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1.1 An Order constitutes an offer by the Customer to purchase Goods and / or Services in accordance with these Motia Main Terms and Conditions and any relevant Special Terms and Conditions.
1.2 These Main Terms and Conditions, together with any Special Terms and Conditions that may apply and the Order will make up the terms of the Contract between the Customer and Motia.
1.3 The Special Terms and Conditions shall be made up of:
1.3.1 Addendum 1 – Mileage Expenses Special Terms and Conditions
1.3.2 Addendum 2 – Motia Vehicle Safety Checks Special Terms and Conditions
1.3.3 Addendum 3 – Motia Vehicle Maintenance Special Terms and Conditions of Sale of Services
1.3.4 Addendum 4 – Motia Vehicle Maintenance Website Special Terms and Conditions
1.3.5 Addendum 5 – Tele-Gence Special Terms and Conditions
1.3.6 Addendum 6 – Motia Telematics Special Terms and Conditions
2.1 In these Main Terms and Conditions the following words, terms or expressions will have the following meanings:
2.2 The headings in these Terms and Conditions are for convenience only and shall not affect the interpretation of these Terms and Conditions or the Contract.
3.1 Use of or ordering of any Goods and / or Services provided by Motia to the Customer, constitutes acceptance of these Main Terms and Conditions. Any other pre-contractual communications do not form part of the Contract. Motia reserves the right to reject any applications.
3.2 Motia may amend the Main Terms and Conditions from time to time. Changes to the Main Terms and Conditions will be communicated on invoices and on www.motia.com/policies/terms-conditions. . The Customer agrees that it shall visit www.motia.com/policies/terms-conditions not less than once every 3 months (or following a change in date notified on an invoice) in order to check whether the Terms and Conditions have been amended. Use of a Card / Goods and / or Services implies acceptance of any amendment.
3.3 Cards remain the property of the Card Company at all times. The Customer will return Cards to Motia promptly at Motia's request.
4.1 The Customer is responsible for the security of its Cards and for their correct use, by the Customer or anyone authorised by the Customer, in accordance with these Terms and Conditions.
4.2 The Customer must ensure that no person using a Card interferes with the fuel monitoring device or / delivery equipment at any Site. In the event there appears to be a defect in such equipment the Customer shall immediately report the problem to the relevant Supplier.
4.3 The vehicle registration number or name on a Card is not a security measure. The Customer will be liable for purchases using the Card whether for the vehicle / name or otherwise identified on a Card.
5.1 Motia charges a fee to the Customer for the issue of the Card, for replacement Cards, additional Cards and on annual (or other) renewal of a Card. Other fees may also apply such as a monthly fee or non-usage fee. Card charges vary per account and are payable in advance at the prevailing rates which may increase on periodic review. Details of charges will be provided to the Customer from time to time on the Motia Standard Fee and Tariff webpage.
The Customer should regularly check their invoices and the Motia Standard Fee and Tariff webpage for important up to date fee information.
5.2 Card charges are non-refundable.
6.1 The Card may only be used:
6.1.1 if it is a valid Card;
6.1.2 by the Customer to obtain Goods and / or Services from a Site; and / or
6.1.3 to obtain Goods and / or Services in accordance with any restrictions applied to that Card.
6.2 Motia may withdraw at any time an entitlement to purchase specific Goods and / or Services and / or to issue to the Customer a replacement Card indicating revised Goods and / or Services.
6.3 If Motia reasonably believes that a Card is being misused, Motia may put a stop on any Card until the misuse is resolved to the reasonable satisfaction of Motia.
7. PIN
7.1 The Customer should always keep the PIN’s secure. It is the Customers responsibility to keep PIN’s safe and secure.
7.2 Any PIN shall be used only by the Customer and shall not be disclosed by the Customer to any other person
7.3 If the PIN has (or may have) been compromised in any way, the Customer must immediately notify Motia in accordance with Clause 15.1.
7.4 Upon request, Motia will provide a replacement PIN for a Card at a fee. Replacement PINs are not available on all cards. For fees see the Motia Standard Fee and Tariff webpage.
8. PURCHASE OF GOODS AND / OR SERVICES AND PRICING
8.1 Prior to agreeing to purchase or take delivery of Goods and / or Services, the Customer shall present or show the Card to the relevant Supplier (if requested).
8.2 The Customer shall comply with all requirements of the Site when using a Card to make a transaction and shall pay Motia all amounts due to Motia arising from such transaction.
8.3 Fuel Prices will vary dependent upon the type of Card used, the Site at which fuel is purchased, method of transaction (e.g. magnetic strip or chip & PIN) and also the specific fuel type and grade. Fuel Prices may be pump related or fixed weekly at certain networks. Certain Sites will incur additional surcharges including but not limited to non-Bunker Sites, non-Core Sites, third party networks (e.g. BP Card used at an Esso site), supermarket and motorway sites; the Customer should regularly check www.motia.com/fuel/pump-locator for updated listings of Bunker or Core Sites. The Fuel Price may be higher than the pump price at the time of transaction. Additionally, some Cards will be subject to a network service fee per transaction – the Customer will be made aware of this fee when entering the Contract. Motia may notify the Customer of weekly Fuel Prices in advance, upon request.
8.4 The price of non-premium diesel purchased from Bunker or Core Sites is fixed on a weekly basis which Motia may notify to the Customer in advance, upon request.
8.5 Current fees and charges can be found at the Motia Standard Fee and Tariff webpage
8.6 Goods and / or Services, other than motor fuel, acquired with the Card by the Customer shall be invoiced at the price shown on the Customer's receipt plus a reasonable handling fee.
8.7 The Customer is liable to pay all taxes, duties, levies, charges, surcharges, assessments or impositions on Goods and / or Services purchased with the Card(s) at the appropriate rate.
8.8 Due to the volatility of the oil market and / or tax/fuel duty changes and the impracticality of notifying each Customer on every occasion where a change may occur, Motia may change the Fuel Price from time to time without notice to the Customer.
9. INCLUSIVE SERVICES
9.1 Motia will provide the Customer with Inclusive Services in accordance with this clause 8 and Addendum 1.
9.2 Where the Customer is in receipt of any Inclusive Services, service descriptions and terms and conditions set out in Addendum 1 shall be incorporated into these Terms and Conditions.
9.3 If the delivery of any Inclusive Services shall cease or are otherwise terminated, these Main Terms and Conditions shall continue in full force. Until such time, Special Terms and Conditions governing the provision of Inclusive Services shall remain incorporated into these Main Terms and Conditions.
9.4 In any case of conflict between these Main Terms and Conditions and any Special Terms and Conditions, the Special Terms and Conditions shall take precedence.
9.5 To opt out of any of the Inclusive Services please contact support@motia.com or, call 0113 298 1000, or write to us at the address notified by Motia to the Customer from time to time or, if no such address is notified, at Alexandra House, Lawnswood Business Park, Redvers Close, Leeds, LS16 6QY.
9.6 The Customer should regularly check its invoices and the Motia Standard fee and Tariff webpage for important up to date information about charges applicable to Inclusive Services.
10. ADDITIONAL SERVICES
10.1 Motia may provide the Customer with Additional Services as detailed within this clause 9 and Addendum 2.
10.2 Where the Customer is in receipt of any Additional Services, the applicable service descriptions and terms and conditions set out in Addendum 2 shall be incorporated into these Terms and Conditions.
10.3 If the delivery of any Additional Services shall cease or are otherwise terminated, these Main Terms and Conditions shall continue in full force. Until such time, Special Terms and Conditions governing the provision of Additional Services shall remain incorporated into these Main Terms and Conditions.
10.4 In any case of conflict between these Main Terms and Conditions and any special Terms and Conditions, the Special Terms and Conditions shall take precedence.
10.5 The Customer should regularly check its invoices and the Motia Standard Fee and Tariff webpage for important up to date information for charges applicable to Additional Services.
11. BUNKERSTOCK SERVICES
11.1 The Customer may purchase bulk volumes of diesel (the "Fuel") from Motia. The parties will agree a price; the Customer will then email its offer to purchase the Fuel at the agreed price to the Motia account manager. If Motia accepts the Customer's offer then it will reply in writing to confirm the price, volume ordered and amount payable by the Customer. Once the Customer's request has been accepted by Motia it cannot later be cancelled by the Customer.
11.2 Upon acceptance by Motia, Motia shall use reasonable efforts to procure the agreed volume of Fuel, and that it is transferred into the Bunker Network on the date of purchase (unless Motia requires payment in advance, it will not transfer the Fuel until payment has been received in cleared funds) provided that Motia shall have no liability for any failure or delay on the part of the Bunker Network or its operator.
11.3 Motia shall issue an invoice for (and the customer shall pay) all sums due in respect of the Fuel, Goods and / or Services in accordance with the procedures set out below. Title to the Fuel shall remain with Motia until payment has been made in full. If the Customer fails to pay any sums due then Motia shall (without prejudice to its other rights and remedies) be entitled to remove the agreed volume of Fuel (or the balance of the same) from the Bunker Network.
12. INVOICES
12.1 An invoice, E-Bill or notification of the same in MyMotia will be sent to the Customer weekly in arrears unless otherwise agreed by Motia (such frequency at Motia’s discretion), detailing purchases of Goods and / or Services which have been processed at the date of the relevant invoice, plus any Ancillary Charges. Upon request, Motia will provide copy invoices at a cost per invoice see the Motia Standard Fee and tariff webpage. Upon request, Motia will provide evidence of transactions made on Cards in the 3 months prior to the date of the request. Motia shall be entitled to charge a fee for such evidence depending on the relevant Card Company see the Motia Standard Fee and Tariff webpage.
12.2 The Customer must review each invoice on receipt. Upon payment by the Customer of any amounts due, Motia will consider any queries raised within three months from invoice date.
12.3 Upon request, Motia will provide paper invoices at a cost per invoice, see the Motia Standard Fee and Tariff webpage.
13. PAYMENT
13.1 The Customer shall pay amounts due under each invoice in one payment in full and clear funds in accordance with the payment terms on the relevant invoice.
13.2 If the Customer fails to pay an invoice by its due date, Motia may:
13.2.1 place the Card(s) on stop; and / or
13.2.2 place the Card(s) on stop and terminate the Contract immediately without notice, at which point all amounts due to Motia, (whether invoiced or not) shall become immediately due and payable in full.
13.3 The Customer shall at all times:
13.3.1 maintain a bank account capable of accepting direct debits;
13.3.2 ensure Motia has a valid direct debit mandate from the Customer for such account; and
13.3.3 ensure that any direct debit called by Motia against such account is paid.
13.4 Any Customer's payment which fails to clear shall be subject to an administration fee per failure and may incur a replacement Card charge. Current fees can be found at the Motia Standard fee and Tariff webpage
13.5 If the direct debit payment due date falls on a Saturday, Sunday or public holiday, payment will be taken on the next working day.
14. INTEREST AND CHARGES
14.1 Motia may charge interest and reasonable debt recovery costs in the event that any amounts payable by the Customer to Motia under these Main Terms and Conditions are not paid by the due date (without prejudice to Motia's other rights and remedies).
14.2 Interest on any late payments shall be payable in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
14.3 Reasonable debt recovery costs for the purposes of Clause 14.1 shall include all third party debt recovery costs, charges and other liabilities reasonably incurred by Motia.
14.4 All payments by the Customer or any credits or refunds due to the Customer will be applied first in settlement of any interest owed to Motia by the Customer and secondly in reduction of the Customer's other indebtedness to Motia. The Customer is not entitled to exercise any right of set off or counterclaim against outstanding amounts due to Motia.
15. TERMINATION
15.1 The Contract may be terminated by either party at any time by giving not less than 30 working days prior written notice to the other party.
15.2 Motia may deem the Contract terminated with immediate effect and without notice in the event that:
15.2.1 the Customer breaches any of these Main Terms and Conditions;
15.2.2 the Customer goes into, or is perceived by Motia as likely to enter into receivership, administration, bankruptcy, liquidation or similar proceedings or makes any arrangement with its creditors or any other event occurs which, in the opinion of Motia, may affect the ability of the Customer to comply with any or all of its obligations or meet any of its liabilities under these Main Terms and Conditions;
15.2.3 Motia receives a credit reference (which the Customer hereby agrees Motia may carry out from time to time in relation to the Customer) which is, in Motia's opinion, unsatisfactory;
15.2.4 the Customer undergoes a change in control (where “control” means the ability, directly or indirectly, to direct the affairs of another whether by means of ownership, contract or otherwise). The Customer agrees to notify Motia not later than 2 weeks prior to any change in control of it occurring; or
15.2.5 Motia receives notification from its insurers that credit insurance cover has been reduced or withdrawn from the Customer.
15.3 The Contract shall automatically terminate upon the termination of the Agent Agreement and such termination will be confirmed by written notice to the Customer by the Card Company or Motia.
16. CONSEQUENCES OF TERMINATION
Immediately upon termination of the Contract:
16.1.1 the Customer shall cut in half all Cards supplied to it and return them to Motia;
16.1.2 the whole outstanding balance of the Customer's account shall (at Motia's discretion) become due and payable in full to Motia; and
16.1.3 the right of the Customer to use the Card shall terminate (but without prejudice to the Customer's liability for the use of the Card after termination or to the rights of Motia already accrued at the date of termination).
16.2 The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
17. CANCELLATION
17.1 Cancellation of a Card will only prevent renewal of the Card on expiry; it may not prevent the Card from being used.
17.2 Motia will only cancel a Card on the Customer's written request.
17.3 Motia may put a stop on, cancel, or suspend any or all Cards at any time without notice and reserves the right to refuse to reissue, renew or replace any Card.
17.4 The Customer must immediately (or when found, if lost) return any cancelled Card to Motia, cut in half.
17.5 Notwithstanding any other provisions of the Contract, the Customer will remain liable in respect of any transactions made with the Card after its cancellation but prior to its receipt by Motia.
18. LOST OR STOLEN CARDS
18.1 If a Card is a Lost Card or has not been received by the Customer when due or the PIN number has been compromised, the Customer must immediately notify Motia via www.motia.com or, support@motia.com or, by calling 0113 298 1000, or at the address notified by Motia to the Customer from time to time or, if no such address is notified, at Alexandra House, Lawnswood Business Park, Redvers Close, Leeds, LS16 6QY and obtain a crime reference number from the police (in the case of theft) and Motia may, at its sole discretion:
18.1.1 immediately terminate the Contract; or
18.1.2 provide the Customer with a replacement Card, if required; or
18.1.3 in any event, the Card will be placed on stop.
18.2 The Customer will provide Motia with all information in its possession as to the circumstances relating to a Lost Card or the other events detailed in Clause 16.1.
18.3 CARD PROTECT (or Fraud Protect). Motia will automatically provide to the Customer a service covering the Customer for losses up to a maximum of 24,000 litres on its account from the point at which the Customer notifies Motia (in accordance with Clause 18) that a Card is a Lost Card. The Customer will be charged an amount per month for Card Protect unless the Customer contacts Motia in writing to opt out of this service. Current fees can be found at the Motia Standard Fee and tariff webpage
18.4 Save for liability in relation to Wild Cards, the Customer shall be liable to pay for any transactions for Goods and / or Services with Suppliers using a Card issued to it at any time during the period from the time of issue by Motia until two working days from the notification of the circumstances set out in Clause 16.1 being received by Motia, save that the Customer will remain liable for use of the Card if Motia has reasonable grounds to believe that:
18.4.1 the Customer gave the relevant Lost Card or PIN to an unauthorised person; or
18.4.2 the circumstances resulting in the Lost Card was due to the negligence of either the Customer; or
18.4.3 prior to the Card becoming a Lost Card, the Customer failed to comply with a request made by Motia to destroy or return the Lost Card to Motia; or
18.4.4 the Customer was in breach of the Contract.
18.5 Clause 17 is subject to the provisions of Clause 18.
19. LIABILITY
19.1 Nothing in these Main Terms and Conditions or any Special Terms and Conditions shall exclude or limit Motia's liability for death or personal injury caused by its negligence or for fraudulent misrepresentation or for any other liability which cannot be excluded by law.
19.2 Subject to Clause 17.1, Motia accepts no liability and gives no warranty, express or implied (to the extent permissible by law), whether arising by common law or statue in relation to:
19.2.1 any transaction entered into by a Customer;
19.2.2 any Goods and / or Services supplied to the Customer including the satisfactory quality or fitness for purpose of the Goods and / or Services; or
19.2.3 the provision of the Bunkerstock service set out in clause 8.7 or any Fuel supplied to the Customer.
19.3 Motia shall not have any liability to the Customer in respect of any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known, direct, indirect or consequential or otherwise), loss of profits, loss of anticipated savings, loss of business, loss of goodwill, loss of use or downtime, loss of or corruption to data or other information. Furthermore, Motia shall not be liable for any indirect or consequential loss or damage and Motia does not accept any liability save where expressly accepted under the Contract.
19.4 Motia will not be liable for any delay or failure to carry out obligations under the Contract where the delay or failure arose as a consequence of matters beyond Motia’ reasonable control including (but not limited to) the actions or inactions of Motia, the Customer or its representatives, or acts of God, explosions, terrorism, transport failures, labour shortages, riots, strikes affecting the fuel supply sector or war – where such event occurs, Motia may suspend or terminate the Contract.
19.5 Subject to Clause 19.1, Motia’s aggregate liability to the Customer in respect of each claim or series of claims arising out of or in connection with:
19.5.1 the use of a Card (including without limitation as a result of breach of contract, negligence or any other tort, under stature or otherwise) will be limited to a maximum of £5,000 or
19.5.2 the provision of Fuel on a Bunkerstock basis shall be limited to a maximum of £80,000.
19.6 The parties acknowledge that the Contract reflects a fair allocation of risk and that the fees payable reflect the risk borne by the parties.
19.7 The Customer undertakes to indemnify Motia from and against any and all losses, claims, costs, demands or expenses which Motia may incur as a result of a Card being used by an unauthorised third party or by reason of any negligence, fraudulent, dishonest or criminal conduct relating to the use of the Card by the Customer, the Customer's employees, agents, representatives and / or sub-contractors.
19.8 The Customer will be liable in respect of any transactions made with any Wild Cards (even if the Wild Cards are Lost Cards) and will indemnify Motia for all costs, claims and demands in connection with the use of Wild Cards, however they arise.
19.9 The terms of this Clause 19 shall continue in force notwithstanding the termination of the Contract.
20. DATA PROTECTION
20.1 In this clause the following terms shall have the following meanings:
“Act” refers to the UK Data Protection Act 2018;
“Customer Data” means all necessary personal data relating to any Customer (including name, contact details, vehicle details and any other data relevant to their use of Cards and/or Services) and any data subject employed or engaged by any Customer that is provided to Motia under these Main Terms and Conditions;
“Data Protection Laws” means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426.“Privacy Policy” refers to Motia’s privacy policy located on its website; and
”UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4) of the Data Protection Act 2018.
20.2 The terms data privacy/protection (if not otherwise defined), personal data, data processor and data subject, shall have the meaning(s) given to them in the Act.
20.3 Where Motia processes any Customer Data, Motia will comply with all requirements and obligations under the Data Protection Laws.
20.4 The Customer shall notify its employees and others using its Cards and/or Services of the:
20.4.1 nature and identity of Motia as a data processor;
20.4.2 categories of personal data transferred; and
20.4.3 the Privacy Policy.
20.5 Motia shall:
20.5.1 update the Privacy Policy (where necessary to remain compliant with the Data Protection Laws); and
20.5.2 maintain a valid and subsisting registration with the Information Commissioner’s Office to process the Customer Data (where required to do so).
20.6 Motia shall only process the Customer Data it reasonably requires to provide its services. All Customer Data processed by Motia shall be in accordance with the Privacy Policy (to the extent it complies with the Data Protection Laws) and the Customer’s written instructions.
20.7 Motia shall:
20.7.1 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of, and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected (having regard to the state of technological development and the cost of implementing any measures;
20.7.2 ensure that all personnel, contractors, agents or representatives who have access to and / or process personal data at any time are:
(a) limited only to those natural persons who need access to the personal data for Motia to meet its obligations under these Terms and Conditions;
(b) informed of the confidential and sensitive nature of personal data; and
(c) are aware of their obligations, and the data subjects’ rights, under the Data Protection Laws;
20.7.3 assist the Customer (at the Customer’s cost) within a reasonable period in responding to any request from a data subject in connection with any exercise of any of its rights under the Data Protection Laws and to provide assistance with respect to security, breach notifications, impact assessments and consultations, where requested;
20.7.4 provide, on request, a copy of all personal data held by Motia in the format and on the media reasonably specified by the Customer (at the Customer’s cost);
20.7.5 notify the Customer as soon as reasonably practicable on becoming aware of a personal data breach, including if any personal data is lost, destroyed or becomes damaged, corrupted or unusable, and where requested or required to assist, to notify the data subject of such breach;
20.7.6 keep and maintain complete and accurate records and information of any processing of personal data it carries out on behalf of the Customer, and permit (on reasonable notice), the Customer (or the Customer’s representative) to inspect all such records relating to the processing of personal data by Motia to demonstrate its compliance with this clause; and
20.7.7 notify the Customer (as soon as reasonably practicable), if it has been given an instruction which doesn’t comply with the Data Protection Laws.
20.8 The Customer hereby provides its prior, general authorisation for Motia to:
20.8.1 appoint processors to process the Customer Personal Data, provided that the Supplier:
(a) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this Clause 20;
(b) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
(c) shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to the Supplier's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.
20.8.2 transfer Customer Personal Data outside of the UK as required for the Purpose, provided that Motia shall ensure that all such transfers are effected in accordance with Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of Motia, including any request to enter into standard data protection clauses adopted by the UK Information Commissioner from time to time.
20.9 The Customer
20.9.1 warrants that it is the data controller with regard to the Customer Data and will comply with data controller obligations within the Data Protection Laws; and
20.9.2 warrants that it has the relevant consent of all affected data subjects to those transfers as required by UK GDPR.
20.10 In addition to any other consequences of termination set out in these Main Terms and Conditions, each party will (at the disclosing party’s request) promptly return to the other all confidential information and any other property (including any personal data and Customer Data) which is in its custody or control, or will destroy the same and certify such destruction.
20.11 The Customer shall immediately notify Motia in writing of any changes in the Customer's name, address, bank details or any change of legal entity of the Customer. The Customer ensures that any data provided to Motia about the Customer is accurate.
21. INTELLECTUAL PROPERTY
21.1 The Customer acknowledges and agrees that Motia and/or its licensors own all intellectual property rights in the Cards, Goods and all Services. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Cards, Goods or Services or any documentation pertaining to them.
21.2 In respect of any third-party Intellectual Property rights, the Customer’s use of any such Intellectual Property rights is conditional on Motia obtaining a written licence from the relevant licensor on such terms as will entitle Motia to license such rights to the Customer.
21.3 Motia owns all data (excluding Customer Data (as defined below)) generated by or related to the delivery, operation or performance of the Cards, Goods and Services.
21.4 The Customer owns all data provided by or on behalf of the Customer to Motia in connection with the delivery, operation or performance of the Cards, Goods and Services including user-generated content (the “Customer Data”). Motia may use this Customer Data, including the Customer’s name, email, phone number, vehicle registration number, and GPS location as required for the purpose of delivering, operating or performing the Cards, Goods or Services.
21.5 The Customer authorises Motia to retain and use a copy of the Customer Data, in anonymised aggregated form (such that the identity of the Customer and any Data Subject is not ascertainable) for the purpose of carrying out data analytics and as is otherwise necessary in order to develop new products and services (“Statistical Data”).
21.6 The Customer hereby grants Motia a non-exclusive, royalty free, fully-paid, irrevocable, worldwide right and licence to access, review, analyse, use, manipulate, copy, and modify the Statistical Data for its own purposes, including but not limited to using the information to produce and distribute reports, analyses and data based upon the Statistical Data. Motia shall not use for its own purposes or disclose to any third parties any Personal Data. The foregoing restriction shall not apply to disclosures of Statistical Data and/or Personal Data that are:
21.6.1 required by law in response to a request from law enforcement authorities;
21.6.2 made in connection with a court order or other similar demand;
21.6.3 made to Motia’ affiliates or related companies.
21.7 The Customer shall indemnify and hold Motia harmless from all liabilities, costs, expenses, damages and losses suffered or incurred by Motia arising out of or in connection with: (a) any claim made against Motia for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Customer Data; and (b) any claim made against Motia by a third party arising out of or in connection with a breach of the Contract by the Customer.
22. CONFIDENTIALITY
22.1 Motia and the Customer agree that for the duration of a Contract and for a subsequent period of three years they will, at all times, treat any Confidential Information of the other party as confidential and shall not permit the same to be copied, used, disclosed or disposed of except in accordance with the Contract. The provisions of this clause 19 shall not apply to Confidential Information which is already in the public domain or becomes so at a future date other than by breach of the Contract.
23. VARIATION
23.1 A Contract may not be varied except by a written document signed by or on behalf of the Customer and Motia.
24. NOTICE
24.1 Any notice required to be given under the Contract (or otherwise between the parties) shall be in writing and delivered personally or sent by first class post or e-mail to the registered office or email address of the other party or such other address or email address (as appropriate) as notified by the parties in writing or logged onto MyMotia.
24.2 Any notice shall be deemed to have been duly received:
24.2.1 if delivered personally, at the time of delivery;
24.2.2 in the case of pre-paid first class post or recorded delivery or registered post, 48 hours from the date of posting if from and to an address in the United Kingdom or Northern Ireland; and
24.2.3 in the case of e-mail, at the time the e-mail enters the IT system of the intended recipient provided that no error message indicating failure to deliver has been received by the sender and provided further that within 24 hours of transmission a hard copy of the e-mail is sent by post to the intended recipient in accordance with the provisions of this Clause 18,
24.2.4 in the case of the details being logged on MyMotia, at the time it enters the IT system of the intended recipient provided that no error message indicating failure to deliver has been received by the sender in accordance with the provisions of this Clause 24.
24.3 Provided that if deemed receipt occurs before 9am on a Business Day the notice will be deemed to have been received at 9am on that day, and if deemed receipt occurs after 5pm on a Business Day, on Christmas Eve (or last working day prior to Christmas day) after 12 noon, or on a day which is not a Business Day, the notice will be deemed to have been received at 9am on the next Business Day.
25. THIRD PARTY RIGHTS
25.1 A person who is not a party to the contract shall have no rights pursuant to the Contract (Rights of Third Parties) Act 1999 to enforce any term of these Terms and Conditions.
26. ASSIGNATION
26.1 Motia may freely assign its rights and obligations under these Terms or the Contract without the Customer’s consent. Save as expressly provided in a Contract, the Customer may not without the prior written consent of Motia assign, transfer, charge, license or otherwise dispose of or deal in a Contract or any rights or obligations under these Main Terms and Conditions and/or any Special Terms and Conditions.
27. SEVERANCE
27.1 If any provision of these Main Terms and Conditions and/or Special Terms and Conditions shall be deemed void for any reason whatsoever, but would be valid if part of the wording were deleted, any such provision shall apply with such modifications as may be necessary to make it valid and effective.
28. ENTIRE AGREEMENT
28.1 The Contract constitutes the entire agreement between the Parties in relation to its subject matter, and supersedes all previous agreements, arrangements, and understandings between the Parties in respect of that subject matter, provided always that the usage of the Website by the Customer shall be governed by the Website Terms and Conditions.
29. NO PARTNERSHIP OR AGENCY
29.1 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
30. NO WAIVER
30.1 Failure or delay by either party in enforcing or partially enforcing any provision of this Contract will not be construed as a waiver of any of its rights under this Contract. Any waiver by one party of any breach of, or any default under, any provision of the Contract by the other party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
31. LEGAL CONSTRUCTION
31.1 The Contract shall be construed in accordance with English Law and the parties irrevocably agree, that the courts of England and Wales shall have non-exclusive jurisdiction over any dispute or claim arising out of or in connection with the Contract.
ADDEDNDUM 1
MILEAGE EXPENSES – SPECIAL TERMS AND CONDITIONS
The following Terms and Conditions govern the use of the Software (as defined below) and related Services (as defined below) provided by Motia.
1. DEFINITIONS
1.1 In these Terms and Conditions the following words, terms or expressions have the following meanings: “Agreement” means the contract between the parties for the supply of the Services which incorporates these Terms and Conditions:
“Authorised Users” – means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in Clause 2.2.3.
