services where applicable and delivered by Mobility Route for usage by the Customer shall be provided for and managed by a third party (the “Third Party Services”) not a party to this Agreement. Mobility Route shall not be liable in respect of any breach or error in delivery, loss, damage or interruption to the Services, or Third Party Integrated Services during the Term of this Agreement caused by the third party. Customer shall immediately notify Mobility Route, in writing of any such error, loss, breach, damage or interruption. Mobility Route shall not be liable for any loss, damage or expense whatsoever and howsoever arising from any breach or error, loss, damage, defect or interruption to the Services caused by the third party Services.
2.7 Security. Each party will use commercially reasonable measures to maintain and enforce physical and logical security procedures to prevent unauthorized access to and/or use of the Services and the Customer Data. Mobility Route will use commercially reasonable measures to secure and defend the Services against “hackers” and others who may seek to modify or access the Services or the Customer Data without authorization. Mobility Route will use commercially reasonable efforts to remedy any breach of security or unauthorized access. Mobility Route shall not be responsible or liable for the disclosure of or unauthorized access to Customer Data caused by Customer, its Authorized Users, Customer’s affiliates, or the employees, third parties, agents or contractors of any of the foregoing. Customer is responsible for protecting the confidentiality and security of its account access credentials (including passwords and devices used for two-factor authentication purposes) used by Customer and its Authorized Users to access the Services. Customer will use commercially reasonable efforts to prevent unauthorized use of the Services. If Customer becomes aware of any unauthorized use of the Services or access to Customer’s accounts, Customer will terminate such use (if practicable) and promptly notify Mobility Route.
2.8 Sharing Services with Non-Parties. Under no circumstances are you permitted to allow any access to the services provided to you to any other business entity or their employees/agents, or individuals who are not employees of your organization, without the express written permission from our Chief Executive Officer or General Counsel (or outside counsel). This includes, but is not limited to, companies or individuals which provide administrative billing or dispatch/scheduling services, software solution providers designed for use by NEMT operations, or any agency involved in the development of software solutions.
This also applies to the use of contractors under 1099, as they are legally considered another entity outside of your company, and could be subject to requirements under HIPAA/HITECH for both you and us as it pertains to a required Business Associate Agreement. If you use or wish to use any such services then proper arrangements and review are required to as to ensure our respective compliance requirements under HIPAA/HITECH.
VIOLATION OF THIS PROVISION SHALL CONSTITUTE A MATERIAL BREACH OF THIS AGREEMENT AND SUBJECT YOU TO A SERVICE VIOLATION FEE OR TO LIQUIDATED DAMAGES OF NO LESS THAN $2,500, OR NO LESS THAN $5,000 IF THE VIOLATION INVOLVED WILLFUL NEGLIGENCE, IN ADDITION TO ACTUAL DAMAGES, ATTORNEY AND COURT COSTS, ETC.
2.9 Transmission of Data. The Services allows Customer to send and receive Electronic Communications and Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use the Services. Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Mobility Route. Mobility Route is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data across networks not owned and/or operated by Mobility Route, including but not limited to, the Internet and Customer’s local network.
2.9 (a) Compliance with Laws. Mobility Route will comply with all applicable laws and regulations affecting the operation of Mobility Route’s business, including any applicable export restrictions and data protection laws. Customer will be solely responsible: (i) for compliance by Customer with all laws and governmental regulations affecting Customer’s business, (ii) for using the Services in a manner to assist it in complying with same, and (iii) the content and accuracy of all reports and documents prepared in whole or in part by using the Services. Customer will review any calculations made by using the Services and satisfy itself that those calculations are correct. The Services is not a substitute for the advice of an attorney and does not include any legal, regulatory, accounting or tax advice and Customer and its affiliates will rely solely upon their own advisors with respect to any such advice.Customer agrees and acknowledges that Mobility Route is not a law firm, does not provide legal advice or representation, and that no attorney-Customer relationship exists or will be formed between Mobility Route and Customer.
2.9 (b) HIPAA/HITECH COMPLIANCE. You hereby agree to fully comply with all provisions of the Health Insurance Portability and Accountability Act (“HIPAA”) as outlined in the applicable sections of US 45 CFR Subparts 160 and 164. You acknowledge that you have sole responsibility to determine any obligations you have under HIPAA, including any potential need to execute a Business Associate Agreement with us. You agree that willful violations under HIPAA constitute a material breach of these Terms.
2.10 Service Level Agreement (the “SLA”). We warrant 99.9% uptime for the Services and components specific to and wholly controlled by Us, excluding scheduled maintenance or upgrade time, based on a rolling 180-day history period. From time to time, We may upgrade the Services infrastructure, which may require marginal downtime of the Services. We will notify Your registered administrative user by email, a minimum of seven (3) days in advance of scheduled maintenance. Support parameters specific to the Services covered in this Agreement are as follows:
We do not provide phone-initiated support. The SLA does not provide any guarantee related to phone support;
Customers must initiate support via the Help Desk which requires logging into the Mobility Route platform. Support is also distinguished from our billing team which can additionally be contacted via the helpdesk or by email to firstname.lastname@example.org. All communication and help related to billing & payment matters shall be in writing via help tickets/emails and is not handled by phone communication.
Service Requests. In support of the Services outlined in this Agreement, service requests are typically initially responded to within three (3) business days, but the specific response and resolution times may vary based on the issues, severity, priority based on other existing support tickets, and customer need, all of which are at Mobility Route’s sole discretion.
