MASTER SERVICES AGREEMENT

THIS MASTER SERVICES AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF MOTION SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. IF CUSTOMER REGISTERS FOR A FREE TRIAL OF MOTION SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES. BY ACCEPTING THIS AGREEMENT – BY – (1) REGISTERING FOR A FREE TRIAL OR RECEIVING FREE SERVICES – OR – (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT – OR – (3) CLICKING A BOX INDICATING ACCEPTANCE – CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT.

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. 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.

This Agreement was last updated on March 1, 2024. It is effective between Customer and MOTION as of the date of Customer’s accepting this Agreement (the “Effective Date”).

DEFINITIONS

SERVICES

1. Use License. Except as otherwise expressly agreed upon in writing by MOTION and subject to the terms and conditions of this Agreement and your payment of all relevant fees, we grant you and your Users (i) a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable, non-assignable, non-transferable license and right to access and use our Services, content, and other materials provided by MOTION or its third-party vendors for your internal use in strict accordance with this Agreement. All rights not expressly granted under this Agreement are retained by MOTION.
2. Accuracy of Service Materials. 2.2 With respect to its advertising, offering, description, or sale of the Services, MOTION attempts to describe its products as accurately as possible at all times. Nevertheless, MOTION does not warrant that any descriptions, pricing, availability, or other information relating to the Services from its Website, marketing materials, promotional flyers, advertisements, or other printed or electronic materials (collectively, “Service Materials”) are always accurate, complete, reliable, current, or error-free. Despite our efforts, it is possible that information provided in Service Materials may be mispriced, described inaccurately, or that the Service may be unavailable. In the event MOTION determines that a Service is mispriced, described inaccurately, or unavailable, MOTION reserves the right to take any action it deems reasonable and necessary to rectify the error, including without limitation, canceling your account or subscription to the Services. You agree to notify MOTION immediately if you become aware of any pricing or descriptive errors or inconsistencies with any Services you order through the Service Materials and comply with any corrective action taken by MOTION. MOTION’s sole and exclusive liability will be to use its reasonable commercial efforts to correct any non-conformity. In the event MOTION is unable through reasonable efforts to correct a defective Service or non-conformity, you may elect to terminate this Agreement and receive a prorated refund of any pre-paid, unused recurring fees. This refund is your sole and exclusive remedy for any non-conformity in the Services.
3. Service Updates. MOTION reserves the right to add, remove, or modify features or functions, or to provide fixes, updates, and upgrades, to the Services in its sole discretion without prior notice to you. In the event that a change to the Services would, in MOTION’s reasonable discretion and judgment, permanently materially diminish or impair the functionality of the Services (“Material Change”), MOTION shall provide you with written notice of such Material Change at least sixty (60) days prior to the date the Material Change will take effect. If the Material Change is unacceptable to you, you may terminate the Services without penalty. Any use of the Services after the effective date of Material Change will be deemed your acceptance of the Material Change. You acknowledge and agree that MOTION has no obligation to make available to you any subsequent versions or upgrades made to the Services. You also agree that you may be required to pay additional fees or enter into a renewed version of this Agreement if you desire to download, install, or use a new version of the Services.