“Business Day” – means any day which is not a Saturday, Sunday or public holiday in the UK.
“Customer Data” – means the data inputted by the Customer, Authorised Users, or Motia on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services and the Documentation.
“Documentation” – means the documentation made available to the Customer by Motia online via www.motia.com which sets out a description of the Services and the user instructions for the Services (all as may be amended by Motia from time to time).
“Dongle” – has the meaning given in Clause 4.4.
“Effective Date” – means the date of this Agreement or the date the Customer accesses the Software or Services (whichever is the earlier).
“Fees” – means the fees for the Customer’s use of the Services as notified to the Customer by Motia from time to time, and which may include a charge per Authorised User.
“Helpdesk” – means the telephone helpdesk provided by Motia (telephone number set out at www.motia.com) to provide support in relation to the Services.
“Lite” – means the Services as described within the Documentation under the heading “Lite” (as may be amended by Motia from time to time).
“Mobile App” – means the mobile application which may be downloaded by the Customer and/or Authorised Users, further details of which are set out in the Documentation.
“Motia” – means Fuel Card Services Limited trading as Motia (CRN: 2107821) whose registered office is at Alexandra House. Lawnswood Business Park, Redvers Close, Leeds, LS16 6QY.
“Normal Business Hours” – means 9.00 am to 5.00 pm local UK time, each Business Day.
“Pro” – means the Services as described within the Documentation under the heading “Pro” (as may be amended by Motia from time to time).
“Services” – means the services (being Lite or Pro, as appropriate) provided by Motia to the Customer via www.motia.com (or any other website notified to the Customer by Motia from time to time) and/or via the Mobile App (if applicable), as more particularly described in the Documentation.
“Software” – means the online software applications (including the Mobile App, if applicable) provided by Motia as part of the Services.
2. AUTHORISED USERS
2.1 Subject to the Customer paying for the Services in accordance with Clause 8, the restrictions set out in this Clause 2 and this Agreement, Motia hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the appropriate Services and the Documentation solely for the Customer’s internal business operations.
2.2 In relation to the Authorised Users, the Customer undertakes that:
2.2.1 it will not allow or suffer any Authorised User’s login details to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
2.2.2 each Authorised User shall keep a secure password for his use of the Services and Documentation and each Authorised User shall keep his password confidential;
2.2.3 it shall maintain a written, up to date list of current Authorised Users and provide such list to Motia within 2 Business Days of Motia’s written request at any time or times;
2.2.4 it shall permit Motia to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at Motia’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business; and
2.2.5 if any of the audits referred to in Clause 2.2.4 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Motia’s other rights, the Customer shall promptly disable such passwords and Motia shall not issue any new passwords to any such individual.
2.3 The Customer shall not:
2.3.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(a) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
2.3.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation;
2.3.3 use the Services and/or Documentation to provide services to third parties;
2.3.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
2.3.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 2.
2.3.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Motia.
2.3.7 The rights provided under this Clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
2.3.8 These Terms and Conditions apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. ADDITIONAL AUTHORISED USERS
3.1 The Customer may, in consideration of the payment of the relevant Fees, from time to time, add additional Authorised Users and Motia shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.
4. SERVICES
4.1 Motia shall, subject to termination of the Agreement in accordance with its terms, provide the relevant Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
4.2 Motia shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, subject to any required maintenance.
4.3 Motia will, as part of the Services and at no additional cost to the Customer, provide the Customer with access to the Helpdesk during Normal Business Hours.
4.4 Motia may provide the Customer with a GPS tracking device (referred to in the Documentation as the “GPS Mileage Capture Dongle” (the “Dongle”)) which, if used correctly and in accordance with the Documentation can assist the Customer in recording personal and business mileage.
5. MOTIA’S OBLIGATIONS
5.1 Motia undertakes that the relevant Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
5.2 The undertaking at Clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Motia’s instructions, or modification or alteration of the Services by any party other than Motia or Motia’s duly authorised contractors or agents. If the Services do not conform to the foregoing undertaking, Motia will, at its expense, use its reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 6.1.
5.3 Motia:
5.3.1 does not warrant that the Customer’s use of the Services will be uninterrupted or error free; nor that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements;
5.3.2 does not warrant that the Customer’s receipt or use of the Services (or Documentation) will ensure its compliance with, or satisfaction of, any regulatory, statutory or any other obligations (including, any requirements imposed by any tax authority). The Customer acknowledges that Motia does not provide financial, taxation or tax planning advice and that the Customer is solely responsible for managing its tax affairs; and
5.3.3 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.4 This Agreement shall not prevent Motia from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
5.5 Motia warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
5.6 Save as expressly provided for in these Terms and Conditions, all warranties, conditions and other terms (including those relating to fitness for a particular purpose, satisfactory quality, and description) implied by statute, common law, trade custom and industry practice are, to the fullest extent permitted by law, excluded from this Agreement.
6. 6. CUSTOMER’S OBLIGATIONS
6.1 The Customer shall:
6.1.1 provide Motia with:
(a) all necessary co-operation in relation to this Agreement; and
(b) all necessary access to such information as may be required by Motia in order to render the Services, including Customer Data, security access information and configuration services;
6.1.2 comply with all applicable laws and regulations with respect to its activities under this Agreement;
6.1.3 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Motia may adjust any agreed timetable or delivery schedule as reasonably necessary;
6.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
6.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for Motia, its contractors and agents to perform their obligations under this Agreement, including the Services;
6.1.6 ensure that each Authorised User has access to the internet and appropriate browser software so as to enable the Authorised Users to access the Services; and
6.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Motia’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
7. CHARGES AND PAYMENT
7.1 Motia shall invoice the Customer for the Fees (which may be in the form of an E-Bill). Motia will send invoices to the Customer monthly in arrears detailing the relevant charges. If E-Bills are not acceptable to the Customer, Motia will provide hard copy invoices at its prevailing rates.
7.2 Payment of each invoice shall be made in one payment by the Customer in full and cleared funds in the timescales and in accordance with the payment terms detailed on the relevant invoice
7.3 If Motia has not received payment on the due date, and without prejudice to any other rights and remedies of Motia:
7.3.1 Motia may, without liability to the Customer, disable access by the Customer (including any Authorised Users) to all or part of the Services and Motia shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
7.3.2 interest shall accrue on such due amounts at an annual rate equal to 4% over the then current base lending rate of Motia’s bankers in the UK at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.4 All amounts and fees stated or referred to in this Agreement:
7.4.1 shall be payable in pounds sterling;
7.4.2 are exclusive of value added tax, which shall be added to Motia’s invoice(s) at the appropriate rate.
8. INDEMNITY
8.1 The Customer shall defend, indemnify and hold harmless Motia against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation
8.2 In no event shall Motia, its employees, agents and sub-contractors be liable to the Customer to the extent that any alleged infringement of any third party’s intellectual property rights arising out of the use of the services or Documentation is based on:
8.2.1 a modification of the Services or Documentation by anyone other than Motia;
8.2.2 the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Motia; or
8.2.3 the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Motia or any appropriate authority.
9. LIMITATION OF LIABILITY
9.1 Except as expressly and specifically provided in this Agreement:
9.1.1 the Customer assumes sole responsibility for results obtained from the use of the Services (including, any use of the Dongle) and the Documentation by the Customer, and for conclusions drawn from such use. Motia shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Motia by the Customer in connection with the Services, or any actions taken by Motia at the Customer’s direction;
9.1.2 the Services (including the Dongle) and the Documentation are provided to the Customer on an “as is” basis;
9.1.3 Motia shall have no liability to the Customer in respect of any charges imposed by any governmental organisation or authority (including, the HMRC) in relation to the Customer’s use of the Services (including, any use of the Dongle);
9.1.4 Motia shall have no liability to the Customer in respect of any losses, damages, charges or expenses arising out of or in connection with the Customer’s use of, or the operation of, the Dongle (or any associated equipment); and
9.1.5 Motia shall have no liability to the Customer for any charges incurred by the Customer in relation to any automated licence checks being undertaken in respect of drivers whom are no longer employed by the Customer and the Customer acknowledges that it is the Customer’s responsibility to remove such persons from the relevant records.
9.2 Motia’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise (including under any indemnity), arising in connection with the performance or contemplated performance of this Agreement shall be limited to £5000 or a sum equal to 125% of the Fees paid by the Customer during the 12 months immediately preceding the date on which the claim arose (whichever is the higher).
10. TERM AND TERMINATION
10.1 This Agreement shall commence on the Effective Date and shall continue until either party terminates the Agreement in accordance with its terms.
10.2 Motia may terminate the Agreement at any time upon written notice to the Customer.
10.3 The Customer may terminate this Agreement at any time by providing 3 months’ written notice to Motia or, in the case of a contracted account holder; their termination and conditions of termination would be applied as stated separately on the signed application form.
10.4 This Agreement shall automatically terminate in the event that Motia terminates the Customer’s fuel card account due to adverse credit or payment information.
10.5 On termination for any reason:
10.5.1 all licences granted under this Agreement shall immediately terminate;
10.5.2 each party shall return and make no further use of any equipment (including, any Dongles), property, Documentation and other items (and all copies of them) belonging to the other party; and
10.5.3 Motia may destroy or otherwise dispose of any of the Customer Data in its possession unless Motia receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Motia shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all costs and expenses incurred by Motia in returning or disposing of Customer Data.
ADDENDUM 2
MOTIA VEHICLE SAFETY CHECKS – SPECIAL TERMS AND CONDITIONS
Introduction to Motia Vehicle Safety Checks
Motia Vehicle Safety Checks allows your employees driving for business to perform daily vehicle checks on all of your company, grey or private vehicles. The online Portal provides reporting tools to check compliance with all major standards. Users (as defined below) can select one of the default checklists available for cars, vans, motorbikes, PCVs and HGVs or create a customised list especially to suit their requirements. Users can report vehicle defects to company owners / transport managers to enable timely repairs to be carried out.
Motia Vehicle Safety Checks has a Portal that lists all the Users (drivers) and vehicle registration numbers for each customer. The Portal stores all information gathered from Users providing the Company Manager (as defined below) with ideal management information to enable more efficient operation of the fleet and repair services.
Motia Vehicle Safety Checks helps keep your fleet on the move and allows you to identify business critical issues earlier, preventing escalating costs. The App records the time taken to perform the check and has a robust audit trail function. The system displays unresolved vehicle defects too as a prompt to relevant staff to take appropriate action. This provides additional visibility around health, safety and other legal obligations that can often trip up fleet operators.
Company Managers can access Motia Vehicle Safety Checks through MyMotia, while vehicle Users access Motia Vehicle Safety Checks via the App. The App is available on the Apple App Store or Google Play Store and is free to download. There is a fee per user, per week for using the app. The prices can be found at www.motia.com/tariffs
Motia Vehicle Safety Checks Special Terms and Conditions of Sale
The following Special Terms and Conditions govern your relationship with Motia for the use of the Motia Vehicle Safety Checks App and Portal and Services related to the App and Portal from the Supplier.
1. DEFINITIONS
In these Special Terms and Conditions the following words, terms or expressions will have the following meanings:
“Account” means an open account with an active Direct Debit.
“App” means the Motia Vehicle Safety Checks application that can be downloaded from the Apple App Store or Google Play store and installed on to a user’s smartphone.
“Application Form” means the Supplier’s standard application form completed by the Customer and submitted by the Customer to the Supplier.
“Contract” means a contract between the Parties for the use of the Services entered into between the Customer and Supplier incorporating these Special Terms and Conditions.
“Controller” means the entity which determines the purpose and means of the Processing of Personal Data.
“Commencement Date” means the beginning of the first billing period.
“Company Manager” means the person chosen by the Customer who will have main administration rights to the Motia Vehicle Safety Checks Portal.
“Customer” means a body corporate, partnership or individual acting in the course of its business and in whose name the account is held and maintained and includes employees, sub-contractors or any other person acting on behalf of the Customer.
“Motia Vehicle Safety Checks” is a brand name for the vehicle walk round product and platform that runs the Service provided by the Supplier.
“MyMotia” means the online Portal used by the Supplier to provide the Customer with access to their account data and additional products and services that the Supplier provides.
“Portal” means the online method of access to MyMotia and Motia Vehicle Safety Checks where Customers may use the Motia Vehicle Safety Checks system.
“Prices” means the price for the Services set out at www.motia.com/tariffs as agreed by the Customer and Motia.
“Services” or “Service” means the services as agreed with the Customer from time to time and set out in the relevant Application Form.
“Software” means the Supplier’s proprietary application software and third party licenced software where applicable in existence at the commencement of the Contract or developed as a product of the Services.
“Special Terms and Conditions” means the contents of this document.
“Users” or “User” means a person or employee of the Customer who is authorised by the Customer to use the Motia Vehicle Safety Checks Portal and / or App.
“Vehicle” means a unique vehicle registration number that is assigned to a vehicle and is used in the App and Portal for vehicle checking.
“Website” means the content (including all and any displayed materials and graphics such as databases, maps, photographs and other images) of the Supplier websites, Portals and Apps.
2. PRICES
2.1. The Supplier will charge a fee to the Customer for use of the Motia Vehicle Safety Checks product. The Prices are an amount per Driver per week. Other fees may also apply. Details of Prices will be published and available to the Customer from time to time at www.motia.com/tariffs. The Motia Vehicle Safety Checks product is only available on a business to business basis.
2.2. The Customer shall pay the Prices due, via Direct Debit, to the Supplier on the same payment terms that their Account is set up on. If the Customer does not have an Account then payment for Motia Vehicle Safety Checks will be taken on a monthly basis by Direct Debit or Credit Card in accordance with Prices.
3. USE OF THE PRODUCT
3.1. To request the Motia Vehicle Safety Checks Services, the Customer needs to contact the Supplier by telephone or email, or through the MyMotia Portal. On receipt of the request to set up the Motia Vehicle Safety Checks Services, the Supplier will add the Customer to the Motia Vehicle Safety Checks Portal. The Supplier will add the Company Manager as the contact for the Customer. The Customer will provide the Supplier with the name, email address and contact phone number of the Company Manager. The Company Manager will be sent a system generated email from the Motia Vehicle Safety Checks Portal. On receipt of the email the Company Manager will be asked to create a secure password. Passwords must be secure and created by using a mixture of characters, numbers and special symbols for added security. The Company Manager must remember the password and must not share it. Once the password is created, the Company Manager can have access to the Motia Vehicle Safety Checks Portal. In the Motia Vehicle Safety Checks Portal, the Company Manager can add and remove Users and vehicles. For each User that is added, the Company Manager must input a driver name, email address and vehicle registration number. The User will then receive an email which will allow them to download the App from the Apple App Store or Google Play Store.
3.2. The App and Portal may only be used while the Customer has a valid Account with the Supplier.
3.3. The Supplier may withdraw at any time the Motia Vehicle Safety Checks Services and stop the Customer from using it if the Supplier reasonably believes that the Customer is misusing the Services.
3.4. Any use of the App and/or Portal in any manner not permitted under these Special Terms and Conditions, including, without limitation, resale, transfer, modification, or distribution of all or part of the App and/or the Portal is prohibited.
3.5. To use the App and Portal, the Customer must have signed up to the Motia Vehicle Safety Checks Portal and App via: (i) the MyMotia Portal; and (ii) Google Play Store; or (iii) the Apple App Store. The Customer will be responsible for the correct setting up of Users and Vehicles on the Portal. All data added to the Portal and App must be accurate, up to date, truthful and not misleading.
3.6. Users of the App must have an internet enabled eligible mobile device, which is connected to the internet. Users must use the most up to date version of the App that is available from either the Apple App Store or Google Play Store.
3.7. Users may incur and are solely responsible for any charges from their mobile phone network operator for downloading the App and using the Motia Vehicle Safety Checks Services.
3.8. A free version of Motia Vehicle Safety Checks can be downloaded at any time from the Apple App Store or Google Play Store. The free version contains only limited features. The Supplier is not required to provide any documentation, support, telephone assistance, or enhancements or updates to the App and/or Portal.
3.9. The App and / or Portal must not be used whilst driving on private or public roads throughout the UK. The Highway Code must be followed correctly for the use of mobile phones whilst driving.
3.10. Security of the App and Portal is important to the Supplier. While the Supplier will take reasonable, appropriate measures, the Supplier cannot guarantee that the App and Portal will always be available, fault free and secure or that it will be free from viruses or other harmful programmes. You acknowledge that you are aware of, and accept this risk, including, without limitation, the risk that an unauthorised third party may gain access to your App and Portal which contains personal and confidential information and that the security of personal devices is the sole responsibility of the Customer.
3.11. The Customer will not, and shall ensure any Users do not, use the App in any way that: (a) breaches any applicable law; (b) is unlawful or fraudulent; (c) intends to cause harm to any property or person; (d) bullies, intimidates or humiliates any person; (e) transmits, or procures the sending of, any solicited or unauthorised advertising or promotional material or any other form of spam; and (f) transmits as viruses, Trojan horses or any other harmful programmes.
4. TERMINATION
4.1. The Contract may be terminated by either party at any time by giving not less than 30 working days prior written notice to the other party.
4.2. The Contract shall automatically terminate upon the termination of any Contract the Customer may have with the Supplier for the provision of fuel cards or Motia Vehicle Safety Checks.
5. CONSEQUENCES OF TERMINATION
5.1. Immediately upon termination of the Contract:
5.1.1. the Customer shall stop using the Motia Vehicle Safety Checks Portal and App and the Service will be cancelled by the Supplier;
5.1.2. the whole outstanding balance of the Customer's account shall (at the Supplier's discretion) become due and payable in full to the Supplier; and
5.1.3. the right of the Customer to use the App and Portal shall terminate (but without prejudice to the Customer's liability for the use of the Portal and App after termination or to the rights of the Supplier already accrued at the date of termination).
6. CANCELLATION
6.1. If the Customer wants to cancel the Motia Vehicle Safety Checks Service under the Contract then this must be done in writing and an email sent to support@motia.com stating the Customer’s account number and company name, or a letter sent to Motia, Alexandra House, Lawnswood Business Park, Redvers Close, Leeds, LS16 6QY. Once the Customer has cancelled the Contract or the Contract has otherwise been terminated the Supplier will cancel access to the Portal with immediate effect. The Customer will no longer have access to the Portal. If the Customer wishes their Customer Data to be returned to them then they must confirm this in writing at the same time as the request to cancel the Service or notice of termination, as the case may be, the Customer’s data will then be securely sent to the Company Manager email address. A fee will be charged for this request. The Customer will be notified of the fee in advance of the data being returned to the Customer. If the Customer does not request the return of the data then all the data will be deleted completely from the Supplier’s system 12 months after the Contract was cancelled or terminated without any further notice to the Customer.
6.2. Failure to cancel the Service will result in payment still being taken.
6.3. The Supplier may cancel or suspend the Portal and / or App any time without notice and reserves the right to refuse to reopen the Service.
7. LIABILITY
7.1. Nothing in the Contract shall limit any liability which cannot legally be limited including liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; and (c) breach of the terms implied by section 12 of the Sales of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.
7.2. Subject to clause 12.1 above, the Supplier’s total liability to the Customer and any User shall not exceed the lesser of: (a) Prices paid by the Customer; and (b) £100,000.
ADDEDNDUM 3
MOTIA VEHICLE MAINTENANCE SPECIAL TERMS AND CONDITIONS
The following Terms and Conditions govern your use of the fuel cards issued and/or administered by Motia for the purchase of Service Maintenance and Repair through Motia Vehicle Maintenance
1. DEFINITIONS
1.1. In these Terms and Conditions the following words, terms or expressions will have the following meanings:
"Motia Vehicle Maintenance" means the portal operated by Motia by which the Customer can use to book a vehicle in for Service, Maintenance and/or repair. Where they approve the work that needs to be completed and this is subsequently invoiced to the customer by Motia.
"Service Maintenance and Repair" means the services of service, maintenance and repair of the Customer’s vehicles by a Supplier;
“Supplier” means the authorised person, company or partnership (Garage, whether independent or Franchised) that is accepted on the 1Link garage network and which operates a Site and sells the Goods and/or services.
"Motia Vehicle Maintenance Special Terms and Conditions" means these terms and conditions, as amended by Motia from time to time;
2. ACCEPTANCE
2.1. All quotations, offers and/or tenders are made and all orders using the Portal through Motia Vehicle Maintenance are accepted by Motia subject to these Motia Vehicle Maintenance Special Terms and Conditions. All prices quoted are subject to alteration or withdrawal by Motia from time to time without notice.
2.2. No Contract is created between Motia and the Customer until the duly authorised documentation relating to the Contract has been processed by Motia and all prior correspondence or oral communications are to be regarded as superseded and not forming part of the Contract.
2.3. All drawings, brochures, descriptive matter, price lists or advertisements howsoever supplied are approximate only and intended for general guidance and information purposes only and shall not form part of the Contract. The parties hereby acknowledge and confirm that they have not entered into the Contract in reliance upon any representation or warranty or other undertaking not fully reflected in the terms of the Contract.
2.4. These Motia Vehicle Maintenance Terms and Conditions (as amended) shall apply to all orders made using the Portal, through Motia Vehicle Maintenance by the Customer, unless Motia notifies the Customer otherwise.
3. PURCHASE OF GOODS AND/OR SERVICES AND PRICING
3.1. Supplies of Goods and/or Services, acquired through the portal through Motia Vehicle Maintenance by the Customer shall be invoiced at the price shown in the Portal, that has been approved by the Customer plus a reasonable handling fee. Full details of all costs and charges shall be made clear to the Customer prior to the Customer entering a transaction.
3.2. All prices are subject to all Government or other taxes, duties, levies, charges, surcharges, assessments or impositions where applicable at the appropriate rate and any variation of the same at any time for the account of the Customer.
4. PAYMENT
4.1. Payment of each invoice shall be made in one payment by the Customer in full and cleared funds in the timescales and in accordance with the payment terms detailed on the relevant invoice.
4.2. If the Customer fails to pay an invoice by the due date (as referred to in clause 5.1), Motia may at its discretion:
4.2.1. place the Account on stop and suspend the Motia Vehicle Maintenance service; and/or
4.2.2. place the Account on stop and suspend the Customer’s ability to use Motia Vehicle Maintenance. For the avoidance of doubt, Motia’s rights under the Motia standard card terms and conditions shall apply in addition to any rights reserved in the Motia Vehicle Maintenance Special Terms and Conditions.
5. TERMINATION
5.1. The Contract may be terminated by either party at any time by giving not less than 30 working days’ prior written notice to the other party.
5.2. Motia shall be entitled to treat the Contract as terminated with immediate effect and without notice in the event that:-
5.2.1. the Customer is in breach of any of these Motia Vehicle Maintenance Special Terms and Conditions;
5.2.2. If the Customer (as applicable) goes into, or is perceived by Motia as likely to enter into receivership, administration, bankruptcy, liquidation or similar proceedings or makes any arrangement with its creditors or any other event occurs which, in the opinion of Motia, may affect the ability of the Customer to comply with any or all of its obligations or meet any of its liabilities under these Motia Vehicle Maintenance Special Terms and Conditions.
5.2.3. Motia receives a credit reference (which the Customer hereby agrees Motia may carry out from time to time in relation to the Customer) which is, in Motia's opinion, unsatisfactory;
5.2.4. the Customer undergoes a change in control (where “control” means the ability, directly or indirectly, to direct the affairs of another (whether by means of ownership, contract or otherwise)). The Customer agrees to notify Motia not later than 2 weeks prior to any change in control of it occurring; or
5.2.5. Motia receives notification from its insurers that credit insurance cover has been reduced or withdrawn from the Customer.
5.3. The Contract shall automatically terminate upon the termination for any reason whatsoever of any agreement with the Supplier and / or pursuant to termination of a Card under the Motia Standard Terms & Conditions of Card Use and such termination will be confirmed by written notice to the Customer by Motia.
5.4. Motia may cancel or suspend Motia Vehicle Maintenance at any time without notice and reserves the right to refuse to reinstate Motia Vehicle Maintenance.
6. CONSEQUENCES OF TERMINATION
6.1. In the event of termination of the Contract:
6.1.1. the Customer shall cease using the Motia Vehicle Maintenance;
6.1.2. the whole outstanding balance of the Customer's account shall (at Motia's discretion) become due and payable in full to Motia; and
6.1.3. the right of the Customer to use the Portal on Motia Vehicle Maintenance shall terminate (but without prejudice to the Customer's liability for the use of the Card after termination or to the rights of Motia already accrued at the date of such termination).
7. IMPORTANT INFORMATION: LIMITATION OF MOTIA LIABILITY
7.1. The Customer acknowledges that Motia will sub-contract the provision of the Goods and / or Services to the Suppliers. The Customer acknowledges that in the event the Customer does not authorise a transaction for the supply of Goods and / or Services via the Motia Vehicle Maintenance website within 60 minutes of it being presented to the Customer, that the Customer authorises Motia to review and authorise the transaction on behalf of the Customer.
7.2. Motia warrants that on delivery, the Goods and / or Services shall be free from material defects in design, material and workmanship; be of satisfactory quality (within the meaning of the Consumer Rights Act 2015); and be fit for any purpose held out by Motia. Motia will to the extent permissible pass on to the Customer the benefit of any warranty given by the Supplier and the manufacturer of the Goods and / or Services.
7.3. Subject to the following paragraph, if (i) the Customer gives to Motia and its Supplier notice in writing within a reasonable time of discovery that some or all of the Goods and/or Services do not comply with the warranty set out above, (ii) Motia or the Supplier are given a reasonable opportunity of examining such Goods and (iii) the Customer (if asked to do so by Motia) return such Goods to the Supplier’s place of business, then Motia shall, at Motia’s option either repair or replace the defective Goods or refund the price of the defective Goods in full.
7.4. Motia shall not be liable for the failure of the Goods and/or Services to comply with the above warranty if (i) the Customer makes any further use of such Goods after giving a notice in accordance with the paragraph above, unless authorised by Motia to as reasonably necessary to drive the relevant vehicle to a home or business address or a garage, (ii) such Goods are altered or repaired by or on behalf of the Customer without Motia written consent or that of Motia Supplier, or (iii) the defect arises as a result of fair wear and tear, wilful damage, negligence, abuse or abnormal working conditions.
7.5. Except as provided above Motia shall have no liability to the Customer in respect of the failure of the Goods and /or Services to comply with the warranty set out above. The above terms shall apply to any repaired or replacement Goods supplied by Motia as above. Motia warrants to you that the Services will be provided using reasonable care and skill. If the Customer gives to Motia and the Supplier notice in writing within a reasonable time of discovery that the Services do not comply with the warranty set out above Motia shall, at Motia option, re-perform the Services or refund the price of the defective Services in full. Nothing in this agreement shall limit or exclude Motia liability for: death or personal injury caused by Motia negligence, or the negligence of Motia employees, agents or subcontractors; fraud or fraudulent misrepresentation.
7.6. Motia and any of its employees, representatives, sub-contractors or agents of Motia shall not be liable to the Customer in respect of any inaccurate information about purchases of Goods and/or Services made by use of the Portal where such inaccuracy is caused by incorrect information provided by the Customer or a Supplier.
7.7. Neither Motia (nor the Card Company) shall be liable in any way if the Supplier refuses to supply Goods and/or Services for any reason whatsoever.
7.8. The Customer undertakes to indemnify Motia from and against any and all losses, claims, costs, demands or expenses which Motia may incur as a result of a Card being used by a third party other than the Customer to purchase Goods and / or Services through Motia Vehicle Maintenance or by reason of any negligence, fraudulent, dishonest or criminal conduct relating to the use of the Card by the Customer, and/or the Customer's employees, agents, representatives and/or sub-contractors.
7.9. The terms of this clause 7 shall continue in force notwithstanding the termination of the Contract.
8. MOTIA WEBSITE
Fees may be charged if the Customer asks Motia to supply information or undertake tasks that are available or could be undertaken via the Motia Vehicle Maintenance website. The Customer must comply with the website conditions (below), and not allow anyone else to use the Customer’s password and other access permissions. Motia may at any time withdraw permission for the Customer to access the website. The Customer must keep any security or access codes confidential, and tell Motia immediately if anyone else knows or has had access to the codes.
