Last Updated: 28 March 2023
The following Motion terms of service (“Terms of Service”) govern Customer’s access to and use of the Services. These Terms of Service, together with any Order Forms referencing these Terms of Service (together, the “Agreement”), form a binding legal agreement between Motion Creative Cloud Inc. (“Motion”, “we”, “our” or “us”) and the customer accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Services (such customer, the “Customer”, “you” or “your”). This Agreement is entered into effective on the earlier of: (i) the date Customer first uses any part of the Services; and (ii) the date Customer agrees to be bound by this Agreement (the “Effective Date”).
BY USING THE MOTION SOLUTION IN ANY WAY OR BY CLICKING TO ACCEPT THESE TERMS OF SERVICE, YOU: (1) REPRESENT AND WARRANT THAT (I) YOU HAVE REACHED THE LEGAL AGE OF MAJORITY IN YOUR JURISDICTION, (II) YOU HAVE THE CAPACITY TO ENTER INTO BINDING OBLIGATIONS, AND (III) ALL INFORMATION PROVIDED BY YOU TO US THROUGH THE MOTION SOLUTION IS TRUE, ACCURATE, CURRENT, AND COMPLETE; AND (2) AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS OF SERVICE, AS UPDATED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 14.12. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MUST NOT ACCESS OR USE THE MOTION SOLUTION. IF CUSTOMER IS USING THE SERVICES ON BEHALF OF ANOTHER PERSON OR ENTITY, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO MOTION THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON OR SUCH ENTITY TO THIS AGREEMENT.
THE SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
MOTION’S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE SERVICES, EXCEPT WITH MOTION’S PRIOR WRITTEN CONSENT.
Capitalized terms used in this Agreement have the meaning ascribed to them in the preamble or in this Section 1 as follows:
1.1. “Action” means any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise.
1.2. “Administrator User Account” has the meaning set out in Section 5.1.
1.3. “Administrator Users” has the meaning set out in Section 5.1.
1.4. “Affiliate” means, with respect to a party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.
1.5. “Aggregated Data” has the meaning set out in Section 3.1.
1.6. “Agreement” has the meaning set out in the preamble.
1.7. “Annual Plan” has the meaning in Section 13.1.2(i).
1.8. “Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances, guidelines or judgments, in each case of any Governmental or Regulatory Authority.
1.9. “Confidential Information” has the meaning set out in Section 9.1.
1.10. “Custom Plan” has the meaning in Section 13.1.2(i).
1.11. “Customer”, “you” or “your” has the meaning set out in the preamble.
1.12. “Customer Content” means any data, information, content, records, and files, including Personal Information, supplied by Customer directly to Motion either directly through the Services or indirectly through a Third-Party Products.
1.13. “Customer Data” means other than Aggregated Data, any data, information, content, records, and files, including Personal Information, that Customer (or any of its Permitted Users) loads, makes available to and is accessed by, transmits to or enters into the Services, including the Customer Content.
1.14. “Customer User Accounts” has the meaning set out in Section 5.1.
1.15. “Deliverable” means a deliverable provided to Customer as a result of Professional Services.
1.16. “Dependencies” has the meaning set out in Section 2.5.
1.17. “Discloser” has the meaning set out in Section 9.1.
1.18. “Documentation” means Motion’s manuals, instructions or other documents or materials that Motion makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Motion Solution.
1.19. “Effective Date” has the meaning set out in the preamble.
1.20. “Employee Users” has the meaning set out in Section 5.1.
1.21. “Employee User Account” has the meaning set out in Section 5.1.
1.22. “Feedback” has the meaning set out in Section 3.4.
1.23. “Free Services” means Services that Motion makes available to Customer free of charge. The term “Free Services” excludes Services offered as a free trial and paid Subscription.
1.24. “Fees” has the meaning in Section 8.1.
1.25. “Force Majeure” has the meaning set out in Section 14.6.
1.26. “Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, or other law, rule or regulation-making entity having jurisdiction over Motion, Customer, the Services, the Customer Data or any other person, property, transaction, activity, event or other matter related to this Agreement, including subdivisions of, political subdivisions of and other entities created by, such entities.
1.27. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.28. “Initial Service Term” means the initial service term as set out in: (i) the applicable Order Form executed by the parties; or (ii) the online purchasing portal as selected by Customer, as further detailed in Section 13.2.1 of these Terms of Service.
1.29. “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
1.30. “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
1.31. “Monthly Plan” has the meaning in Section 13.1.2(i).
1.32. “Motion”, “we”, “our” or “us” has the meaning set out in the preamble.