2.11 Maintenance and Support for Services. Mobility Route will provide Maintenance and Support for the Services. Customer shall seek support with questions it might have through the Services via the Mobile Route Portal. Any information that is transmitted via the portal to Customer that is considered electronic protected health information (ePHI) Customer shall comply with HIPAA when viewing all such information. Also, Customer understands and agrees that any documents, images, explanation about the Mobility Route platform, code, formatting or business processes, i.e., the manner in which Mobility Route conducts its business (Mobility Route Property”) contained in any documents in the portal or through calls/discussions Customer has with any employee and/or agent of Mobile Route are deemed to be confidential information pursuant to Paragraph 4.1 and are all owned exclusively by Mobility Route. Customer shall also be prohibited from making copies, printing, or downloading all such Mobility Route Property from the portal at any time. This includes Customer being prohibited from taking any pictures or videos of all such Mobility Route Property. And, Customer shall also be prohibited from disclosing any Mobility Route Property to any third parties.
2.12 Implementation Services. Implementation and training services will be performed in accordance with Mobility Route’s customary practices for the level of services purchased. Implementation is performed remotely unless otherwise specified.
2.13 Upgrades. Any upgrades or additional services and customization not set forth in this Agreement to the Services required by Customer will be the subject of a separate agreement and charged as consulting hours at the current prevailing rate.
3.1 “Customer Content” shall mean any materials uploaded by Customer, its Authorized users onto the Services or by a third party on Customer’s behalf at any time, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text. Customer assumes sole responsibility for ensuring that the Customer Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, Mobility Route reserves the right, in its sole discretion, to exclude or remove from the Services any Content uploaded by Customer which, in Mobility Route’s sole reasonable discretion, may violate any law or third party rights or which otherwise exposes or potentially exposes Mobility Route to civil or criminal liability or public ridicule.
3.2 Customer, its authorized users or third parties on its behalf shall not place nor cause to be placed on the Services any Content that contains any content or materials which is obscene, threatening, malicious, which infringe on or violate any applicable law or regulation or any proprietary, contract, moral, privacy or other third party right, or which otherwise exposes Mobility Route to civil or criminal liability. Customer assumes sole responsibility for ensuring that the Customer Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, Mobility Route reserves the right, in its sole discretion, to exclude or remove from the Services any Content uploaded by Customer which, in Mobility Route’s sole reasonable discretion, may violate any law or third party rights or which otherwise exposes or potentially exposes Mobility Route to civil or criminal liability or public ridicule. Mobility Routeshall have no liability to You in the event that Mobility Route takes such action. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Your Content and Your Applications. You agree to defend and indemnify Mobility Routeagainst any claim arising out of a violation of Your obligations under this section.
3.3 The Customer may, from time to time, provide content to Mobility Route for publication on the Sites (Customer Content) which is available only to an Authorized User and on the following basis:
- The Customer warrants that it is either the sole owner, licensor or licensee with a right to sub-license of all Customer Content provided to Mobility Route (including, but not limited to: the right to sell, transmit, copy, and reproduce the Customer Content).
- The Customer grants to Mobility Route a non-exclusive, worldwide, non-transferable, license to make the Customer Content available to Authorized Users on the Sites during the term of this agreement.
- Mobility Route will determine whether or not (and when) to make the Customer Content available on the Services at its absolute discretion. The Customer Content will be attributed to the Customer on the Services and only be made available to the Customer’s Authorized Users.
- Mobility Route takes no responsibility for the Customer’s Content and is not liable in any way for the Customer’s Content. The Customer indemnifies Mobility Route and will pay to Mobility Route the amount of any loss or costs incurred or suffered by Mobility Route as a result of a breach of this paragraph 3.3 by the Customer or otherwise in respect of anything contained in the Customer’s Content.
3.4 Customer represents and warrants that (a) Customer Content does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of any third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other party right, and (b) Customer owns the Customer Content or otherwise has the right to use the Customer Content.
3.5 Customer Data Responsibility. Customer acknowledges and agrees that any and all Customer Data is the responsibility of the person or entity from whom such Data originated. Thus, Customer and not Mobility Route, is entirely responsible for all Customer Data that its Users upload, post, email, transmit or otherwise make available via the Services. Accordingly, Mobility Route does not guarantee the accuracy, integrity, timeliness, completeness or quality of any Customer Data. Customer agrees that it must evaluate, and bear all risks associated with, the use of or reliance on any Customer Data. Mobility Route does not endorse or make any representations about any Customer Data, or any results that may be obtained from using any Customer Data. Further, Customer understands that by using the Services it may be exposed to Customer Data that is inaccurate, offensive or objectionable. Under no circumstances will Mobility Route be liable in any way for any Customer Data, including any errors or omissions in any Customer Data, or any loss or damage of any kind incurred as a result of the use of any Customer Data.
You give consent to Mobility Route to use the Customer Data when integrating with third-party company systems to perform services on Mobility Route’s behalf relating to the functionality of the Services and that You consent to Mobility Route using Customer Data that may include personally identifiable information and credit card information. We will only use such data with our partners or service providers who perform functions to enable Mobility Route to provide its Services.
Customer shall not: (i) resell, sublicense, distribute or otherwise provide access to the Customer Data to any third party that has not been anonymized and aggregated so that no individuals can be personally identified from the Customer Data; and (ii) combine any Customer Data with any personally identifiable information for the purpose of targeted advertising or the sending of emails to any individuals or companies.
3.7 Data Return/Transition Services. All data inputted into the Services by Customer or its Authorized Users shall be returned and exported by Mobility Route to Customer in an agreed upon format within thirty (30) days of the contract being terminated or expiring. In the event that Customer does not want its data exported back to it within thirty (30) days of the contract being terminated or expiring then Mobility Route must maintain all Customer Data pursuant to all relevant federal and state laws including but not limited to HIPAA.
