LEGAL THINGS

Terms of Use

Effective date: April 25, 2025

‍This Terms of Use (this “Agreement”) is between you (“You”, “Your” or “User”) and Experiad, LLC dba Motivity (“Motivity”) as of the Effective Date (as defined herein).  Except if there is a Master Services Agreement in place between Motivity and a Customer that governs Your use, this Agreement shall govern Your use of the Motivity Website.

BY ACCESSING THE SERVICES YOU ARE EXPRESSLY ACCEPTING AND AGREEING TO THIS AGREEMENT IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICES EITHER YOURSELF OR ON BEHALF OF THE ENTITY. MOTIVITY MAY MODIFY THESE TERMS FROM TIME TO TIME, IN ITS SOLE DISCRETION. WE WILL NOTIFY OUR USERS OF MATERIAL CHANGES TO THIS AGREEMENT BY POSTING THE MODIFIED TERMS ON THE MOTIVITY WEBSITE. TOGETHER WITH SUCH MODIFIED TERMS, MOTIVITY WILL IDENTIFY THE EFFECTIVE DATE OF THE MODIFICATIONS BY INDICATING WHEN THE AGREEMENT WAS LAST UPDATED. YOUR CONTINUED USE OF THE WEBSITE CONSTITUTES AGREEMENT TO OUR REVISIONS OF THESE TERMS OF USE. YOUR USE OF THE WEBSITE IS ALSO SUBJECT TO THE MOTIVITY PRIVACY POLICY, WHICH ALSO GOVERNS THE WEBSITE AND INFORMS USERS OF OUR DATA COLLECTION PROACTIVES. YOUR AGREEMENT TO THE PRIVACY POLICY IS HEREBY INCORPORATED INTO THESE TERMS OF USE.

