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Looking for Fuel Card Services or Cubo? You're in the right place! We've updated our name and got a brand new look.
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:
2.1 In these Main Terms and Conditions the following words, terms or expressions will have the following meanings:
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"Additional Services" |
means those services set out in the Addendums (as amended from time to time); |
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"Agent Agreement" |
means an agreement between Motia and its Suppliers which sets out the terms on which Motia is authorised to issue Cards to Customers or otherwise resell Goods and / or Services to Customers. Motia is only entitled to provide such Cards, Goods and / or Services subject to these Terms and Conditions and the Agent Agreement; |
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"Ancillary Charges" |
means any administration fees, charges or other similar fees charged by Motia in relation to the Customer's account which from time to time shall be indicated on www.motia.com/tariffs; |
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"Bunker Network" |
means a network of fuel retail sites operated by a third party service provider and into which Motia may deposit fuels on behalf of the Customer. |
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"Bunker or Core Sites" |
means a defined list of sites at which certain price conditions may apply – see online www.motia.com/fuel/pump-locator the software used by Motia to locate fuel sites. |
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"Business Day" |
means any day other than a Saturday, Sunday, or bank or other public holiday in England; |
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"Card Company" |
means the relevant fuel card supplier which has authorised Motia to issue Cards to Customers on its behalf; |
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"Card Type" |
means the basis upon which the Fuel Price is determined; |
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"Card(s)" |
means any and all Company Cards or other means of payment for example but not limited to Apple Pay, BPme and other electronic payment apps issued to the Customer by Motia for the purpose of purchasing Goods and / or Services from a Site; |
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"Confidential Information" |
means information of commercial, proprietary, or other value disclosed by one party to the other party which is identified as confidential or might reasonably be considered to be confidential and that has not come into the public domain or been independently developed; |
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"Contract" |
means a contract created between Motia and a Customer which incorporates these Terms and Conditions and, where applicable, any relevant Special Terms and Conditions. |
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"Customer" |
means a corporate body, 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; When the Customer consists of two or more persons, the expression "Customer" throughout shall mean and include such two (or more) persons and each or any of them. All obligations on the part of such Customer shall be joint and several obligations. |
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"E-Bill" |
means an electronic invoice or notification of online availability of invoice sent by Motia (in substitution of a paper invoice). E-Bills can be requested by the Customer but are sent solely at the discretion of Motia. References in these Terms and Conditions to invoices include E-Bills where appropriate; |
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"Fuel Price" |
means the price charged per litre of fuel exclusive of VAT; |
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"Goods and / or Services" |
means fuels, lubricants and all other goods and / or services offered by Motia purchased on the cards; |
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"Inclusive Services" |
means those services set out in Addendum 1 (as amended from time to time); |
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"Intellectual Property" |
means any patent, registered or unregistered design right, trade mark or other proprietary rights inherent in the Products any copyrights (including copyright in software) and database rights, all other similar or equivalent intellectual or commercial rights or property subsisting under the laws of each and every jurisdiction throughout the world whether registered or not, and whether vested, contingent or future and all reversions, renewals, revivals and extensions of any of the foregoing, and all rights under licences, consents, orders, statutes or otherwise in relation to any of the foregoing; |
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"Lost Card" |
means any Card that is lost, stolen, mislaid, wilfully damaged, reproduced in an unauthorised manner or subject to any similar circumstances (as appropriate); |
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"Main Terms and Conditions" |
means these terms and conditions, as amended by Motia from time to time; |
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"Motia Standard Fee and Tariff webpage" |
means www.motia.com/tariffs |
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"Motia" |
means Fuel Card Services Limited trading as “Motia” (CRN: 2107821) whose registered office is Alexandra House, Lawnswood Business Park, Redvers Close, Leeds, LS16 6QY; |
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"MyMotia" |
means the online portal used by Motia to provide the Customer with access to their account data and additional Goods and / or Services that Motia provide. |
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"Order” |
means the Customer’s order for the supply of Goods and / or Services as set out in the Customer’s written acceptance of Motia’s quotation or overleaf, as the case may be. |
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"PIN" |
means a personal identification number which may be issued by the Card Company for use with a Card; |
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"Pump Price Card(s)" |
means a Card whose charges relate to the price of Goods at a pump at the time of the transaction; |
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"Site Locator" |
means online webpage where the Customer or Motia can find suitable sites where drivers can fuel up. The Site Locator can be accessed at www.motia.com/fuel/pump-locato |
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"Site" |
means an authorised site for the sale of Goods and / or Services; |
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"Special Terms and Conditions" |
means the service descriptions and/or terms and conditions governing the Additional Services and the Inclusive Services (as amended by Motia from time to time) as set out in the Addendums to these 1 and Addendum 2; |
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"Supplier(s)" |
means the authorised person, company or partnership which supplies Goods and / or Services to Motia and which Motia resells to the Customer; |
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"Wild Cards" |
means Cards which are not embossed with either the registration number of any vehicle or a specific name or the same PIN is used for more than one Card. |
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:
6.2 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.