4.1 Confidential Information. For purposes of this Agreement, “Confidential Information” shall include the terms of this Agreement, Customer Data, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the Services and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party; (4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; (5) is independently developed by the Receiving Party without use of or reference to the Confidential Information, or (6) is aggregated, de-identified data that does not contain any personally identifiable or Customer-specific information.
4.2 Non-Disclosure Obligations. Each party agrees: (a) not to use or disclose Confidential Information except to the extent reasonably necessary to perform its obligations or exercise rights under this Agreement or as directed by the disclosing party; (b) to protect the confidentiality of Confidential Information in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information), and (c) to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need-to-know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.
- Intellectual Property – Ownership of the Services and Additional Services. Customer agrees that all rights, title and interest in and to all intellectual property rights in the Services and Documentation (including without limitation (i) the software code and source code (collectively, the “Software”) created and used to provide the Services; (ii) all Data owned by Mobility Route that Customer might have access to in its use of the Services; and (iii) the “look and feel” (e.g., text, graphics, images, logos), content and other material contained in the Services, are protected under copyright, trademark and other laws and are retained and owned exclusively by Mobility Route or its licensors. In addition, Mobility Route shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Services and its other product and service offerings any ideas, suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the operation of the Services. Any rights not expressly granted herein are reserved by Mobility Route.Except the right to access and use the Services, as expressly provided herein, this Agreement does not grant to Customer any rights to, or in, patents, copyrights, Personal Database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the Services or the software (the “Software”) used to provide the Services. Customer shall not attempt, or directly or indirectly allow any Authorized User or other third-party to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of the Software or Services, Work Product and/or Software in any form or media or by any means. Customer shall not attempt to access the Software by itself or with the help of any third parties. The provisions of this paragraph 5 shall survive termination of this Agreement. The Customer shall also not use any automated scripts or “robots” to access, copy, or manipulate any aspect of the Services.The Customer agrees and acknowledges that the Services, which includes Mobility Route Software and its content (Content and Software) is owned by or licensed to Mobility Route and is protected by US laws. Mobility Route owns (or is the licensee of) the Intellectual Property rights in the Content and Software including, but not limited to, copyright which subsists in all creative and literary works incorporated into the Content and Software. The Customer agrees that, as between it and Mobility Route, Mobility Route owns all Intellectual Property rights in the Content and Software and that nothing in this agreement constitutes a transfer of any Intellectual Property in the Content and Software. The Customer or it’s Authorized Users’ use of the Content and Software does not grant a license or act as a right to use any Intellectual Property in the Content and Software, whether registered or unregistered, except as stated in this agreement, or with Mobility Route’s written permission.The Customer must not (and must ensure that the Authorized User’s do not) breach Mobility Route’s Intellectual Property rights by, including but not limited to:
- altering or modifying any of the Content and Software;
- creating derivative works from any of the Content and Software; or
- using any of the Content and Software for commercial purposes such as on-sale to third parties.
5.1 Use of Marks. Mobility Route’s Marks, the “look and feel” (e.g., text, graphics, images, logos), content and other material contained in the Services and the names and logos associated with the Services or parts thereof (collectively “Mobility RouteMarks”) are trademarks of Mobility Route and are protected under copyright, trademark and other laws. Other third party product, service and company names, logos or marks mentioned as part of the Services are trademarks and/or service marks of their respective owners. During the Term, Mobility Route hereby grants Customer the right to use the Mobility Route Marks applicable to the Services solely for the marketing and promotion of such Services for the Business Purpose only in accordance with Mobility Route’s published guidelines for use of such Marks. To the extent the Business Purpose includes the provision of outsourced services to third parties, of which the Services is a part of or in addition to such services, Customer shall use its best efforts, at its expense, to market and promote each Services for the Business Purpose, including formal and active print and online campaigns, and participation in seminars and forums with its Customers. Any materials for such purpose shall prominently display the Mobility Route Marks applicable to such Services. Any and all goodwill associated with these rights and the Mobility Route Marks shall automatically vest in Mobility Route. Customer shall also not: (i) use the Services for any purpose or in any manner other than as set out in this agreement; (ii) use the Services, or allow the Authorized Users to use the Services, in any way that could damage the reputation of Mobility Route or the goodwill or other rights associated with the Mobility Route Content and (iii) permit any third party to use the Services other than as set forth in this agreement.
Customer agrees that Mobility Route may refer to Customer as a Customer of Mobility Route and hereby grants Mobility Route the right to use Customer ’s trademarks, trade names, trade symbol, and logos (collectively “Customer Marks”) in connection with the marketing and promotion of Mobility Route, the Services or part thereof (including a specific Program or Service). Mobility Route may also use the experience of Customer and its Users in marketing materials, including white papers, case studies, brochures and webcasts. Mobility Route agrees to use Customer Marks consistent with Customer ’s published guidelines with respect to such use. Any and all goodwill associated with these rights and the Customer Marks shall automatically vest in Customer.
5.2 Server Information & Analytics. As part of providing the Subscription Customer acknowledges and agrees that Mobility Route may collect and use benchmarking, transactional or performance information or data provided to or collected by the Subscription or the Mobility Route servers making available the Subscription, including traffic, traffic patterns, activity, activity patterns, page impressions, field and record counts or types, and similar analytics that may be conducted on the Subscription or any Data on a de‐identified basis (collectively, “Server Information”). All Server Information shall be deemed Mobility Route Data and Mobility Route Confidential Information. For clarity, any analytics produced therefrom shall be anonymous as to Customer , its affiliates, and their Users and shall not reasonably be linked back to Customer, its affiliates or their Users and shall not contain Personal Information.