1.33. “Motion Indemnitee” has the meaning set out in Section 11.
1.34. “Motion Solution” means Motion’s proprietary software-as-a-service solution, including any dashboard, interfaces, applications and other functionalities, as may be more particularly described in an applicable Order Form or online purchasing portal. The term “Motion Solution” excludes any Third-Party Products, Professional Services, support services, free trials or training services.
1.35. “Motion Metadata” means the metadata that is generated by the Motion Solution resulting from the processing of the Customer Data and that results from the ordinary course of the operation of the Motion Solution.
1.36. “Motion Property” has the meaning set out in Section 3.2.
1.37. “Order Form” means any order form that references this Agreement and that is agreed to by the parties.
1.38. “Output” means the output generated and returned by the Motion Solution based on the inputs to the Motion Solution by Customer and its Permitted Users.
1.39. “Personal Information” means information of an identifiable individual transferred by Customer or its Permitted Users to Motion hereunder.
1.40. “Permitted Purpose” means internal use or such other additional permitted purpose as may be set out in an applicable Order Form.
1.41. “Permitted User(s)” means Persons who are authorized by Customer to use the Motion Solution, for whom a Subscription to the Motion Solution has been procured. Permitted Users may include customers with which Customer does business, Administrator Users and Employee Users.
1.42. “Person” means any individual, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate or Governmental or Regulatory Authority, and where the context requires, any of the foregoing when they are acting as trustee, executor, administrator or other legal representative.
1.43. “Plan” means the applicable plan selected by the Customer for an applicable Subscription. The term “Plan” includes the Monthly Plan, Annual Plan or Custom Plan as applicable.
1.44. “Privacy Policy” has the meaning set out in Section 4.
1.45. “Professional Services” means the consulting, training and other professional services described in a statement of work. The term “Professional Services” does not include Motion Solution.
1.46. “Purchased Services” means Services that Customer purchases under an Order Form or online purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial.
1.47. “Recipient” has the meaning set out in Section 9.1.
1.48. “Renewal Service Term” means the applicable renewal term of a Subscription.
1.49. “Report” means any report created by Customer using the Motion Solution or by Motion pursuant to its performance of Professional Services under an applicable Order Form.
1.50. “Services” means the Professional Services and Motion Solution collectively, and any part thereof. The term “Services” includes any services provided to Customer as Free Services or under a free trial, and made available online by Motion, including associated Motion’s offline components, as described in the Documentation. For avoidance of doubt, the term “Services” does not include Third-Party Products and Output.
1.51. “Service Commencement Date” means the date for commencement of the Subscription to the applicable Purchased Services as set out in the applicable Order Form or online purchasing portal agreed to by the Customer.
1.52. “Service Term” means in respect of any Subscription for Purchased Services, the Initial Service Term and all applicable Renewal Services Terms.
1.53. “Subscription” means subscription to Purchased Services with a limited right to access and use Motion Solution outlined in the applicable Order Form or the applicable online purchasing portal.
1.54. “Term” has the meaning set out in Section 13.1.1.
1.55. “Terms of Service” has the meaning set out in the preamble.
1.56. “Third-Party Products” has the meaning set out in Section 7.1.
1.57. “Use” or “using” has the meaning set out in the preamble.
2.1. Provision of Access.
2.1.1. Purchased Services. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of the Agreement, Motion hereby grants Customer a revocable, limited, non-exclusive, non-transferable, non-sublicensable (except as permitted herein to Permitted Users) right to access and use the Motion Solution during the applicable Service Term, solely for use by Permitted Users in accordance with the terms and conditions herein. Such use is limited to the Permitted Purpose. The total number of Permitted Users will not exceed the number for the applicable Plan, as may be further set out in the Order Form or applicable online purchasing portal, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder.