  1. DEFINITIONS. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
    1. “Customer” means the legal entity entering into a digital or physical ordering document that identifies the services and products purchased on a subscription basis for a subscription term.
    2. “Documentation” means the Services specifications, user guides, and other related documentation relating to the Services made available to You by Motivity.
    3. “Effective Date” means the date that You accept this Agreement or accesses the Services, whichever is earlier.
    4. “Privacy Policy” means the privacy policy located at motivity.net/privacy and hereby incorporated into this Agreement by reference.
    5. “Services” means the software-as-a-service and support services provided by Motivity to You under this Agreement.  Services excludes any Third-Party Products.
    6. “Third-Party Products” means materials and information, in any form or medium, including any software, open source software, content, products, or components of or relating to the Services that are not proprietary to Motivity.
    7. “User” means an adult individual authorized by a Customer to access or use the Services for Customer’s internal business purposes in accordance with the terms of this Agreement and the applicable Customer order. Users may include but are not limited to employees, consultants, contractors, clinicians, caregivers (who are directly participating in the treatment of Customer’s patients), parents of Customer’s patients, and agents of Customer or its affiliates subject at all times to the restrictions set forth in this Agreement.
    8. “User Data” means all information, data, and other content that is submitted or otherwise transmitted by You to Motivity via the Services. For avoidance of doubt, User Data does not include anonymized data, content or information related to Your use of the Services (“Anonymized Data”).  For the avoidance of doubt, no PHI will be used for generating Anonymized Data unless it is “de-identified” as required under HIPAA.
  1. USE OF SERVICES
    1. License and Access. Subject to the terms and conditions contained herein, Motivity grants You a non-transferable, non-sublicensable, non-exclusive, limited license to access and use the Services, but only in accordance with (a) this Agreement, (b) the Documentation, and (c) the applicable Customer order. 
    2. ‍Support.  During the applicable term, Motivity will provide support services in accordance with the Service Level Agreement located at motivity.net/legal/sla.
  1. GENERAL RESTRICTIONS. 
    1. You agree that (a) You are solely responsible for Your User account, (b) You are solely responsible for maintaining the security of Your account and passwords, and (c) You shall use the Services only for purposes that are legal, proper and in accordance with this Agreement and any applicable laws or regulations. 
    2. You shall not, and shall not encourage or permit any third party to: (a) modify, adapt, alter, translate, or create derivative works of the Services; (b) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Services, or derive or gain improper access to any models, algorithms, or systems of the Services; in whole or in part, except to the extent that such activities are permitted under applicable law; (c) distribute, license, sublicense, lease, rent, loan, or otherwise transfer the Services to any third party; (d) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of Motivity or its licensors or suppliers contained on or within any copies of the Services; (e) use the Services for the purpose of creating a product or service competitive with the Services; (f) remove, minimize, block or modify any notices of Motivity or its licensors or suppliers in the Services; (g) use the Services other than as described in the applicable Documentation or for any unlawful purpose; (h) transfer excessive amounts of data while using the Service; (i) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including “robots,” “spiders,” “crawlers,” “AI agents,” “data mining tools” or other similar tools) other than software provided by Motivity for the use expressly for such purposes; (j) use the Evaluation Products or Documentation in a manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other rights of any person or entity, or that violates any applicable law; (k) upload, post, host, or transmit any User Data  that is or contains sexually obscene content, is libelous, defamatory or fraudulent, or is discriminatory or abusive toward any individual or group, (l) allow children to access or Use the Services; or (m) impersonate any person or entity, including any of our employees or representatives, including through false association with Motivity, or by fraudulently misrepresenting your identity or site’s purpose. Motivity reserves the right to suspend Your access to the Services if Motivity determines You are in violation of these restrictions.
  1. INTELLECTUAL PROPERTY
    1. Ownership of Services. You acknowledge and agree that (a) this Agreement does not transfer to You any Motivity or third-party intellectual property rights; (b) as between Motivity and You, Motivity owns all right, title, and interest in and to the Services and Documentation; (c) Motivity shall, notwithstanding any other term of this Agreement, remain the owner of the Services and Documentation; (d) Motivity owns the Anonymized Data and hereby assigns any and all rights that You may have in such Anonymized Data to Motivity. Nothing herein will be construed as restricting or prohibiting Motivity from utilizing the Anonymized Data in any way, including without limitation to optimize and improve the Services and to train Motivity’s artificial intelligence technologies so long as the Anonymized Data remains de-identified, or to enforce this Agreement.
    2. ‍Third-Party Products With respect to Third-Party Products, the applicable third-party provider owns all right, title, and interest in the Third-Party Products, and any part of the Services that contains or utilizes Third-Party Products is distributed and made available under the terms of their applicable license agreements. Unless otherwise expressly provided in this Agreement, You shall not acquire any proprietary right, title or interest in or to any intellectual property rights in the Services, Documentation, or Third-Party Products. All rights not expressly granted by Motivity are reserved. ‍
    3. ‍Open Source Software. Certain items of software used in the Services are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 2.1 or 2.2. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Your rights under, or grants You rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software; provided, however, that Motivity represents and warrants that no such Open Source Software license terms are: (i) materially inconsistent with terms herein, or (ii) restricts or prevents the intended use of the Services.
    4. ‍Feedback. You may submit to Motivity bug reports, comments, feedback or ideas about the Services, including without limitation about how to improve the Services (“Feedback”). By submitting any such Feedback, You hereby assigns to Motivity all right, title, and interest in and to the Feedback, if any.
    5. ‍User Data. You grant us the right to store, parse, and display User Data, and make incidental copies as necessary to render the Website and provide the Service. This includes the right to do things like copy it to our database and make backups; show it to You and other Users; parse it into a search index or otherwise analyze it on our servers; share it with other users; and perform it, in case User Data is something like music or video.
  1. REPRESENTATIONS AND WARRANTIES
    1. Each party represents and warrants that: (a)  it has the full power and authority necessary to enter into this Agreement and to perform its obligations under this Agreement; (b) this Agreement is a valid and binding obligation; (c)  it will perform its obligations under this Agreement in compliance with all applicable laws, rules and regulations, including but not limited to HIPAA; (d) its performance of its obligations under this Agreement will not violate any provision of any agreement to which it is a party or by which it is bound; (e) it has all rights, licenses and permits necessary to perform its obligations under this Agreement.