5.3 Ownership of Deliverables. If Software Development Work is included in any Order Form and mutually agreed upon Statement of Work (a “Statement of Work”) to create any derivative versions (“Deliverables”) of the Services, Customer acknowledges and agrees that Mobility Route owns all of the intellectual property rights in the Deliverables and Documentation including without limitation any pre-existing materials and Confidential Information supplied by Customer for incorporation into such Deliverable and the software used to provide the Deliverables. Any modification, enhancement, derivative work, or other improvement of or based upon the Services, which includes a Deliverable, whether developed by Mobility Route or a Customer, will be Mobility Route exclusive property and Customer hereby irrevocably and in perpetuity assigns to Mobility Route all worldwide rights, title, and interest therein.
Mobility Route grants to Customer a revocable, royalty-free, non-exclusive, non-transferable, non-assignable right to use any Deliverable if an Order Form has been executed, to the extent necessary to permit Customer to use the Deliverable in connection with the Services during the Term until such time that the Agreement ends or is terminated then Customer shall cease using any enhancements, modifications, adaptations and derivative works of the Services made by Mobility Route or Customer and Customer shall return all such products to Mobility Route immediately. Customer acknowledges that nothing in this Agreement will restrict or limit Mobility Route from performing similar services and creating similar Deliverables for any third party.
5.4 No Work Made for Hire. (a) Customer agrees that no Work Product will be developed from a Deliverable as a “work made for hire.” As such, copyright and all other intellectual property rights vest with Mobility Route when the Deliverable is fixed in a tangible medium of expression. In the event that Customer is ever determined to own copyrights or other intellectual property rights in the Deliverable, Customer hereby: (i) irrevocably assigns to Mobility Route all rights, title, and interest that Customer might have in the Deliverable; (ii) agrees to execute all documents necessary to implement and confirm the letter and intent of this Section; and (iii) irrevocably appoints Mobility Route as Customer ’s attorney‐in‐fact to execute any ownership documents to perfect such ownership interests of Mobility Route, such right being coupled with an interest.
(b) Deliverable as Confidential Information. The Deliverables are deemed to be Mobility Route’s Confidential Information hereunder and, except as permitted herein, must not be disclosed by Customer without Mobility Route‘s express written approval. Customer may use the Deliverable for any internal business purpose and Customer may disclose the Deliverable to any contractor or Mobility Route of Customer that assists Customer with its internal business affairs and operations, provided that Customer first binds such third party contractor or Mobility Route to the same restrictions on use and disclosure of the Deliverable contained herein. Any other disclosure or publication of any Deliverable requires Mobility Route’s prior written consent.
- Payment Terms
6.1 Fees. Customer is responsible to pay Mobility Route for all monthly Fees (“Fees”) to subscribe to use the Services each month the Term is in effect. You will pay all fees due according to the pricing and terms found on our pricing page: https://mobilityroute.com/pricing. Fees are mostly charged on a per-vehicle basis, as determined by the number of vehicles within the software which has a state of Active, and based upon the number of unique vehicle records that were active within a given month. Additions are charged as a prorate, while reductions are not applied until the end of a billing cycle. Customers on monthly billing terms may only reduce their active vehicle count by 3 vehicles or 10% of the starting periods total, whichever is greater. License count reductions may not exceed 25% or 6 vehicles, in the previous rolling 12-months, whichever is greater. Reductions that exceed these limits will be billed at the applicable levels. Customer is solely responsible for making all changes to their vehicle records, including their state of Active or Archived. Customer acknowledges the billing is handled through automated means and requests to our billing or support teams requesting these changes is not an accepted means for such changes. Customer also agrees to pay usage-based fees for SMS usage, and additional fees if you subscribe to use our Routing Add-on (Route Optimization) or other addons. Vehicle license counts can be controlled directly by the customer within the Mobility Route portal and Customer, namely the Account Owner, is responsible for this maintenance. Mobility Route does not handle these changes in order to avoid any discrepancy as to the number of licenses billed.
(a) PAYMENT PROCESSING. We use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account (your “Billing Account”) for use of the Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for errors by the Payment Processor. By choosing to use Payment Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Payment Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payments using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
(b) PAYMENT METHOD. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand. You can change your payment method yourself by logging into the Mobility Route platform and visiting the subscription section. You shall maintain a valid payment method at all times until the termination of services (not upon notice of cancellation). Your Breach of these provisions shall entitle Mobility Route to immediately suspend the services to you.
(c) CURRENT INFORMATION REQUIRED. AS PART OF YOUR CONTINUED USE OF THE SERVICES YOU ARE REQUIRED TO PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL REQUIRED INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (INCLUDING PROVIDING A CHANGE IN BILLING ADDRESS, OR UPDATED CREDIT CARD NUMBERS, OR CREDIT CARD EXPIRATION DATES), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. IF YOU FAIL TO PROVIDE ANY OF THE ABOVE MENTIONED INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAYMENT SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAYMENT SERVICES AS SET FORTH ABOVE.
(d) CHANGE IN AMOUNT AUTHORIZED. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.(e) REAFFIRMATION OF AUTHORIZATION. Your non-termination or continued use of a Payment Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Payment Service.(f) PAYMENT METHOD TYPES. Mobility Route uses Merchant ACH (Direct Debit) as its primary payment method for all accounts. The acceptance of credit/debit cards or any other payment method is only acceptable at Mobility Route’s sole discretion. Mobility Route does not accept paper check payments under any circumstances. Any payments which may later be accepted by paper check or wire transfer, on a case-by-case basis, are subject to a fee of $50 per individual payment/check.