2.1.2. Free Trial. Upon Customer’s request, Motion may provide Customer with a free trial of the Motion Solution for the period set by Motion in writing. If Customer does not agree to continue use of the Motion Solution through a paid Subscription as described herein, Motion will terminate Customer’s right to access the Motion Solution immediately upon the end of the free trial period. Customer agrees that Motion, in its sole discretion and for any or no reason, may terminate Customer’s access to the Motion Solution during any free trial or any part thereof. Customer agrees that any termination of Customer’s access to the free trial may be without prior notice, and Customer agrees that Motion will not be liable to Customer or any third party for such termination. ANY CUSTOMER DATA THAT CUSTOMER ENTERS INTO THE SERVICES (INCLUDING MOTION SOLUTION) DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, BEFORE THE END OF THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER CUSTOMER DATA ENTERED DURING THE FREE TRIAL TO SERVICES THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF CUSTOMER PURCHASES A SUBSCRIPTION THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING THE “WARRANTY; DISCLAIMER” SECTION AND “MOTION INDEMNITIES” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND MOTION SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE MOTION’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED USD$100.00. WITHOUT LIMITING THE FOREGOING, MOTION AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (I) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS; (II) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; AND (III) DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO MOTION AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
2.1.3. Free Services. Motion may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that Motion, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Motion will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason. NOTWITHSTANDING THE “WARRANTY; DISCLAIMER” SECTION AND “MOTION INDEMNITIES” SECTION BELOW, THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND MOTION SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE MOTION’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED USD$100.00. WITHOUT LIMITING THE FOREGOING, MOTION AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (I) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (II) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; AND (III) DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO MOTION AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
2.2. Restrictions on Use. Customer will not itself, and will not permit others (including but not limited to any Permitted Users) to: (i) sub-license, sell, rent, lend, lease or distribute the Motion Solution or any Intellectual Property Rights therein or otherwise make the Motion Solution available to the third parties other than Permitted Users; (ii) use the Motion Solution to permit timesharing, service bureau use or commercially exploit the Motion Solution; (iii) use or access the Services: (A) in violation of any Applicable Law or Intellectual Property Right; (B) in a manner that threatens the security or functionality of the Motion Solution, including by taking any action that imposes, or that may impose, in Motion’s discretion, an unreasonable or disproportionately large load on Motion’s systems or infrastructure; or (C) for any purpose or in any manner not expressly permitted in this Agreement or otherwise pursuant to Motion’s express written instruction or consent; (iv) use the Services to create, collect, transmit, store, use or process any Customer Data: (A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (B) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or (C) that violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); (v) Modify the Motion Solution; (vi) reverse engineer, de-compile or disassemble the Motion Solution; (vii) remove or obscure any proprietary notices or labels on the Motion Solution, including brand, copyright, trademark and patent or patent pending notices; (viii) access or use the Services for the purpose of building a similar or competitive product or service; (ix) perform any vulnerability, penetration or similar testing of the Motion Solution; or (x) use or access the Services in any manner that is contrary to any additional restrictions set out in the Order Form or for any purpose or in any manner not expressly permitted in this Agreement or otherwise pursuant to Motion’s express written instruction or consent.
2.3. Suspension; Modifications. Motion may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity under this Agreement: (i) suspend Customer’s access to or use of the Services, Third-Party Products or any component thereof: (A) for scheduled maintenance; (B) if there is a Force Majeure event; (C) if Customer or any Permitted User violates any provision of this Agreement, including without limitation any of the restrictions set out in Section 2.2 above; (D) to address any emergency security concerns; (E) if required to do so by a Governmental or Regulatory Authority or as a result of a change in Applicable Law; or (F) for non payment of undisputed Fees when due; and (ii) Modify the Motion Solution.
2.4. Subcontracting. Motion may engage third parties to assist it in providing the Services or any part thereof. The delegating or subcontracting of all or any part of Motion’s obligations under this Agreement to any subcontractor will not relieve Motion from any obligation or liability under this Agreement.
2.5. Professional Services. Motion will use commercial reasonable efforts to perform Professional Services set out in an applicable Order Form. The parties may also set out Deliverables to be delivered by Motion in an applicable Order Form. Customer acknowledges and agrees that Motion’s performance of the Professional Services is dependent on Customer’s performance of certain activities and tasks as may be reasonably requested by Motion to facilitate Motion’s timely performance of the Professional Services, including, without limitation, providing Motion with access to sufficiently qualified employees of Customer, Customer facilities, or working space or office support at such Customer facilities (“Dependencies”). Motion will not be liable for any delay or non-performance of any Professional Services caused by Customer’s non-performance or inadequate performance of any Dependencies. All Professional Services will be performed remotely unless otherwise indicated in the Order Form as being an on-site provided service. Within 5 business days of Motion’s delivery of a Deliverable, Customer will provide Motion with written notice of its acceptance or rejection of such Deliverable. If Customer rejects any such Deliverable, Motion will correct the deficiencies set out in Customer’s notice of rejection for such Deliverable. Once Motion has notified Customer that it has completed such corrections, Customer will have 5 business days from the date of such notice to re-test the Deliverable. If Customer uses any Deliverable delivered by Motion or fails to give notice of acceptance or rejection within the time period set out herein, such use of any Deliverable or failure to give notice of acceptance or rejection will constitute Customer’s deemed acceptance of such Deliverable (provided such acceptance shall not be deemed to be waiver of any otherwise breach or liability under this Terms of Service).