CONTACT DETAILS
You can contact us in the following ways:
By email: support@motia.com
By phone: 0113 298 1000
(08:45am to 5.00pm, Monday to Friday not
including bank holidays)
By post – Motia, Alexandra House, Lawnswood Business Park, Redvers Close, LS16 6QY
ADDENDUM 4
MOTIA VEHICLE MAINTENANCE WEBSITE SPECIAL TERMS AND CONDITIONS
1. INTERPRETATION
1.1. In this contract unless the context otherwise requires: “Agreement” means the card agreement between you and us incorporating these terms and conditions.
“Agreement” means the agreement between Motia and the Customer for the provision of the Service as governed by all Motia Vehicle Maintenance Special Terms and Conditions as incorporated into the Main Terms and Conditions;
“Information” means the visual, textual or other information published or otherwise made available (directly or indirectly) on the Internet using the Service;
“Internet” means the global data network comprising interconnected networks using TCP/ IP (“Transmission Control Protocol/Internet Protocol”);
“Service” means the electronic trading platform on website www.motia.com relating to the Motia Vehicle Maintenance solution and any other optional services;
“Service Documentation” means all documentation supplied (or to be supplied) by us in connection with the provision of the Service either in electronic or written form;
“Site” means the Motia Vehicle Maintenance website www.servicenetwork.1link.co.uk
“Software” means the program(s) which will be made available by us to you for use by you to gain access to the Service;
“Subscriber” means a person or organisation licensed by us or Epyx Ltd to use the Service under a contract;
“Third Party Systems” means any software program(s) used in or incorporated into the Software or the provision of the Service which is not owned by us;
“Third Party Supplier” means a person or organisation with whom Epyx Ltd and Allstar Business Solutions Ltd has, on behalf of us, reached agreement for the provision of Information through the Service;
“Transaction” means any event where you create or transmit an enquiry on the Service to a Subscriber or Third Party Supplier, resulting in the transmission of Information.
“You”, “Your” means the account holder set out in the agreement. It includes any person whom we believe is acting with your authority or knowledge;
“We”, “Us”, “Our” means Fuel Card Services Ltd. Please note that the Service is provided for us by Allstar Business Solutions Limited and Epyx Ltd.
1.2. Subject to Condition 1.1, words and phrases defined in the Main Terms and Conditions shall have the same meaning where used in these Special Terms and Conditions.
1.3. The Main Terms and Conditions, these Special Terms and Conditions and the Service account application form displayed and completed online or offline set out the entire agreement between you and us for the provision of the Service.
1.4. Any gender includes all genders and references to the singular shall include reference to the plural and vice versa;
1.5. Reference to either party shall include a reference to that party’s employees, agents and sub-contractors;
2. PROVISION OF THE SERVICE
2.1. These Special Terms and Conditions are incorporated into the Main Terms and Conditions and any use by you of the Service shall be deemed to be confirmation of your acceptance of them.
2.2. We agree to provide you with the Service for the duration of the Agreement.
2.3. The Agreement does not include the provision of telecommunication services necessary for connection to the Service. You are responsible for arranging the appropriate telecommunications service.
2.4. You are responsible for providing suitable hardware or communications equipment necessary to enable access to the Service.
3. LICENCE
3.1. Subject to the terms of the Agreement, you may use the Software and Service Documentation on a non-exclusive basis, but only to the extent necessary for you to access the Service and only in the United Kingdom.
3.2. You must not transfer, assign or sub-license the right to use the Software or Service or attempt to do so.
3.3. The Service must not be used:
3.3.1. Fraudulently or in connection with a criminal offence;
3.3.2. to send, receive, upload, download, use or re-use any material which is offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of copyright, confidence, privacy or any other rights;
3.3.3. to cause annoyance, inconvenience or needless anxiety whether to us, any internet or platform service provider, any Subscriber or any other person by any means including using the Site for persistently sending requests for information without a corresponding level of transaction; or 3.4.4 to send unsolicited advertising or promotional material;
3.3.4. other than in accordance with the acceptable use policies of any connected networks or Third Party Suppliers; or
3.3.5. in a way, whether knowingly or otherwise, which would impair the operation of the Site or Service or put it in jeopardy.
3.4. Without written consent and without affecting any applicable statutory rights under the Copyright, Designs and Patents Act 1988 (as amended by the Copyright (Computer Program) Regulation 1992) you must not and must not permit any other person to:
3.4.1. disassemble, reverse engineer, decompile or in any other way interfere with the Software;
3.4.2. modify the Software;
3.4.3. copy, reproduce, download or make the Software available online; or
3.4.4. create any new software partly or wholly based on the Software or otherwise commercially exploit the Software for any purpose.
3.5. You must tell us immediately if any third party makes or threatens to make any claim or issue legal proceedings against you relating to use of the Service and you will, upon request, immediately stop the act or acts complained of. If requested by us, you will send us details of the claim(s) in writing.
3.6. You acknowledge that we are providing a communication service and play no part in, and have no responsibility for, the accuracy or timeliness of Information which you may access and retrieve through your use of the Service. As the Information is ultimately provided by a Third Party Supplier, we give no warranty, representation, condition or undertaking whatsoever whether express or implied and whether by statutory or common law or otherwise as to the accuracy or fitness for purpose of the Information.
3.7. As the originator of the Information is a Third Party Supplier, you will at all times comply with the Third Party Supplier’s terms and conditions in relation to the access, provision and use of the Information.
3.8. You acknowledge that we may vary the technical specification of the Service from time to time and offer updates or modifications to the Software.
3.9. You will use the Software and the Service only for the purpose of your own business and will not market or exploit the Software or Service in any way, or sell the Information to any Subscriber or other third party without our prior written consent.
4. OUR OBLIGATIONS
4.1. We warrant that the Software will not infringe any third party rights when used, as intended, in relation to the Services.
4.2. We will take reasonable steps to ensure that the Software is free of any viruses, but we recommend that you use your own virus protection software.
4.3. We will take reasonable steps to ensure that the Service is continuous and that no interruption in the access to the Site or the Service, relating to an event within our control, is longer than 90 minutes.
4.4. We give no guarantee that the Software and/or the Service will never be faulty but agree to use all reasonable endeavours to correct reported faults as soon as we reasonably can. Faults should be reported by telephone, electronic mail or in writing to the Motia Vehicle Maintenance Customer Service Helpdesk.
5. SUSPENSION
5.1. You acknowledge that: we may temporarily suspend the service:
5.1.1. for contravention by you of Conditions 3, 6 and 9 and Condition 19 (Data Protection) of the Main Terms and Conditions and in such instance we will not restore the Service until we receive an adequate assurance from you that there will be no further contravention;
5.1.2. for operational reasons, in which instance we will give you as much notice as is reasonably practicable and shall use reasonable endeavours to restore the Service as soon as reasonably practicable;
5.1.3. if you are in material breach of any other term of the Agreement.
5.2. Where the provision of the Service is reliant in whole or in part on a Third Party Supplier, we may suspend the provision of the Service to you or terminate the Service if the relevant contract for the provision of service between us and the Third Party Supplier is terminated for any reason, in which circumstances we will provide you with as much notice of such suspension or termination as we are able to.
6. YOUR OBLIGATIONS
6.1. You warrant that:
6.1.1. Information (whether stored on or sent over the Site) will not contain any material which is (or the accessing of which) would be obscene, offensive, defamatory or a criminal offence or otherwise unlawful;
6.1.2. all necessary licences and consents (including those from any third party licensors) have been obtained and that you will comply with all legislation, instructions or guidelines issued by regulatory authorities, relevant licensors and any other codes of practice which relate to Information or are applicable or relevant to your business.
6.2. You agree to indemnify us and keep us indemnified fully and effectively against all actions, proceedings, claims, demands, damages and costs (including legal costs on a full indemnity basis) incurred as a result of any breach of the warranties set out in this Condition 6.
6.3. You agree to notify us immediately of any changes to the information that is provided when registering for the Service and you warrant that all information supplied at the time of registration of the Service and any changes notified to those details will be true, complete and accurate in all respects.
6.4. You agree that we may distribute any information related to the Service or any associated optional services or associated sales information to you in the form of written or electronic communication, and you further agree to keep your contact details up to date within the Service in order to receive such communications.
7. SECURITY
7.1. In order to access the Service you will be issued with a set of unique passwords. You are responsible for the security and proper use of all passwords relating to the Service and must take all necessary steps to ensure that all passwords are kept confidential, secure, used properly and not disclosed to other people and we may periodically require you to change the passwords and shall notify you accordingly.
7.2. If you forget any password, you must contact the Customer Service Helpdesk and upon satisfaction of such security checks as we may determine, you will be given a new password to enable use of the Service.
7.3. You must inform us immediately if there is any reason to believe that any password has become known to someone not authorised to use it or if any password is being or is likely to be used in an unauthorised way.
7.4. The issue and control of user log ins and passwords relating to use of the Service by your employees or agents for the processing of Transactions is solely your responsibility.
8. VARIATION
8.1. We may change these terms and conditions, at any time:
8.1.1. upon giving you 7 days’ notice of such changes before they take effect; or
8.1.2. immediately if required to do so by law.
SUPPORT
You can contact us in the following ways:
By email: support@motia.com
By phone: 0113 298 1000
(08:45am to 5.00pm, Monday to Friday not
including bank holidays)
By post – Motia, Alexandra House, Lawnswood Business Park, Redvers Close, LS16 6QY
ADDEDNDUM 5
TELE-GENCE SPECIAL TERMS AND CONDITIONS
1. INTRODUCTION
1.1. These Tele-Gence Special Terms and Conditions govern the use of the, and together with the relevant Order and the Motia General Terms and Conditions make up the Contract between Motia and the Customer for the use of Tele-Gence.
2. DEFINITIONS
2.1. In these Tele-Gence Special Terms and Conditions, the definitions in the Motia General Terms and Conditions shall apply and the following words, terms or expressions have the following meanings
“Application Form” means Motia’s standard application form completed by the Customer and submitted by the Customer to Motia.
“Charges Schedule” means the charges set out in your initial Order Confirmation Form.
“Commencement Date” means the beginning of the first billing period.
“Contract” means a contract between the parties for provision of the right for the Customer to use for the duration of a Services contract the Product and/or licence (as applicable) any of the Products provided by Motia and/or for the Services entered into between the Customer and Motia in accordance with clause 2.
“Fixed Contract Customer” means a customer who purchases or rents the Hardware and avails of the Services for a fixed contractual term and who pays monthly in advance by direct debit.
“Customer Data” means the data controlled by or otherwise passed to Motia by the Customer under the Agreement.
“Data Collection Device” means an electronic device that can be used for obtaining, capturing and transmitting Location Data, asset operations and asset performance via satellite tracking and for sending and receiving such data.
“Fleet” means the Customer’s vehicles or assets to be tracked via the Services.
“Flexible Pay Customer” means a Customer who purchases the Hardware and then avails of the Services on a rolling monthly basis and who pays monthly in advance by direct debit.
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the Party affected (including power failures, industrial disputes, changes to the law, disasters, explosions, fires, floods, riots, epidemics, pandemics terrorist attacks and wars).
“Hardware” means vehicle tracking equipment and associated peripherals which may or may not include a SIM card and a Data Collection Device.
“Initial Term” means the first time period of a grant of a licence to use the Product and paid for by the Customer as set out in the Application Form.
“Installation” means fitting the Hardware into the Fleet.
“Location Data” means data on the geographical position of the Fleet and other messages sent to or by the Fleet.
“Order Confirmation Form” means forms containing all Company details, contact details, and charges associated with the Service, including all Prices.
“Prices” means the price:
a) for the Products and the Services set out in the Order Confirmation Form; or
b) as set out in the Charges Schedule from time to time; or
c) as otherwise agreed in writing between the Customer and Motia.
“Services” – means the services as agreed with the Customer from time to time and set out in the relevant Order Confirmation Form.
“SIM” means Subscriber Identity Module card providing network airtime.
“Software” means Motia’s proprietary application software and third-party licensed software where applicable in existence at the commencement of the Contract or developed as a product of the Services.
“Tele-Gence” the telematic service provided to Customers by Motia using the Hardware and Software, and available as Tele-Gence Lite and Tele-Gence Pro.
“Tele-Gence Platform” means the IT system that runs Tele-Gence.
“Tele-Gence Lite” means a version of the Tele-Gence Platform which is associated with the Self Installed devices, the specification for which is set out on the Motia website.
“Tele-Gence Pro” means full access to all of the Tele-Gence Platform and associated reports the specification for which is set out on the Motia website.
“Termination Fee” means an amount equivalent to the Prices payable by the Customer to Motia for Tele-Gence for three months or otherwise as set out in the Application Form
“Website” means the content including all and any displayed materials and graphics such as databases, maps, photographs, and other images. ).
3. CONTRACT TERMS
3.1. Each Application Form for Products given by the Customer to Motia will be deemed to be an offer by the Customer to purchase Products from Motia subject to these Terms. No contract is created between the Customer and Motia until the Customer’s Application Form has been approved by Motia, such approval to be notified to the Customer in writing (by email), or by completing a paperless direct debit form (PDD).
3.2. Use of Tele-Gence will, in any event, constitute acceptance of these Terms by the Customer and a Contract will come into force between the Parties on the basis of these Terms.
Each purchase of Tele-Gence by the Customer under the Order Confirmation Form shall be subject to these Terms. In the event of a conflict between the provisions of these Terms and any Order Confirmation Form, these Terms shall prevail.
4. INSTALLATION AND DELIVERY
4.1. Unless otherwise agreed in writing:
4.1.1. All Hardware will be delivered by Motia to the Customer’s address set out on the Order Confirmation Form or to such other address as may be agreed in writing by the parties.
4.1.2. Risk for the Hardware will pass from Motia to the Customer when the Products are delivered to, or where applicable collected by, the Customer.
4.1.3. Where the Customer arranges for installation of the Hardware or appoints another person to install the Hardware:
(a) Motia shall not be liable for any loss or damage whatsoever, arising directly or indirectly, as a result of any negligence or failure to comply with Motia’s instructions in installing the Hardware; and
(b) the Customer shall have access to Tele-Gence Lite.
4.1.4. Where the Customer requests Installation of the Hardware by Motia an Installation date will be agreed with the Customer and the Installation may be performed by a third party engaged by Motia and the Customer shall have access to Tele-Gence. Without prejudice to the provisions of the Consumer Contracts Regulations when a sale or provision of a service to a consumer, where the Customer cancels an arranged Installation with less than twenty-four (24) hours’ notice, or otherwise fails to present the vehicle at the agreed date, time or place of Installation Motia may charge the Customer a late cancellation charge of one hundred pounds (£100) per vehicle as amended from time to time to cover Motia’s reasonable wasted costs in making staff and materials available.
4.2. Where the Customer purchases the Hardware from Motia, title to the Hardware (excluding where applicable, the SIM card) will pass from Motia to the Customer upon the later of:
4.2.1. delivery of the Hardware; or
4.2.2. receipt by Motia of all amounts due from the Customer under any Contract or other agreement.
4.3. Until title to the Hardware (excluding where applicable Software and SIM card) has passed to the Customer, the Customer will hold the Hardware as bailee of Motia and will as applicable: (i) store the Hardware in a secure, safe, dry and clean environment separately from other products and goods; (ii) ensure that the Hardware is easily identifiable as belonging to Motia; (iii) not deface, destroy, alter or obscure any identifying mark on the Hardware or their packaging; (iv) ensure that no charge, lien or other encumbrance is created over the Hardware; and (v) deliver up the Hardware to Motia upon demand.
4.4. Where a Customer has not paid for the Hardware, the Customer’s right to possession of the Hardware shall terminate immediately in the event of:
4.4.1. the Customer being the subject of a bankruptcy order or it making an arrangement or composition with its creditors, or it entering into any form of liquidation or other form of insolvency as within the meaning of section 123 of the Insolvency Act 1986.
4.4.2. the Customer ceases to trade; or
4.4.3. the Customer seeks to or does encumber in any way the Hardware.
4.5. Motia may bring an action for the price of the Hardware, and any other amounts due under a Contract, notwithstanding that title to the Hardware has not passed to Customer.
5. CUSTOMERS USE OF TELE-GENCE
5.1. The Customer shall use Tele-Gence solely for its intended purpose, in a careful and proper manner in compliance with Motia’s instructions and specifications and, in particular, acknowledges the need to familiarise itself with the impact of the use of Tele-Gence on Personal Data, for example by way of a data privacy impact assessment and other similar controls required under Data Protection Laws and Regulations.
6. CHARGES AND PAYMENTS
6.1. Unless as otherwise agreed in writing between the Customer and Motia, the applicable Prices in respect of Tele-Gence provided to the Customer by Motia shall be as set out in the Order Confirmation Form.
6.2. The Customer shall pay the invoiced Prices, via direct debit, to Motia in accordance with this clause and as specified in the Order Confirmation Form. Unless otherwise specified in the Order Confirmation Form, payment of all amounts due shall be made by the Customer by direct debit within 14 days of the date of invoice.
6.3. All Prices indicated in marketing material and on price lists or otherwise payable under a Contract are exclusive of all value-added and other taxes and duties applicable to the sale, licensing and supply of the Products or provision of Tele-Gence which will be payable by the Customer.
6.4. If the Customer does not pay any amount properly due to Motia under or in connection with a Contract on or before the due date, Motia may claim interest at 8% above the Bank of England base rate and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
6.5. Unless agreed otherwise in writing, all Prices can be changed by Motia upon giving the Customer 30 days’ written noticed.
6.6. The Customer shall make all payments properly due under a Contract without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise.
7. HARDWARE WARRANTY
7.1. Motia warrants that on delivery, and for a period of 12 months from the date of delivery (the “Warranty Period”), the Hardware shall:
7.1.1. conform in all material respects with their description;
7.1.2. be free from material defects in design, material and workmanship;
7.1.3. be of satisfactory quality (within the meaning of the Consumer Rights Act 2015); and
be fit for any purpose held out by Motia.
7.2. Subject to clause 6.3, if:
7.2.1. the Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 6.1.
7.2.2. Motia is given a reasonable opportunity of examining such Products; and
7.2.3. the Customer (if asked to do so by Motia) returns such Products to Motia’s place of business at the Customer’s cost,
Motia shall, at its option, repair or replace the defective Hardware, or refund the price paid for the defective Hardware in full (where the Customer has purchased such Products).
7.3. Motia shall not be liable for the failure of the Hardware to comply with the warranty in clause 6.1 if:
7.3.1. the Customer makes any further use of such Products after giving a notice in accordance with clause 6.2.
7.3.2. the defect arises because the Customer failed to follow Motia’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Hardware or (if there are none) good trade practice;
7.3.3. the Customer alters or repairs such Hardware without the written consent of Motia;
7.3.4. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
7.4. Motia does not warrant that:
7.4.1. the Customer’s use of Tele-Gence will be uninterrupted or error free; nor that Tele-Gence will meet the Customer’s requirements;
7.4.2. the Customer’s receipt or use of Tele-Gence will ensure its compliance with, or satisfaction of, any regulatory, statutory or any other obligations; and
7.4.3. Tele-Gence will be free from any delays, delivery failures, or any other loss of data over communications networks and facilities, including the internet, and the Customer acknowledges that Tele-Gence may be subject to limitations, delays, and other problems inherent in the use of such communications networks and facilities; and
7.4.4. Tele-Gence differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
7.5. Except as provided in this clause 7 Motia shall have no liability to the Customer in respect of failure of the Hardware to comply with the warranty set out in this clause 7.
8. LIMITATION OF LIABILITY
8.1. The Liability provisions of the Motia Main Terms and Conditions shall apply to the use of Tele-Gence.
9. TERM AND TERMINATION
9.1. The Contract will come into force on the Commencement Date, and will continue in force until:
9.1.1. for a Fixed Contract Customer who is purchasing Tele-Gence, the later of completion of: (i) performance of Tele-Gence as set out in the Order Confirmation Form; and (ii) the receipt by Motia of all amounts due to Motia under the Contract;
9.1.2. for a Flexible Pay Customer Contract, when terminated by either Party and, in the event of termination by the Customer, payment of the Termination Fee.
9.2. For a Fixed Contract Customer, if neither party terminates the Contract, the Contract shall automatically continue from the expiry of the original fixed term until the next following anniversary of the Commencement Date until terminated by either party on three months prior written notice such notice to expire no earlier than the expiry date of the fixed term set out in the Application Form.
9.3. Motia may, without prejudice to any of its other rights arising under this Contract, on giving written notice, terminate the Contract:
9.3.1. on not less than 28 calendar days’ notice, such notice to expire on the last day of any calendar month; or
9.3.2. with immediate effect, if:
(a) the Customer fails to observe or perform any material term or condition hereof, including in any event non-payment, and such default or breach (if capable of remedy) shall not be remedied within 14 calendar days after notice in writing, specifying the breach and requiring the same to be remedied, has been given; or
(b) any of the following events occur: (i) the presentation of a petition for winding up of the Customer; (ii) the Customer is the subject of an order or an effective resolution is passed for winding up the Customer; (iii) the application for an order or application for the appointment of a receiver (including an administrative receiver), administrator, trustee or similar officer in respect of the Customer; (iv) if a receiver, administrative receiver, administrator or similar office is appointed over all or any part of the assets or undertaking of the Customer; (v) the Customer making a composition or arrangement with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement; (vi) the Customer goes into liquidation; (vii) the Customer becoming unable to pay its debts or otherwise becoming insolvent, or (viii) the Customer ceasing, or threatening to cease, to carry on business; or
(c) there has been any delay or failure in performance under the Contract resulting from any event of Force Majeure, which delay, or failure shall have continued for a period of three months.
9.4. In the event of termination in accordance with clause 9.3, the Customer shall pay any unpaid fees covering the remainder of the Initial Term and any subsequent Renewal Period.
9.5. In event that a Flexible Pay Customer gives notice to terminate its Contract with Motia, the Flexible Pay Customer shall pay Motia the Termination Fee in accordance with the payment terms set out in clause 5.
ADDENDUM 6
MOTIA TELEMATICS SPECIAL TERMS AND CONDITIONS
1 INTERPRETATION
1.1 In these Conditions the following definitions apply:
"Client Personal Data" any personal data which Motia processes in connection with the Contract, in the capacity of a processor on behalf of the Client.
“Business Day” means a day other than Saturday, Sunday and public holidays when banks generally are open for non-automated business in London;
“Client” Means the person(s) or firm whose details are set out in the Contract Agreement;
“Conditions” means the terms and conditions set out in this document;
“Confidential Information” means any commercial, financial or technical information, information relating to products, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract Agreement;
“Contract Agreement” means the agreement between Motia and the Client for:
a) the sale and purchase of the Hardware;
b) the licence of the Motia Software and the SIM-cards; and
c) the supply and purchase of the Services,
all incorporating these Conditions;
“Equipment” means the following equipment set out in the Contract Agreement and to be supplied by Motia to the Client, being:
a) the Hardware, and;
b) the SIM-cards.
“Finance Lease” means, if applicable, the finance lease entered into by the Client with the Funder for the lease of the Contract Agreement;
“Force Majeure” Means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required by for performance of the Contract, except any party’s failure to pay shall not be an event of Force Majeure in any event;
“Funder” means, where applicable, the third party funder who has provided finance for the purchase of the Contract Agreement;
“Hardware” means all physical items required to ensure the minimum necessary requirement for the Contract Agreement to be fulfilled;
“Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, chip topography rights, mask works, utility models, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future;
(e) to which Motia is or may be entitled; and
(f) in whichever part of the world existing.
“Motia Software” Web based vehicle monitoring platform;
“Order” means the Client's order for the Equipment and Services from Motia as set out in the Contract Agreement;
“Service Providers” means any third party service providers associated with the fulfilment of the Contract Agreement;
“Services” means the services to be supplied by Motia or Service Providers to the Client, being:
a) installation of the Hardware;
b) support services;
c) internet connectivity services;
d) other services connected the fulfilment of the Contract Agreement.
“SIM-cards” means the SIM-cards provided by Motia to the Client pursuant to the Contract Agreement;
“Solution Packages” Means means the various Hardware and Motia Software bundles specified in the Contract Agreement;
“Term” as defined in clause 13.1;
“Territory” means the territory specified in the Contract Agreement;
“Value Added Tax or VAT” means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Equipment;
“Year” means a consecutive period of 12 months commencing on the date of the Contract Agreement and each consecutive period of 12 months thereafter.
1.2 Unless the context otherwise requires:
1.2.1 each gender includes the others;
1.2.2 the singular includes the plural and vice versa;
1.2.3 references to the Contract include these Conditions, the Contract Agreement and its schedule (if any);
1.2.4 references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
1.2.5 clause headings do not affect their interpretation;
1.2.6 general words are not limited by example; and
1.2.7 references to any legislation will be construed as a reference to that provision as amended, re enacted or extended at the relevant time.
2 APPLICATION OF THESE TERMS AND CONDITIONS
2.1 Each Order by the Client to Motia will be deemed to be an offer to purchase:
2.1.1 the Hardware;
2.1.2 a licence of the Motia Software and the SIM-cards;
2.1.3 the benefit of the Services,
each on the terms set out in these Conditions and the signed Contract Agreement.
2.2 Motia reserves the right at all times to reject any Order, in whole or in part, at its sole discretion. A Contract Agreement will be formed upon the receipt by Motia of a valid signed Contract Agreement by the Client.
2.3 No variation of these Conditions or to an Order will be binding unless expressly agreed in writing and signed by a listed director of Motia.
3 PRICE
3.1 The price for the Equipment and Services will be as set out in the Contract Agreement or in default of such provision will be calculated in accordance with Motia's standard scale of charges in force on the date of formation of the Contract Agreement.
3.2 The price for the Equipment and Services does not include Value Added Tax which will be charged in addition at the then applicable rate.
4 PAYMENT
4.1 Subject to Contract Agreement being signed by the Client, Motia shall issue its invoice for the Contract Agreement:
4.1.1 Where the Client is purchasing the Hardware and Services (if applicable) outright, when the Contract Agreement is signed;
4.1.2 Where the Client is renting the Hardware and Services (if applicable) from Motia, monthly in advance; and
4.1.3 Where the Client is making an upfront payment for Hardware and Services (if applicable), when the Contract Agreement is signed;
4.2 Motia will invoice the Client for the Services monthly in advance.
4.3 Where the Client has received the benefit of third party funding from a Funder, clause 4.1 shall not apply and Motia shall issue the appropriate Hardware and Service invoice as per the schedule of the Contract Agreement to the Funder instead. The Client will ensure that all payments due from it to the are paid in accordance with any terms agreed between the Funder and the Client.
4.4 The Client will pay all invoices;
4.4.1 in full, without deduction or set-off other than as required by law, in cleared funds within 30 days of date of each invoice, and
4.4.2 to Motia's nominated bank account specified in the Contract Agreement.
4.5 Time of payment is of the essence. Where sums due hereunder are not paid in full by the due date:
4.5.1 Motia may, without limiting its other rights, charge interest on such sums at 10% a year above the base rate of Bank of England from time to time in force, and
4.5.2 interest will accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgement.
4.6 VAT will be charged by Motia and paid by the Client at the then applicable rate.
4.7 The Client hereby authorises Motia to collect the payments due from the Client's bank account by direct debit as specified in the Contract Agreement.
5 DELIVERY/INSTALLATION
5.1 The Equipment will be delivered, configured and installed by or for Motia at such times and locations as are agreed between Motia and the Client.
5.2 The Client warrants that it has the right to install the Hardware in the vehicles being used for that purpose and that such installation will not breach any law, regulation or third party right and accordingly the Client indemnifies Motia against any loss whatsoever and howsoever arising accordingly.
5.3 The Equipment will be deemed installed when the Client has signed Installation Satisfaction Document.
5.4 Delivery of the Equipment, or part thereof, will be accompanied by a delivery note stating:
5.4.1 the date of the Order;
5.4.2 the relevant Client and Motia details;
5.4.3 the product numbers and type and quantity of Equipment in the consignment; and
5.4.4 any special handling and other instructions.
5.5 Motia will use its reasonable endeavours to meet delivery dates but such dates are approximate only, and time of delivery is not of the essence.
5.6 Motia will not be liable for any delay in or failure of delivery caused by:
5.6.1 the Client’s failure to:
(a) make the agreed location available;
(b) prepare the agreed location in accordance with Motia’s instructions; or
(c) provide Motia with adequate instructions, for delivery and installation of the Equipment
(d) third party delivery provider failure;
5.6.2 an event of Force Majeure.