6.3 TAXES. All Fees payable under any estimated or quoted services are net amounts and do not include taxes or duties of any kind. Customer will be responsible for, and will promptly pay, any applicable duties, sales tax, use tax, and value added taxes (VAT) or other similar taxes, if any, associated with this Agreement or Customer’s receipt or access to the Services, excluding taxes based on Mobility Route‘s gross or net income or franchise taxes. In the event that Mobility Route is required to collect or pay any tax for which Customer is responsible, Customer will pay such tax directly to Mobility Route. If Customer is a tax-exempt organization and is not obligated to pay taxes arising out of this Agreement, Customer will provide Mobility Route with any required documentation to verify its tax-exempt status with the applicable taxing authorities.
- DISCLAIMER OF WARRANTIES.
THE SERVICES, MOBILITY ROUTE API, MOBILITY ROUTE TRADEMARKS, PLATFORM, SOFTWARE, SERVICE OFFERINGS, UPDATES AND OTHER PROPRIETARY AND CONFIDENTIAL INFORMATION OF MOBILITY ROUTE (HEREINAFTER COLLECTIVELY REFERRED TO AS “MOBILITY ROUTE’S SERVICES”) ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.
CUSTOMER ASSUMES ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF MOBILITY ROUTE SERVICES TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE AND PERFORMANCE OF, AND RESULTS OBTAINED FROM MOBILITY ROUTE SERVICES AND THAT MOBILITY ROUTE MAKES NO WARRANTY THAT: (i) MOBILITY ROUTE SERVICES WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE; (ii) THE MOBILITY ROUTE SERVICES, SOFTWARE, UPDATES OR DOCUMENTATION IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE; (iii) THERE WILL BE NO INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF MOBILITY ROUTE SERVICES; (iv) MOBILITY ROUTE SERVICES WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOBILITY ROUTE DISCLAIMS ALL EXPRESS, IMPLIED OR STATUTORY STANDARDS, GUARANTEES, REPRESENTATIONS OR WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, REASONABLE CARE, WORKMANLIKE EFFORT, RESULTS, LACK OF NEGLIGENCE, ACCURACY OF INFORMATION OR RESULTS, TITLE AND NONINFRINGEMENT WITH RESPECT TO MOBILITY ROUTE SERVICES, ANY WARRANTY OF THIRD PARTY SOFTWARE, PRODUCTS OR SERVICES, FUNCTIONALITY OF HARDWARE, SOFTWARE, FIRMWARE OR COMPUTER SYSTEMS OR ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USAGE. CUSTOMER HEREBY ACKNOWLEDGES THAT MOBILITY ROUTE SERVICES MAY NOT BE AVAILABLE OR MAY BECOME UNAVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, WITHOUT LIMITATION, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF MOBILITY ROUTE SERVICES, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, ACTIONS AND OMISSIONS OF THIRD PARTIES, OR ANY OTHER CAUSE REASONABLY BEYOND THE CONTROL OF MOBILITY ROUTE, THEREFORE, MOBILITY ROUTE EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE.
MOBILITY ROUTE PROVIDES NO WARRANTY FOR non-performance issues that result from third-party hardware or firmware malfunction or defect, software not developed by MOBILITY ROUTE , incorrect data provided by or incorrect procedures used by You or a third party, or defects which are outside the reasonable control of MOBILITY ROUTE . You will reimburse MOBILITY ROUTE for Our reasonable time and expenses for any Services provided at Your request to remedy excluded non-performance issues. Any warranty provided for herein and any performance guarantees set forth herein shall be null and void if You fail to follow the Terms, or otherwise breach this Agreement in any respect.
TO THE EXTENT PERMITTED BY LAW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, OR SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
- Limitation of Liability.
CUSTOMER ASSUMES THE ENTIRE COST OF ANY DAMAGES RESULTING FROM CUSTOMER’S USE OF MOBILITY ROUTE SERVICES, THE INFORMATION CONTAINED IN OR COMPILED BY MOBILITY ROUTE SERVICES, THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY MOBILITY ROUTE OR A THIRD PARTY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL MOBILITY ROUTE OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, SPECIAL, DIRECT, EXEMPLARY, INDIRECT, RELIANCE, LIQUIDATED, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, REVENUE OR SAVINGS, BUSINESS INTERRUPTION, BUSINESS OPPORTUNITIES, LOSS OR CORRUPTION OF BUSINESS INFORMATION OR ANY PERSONAL OR CUSTOMER DATA, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION, IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS, BODILY HARM, EMOTIONAL DISTRESS OR LOSS OF LIFE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE MOBILITY ROUTE SERVICES, OR THE INCOMPATIBILITY OF MOBILITY ROUTE SERVICES WITH ANY HARDWARE, SOFTWARE OR USAGE REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF MOBILITY ROUTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
TO THE EXTENT PERMITTED BY LAW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, OR SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. IF ANY EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THIS AGREEMENT IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION OR ARBITRATOR AND MOBILITY ROUTE BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE THAT COULD OTHERWISE BE LIMITED MOBILITY ROUTE’S TOTAL LIABILITY TO CUSTOMER OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE FEES PAID BY CUSTOMER TO MOBILITY ROUTE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES WHETHER IN CONTRACT, TORT OR OTHERWISE.