3.1. Customer Data. Customer retains all right, title and interest including all Intellectual Property Rights in or to the Customer Data. Customer grants to Motion: (i) a nonexclusive, worldwide, royalty-free, transferable, sublicensable, and fully paid-up licence during the Term to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display Customer Data solely to provide the Services; and (ii) a nonexclusive, perpetual, worldwide, royalty-free, irrevocable, transferable, sublicensable, and fully paid-up licence to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display Customer Data to: (A) improve and enhance the Services and its other offerings; (B) generate Motion Metadata; and (C) generate aggregated statistical data that: (1) is anonymized; (2) cannot be re-identified by Motion; and (C) does not contain any Customer’s Confidential Information or identify any Permitted Users or Customer (such data, information and materials, the “Aggregated Data”). Customer agrees that Motion may: (i) make Aggregated Data publicly available in compliance with Applicable Law and (ii) use Aggregated Data to the extent and in the manner permitted under Applicable Law.
3.2. Motion Property. Motion or its licensors retain all rights, title and interest including all Intellectual Property Rights in and to: (i) the Services; (ii) Motion Solution; (iii) Documentation; (iv) Motion Metadata; (v) other than Customer Data, anything used, developed or delivered by or on behalf of Motion under this Agreement including without limitation any Aggregated Data, Deliverables and Reports; and (vi) any Modifications to the foregoing (collectively “Motion Property”).
3.3. Deliverables, Documentation, Output and Reports License. Subject to the terms and conditions contained in this Agreement, Motion hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable (except to permit use by Permitted Users), license to access and use: (i) Documentation during the Term; and (ii) Output, Deliverables or Reports made available to Customer or any Permitted Users during the applicable Service Term, solely for the Permitted Purpose. Customer may download copies of the Reports for Permitted Purpose via such format as provided by Motion from time to time.
3.4. Customer grants to Motion and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of Motion’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Motion is not obligated to use any Feedback.
3.5. All rights not expressly granted by Motion to Customer under this Agreement are reserved.
Customer understands that Personal Information will be treated in accordance with Motion’s privacy policy located at https://motionapp.com/privacy or such other place as may be updated by Motion’s from time to time (the “Privacy Policy”). Motion may, without Customer consent, revise its Privacy Policy from time to time, as is customary business practice in its field (e.g., to incorporate improvements in its solutions offerings or align its practices with changing regulatory requirements).
5.1. In order for Customer to access and use the Motion Solution, Motion will issue one or more administrator accounts (“Administrator User Account”) to Customer for use by Administrator User (as defined below), that provides Customer with the capability to create user accounts for Employee Users (each a “Employee User Account”), other Permitted Users and together with the Administrator User Accounts the (“Customer User Accounts”). Customer will ensure that each Permitted User only uses the Motion Solution through its assigned Customer User Account. Customer will not allow any Permitted User to share its Customer User Account with any other person. “Employee Users” means those active employees of Customer that are permitted by Customer to access and use the Motion Solution through an Employee User Account. “Administrator Users” means those employees of Customer that are authorized by Customer to access and use the Motion Solution on Customer’s behalf through an Administrator User Account. Customer will promptly notify Motion of any actual or suspected unauthorized use of the Motion Solution. Motion reserves the right to suspend, deactivate, or replace a Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose.
5.2. Customer will solely be responsible for: (i) the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any third party products or systems with which Customer uses Services; (ii) providing, at its own expense, all network access to the Services, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Services; (iii) properly configuring and using the Services and taking its own steps to maintain appropriate security, protection and backup of its infrastructure (including without limitation any databases, servers, and any other protocol) which may include the use of encryption technology to protect such infrastructure from unauthorized access and routine archiving of such infrastructure; and (iv) use the Services in accordance with this Agreement and Applicable Laws. For clarity and avoidance of all doubt, Motion is not responsible for any security of Customer Data.
5.3. Customer is responsible for identifying and authenticating all Permitted Users and for ensuring only Permitted Users access and use Motion Solution. Customer shall ensure that all Permitted Users comply with this Agreement and that none of the Permitted Users bring or maintain any Action (defined below) against Motion, its shareholders, employees, officers, directors, Affiliates, agents, contractors, successors, and assigns and those of its Affiliates in respect of any matter related to or in connection with the subject matter of this Agreement. Customer shall be liable for any breach by a Permitted User of this Agreement.