4. Acceptable Use Policy. Customer’s and Users’ use of the Services is subject to MOTION’s Acceptable Use Policy (AUP) at all times. Customer shall indemnify and hold MOTIOJN harmless from and against all claims, expenses, liabilities, losses or other damages (including attorneys’ fees and expenses) arising in favor of any person, firm or corporation relating to violation of the AUP. MOTION reserves the right, at its sole discretion, to monitor Customer’s and Users’ usage patterns to determine if a Service is being used in violation of the AUP. Violation of the AUP may result in civil or criminal liability, and MOTION in its sole discretion, in addition to any remedy that it may have at law or in equity, may immediately terminate permission for Customer to use the Services, or any portion of the Services, and may charge Customer any applicable rates and cancellation or termination fees. In addition, MOTION may investigate incidents that are contrary to the AUP and provide requested information to third parties who have provided notice to MOTION stating that they have been harmed by Customer’s or Users’ failure to abide by the AUP or the rest of the Agreement. MOTION may bring legal action to enjoin violations and/or collect damages caused by any violation of any part of the AUP. Any violations or attempted violations of the AUP by Customer or Users will constitute a violation of the AUP by Customer and a material breach of the Agreement. MOTION’s failure to enforce this policy in every instance in which it might have application does not amount to a waiver of MOTION’s rights.Prohibited uses include, but are not limited to:
   • Behavior that is illegal, obscene, threatening, harassing, defamatory, libelous, deceptive, fraudulent, abusive, improper, malicious, infringing, tortious, or invasive of another’s privacy.
   • Negligently, recklessly, knowingly, or intentionally transmitting or uploading any material that contains viruses, time bombs, trojan horses, worms, malware, spyware, or any other programs that may be harmful or dangerous.
   • Transmitting or uploading any material that infringes, misappropriates, or otherwise violates the foreign or domestic intellectual property rights or other rights of third parties.
   • Sending unsolicited messages or advertisements through comment functions available on the Services.
   • Violating any Canadian, U.S. or foreign law through use of the Services, including, but not limited to: Automatic Dialing – Announcing Device (“ADAD”) standards in Canada; and the Telephone Consumer Protection Act (“TCPA”) and Secure Telephone Identity Revisited / Signature-based Handling of Asserted Information Using TokENs (“STIR/SHAKEN”) standards in the United States.
   • Using the Services in any way that interferes with other customers and third parties’ use and enjoyment of the Services.
   • Using the Services in any manner which disrupts, prevents, or restricts another customer from using the Services or damaging MOTION’s or another customer’s property.
   • Using or employing methods and/or devices that are designed or likely to take advantage of, bypass, exploit, or otherwise avoid this AUP.
   You further understand and agree that:
   • You may not use the Services in environments requiring fail-safe performance or in which the failure of the Services could lead directly to death, personal injury, or severe physical, business, personal, environmental, or other damage.
   • You shall not attempt to gain unauthorized access to the Services, other accounts, computer systems, or networks connected to the Services, through password mining or any other means.
   • You shall be solely liable for any transmissions sent or material uploaded through the Services under your account.
   • You shall abide by all applicable MOTION policies, procedures, and agreements related to the Services.
   • Your use of the Services is subject to all applicable local, state, provincial, national, and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination, securities laws, and false advertising).
   • Unusually high usage of the Services may impair MOTION’s ability to provide high-quality services to others and/or indicate unauthorized use of the Services, in which case MOTION may suspend or terminate your account or, upon prior written notice, convert your account to a pay-per-use plan.

