These Terms will govern your access to and use of: (a) the Motion Platform, including our website located at https://motionapp.com/ and all associated subdomains (collectively, the “Website”); (b) any other services provided by Motion in connection to the provisioning of the Motion Platform; and (c) the Agents made available by us on our own behalf (collectively, the “Motion Solution”). Subject to your compliance with these Terms, you may use the Motion Solution in accordance with any documentation or guidelines we make available to you.

You may use the Motion Solution in the capacity of any of the following categories of User, including a combination of any of these categories:

(a) to access, use and subscribe to Agents on the Motion Solution as a customer, including: (i) an individual customer User accessing or using the Agents on their own behalf; (ii) a brand accessing or using the Agents on its own behalf (“Brand”); or (iii) an agency accessing or using the Agents on behalf of a Brand or multiple Brands (an “Agency”, and collectively with individual customer Users and Brands, “Customers”). If you are a Customer, Appendix I (Terms Applicable to Customers) will apply specifically to you; or

(b) to make available Agents on the Motion Solution (each such User, a “Creator”), in which case Appendix II (Terms Applicable to Creators) will apply specifically to you, and if you are a Creator who will also be building Agents on the Motion Solution, Appendix III (Terms Applicable to Agent Building) will apply to you in addition to Appendix II.

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(a) Except where prohibited by applicable law, we reserve the right to change these Terms at any time by posting a new version to the Website. We may also update the “Last Updated” date at the top of these Terms. When we change these Terms, we will post a new version to the Website and update the “Last Updated” date at the top of these Terms. If required by applicable law, we will also provide you with prior notice of the change by sending you an email or notifying you by some other means. We may require you to provide consent to the updated Terms in a specified manner before further use of the Motion Solution is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you will stop using the Motion Solution. Otherwise, your continued access to or use of the Motion Solution after any changes to these Terms indicates your acceptance of such changes.

(b) We reserve the right to change the Motion Solution at any time, without notice. We may, at our discretion, suspend your access to or use of the Motion Solution at any time, without notice, including: (i) for scheduled maintenance; (ii) if you violate any provision of these Terms; or (iii) to address any emergency security concerns.

(a) To access certain features of the Motion Solution, you may be required to successfully sign up for a user account (an “Account”), as set out in Motion’s general terms and conditions at the following URL: https://motionapp.com/terms.

You acknowledge, understand and agree that certain applications and features comprising the Motion Solution may still be under development by Motion. Such “Beta” components are not fully tested, may contain bugs or errors, and may have limited functionality. Motion may make an update to, fix, or patch the Motion Solution at any time without notice. Motion makes no warranty or representation with respect to maintenance, correction, or other support of such Beta components. If you are accessing a Beta version of the Motion Solution, the payment terms set out herein may not apply to you until Motion indicates that the Beta period is over.

(a) Service Availability. Motion does not guarantee that the Motion Solution or that any services will be available at all times or free from errors or interruptions, or that the Motion Solution or any services will be available in any jurisdiction. Motion reserves the right to modify, suspend, or discontinue the Motion Solution at any time without notice and without liability.

(b) Competitor Access. We reserve the right to provide access to Agents to your competitors and make no promise of exclusivity. Motion, as well as any of its employees or contractors, may also be Creators that may compete with you, although they may not use your Creator Data or Customer Data in doing so.

(c) Account Disputes. In the event of a dispute regarding Account ownership, we reserve the right to request documentation and information from you to determine or confirm Account ownership. We also reserve the right to determine the rightful owner of an Account, and to transfer a disputed Account to the rightful Account owner.

(a) Breaches of These Terms. You will be responsible for use of the Motion Solution and compliance with these Terms by you or any other third party who is accessing or interacting with the Motion Solution on your behalf and will be liable for any breach by such third party as if it were your own breach.

(b) Feedback. You may provide Motion with feedback related to the use of the Motion Solution, including reporting to us any actual or suspected errors, problems, bugs or difficulties with the Motion Solution, along with any other information reasonably requested by us to aid in resolving such errors, problems, bugs or difficulties with the Motion Solution (such information, “Feedback”). You agree that we may use such Feedback, at our discretion, for purposes related to improving the Motion Solution.

(c) Additional Responsibilities. Additional responsibilities for Customers are set out in Appendix I, and additional responsibilities for Creators are set out in Appendix II.