Unless otherwise specified in the Order Form, Motion will provide Customer with reasonable technical support services in accordance with Motion’s then-current support policy.
7.1. Third-Party Products. The Motion Solution may contain or require the use of third party technology that is licensed under separate license terms, and not under this Agreement or other third party products that are owned by third parties (collectively “Third-Party Products”). Customer is responsible for separately obtaining or licensing such technology. Customer will accept and comply with the license terms applicable to Third-Party Products. If Customer does not agree to abide by the applicable license terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products. Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third-Party Products provider. Motion does not warrant or support Third-Party Products or other third party products, offerings or services, whether or not they are designated by Motion as “certified” or otherwise. Motion cannot guarantee the continued availability of such Third-Party Products features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Motion. Motion is not responsible for any disclosure, Modification or deletion of Customer Data resulting from access by such Third-Party Products or its provider.
8.1. Fees. Customer will pay Motion the then applicable fees for Purchased Services and Plan as described in the Order Form or in the pricing page on Motion’s online purchasing portal (the “Fees”). Unless otherwise set out in an Order Form, all Fees are identified in United States dollars and are payable in advance: (i) within thirty (30) days of receipt of an invoice from Motion for a Custom Plan; or (ii) immediately for any other Plan. If Customer’s use of the Services exceeds the service limits or usage capacity for an applicable Plan, Customer shall be required to upgrade to the applicable Plan and will be billed for such excess usage as set out in the Order Form. Customer agrees to pay the additional Fees in the manner provided herein. If Customer requests that Motion provide it with services in addition to the Services, Customer will be billed for such additional services based on Motion’s standard rates.
8.2. Changes to the Fees. Motion reserves the right to change the Fees or applicable charges and to institute new charges and Fees before a then current Renewal Service Term, provided that Motion gives the Customer prior written notice to Customer (which may be sent by email).
8.3. Disputed Invoices or Charges. If Customer believes that Motion has billed Customer incorrectly, Customer must contact Motion no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Motion’s customer support department. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the parties will discuss the disputed amounts in good faith in order to resolve the dispute.
8.4. Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. If Customer fails to make any payment when due, without limiting Motion’s other rights and remedies, Motion may: (i) charge interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid; and (ii) If such failure continues for five (5) days following written notice thereof, Motion may: (A) suspend, in accordance with Section 2.3, Customer’s and all other Permitted Users’ access to any portion or all of the Services until such amounts are paid in full; or (B) terminate the Agreement immediately on notice (which may be sent by electronic means to the account administrator), without incurring any obligation or liability to Customer or any other Person by reason of such suspension or termination.
8.5. Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Motion.
8.6. Suspension. Any permitted suspension of the Services by Motion pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments of Fees, unless such Fees are subject to a dispute per Section 8.3 under this Agreement.
8.7. Credit Card. Unless otherwise agreed to in an Order Form, a valid payment method, including credit card, is required to process the payment of Fees. Customer shall provide Motion with accurate and complete billing information including full name, address, state, zip code, telephone number, and a valid payment method information. By submitting such payment information, Customer automatically authorizes Motion to charge all Fees incurred through Customer’s account to any such payment instruments. Should automatic billing fail to occur for any reason, Motion will issue an electronic invoice indicating that Customer must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.
8.8. Payment Processor. Payment and collection of Fees is enabled through and executed by third party payment processors. Customer may be required to agree to terms and conditions as required by such third-party payment processor from time to time. Prior to using the Services and any components thereof, Customer must have all applicable such third-party payment processor’s terms and conditions in effect. By using the Services or any component thereof, Customer acknowledges it must be in full compliance with the terms and conditions of such third-party payment processor and be in good standing with such third party payment processor.
9.1. Definitions. For the purposes of this Agreement, a party receiving Confidential Information (as defined below) will be the “Recipient”, the party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, including, where the Discloser is Customer, Customer’s Confidential Information includes the Customer Data, and, where the Discloser is Motion, Motion’s Confidential Information includes the Motion Property; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to 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.