MOTION RESPONSIBILITIES

1. Provision of Purchased Services. MOTION will (a) make the Services and Content available to Customer pursuant to this Agreement and the applicable Order Forms, (b) provide applicable MOTION standard support (including customer and technical support provided via support portal and e-mail) for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which MOTION shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond MOTION’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving MOTION employees), Internet service provider failure or delay, Non-MOTION Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to MOTION’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s and Users’ use of the Services in accordance with this Agreement and the applicable Order Form.
2. Protection of Customer Data. MOTION will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). The terms of the data processing addendum at https://motionmeetings.co/data-and-privacy-policy/ (“DPA”) posted as of the Effective Date are hereby incorporated by reference. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, MOTION will make Customer Data available to Customer for export or download. After such 30-day period, MOTION will have no obligation to maintain or provide any Customer Data and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
3. MOTION Personnel. MOTION will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with MOTION’s obligations under this Agreement, except as otherwise specified in this Agreement.
4. Beta Services. From time to time, MOTION may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or not in its sole discretion.
5. Free Trial. If Customer registers on MOTION’s or an Affiliate’s website for a free trial, MOTION will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by MOTION in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
   
   ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION); THEREFORE, IF CUSTOMER PURCHASES A SERVICE 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 “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY MOTION” 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 $1,000.00. WITHOUT LIMITING THE FOREGOING, MOTION AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE 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.
6. 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. 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, provided that if MOTION terminates Customer’s account, except as required by law MOTION will provide Customer a reasonable opportunity to retrieve its Customer Data.
   
   NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY MOTION” 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 $1,000.00. WITHOUT LIMITING THE FOREGOING, MOTION AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE 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.