All right, title and interest, including intellectual property rights, in the Motion Solution, the source code in the software we use to provide the Motion Solution, and all other materials provided by us hereunder, and any updates, adaptation, translation, customization or derivative works thereof, will remain the sole property of Motion or our third-party suppliers, if applicable. Any rights not expressly granted under these Terms are reserved by Motion. The Motion Solution and all materials provided by us hereunder are made available or licensed and not “sold” to you.

(a) You will not use the Motion Solution in violation of these Terms or any applicable law. Unless otherwise permitted by these Terms and without limiting the generality of the foregoing, you will not (and will not attempt to) directly or indirectly:

(i) sub-license, sell, rent, lend, lease or distribute any part of the Motion Solution or any intellectual property rights therein or otherwise make the Motion Solution available to others;

(ii) disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Motion Solution (e.g., a denial of service attack), including by accessing or using the Motion Solution to permit timesharing, service bureau use or commercially exploit the Motion Solution;

(iii) attempt to gain unauthorized access to the Motion Solution, or bypass any measures we may use to prevent or restrict access to the Motion Solution;

(iv) send, upload, collect, transmit, store, use, post, publish, or otherwise communicate on the Motion Solution any data, information, pictures, videos, audio or other materials or content that: (A) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (B) you do not have the lawful right to send, upload, collect, transmit, store, use, post, publish, or otherwise communicate; (C) is false, inaccurate, or intentionally misleading; (D) gives the impression that it originates from or is endorsed by us or any other person or entity, if that is not the case; (E) is defamatory, bullying, harassing, abusive, threatening, vulgar, exploitative, obscene, harmful, sexually explicit, inflammatory, offensive or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age or other such legally prohibited ground, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual, or is otherwise objectionable, such determination to be made in Motion’s sole discretion; (F) is harmful to minors in any way or targeted at minors; (G) infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral rights, intellectual property rights or rights of personality, image, publicity or privacy); or (H) violates, or encourages any conduct that may violate, any applicable laws or would give rise to civil or criminal liability;

(v) modify, reverse engineer, reverse assemble, disassemble, or decompile the Motion Solution (any part thereof) or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Motion Solution;

(vi) violate the terms of use of any third party website that is linked to the Motion Solution;

(vii) promote any illegal activity or advocate, promote, or assist any unlawful act;

(viii) access or use the Motion Solution for the purpose of building a similar or competitive product or service; or

(ix) authorize, permit, enable, induce or encourage any third party to do any of the above.

(b) Privacy. You will comply with all applicable laws, rules and regulations concerning the privacy and security of personally identifiable information (“Personal Information”), including, without limitation, the requirements of the Personal Information Protection and Electronic Documents Act. The Motion Solution does not generally require Personal Information other than to setup and administer your Account and our interactions with you. You will not provide any other Personal Information to the Motion Solution, but if you do disclose any additional Personal Information either intentionally or unintentionally, you are solely liable and responsible for any such Personal Information you provide.

The Motion Solution may provide links or access to third party content, websites, or services. We do not endorse any third party content, websites, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third party content, websites, services, or systems are not under our control, and if you choose to access any such content, websites, services or to access the Motion Solution from such systems, you do so entirely at your own risk.

(a) For purposes of these Terms, a party receiving Confidential Information (as defined below) will be the “Recipient” and the party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser disclosed by Discloser to Recipient or otherwise coming into the possession of Recipient during the Term that is marked as “confidential” or “proprietary” or that a reasonable person would understand to be confidential or proprietary; provided that Discloser’s Confidential Information does not include: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any of Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.

(b) Confidentiality Covenant. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential Information of Discloser to any person, except to its own personnel, affiliates or contractors having a “need to know” and that have entered into a written agreement no less protective than these Terms, and to such other Recipients as Discloser may approve in writing; (ii) use Confidential Information of Discloser except to exercise its license rights or perform its obligations under these Terms; or (iii) alter or remove from any Confidential Information of Discloser any proprietary legend. Recipient will be deemed to have discharged its confidentiality obligations under this Section (Confidential Information) if Recipient uses the same degree of care in safeguarding the Confidential Information of Discloser as it uses in protecting its own confidential information of a similar nature from unauthorized disclosure. Upon the earlier of: (A) Discloser’s written request; and (B) the termination or expiration of these Terms, and regardless of whether a dispute may exist, Recipient will return or destroy (as instructed by Discloser) all Confidential Information of Discloser in its possession or control and cease all further use thereof. Notwithstanding the foregoing, Recipient may retain a copy of any Confidential Information of Discloser for the sole purpose of and to the extent necessary for it to comply with applicable legal or regulatory requirements. The parties acknowledge that disclosure of Discloser’s Confidential Information or any other breach of this Section 11 may cause serious and irreparable damage and harm to Discloser and that remedies at law may be inadequate to protect against breach of these Terms, and each party agrees that Discloser may seek injunctive relief for any breach of the provisions of this Section 11 and to the specific enforcement of the terms of this Section 11, in addition to any other remedy to which Discloser would be entitled.