9.2. Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its rights or perform its obligations under this Agreement:
9.2.1. disclose Confidential Information of the Discloser:
i. in the case the Customer to any Person, except to its Permitted Users that have a “need to know” for the purposes of receiving or providing the Services and that have entered into written agreements no less protective of such Confidential Information than this Agreement; or
ii. in the case of Motion to Motion’s employees, independent contractors, advisors, consultants, agents and its Affiliates, that have a “need to know” for the purposes of receiving or providing the Services and that have entered into written agreements no less protective of such Confidential Information than this Agreement and to its subcontractors and contractors for the purpose of providing the Services;
9.2.2. use Confidential Information of the Discloser other than to exercise its rights or perform its obligations under this Agreement; or
9.2.3. alter or remove from any Confidential Information of the Discloser any proprietary legend. Each party will take industry standard precautions to safeguard the other party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
9.3. Exceptions to Confidentiality. Notwithstanding Section 9.2, 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, except to the extent prohibited by law, the Recipient promptly notifies (unless prohibited by Applicable Law) the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its 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 in connection with the party’s business; or (iii) in the case of Motion, to potential assignees, acquirers or successors of Motion 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 Motion.
9.4. Injunction and other equitable relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 8 or, in the case of Customer, Section 2.2 or Section 3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
9.5. Return of Confidential Information. Upon the termination or expiration of this Agreement and all Order Forms under this Agreement, each party will promptly return to the other party or destroy all Confidential Information of the other party in its possession or control within a reasonable amount of time in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, the Recipient may retain copies of the Confidential Information of the Discloser as required by applicable law, or to the extent such copies are electronically stored in accordance with the Recipient’s standard backup procedures or record retention policies, so long as such Confidential Information remains subject to the confidentiality provisions set out in this Agreement. Each party will protect any Confidential Information of the other party in accordance with this Agreement so long as it retains such Confidential Information.
10.1. Mutual Representations and Warranties. Each party represents, warrants, and covenants that:
10.1.1. it has full power and all necessary rights and authority to enter into this Agreement and to perform its obligations hereunder; and
10.1.2. it will carry out its obligations under this Agreement in compliance with Applicable Laws, rules and regulations, applicable to it and the Services.
10.2. Customer Representations and Warranties. Customer represents and warrants to, and covenants with, Motion that: (i) the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case, as required by Applicable Laws including applicable privacy laws, to enable Motion to provide the Motion Solution, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Motion and to or from all applicable third parties; (ii) Customer and its Permitted Users will comply with all Applicable Laws; and (iii) it is not named on any Canadian, U.S., or other list of persons or entities prohibited from receiving Canadian or U.S. exports, or from transacting with any Canadian; or U.S. entity and it is not a national of, or a company registered in, any jurisdiction in which the provision of the provision of the other party’s goods or services is prohibited under Canadian, U.S., or other Applicable Laws.
10.3. Motion Warranties. Motion warrants that: (i) the overall functionality of the Motion Solution will not be materially decreased as described in the applicable Documentation; (ii) it will perform the Professional Services in a professional and workmanlike manner; and (iii) the media on which any part of the applicable Motion Solution will be delivered by Motion free from all viruses and malicious code (provided that this warranty does not extend to any malicious code or virus introduced into the Motion Solution by the Customer). Customer shall report to Motion, pursuant to the notice provision of this Agreement, any breach of the warranty set forth in this Section 10.3. In the event of a breach of warranty by Motion under this Agreement, Customer’s sole and exclusive remedy, and Motion’s entire liability, shall be prompt correction of any material non-conformance in order to minimize any material adverse effect on Customer. THE FOREGOING WARRANTY DOES NOT APPLY, AND MOTION STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
10.4. GENERAL DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTIONS 10.1 AND 10.3 OF THIS AGREEMENT, MOTION DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT AND SUBJECT TO THE SERVICE LEVELS AGREED TO IN THE AGREEMENT, THE SERVICES (AND ANY PART THEREOF) ARE PROVIDED “AS IS”. OTHER THAN AS EXPRESSLY PROVIDED FOR HEREIN, MOTION MAKES NO WARRANTIES UNDER THIS AGREEMENT WITH RESPECT TO ANY THIRD PARTY SOFTWARE, HARDWARE OR OTHER PRODUCTS EMBEDDED IN OR INCLUDED WITH THE SERVICES OR FURNISHED TO CUSTOMER BY MOTION. TO THE EXTENT PERMITTED BY APPLICABLE LAW, MOTION HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL, OR STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, AND OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT, MOTION EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION, OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
Customer will defend, indemnify and hold harmless Motion, and its officers, directors, employees and agents (each, a “Motion Indemnitee”) from and against any and all Losses incurred by Motion Indemnitees arising out of or relating to any Action by a third party (other than an Affiliate of an Motion Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of Sections 2.2, 10.1, 10.2, or 14.4; or (iii) unauthorized use of the Motion Solution (or any part thereof) by Customer or any Permitted User. Customer will fully cooperate with Motion in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Motion.
13. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MOTION IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE PURCHASED SERVICES IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL MOTION’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL MOTION BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES. Term and Termination
13.1. Term.
13.1.1. Term of Agreement. The term of this Agreement commences on the Effective Date and continues until the stated term in all Order Forms or Service Terms for all Subscriptions have expired or have otherwise been terminated (collectively, the “Term”).
13.1.2. Term of Subscriptions.
i. Customer may select to subscribe for Purchased Services for an Initial Service Term of: (i) one (1) month from the Service Commencement Date (“Monthly Plan”); (ii) one (1) year from the Service Commencement Date (“Annual Plan”); or (iii) custom time period from the Service Commencement Date (“Custom Plan”), as agreed to by the parties and set out in the applicable Order Form or online purchasing portal. For clarity an avoidance of all doubt, Customer shall not cancel or change any aspect of the applicable Plan or downgrade its Plan, until such anniversary date.
ii. If Customer selects a Monthly Plan, in the online purchasing portal Customer can upgrade to an Annual Plan or Custom Plan at any time subject to payment of the applicable Fees for such upgrade. If Customer selects the Annual Plan for a Subscription, Customer may not change to a Monthly Plan until the end of the one (1) year term of Customer’s Annual Plan. Customer may not downgrade from a Custom Plan without Motion’s prior written consent.
iii. If the Customer selects a Custom Plan in the online purchasing portal and unless otherwise set out in the Order Form executed by the parties, Subscriptions for Custom Plan commences on the Service Commencement Date set out in the Order Form and will continue for the Initial Service Term as set out in the applicable Order Form. Except as otherwise specified in an Order Form, Subscriptions to the Motion Solution with a Custom Plan will automatically renew, after the Initial Service Term for additional periods equal to the expiring Service Term, unless and until either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the then-current Service Term. Customer is not entitled to refund of prepaid Fees upon such cancellation.
iv. Customer may cancel the Subscription with a Custom Plan at any time after the expiry of the Initial Service Term stated in such Order Form. If the Customer chooses to cancel any of the Purchased Services during the Initial Service Term, the Customer shall pay the remaining balance of Fees for the remainder of the Initial Service Term stated in this Order Form. Customer is not entitled to refund of prepaid Fees upon such cancellation.
v. Where Customer purchases Purchased Services via the online purchasing portal and Customer does not execute an Order Form for a Custom Plan, the Customer acknowledges and agrees that:
a. Subscription to the Motion Solution for Monthly Plan commences on the Service Commencement Date and are for the Initial Service Term of one (1) month as provided in Section 13.1.2(i) Subscriptions with a Monthly Plan will automatically renew for successive Renewal Service Terms of one (1) month periods on the anniversary of Customer’s Initial Service Term, unless and until either party gives the other notice of non-renewal prior to the end of the then-current Service Term provided that. Customer shall provide notice to cancel such Subscription at least thirty (30) days prior to the next billing date. If the Customer wishes to cancel such Subscription less than thirty (30) days in advance of the next billing date then the Customer will be responsible for Customer’s upcoming balance of Fees and Customer will not be entitled to any refund for any cancellation.
b. Subscription to the Motion Solution for Annual Plan commences on the Service Commencement Date and are for the Initial Service Term of one (1) year as provided in Section 13.1.2(i) Subscriptions with an Annual Plan will automatically renew for successive Renewal Service Terms of one (1) year on the anniversary of Customer’s Initial Service Term unless and until either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the then-current Service Term. If the Customer chooses to cancel any of the Subscription with an Annual Plan during the Initial Service Term, then the Customer shall provide written notice and pay the remaining balance of Fees for the remainder of the Initial Service Term. Customer is not entitled to refund of prepaid Fees for any cancellation.
13.2. Termination by Motion. Motion may terminate this Agreement, any Order Form or Subscription at any time and for any reason without liability or penalty by providing at least 30 days advance written notice to Customer. Upon Motion’s termination of this Agreement pursuant to this Section 13.2, Motion will refund to Customer, on a pro-rata basis, any unused Fees prepaid under this Agreement for any period following the effective date of termination.
13.3. Termination for Cause.
13.3.1. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, Motion may terminate this Agreement immediately: (i) if Customer breaches any restrictions on use in Section 2.2; (ii) as provided in Section 8.4; or (iii) if required by Applicable Law.
13.3.2. If this Agreement is terminated by Customer due to Motion’s material breach pursuant to Section 13.3.1, Motion will provide Customer with a pro rata refund of any unused Fees prepaid by Customer applicable to the period following the effective date of termination of the Agreement.