USE OF SERVICES AND CONTENT

1. Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by MOTION regarding future functionality or features.
2. Access and Use of Services. Customer must have an Internet connection to access and use the Services. Customer will be solely responsible for the connection of your systems to a telecommunications service that provides Internet access to access and use of the Services and any associated fees. MOTION shall not be held responsible for any inability to use the Services due to faulty or no Internet connection. Customer is solely responsible for ensuring that Customer possesses appropriate software and hardware and other technology to benefit from any portion of the purchased Services. MOTION shall be reasonably responsive in answering questions pertaining to what may constitute such appropriate software, hardware and/or other technology. To access and use the Services, you will also be required to provide certain personal account registration information including without limitation, your name, billing address, contact phone number, email address, and other information (“Personal Information”). You represent and warrant that the Personal Information that you provide is accurate, current, and complete, and agree to promptly update any of the information if it changes.
3. Account Security. You are solely responsible for maintaining the confidentiality of all passwords and API keys associated with your account, and you are solely responsible and liable for all transactions and activities that occur on your account. You shall immediately notify MOTION of any unauthorized use of your account or if any other breach of security has occurred. Upon Customer’s breach of the obligations set forth herein or MOTION’s reasonable belief of such breach, MOTION may immediately suspend the provision of the Services, in whole or in part, in its sole discretion. Customer shall indemnify and hold harmless MOTION against any and all claims, expenses, liabilities, losses or other damages (including attorneys’ fees and expenses) resulting from the failure of Customer to comply with this paragraph. In no event shall MOTION be liable for any unauthorized use of your account.
4. Usage Limits. Services and Content are subject to usage limits specified in Order Forms. Usage limits are predetermined thresholds established by MOTION to manage resource allocation and prevent excessive usage. These limits ensure fair usage among all MOTION Customers and help MOTION to maintain network stability and performance. Usage limits may include limits on User access or participation (i.e., attendee), meeting or call duration, or file storage. If Customer exceeds a contractual usage limit, MOTION may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding MOTION’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon MOTION’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below. If Customer exceeds usage limits specified in Order Forms, they may be charged additional fees (“Overage Fees”) as specified in Order Forms.
5. Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for 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 Non-MOTION Applications with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify MOTION promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement and the Acceptable Use Policy, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-MOTION Applications with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in MOTION’s judgment threatens the security, integrity or availability of MOTION’s services, may result in MOTION’s immediate suspension of the Services, however MOTION will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
6. Usage Restrictions. Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form and in accordance with our Acceptable Use Policy (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-MOTION Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-MOTION Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access, copy or use any of MOTION intellectual property except as permitted under this Agreement, an Order Form, (h) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form, (j) frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (l) build a competitive product or service, (m) build a product or service using similar ideas, features, functions or graphics of the Service, (n) copy any ideas, features, functions or graphics of the Service, or (o) determine whether the Services are within the scope of any patent. Any breach of this Agreement by you, your employees, agents, independent contractors, customers, or contracting parties, will constitute a breach by you. Under no circumstances, will we be liable or responsible for any use or any results obtained by the use of the Services in conjunction with any other software or third-party products. All such use will be at your sole and exclusive risk.
7. Removal of Third-Party Content and Non-MOTION Applications. If Customer receives notice, including from MOTION, that Content or a Non-MOTION Application may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use and External Facing Services Policy, Customer will promptly do so. If Customer does not take required action, including deleting any Content Customer may have downloaded from the Services, in accordance with the above, or if in MOTION’s judgment continued violation is likely to reoccur, MOTION may disable the applicable Content, Service and/or Non-MOTION Application. If requested by MOTION, Customer shall confirm deletion and discontinuance of use of such Content and/or Non-MOTION Application in writing and MOTION shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if MOTION is required by any third-party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, MOTION may discontinue Customer’s access to Content through the Services.
8. Suspension or Termination of Services and Removal of Customer Content. We may, in our sole discretion, suspend your access to the Services for any of the following reasons (i) to prevent disruption of or damages to, or degradation of, the Services and our systems; (ii) to comply with any law, regulation, court order, or other governmental requests; (iii) to otherwise protect us from potential legal liability; (iv) to remove Customer Content that is illegal, offensive, or otherwise inappropriate or in violation of a third party’s intellectual property rights, in our sole discretion, or (iv) in the event an invoice remains unpaid for more than forty-five (45) or more days from the invoice date. We will restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on us to monitor the use of the Services.
9. Government Use. Any software or other programming provided by MOTION in connection with this Agreement is commercial computer software as described in DFARS 252.227-7014(a)(1) and FAR 2.101. If acquired by or on behalf of the United States Department of Defense or any component thereof, the United States Government acquires this commercial computer software and commercial computer software documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the United States Government acquires this commercial computer software and commercial computer software documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software.