(c) Exceptions to Confidentiality. Notwithstanding Section 11(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that Recipient promptly notifies Discloser in writing of such required disclosure and cooperates with Discloser to seek an appropriate protective order; (ii) to its accountants, auditors, legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services; or (iii) to its potential assignees, acquirers or successors if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of the Recipient.

(a) No Liability for Agent Output. Motion is not responsible for the output or the performance of any Agent you access on the Motion Solution. It is up to you how you use an Agent, and it is your responsibility to verify any information outputted by an Agent.

(b) No Liability for Your Conduct. Motion is not responsible for your conduct on the Motion Solution. All interactions, communications, and transactions between Users are solely between such Users. You acknowledge that Motion does not control or supervise the interactions or communications between you and other Users.

(c) No Involvement in Disputes. Motion is not responsible for, and will not be involved in, any disputes arising between Creators and Customers within the Motion Solution, nor does Motion assume any responsibility for the conduct or actions of either party during or after their interactions, except for scenarios where Motion is identified as the sole Creator of an Agent.

(d) No Endorsement. Motion does not endorse or guarantee the quality, accuracy, or legality of any Agents, or services, content, or interactions provided by any User through the Motion Solution. The inclusion of any Agent on the Motion Solution does not constitute an endorsement or recommendation of such Agent by Motion. All interactions with other Users are conducted at the Users' own risk.

(e) THE MOTION SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL REPRESENTATIONS, CONDITIONS, WARRANTIES AND GUARANTEES, EXPRESS, LEGAL, IMPLIED, OR STATUTORY, INCLUDING REPRESENTATIONS, CONDITIONS, WARRANTIES AND GUARANTEES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, COMPATIBILITY, RELIABILITY, SECURITY, TIMELINESS, SUITABILITY, TITLE, NON-INFRINGEMENT AND AVAILABILITY OF THE MOTION SOLUTION, ANY OUTPUT GENERATED BY MOTION’S AGENTS, AND ANY SERVICES PROVIDED BY THIRD PARTIES AND THAT THE MOTION SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE MOTION SOLUTION, ANY AGENT AND ANY SERVICES PROVIDED BY THIRD PARTY PROVIDERS REMAINS SOLELY WITH YOU. MOTION UNDERTAKES NO RESPONSIBILITY WHATSOEVER AND WILL IN NO CIRCUMSTANCES BE LIABLE TO YOU IN CONNECTION WITH YOUR USE OF THE MOTION SOLUTION AND ANY SERVICES PROVIDED BY THIRD PARTY PROVIDERS.

You will defend, indemnify and hold harmless Motion and our officers, directors, employees, agents, shareholders, affiliates, and partners (each, an “Indemnified Party”) from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including legal and expert fees and expenses (“Losses”) , that may be incurred by an Indemnified Party arising out of, relating to or resulting from: (a) your use (or the use by any third party using the Motion Solution on your behalf) of the Motion Solution; (b) your breach of these Terms; (c) any communications, interactions, disputes, or transactions between you and any other User, including but not limited to claims or allegations arising from such interactions; (d) any actual or alleged violation of any applicable law or the rights of any third party (including intellectual property rights) by you; (e) your gross negligence, wilful misconduct or fraud; and (f) any data or materials that you make available to us, including as a result of your failure to obtain all necessary consents or permissions (including in respect of Personal Information) necessary to provide such data or other materials to us in accordance with these Terms.