13.3.3. If this Agreement is terminated by Motion due to Customer’s material breach pursuant to Section 13.3.1, Customer will remain liable to pay the full Fees outstanding on the effective date of termination of the Agreement. Motion will invoice, and Customer will pay, any accrued but unbilled Fees and any unpaid Fees covering the remainder of the term of the Agreement had it not been terminated.
13.4. Effect of Termination. Upon expiration or termination of this Agreement:
13.4.1. Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using the Services and unless prohibited by Applicable Law applicable to Motion, Motion will delete all Customer Data;
13.4.2. Customer will, as instructed by Motion, return, delete or destroy Motion Property in its possession, and certify in writing to the Motion that the Motion Property has been returned or deleted or destroyed;
13.4.3. All Order Forms and Subscriptions will also terminate;
13.4.4. All Fees due and payable and subject to Section 8.3, any amounts due to Motion are immediately due and are to be immediately paid by Customer to Motion; and
13.4.5. Other than as otherwise provided for in this Agreement, no expiration or termination will affect or relieve Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle the Customer to any refund.
13.5. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 8 (Fees and Payment), Section 9 (Confidential Information), Section 10 (Warranty; Disclaimer), Section 12 (Limitation of Liabilities), Section 13.5 (Survival), and Section 14 (General Provisions).
14.1. Notices. All notices shall be in writing by email and will be effective upon the day of sending by email. Notices will be sent: (i) if to Motion, to the following email address:
Email: privacy@motionapp.com
and (ii) if to Customer, to the current postal or email address that Motion has on file with respect to Customer. Motion may change its contact information by posting the new contact information on its website, through the Motion Solution or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Motion current at all times during the Term.
14.2. Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Motion’s prior written consent. Motion may transfer and assign any of its rights and obligations under this Agreement without consent. Any purported assignment or delegation by a party in violation of this Section will be null and void. Subject to the foregoing, this Agreement enures to the benefit of and is binding upon the parties and their respective successors and permitted assigns.
14.3. Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, a party may commence lawsuits to seek injunctive relief with respect to a violation of its Intellectual Property Rights or breach of confidentiality obligations; in each case, in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
14.4. Export Restrictions. Customer shall not to directly or indirectly export, re-export or import all or any portion of the Motion Solution without first obtaining all required licenses, permits and permissions. Motion makes no representation or warranty that the Motion Solution may be exported without Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
14.5. Construction. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.Construction. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.Construction. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
14.6. Force Majeure. Neither party will be liable for delays caused by any event or circumstances beyond that party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”). This Section does not apply to any of Customer’s obligations under Sections 8 (Fees and Payment), 9 (Confidentiality) or 11 (Indemnity).
14.7. Customer Lists. Motion may identify the Customer by name and logo as a Motion customer on Motion’s website and on other promotional materials. Any goodwill arising from the use of the Customer’s name and logo will inure to the benefit of the Customer.
14.8. Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
14.9. Waiver. A waiver of any provision of this Agreement will be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
14.10. Independent Contractors. Motion’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and neither party will represent to any third party that it has, any authority to act on behalf of the other party.
14.11. Entire Agreement. This Agreement, together with the Order Forms between Motion and Customer, constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the parties, whether written or oral. This Agreement replaces and terminates any prior agreed agreement, terms of service or other terms and conditions agreed between the parties related to the Motion Solution. Any terms and conditions appearing on a purchase order or similar document issued by Customer, or in Customer’s procurement, invoicing, or vendor onboarding portal: (i) do not apply to the Services; (ii) do not override or form a part of this Agreement (including without limitation any Order Form); and (iii) are void.
14.12. AMENDMENTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT MOTION HAS THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY THIS AGREEMENT FROM TIME TO TIME, AND THAT MODIFIED TERMS BECOME EFFECTIVE ON POSTING. CUSTOMER WILL BE NOTIFIED OF MODIFICATIONS THROUGH NOTIFICATIONS OR POSTS ON THE MOTION SOLUTION OR MOTION’S WEBSITE. CUSTOMER IS RESPONSIBLE FOR REVIEWING AND BECOMING FAMILIAR WITH ANY SUCH MODIFICATIONS. CUSTOMER’S CONTINUED USE OF THE SERVICES AFTER THE EFFECTIVE DATE OF THE MODIFICATIONS WILL BE DEEMED ACCEPTANCE OF THE MODIFIED TERMS.
14.13. Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (i) these Terms of Service; (ii) the applicable Order Form; and (iii) the Documentation.
14.14. English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