- INDEMNIFICATION9.1 Mobility Route’s Indemnity. Mobility Route shall, at its own expense, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Services or related Applications as used in accordance with the terms and conditions of this Agreement, infringe the copyrights, trade secrets, patents or trademarks of such third party and shall hold Customer harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim. Excluded from these indemnification obligations are Claims to the extent arising from: (a) use of the Services in violation of this Agreement or applicable law, (b) use of the Services after Mobility Route notifies Customer to discontinue use because of an infringement claim, (c) modifications to the Services not made by Mobility Route, or (d) use of the Services in combination with any software, application or service not provided by Mobility Route. If a Claim is brought or threatened, Mobility Route shall, at its sole option and expense, use commercially reasonable efforts either: (a) to procure for Customer the right to continue using the Services without cost to Customer; (b) to modify or replace all or portions of the Services as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if the remedies described in (a) and (b) above are not commercially feasible, terminate the Agreement and provide to the Customer any pro-rata refund of the Services fees pre-paid under the Agreement for the remaining terminated portion of the Term. The rights and remedies granted to Customer under this Section 9.1 state Mobility Route’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of any third party.9.2 Customer’s Indemnity. Customer shall indemnify, defend, and hold harmless Mobility Route, its directors, officers, employees, agents, and affiliates, from and against all liabilities, damages, losses, claims, expenses and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim (collectively “Claims”) regarding or in connection with: (i) Customer and its Authorized Users’ use of the Services; (ii) Customer or any of its Authorized User’s breach of Customer’s obligations under Paragraphs 4 and 5 of this Agreement; (iii) You, your employees or independent contractors providing your company’s services to any third party, company or individual including but not limited to transporting by vehicle any such persons, companies or individuals to non-emergency healthcare providers; (iv) You, your employees or your independent contractor’s operation of a motor vehicle causing any type of physical or emotional distress injury to any person including death to any third parties; (v) the Customer Data or Content, including photos and videos infringing upon or misappropriating a third party’s valid patent, copyright, trademark or trade secret, or has caused harm to a third party, or violates a law; (vi) Customer’s breach of its representations; and (vii) Customer’s failure to pay all applicable taxes associated with Customer’s use of the Services or related Applications. Customer shall defend and hold Mobility Route harmless from and against liability for any Losses to the extent based upon such Claims.9.3 Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 9, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s expense, with the indemnifying party in the investigation and defense of such Claim. The indemnification obligations under this Section 9 are expressly conditioned upon the indemnified party’s compliance with this Section 9.3. however, Customer shall not settle or compromise any claim that results in liability or admission of any liability by Mobility Route without Our prior written consent.
- Term; Subscription Renewals; Termination
10.1 (a) Term; Renewals. The term of this Agreement shall be for an initial period of one (1) year from the Effective Date and shall continue thereafter (the “Term”). The Term of each Service purchased under this Agreement shall continue for the initial term and shall automatically renew for successive twelve (12) month periods unless either party gives the other written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term. Customer shall be charged for the full-year subscription fee and receive a prorated discount if the termination is past the renewal date. However, Customer is required to provide Us with a longer Notice of Cancellation period based on how long a period of time Customer has subscribed to use our Services. Prorated refunds are issued within 60 days following the date of termination, and so long as the Customer has complied with all of its obligations. There are no prorated refunds for vehicle license count decreases for accounts on yearly terms, except as previously described for mid-period terminations.
All purchases are non-refundable. You can provide notice to cancel your Mobility Route subscription at any time. Your termination will take effect after 30-days following the notice of cancellation made by you as outlined in this section. The 30-day notice requirement shall increase by 30-days for each full year in which an account has been held with us, to include the service period from accounts transferred through partnership or acquisition from another entity. If a contract term expires beyond the notice requirement then the termination will not be effective until the expiration of the contract term. The maximum period shall be 180-days, meaning after you’ve maintained services for 5-years, the period of notification does not increase by 30-days each year. An account may be terminated early with payment in full of the amount calculated to be due for the remainder of the service term, based on the current renewal rate, or the average of invoices for the previous 6-months of services, whichever is greater. For annual payment term renewals, when the date of termination is after a renewal but after the date of notice of cancellation, the actual date of termination shall instead be the end of the renewal term. Customer may elect to pay 50% of the annual amount after the normal date of termination for the remainder of the annual term in order to terminate services on the normal date of termination (following the standard notice period).
Example: If you provide notice 90-days prior to the end of your contract term within your first year of service, the termination will not be effective until 90-days, instead of 30-days.
Mobility Route shall not be used by you for performing scheduled trips within the final 20-days of service. All other functions or use shall cease 5-days prior to the date of termination. Should Customer not undertake steps necessary to facilitate the handoff of data pursuant to the termination of services, Customer agrees to continued billing at normal rates for the services until which time that they take appropriate actions to coordinate the handoff of data with Mobility Route.
Chargebacks initiated by customers shall result in an immediate suspension of all services and entitle us to recover a reversal payment fee in the amount of $100 or 10% of the transaction amount, whichever is greater, in addition to the amount of the reversed transaction and any additional late fees and interest at 2% monthly (18% per annum). Any ACH transactions that are dishonored for any reason are subject to a flat $50 fee. Additionally, a late fee of $50 or 5% of the unpaid invoiced amount, whichever is greater, of the unpaid invoice balance shall be applied after the 5th day following the due date.
Any suspension of services for non-payment does not in itself constitute any notice of termination by us (or you) of your services and account. It further does not resolve you of any obligations for payment of the services during any such suspension or waiver of obligations to provide a Notice of Cancellation. Any revocation or reversal of changes made following the Notice of Cancellation and/or date of termination shall result in the account incurring reasonable administrative costs incurred by Mobility Route for any and all work required to be performed in accordance with the HIPAA Business Associate Agreement, although these costs would typically be included during the termination period.
In order to provide notice of cancellation, you must log into your account and use the “Cancel Account” option within your account settings to start the process for your account and subscription termination. You agree to inform us immediately if you do not receive an emailed confirmation receipt confirming you have provided notice. Only if the account or user is currently suspended or has limited access, the Notice of Cancellation may only be made by completing the below-linked Notice of Cancellation Form and mailing it USPS First Class Certified (No Restricted Delivery), AND additionally emailing a copy of the form in PDF format to email@example.com within 2-business days of the mailing. The mailed form shall be addressed to:
Attn: Account Management
Mobility Route, Inc.