NON-MOTION PRODUCTS AND SERVICES

1. Non-MOTION Products and Services. MOTION or third parties may make available third-party products or services, including, for example, Non-MOTION Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-MOTION provider, product or service is solely between Customer and the applicable Non-MOTION provider. MOTION does not warrant or support Non-MOTION Applications or other Non-MOTION products or services, whether or not they are designated by MOTION as “certified” or otherwise, unless expressly provided otherwise in an Order Form. MOTION is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-MOTION Application or its provider.
2. Integration with Non-MOTION Applications. The Services may contain features designed to interoperate with Non-MOTION Applications. MOTION cannot guarantee the continued availability of such Service 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 Non-MOTION Application ceases to make the Non-MOTION Application available for interoperation with the corresponding Service features in a manner acceptable to MOTION.

FEES AND PAYMENT

1. Fees. Indicative pricing for the Services available at https://motionmeetings.co/pricing/ is provided for discussion purposes only. Customer acknowledges that only those fees specified in Order Forms, including all applicable taxes and Overage Charges, as well as Pass-Through Charges not otherwise specified in Order Forms such as SMS/MMS carrier fees or other charges should they arise or be billed by any underlying carrier or provider (each a “Pass-Through Charge”) shall apply and prevail. Customer agrees to promptly pay MOTION pay all fees specified in Order Forms including all applicable taxes and additional fees. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
2. Deposits. MOTION may, upon written notice, require Customer to maintain sufficient funds on deposit with MOTION to pay for Pass-Through Charges when incurred (unless otherwise set forth in any Service Order), and Customer hereby authorizes MOTION to immediately deduct from such deposit the amount of any Pass-Through Charge when incurred by Customer. If funds on deposit become at any point insufficient to pay for all charges due and owing, then Customer shall immediately deposit an amount required to zero out such insufficiency with MOTION. MOTION reserves the right to suspend all Services in the event Customer has a negative balance on deposit with MOTION.
3. Invoicing and Payment. Customer will provide MOTION with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to MOTION. If Customer provides credit card information to MOTION, Customer authorizes MOTION to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges, including but not limited to applicable initiation/installation charges, monthly recurring charges, support charges, and other fees shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. Any additional usage charges are billed in arrears. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. If the Order Form specifies that payment will be by a method other than a credit card, MOTION will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Customer is responsible for providing complete and accurate billing and contact information to MOTION and notifying MOTION of any changes to such information, such as credit card account number, change of address, or expiration date changes. If the credit card or other payment method on your account is declined or fails for any reason, MOTION will use reasonable efforts to contact you and advise you of the failed billing attempts. Notwithstanding the foregoing, MOTION reserves the right to disconnect your Service and terminate your account if your credit card on file is declined or fails for any reason. MOTION further reserves the right to continue to attempt charging your credit card for any outstanding Service charges and additional fees and pursue any other legal remedies available to MOTION. We may assess an additional fee of the lesser of (a) fifty dollars ($50) or (b) the highest amount allowed by law for any credit card chargeback or check returned for nonpayment. Any payment authorization will remain valid until thirty (30) days after you terminate our authority to charge your payment method. Upon termination, you hereby agree that MOTION may charge you any fees and any other outstanding charges and disconnect your service.
4. Overdue Charges. Time is of the essence for payment. If any invoiced amount is not received by MOTION by the due date, then without limiting MOTION’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) MOTION may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above. Acceptance of late or partial payments (even if marked “Paid in Full”) shall not waive any of MOTION’s rights to collect the full amount due.
5. Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for the Services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized MOTION to charge to Customer’s credit card), MOTION may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, MOTION will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending the Services to Customer.
6. Payment Disputes. You must dispute any charges for the Services in writing to MOTION customer support within thirty (30) days of the date of the charge by MOTION. If you do not provide a written statement explaining in reasonable detail your reasons for disputing the charge within such time period, you hereby irrevocably waive any objection and further recourse with regard to such charges. MOTION will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
7. Taxes. MOTION’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, including paying all personal property, sales, use, and other taxes and license and registration fees and other assessments or charges levied or imposed by any governmental body or agency as a result of the execution or performance of this Agreement, including your receipt of the Services. For clarity, Customers domiciled in Canada shall be responsible for all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Canadian federal, provincial, territorial or local governmental entity on any amounts payable by Customer hereunder. Customer will not withhold any taxes from any amounts due to MOTION unless such withholding or deduction is required by applicable law. In such event, the amount of such payment due from Customer shall be increased to an amount which (after making such withholding or deduction) leaves an amount equal to the payment that would have been due if no such withholding or deduction had been required. If MOTION has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, MOTION will invoice Customer and Customer will pay that amount unless Customer provides MOTION with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, MOTION is solely responsible for taxes assessable against it based on its income, property and employees.
8. Fee Adjustments. Upon notice of not less than sixty (60) days, we may, at our discretion, adjust any or all fees for the Services. You may terminate this Agreement on written notice to us within thirty (30) days of its receipt of our notice to adjust the fees; provided, however, that if you fail to object to the adjustment in writing within the foregoing thirty (30) day period then you will be deemed to have agreed to the fee adjustment.
9. Credits. From time to time, MOTION may, but is not obliged, to grant to Customer certain promotional, usage or other credits. If Customer does not use such credits within six months after such credits have been granted, MOTION reserves the right to withdraw such credits without any liability.