7.1 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.
8.1 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.
9.1 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.
10.1 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.
11.1 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.
12.1 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 e.
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.
13.1 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:
13.3 The Customer shall at all times:
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.
14.1 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.
15.1 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:
15.3 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.
Immediately upon termination of the Contract:
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.
17.1 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.
18.1 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:
18.2 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:
18.5 Clause 17 is subject to the provisions of Clause 18.
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:
19.3 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:
19.6 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.
20.1 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:
20.5 Motia shall:
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:
(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;
20.8 The Customer hereby provides its prior, general authorisation for Motia to:
(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.
20.9 The Customer
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.
21.1 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:
21.7 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.
22.1 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.
23.1 A Contract may not be varied except by a written document signed by or on behalf of the Customer and Motia.
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:
24.3 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.
25.1 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.
26.1 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.
27.1 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.
28.1 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.
29.1 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).
30.1 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.
31.1 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.
The following Terms and Conditions govern the use of the Software (as defined below) and related Services (as defined below) provided by Motia.
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.
2.1 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:
2.3 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
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.
4.1 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.
5.1 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:
5.4 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.
6.1 The Customer shall:
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:
7.4 All amounts and fees stated or referred to in this Agreement:
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:
9.1 Except as expressly and specifically provided in this Agreement:
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).
10.1 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:
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.
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.
2.1. 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.
3.1. 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.
4.1. 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.
5.1. 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).
6.1. 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.
7.1. 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.
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
1.1. 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;
2.1. 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.
3.1. 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.
4.1. 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.
5.1. 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.
6.1. 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).
7.1. 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.
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
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;
2.1. 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.
3.1. 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.
4.1. 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.
5.1. 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.
6.1. 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.
7.1. 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.
8.1. 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
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.
2.1. 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. ).
3.1. 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.
4.1. 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.
5.1. 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.
6.1. 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.
7.1. 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.
8.1. The Liability provisions of the Motia Main Terms and Conditions shall apply to the use of Tele-Gence.
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.
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; |
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“Client” |
Means the person(s) or firm whose details are set out in the Contract Agreement; |
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“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; |
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“Hardware” |
means all physical items required to ensure the minimum necessary requirement for the Contract Agreement to be fulfilled; |
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“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. |
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“Motia Software” |
Web based vehicle monitoring platform; |
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“Order” |
means the Client's order for the Equipment and Services from Motia as set out in the Contract Agreement; |
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“Service Providers” |
means any third party service providers associated with the fulfilment of the Contract Agreement; |
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“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. |
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“SIM-cards” |
means the SIM-cards provided by Motia to the Client pursuant to the Contract Agreement; |
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“Solution Packages” |
Means means the various Hardware and Motia Software bundles specified in the Contract Agreement; |
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“Term” |
as defined in clause 13.1; |
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“Territory” |
means the territory specified in the Contract Agreement; |
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“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; |
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“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.
2.1 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.
3.1 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.
4.1 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.
5.1 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.
6.1 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.
7.1 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.
8.1 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.
9.1 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. 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.
11.1 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.
12.1 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.
13.1 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).
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