5.7 Motia reserves the right to charge the Client a cancellation fee of £25 for each Hardware unit agreed to be installed, in the event that the Client cancels or changes the agreed delivery date with less than 48 hours written notice having been given to Motia.
5.8 Motia will provide the Services to the Client in accordance with the Contract Agreement.
6 TITLE AND RISK
6.1 Risk in the Hardware will pass to the Client on completion of installation under clause 5.1.
6.2 Title to the Hardware will only pass to the Client where the Client has purchased the Hardware outright and Motia has received payment in full.
6.3 Clause 6.2 will not apply if the Client has received the benefit of third party funding from a Funder.
6.4 Title in the SIM-cards will remain with Motia.
7 OBLIGATIONS OF THE CLIENT
7.1 The Client will:
7.1.1 place all Orders on these Conditions and ensure that the contents of any Order are complete and accurate:
7.1.2 co-operate fully with Motia in relation to delivery, configuration or installation of the Equipment including but not limited to ensuring that it has properly functioning browser software and Internet access to the Motia Software of appropriate capacity and that the place of installation has mobile internet coverage of appropriate capacity:
7.1.3 where applicable, co-operate fully with Motia in relation to de-installation of the Equipment on termination;
7.1.4 only use the Equipment for the tracking of its vehicles and reporting thereof in the Territory;
7.1.5 comply with the terms of any Finance Lease in full and indemnify Motia for any loss or damage suffered as a result of any breach by the Client of the Finance Lease.
8 LIABILITY
8.1 Motia excludes all liability whatsoever and howsoever occurring in respect of any loss or damage incurred by the Client as a result of:
8.1.1 any delay in installation of the Equipment caused by the Client's failure to provide access to its vehicles or otherwise comply with Motia's reasonable instructions;
8.1.2 any damage caused to the Client's vehicles during installation of the Equipment, provided that Motia has used reasonable endeavours to minimise such damage.
8.1.3 any failure by the Client to comply with the terms of the Finance Lease:
8.1.4 any Equipment which has been modified or used by the Client other than in accordance with these Conditions:
8.1.5 any action or omission done by Motia in reliance of a warranty provided by the Client pursuant to these Conditions;
8.1.6 damage to the Equipment caused by water ingress, fire or other than by the fault of Motia;
8.1.7 any defect in the Equipment not notified to Motia within the earlier of 4 weeks of discovery of the defect, or within 4 weeks of the date upon which the Client ought to have been reasonably aware of the defect.
8.1.8 failure of any Service Provider to fulfil the Contract Agreement:
8.2 Motia does not exclude its liability:
8.2.1 for death or personal injury caused by its negligence; or
8.2.2 for breach of the terms implied by 12 of the Sale of Equipment Act 1979 and by the Supply of Goods and Services Act 1982; or
8.2.3 for defective products under the Consumer Protection Act 1987; or
8.2.4 for fraud or fraudulent misrepresentation.
8.3 Neither party will be liable for:
8.3.1 loss of data or use;
8.3.2 any form of indirect, consequential or special loss; or
8.3.3 any loss of or failure to realise expected profit, revenue or savings or any other form of pure economic loss, whether any such loss is direct or indirect;
and in each case, however arising.
8.4 Other than as set out above, Motia limits its liability (however arising) in respect of or in connection with the Equipment or Services, and otherwise in connection with the Contract Agreement, to the net price paid or to be paid by the Client to Motia in the six months immediately prior to the date on which the loss or damage occurred.
8.5 The Client acknowledges that the Equipment's functions are dependent on factors outside of Motia's control, including but not limited to, internet and GPS availability via third party providers, cellular infrastructure, mapping software, the user's physical location and satellite geometry. Accordingly, Motia will not be liable for loss or damage incurred in relation to, and does not provide warranties in respect of, the accuracy of any data where it has been adversely affected by such factors.
8.6 Where title to Hardware remains with Motia, the Client shall be liable for up to a maximum amount of £500 in respect of each item of Hardware which has been damaged as a result of unauthorised de installation by the Client or any person authorised by it or under its control, or any other damage attributable to the fault or omission of the Client or any person authorised by it or under its control.
9 INTELLECTUAL PROPERTY RIGHTS
9.1 Nothing in the Contract will affect the rights (including Intellectual Property Rights) in the Equipment and Services which are and shall remain vested in Motia.
9.2 To the extent that the Motia Software of SIM-cards are used or incorporated into Equipment or Services then the parties acknowledge and agree that the Client is licensed to use the same upon the terms set out in clause 9.3.
9.3 Motia hereby grants to the Client a non-exclusive and non-transferable licence, revocable only for breach by the Client of the terms of the Contract Agreement, to use the Motia Software and SIM-cards solely to the extent necessary to use the Hardware and receive the benefit of the Services.
9.4 The Client:
9.4.1 will not use the Motia Software or SIM-cards for any other purpose;
9.4.2 will not modify or reverse engineer or take any similar action in relation to any propriety software of Motia;
9.4.3 hereby assigns to Motia, on their creation, all Intellectual Property Rights which arise or are created by any use by it of, or work done by it on, the Motia Software.
10 CONFIDENTIALITY
10.1 Each party shall keep confidential all Confidential Information of the other party and will only use the other's Confidential Information as required to perform the Contract Agreement. The provisions of this clause will not apply to:
10.1.1 any information which was in the public domain at the date of the Contract Agreement;
10.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract Agreement or any related agreement;
10.1.3 any information which is independently developed by the other party without using information supplied by the first party; or
10.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract Agreement.
10.2 This clause 10.2 will remain in force for a period of five years after termination of the Contract Agreement.
11 FORCE MAJEURE
11.1 A party will not be liable if delayed in or prevented from performing its obligations due to and event of Force Majeure, provided that it:
11.1.1 promptly notifies the other of the event of Force Majeure and its expected duration; and
11.1.2 uses reasonable endeavours to minimise the effects of that event.
11.2 If, due to an event of Force Majeure, a party:
11.2.1 is or will be unable to perform a material obligation; or
11.2.2 is delayed in or prevented from performing its obligations for a continuous period exceeding 30 days or total of more than 60 days in any Year then the other party may terminate the Contract on immediate written notice.
12 TERM AND TERMINATION
12.1 The Contract will continue for the initial term set out in the Contract Agreement and shall expire thereafter. Following the initial term, the Agreement shall automatically renew for consecutive periods of 1 (one) year each, unless either party gives written notice of its intention not to renew at least 3 (three) months prior to the date on which the Agreement would otherwise renew (the Term).
12.2 The Contract may be terminated forthwith at any time by Motia on written notice to the Client if:
12.2.1 the Client commits a material breach, or series of breaches resulting in a material breach, of the Contract Agreement and such breach is not remediable or if capable of remedy is not remedied within 15 days of written notice to do so;
12.2.2 the Client suspends or threatens to suspend payment of its debts, or is unable to pay its debts as they fall due;
12.2.3 the Client (a) negotiates with its creditors for rescheduling of its debts, (b) makes a proposal to or compounds with its creditors in respect of its debts other than solely by way of solvent amalgamation or reconstruction or (c) makes an application to court for protection from its creditors generally;
12.2.4 the Client passes a resolution for winding-up or for appointment of an administrator, or a liquidator or administrator is appointed in relation to the other, or a winding-up order is made in relation to the other, other than solely in relation to a solvent amalgamation or reconstruction;
12.2.5 a receiver or administrative receiver may be or is appointed in relation to the Client or any of its assets;
12.2.6 any creditor of the Client attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the Client's assets, and such attachment or process is not discharged within 14 days;
12.2.7 the Client takes or suffers any action similar to any of the above in any jurisdiction;
12.2.8 the Client suspends trading, ceases to carry on business, or threatens to do either;
12.2.9 the Client, (being an individual) dies or ceases to be capable of managing his own affairs;
12.2.10 the Client is subject to an event of Force Majeure under clause 11; or
12.2.11 the Finance Lease is terminated.
12.3 In the event of termination under clause 13.2 an administration fee of £250 for each item of Hardware purchased or rented by the Client from Motia.
12.4 Upon the expiry of the Term for whatever reason:
12.4.1 Where the Hardware has been rented by the Client, the parties agree that de-installation shall be carried out by Motia. The Client will pay to Motia a de-installation fee of (£75 for each vehicle which has Hardware installed} multiplied by (the number of Solution Packages purchased by the Client}; and
12.4.2 Where the Hardware has been purchased by the Client, de-installation by Motia is not mandatory. If the Client requests de-installation by Motia regardless, the de-installation fees set out at clause 13.4.1 shall apply.
12.5 The charges set out in clause 13.3 and clause 13.4 are independent of any charges that may be payable by the Client under the terms of any Finance Lease.
12.6 On termination of the Contract for any reason:
12.6.1 the Client will immediately pay all invoices of Motia then outstanding and not disputed in good faith;
12.6.2 Motia will, within 30 Business Days, invoice the Client for all Equipment delivered or provided but not yet invoiced and the Client will pay such invoice within a further 10 Business Days (unless the invoice is disputed in good faith};
12.6.3 Client will within 5 Business Days return any materials of Motia then in its possession or control at Client's cost (including but not limited to SIM-cards); if it fails to do so, Motia may enter onto any premises owned by or under the control of the and take possession of them;
12.6.4 all licences granted under these Conditions will terminate immediately, including but not limited to that of the Motia Software;
12.6.5 the accrued rights and liabilities of the parties will not be affected; and
12.6.6 any clause which expressly or by implication are to survive termination will do so.
13 GENERAL
13.1 Time
Unless stated otherwise, time is not of the essence of any date or period specified in these Conditions, the Order or otherwise in the Contract.
13.2 No set-off
All payments by the Client will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless a party is compelled by law to deduct or withhold any such amounts, in which case it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.
13.3 Relationship
The parties are independent businesses and not principal and agent, partners, or employer and employee.
13.4 Severability
If any part of the Contract is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid, for any reason that provision is to be severed from the Contract and the remaining provisions of the Contract will otherwise remain in full force.
13.5 Notices
Notices under the Contract will be in writing and sent to the persons and addresses set out in the Order. They may be given, and will be deemed received:
13.5.1 by first-class post: two Business Days after posting;
13.5.2 by airmail: seven Business Day after posting;
13.5.3 by hand: on delivery;
13.5.4 by facsimile: on receipt of a successful transmission report from the correct number; and
13.5.5 by e-mail: on receipt of a delivery or read receipt mail from the correct address.
13.6 Waiver
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
13.7 Rights of Third Parties
The Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
13.8 Priority
In the event of conflict, the terms of these Conditions prevail over those of the Order, including its schedule (if any).
13.9 Entire Agreement
The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply.
13.10 Succession
The Contract will bind and benefit each party's successors and personal representatives.
13.11 Governing Law & Jurisdiction
13.11.1 The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of Northern Ireland.
13.11.2 The parties irrevocably agree that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
1. ABOUT THESE TERMS AND THE CONTRACT
1.1. These Conditions will govern our relationship with you regarding our provision of the Services to you. The Order Form, any Commercial Terms, any Service Specific Terms and these Conditions together form our contract with you (the “Contract”).
1.2. In these Conditions capitalised words are given specific meanings which are set out in Condition 20.
1.3. If there is any inconsistency between these Conditions, the Commercial Terms, and the Order Form, the following decreasing order of precedence shall apply:
1.3.1. the Order Form;
1.3.2. the Commercial Terms; and
1.3.3. these Conditions.
1.4. By connecting and using the Services you confirm that you have read and agree to these Conditions, the Order Form and any Commercial Terms; you have instructed us to install the Services (if your Services include 3CX); and you agree to receive the selected Services in the quantities and at the prices set out in the Order Form.
2. LENGTH OF THE CONTRACT
2.1. The Contract begins on the date that Motia accept your order for the Services either by notifying you of our acceptance or by commencing implementation of your order. The Minimum Period for the Services will start on the Commencement Date set out in the Order Form and the Services will continue for the Minimum Period unless terminated under Condition 13.
2.2. Unless Motia or you end the Contract in line with Condition 13, Motia will continue to supply you with, and charge you for, the Services.
2.3. You must pay all Charges until you or Motia end the Contract in line with Condition 13.
3. SERVICES AND COVERAGE
3.1. Motia always aim to provide you with the Services from the start of the Commencement Date or such other date Motia will agree with you. However, due to the nature of mobile technology, it’s impossible to provide a fault-free service and Motia do not warrant that the Services will be secure, uninterrupted or without error.
3.2. An order for Equipment and/or Services will only be binding when Motia have accepted it by giving you written confirmation or if Motia don’t provide you with written confirmation when Motia commence implementation of the order.
3.3. For mobile services only Motia will use reasonable efforts to give you access to networks in other countries. Motia call this roaming. Overseas networks may be limited in quality and coverage. Any access to overseas networks depends on the arrangements between us and the foreign operators. Not all Services may be available while abroad. Motia will notify you of any terms of access that you need to comply with to use the overseas networks.
3.4. Motia will aim to give you accurate dates for the performance of Services but unless Motia agree with you otherwise, any dates given are estimates only and time is not of the essence in relation to such dates. If you or a third party cause us to be unable to provide the Services, the dates for provision of (but not payment for) the Services shall be delayed by a reasonable period of time.
3.5. Unless Motia agree with you otherwise where Motia have expressly agreed to advise you, you are responsible for deciding the suitability, adequacy and accuracy of any Equipment and Services for any particular purpose.
3.6. If Motia supply you with Equipment as part of the Services Motia warrant that the Equipment (excluding any software) will be materially free from defects for 12 months following the date of the order, however, this warranty does not apply to damage to Equipment which is not due to a defect in the Equipment, including for example where you use the Equipment incorrectly. If Motia provide Services to you Motia warrant that those Services will be performed with reasonable skill and care by appropriately experienced, qualified and trained personnel.
3.7. Some countries prohibit the use of encryption and if you use devices containing encryption technology outside the UK, you accept any responsibility and risk of such use.
3.8. Motia may change the Equipment and Services Motia offer at any time.
4. CHARGES AND PAYMENT
4.1. All Charges for Services are stated exclusive of VAT unless specified otherwise.
4.2. All Charges not specified in the Commercial Terms shall be at Standard List Price.
4.3. Access Fees, where charged, shall be invoiced by us monthly in advance and all other Charges shall be invoiced monthly in arrears.
4.4. Rounding and minimum charges shall apply in accordance with our Billing Manual.
4.5. You must pay all Charges by direct debit within the payment period specified on our invoice. Motia may accept payment by methods other than direct debit, but Motia will charge you a fee each month. Motia will charge you VAT, if this applies. Unless Motia agree with you otherwise, Charges shall include the cost of delivery to the UK mainland of any Equipment Motia supply to you but shall not include any special equipment or work such as cutting away, decoration, ducting, ground work, building work and other similar work.
4.6. If you owe us any money, and are not disputing the payment, and you do not pay it when due, Motia may charge you interest and withdraw any discount in relation to the Services and may suspend the Services under Condition 11.1.2. Motia charge interest daily at the rate of 2% above the base rate of Barclays Bank each year from the date the amount becomes due to the date of payment by you in full. Motia may also charge you reasonable administration costs as a result of you paying your bill late or failing to pay it.
4.7. You will raise any billing queries within one month of the date of the relevant invoice and shall not withhold payment of any Service Charges set out in the queried invoice or any other invoice, by reason of your billing query. Disputed invoices shall be dealt with under Condition 19.12.
4.8. You are not entitled to offset any sums that Motia owe to you under the Contract or any other agreement or dispute between the Parties against any sums that you owe to us under the Contract.
4.9. Motia may credit assess you from time to time as reasonably required to assess our risk. Each credit assessment shall entitle us to have a credit limit on our account (details of which are available on request).
4.10. End User tariff changes (including the addition and removal of additional services) are not allowed within 30 days of a previous change. You are not entitled to move from the Flat Rate Option price plan to a Pence Per Minute tariff.
5. USING THE SERVICES
5.1. You must use the Services and ensure your End Users use the Services in accordance with these Conditions, all applicable law (including regulatory codes of practice) and our instructions on using the Services. You are responsible for anyone who uses your Equipment.
5.2. You must tell us immediately if the information you have provided to us (for example, information about the status of your business, your name, address, bank account or payment details) is inaccurate or changes.
5.3. You must not use your Equipment or the Services (or allow them to be used) for any purpose which could reasonably be regarded as abusive, improper, immoral, offensive, illegal, fraudulent, or which is a nuisance, hoax, menacing, indecent, racist, obscene or defamatory. Motia may report such incidents to the police or any other relevant official organisation.
5.4. You must not sell to anyone else all or any part of the Services without our written agreement.
5.5. You must not do anything which causes the Network to be impaired or damaged.
5.6. You must not modify Equipment or Services (including any software and/or integral safety features) Motia have supplied to you except in accordance with the manufacturer’s published specification, applicable law or with our prior written permission.
5.7. Motia will choose numbers for you to use with your Equipment on the Network. The number does not belong to you and Motia may charge you a fee to transfer your number to another service provider. If you decide to move to another network operator, and wish to retain your mobile and fixed line telephone numbers allocated to you by us, Motia shall transfer those telephone numbers to the new network operators in accordance with OFCOM regulations (including any relevant timescales).
5.8. Any SIM Card Motia provide remains our property. The software in the SIM Card does not belong to you and Motia are licensing it to you only for use with the Services and only for as long as Motia have agreed to provide the Services to you. Motia may change your SIM Card or tell you to return it at the end of the Contract. Subject to Condition 6.1, if you need a replacement SIM Card, Motia will charge you the price set out in our most current price plan that applies. You will use all reasonable efforts to ensure that SIM Cards are only used with your authorisation and you must inform End Users of this policy. You are responsible for all costs resulting from unauthorised use until you have notified us of this.
5.9. If Motia provide you or your End Users with security codes as part of the Services you agree to keep the security codes confidential and ensure your End Users do the same. You must tell us immediately if you suspect that security codes have been disclosed to a third party so that Motia can issue new security codes.
5.10. If you have purchased mobile internet services you may access the internet but Motia accept no responsibility for any content or services you may access which is at your cost and risk. You will be responsible for all costs from such access except where the Services allow such access to be disabled and you have asked disable access, where you will be responsible for the costs until Motia receive your written request. Unwanted programs or material may be downloaded from the internet without your knowledge. This may then give unauthorised people access to your Equipment.
5.11. You must only use equipment which is legally approved for connection to our network. If you are not sure whether the equipment is approved, you should contact us.
5.12. You shall provide a customer representative who will by your point of contact with us or where applicable our sub-contractors. You will notify us of the name and contact details of the customer representative and any replacement from time to time.
5.13. You shall take prudent and appropriate measures to back up data and otherwise protect against loss of data.
5.14. Where Motia have issued you with a SIM card for use with a 3G desk phone you are not permitted to use this SIM card in any other device without our written consent. Breach of this requirement shall constitute a material breach of the Contract.
5.15. If you order a service other than the Services provided pursuant to the Contract, the supply of such services may be subject to additional terms and conditions.
5.16. If you need to transfer mobile or fixed line numbers from other networks to us prior to the commencement of the provision of the Services, you will need to complete the porting authority letters that Motia will provide to you. You acknowledge that any delay in completing and returning this authority may result in a delay to the provision of Services.
5.17. As part of the provision of the Services, Motia shall agree with the configuration of your users with you.
6. EQUIPMENT
6.1. If Equipment or SIM cards are lost or damaged before Motia have delivered them to your address, Motia will repair or replace these at our cost provided you tell us of any damage within 5 business days of receipt and notify us of loss if you have not received your order within 10 business days of our confirmation of the order. Once Motia have delivered Equipment or SIM cards to you at your premises you shall take the risk of loss or damage to the Equipment and/or SIM cards which Motia have delivered. If Motia have not delivered the right Equipment and/or SIM Cards you must tell us within 5 business days of receipt and Motia will remedy the error at our cost.
6.2. If your SIM Card or Equipment is lost or stolen after Motia have delivered it to you, you must tell us as soon as possible so that Motia can prevent further use on it. You must pay for all Charges due until you tell us. You must also continue to pay the line-rental Charges until the Contract has ended as described in Condition 13.
6.3. Where you have bought Equipment from us you will own the title to the Equipment (other than any SIM Card or embedded software) when Motia have received full payment from you of the amount in the invoice (or if the invoice is incorrect, full payment form you of the correct amount in relation to the Equipment). Until that time you must identify the Equipment as belonging to us.
6.4. If Motia supply you with Equipment which become faulty (other than through your misuse) within the manufacturer’s warranty period, you may return the Equipment to us at our cost and Motia will repair or replace (at our option) the Equipment within 28 days. If Motia have replaced the Equipment with a better alternative Motia may at a later stage replace this with standard replacement Equipment meeting the agreed specification.
6.5. If you have caused the Equipment to become faulty or if the Equipment becomes faulty outside the manufacturer’s warranty period Motia may provide a quote for the costs of the non-warranty repair Service.
6.6. If Motia provide you with Equipment or software made by our suppliers, where Motia receive warranties or guarantees in relation to that Equipment or software Motia will endeavour to pass the benefit of these to you to the extent Motia are permitted to do so by the suppliers, provided that our obligation to liaise with suppliers in respect of any warranty ends when the Contract ends. Motia have no obligation in relation to equipment which Motia do not directly supply to you.
6.7. You must only use Equipment which Motia supply or which Motia have approved as compatible with the Network.
6.8. Motia will deliver the Equipment and SIM Cards to the Site or such alternative delivery address that you may ask us to deliver to.
7. SOFTWARE
7.1. The Services and Equipment Motia provide to you may contain software which belongs to us or our suppliers and may be subject to separate terms and conditions (which Motia refer to as a software licence) provided with the relevant Equipment or Service. You agree that your use of the Equipment and Services is conditional on your acceptance of applicable software licences prior to such use. In all other cases where Motia provide software to you, Motia grant you and/or your End Users (as applicable) a personal, non-transferrable, non-exclusive, royalty-free licence (with no right to sub-licence) to use the software for the term and for the purposes of the Contract. You may also make a single copy of the software for backup purposes.
7.2. Motia and our suppliers may electronically audit each system configuration containing software licensed to you to verify your compliance with applicable licence terms on at least two (2) Business Days prior notice.
7.3. You shall not modify, adapt, copy, translate, decrypt or reverse-engineer the software except that if you have a right to decompile the software for interoperability with other software, you will notify us and Motia will at our option provide a software interface to enable such interoperability or such information subject to reasonable conditions including but not limited to a reasonable fee.
7.4. If Motia provide you with user documentation you may print copies for those End Users who have a licence for the relevant software.
7.5. If Motia provide software which is licensed by a third party, they may require you to upgrade the software from time to time. The charges and risks associated with such upgrades are your responsibility unless Motia expressly agree with you otherwise. If you choose not to take any upgrade, support in relation to the software shall be at our absolute discretion or the absolute discretion of the software licensor as applicable. Software upgrades may affect existing Services (including smart devices) and it is your responsibility to check with us regarding implications of upgrades before you implement them.
7.6. If the Services require you to operate server software, it is your responsibility for maintaining appropriately configured server software on your systems throughout the term of the Contract.
7.7. Motia have no responsibility for any software which Motia have not supplied to you or which Motia have not expressly authorised for use with our software. If Motia provide Services which integrate with your computer systems Motia are not responsible for any part of those systems (including any software which Motia provide which is stored within those systems).
7.8. Motia may provide technical support and assistance relating to integration, implementation, migration and management through our professional services portfolio and/or our managed services portfolio.
7.9. Some mobile services Motia provide which use the internet rather than software applications may not be suitable for some internet service provider email accounts and you should check for any limitations, compatibility issues and additional charges with your internet service provider.
8. PROVISION OF SITE ACCESS AND INFORMATION FOR 3CX SERVICES
8.1. If Motia agree to provide Services to you on your premises:
8.1.1. you grant us, our subcontractors and agents access to the premises and agree to provide us with such facilities and information as Motia reasonably require to perform the Services (including access outside normal working hours) and comply with our environmental responsibilities including the disposal of packaging;
8.1.2. you will ensure the premises provides a safe working environment for our personnel and a suitable environment for the housing of any Equipment which are used as part of or in conjunction with the Services;
8.2. If our provision of Services involves access to your systems, you warrant and undertake that you have full power to permit us to perform those Services and agree to indemnify us against any and all liability and costs which Motia suffer if you breach such warranty.
8.3. Where Motia have carried out a Site Survey Motia will provide you with a written report detailing the results of the Site Survey and any remediation work that is required to be undertaken prior to the installation of the 3CX solution. Failure to carry out any such work may delay the Commencement Date and/or mean that Motia are unable to provide the Services to you.
8.4. If the Site Survey reveals that remediation work is required you shall be entitled to cancel the Contract in respect of Services for that site (but not for any other sites to which Motia provide Services) by giving us written notice within 14 days from the date Motia inform you of the Site Survey results. Where you decide to cancel the Contract and the cost of the remediation work is estimated as less than £500 (exc vat) Motia shall be entitled to charge you £500 plus vat for carrying out the Site Survey of that site.
8.5. Motia shall carry out a Suitability Test to assess the quality of the DSL provided from the local BT exchange. If the Suitability Test results indicate that the quality of the access is insufficient for the Services to be provided to a reasonable standard Motia will notify you of this, in which event the Contract shall automatically terminate in respect of the site (but not for any other sites to which Motia provide Services).
8.6. Following completion of the Site Survey and Quality Test, Motia shall give you an estimate of the maximum number of concurrent connections supported by the Service which will be determined by a number of factors including broadband speed and the proximity of the site to the local exchange. If this estimate is less than 80% of our initial estimate of the same provided to you at the time of the Purchase Order then you shall be entitled to cancel the Contract in respect of Services for that site (but not for any other sites to which Motia provide Services) by giving us written notice within 14 days from the date Motia inform you of the Site Survey results.
8.7. Motia may in our absolute discretion reject any notice to cancel under Conditions 8.4 or 8.6 which is served after the 14 day notice period or allow you to cancel subject to a cancellation fee of £500 or 10% of the mobile and fixed line rental Charges for the Minimum Period, whichever is higher.
8.8. You shall provide us with any information reasonably requested by us to enable us to provide the Services to you.
8.9. If there is any undue delay in you providing us with information requested pursuant to Condition 8.8 above, Motia shall be entitled to extend any target dates to accommodate the effects of the delay.
9. CHANGING CHARGES AND TERMS
9.1. Motia may change our Charges or introduce new Charges at any time. If Motia increase our Charges, Motia will give you at least 14 days’ notice and you may have a right to end the Contract under Condition 13. If Motia believe any change in our Charges will not disadvantage you, Motia may include it without telling you.
9.2. Motia can make changes to or withdraw Services at any time and Motia can make changes to these Conditions or introduce new terms to the Contract at any time. Motia will give you at least 30 days’ notice of these changes if Motia do and you may have a right to end the Contract under Condition 13.
9.3. Motia may need to change your phone number or other number. Motia will let you know if this is the case.
9.4. You can apply to port the mobile number(s) relating to SIM Cards to another network or migrate the mobile phone number(s) to another service provider on the same network but Motia may charge you a reasonable administration fee per number in addition to any Charges for termination that may be applicable under Condition 13.
9.5. Except where you have agreed to a Minimum Period of 5 years, Motia are not obliged to agree to any upgrades to the Equipment Motia supply to you during or after your Minimum Period but if Motia do so Motia may extend the Minimum Period or impose a new Minimum Period.
9.6. Motia do not allow an End User to change from one tariff to another tariff with a lower monthly fixed charge during the Minimum Period.
9.7. New Users will be subject to a Term per New User unless Motia agree otherwise with you in writing. If the Contract is terminated before the end of a New User’s Term per New User you will be obliged to pay the outstanding monthly charges relating to that New User and the company monthly access fee until the end of that New User’s Term per New User.
9.8. If the law changes or VAT or any other tax is increased, Motia can change these Conditions or any other term of the Contract to comply with law without your consent although Motia will try to tell you about the change before it occurs otherwise within a reasonable time after it has been made.