8 The Green, Suite 11251
Dover, DE 19901
10.2.1 Termination for Cause. This Agreement shall terminate upon any breach of the Terms by You or Your Authorized Users, in accordance with the Terms.
10.2.2 Effect of Termination. Upon termination, (i) you shall cease any and all use of the Services and You shall relinquish to Us or destroy any and all parts of the Services in Your control, and (ii) all rights, licenses, consents and authorizations granted by Us to You will immediately terminate. The termination of this Agreement shall not limit Our rights or remedies at law or in equity.
10.2.3.Suspension of Services. We may suspend delivery of the Services, without liability, if: (i) if your payment is five (5) days past due, unless a payment is processing (i.e., ACH); (ii) if you fail to maintain a valid payment method; (iii) We reasonably believe that the Services are being used in violation of this Agreement, (iii) You do not cooperate with Our reasonable investigation of any suspected violation of this Agreement, (iv) there is an attack on Your server by a third party, Your server is accessed or manipulated by a third party without Your consent, or there is another event for which We reasonably believe that the suspension of Services is necessary to protect Our network or customers, or (v) required by law. We shall use commercially reasonable efforts to give You reasonable notice of a suspension of Services, unless immediate suspension is necessary to protect Us or Our customers from imminent significant operational or security risk.
10.2.4 Survival. Sections 4, 5, 7, 8, 9, 10, 11 and 12 and any other provisions necessary to interpret the respective rights and obligations of the parties hereunder will survive any termination or expiration of this Agreement, regardless of the cause of such termination or expiration.
- Non-Solicitation. Customer agrees that during the Term and for a period of twelve (12) months thereafter, neither Customer nor any of its Affiliates shall solicit any employee or subcontractor of Mobility Route to leave his/her/its employment or engagement with Mobility Route, or hire or engage as an employee, consultant, independent contractor or in any other capacity, any employee or subcontractor of Mobility Route, without the prior written consent of Mobility Route. In the event that Customer violates the foregoing, it shall pay liquidated damages to Mobility Route in an amount equal to the first year’s compensation to such individual following such hire or engagement in violation of this provision. General recruitment activities which are in no way targeted at the employee’s or former employees of Mobility Route shall not be deemed a prohibited solicitation under this Section.
- FRAUD AND ABUSE COMPLIANCE
- The parties specifically affirm no payments made or services rendered hereunder are made or rendered in order to induce referrals of items or services reimbursable in whole or in part by a Federal health care program. Without limiting the foregoing, each party expresses its specific intention that the contractual relationship created by this Agreement is in compliance with applicable Fraud and Abuse laws, and the conduct of the parties and the interpretation of this Agreement shall be made in all respects in a manner that conforms to the letter and spirit of such laws and the regulations promulgated thereunder. In the event there is a Change of Law (as defined in Section 13) relating to the provision of services hereunder, or otherwise relating to a matter contemplated by this Agreement, the parties shall promptly attempt to modify the Agreement in accordance with the provisions of Section 13 of this Agreement.
- In addition, each party shall adopt and comply with a compliance plan to ensure that it complies with anti-kickback provisions of the Federal Medicare and Medicaid Fraud and Abuse Statute (the “Anti-Kickback Statute”), the Federal Ethics in Patient Referrals Act (the “Stark Act”), the Health Data Electronic Transactions and Privacy Standards from the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and the American’s with Disabilities Act (the “ADA”).
- Mobility Route and Customer agree to cooperate with each other on any audit, investigation, administrative proceeding, or other legal action involving Mobility Route Services or Customer’s claims, billing or other obligations under this Agreement.
- CHANGE OF LAW1. Notwithstanding any other provision of this Agreement, if during the term hereof, any state or federal legislative enactment, regulation or administrative interpretation would prohibit, restrict or contravene any provision of this Agreement (“Change of Law”), any party alleging such a Change of Law may provide notice to the other of such Change of Law. The parties hereby agree to try to reform the offending provision of the Agreement to conform with such Change of Law, with the intent of preserving to the extent possible the respective rights and obligations of the parties as they were herein upon execution of the Agreement.2. If within thirty (30) days of such notice, the parties cannot agree that such a Change of Law has occurred, or, in the event they agree that such a Change of Law has occurred, but they cannot within thirty (30) days thereafter agree to an appropriate reformation of the Agreement, then either party may terminate this Agreement upon thirty (30) days’ written notice.
- General Provisions.
14.1 Notices. Notices between the parties will be by personal delivery, courier, facsimile transmission, or certified or registered mail, return receipt requested, and will be deemed given upon receipt at the address of the recipient party or ten (10) days after deposit in the mail. Addresses used will be the ones set forth above or such other address as a party hereto will notify the other in writing.
14.2 Severability. In the event of any invalidity of any provision of this Agreement, the parties agree that such invalidity will not affect the validity of the remaining portions of this Agreement, and further agree to substitute for the invalid provision a mutually agreeable valid provision that most closely approximates the intent of the invalid provision.
14.3 Headings. The headings in this Agreement are for convenience of reference only and have no legal effect.
14.4 No Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
14.5 Assignment. Customer shall not be permitted to assign any of its rights under this Agreement to any other entity (except the right to receive money) without the written consent of Mobility Route. Mobility Route shall be permitted to assign its rights under this Agreement to any successor entity of any kind.
14.6 Relationship. Each party hereto is an independent contractor, and neither party is, nor will claim to be, a legal representative, franchisee, agent or employee of the other.
14.7 Force Majeure. Neither party will be liable to the other for a failure or delay in its performance of any of its obligations under this Agreement (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by circumstances beyond its reasonable control or by events such as fire, riot, flood, labor disputes, natural disaster, regulatory action, internet or telecommunications failures, terrorist acts, or other causes beyond such party’s reasonable control, provided that the non-performing party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible.