    2. You represents and warrants that (a) the User Data shall not (i)  infringe any copyright, trademark, or patent right, (ii) shall not be deceptive, libelous, obscene, pornographic or unlawful, (iii) contain any viruses, worms or other malicious computer programming codes intended to damage Motivity’s system or data; (iv) be untrue,  defamatory, harmful to any person, or violate HIPAA or any state or federal laws regarding protected health information, patient privacy, or other applicable privacy laws or otherwise violate any privacy or other right of any third party; (b) Motivity may use User Data to provide Services to You and such use will not violate any rights of any person; (c) You have obtained all rights necessary for Motivity’s use of such User Data pursuant to this Agreement; (d) in the event that any User Data is inaccurate, Motivity shall not be responsible for such inaccuracy or otherwise in connection with the inaccuracy of the Services due to such inaccurate User Data; and (e) in the event that You use any SMS texting capabilities in connection with its use of the Services, You will do so in compliance with applicable laws and it shall be Your responsibility to obtain any necessary consents to do so.  
  2. DISCLAIMER AND LIMITATION OF LIABILITY.
    1. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS,” AND MOTIVITY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. MOTIVITY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. MOTIVITY DOES NOT WARRANT ANY THIRD-PARTY PRODUCTS OR SERVICES.
    2.  No Medical or Other Advice Provided. YOU EXPRESSLY AGREE THAT THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY SUPPORT, DOES NOT AND SHALL NOT CONSTITUTE PROVIDING BUSINESS ADVICE, BILLING ADVICE, MEDICAL ADVICE, MEDICAL OR DIAGNOSTIC SERVICES, OR PRESCRIBING MEDICATION. USE OF THE SERVICES IS NOT A SUBSTITUTE FOR THE BUSINESS JUDGMENT, AND PROFESSIONAL JUDGMENT OF HEALTH CARE PROVIDERS IN DIAGNOSING AND TREATING PATIENTS AND OPERATING MOTIVITY. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY OF PATIENT INFORMATION (INCLUDING, WITHOUT LIMITATION, OBTAINING EACH PATIENT’S MEDICAL AND MEDICATION HISTORY AND ALLERGIES, AND RETAINING MEDICAL RECORDS), OBTAINING EACH PATIENT’S CONSENT TO USE THE SERVICES WHERE REQUIRED (INCLUDING WITHOUT LIMITATION THE PATIENT PORTAL PORTION OF THE SERVICES), AND FOR ALL YOUR DECISIONS OR ACTIONS WITH RESPECT TO THE MEDICAL BILLING, MEDICAL CARE, TREATMENT, AND WELL-BEING OF  PATIENTS, INCLUDING WITHOUT LIMITATION, ALL OF YOUR ACTS OR OMISSIONS. ANY USE OR RELIANCE BY YOU UPON THE SERVICES WILL NOT DIMINISH THAT RESPONSIBILITY. YOU ASSUMES ALL RISKS ASSOCIATED WITH YOUR USE OF THE SERVICES FOR THE TREATMENT OF PATIENTS AND SUBMISSION OF MEDICAL CLAIMS. NEITHER MOTIVITY NOR ITS LICENSORS ASSUME ANY LIABILITY OR RESPONSIBILITY FOR DAMAGE OR INJURY (INCLUDING DEATH) TO YOU, A PATIENT, OTHER PERSON, OR TANGIBLE PROPERTY ARISING FROM ANY USE OF THE SERVICES.
    3. Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT MOTIVITY, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL, IN NO EVENT, BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, OR INTERRUPTION OF BUSINESS) ARISING FROM THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE TOTAL LIABILITY OF MOTIVITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $100.
  1. PRIVACY; DATA SECURITY
    1. Data Security. Motivity agrees it that shall implement and maintain commercially reasonable administrative, technical and physical security measures designed to protect PHI from unauthorized access, disclosure and use. Motivity will conduct periodic risk assessments and remediate identified material security vulnerabilities in a commercially reasonable manner. Motivity will promptly notify You once it becomes aware of a data breach known to involve Your PHI. 
    2. ‍HIPAA Compliance. Certain Services that Motivity provides to Users involve access to, and the processing of, PHI (defined below) that is provided by You through Your use of the Services in accordance with the Privacy Policy. With respect to its operation of the Services, and to the extent required by (A) the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations (“HIPAA”), (B) the Health Information Technology for Economic and Clinical Health Act (“HITECH”) and any regulations promulgated thereunder, and (C) any applicable laws governing the collection, use, storage, and disclosure of information that can reasonably used to identify an individual (collectively, the “Health Privacy Laws”), Motivity will comply with the Health Privacy Laws applicable to business associates and maintain the confidentiality of any Protected Health Information which is individually identifiable health information that is protected by HIPAA (“PHI”) transmitted or made available through the functionality of the Services or the Affiliated Services in accordance with the Business Associate Agreement located at motivity.net/legal/hipaa, which, to the extent applicable, is hereby incorporate by reference. ‍
    3. Privacy Compliance. Where applicable, the parties agree that Motivity is a “Service Provider” pursuant to the California Privacy Rights Act (the “CPRA”) and a “Processor” pursuant to state consumer privacy laws such as the Virginia Consumer Data Protection Act and the Colorado Privacy Act (collectively and together with the CPRA, “Data Privacy Laws”) to the extent applicable. You warrant that Your use and Motivity’s processing of personally identifiable information in accordance with this Agreement shall comply with the applicable Data Privacy Laws. Motivity will not use any “Personal Information” (as that term is defined by Data Privacy Laws) other than as necessary to provide the Services. Motivity will not sell Personal Information, share Personal Information for “cross-context behavioral advertising” (as defined in the CPRA), or retain, use, or combine Personal Information except as permitted by this Section.
    4. ‍Subcontractors. Motivity may utilize third parties, including but not limited to its Affiliates (“Subcontractors”) in the performance of its obligations and Services and will be responsible for such performance pursuant to this Agreement.
  1. INDEMNIFICATION
    1. You shall indemnify defend and hold harmless Motivity against any claims arising out of (a) any failure by You to comply with applicable laws, rules and regulations in connection with its provision and Motivity’s authorized use or display of User Data (including patient information) hereunder solely (in each case) to provide Services to You, (b) Your unauthorized access or use of Services hereunder; and/or (c) any breach or alleged breach of any provision of this Agreement and You shall pay any of Motivity’s losses, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees).
    2. Procedure. Motivity shall promptly notify the You in writing of any threatened or actual claim or suit, provided, however, that failure to give prompt notice will not relieve You of any liability hereunder (except to the extent the You have suffered actual material prejudice by such failure); (b) You shall have sole control of the defense or settlement of any claim or suit; and (c) Motivity shall (at Your expense) reasonably cooperate with You to facilitate the settlement or defense of any claim or suit. You will not settle or compromise any claim or suit involving Motivity without Motivity’s written consent. Motivity may, at Your expense, participate in the defense of any claim.
  1. TERM AND TERMINATION‍
    1. ‍Term. This Motivity Subscription Services Agreement commences on the Effective Date and shall continue until terminated in accordance with Section 10.2.
    2. ‍Termination. Either party may terminate this Agreement immediately upon written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within (30) days after its receipt of written notice of such breach.
    3. ‍Effect of Termination. Immediately upon termination of this Agreement, (a) the licenses granted to either party shall immediately terminate; (b) Motivity shall cease to make available and You shall cease to access and use the Services. Sections 3, 4, 5, 6, 8, 9, 10, and 11 will survive the expiration or termination of this Agreement. 
  1. GOVERNING LAW AND VENUE