10. CALL LIMIT, DEPOSIT AND PART PAYMENTS
10.1. Motia may set a limit on the amount of Charges you may run up during each calendar month and/or a maximum number of active Connections and/or a bar on SIM Card(s) being used on overseas networks or for making international calls or premium rate calls, which Motia refer to as a call limit. Motia may agree to increase or remove the call limit after making credit checks. You may be able to go over your call limit, but if this happens, you must pay all Charges. Motia may not provide Equipment and/or Services to you if to do so would result in you exceeding your credit limit or if the credit limit is already exceeded.
10.2. Motia may ask you for a deposit:
10.2.1. when Motia connect your SIM Card;
10.2.2. to increase or remove your call limit;
10.2.3. if you increase how much you use the Services; or
10.2.4. to unblock your SIM Card from contacting international numbers, using overseas networks or making premium-rate calls.
10.3. You can ask for a refund of your deposit at any time, but Motia may reduce your call limit if you do. Motia can use the deposit to pay off any Charges you owe us. When the Contract comes to an end, Motia will repay any deposit you have given us less any money you owe us. Motia will not pay any interest on any deposit Motia take from you.
10.4. If there is a significant increase in your usage between bills, Motia may contact you. Motia may need a part payment so you can continue to use the Services.
10.5. Where your usage exceeds limits imposed on us by our third party suppliers e.g. BT, Motia shall be entitled to charge you the additional costs Motia incur as a result of such usage.
11. SUSPENDING THE SERVICES
11.1. Motia can suspend or restrict use of any of the Services (other than emergency services) by you and/or any End User(s) if:
11.1.1. Motia believe your equipment (including Equipment Motia supply to you) or the Services are being used in a way Motia do not allow under the Contract;
11.1.2. you or your End User(s) have not kept to the Contract (for example, you fail to pay any Charges when due);
11.1.3. Motia have asked you for a deposit or part payment which you have not paid;
11.1.4. you go over your call limit;
11.1.5. Motia believe that you have entered into the Contract fraudulently;
11.1.6. Motia believe you and/or your End User(s) have or are likely to use any number, Equipment or Services in an unauthorised, illegal, or fraudulent way;
11.1.7. you tell us that your Equipment has been lost or stolen;
11.1.8. you become bankrupt or make any arrangement with creditors or go into liquidation or an administration order is made or a receiver is appointed over any of your assets;
11.1.9. you and/or your End Users do anything (or allow anything to be done) which Motia think may damage or affect the operation of the Network;
11.1.10. the emergency services tell us to, or a law or regulation is passed which means Motia need to do so; or
11.1.11. where Motia identify what Motia reasonably determine to be Artificially Inflated Traffic.
11.2. Motia can suspend or restrict the Services to carry out necessary planned maintenance services or during any technical failure of the Network or Services where it is necessary to safeguard the security and integrity of the same or where Motia are obliged by law to do so to comply with Emergency Planning Measures provided that in each case Motia will aim to keep all service suspensions to a minimum. If a service suspension for planned maintenance is likely to exceed 10 minutes Motia will endeavour to give you 24 hours prior written notice.
11.3. When Motia suspend or restrict your use, the Contract will continue and you still have to pay all Charges due during any period when Motia suspend or restrict the Services.
11.4. If Motia have suspended the Services for your non-payment and Motia have subsequently agreed (in our discretion) to reactivate the Services following your request, Motia may charge you a reasonable administration charge in addition to all arrears.
11.5. If Motia have suspended Services to an End User for their failure to use the Services in accordance with these Conditions where Motia have decided not to suspend the Services provided to you or other End Users Motia may reinstate the Services to that End User following remedy of the End User’s default subject to the payment of a reasonable administration charge.
12. GSM GATEWAYS
12.1. You will not connect or continue the connection of any GSM gateways to the Network or otherwise provide telecommunications services to a third party or allow any End User to do same without our prior written consent which, Motia can withhold in our absolute discretion according to our current GSM Gateway Commercial Policy as communicated from time to time.
13. ENDING THE CONTRACT
13.1. Subject to Condition 13.6, either of us may end the Contract by giving the other 30 days’ notice in writing. Your notice must include your mobile and fixed line numbers and the signature of the account holder. You must pay the Charges during the notice period.
13.2. You may end the Contract in its entirety or part only insofar as it relates to the Services delivered in respect of a particular number by writing to us if:
13.2.1. Motia materially breach the Contract and cannot correct the situation within 14 days of you telling us about the breach;
13.2.2. Motia increase your Charges in the UK which have the effect of increasing your total call and usage Charges (based on your usage in the previous month) by more than 10% and you write to us before the increase applies; or
13.2.3. You exercise your right to cancel Services in relation to a site subject to and in accordance with Conditions 8.4, 8.5 or 8.6 where Motia do not provide Services to any other site.
13.3. Motia may end the Contract at any time by writing to you if:
13.3.1. you become bankrupt, insolvent or go into liquidation or if you enter into a voluntary arrangement or have a receiver or an administrator appointed over any or all of your assets (in which event Motia do not have to give notice to you);
13.3.2. you do anything (or allow anything to be done) which Motia think may damage or affect the operation of the Network;
13.3.3. Motia believe that your use of the Services may be fraudulent or is otherwise not consistent with good faith commercial use of the Services (this includes where Motia identify Artificially Inflated Traffic);
13.3.4. you materially breach the Contract and do not correct the situation within 14 days of us telling you about the breach (examples of material breach include your failure to pay the Charges when they are due, your breach of any software licence and where Motia have repeatedly suspended provision of the Services to you or your End Users for cause); or
13.3.5. Motia are permanently unable to provide the Services to you.
13.4. When the Contract comes to an end:
13.4.1. Motia will disconnect your Equipment from the Network;
13.4.2. you will have to pay immediately all Charges you owe on the date Motia disconnect your Equipment from the Network;
13.4.3. you and your End Users must stop using (and remove from your systems and return to us) any software which Motia have licensed to you (except software which is embedded within any Equipment Motia have supplied which belongs to you);
13.4.4. you must stop using Services Motia have provided to you.
13.5. If the Contract ends before the end of the Minimum Period and where you have not terminated under Condition 13.1, you will have to pay us immediately (as one lump sum) the mobile and fixed line-rental Charges left for the rest of the Minimum Period.
13.6. If the Contract ends for any reason other than our breach, Motia may immediately enter your premises without prior notice to recover Equipment which belong to us and you will not re-sell or transfer possession of them to any third party until you have paid us in full all amounts due to us under the Contract.
13.7. If you end the Contract before the end of the Minimum Period (other than under Condition 13.2), you must still pay all the line-rental Charges and monthly access fees left for the rest of the Minimum Period.
13.8. If you end the Contract before the end of the Minimum Period under Condition 13.2 or Motia end the Contract under Condition 13.1, you will only have to pay the Charges you already owe.
13.9. You may terminate an End User’s use of the Services (without terminating the Contract) by giving us 30 days notice in writing, Where this occurs prior to the end of the Minimum Period or such End User’s Term per New User, you will have to pay the all the line-rental charges left for the rest of the Minimum Period or such End User’s Term per New User.
13.10. In the event that a customer cancels an order prior to connection following a purchase order being signed, disconnects, ports or migrates a connection prior to the expiry of the minimum term (without consent from Motia Ltd) or a connection is downward migrated during the minimum term without written consent from Motia Ltd, then Motia Ltd shall be entitled to charge the customer an administration charge up to £250 per handset connection reporting into the 3CX system. For the avoidance of doubt if you are a business customer there is no 14 day cooling off period unlike consumer regulations.
14. LIABILITY AND EXCLUSIONS
14.1. Motia will be legally responsible to you if our negligence causes death or personal injury or if Motia commit fraud. The remaining Conditions of this Condition 14 are subject to this Condition 14.1.
14.2. If Motia break the Contract or are negligent Motia will not be responsible for the losses you suffer as a result, except those losses that are a foreseeable consequence of the breach and except those under Condition 14.1.
14.3. Our maximum liability for all claims relating to the Services or Equipment provided under the Contract whether for breach of contract or in tort, including negligence will be limited to 100% of the Charges paid or payable in the twelve months prior to the date of the Claim.
14.4. Motia shall provide the Services with reasonable skill and care but Motia exclude all liability for breach of warranties, conditions, terms, undertakings, and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are excluded to the fullest extent permitted by law.
14.5. Motia will not be liable for any indirect, punitive, special, incidental or consequential damages in connection with or arising out of the terms of the Contract; nor any direct or indirect loss of business, revenue, profits, goodwill, use, data, compensation, ex gratia payment or other economic advantage however they arise, whether in breach of contract (including repudiatory breach) breach of warranty or in tort, including negligence, and even if Motia have previously been advised of the possibility of such damages or whether such liability could be assumed to be our responsibility.
14.6. Motia will not be legally responsible to you if Motia cannot provide the Services because of something outside of our reasonable control or where Motia are reliant on third party suppliers.
14.7. f you use the Services to make an emergency call, the caller location information that is provided to the emergency services may not be the location from which the call is made, which may delay the emergency services’ response to the call. It is not possible to make fixed line calls using the Services if there is a power failure or a failure of your broadband connection although this will not prevent calls made from mobile devices. It is your responsibility to make your End Users aware of the contents of this Condition 14.7.
15. OUR INTELLECTUAL PROPERTY
15.1. All intellectual property rights to the Services and Equipment (including any created by providing the Services) that belong to us and our licensors at all times during the Contract and you agree not to do anything which might jeopardise or diminish the value of those rights.
15.2. You are not permitted to use our trademarks as part of a business or trading name and you must not remove or modify and trademark or proprietary notice from Equipment, software or documents or other material which Motia supply to you.
15.3. You will promptly tell us if you become aware of any actual or threatened infringement of or challenge to our intellectual property rights and will assist us with enforcing or defending our rights (at our expense) if Motia reasonably request your help.
16. PERSONAL INFORMATION
16.1. For the purposes of this Condition 16, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
16.2. Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This Condition 16.2 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
16.3. For the purposes of Applicable Data Protection Laws, Motia shall process the Customer Personal Data as a processor on your behalf.
16.4. Without prejudice to the generality of clause 16.2, you will ensure that you has all necessary appropriate consents and notices in place to enable lawful transfer of Customer Personal Data to Motia and the lawful collection of the same by Motia for the duration and purposes of the Contract.
16.5. In relation to the Client Personal Data, the Order Form shall set out the scope, nature and purpose of processing by Motia, the duration of the processing and the types of personal data and categories of data subject.
16.6. Without prejudice to the generality of clause 16.2 we shall, in relation your Client Personal Data:
16.6.1. process that Client Personal Data only on your documented instructions, which shall be to process your Client Personal Data for the purposes set out in the Order Form, unless we are required by Applicable Laws to otherwise process that Client Personal Data. Where we are relying on Applicable Laws as the basis for processing your Client Processor Data, we will notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying you on important grounds of public interest. We shall inform you if, in our opinion, your instructions infringe Applicable Data Protection Laws;
16.6.2. implement the technical and organisational to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
16.6.3. ensure that any personnel engaged and authorised by us to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
16.6.4. assist you insofar as this is possible (taking into account the nature of the processing and the information available to us), and at your cost and written request, in responding to any request from a data subject and in ensuring your compliance with your obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
16.6.5. notify you without undue delay on becoming aware of a personal data breach involving your Client Personal Data;
16.6.6. at your written direction, delete or return your Client Personal Data and copies thereof to you on termination of the Contract unless we are required by Applicable Law to continue to process that Client Personal Data. For the purposes of this clause 16.6.6 Client Personal Data shall be considered deleted where it is put beyond further use by us; and
16.6.7. maintain records to demonstrate our compliance with this clause 16.
16.7. You hereby provide your prior, general authorisation for Motia to:
16.7.1. appoint processors to process the Client Personal Data, provided that we:
(a) ensure that the terms on which we appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on us in this clause 16;
(b) remain responsible for the acts and omission of any such processor as if they were our acts and omissions; and
(c) inform you of any intended changes concerning the addition or replacement of the processors, thereby giving you the opportunity to object to such changes,
16.7.2. transfer Client Personal Data outside of the UK as required for the Purpose, provided that we ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, you shall promptly comply with any reasonable request of our, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).
16.8. You or we may, at any time on not less than 30 days' notice, revise this Condition 16 with any applicable standard clauses approved by the EU Commission or the UK Information Commissioner's Office or forming part of an applicable certification scheme or code of conduct (Amended Terms). Such Amended Terms shall apply when we agree in writing, but only in respect of such matters which are within the scope of the Amended Terms.
17. CONFIDENTIALITY
17.1. Our relationship may require us to provide you with confidential information which belongs to us and may require you to provide your confidential information to us.
17.2. You and Motia agree to keep confidential and not disclose any confidential information received from the other and only to use that confidential information to the extent necessary to perform its obligations under the Contract or as may be required by law. You shall procure that your employees and End Users keep confidential our confidential information and only use the same for the purposes of the Contract. The requirements of this Condition do not apply to information which:
17.2.1. is or becomes public knowledge through no fault of the recipient of the information;
17.2.2. was already known to the recipient prior to its disclosure by the disclosing party; or
17.2.3. is authorised for disclosure by the disclosing party; is required to be disclosed by a court, regulator or the rules of any recognised investment exchange.
18. CREDIT-REFERENCE AND FRAUD-PREVENTION AGENCIES
18.1. You can ask us for information about how Motia use your details for credit checking and fraud prevention when you take out the Contract. Motia will also release, to credit-reference agencies and fraud-prevention agencies, details of your agreement with us including any change of address, payments you make, account balances, missed payments, disputes and queries. Motia, and other organizations, may use this information to help make decisions about other credit applications made by you or other members of your household you are linked to financially and to protect both our business and our customers from fraudulent activity. Motia may also use any information Motia hold to trace debts and assess claims. If you do not pay us in full and on time, Motia may tell credit-reference agencies who will record the debt.
19. GENERAL
19.1. Motia may transfer the Contract to anyone at any time. You may not transfer the Contract to anyone unless Motia have agreed in writing beforehand. Motia will not unreasonably refuse this request. Except for any rights our suppliers have as licensor of software supplier to you under a software licence, no other third party may benefit from or enforce the Contract. Please contact us if you want to transfer your SIM Card(s) or Equipment to someone else within your organisation (subject to a satisfactory credit check).
19.2. Motia may perform some or all of our obligations under the Contract by using subcontractors
19.3. You and Motia acknowledge that neither you nor Motia have entered the Contract relying on any non-fraudulent statement which is not expressed in the Contract.
19.4. You and Motia shall not make any public announcement regarding the Contract unless Motia have agreed with you otherwise although Motia may include you in our generic list of customers which Motia may publish from time to time.
19.5. If you are migrating to 3CX or 3CXExpress from another mobile services agreement, you will be subject to any applicable migration rules. In particular you may lose any existing hardware credits or other benefits that you may be entitled to under your existing agreement.
19.6. If you or Motia fail to enforce our rights under the Contract, it will not prevent you or us from taking further action.
19.7. Motia may apply any payment which you owe to us against any payment which Motia owe to you under the Contract or any other agreement. You shall not make any deductions from amounts which you owe to us.
19.8. When you use your Equipment, your number may be shown to the equipment being called. Your number will always be shown if you are calling UK emergency services.
19.9. Motia will send you notice by post, voicemail, text or other form of electronic message. Motia will treat you as having received the notices 48 hours after Motia have sent them. Motia will send all bills and notices served by post, to the address you have given. You must tell us about any changes to your address. You must send us notices by post or email to our address shown on the bill. You can assume Motia have received these notices 48 hours after you have sent them.
19.10. The Contract is governed by the law of Northern Ireland.
19.11. If Motia have a disagreement with you in relation to the Contract then you and Motia shall use our respective best endeavours to resolve the dispute within seven (7) days (or such shorter time as is reasonable in the circumstances) from the date of it being raised. If Motia are unable to resolve the dispute within such time, then Motia and you agree to escalate the dispute to senior managers or their equivalent. If Motia are still unable to resolve the dispute with you within seven (7) days after the escalation to senior managers then you and Motia agree to act in good faith the seek to agree whether the dispute should be settled through mediation provided that if no such agreement is reached or if Motia are unable to resolve the dispute with you through mediation then either party may commence proceedings through the Northern Ireland courts.
20. DEFINITIONS
“3CX” means the service that integrates your fixed line and mobile voice services and fixed line data services, delivering a converged communications experience.
“Access Fees” means the monthly or other periodic fee payable by you for the use of a Service.
“Applicable Data Protection Laws” means:
(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
(b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Motia is subject, which relates to the protection of personal data.
“Applicable Laws” means:
(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.
(b) to the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which Motia is subject.
“Artificially Inflated Traffic” means A flow or volume of traffic via any Service, which Vodafone believes is: (i) disproportionate to the flow or volume of traffic which Vodafone expects from good faith commercial practice and usage of the Service; (ii) disproportionate to your previous traffic profiles (in any given month) with Vodafone; (iii) uses automated means to make calls, send data (including text and multimedia messages, video) (save where this is expressly approved by Vodafone in writing); or (iv) may result in you exceeding the credit limit which Vodafone places on your account from time to time.
“Billing Manual” means 3Cx’s call- and billing rounding measures from time to time, which shall be available to you on request.
“Business Day” means day (other than a Saturday or a Sunday) on which clearing banks are open for business in the city of London (other than solely for trading or settlement in Euro).
“Charge” means Access Fees, Connection Fees, fees for Equipment, software license fees, call fees, airtime fees and all other fees payable by you for use of the Services.
“Client Personal Data” any personal data which Motia processes in connection with the Contract, in the capacity of a processor on your behalf.
“Codes of Practice” means All guidelines governing use or provision of mobile telecommunications and data services, issued by any generally recognised bodies (such as PhonepayPlus) or that are adopted by Vodafone from time to time, and all instructions, regulations or guidance issued by the Regulatory Authorities, whether or not mandatory.
“Commencement Date” means the date set out in the Order Form or the date that Motia start providing the Services to you.
“Commercial Terms” means the commercial terms and Charges set out in the Order Form.
“Connection” means a SIM Card or Fixed Line connection that has been configured to attach to the Network or Fixed Line Network with a price plan or SOC associated with it so that End User can user and be charged for Services supplied under the Commercial Terms.
“Contract” means the contract between you and Motia comprising the documents set out in Condition 1.1, including these Conditions.
“Emergency Planning Measures” means the measures that may be taken as a result of Vodafone’s obligations under (i) the General Conditions under section 45 of the Communications Act 2003 and (ii) the Civil Contingencies Act 2004; or any similar law.
“End User” means a person using Equipment or a Service, who is your employee or contractor.
“Equipment” means any tangible material, but not a SIM Card, supplied by Vodafone to you or connected to the Network on your behalf, such as a mobile phone, a connecting cable, a power supply, or a PC data card.
“EU GDPR” the General Data Protection Regulation ((EU) 2016/679).
“Force Majeure” means any cause beyond a party’s reasonable control including without limitation, acts of God, war, fire, flood or other accident, strike, lockouts, delays in transport, material shortages, failures or fluctuations in electric power or telecommunications services or equipment, restrictions or prohibitions of any government or semi-government authority.
“GSM Gateway Commercial Policy” means Vodafone’s policy from time to time governing your use of GSM Gateways, available at: www.vodafone.co.uk/enterprisecontracts
“GSM Gateway” means any equipment containing a SIM Card which enables the routing of calls from fixed apparatus to mobile equipment by establishing a mobile-to-mobile call.
“Intellectual Property Rights” means patents, design rights, trademarks, copyrights (including any such rights in typographical arrangements, websites or software), rights subsisting in trading, business or domain names and e-mail addresses, rights in inventions, rights in databases and all other intellectual property rights of a similar or corresponding character which subsist now or in the future in any part of the world whether registered or not and whether or not capable of registration, and any applications to register or rights to apply for registration of any of the foregoing in all parts of the world.
“Minimum Period” means the minimum period for the supply of the Services as stated in the Order Form.
“Motia”, “we”, “us” or “our” means Cubo Solutions Ltd, trading as Motia, registered in Northern Ireland with registered office Unit E1 Plasketts Close, Kilbegs Business Park, Antrim, BT41 4LY and company number 050118.
“Network” means the telecommunication systems used to provide the Services.
“New User” means an additional End User who starts using the services after the Commencement Date.
“OFCOM” means the UK communications industry regulator appointed and empowered under the provisions of the Communications Act 2003, or any appointment that replaces it.
“Order Form” means the document setting out the agreed Commercial Terms relating to Motia’s provision of Equipment and/or Services, which incorporates the Service Specific Terms and these Conditions. In the absence of other documents, a ‘welcome letter’ from Vodafone detailing your commercial terms may comprise an Order Form.
“Overseas Networks” means Telecommunication systems outside of the UK Mainland used (but not controlled) by Vodafone in providing the Services.
“Purpose” the purposes for which the Client Personal Data is processed, as set out in the Order Form.
“Service Description” means the service description relating to 3CX or 3CXExpress as applicable as provided to you and as amended from time to time.
“Service Specific Terms” means a schedule that sets out service specific information such as terms and conditions, specifications and other technical information.
“Services” means the 3CX or 3CXExpress Service provided pursuant to the Contract and any other service supplied to you pursuant to the relevant Service Specific Terms.
“SIM Card” means a subscriber identity module card, which is an electronic memory device for storing user specific data to allow controlled and secure use of Equipment on the Network.
“Site Survey” means a survey of a Customer’s site to assess whether (in Vodafone’s opinion) the existing infrastructure is sufficient for the deployment of the Services at that site.
“Software License” means the terms and conditions that prescribe how you shall use Software and set out the rights of the Software owner/licensor and the Software user in relation to such Software.
“Software” means a machine executable computer program, software module or software package or any part thereof (in object code only), supplied by Vodafone or its licensors to you irrespective of how it is stored or executed.
“Solution Design” means the solution designed prepared for a customer for the provision of 3CX.
“Standard List Price(s)” means Standard unsubsidised Charges for business Services and Equipment as advised to you by Motia and/or as made available on request by Motia (as amended by Motia from time to time).
“Suitability Test” means a test to determine the suitability of the DSL available to the Customer’s site from the local exchange to assess whether (in Vodafone’s opinion) the quality of access is sufficient for the deployment of the Services at that site.
“Term per New User” means the minimum period of time that the Services shall be provided to a New User which shall be 24 months unless otherwise agreed.
“UK GDPR” has the meaning given to it in the Data Protection Act 2018.
1. INTERPRETATION
1.1. In this these Conditions:
“Account” means the Customer’s account that is covered by the Contract. The account also may cover other contracts between the Customer and Motia.
“Charges Schedule” means the schedule to these Conditions or the Order Form (as applicable) that sets out the charges, including the Tariff(s), applicable to the service, signed by the Customer.
“Conditions” means these conditions.
“Content” means data, information, video, graphics, sound, music, photographs, pictures, marks, logos, names, words, phrases, hypertext links, software and any other materials (in whatever form) which may be available to the Customer as part of the Service.
“Contract”
means the contract between Motia and the Customer comprising the following documents and, unless otherwise stated in the Service Schedule, in order of precedence:
(a) the Order Form;
(b) the Charges Schedule
(c) the Service Schedule
(d) the Conditions;
(e) the Customer Requirements Form (if any);
and any other documents expressly incorporated by any of these documents or by agreement between the Customer and Motia in writing.
“Customer”
means the person or firm named on the Order Form. Motia may accept instructions from another person who Motia reasonably believes is acting with the Customer’s authority.
“Device” means any mobile handset or related accessories including a GPS Receiver provided by Motia under the Contract excluding SIM Cards.
“GPS Receiver” means a device capable of receiving signals from a Global Positioning System (GPS) to provide location information.
“GSM Gateway” means a single point of access to the Network from another network using a SIM Card.
“Internet” means the data network comprising interconnected networks using the TCP/IP protocol suite.
“Minimum Period” means the minimum duration of the Contract as specified in the Charges Schedule and beginning on the date the Order Form is signed by both parties.
“Minimum Term” means the minimum duration for each connection to the Service beginning on the Operational Service Date, as detailed in the Charges Schedule and irrespective of the date of expiry of the Minimum Period.
“Motia Equipment” means equipment (including any software) placed on a Site for the provision of the Service.
“Motia Group Company” means a Cubo Telematics & Telecoms Limited subsidiary or holding company including without limitation a holding company of Cubo Telematics & Telecoms Limited, or a subsidiary of any such holding company, all as defined by Section 736 of the Companies Act 2014.
“Motia” means Cubo Telematics & Telecoms Limited trading as “Motia”, registration No: 557451 (Ireland) registered address DCC House, Leopardstown Road, Foxrock, Dublin, Dublin 18, D18 PK00.
“Network” means the mobile telecommunications carrier over which the Service is provided.
“Operational Service Date” means the date when the contract is first signed by the customer.
“Order Form” means the signed order form between Motia and Customer detailing the Services and tariff with the chosen Network provider, as specified in the Charges Schedule.
“Relevant Laws” means any statute, regulation, bylaw, ordinance or subordinate legislation which is in force for the time being to which a party is subject; the common law as applicable to the parties (or any one of them); any binding court order, judgment or decree applicable to the parties (or any one of them); and any applicable industry code, policy, guidance, standard or accreditation terms (i) enforceable by law which is in force for the time being, and/or (ii) stipulated by any regulatory authority to which a party is subject, in each case, for the time being.
“Service” means the mobile, wireless communications service or, where appropriate, part of the service described in the Service Schedule(s) and specified in the Charges Schedule to the Contract and includes any SIM Cards provided by Motia.
“SIM Card” means the Subscriber Identity Module Card provided by Motia as part of the Service.
“Site” means premises owned, operated or controlled by the Customer.
“Tariff” means a pricing plan and associated terms and conditions set out in the Charges Schedule. A Tariff applies to the Service and may also cover some other services. A Tariff applies to an Account.
2. DURATION OF THE CONTRACT
2.1. The Contract begins on the date that the Order Form is signed by the Customer and will continue for the Minimum Period and thereafter in accordance with these Conditions, unless and until terminated in accordance with Conditions 16 and 17. Please note that there is a separate legal contract between the Customer and the Network listed on the Order Form, with separate Terms and Conditions.
3. PROVISION OF THE SERVICE
3.1. Motia will provide the Service to the Customer on the terms of the Contract.
3.2. Motia will use reasonable endeavours to provide the Service by the date agreed with the Customer, but all dates are estimates and Motia has no liability for any failure to meet any date.
3.3. Motia will use reasonable efforts to provide uninterrupted Service but from time to time faults may occur, which Motia will repair as soon as reasonably practicable. If Motia are unable to resolve the fault, Motia will escalate the fault to the Network and update the Customer accordingly on the progress of the fault. The Customer acknowledges that local geographical, topographical and / or atmospheric conditions and/or other causes of physical or electromagnetic interference may from time to time adversely affect the Service.
3.4. The Service is not available in all parts of the United Kingdom nor in all other countries or parts of those countries. Coverage cannot be guaranteed in all geographical areas, it is the customer’s responsibility to check via the relevant network carrier’s website (coverage checker tools) for signal in the areas they intend to use the service(s).
3.5. Occasionally Motia may:
3.5.1. for operational reasons, change the codes or the numbers used by Motia for the provision of the Service or the technical specification of the Service, provided that any change to the technical specification does not materially affect the performance of the Service;
3.5.2. give the Customer instructions which it believes are necessary for reasons of health, safety Network integrity or the quality of any telecommunications service provided by Motia to the Customer or any other customer; or
3.5.3. temporarily suspend the Service because of an emergency, security risk, misuse, loss or theft of Devices supplied as part of the Service, or for operational reasons, maintenance or improvements.
3.6. During any period of suspension the Customer will remain liable for all charges due under the Contract other than charges incurred after the loss or theft of Devices or SIM Cards has been reported to Motia in accordance with the instructions provided by Motia.
3.7. For any SIM Cards or Devices supplied under the Contract:
3.7.1. risk passes and acceptance takes place at the time of delivery;
3.7.2. title in Devices passes to the Customer on payment in accordance with Condition 12 however title in any Device supplied without charge or in any SIM Card remains with Motia;
3.7.3. until title passes the Customer undertakes not to sell, lease, charge, assign by way of security or otherwise deal in or encumber in any way;
3.7.4. Motia does not guarantee the continuing availability of a particular Device. Motia reserves the right to add to, substitute or to discontinue Devices.
3.8. Motia monitors and records calls relating to Customer services and telemarketing. Motia does this for training purposes and to improve the quality of its customer services.