PROPRIETARY RIGHTS AND LICENSES

1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, MOTION, its Affiliates, its licensors and Content Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights, including without limitation any and all patents, copyrights, trademarks, service marks, trade secrets, and all other intellectual property rights (collectively, “IP Rights”). No rights are granted to Customer hereunder other than as expressly set forth herein. You acknowledge that all Services provided hereunder are protected by intellectual property rights of MOTION and its licensors, as applicable and that you have no rights to undertake, cause, permit, or authorize the transfer, reproduction, modification, creation, or preparation of any derivative works, translation, reverse engineering, decompiling, disassembling or hacking with respect to, or disclose Confidential Information pertaining to, the Services or any part(s) thereof. You will preserve all Services from any liens, encumbrances, and claims of any individual or entity. You will not use any of our information or data to contest the validity of any of our intellectual property or our licensors. You are only entitled to the limited use of the rights expressly granted to you in this Agreement. You agree not to take any action to jeopardize, limit, or interfere with the IP Rights of MOTION, and you acknowledge and agree that any unauthorized use of the IP Rights is a violation of this Agreement, as well as a violation of applicable intellectual property laws. You acknowledge and understand that all title and rights in and to any third-party content that may be accessed through the Services is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. Any unauthorized use of our IP Rights and/or data will constitute a material, non-curable breach of this Agreement. You agree and acknowledge that any breach of the provisions regarding intellectual property ownership contained in this Agreement shall cause MOTION irreparable harm, and MOTION may obtain injunctive relief and seek all other remedies available in law and in equity.
2. Access to and Use of Third Party Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms and this Agreement.
3. Access to and Use of Customer Content. To the extent you provide us with any content (e.g., graphics, logos, artwork, text, data) for use in connection with the Services (collectively, the ” Customer Content”), you grant us a non-exclusive, worldwide, fully-paid up, royalty-free, non-exclusive, non-transferable (except in connection with an assignment of this Agreement) license to copy, store, record, transmit, display, view, print, and use the Customer Content for purposes of performing this Agreement. You are responsible for obtaining all rights, permissions, licenses, and consents required to furnish the Customer Content to us for use as described above and represent and warrant that you have all rights required to disclose and furnish the Customer Content to MOTION. MOTION is not obligated to store your Customer Content or other reports and/or materials generated by the Services and does so only as a convenience to you. You agree that MOTION has no responsibility or liability whatsoever for the deletion or failure to store any Customer Content, reports, materials, messages, data, or other communications maintained or transmitted by the Services. You acknowledge and agree that you are solely responsible for preserving and making adequate backups for all Customer Content and other materials and will not rely on us to preserve or make adequate backups of data used in connection with the Services, or to maintain a record of your usage of any part or all of the Services.
4. License by Customer to MOTION. Customer grants MOTION, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-MOTION Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for MOTION to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-MOTION Application with a Service, Customer grants MOTION permission to allow the Non-MOTION Application and its provider to access Customer Data and information about Customer’s usage of the Non-MOTION Application as appropriate for the interoperation of that Non-MOTION Application with the Service. Subject to the limited licenses granted herein, MOTION acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-MOTION Application or such program code.
5. License by Customer to Use Feedback. Customer grants to MOTION and its Affiliates an unlimited, worldwide, perpetual, irrevocable, non-exclusive, transferable, sub-licensable, assignable, fully-paid up, royalty-free license to – in MOTION’s sole discretion – use, distribute, disclose, and make and incorporate into its Services any suggestion, enhancement request, recommendation, correction or other information (collectively, “Feedback“) provided by Customer or Users relating to the operation of MOTION’s or its Affiliates’ Services. Feedback is entirely voluntary, and we are not required to hold it in confidence. By providing us Feedback, you acknowledge and agree that we may or may not use the Feedback for any purpose without obligation of any kind in our sole discretion.
6. License by Customer to use Aggregated Data You grant us a worldwide, non-exclusive, perpetual, irrevocable, transferable, sub-licensable, assignable, fully-paid- up, royalty-free license to use Aggregated Data, as defined below, derived from your use of Services for our business purposes, including the provision of products and Services to our Customers. “Aggregated Data” shall mean statistical user information or data acquired through providing the Services that do not include any personally identifiable information about the customer. You further grant us the right to (i) use the Aggregated Data in any aggregate or statistical products or reports, (ii) transfer and/or disclose the Aggregated Data upon a sale of our company or its assets or other forms of reorganization, (iii) disclose Aggregated Data in a summary report that does not show, display or indicate customer-specific or customer identifying information, (iv) provide Aggregated Data to a third party service provider, for analytical purposes, and (v) use the Aggregated Data to compare with other organizations within the same industry or group. The Aggregated Data will not be considered your Confidential Information
7. Authorization and License to Identify Customer in PromotionsFrom time to time, MOTION may request to identify you as a user of the Services in its press releases; marketing materials and case studies; electronic, printed, and broadcast advertising; newsletters; mailings; tradeshows; other promotional materials; on MOTION’s website; or any other third-party website where MOTION or its designated agents may promote the Services. MOTION will always obtain your prior written authorization before doing so. If you agree to allow MOTION to identify you as a user for MOTION’s marketing purposes in writing, you grant MOTION and its agents a limited, revocable, worldwide, non-exclusive, fully paid-up, royalty-free license to use, reproduce, publish, and display your name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.
8. MARKETING MATERIALS AND COMMUNICATIONS FROM MOTIONCustomer expressly requests to receive information via phone call, SMS/text message and/or email, even if Customer is listed on any internal federal, state, provincial or territorial Do-Not-Call Registry list. Consent is not a requirement to purchasing Services; Customer may opt-out by replying “STOP” to any message received and may request additional assistance by replying “HELP”. Customer may receive up to 10 messages per month. Message and data rates may apply. MOTION may also send you marketing materials and offer additional promotional services (“Marketing Materials”) to you at no cost or at an additional fee. You hereby agree that MOTION may send you (including administrators and end-users of your account) such Marketing Materials via electronic transmission, e-mail, mail, or otherwise; provided, however, that you may unsubscribe or opt-out of such Marketing Materials at any time by notifying MOTION Customer Support at [email protected] or by simply clicking the “Unsubscribe” link provided at the bottom of the promotional email. Even if you opt out of marketing emails, you understand and agree that MOTION may continue to send you non-marketing communications regarding important account information, billing statements, changes to your Service agreement, or other communications required by applicable law.
9. U.S. Federal Government End Use Provisions. MOTION provides the Services, including related software and technology, for ultimate federal government end use in accordance with the following: The Services consist of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.