IN NO EVENT WILL WE OR OUR OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS OR LICENSORS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SHAREHOLDERS BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES; OR LOST PROFITS, LOSS OF USE, LOSS OF DATA, DATA DELETION, DATA CORRUPTION, FAILURE TO STORE ANY DATA, PERSONAL INJURY, DEATH, EMOTIONAL DISTRESS OR DISCOMFORT, FINES, FEES, PENALTIES OR OTHER LIABILITIES, IN EACH CASE, WHETHER OR NOT WE OR THEY WERE ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE MOTION SOLUTION OR THE INABILITY TO MAKE USE OF THE MOTION SOLUTION, OR THESE TERMS. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE MOTION SOLUTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE MOTION SOLUTION. MOTION WILL HAVE NO LIABILITY IN CONNECTION WITH ANY AGENT PROVIDED BY A THIRD PARTY CREATOR.

IN NO EVENT WILL OUR TOTAL AGGREGATE LIABILITY, OR THE TOTAL AGGREGATE LIABILITY OF OUR AFFILIATES, LICENSORS AND SUPPLIERS, OR ANY OF OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SHAREHOLDERS, IN CONNECTION WITH OR UNDER THESE TERMS, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE MOTION SOLUTION EXCEED $100 USD. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS WILL NOT INCREASE THIS AMOUNT.THE FOLLOWING APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

These Terms will commence on the day you first use any portion of the Motion Solution and will remain in effect until terminated by either party in accordance with the termination provisions set out herein (the “Term”).

This termination provision applies to all Users of the Motion Solution except for Creators, if you are a Creator please review Section 6 of Appendix II for your termination rights. We may terminate these Terms at any time and with immediate effect by giving notice to you, at our discretion, by email (at your current email address on file with us) or through the Motion Solution. You may terminate these Terms at any time and with immediate effect by requesting by email that your Account be deleted, or deleting your Account and ceasing use of the Motion Solution. For clarity, if you terminate these Terms and delete your Account, or your Account is deleted by us, you will no longer have access to any functionality of the Motion Solution, including any Agents made available on the Motion Solution. For greater certainty, if you continue to use any portion of the Motion Solution that is publicly available after these Terms have been terminated, these Terms will continue to apply to the extent of such use.

The following Sections, together with any other provision of these Terms which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of these Terms, will survive expiration or termination of these Terms for any reason: Sections 8, 11-25, and Appendices I, II, and III.

Except as restricted by applicable law, these Terms will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein without giving effect to any principles of conflicts of law and such laws apply to your access to or use of the Motion Solution, notwithstanding your domicile, residency or physical location. You will only use the Motion Solution in jurisdictions where the Motion Solution may lawfully be used. Except as restricted by applicable law, you hereby consent to the exclusive jurisdiction and venue of courts in Toronto, Ontario in all disputes arising out of or relating to the use of the Motion Solution. The U.N. Convention on Contracts for the International Sale of Goods will not apply to these Terms. This choice of jurisdiction does not prevent us from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.

Notwithstanding anything to the contrary contained herein, Motion shall not be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, terrorist acts, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war, or civil unrest.

Creators are, and will at all times remain, independent contractors of the Motion Solution and will not make any representations or take any acts which could establish any apparent or actual fiduciary relationship or any relationship of mandate, agency, trust, joint venture, co-employer, franchise, partnership, dependent reseller or employment.

You will comply with all export laws and regulations under applicable law that may apply to your access to or use of the Motion Solution. Motion makes no representation or warranty that the Motion Solution may be exported without you first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.

In the event of any conflict or inconsistency in relation to access or use of the Motion Solution between these Terms and any other terms made available by Motion, these Terms will take priority.

These Terms, subject to any amendments, addenda, modifications, or additional agreements you enter into with us, shall constitute the entire agreement between you and us with respect to the Motion Solution. If any provision of these Terms is found to be invalid by a court competent jurisdiction, that provision only will be limited to the minimum extent necessary and the remaining provisions will remain in full force and effect.

Our failure to monitor or enforce a provision of these Terms does not constitute a waiver of our right to do so in the future with respect to that provision, any other provision, or these Terms as a whole.

You may not assign any of your rights, licenses, or obligations under these Terms. Any such attempt at assignment by you shall be void. We may assign our rights, licenses, and obligations under these Terms without your consent. Any attempted assignment, subcontract, delegation, or transfer in violation of this Section 24 will be null and void. These Terms will inure to the benefit of and be binding upon the parties, their permitted successors and permitted assignees.

If you have any questions or comments about these Terms, please contact us at: [email protected]