3.9. If the Order has an Agreement in which there is a Hardware/ Buyout / Cash Back then the Customer has 90 days from signing the Agreement (unless otherwise agreed in writing with Senior Management of Motia) to submit a claim for the credit of the Hardware / Buyout / Cashback as agreed in the Order to Motia.
4. MOTIA EQUIPMENT
4.1. If Motia needs to install Motia Equipment at a Site to enable Motia to provide the Service the Customer will prior to installation:
4.1.1. prepare the Site in accordance with Motia reasonable instructions, if any;
4.1.2. make available a suitable place and conditions for the Motia Equipment; and
4.1.3. provide at no charge to Motia sufficient electricity to power the Motia Equipment. After installation is completed it is the Customer’s responsibility to restore the condition of the Site, including any re-decorating that may be required. However, subject to Condition 13, Motia will be responsible for the reasonable costs of any work to restore the Site to its original condition which is required as a direct result of Motia negligence.
4.2. The Customer is responsible for the Motia Equipment and must not add to, modify or in any way interfere with, nor allow anyone else (other than someone authorised by Motia) to do so. The Customer will be liable to Motia for any loss of or damage to the Motia Equipment whilst it is in the Customer’s possession, custody or control, except where such loss or damage is due to fair wear and tear or is caused by Motia or anyone acting on Motia behalf.
5. CONNECTION OF EQUIPMENT TO THE SERVICE
5.1. The Customer must ensure that any equipment:
5.1.1. connected to or used with the Service is approved for use on the Network by Motia and used in accordance with any applicable instructions, safety and security procedures; and
5.1.2. attached (directly or indirectly) to the Service is compliant with any relevant legislation.
6. ACCESS AND SITE REGULATIONS
6.1. Where required to enable Motia to carry out its obligations under the Contract, the Customer will provide Motia employees and anyone acting on Motia behalf, who produces a valid identity card, with access at all reasonable times to any Site or any other premises outside Motia control.
6.2. 6.2 Motia employees and anyone acting on Motia behalf will observe reasonable Site regulations, as previously advised in writing to Motia by the Customer. In the event of any conflict between the Site regulations and these Conditions, these Conditions will prevail.
6.3. 6.3 Motia and the Customer will meet each other’s reasonable requirements for the safety of people on any Site.
7. USE OF THE SERVICE AND DEVICES
7.1. It is the Customer’s responsibility to Motia to maintain and keep in force any licence necessary for the use of the service.
7.2. The Customer will take all reasonable precautions to ensure that the Service and/or Devices are not used:
7.2.1. fraudulently or in connection with a criminal offence;
7.2.2. to send, knowingly receive, upload, download, or use any material which is offensive abusive, indecent, defamatory, obscene or menacing, or in breach of copyright, confidence, privacy or any other rights;
7.2.3. to cause annoyance, inconvenience or needless anxiety;
7.2.4. to spam or to send or provide unsolicited advertising or promotional material or, knowingly to receive responses to any spam, unsolicited advertising or promotional material sent or provided by any third party;
7.2.5. in any way which in, Motia opinion, is likely to be detrimental to the provision of the Service or adversely affect the Network;
7.2.6. in an unlawful manner, in contravention of any legislation, laws, licence or third rights or in contravention of Motia as may be amended from time to time. The Acceptable Use Policies also specify actions Motia may take to ensure the Customer’s compliance and by accepting these terms the Customer authorises Motia to take such actions; or
7.2.7. in a way that does not comply with any instructions provided by Motia.
7.3. The Customer must not connect, continue connection or knowingly allow any third party to connect or continue the connection of any GSM Gateway to the Network.
7.4. The Customer must comply with such security or other provisions in relation to international roaming as provided by Motia from time to time.
7.5. The Service and any associated software, Motia provides are intended for the Customer’s own use only. Therefore the Customer must not re-sell, transfer, assign or sub-licence the Service (or any part of it) or the associated software to anyone else.
7.6. Devices include a 12-month manufacturer’s guarantee (or such other period stated in the Charges Schedule) from the date of delivery to the Customer. If the Customer reports a fault during the guarantee period and the fault is due to faulty design, manufacture, materials or Motia negligence, Motia will repair or (at its option) replace the Device provided it has been properly kept, maintained and used in accordance with the manufacturer’s and Motia instructions and has not been modified except with Motia written agreement. Faults due to damage, fair wear and tear or the actions of anyone other than Motia are not covered by this guarantee.
7.7. The Customer agrees not to tamper with the Devices so as to invalidate any guarantee and to pay Motia standard charges for repairs outside the guarantee.
7.8. The Customer agrees to notify Motia immediately in the event that any SIM Card or Device is lost or stolen or if the Service has or may be misused, used fraudulently or otherwise used unlawfully.
7.9. The Customer must indemnify Motia against any claims or legal proceedings which are brought or threatened against Motia by a third party because the Service is used in breach of Conditions 7.1 to 7.5. Motia will notify the Customer of any such claims or proceedings and keep the Customer informed as to the progress of such claims or proceedings and have due regard to the Customer’s representations.
8. ACCESSING THE INTERNET
8.1. The Service may enable the Customer to access the Internet. The Internet is separate from the Service and use of the Internet is solely at the Customer’s risk and subject to all applicable laws.
8.2. Motia excludes, to the extent permitted by law, all liability of any kind in respect of any goods, services, information, software or other materials the Customer may obtain when using the Internet (including email). The Customer is responsible for ensuring its equipment is adequately protected against viruses and/or unauthorised access.
8.3. As part of the Service Motia may provide the Customer with Content. Motia may change the content from time to time.
8.4. The Content can only be used for Customer’s own purposes and is protected by copyright, trademark and other intellectual property rights. The Customer is not allowed to copy, store, adapt, modify, transmit, distribute externally, play or show in public, broadcast or publish any part of the Content.
8.5. Although Motia takes precautions, Motia cannot guarantee the accuracy or completeness of the Content. Therefore, the Customer’s use of the Content (for whatever purpose) is at the Customer’s own risk.
8.6. Some of the Content will have its own terms and conditions. If the Customer accesses this Content the Customer will need to comply with those terms and conditions.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. Where software is provided to enable the Customer to use the Service, Motia grants the Customer a non-exclusive, non-transferable licence to use the software for that purpose.
9.2. The Customer will not, without Motia prior written consent, copy, decompile or modify the software, nor copy the manuals or documentation (except as permitted by law).
9.3. The Customer will sign any agreement reasonably required by the owner of the copyright in the software to protect the owner’s interest in that software.
10. INTELLECTUAL PROPERTY RIGHT INDEMNITIES
10.1. Motia will indemnify the Customer against any claims and proceedings arising from infringement of any intellectual property rights through Motia provision of the Service to the Customer. As a condition of this indemnity the Customer must:
10.1.1. notify Motia promptly in writing of any allegation of infringement;
10.1.2. make no admission relating to the infringement;
10.1.3. allow Motia to conduct all negotiations and proceedings in respect of any such claims and give Motia all reasonable assistance in doing so (Motia will pay the Customer’s reasonable expenses for such assistance); and
10.1.4. allow Motia to modify the Service, or any item provided as part of the Service, so as to avoid the infringement, provided that the modification does not materially affect the performance of the Service.
10.2. The indemnity in Condition 10.1 does not apply to infringements caused by the use of the Service in conjunction with other equipment, software or services not supplied by Motia or to infringements caused by designs or specifications made by, or on behalf of, the Customer. The Customer will indemnify Motia against all claims, proceedings and expenses arising from such infringements.
10.3. The limitations and exclusions of liability contained in Condition 13 do not apply to this Condition.
11. CONFIDENTIALITY
11.1. The parties will keep in confidence any information (whether written or oral) of a confidential nature (including software and manuals) obtained under the Contract and will not, without the written consent of the other party, disclose that information to any person (other than their employees or professional advisers, or in the case of Motia the employees of a Motia Group Company or their suppliers, who need to know the information).
11.2. This Condition 11 will not apply to:
11.2.1. any information which has been published other than through a breach of the Contract;
11.2.2. information lawfully in the possession of the recipient before the disclosure under the Contract took place;
11.2.3. information obtained from a third party who is free to disclose it; and
11.2.4. information which a party is requested to disclose and, if it did not, could be required to do so by law.
11.3. This Condition 11 will remain in effect for 2 years after the termination of the Contract.
12. CHARGES AND DEPOSITS
12.1. The charges for the Service are as set out in the Charges Schedule. Charging will begin on the Operational Service Date. Charges for use of the Service will be calculated in accordance with the details recorded by, or on behalf of Motia. Charges for Devices are described in the Charges Schedule.
12.2. Motia may revise the charges on 28 days’ notice to the Customer or such other period stated in the Charges Schedule.
12.3. The Customer will pay the charges within the agreed settlement date of Motia invoice unless previously agreed on the Order Form. Motia may charge daily interest on late payments at a rate equal to 4% per annum above the base lending rate of HSBC Bank.
12.4. All charges will be invoiced and paid in pounds sterling unless otherwise stated in the Charges Schedule. Value Added Tax or any other applicable in country sales, use tax or like charge in a country where the Service is provided, which is payable by the Customer will be added to Motia invoices as appropriate.
12.5. Motia may, at any time, require the Customer to pay a deposit or provide a guarantee as security for payment of future bills.
12.6. Motia may at its discretion apply a usage limit to the Customer’s account and/or SIM Cards. Motia may suspend the Service if this limit is exceeded. Motia may alter this limit by advising the Customer. It is the Customer’s responsibility to monitor the Customer’s usage against this limit. As the networks’ billing system is not instantly updated each time the Customer uses the Service it is possible, especially when making international calls or using international roaming, to exceed the Customer’s usage limit. The Customer will be liable for all charges incurred including any charges exceeding the usage limit. The Customer may need to pay any charges incurred in excess of the limit before the Service is reinstated.
13. LIMITATION OF LIABILITY
13.1. Motia accepts limited liability for death or personal injury resulting from its negligence. Conditions 13.2 and 13.3 do not apply to such liability.
13.2. Motia is not liable to the Customer, either in contract, tort (including negligence) or otherwise for any direct or indirect loss of profits, business or anticipated savings, nor for any indirect loss or damage or for any destruction of data.
13.3. Motia liability to the Customer in contract, tort (including negligence) or otherwise in relation to the Contract is limited and shall in no circumstances exceed the amount paid by the Customer to Motia under the Contract as at the date the loss arose.
13.4. Each provision of the Contract, excluding or limiting liability, operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts will continue to apply.
13.5. Motia shall not be liable to the Customer or deemed to deemed to be in breach of the Contract by reason of delay in performing, or any failure to perform, any of Motia’s obligations if the delay or failure was due to any ca=use beyond Motia’s reasonable control.
14. MATTERS BEYOND THE REASONABLE CONTROL OF EITHER PARTY
14.1. If either party is unable to perform any obligation under the Contract because of a matter beyond that party’s reasonable control such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes or acts of local or central Government or other competent authorities, or events beyond the reasonable control of that party’s suppliers, that party will have no liability to the other for that failure to perform.
14.2. In the event of:
14.2.1. a refusal or delay by a third party to supply a telecommunications service to Motia and where there is no alternative service available at reasonable cost; or
14.2.2. the imposition of restrictions of a legal or regulatory nature which prevent Motia from supplying the Service then Motia will have no liability to the Customer for failure to supply the Service.
14.3. If any of the events detailed in Conditions 14.1 or 14.2 continue for more than 3 months either party may serve notice on the other terminating the Contract.
15. ESCALATION AND DISPUTE RESOLUTION
15.1. If a dispute arises between the parties to the Contract, the parties will use their reasonable endeavours to settle the dispute in accordance with the following procedures:
15.1.1. a dispute which has not been settled by the Customer’s representative and the Motia representative within 7 days of the matter being raised, may be escalated by either party to the first level by written notice to the other party;
15.1.2. if the dispute is not resolved at the first level within 7 days of escalation either party may refer the dispute to the second level.
15.2. The parties’ representatives and the people to whom a dispute must be escalated at the first and second levels are as notified by either party to the other, from time to time.
15.3. If a dispute is not resolved after the procedures set out in Condition 15.1 have been followed then, if the parties agree, the dispute will be referred to a mediator:
15.3.1. the mediator will be appointed by agreement of the parties. In the event of a failure to agree within 3 days of a proposal by one party, the mediator will be appointed by the Centre for Dispute Resolution (CEDR);
15.3.2. within 14 days of the appointment of the mediator the parties will meet with the mediator in order to agree the procedure to be adopted for the negotiations;
15.3.3. all negotiations connected with the dispute will be conducted in confidence and without prejudice to the rights of the parties in any further proceedings;
15.3.4. if the parties reach agreement on the resolution of the dispute the agreement will be put in writing and once signed by the parties will be binding on them;
15.3.5. if the parties are not prepared to agree to the dispute being referred to a mediator, or fail to reach agreement within 2 months of the mediator being appointed then either party may exercise any remedy that it has under the Contract.
16. TERMINATION OF THE CONTRACT BY NOTICE
16.1. Unless otherwise stated on the Order Form, the Mobile Network Services shall continue for a minimum term of twenty-four (24) months from each date of individual Connection or Upgrade or Tariff change in respect of the Mobile Network Services (“Minimum Term”). The Contract shall continue indefinitely thereafter until terminated by either Party giving not less than ninety (90) days’ prior written notice, such notice not to terminate the Contract prior to the expiry of the Minimum Term.
16.2. If for any reason the customer does not fulfil their Contract with the Network, or is released early from the Agreement, the Contract is still enforceable for term and any items provided free of charge will be invoiced at the value listed on the order form or the equivalent market rate at point of order if undefined.
16.3. If the Customer terminates the Contract or the Service either before the Operational Service Date or during the Minimum Period or a Minimum Term other than because Motia has increased the charges or has materially changed the Conditions of the Contract to the Customer’s detriment, the Customer must pay Motia the termination charges specified in the Charges Schedule.
16.4. In the event that a customer cancels an order prior to connection following a purchase order being signed, disconnects, ports or migrates a connection prior to the expiry of the minimum term (without consent from Motia) or a connection is downward migrated during the minimum term without written consent from Motia), then Motia shall be entitled to charge the customer an administration charge up to £250 per connection. This £250 will also be applied to each connection if the customer upgrades with another supplier but on the same mobile network within the minimum contractual term agreed. For the avoidance of doubt if you are a business customer there is no 14 day cooling off period unlike consumer regulations
17. BREACHES OF THE CONTRACT
17.1. Either party may terminate the Contract or the Service (or both):
17.1.1. immediately on notice if the other party commits a material breach of the Contract, which is capable of remedy, and fails to remedy the breach within a reasonable time of a written notice to do so; or
17.1.2. immediately on notice if the other party commits a material breach of the Contract which cannot be remedied; or
17.1.3. on reasonable notice if the other party is repeatedly in breach of the Contract and fails to remedy the breach within a reasonable time of a written notice to do so; or
17.1.4. immediately on notice if the other party is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of their creditors, or goes into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over their assets, or if the equivalent of any such events under the laws of any of the relevant jurisdictions occurs to the other party.
17.2. Motia may suspend the Service or end the Contract (or both) at any time without notice if Motia reasonably believes that the Service is being used in a way forbidden by Conditions 7.1 to 7.5.
17.3. If Motia is entitled to terminate the Contract under Condition 17.1, Motia may, on giving prior notice where practicable, suspend the Service without prejudice to such rights. Where the Service is suspended under this Condition or Condition 17.2 the Customer must pay the charges for the Service until the Contract is terminated.
17.4. If Motia terminates the Contract during the Minimum Period or a Minimum Term because of an event specified in Conditions 17.1 and 17.2 the Customer must pay Motia, without prejudice to any other rights Motia may have, the termination charges specified in the Charges Schedule.
17.5. If either party delays in acting upon a breach of the Contract that delay will not be regarded as a waiver of that breach. If either party waives a breach of the Contract that waiver is limited to that particular breach.
18. CHANGES TO THE CONTRACT
18.1. Except in the circumstances described in Conditions 3.5(a) and 12.2, if either party wishes to vary the Contract it must notify the other party in writing, detailing the proposed change and the reason for it.
18.2. The parties will discuss the proposed change.
18.3. Within a reasonable time of receipt of a proposed change, or the date of the discussions under Condition 18.2, the receiving party will notify the other party in writing whether the proposed change is feasible and the likely financial, contractual, technical and other effects of the proposed change.
18.4. Within a reasonable time of notification of the effects of a proposed change the receiving party will advise the other party whether it wishes the Contract to be amended to incorporate the change.
18.5. Where the parties agree a change to the Contract it will be recorded in writing and will form part of the Contract when signed by both parties. In this instance, both parties have agreed to implement a ‘break’ clause in the contract which can be exercised at a 24 month period. In this event any monies paid by way of hardware allowance will be allocated on a pro rata basis in respect of the shortened contract term.
19. EXPORT CONTROL
Provision of the Service to the Customer may be subject to export control law and regulations. Motia does not represent that any necessary approvals and licences will be granted The Customer will provide reasonable assistance to Motia to obtain any necessary consents. If, through no fault of Motia, any necessary consents are not granted, then Motia can terminate the Contract or the provision of the Service under it (as appropriate) without any liability to the Customer.
20. TRANSFER OF RIGHTS AND OBLIGATIONS
Neither party may transfer any of its rights or obligations under the Contract, without the written consent of the other, except that Motia may transfer its rights or obligations (or both) to a Motia Group Company without consent.
21. GENERAL
21.1. The Contract contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to its subject matter.
21.2. The parties acknowledge and agree that:
21.2.1. they have not been induced to enter into the Contract by any representation, warranty or other assurance not expressly incorporated into it; and
21.2.2. in connection with the Contract their only rights and remedies in relation to any representation, warranty or other assurance are for breach of the Contract and that all other rights and remedies are excluded.
21.3. The provisions of Conditions 21.1 and 21.2 shall not affect the parties’ rights or remedies in relation to any fraud or fraudulent misrepresentation.
21.4. A person who is not party to the Contract has no right to enforce any term of the Contract.
22. NOTICES
Notices given under the Contract must, except for notices given under Condition 3.5 be in writing and may be delivered by hand or by courier, or sent by first class post fax or e-mail to the following addresses: cancellations@Cubo.co.uk
22.1.1. to Motia at the address of the Motia office shown on the Order Form or any alternative address which Motia notifies to the Customer;
22.1.2. to the Customer at the address to which the Customer asks Motia to send invoices, the address of the Site or, if the Customer is a limited company, its registered office.
23. SEVERABILITY
If any provision of the Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of its provisions will continue in full force and effect as if the Contract had been executed with the invalid, illegal or unenforceable provision omitted.
24. LAW AND JURISDICTION
The Contract is governed by the law of the Republic of Ireland and both parties submit to the non-exclusive jurisdiction of the courts of the Republic of Ireland.
25. WEEE
The Customer is responsible pursuant to Regulation 18 of the European Union (Waste Electrical and Electronic Equipment) Regulations 2014 (“the WEEE Regulations”) for the costs of collection, treatment, recovery and environmentally sound disposal of any equipment supplied under the Contract which has become waste electrical and electronic equipment. Motia and the Customer acknowledge that for the purposes of Regulation 9 this Condition is an agreement stipulating other financing arrangements for the collection, treatment, recovery, recycling and environmentally sound disposal of WEEE. The Customer is responsible for any information recording or reporting obligations imposed by the WEEE Regulations.
1. INTERPRETATION
1.1. In this these Conditions:
“Account” means the Customer’s account that is covered by this Contract. The account also may cover other contracts between the Customer and Motia.
“Charges Schedule” means the schedule to these Conditions or the Order Form (as applicable) that sets out the charges, including the Tariff(s), applicable to the service, signed by the Customer.
“Conditions” means these conditions.
“Contract” means the contract between Motia and the Customer comprising the following documents and, unless otherwise stated in the Service Schedule, in order of precedence:
• the Order Form;
• the Charges Schedule
• the Service Schedule
• the Conditions;
• the Customer Requirements Form (if any);
• any other documents expressly incorporated by any of these documents or by agreement between the Customer and Motia in writing.
“Content” means data, information, video, graphics, sound, music, photographs, pictures, marks, logos, names, words, phrases, hypertext links, software and any other materials (in whatever form) which may be available to the Customer as part of the Service.
“Customer” means the person named on the Order Form. Motia may accept instructions from another person who Motia reasonably believes is acting with the Customer’s authority.
“Device” means any mobile handset or related accessories including a GPS Receiver provided by Motia under this Contract excluding SIM Cards.
“GPS Receiver” means a device capable of receiving signals from a Global Positioning System (GPS) to provide location information.
“GSM Gateway” means a single point of access to the Network from another network using a SIM Card.
“Internet” means the data network comprising interconnected networks using the TCP/IP protocol suite.
“Minimum Period” means the minimum duration of the Contract as specified in the Charges Schedule and beginning on the date the Order Form is signed by both parties.
“Minimum Term” means the minimum duration for each connection to the Service beginning on the Operational Service Date, as detailed in the Charges Schedule and irrespective of the date of expiry of the Minimum Period.
“Motia” means Cubo Solutions Ltd, trading as Motia, registered in Northern Ireland with registered office Unit E1 Plasketts Close, Kilbegs Business Park, Antrim,BT41 4LY and company number 050118.
“Motia Equipment” means equipment (including any software) placed on a Site for the provision of the Service.
“Motia Group Company” means a Cubo Solutions Ltd subsidiary or holding company including without limitation a holding company of Cubo Solutions Ltd, or a subsidiary of any such holding company, all as defined by Section 1159 of the Companies Act 2006.
“Network” means the mobile telecommunications carrier over which the Service is provided.
“Order Form” means the signed order form between Motia and Customer detailing the Services and tariff with the chosen Network provider, as specified in the Charges Schedule.
“Operational Service Date” means the date when the contract is first signed by the customer
“Service” means the mobile, wireless communications service or, where appropriate, part of the service described in the Service Schedule(s) and specified in the Charges Schedule to this Contract and includes any SIM Cards provided by Motia.
“SIM Card” means the Subscriber Identity Module Card provided by Motia as part of the Service.
“Site” means premises owned, operated or controlled by the Customer.
“Rate of RPI” means the retail price index percentage change over 12 months announced by the Office for National Statistics (or successor body) in the month preceding an RPI Increase. “Relevant Laws” means any statute, regulation, bylaw, ordinance or subordinate legislation which is in force for the time being to which a party is subject; the common law as applicable to the parties (or any one of them); any binding court order, judgment or decree applicable to the parties (or any one of them); and any applicable industry code, policy, guidance, standard or accreditation terms (i) enforceable by law which is in force for the time being, and/or (ii) stipulated by any regulatory authority to which a party is subject, in each case, for the time being. “RPI Increase” means an increase in the monthly subscription charges pursuant to condition
“Tariff” means a pricing plan and associated terms and conditions set out in the Charges Schedule. A Tariff applies to the Service and may also cover some other services. A Tariff applies to an Account.
2. DURATION OF THIS CONTRACT
2.1. The Contract begins on the date that the Order Form is signed by the Customer and will continue for the Minimum Period and thereafter in accordance with these Conditions, unless and until terminated in accordance with Conditions 16 and 17. Please note that there is a separate legal contract between the Customer and the Network listed on the Order Form, with separate Terms and Conditions.
3. PROVISION OF THE SERVICE
3.1. Motia will provide the Service to the Customer on the terms of this Contract.
3.2. Motia will use reasonable endeavours to provide the Service by the date agreed with the Customer, but all dates are estimates and Motia has no liability for any failure to meet any date.
3.3. Motia will use reasonable efforts to provide uninterrupted Service but from time to time faults may occur, which Motia will repair as soon as reasonably practicable. If Motia are unable to resolve the fault, Motia will escalate the fault to the Network and update the Customer accordingly on the progress of the fault. The Customer acknowledges that local geographical, topographical and / or atmospheric conditions and/or other causes of physical or electromagnetic interference may from time to time adversely affect the Service.
3.4. The Service is not available in all parts of the United Kingdom nor in all other countries or parts of those countries. Coverage cannot be guaranteed in all geographical areas, it is the customer’s responsibility to check via the relevant network carrier’s website (coverage checker tools) for signal in the areas they intend to use the service(s).
3.5. Occasionally Motia may:
3.5.1. for operational reasons, change the codes or the numbers used by Motia for the provision of the Service or the technical specification of the Service, provided that any change to the technical specification does not materially affect the performance of the Service;
3.5.2. give the Customer instructions which it believes are necessary for reasons of health, safety Network integrity or the quality of any telecommunications service provided by Motia to the Customer or any other customer; or
3.5.3. temporarily suspend the Service because of an emergency, security risk, misuse, loss or theft of Devices supplied as part of the Service, or for operational reasons, maintenance or improvements.
3.6. During any period of suspension the Customer will remain liable for all charges due under the Contract other than charges incurred after the loss or theft of Devices or SIM Cards has been reported to Motia in accordance with the instructions provided by Motia.
3.7. For any SIM Cards or Devices supplied under this Contract:
3.7.1. risk passes and acceptance takes place at the time of delivery;
3.7.2. title in Devices passes to the Customer on payment in accordance with Condition 12 however title in any Device supplied without charge or in any SIM Card remains with Motia;
3.7.3. until title passes the Customer undertakes not to sell, lease, charge, assign by way of security or otherwise deal in or encumber in any way;
3.7.4. Motia does not guarantee the continuing availability of a particular Device. Motia reserves the right to add to, substitute or to discontinue Devices.
3.8. Motia monitors and records calls relating to Customer services and telemarketing. Motia does this for training purposes and to improve the quality of its customer services.
3.9. If the Order has an Agreement in which there is a Hardware/ Buyout / Cash Back then the Customer has 90 days from signing the Agreement (unless otherwise agreed in writing with Senior Management of Motia) to submit a claim for the credit of the Hardware / Buyout / Cashback as agreed in the Order to Motia.
4. MOTIA EQUIPMENT
4.1. If Motia needs to install Motia Equipment at a Site to enable Motia to provide the Service the Customer will prior to installation:
4.1.1. prepare the Site in accordance with Motia reasonable instructions, if any;
4.1.2. make available a suitable place and conditions for the Motia Equipment; and
4.1.3. provide at no charge to Motia sufficient electricity to power the Motia Equipment. After installation is completed it is the Customer’s responsibility to restore the condition of the Site, including any re-decorating that may be required. However, subject to Condition 13, Motia will be responsible for the reasonable costs of any work to restore the Site to its original condition which is required as a direct result of Motia negligence.
4.2. The Customer is responsible for the Motia Equipment and must not add to, modify or in any way interfere with, nor allow anyone else (other than someone authorised by Motia) to do so. The Customer will be liable to Motia for any loss of or damage to the Motia Equipment whilst it is in the Customer’s possession, custody or control, except where such loss or damage is due to fair wear and tear or is caused by Motia or anyone acting on Motia behalf.
5. CONNECTION OF EQUIPMENT TO THE SERVICE
5.1. The Customer must ensure that any equipment:
5.1.1. connected to or used with the Service is approved for use on the Network by Motia and used in accordance with any applicable instructions, safety and security procedures; and
5.1.2. attached (directly or indirectly) to the Service is compliant with any relevant legislation.
6. ACCESS AND SITE REGULATIONS
6.1. Where required to enable Motia to carry out its obligations under this Contract, the Customer will provide Motia employees and anyone acting on Motia behalf, who produces a valid identity card, with access at all reasonable times to any Site or any other premises outside Motia control.
6.2. 6.2 Motia employees and anyone acting on Motia behalf will observe reasonable Site regulations, as previously advised in writing to Motia by the Customer. In the event of any conflict between the Site regulations and these Conditions, these Conditions will prevail.
6.3. 6.3 Motia and the Customer will meet each other’s reasonable requirements for the safety of people on any Site.
7. USE OF THE SERVICE AND DEVICES
7.1. It is the Customer’s responsibility to Motia to maintain and keep in force any licence necessary for the use of the service.