14.8 Counterparts and Electronic Signatures. This Agreement may be executed in counterparts. A signature transmitted via facsimile, scanned original or third party e-signature system will be deemed an enforceable signature for the purpose of demonstrating the signing party’s assent to the Agreement.
14.9 Entire Agreement. This Agreement (including the Exhibits hereto) constitutes the entire understanding and agreement between the parties with respect to the subject matter addressed herein and supersedes any and all prior or contemporaneous oral or written communications with respect to such subject matter. In the event of a conflict between the foregoing terms and conditions and any Exhibits to this Agreement, the foregoing terms and conditions will control. The parties agree that in the event Customer utilizes a purchase order, any term therein which purports to modify or supplement the terms of this Agreement will be void with no force or effect. No modification, termination or waiver of any provisions of this Agreement shall be binding upon a Party unless in writing signed by an authorized officer of the relevant Party(ies). A party does not waive its rights under this agreement by granting an extension or forbearance to another party.
- Governing Law/Arbitration. By using Mobility Route’s Website or Services, you agree that the laws of the State of Delaware without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and Mobility Route.
ANY DISPUTE RELATING IN ANY WAY TO YOUR USE OF Mobility Route’S WEBSITE OR SERVICES SHALL BE SUBMITTED TO CONFIDENTIAL BINDING ARBITRATION IN WILMINGTON, DELAWARE EXCEPT FOR INTELLECTUAL PROPERTY CLAIMS BROUGHT BY EITHER PARTY (WHICH FOR PURPOSES OF THIS SECTION DO NOT INCLUDE PRIVACY AND PUBLICITY CLAIMS) AND CLAIMS THAT MAY BE BROUGHT IN SMALL-CLAIMS COURT.
CONFIDENTIAL ARBITRATION UNDER THIS AGREEMENT SHALL BE RESOLVED EXCLUSIVELY UNDER THE COMMERCIAL ARBITRATION RULES THEN PREVAILING OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA’S CONSUMER RULES”), EXCLUDING ANY RULES AND PROCEDURES GOVERNING OR PERMITTING CLASS OR REPRESENTATIVE ACTIONS. THE RULES ARE AVAILABLE AT THE AMERICAN ARBITRATION ASSOCIATION’S WEBSITE.
YOU AND MOBILITY ROUTE AGREE TO EXPRESSLY WAIVE ANY RIGHTS TO FILE CLASS OR REPRESENTATIVE ACTIONS OR SEEK RELIEF ON A CLASS OR REPRESENTATIVE BASIS IN ANY JURISDICTION OR FORUM.
THE ARBITRATOR SHALL APPLY DELAWARE LAW, AND THE ARBITRATOR’S AWARD SHALL BE BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION. THERE SHALL BE NO APPEAL FROM ANY AWARD OF THE ARBITRATOR. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION UNDER THIS AGREEMENT SHALL BE JOINED TO AN ARBITRATION INVOLVING ANY OTHER PARTY SUBJECT TO THIS AGREEMENT, WHETHER THROUGH CLASS ARBITRATION PROCEEDINGS OR OTHERWISE. IF ANY PART OF THIS ARBITRATION PROVISION IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL, THE REST OF THIS PROVISION SHALL REMAIN IN EFFECT.
IF THE ENTIRE ARBITRATION PROVISION IS FOUND TO BE INVALID OR UNENFORCEABLE, THEN THE PARTIES CONSENT TO PERSONAL JURISDICTION AND EXCLUSIVE VENUE IN THE STATE COURT LOCATED IN WILMINGTON, DELAWARE
You represent, warrant, and agree that: (i) you or your business shall not send text messages to anyone who uses Mobility Route’s website or services on their mobile devices without their explicit written consent; (ii) You or your business shall obtain written consent from anyone who uses the website or services either (a) by anyone who uses the website or services texting a keyword from their mobile device to join an SMS database; (b) anyone who uses the website or services filling out a paper form or You or your business sending an online form to anyone who uses the website or services which explicitly states that they are subscribing to receive text messages from you once they provide their phone number.
(c) As anyone who uses the website or services opt in to SMS marketing campaigns created by You or your business, your business shall send clear, conspicuous disclosure of the text messages to them that they will receive.
(d) You or your business shall send instructions to anyone who uses the website or services on how to opt out from receiving messages (STOP instructions), as well as how they can get help information (HELP instructions).
- Customer’s Obligations and Responsibilities With Regard to Customer and/or Third Parties Uploading Their Personal Information or Data To The Services. Notwithstanding the parties’ obligations under HIPAA, In the event that Customer or its customers (“third parties”) upload personal information or data to the Services that can identify someone (a third party) individually (“third party data”), Customer understands and agrees that as part of its obligations under this Agreement to continue to access the Services it will undertake certain obligations and duties with regard to third parties as follows:
(i) Customer shall obtain written consent from third parties permitting: (a) Customer to upload and submit third party data or personal information up into the Services; and (b) Mobility Route to maintain and process all third party data or personal information of any kind that Customer obtains from third parties.
The terms of this agreement are subject to change at any time. When changed the Customer’s primary user (aka Account Owner) will be required to electronically agree to these terms upon their next login. Should Customer disagree with these terms, they will be required to provide a Notice of Cancellation before being able to continue using the Services under the previously agreed to terms until there services are fully terminated in accordance with the aforementioned timeline. Failure to agree to the updated Terms or provide the Notice of Cancellation will result in the Services being suspended for the Customer and all Authorized Users immediately.
Last Updated September 22nd, 2022.