This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without reference to conflicts of laws principles. Both parties expressly agree that any action relating to this Agreement shall exclusively be brought in the State of Delaware, and both parties irrevocably consent to the jurisdiction of the state courts located in the State of Delaware. Each party expressly waives any objection that it may have based on improper venue or forum non-conveniens to the conduct of any such suit or action in any such court. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its use of the Services hereunder.

  1. MISCELLANEOUS.

The parties are independent contractors and nothing in this Agreement shall be deemed to create the relationship of partners, joint venturers, employer-employee or franchisor-franchisee between the parties. Neither party is, or will hold itself out to be, an agent of the other party. Neither party is authorized to enter into any contractual commitment on behalf of the other party. This Motivity Subscription Services Agreement, together the applicable Order(s), contains the entire agreement of the parties and supersedes any prior or present understanding or communications regarding its subject matter, and may only be amended in a writing signed by both parties. In the event of a conflict between the terms in the Order and this Motivity Subscription Services Agreement, the terms contained in the Order shall control to the extent that they expressly amend this Motivity Subscription Services Agreement. In the event any provision of this Agreement is held by a court of law or other governmental agency to be void or unenforceable, the remaining provisions shall remain in full force and effect. Neither party shall assign this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, Motivity may assign this Agreement to its successor pursuant to a corporate reorganization, merger, consolidation, acquisition or the sale of all or substantially all of its assets. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance (other than payment of Fees due hereunder) caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strikes, failure of suppliers, fires, floods or earthquakes. The use of the Services is subject to U.S. export control laws and may be subject to similar regulations in other countries. You agree to comply with all such laws. Any notice to You will be deemed given upon the first business day after Motivity sends it or posts it on the Website. You will provide notice to Motivity by mail to: accounts@motivity.net with a copy emailed to security@motivity.net. There are no third-party beneficiaries to this Agreement. This Agreement benefits solely You and Motivity, and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person or party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.