7.2. The Customer will take all reasonable precautions to ensure that the Service and/or Devices are not used:
7.2.1. fraudulently or in connection with a criminal offence;
7.2.2. to send, knowingly receive, upload, download, or use any material which is offensive abusive, indecent, defamatory, obscene or menacing, or in breach of copyright, confidence, privacy or any other rights;
7.2.3. to cause annoyance, inconvenience or needless anxiety;
7.2.4. to spam or to send or provide unsolicited advertising or promotional material or, knowingly to receive responses to any spam, unsolicited advertising or promotional material sent or provided by any third party;
7.2.5. in any way which in, Motia opinion, is likely to be detrimental to the provision of the Service or adversely affect the Network;
7.2.6. in an unlawful manner, in contravention of any legislation, laws, licence or third rights or in contravention of Motia as may be amended from time to time. The Acceptable Use Policies also specify actions Motia may take to ensure the Customer’s compliance and by accepting these terms the Customer authorises Motia to take such actions; or
7.2.7. in a way that does not comply with any instructions provided by Motia.
7.3. The Customer must not connect, continue connection or knowingly allow any third party to connect or continue the connection of any GSM Gateway to the Network.
7.4. The Customer must comply with such security or other provisions in relation to international roaming as provided by Motia from time to time.
7.5. The Service and any associated software, Motia provides are intended for the Customer’s own use only. Therefore the Customer must not re-sell, transfer, assign or sub-licence the Service (or any part of it) or the associated software to anyone else.
7.6. Devices include a 12-month manufacturer’s guarantee (or such other period stated in the Charges Schedule) from the date of delivery to the Customer. If the Customer reports a fault during the guarantee period and the fault is due to faulty design, manufacture, materials or Motia negligence, Motia will repair or (at its option) replace the Device provided it has been properly kept, maintained and used in accordance with the manufacturer’s and Motia instructions and has not been modified except with Motia written agreement. Faults due to damage, fair wear and tear or the actions of anyone other than Motia are not covered by this guarantee.
7.7. The Customer agrees not to tamper with the Devices so as to invalidate any guarantee and to pay Motia standard charges for repairs outside the guarantee.
7.8. The Customer agrees to notify Motia immediately in the event that any SIM Card or Device is lost or stolen or if the Service has or may be misused, used fraudulently or otherwise used unlawfully.
7.9. The Customer must indemnify Motia against any claims or legal proceedings which are brought or threatened against Motia by a third party because the Service is used in breach of Conditions 7.1 to 7.5. Motia will notify the Customer of any such claims or proceedings and keep the Customer informed as to the progress of such claims or proceedings and have due regard to the Customer’s representations.
8. ACCESSING THE INTERNET
8.1. The Service may enable the Customer to access the Internet. The Internet is separate from the Service and use of the Internet is solely at the Customer’s risk and subject to all applicable laws.
8.2. Motia excludes, to the extent permitted by law, all liability of any kind in respect of any goods, services, information, software or other materials the Customer may obtain when using the Internet (including email). The Customer is responsible for ensuring its equipment is adequately protected against viruses and/or unauthorised access.
8.3. As part of the Service Motia may provide the Customer with Content. Motia may change the content from time to time.
8.4. The Content can only be used for Customer’s own purposes and is protected by copyright, trademark and other intellectual property rights. The Customer is not allowed to copy, store, adapt, modify, transmit, distribute externally, play or show in public, broadcast or publish any part of the Content.
8.5. Although Motia takes precautions, Motia cannot guarantee the accuracy or completeness of the Content. Therefore, the Customer’s use of the Content (for whatever purpose) is at the Customer’s own risk.
8.6. Some of the Content will have its own terms and conditions. If the Customer accesses this Content the Customer will need to comply with those terms and conditions.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. Where software is provided to enable the Customer to use the Service, Motia grants the Customer a non-exclusive, non-transferable licence to use the software for that purpose.
9.2. The Customer will not, without Motia prior written consent, copy, decompile or modify the software, nor copy the manuals or documentation (except as permitted by law).
9.3. The Customer will sign any agreement reasonably required by the owner of the copyright in the software to protect the owner’s interest in that software.
10. INTELLECTUAL PROPERTY RIGHT INDEMNITIES
10.1. Motia will indemnify the Customer against any claims and proceedings arising from infringement of any intellectual property rights through Motia provision of the Service to the Customer. As a condition of this indemnity the Customer must:
10.1.1. notify Motia promptly in writing of any allegation of infringement;
10.1.2. make no admission relating to the infringement;
10.1.3. allow Motia to conduct all negotiations and proceedings in respect of any such claims and give Motia all reasonable assistance in doing so (Motia will pay the Customer’s reasonable expenses for such assistance); and
10.1.4. allow Motia to modify the Service, or any item provided as part of the Service, so as to avoid the infringement, provided that the modification does not materially affect the performance of the Service.
10.2. The indemnity in Condition 10.1 does not apply to infringements caused by the use of the Service in conjunction with other equipment, software or services not supplied by Motia or to infringements caused by designs or specifications made by, or on behalf of, the Customer. The Customer will indemnify Motia against all claims, proceedings and expenses arising from such infringements.
10.3. The limitations and exclusions of liability contained in Condition 13 do not apply to this Condition.
11. CONFIDENTIALITY
11.1. The parties will keep in confidence any information (whether written or oral) of a confidential nature (including software and manuals) obtained under this Contract and will not, without the written consent of the other party, disclose that information to any person (other than their employees or professional advisers, or in the case of Motia the employees of a Motia Group Company or their suppliers, who need to know the information).
11.2. This Condition 11 will not apply to:
11.2.1. any information which has been published other than through a breach of this Contract;
11.2.2. information lawfully in the possession of the recipient before the disclosure under this Contract took place;
11.2.3. information obtained from a third party who is free to disclose it; and
11.2.4. information which a party is requested to disclose and, if it did not, could be required to do so by law.
11.3. This Condition 11 will remain in effect for 2 years after the termination of this Contract.
12. CHARGES AND DEPOSITS
12.1. The charges for the Service are as set out in the Charges Schedule. Charging will begin on the Operational Service Date. Charges for use of the Service will be calculated in accordance with the details recorded by, or on behalf of Motia. Charges for Devices are described in the Charges Schedule.
12.2. Motia may revise the charges on 28 days’ notice to the Customer or such other period stated in the Charges Schedule.
12.3. The Customer will pay the charges within the agreed settlement date of Motia invoice unless previously agreed on the Order Form. Motia may charge daily interest on late payments at a rate equal to 4% per annum above the base lending rate of HSBC Bank.
12.4. All charges will be invoiced and paid in pounds sterling unless otherwise stated in the Charges Schedule. Value Added Tax or any other applicable in country sales, use tax or like charge in a country where the Service is provided, which is payable by the Customer will be added to Motia invoices as appropriate.
12.5. Motia may, at any time, require the Customer to pay a deposit or provide a guarantee as security for payment of future bills.
12.6. Motia may at its discretion apply a usage limit to the Customer’s account and/or SIM Cards. Motia may suspend the Service if this limit is exceeded. Motia may alter this limit by advising the Customer. It is the Customer’s responsibility to monitor the Customer’s usage against this limit. As the networks’ billing system is not instantly updated each time the Customer uses the Service it is possible, especially when making international calls or using international roaming, to exceed the Customer’s usage limit. The Customer will be liable for all charges incurred including any charges exceeding the usage limit. The Customer may need to pay any charges incurred in excess of the limit before the Service is reinstated.
13. LIMITATION OF LIABILITY
13.1. Motia accepts limited liability for death or personal injury resulting from its negligence. Conditions 13.2 and 13.3 do not apply to such liability.
13.2. Motia is not liable to the Customer, either in contract, tort (including negligence) or otherwise for any direct or indirect loss of profits, business or anticipated savings, nor for any indirect loss or damage or for any destruction of data.
13.3. Motia liability to the Customer in contract, tort (including negligence) or otherwise in relation to this Contract is limited and shall in no circumstances exceed the amount paid by the Customer to Motia under the Contract as at the date the loss arose.
13.4. Each provision of this Contract, excluding or limiting liability, operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts will continue to apply.
13.5. Motia shall not be liable to the Customer or deemed to deemed to be in breach of the Contract by reason of delay in performing, or any failure to perform, any of Motia’s obligations if the delay or failure was due to any ca=use beyond Motia’s reasonable control.
14. MATTERS BEYOND THE REASONABLE CONTROL OF EITHER PARTY
14.1. If either party is unable to perform any obligation under this Contract because of a matter beyond that party’s reasonable control such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes or acts of local or central Government or other competent authorities, or events beyond the reasonable control of that party’s suppliers, that party will have no liability to the other for that failure to perform.
14.2. In the event of:
14.2.1. a refusal or delay by a third party to supply a telecommunications service to Motia and where there is no alternative service available at reasonable cost; or
14.2.2. the imposition of restrictions of a legal or regulatory nature which prevent Motia from supplying the Service then Motia will have no liability to the Customer for failure to supply the Service.
14.3. If any of the events detailed in Conditions 14.1 or 14.2 continue for more than 3 months either party may serve notice on the other terminating this Contract.
15. ESCALATION AND DISPUTE RESOLUTION
15.1. If a dispute arises between the parties to this Contract, the parties will use their reasonable endeavours to settle the dispute in accordance with the following procedures:
15.1.1. a dispute which has not been settled by the Customer’s representative and the Motia representative within 7 days of the matter being raised, may be escalated by either party to the first level by written notice to the other party;
15.1.2. if the dispute is not resolved at the first level within 7 days of escalation either party may refer the dispute to the second level.
15.2. The parties’ representatives and the people to whom a dispute must be escalated at the first and second levels are as notified by either party to the other, from time to time.
15.3. If a dispute is not resolved after the procedures set out in Condition 15.1 have been followed then, if the parties agree, the dispute will be referred to a mediator:
15.3.1. the mediator will be appointed by agreement of the parties. In the event of a failure to agree within 3 days of a proposal by one party, the mediator will be appointed by the Centre for Dispute Resolution (CEDR);
15.3.2. within 14 days of the appointment of the mediator the parties will meet with the mediator in order to agree the procedure to be adopted for the negotiations;
15.3.3. all negotiations connected with the dispute will be conducted in confidence and without prejudice to the rights of the parties in any further proceedings;
15.3.4. if the parties reach agreement on the resolution of the dispute the agreement will be put in writing and once signed by the parties will be binding on them;
15.3.5. if the parties are not prepared to agree to the dispute being referred to a mediator, or fail to reach agreement within 2 months of the mediator being appointed then either party may exercise any remedy that it has under this Contract.
16. TERMINATION OF THIS CONTRACT BY NOTICE
16.1. Unless otherwise stated on the Order Form, the Mobile Network Services shall continue for a minimum term of twenty-four (24) months from each date of individual Connection or Upgrade or Tariff change in respect of the Mobile Network Services (“Minimum Term”). This Contract shall continue indefinitely thereafter until terminated by either Party giving not less than ninety (90) days’ prior written notice, such notice not to terminate the Contract prior to the expiry of the Minimum Term.
16.2. If for any reason the customer does not fulfil their Contract with the Network, or is released early from the Agreement, this Contract is still enforceable for term and any items provided free of charge will be invoiced at the value listed on the order form or the equivalent market rate at point of order if undefined.
16.3. If the Customer terminates this Contract or the Service either before the Operational Service Date or during the Minimum Period or a Minimum Term other than because Motia has increased the charges or has materially changed the Conditions of this Contract to the Customer’s detriment, the Customer must pay Motia the termination charges specified in the Charges Schedule.
16.4. In the event that a customer cancels an order prior to connection following a purchase order being signed, disconnects, ports or migrates a connection prior to the expiry of the minimum term (without consent from Motia Ltd) or a connection is downward migrated during the minimum term without written consent from Motia Ltd), then Motia Ltd shall be entitled to charge the customer an administration charge up to £250 per connection. This £250 will also be applied to each connection if the customer upgrades with another supplier but on the same mobile network within the minimum contractual term agreed. For the avoidance of doubt if you are a business customer there is no 14 day cooling off period unlike consumer regulations
17. BREACHES OF THIS CONTRACT
17.1. Either party may terminate this Contract or the Service (or both):
17.1.1. immediately on notice if the other party commits a material breach of this Contract, which is capable of remedy, and fails to remedy the breach within a reasonable time of a written notice to do so; or
17.1.2. immediately on notice if the other party commits a material breach of this Contract which cannot be remedied; or
17.1.3. on reasonable notice if the other party is repeatedly in breach of this Contract and fails to remedy the breach within a reasonable time of a written notice to do so; or
17.1.4. immediately on notice if the other party is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of their creditors, or goes into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over their assets, or if the equivalent of any such events under the laws of any of the relevant jurisdictions occurs to the other party.
17.2. Motia may suspend the Service or end this Contract (or both) at any time without notice if Motia reasonably believes that the Service is being used in a way forbidden by Conditions 7.1 to 7.5.
17.3. If Motia is entitled to terminate this Contract under Condition 17.1, Motia may, on giving prior notice where practicable, suspend the Service without prejudice to such rights. Where the Service is suspended under this Condition or Condition 17.2 the Customer must pay the charges for the Service until this Contract is terminated.
17.4. If Motia terminates this Contract during the Minimum Period or a Minimum Term because of an event specified in Conditions 17.1 and 17.2 the Customer must pay Motia, without prejudice to any other rights Motia may have, the termination charges specified in the Charges Schedule.
17.5. If either party delays in acting upon a breach of this Contract that delay will not be regarded as a waiver of that breach. If either party waives a breach of this Contract that waiver is limited to that particular breach.
18. CHANGES TO THIS CONTRACT
18.1. Except in the circumstances described in Conditions 3.5(a) and 12.2, if either party wishes to vary this Contract it must notify the other party in writing, detailing the proposed change and the reason for it.
18.2. The parties will discuss the proposed change.
18.3. Within a reasonable time of receipt of a proposed change, or the date of the discussions under Condition 18.2, the receiving party will notify the other party in writing whether the proposed change is feasible and the likely financial, contractual, technical and other effects of the proposed change.
18.4. Within a reasonable time of notification of the effects of a proposed change the receiving party will advise the other party whether it wishes this Contract to be amended to incorporate the change.
18.5. Where the parties agree a change to this Contract it will be recorded in writing and will form part of this Contract when signed by both parties. In this instance, both parties have agreed to implement a ‘break’ clause in the contract which can be exercised at a 24 month period. In this event any monies paid by way of hardware allowance will be allocated on a pro rata basis in respect of the shortened contract term.
19. EXPORT CONTROL
Provision of the Service to the Customer may be subject to export control law and regulations. Motia does not represent that any necessary approvals and licences will be granted The Customer will provide reasonable assistance to Motia to obtain any necessary consents. If, through no fault of Motia, any necessary consents are not granted, then Motia can terminate this Contract or the provision of the Service under it (as appropriate) without any liability to the Customer.
20. TRANSFER OF RIGHTS AND OBLIGATIONS
Neither party may transfer any of its rights or obligations under this Contract, without the written consent of the other, except that Motia may transfer its rights or obligations (or both) to a Motia Group Company without consent.
21. GENERAL
21.1. This Contract contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to its subject matter.
21.2. The parties acknowledge and agree that:
21.2.1. they have not been induced to enter into this Contract by any representation, warranty or other assurance not expressly incorporated into it; and
21.2.2. in connection with this Contract their only rights and remedies in relation to any representation, warranty or other assurance are for breach of this Contract and that all other rights and remedies are excluded.
21.3. The provisions of Conditions 21.1 and 21.2 shall not affect the parties’ rights or remedies in relation to any fraud or fraudulent misrepresentation.
21.4. A person who is not party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
22. NOTICES
Notices given under this Contract must, except for notices given under Condition 3.5 be in writing and may be delivered by hand or by courier, or sent by first class post fax or e-mail to the following addresses: cancellations@Cubo.co.uk
22.1.1. to Motia at the address of the Motia office shown on the Order Form or any alternative address which Motia notifies to the Customer;
22.1.2. to the Customer at the address to which the Customer asks Motia to send invoices, the address of the Site or, if the Customer is a limited company, its registered office.
23. SEVERABILITY
If any provision of this Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of its provisions will continue in full force and effect as if this Contract had been executed with the invalid, illegal or unenforceable provision omitted.
24. LAW AND JURISDICTION
This Contract is governed by the law of Northern Ireland and both parties submit to the non-exclusive jurisdiction of the Northern Irish Courts.
25. WEEE
The Customer is responsible pursuant to Regulation 9 of the Waste Electrical and Electronic Equipment Regulations 2006 (“the WEEE Regulations”) for the costs of collection, treatment, recovery and environmentally sound disposal of any equipment supplied under this Contract which has become waste electrical and electronic equipment. Motia and the Customer acknowledge that for the purposes of Regulation 9 this Condition is an agreement stipulating other financing arrangements for the collection, treatment, recovery, recycling and environmentally sound disposal of WEEE. The Customer is responsible for any information recording or reporting obligations imposed by the WEEE Regulations.
1 Interpretation
1.1 In these Conditions the following definitions apply:
"Applicable Data Protection Laws" means the Irish Data Protection Acts 1988 to 2018 (as amended), the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (as amended), together with any other relevant legislation or regulations and the GDPR and any other directly applicable EU regulation relating to data protection and privacy.
"Applicable Laws" means the law of the Republic of Ireland.
“Business Day” means a day other than Saturday, Sunday and public holidays when banks generally are open for non-automated business in London;
“Client” means the person(s) or firm whose details are set out in the Contract Agreement;
"Client Personal Data" any personal data which Motia processes in connection with the Contract, in the capacity of a processor on behalf of the Client.
“Conditions” means the terms and conditions set out in this document;
“Confidential Information” means any commercial, financial or technical information, information relating to products, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract Agreement;
“Contract Agreement” means the agreement between Motia and the Client for:
a) a) the sale and purchase of the Hardware;
b) the licence of the Motia Software and the SIM-cards; and
c) the supply and purchase of the Services,
all incorporating these Conditions;
“Motia Software” Web based vehicle monitoring platform;
“Motia” means Cubo Telematics & Telecoms Limited trading as “Motia”, Registration No: 557451 (Ireland) registered address DCC House, Leopardstown Road, Foxrock, Dublin, Dublin 18, D18 PK00;
“Equipment” means the following equipment set out in the Contract Agreement and to be supplied by Motia to the Client, being:
a) the Hardware, and;
b) the SIM-cards.
"GDPR" the General Data Protection Regulation ((EU) 2016/679).
“Finance Lease” means, if applicable, the finance lease entered into by the Client with the Funder for the lease of the Contract Agreement;
“Force Majeure” means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required by for performance of the Contract, except any party’s failure to pay shall not be an event of Force Majeure in any event;
“Funder” means, where applicable, the third party funder who has provided finance for the purchase of the Contract Agreement;
“Hardware” means all physical items required to ensure the minimum necessary requirement for the Contract Agreement to be fulfilled;
“Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, chip topography rights, mask works, utility models, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future;
(e) to which Motia is or may be entitled; and
(f) in whichever part of the world existing.
“Order” means the Client's order for the Equipment and Services from Motia as set out in the Contract Agreement;
“Purpose” the purposes for which the Client Personal Data is processed, as set out in the Order;
“Service Providers” means any third party service providers associated with the fulfilment of the Contract Agreement;
“Services” means the services to be supplied by Motia or Service Providers to the Client, being:
a) installation of the Hardware;
b) support services;
c) internet connectivity services;
d) other services connected the fulfilment of the Contract Agreement.
“SIM-cards” means the SIM-cards provided by Motia to the Client pursuant to the Contract Agreement;
“Solution Packages” means the various Hardware and Motia Software bundles specified in the Contract Agreement;
“Term” as defined in clause 13.1;
“Territory” means the territory specified in the Contract Agreement;
“VAT” means value added tax;
“Year” means a consecutive period of 12 months commencing on the date of the Contract Agreement and each consecutive period of 12 months thereafter.
1.2 Unless the context otherwise requires:
1.2.1 each gender includes the others;
1.2.2 the singular includes the plural and vice versa;
1.2.3 references to the Contract include these Conditions, the Contract Agreement and its schedule (if any);
1.2.4 references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
1.2.5 clause headings do not affect their interpretation;
1.2.6 general words are not limited by example; and
1.2.7 references to any legislation will be construed as a reference to that provision as amended, re enacted or extended at the relevant time.
2 Application of these terms and conditions
2.1 Each Order by the Client to MOTIA will be deemed to be an offer to purchase:
2.1.1 The Hardware;
2.1.2 A licence of the Motia Software and the SIM-cards;
2.1.3 The benefit of the Services,
each on the terms set out in these Conditions and the signed Contract Agreement.
2.2 Motia reserves the right at all times to reject any Order, in whole or in part, at its sole discretion. A Contract Agreement will be formed upon the receipt by Motia of a valid signed Contract Agreement by the Client.
2.3 No variation of these Conditions or to an Order will be binding unless expressly agreed in writing and signed by a listed director of Motia.
3 Price
3.1 The price for the Equipment and Services will be as set out in the Contract Agreement or in default of such provision will be calculated in accordance with Motia's standard scale of charges in force on the date of formation of the Contract Agreement.
3.2 The price for the Equipment and Services does not include Value Added Tax which will be charged in addition at the then applicable rate.
4 Payment
4.1 Subject to Contract Agreement being signed by the Client, Motia shall issue its invoice for the Contract Agreement:
4.1.1 Where the Client is purchasing the Hardware and Services (if applicable) outright, when the Contract Agreement is signed;
4.1.2 Where the Client is renting the Hardware and Services (if applicable) from Motia, monthly in advance; and
4.1.3 Where the Client is making an upfront payment for Hardware and Services (if applicable), when the Contract Agreement is signed;
4.2 Motia will invoice the Client for the Services monthly in advance.
4.3 Where the Client has received the benefit of third party funding from a Funder, clause 4.1 shall not apply and Motia shall issue the appropriate Hardware and Service invoice as per the schedule of the Contract Agreement to the Funder instead. The Client will ensure that all payments due from it to the are paid in accordance with any terms agreed between the Funder and the Client.
4.4 The Client will pay all invoices;
4.4.1 in full, without deduction or set-off other than as required by law, in cleared funds within 30 days of date of each invoice, and
4.4.2 to Motia's nominated bank account specified in the Contract Agreement.
4.5 Time of payment is of the essence. Where sums due hereunder are not paid in full by the due date:
4.5.1 Motia may, without limiting its other rights, charge interest on such sums at 10% a year above the base rate of Bank of England from time to time in force, and
4.5.2 interest will accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgement.
4.6 VAT will be charged by Motia and paid by the Client at the then applicable rate.
4.7 The Client hereby authorises Motia to collect the payments due from the Client's bank account by direct debit as specified in the Contract Agreement.
5 Delivery/Installation
5.1 The Equipment will be delivered, configured and installed by or for Motia at such times and locations as are agreed between Motia and the Client.
5.2 The Client warrants that it has the right to install the Hardware in the vehicles being used for that purpose and that such installation will not breach any law, regulation or third party right and accordingly the Client indemnifies Motia against any loss whatsoever and howsoever arising accordingly.
5.3 The Equipment will be deemed installed when the Client has signed Installation Satisfaction Document.
5.4 Delivery of the Equipment, or part thereof, will be accompanied by a delivery note stating:
5.4.1 the date of the Order;
5.4.2 the relevant Client and Motia details;
5.4.3 the product numbers and type and quantity of Equipment in the consignment; and
5.4.4 any special handling and other instructions.
5.5 Motia will use its reasonable endeavours to meet delivery dates but such dates are approximate only, and time of delivery is not of the essence.
5.6 Motia will not be liable for any delay in or failure of delivery caused by:
5.6.1 the Client’s failure to:
i. make the agreed location available;
ii. prepare the agreed location in accordance with Motia’s instructions; or
iii. provide Motia with adequate instructions, for delivery and installation of the Equipment
iv. third party delivery provider failure;
5.6.2 an event of Force Majeure.
5.7 Motia reserves the right to charge the Client a cancellation fee of £25 for each Hardware unit agreed to be installed, in the event that the Client cancels or changes the agreed delivery date with less than 48 hours written notice having been given to Motia.
5.8 Motia will provide the Services to the Client in accordance with the Contract Agreement.
6 Title and risk
6.1 Risk in the Hardware will pass to the Client on completion of installation under clause 5.1.
6.2 Title to the Hardware will only pass to the Client where the Client has purchased the Hardware outright and Motia has received payment in full.
6.3 Clause 6.2 will not apply if the Client has received the benefit of third party funding from a Funder.
6.4 Title in the SIM-cards will remain with Motia.
7 Obligations of the Client
7.1 The Client will:
7.1.1 place all Orders on these Conditions and ensure that the contents of any Order are complete and accurate:
7.1.2 co-operate fully with Motia in relation to delivery, configuration or installation of the Equipment including but not limited to ensuring that it has properly functioning browser software and Internet access to the Motia Software of appropriate capacity and that the place of installation has mobile internet coverage of appropriate capacity:
7.1.3 where applicable, co-operate fully with Motia in relation to de-installation of the Equipment on termination;
7.1.4 only use the Equipment for the tracking of its vehicles and reporting thereof in the Territory;
7.1.5 comply with the terms of any Finance Lease in full and indemnify Motia for any loss or damage suffered as a result of any breach by the Client of the Finance Lease.
8 Liability
8.1 Motia excludes all liability whatsoever and howsoever occurring in respect of any loss or damage incurred by the Client as a result of:
8.1.1 Any delay in installation of the Equipment caused by the Client's failure to provide access to its vehicles or otherwise comply with Motia's reasonable instructions;
8.1.2 Any damage caused to the Client's vehicles during installation of the Equipment, provided that Motia has used reasonable endeavours to minimise such damage.
8.1.3 Any failure by the Client to comply with the terms of the Finance Lease:
8.1.4 Any Equipment which has been modified or used by the Client other than in accordance with these Conditions:
8.1.5 Any action or omission done by Motia in reliance of a warranty provided by the Client pursuant to these Conditions;
8.1.6 Damage to the Equipment caused by water ingress, fire or other than by the fault of Motia;
8.1.7 Any defect in the Equipment not notified to Motia within the earlier of 4 weeks of discovery of the defect, or within 4 weeks of the date upon which the Client ought to have been reasonably aware of the defect.
8.1.8 Failure of any Service Provider to fulfil the Contract Agreement:
8.2 Motia does not exclude its liability:
8.2.1 for death or personal injury caused by its negligence;
8.2.2 for fraud or fraudulent misrepresentation;
8.2.3 breach of the terms implied by section 12 of the Sale of Goods and Supply of Services Act 1980 (as amended); or
8.2.4 defective products under the Liability for Defective Products Act 1991 (as amended).
8.3 Neither party will be liable for:
8.3.1 loss of data or use;
8.3.2 any form of indirect, consequential or special loss; or
8.3.3 any loss of or failure to realise expected profit, revenue or savings or any other form of pure economic loss, whether any such loss is direct or indirect; and, in each case, however arising.
8.4 Other than as set out above, Motia limits its liability (however arising) in respect of or in connection with the Equipment or Services, and otherwise in connection with the Contract Agreement, to the net price paid or to be paid by the Client to Motia in the six months immediately prior to the date on which the loss or damage occurred.
8.5 The Client acknowledges that the Equipment's functions are dependent on factors outside of Motia's control, including but not limited to, internet and GPS availability via third party providers, cellular infrastructure, mapping software, the user's physical location and satellite geometry. Accordingly, Motia will not be liable for loss or damage incurred in relation to, and does not provide warranties in respect of, the accuracy of any data where it has been adversely affected by such factors.
8.6 Where title to Hardware remains with Motia, the Client shall be liable for up to a maximum amount of £500 in respect of each item of Hardware which has been damaged as a result of unauthorised de installation by the Client or any person authorised by it or under its control, or any other damage attributable to the fault or omission of the Client or any person authorised by it or under its control.
9 Intellectual Property Rights
9.1 Nothing in the Contract will affect the rights (including Intellectual Property Rights) in the Equipment and Services which are and shall remain vested in Motia.
9.2 To the extent that the Motia Software of SIM-cards are used or incorporated into Equipment or Services then the parties acknowledge and agree that the Client is licensed to use the same upon the terms set out in clause 9.3.
9.3 Motia hereby grants to the Client a non-exclusive and non-transferable licence, revocable only for breach by the Client of the terms of the Contract Agreement, to use the Motia Software and SIM-cards solely to the extent necessary to use the Hardware and receive the benefit of the Services. The Client:
9.3.1 will not use the Motia Software or SIM-cards for any other purpose;
9.3.2 will not modify or reverse engineer or take any similar action in relation to any propriety software of Motia;
9.3.3 hereby assigns to Motia, on their creation, all Intellectual Property Rights which arise or are created by any use by it of, or work done by it on, the Motia Software.
10 Confidentiality
10.1 Each party shall keep confidential all Confidential Information of the other party and will only use the other's Confidential Information as required to perform the Contract Agreement. The provisions of this clause will not apply to:
10.1.1 any information which was in the public domain at the date of the Contract Agreement;
10.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract Agreement or any related agreement;
10.1.3 any information which is independently developed by the other party without using information supplied by the first party; or
10.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract Agreement.
10.2 This clause 9.1 will remain in force for a period of five years after termination of the Contract Agreement.
11 Force Majeure
11.1 A party will not be liable if delayed in or prevented from performing its obligations due to and event of Force Majeure, provided that it:
11.1.1 promptly notifies the other of the event of Force Majeure and its expected duration; and
11.1.2 uses reasonable endeavours to minimise the effects of that event.
11.2 If, due to an event of Force Majeure, a party:
11.2.1 is or will be unable to perform a material obligation; or
11.2.2 is delayed in or prevented form performing its obligations for a continuous period exceeding 30 days or total of more than 60 days in any Year then the other party may terminate the Contract on immediate written notice.
12 Data Protection
12.1 For the purposes of this clause 12, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the GDPR.
12.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 12 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
12.3 The parties have determined that, for the purposes of Applicable Data Protection Laws Motia shall process the Client Personal Data as a processor on behalf of the Client.
12.4 Without prejudice to the generality of clause 12.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Client Personal Data to Motia and the lawful collection of the same by Motia for the duration and purposes of the Contract.
12.5 In relation to the Client Personal Data, the Order shall set out the scope, nature and purpose of processing by Motia, the duration of the processing and the types of personal data and categories of data subject.
12.6 Without prejudice to the generality of clause 12.2 Motia shall, in relation to Client Personal Data:
12.6.1 process that Client Personal Data only on the documented instructions of the Client, which shall be to process the Client Personal Data for the purposes set out in the Order, unless Motia is required by Applicable Laws to otherwise process that Client Personal Data. Where Motia is relying on Applicable Laws as the basis for processing Client Processor Data, Motia shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Motia from so notifying the Client on important grounds of public interest. Motia shall inform the Client if, in the opinion of Motia, the instructions of the Client infringe Applicable Data Protection Laws;
12.6.2 implement the technical and organisational to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
12.6.3 ensure that any personnel engaged and authorised by Motia to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
12.6.4 assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to Motia), and at the Client's cost and written request, in responding to any request from a data subject and in ensuring the Client's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
12.6.5 notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
12.6.6 at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the agreement unless Motia is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this clause 1.8.6 Client Personal Data shall be considered deleted where it is put beyond further use by Motia; and
12.6.7 maintain records to demonstrate its compliance with this clause 1.
12.7 The Client hereby provides its prior, general authorisation for Motia to:
12.7.1 appoint processors to process the Client Personal Data, provided that Motia:
(a) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Motia in this clause 12;
(b) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Motia; and
(c) shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to Motia's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify Motia for any losses, damages, costs (including legal fees) and expenses suffered by Motia in accommodating the objection.
12.7.2 transfer Client Personal Data outside of the EEA as required for the Purpose, provided that Motia shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of Motia, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time.
12.8 Either party may, at any time on not less than 30 days' notice, revise this clause 12 with any applicable standard clauses approved by the EU Commission or forming part of an applicable certification scheme or code of conduct (Amended Terms). Such Amended Terms shall apply signed by both parties, but only in respect of such matters which are within the scope of the Amended Terms.
13 Term and Termination
13.1 The Contract will continue for the initial term set out in the Contract Agreement and shall expire thereafter. Following the initial term, the Agreement shall automatically renew for consecutive periods of 1 (one) year each, unless either party gives written notice of its intention not to renew at least 3 (three) months prior to the date on which the Agreement would otherwise renew (the Term).
13.2 The Contract may be terminated forthwith at any time by Motia on written notice to the Client if:
13.2.1 the Client commits a material breach, or series of breaches resulting in a material breach, of the Contract Agreement and such breach is not remediable or if capable of remedy is not remedied within 15 days of written notice to do so;
13.2.2 the Client suspends or threatens to suspend payment of its debts, or is unable to pay its debts as they fall due;
13.2.3 the Client (a) negotiates with its creditors for rescheduling of its debts, (b) makes a proposal to or compounds with its creditors in respect of its debts other than solely by way of solvent amalgamation or reconstruction or (c) makes an application to court for protection from its creditors generally;
13.2.4 the Client passes a resolution for winding-up or for appointment of an administrator, or a liquidator or administrator is appointed in relation to the other, or a winding-up order is made in relation to the other, other than solely in relation to a solvent amalgamation or reconstruction;
13.2.5 a receiver or administrative receiver may be or is appointed in relation to the Client or any of its assets;
13.2.6 any creditor of the Client attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the Client's assets, and such attachment or process is not discharged within 14 days;
13.2.7 the Client takes or suffers any action similar to any of the above in any jurisdiction;
13.2.8 the Client suspends trading, ceases to carry on business, or threatens to do either;
13.2.9 the Client, (being an individual) dies or ceases to be capable of managing his own affairs;
13.2.10 the Client is subject to an event of Force Majeure under clause 11; or
13.2.11 the Finance Lease is terminated.
13.3 In the event of termination under clause 13.2 the following charges shall apply:
13.3.1 An administration fee of £250 for each item of Hardware purchased or rented by the Client from Motia;
13.4 Upon the expiry of the Term for whatever reason:
13.4.1 Where the Hardware has been rented by the Client, the parties agree that de-installation shall be carried out by Motia. The Client will pay to Motia a de-installation fee of (£75 for each vehicle which has Hardware installed} multiplied by (the number of Solution Packages purchased by the Client}; and
13.4.2 Where the Hardware has been purchased by the Client, de-installation by Motia is not mandatory. If the Client requests de-installation by Motia regardless, the de-installation fees set out at clause 13.4.1 shall apply.
13.5 The charges set out in clause 13.3 and clause 13.4 are independent of any charges that may be payable by the Client under the terms of any Finance Lease.
13.6 On termination of the Contract for any reason:
13.6.1 the Client will immediately pay all invoices of Motia then outstanding and not disputed in good faith;
13.6.2 Motia will, within 10 Business Days, invoice the Client for all Equipment delivered or provided but not yet invoiced and the Client will pay such invoice within a further 10 Business Days (unless the invoice is disputed in good faith};
13.6.3 Client will within 5 Business Days return any materials of Motia then in its possession or control at Client's cost (including but not limited to SIM-cards); if it fails to do so, Motia may enter onto any premises owned by or under the control of the and take possession of them;
13.6.4 all licences grated under these Conditions will terminate immediately, including but not limited to that of the Motia Software;
13.6.5 the accrued rights and liabilities of the parties will not be affected; and
13.6.6 any clause which expressly or by implication are to survive termination will do so.
14 General
14.1 Time
Unless stated otherwise, time is not of the essence of any date or period specified in these Conditions, the Order or otherwise in the Contract.
14.2 No set-off
All payments by the Client will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless a party is compelled by law to deduct or withhold any such amounts, in which case it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.
14.3 Relationship
The parties are independent businesses and not principal and agent, partners, or employer and employee.
14.4 Severability
If any part of the Contract is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid, for any reason that provision is to be severed from the Contract and the remaining provisions of the Contract will otherwise remain in full force.
14.5 Notices
Notices under the Contract will be in writing and sent to the persons and addresses set out in the Order. They may be given, and will be deemed received:
14.5.1 by first-class post: two Business Days after posting;
14.5.2 by airmail: seven Business Day after posting;
14.5.3 by hand: on delivery;
14.5.4 by facsimile: on receipt of a successful transmission report from the correct number; and
14.5.5 by e-mail: on receipt of a delivery or read receipt mail from the correct address.
14.6 Waiver
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
14.7 Rights of Third Parties
The Contract is not enforceable by any third party.
14.8 Priority
In the event of conflict, the terms of these Conditions prevail over those of the Order, including its schedule (if any).
14.9 Entire Agreement
The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply.
14.10 Succession
The Contract will bind and benefit each party's successors and personal representatives.
14.11 Governing Law & Jurisdiction
14.11.1 The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of Ireland.
14.11.2 The parties irrevocably agree that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
1 Interpretation
1.1 In these Conditions the following definitions apply:
"Applicable Data Protection Laws" means:
(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
(b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Motia is subject, which relates to the protection of personal data.
"Applicable Laws" means:
(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.
(b) to the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which Motia is subject.
“Business Day” means a day other than Saturday, Sunday and public holidays when banks generally are open for non-automated business in London;
“Client” Means the person(s) or firm whose details are set out in the Contract Agreement;
"Client Personal Data" any personal data which Motia processes in connection with the Contract, in the capacity of a processor on behalf of the Client.
“Conditions” means the terms and conditions set out in this document;
“Confidential Information” means any commercial, financial or technical information, information relating to products, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract Agreement;
“Contract Agreement” means the agreement between Motia and the Client for:
a) a) the sale and purchase of the Hardware;
b) the licence of the Motia Software and the SIM-cards; and
c) the supply and purchase of the Services,
all incorporating these Conditions;
“Motia Software” Web based vehicle monitoring platform;
“Motia” means Cubo Solutions Limited trading as “Motia”, Registration No: NI050118 (Northern Ireland) registered address Unit E1 Plaskets Close, Kilbegs Business Park, Antrim BT41 4LY;
“Equipment” means the following equipment set out in the Contract Agreement and to be supplied by Motia to the Client, being:
a) the Hardware, and;
b) the SIM-cards.
"EU GDPR" the General Data Protection Regulation ((EU) 2016/679).
“Finance Lease” means, if applicable, the finance lease entered into by the Client with the Funder for the lease of the Contract Agreement;
“Force Majeure” Means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required by for performance of the Contract, except any party’s failure to pay shall not be an event of Force Majeure in any event;
“Funder” means, where applicable, the third party funder who has provided finance for the purchase of the Contract Agreement;
“Hardware” means all physical items required to ensure the minimum necessary requirement for the Contract Agreement to be fulfilled;
“Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, chip topography rights, mask works, utility models, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future;
(e) to which Motia is or may be entitled; and
(f) in whichever part of the world existing.
“Order” means the Client's order for the Equipment and Services from Motia as set out in the Contract Agreement;
“Purpose” the purposes for which the Client Personal Data is processed, as set out in the Order;
“Service Providers” means any third party service providers associated with the fulfilment of the Contract Agreement;
“Services” means the services to be supplied by Motia or Service Providers to the Client, being:
a) installation of the Hardware;
b) support services;
c) internet connectivity services;
d) other services connected the fulfilment of the Contract Agreement.
“SIM-cards” means the SIM-cards provided by Motia to the Client pursuant to the Contract Agreement;
“Solution Packages” Means means the various Hardware and Motia Software bundles specified in the Contract Agreement;
“Term” as defined in clause 13.1;
“Territory” means the territory specified in the Contract Agreement;
“UK GDPR” has the meaning given to it in the Data Protection Act 2018;
“Value Added Tax or VAT” means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Equipment;
“Year” means a consecutive period of 12 months commencing on the date of the Contract Agreement and each consecutive period of 12 months thereafter.
1.2 Unless the context otherwise requires:
1.2.1 each gender includes the others;
1.2.2 the singular includes the plural and vice versa;
1.2.3 references to the Contract include these Conditions, the Contract Agreement and its schedule (if any);
1.2.4 references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
1.2.5 clause headings do not affect their interpretation;
1.2.6 general words are not limited by example; and
1.2.7 references to any legislation will be construed as a reference to that provision as amended, re enacted or extended at the relevant time.
2 Application of these terms and conditions
2.1 Each Order by the Client to MOTIA will be deemed to be an offer to purchase:
2.1.1 The Hardware;
2.1.2 A licence of the Motia Software and the SIM-cards;
2.1.3 The benefit of the Services,
each on the terms set out in these Conditions and the signed Contract Agreement.
2.2 Motia reserves the right at all times to reject any Order, in whole or in part, at its sole discretion. A Contract Agreement will be formed upon the receipt by Motia of a valid signed Contract Agreement by the Client.
2.3 No variation of these Conditions or to an Order will be binding unless expressly agreed in writing and signed by a listed director of Motia.
3 Price
3.1 The price for the Equipment and Services will be as set out in the Contract Agreement or in default of such provision will be calculated in accordance with Motia's standard scale of charges in force on the date of formation of the Contract Agreement.
3.2 The price for the Equipment and Services does not include Value Added Tax which will be charged in addition at the then applicable rate.
4 Payment
4.1 Subject to Contract Agreement being signed by the Client, Motia shall issue its invoice for the Contract Agreement:
4.1.1 Where the Client is purchasing the Hardware and Services (if applicable) outright, when the Contract Agreement is signed;
4.1.2 Where the Client is renting the Hardware and Services (if applicable) from Motia, monthly in advance; and
4.1.3 Where the Client is making an upfront payment for Hardware and Services (if applicable), when the Contract Agreement is signed;
4.2 Motia will invoice the Client for the Services monthly in advance.
4.3 Where the Client has received the benefit of third party funding from a Funder, clause 4.1 shall not apply and Motia shall issue the appropriate Hardware and Service invoice as per the schedule of the Contract Agreement to the Funder instead. The Client will ensure that all payments due from it to the are paid in accordance with any terms agreed between the Funder and the Client.
4.4 The Client will pay all invoices;
4.4.1 in full, without deduction or set-off other than as required by law, in cleared funds within 30 days of date of each invoice, and
4.4.2 to Motia's nominated bank account specified in the Contract Agreement.
4.5 Time of payment is of the essence. Where sums due hereunder are not paid in full by the due date:
4.5.1 Motia may, without limiting its other rights, charge interest on such sums at 10% a year above the base rate of Bank of England from time to time in force, and
4.5.2 interest will accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgement.
4.6 VAT will be charged by Motia and paid by the Client at the then applicable rate.
4.7 The Client hereby authorises Motia to collect the payments due from the Client's bank account by direct debit as specified in the Contract Agreement.
5 Delivery/Installation
5.1 The Equipment will be delivered, configured and installed by or for Motia at such times and locations as are agreed between Motia and the Client.
5.2 The Client warrants that it has the right to install the Hardware in the vehicles being used for that purpose and that such installation will not breach any law, regulation or third party right and accordingly the Client indemnifies Motia against any loss whatsoever and howsoever arising accordingly.
5.3 The Equipment will be deemed installed when the Client has signed Installation Satisfaction Document.
5.4 Delivery of the Equipment, or part thereof, will be accompanied by a delivery note stating:
5.4.1 the date of the Order;
5.4.2 the relevant Client and Motia details;
5.4.3 the product numbers and type and quantity of Equipment in the consignment; and
5.4.4 any special handling and other instructions.
5.5 Motia will use its reasonable endeavours to meet delivery dates but such dates are approximate only, and time of delivery is not of the essence.
5.6 Motia will not be liable for any delay in or failure of delivery caused by:
5.6.1 the Client’s failure to:
i. make the agreed location available;
ii. prepare the agreed location in accordance with Motia’s instructions; or
iii. provide Motia with adequate instructions, for delivery and installation of the Equipment
iv. third party delivery provider failure;
5.6.2 an event of Force Majeure.
5.7 Motia reserves the right to charge the Client a cancellation fee of £25 for each Hardware unit agreed to be installed, in the event that the Client cancels or changes the agreed delivery date with less than 48 hours written notice having been given to Motia.
5.8 Motia will provide the Services to the Client in accordance with the Contract Agreement.
6 Title and risk
6.1 Risk in the Hardware will pass to the Client on completion of installation under clause 5.1.
6.2 Title to the Hardware will only pass to the Client where the Client has purchased the Hardware outright and Motia has received payment in full.
6.3 Clause 6.2 will not apply if the Client has received the benefit of third party funding from a Funder.
6.4 Title in the SIM-cards will remain with Motia.
7 Obligations of the Client
7.1 The Client will:
7.1.1 place all Orders on these Conditions and ensure that the contents of any Order are complete and accurate:
7.1.2 co-operate fully with Motia in relation to delivery, configuration or installation of the Equipment including but not limited to ensuring that it has properly functioning browser software and Internet access to the Motia Software of appropriate capacity and that the place of installation has mobile internet coverage of appropriate capacity:
7.1.3 where applicable, co-operate fully with Motia in relation to de-installation of the Equipment on termination;
7.1.4 only use the Equipment for the tracking of its vehicles and reporting thereof in the Territory;
7.1.5 comply with the terms of any Finance Lease in full and indemnify Motia for any loss or damage suffered as a result of any breach by the Client of the Finance Lease.
8 Liability
8.1 Motia excludes all liability whatsoever and howsoever occurring in respect of any loss or damage incurred by the Client as a result of:
8.1.1 Any delay in installation of the Equipment caused by the Client's failure to provide access to its vehicles or otherwise comply with Motia's reasonable instructions;
8.1.2 Any damage caused to the Client's vehicles during installation of the Equipment, provided that Motia has used reasonable endeavours to minimise such damage.
8.1.3 Any failure by the Client to comply with the terms of the Finance Lease:
8.1.4 Any Equipment which has been modified or used by the Client other than in accordance with these Conditions:
8.1.5 Any action or omission done by Motia in reliance of a warranty provided by the Client pursuant to these Conditions;
8.1.6 Damage to the Equipment caused by water ingress, fire or other than by the fault of Motia;
8.1.7 Any defect in the Equipment not notified to Motia within the earlier of 4 weeks of discovery of the defect, or within 4 weeks of the date upon which the Client ought to have been reasonably aware of the defect.
8.1.8 Failure of any Service Provider to fulfil the Contract Agreement:
8.2 Motia does not exclude its liability:
8.2.1 for death or personal injury caused by its negligence; or
8.2.2 for breach of the terms implied by 12 of the Sale of Equipment Act 1979 and by the Supply of Goods and Services Act 1982; or
8.2.3 for defective products under the Consumer Protection Act 1987; or
8.2.4 for fraud or fraudulent misrepresentation.
8.3 Neither party will be liable for:
8.3.1 loss of data or use;
8.3.2 any form of indirect, consequential or special loss; or
8.3.3 any loss of or failure to realise expected profit, revenue or savings or any other form of pure economic loss, whether any such loss is direct or indirect;and, in each case, however arising.
8.4 Other than as set out above, Motia limits its liability (however arising) in respect of or in connection with the Equipment or Services, and otherwise in connection with the Contract Agreement, to the net price paid or to be paid by the Client to Motia in the six months immediately prior to the date on which the loss or damage occurred.
8.5 The Client acknowledges that the Equipment's functions are dependent on factors outside of Motia's control, including but not limited to, internet and GPS availability via third party providers, cellular infrastructure, mapping software, the user's physical location and satellite geometry. Accordingly, Motia will not be liable for loss or damage incurred in relation to, and does not provide warranties in respect of, the accuracy of any data where it has been adversely affected by such factors.
8.6 Where title to Hardware remains with Motia, the Client shall be liable for up to a maximum amount of £500 in respect of each item of Hardware which has been damaged as a result of unauthorised de installation by the Client or any person authorised by it or under its control, or any other damage attributable to the fault or omission of the Client or any person authorised by it or under its control.
9 Intellectual Property Rights
9.1 Nothing in the Contract will affect the rights (including Intellectual Property Rights) in the Equipment and Services which are and shall remain vested in Motia.
9.2 To the extent that the Motia Software of SIM-cards are used or incorporated into Equipment or Services then the parties acknowledge and agree that the Client is licensed to use the same upon the terms set out in clause 9.3.
9.3 Motia hereby grants to the Client a non-exclusive and non-transferable licence, revocable only for breach by the Client of the terms of the Contract Agreement, to use the Motia Software and SIM-cards solely to the extent necessary to use the Hardware and receive the benefit of the Services. The Client:
9.3.1 will not use the Motia Software or SIM-cards for any other purpose;
9.3.2 will not modify or reverse engineer or take any similar action in relation to any propriety software of Motia;
9.3.3 hereby assigns to Motia, on their creation, all Intellectual Property Rights which arise or are created by any use by it of, or work done by it on, the Motia Software.
10 Confidentiality
10.1 Each party shall keep confidential all Confidential Information of the other party and will only use the other's Confidential Information as required to perform the Contract Agreement. The provisions of this clause will not apply to:
10.1.1 any information which was in the public domain at the date of the Contract Agreement;
10.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract Agreement or any related agreement;
10.1.3 any information which is independently developed by the other party without using information supplied by the first party; or
10.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract Agreement.
10.2 This clause 9.1 will remain in force for a period of five years after termination of the Contract Agreement.
11 Force Majeure
11.1 A party will not be liable if delayed in or prevented from performing its obligations due to and event of Force Majeure, provided that it:
11.1.1 promptly notifies the other of the event of Force Majeure and its expected duration; and
11.1.2 uses reasonable endeavours to minimise the effects of that event.
11.2 If, due to an event of Force Majeure, a party:
11.2.1 is or will be unable to perform a material obligation; or
11.2.2 is delayed in or prevented form performing its obligations for a continuous period exceeding 30 days or total of more than 60 days in any Year then the other party may terminate the Contract on immediate written notice.
12 Data Protection
12.1 For the purposes of this clause 12, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
12.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 12 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
12.3 The parties have determined that, for the purposes of Applicable Data Protection Laws Motia shall process the Client Personal Data as a processor on behalf of the Client.
12.4 Without prejudice to the generality of clause 12.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Client Personal Data to Motia and the lawful collection of the same by Motia for the duration and purposes of the Contract.
12.5 In relation to the Client Personal Data, the Order shall set out the scope, nature and purpose of processing by Motia, the duration of the processing and the types of personal data and categories of data subject.
12.6 Without prejudice to the generality of clause 12.2 Motia shall, in relation to Client Personal Data:
12.6.1 process that Client Personal Data only on the documented instructions of the Client, which shall be to process the Client Personal Data for the purposes set out in the Order, unless Motia is required by Applicable Laws to otherwise process that Client Personal Data. Where Motia is relying on Applicable Laws as the basis for processing Client Processor Data, Motia shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Motia from so notifying the Client on important grounds of public interest. Motia shall inform the Client if, in the opinion of Motia, the instructions of the Client infringe Applicable Data Protection Laws;
12.6.2 implement the technical and organisational to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
12.6.3 ensure that any personnel engaged and authorised by Motia to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
12.6.4 assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to Motia), and at the Client's cost and written request, in responding to any request from a data subject and in ensuring the Client's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
12.6.5 notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
12.6.6 at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the agreement unless Motia is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this clause 12.6.6 Client Personal Data shall be considered deleted where it is put beyond further use by Motia; and
12.6.7 maintain records to demonstrate its compliance with this clause 1.
12.7 The Client hereby provides its prior, general authorisation for Motia to:
12.7.1 appoint processors to process the Client Personal Data, provided that Motia:
(a) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Motia in this clause 12;
(b) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Motia; and
(c) shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to Motia's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify Motia for any losses, damages, costs (including legal fees) and expenses suffered by Motia in accommodating the objection.
12.7.2 transfer Client Personal Data outside of the UK as required for the Purpose, provided that Motia shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of Motia, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).
12.8 Either party may, at any time on not less than 30 days' notice, revise this clause 12 with any applicable standard clauses approved by the EU Commission or the UK Information Commissioner's Office or forming part of an applicable certification scheme or code of conduct (Amended Terms). Such Amended Terms shall apply signed by the parties, but only in respect of such matters which are within the scope of the Amended Terms.
13 Term and Termination
13.1 The Contract will continue for the initial term set out in the Contract Agreement and shall expire thereafter. Following the initial term, the Agreement shall automatically renew for consecutive periods of 1 (one) year each, unless either party gives written notice of its intention not to renew at least 3 (three) months prior to the date on which the Agreement would otherwise renew (the Term).
13.2 The Contract may be terminated forthwith at any time by Motia on written notice to the Client if:
13.2.1 the Client commits a material breach, or series of breaches resulting in a material breach, of the Contract Agreement and such breach is not remediable or if capable of remedy is not remedied within 15 days of written notice to do so;
13.2.2 the Client suspends or threatens to suspend payment of its debts, or is unable to pay its debts as they fall due;
13.2.3 the Client (a) negotiates with its creditors for rescheduling of its debts, (b) makes a proposal to or compounds with its creditors in respect of its debts other than solely by way of solvent amalgamation or reconstruction or (c) makes an application to court for protection from its creditors generally;
13.2.4 the Client passes a resolution for winding-up or for appointment of an administrator, or a liquidator or administrator is appointed in relation to the other, or a winding-up order is made in relation to the other, other than solely in relation to a solvent amalgamation or reconstruction;
13.2.5 a receiver or administrative receiver may be or is appointed in relation to the Client or any of its assets;
13.2.6 any creditor of the Client attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the Client's assets, and such attachment or process is not discharged within 14 days;
13.2.7 the Client takes or suffers any action similar to any of the above in any jurisdiction;
13.2.8 the Client suspends trading, ceases to carry on business, or threatens to do either;
13.2.9 the Client, (being an individual) dies or ceases to be capable of managing his own affairs;
13.2.10 the Client is subject to an event of Force Majeure under clause 11; or
13.2.11 the Finance Lease is terminated.
13.3 In the event of termination under clause 13.2 the following charges shall apply:
13.3.1 An administration fee of £250 for each item of Hardware purchased or rented by the Client from Motia;
13.4 Upon the expiry of the Term for whatever reason:
13.4.1 Where the Hardware has been rented by the Client, the parties agree that de-installation shall be carried out by Motia. The Client will pay to Motia a de-installation fee of (£75 for each vehicle which has Hardware installed} multiplied by (the number of Solution Packages purchased by the Client}; and
13.4.2 Where the Hardware has been purchased by the Client, de-installation by Motia is not mandatory. If the Client requests de-installation by Motia regardless, the de-installation fees set out at clause 13.4.1 shall apply.
13.5 The charges set out in clause 13.3 and clause 13.4 are independent of any charges that may be payable by the Client under the terms of any Finance Lease.
13.6 On termination of the Contract for any reason:
13.6.1 the Client will immediately pay all invoices of Motia then outstanding and not disputed in good faith;
13.6.2 Motia will, within 10 Business Days, invoice the Client for all Equipment delivered or provided but not yet invoiced and the Client will pay such invoice within a further 10 Business Days (unless the invoice is disputed in good faith};
13.6.3 Client will within 5 Business Days return any materials of Motia then in its possession or control at Client's cost (including but not limited to SIM-cards); if it fails to do so, Motia may enter onto any premises owned by or under the control of the and take possession of them;
13.6.4 all licences grated under these Conditions will terminate immediately, including but not limited to that of the Motia Software;
13.6.5 the accrued rights and liabilities of the parties will not be affected; and
13.6.6 any clause which expressly or by implication are to survive termination will do so.
14 General
14.1 Time
Unless stated otherwise, time is not of the essence of any date or period specified in these Conditions, the Order or otherwise in the Contract.
14.2 No set-off
All payments by the Client will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless a party is compelled by law to deduct or withhold any such amounts, in which case it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.
14.3 Relationship
The parties are independent businesses and not principal and agent, partners, or employer and employee.
14.4 Severability
If any part of the Contract is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid, for any reason that provision is to be severed from the Contract and the remaining provisions of the Contract will otherwise remain in full force.
14.5 Notices
Notices under the Contract will be in writing and sent to the persons and addresses set out in the Order. They may be given, and will be deemed received:
14.5.1 by first-class post: two Business Days after posting;
14.5.2 by airmail: seven Business Day after posting;
14.5.3 by hand: on delivery;
14.5.4 by facsimile: on receipt of a successful transmission report from the correct number; and
14.5.5 by e-mail: on receipt of a delivery or read receipt mail from the correct address.
14.6 Waiver
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
14.7 Rights of Third Parties
The Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
14.8 Priority
In the event of conflict, the terms of these Conditions prevail over those of the Order, including its schedule (if any).
14.9 Entire Agreement
The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply.
14.10 Succession
The Contract will bind and benefit each party's successors and personal representatives.
14.11 Governing Law & Jurisdiction
14.11.1 The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of Northern Ireland.
14.11.2 The parties irrevocably agree that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
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