CONFIDENTIALITY

1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of MOTION includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional MOTION services.
2. Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, MOTION may disclose the terms of this Agreement and any applicable Order Form to a contractor or Non-MOTION Application Provider to the extent necessary to perform MOTION’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
2. MOTION Warranties. MOTION warrants that during an applicable subscription term (a) this Agreement and the Order Forms will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) MOTION will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance this Agreement, and (d) subject to the “Integration with Non-MOTION Applications” section above, MOTION will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES PROVIDED FREE OF CHARGE, CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
   
   MOTION and its vendors and licensors expressly disclaim all warranties, express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, quality of information, or title/non-infringement of Customer’s use of the Services, whether said warranty arises under provisions of any law of Canada or any province thereof, the United States or state thereof, or any other country, all such warranties are hereby specifically disclaimed. You expressly agree and acknowledge that your use of the Services is at your sole risk. MOTION and its vendors and licensors expressly disclaim all warranties that the Services are appropriate for high-risk or other activities where the failure of a Service could result in serious harm to persons, businesses, or property. MOTION makes no warranty that the Services will meet your requirements, that the Services will be uninterrupted, timely, secure, error-free, or that any defects in the Services will be corrected.
   
   MOTION is not responsible for comments or information lost or misdirected due to interruptions or fluctuations in the Services or the internet in general. MOTION is not responsible for the content or functionality of any third-party network used in connection with the Services. MOTION does not warrant the accuracy or reliability of the results obtained through the use of the Services or any data or information downloaded or otherwise obtained or acquired through the use of the Services. You acknowledge that any data or information downloaded or otherwise obtained or acquired through your use of the Services are at your sole risk and discretion, and MOTION will not be liable or responsible for any damage caused by use of the Services to you, your business or your property.
   
   No oral or written information or advice given by MOTION or its affiliates, employees, resellers, partners, or authorized representatives will create a warranty or in any way increase the scope of MOTION ‘s obligations hereunder.
   
   The Services may be used to access and transfer information over the internet. You acknowledge and agree that MOTION and its vendors and licensors do not operate or control the internet and that: (i) viruses, worms, trojan horses, or other undesirable data or software; or (ii) unauthorized users (e.g., hackers) may attempt to obtain access to and damage the customer content, reports, websites, computers, or networks. under no circumstances shall MOTION be responsible for those activities.
   
   Some jurisdictions do not permit the disclaimer of certain implied warranties, so certain of the foregoing disclaimers may not apply to you. To the extent that MOTION cannot disclaim any such warranty as a matter of applicable law, the scope and duration of such warranty will be the maximum permitted under such law.

MUTUAL INDEMNIFICATION

1. Indemnification by MOTION. MOTION will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by MOTION in writing of, a Claim Against Customer, provided Customer (a) promptly gives MOTION written notice of the Claim Against Customer, (b) gives MOTION sole control of the defense and settlement of the Claim Against Customer (except that MOTION may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives MOTION all reasonable assistance, at MOTION’s expense.
   
   If MOTION receives information about an infringement or misappropriation claim related to a Service, MOTION may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching MOTION’s warranties under “MOTION Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (I) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (II) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by MOTION, if the Services or use thereof would not infringe without such combination; (III) a Claim Against Customer arises from Services Under an Order Form for which there is no charge; or (IV) a Claim against Customer arises from Content, a Non-MOTION Application or Customer’s breach of this Agreement or applicable Order Forms.
2. Indemnification by Customer. Customer will defend MOTION and its Affiliates against any claim, demand, suit or proceeding made or brought against MOTION by a third party (a) alleging that the combination of a Non-MOTION Application or configuration provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or (b) arising from (i) Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement or Order Form, (ii) any Customer Data or Customer’s use of Customer Data with the Services, or (iii) a Non-MOTION Application provided by Customer(each a “Claim Against MOTION”), and will indemnify MOTION from any damages, attorney fees and costs finally awarded against MOTION as a result of, or for any amounts paid by MOTION under a settlement approved by Customer in writing of, a Claim Against MOTION, provided MOTION (A) promptly gives Customer written notice of the Claim Against MOTION, (B) gives Customer sole control of the defense and settlement of the Claim Against MOTION (except that Customer may not settle any Claim Against MOTION unless it unconditionally releases MOTION of all liability), and (C) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against MOTION arises from MOTION’s breach of this Agreement or applicable Order Forms.
3. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.

LIMITATION OF LIABILITY

1. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

TERM AND TERMINATION

1. Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one-year terms, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at MOTION’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
3. Termination. 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. Termination or expiry of this Master Services Agreement shall not affect the accrued rights and liabilities of the parties as at termination.
4. Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” section above, MOTION will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by MOTION in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to MOTION for the period prior to the effective date of termination.
5. Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and Non-MOTION Applications,” “Surviving Provisions,” “Dispute Resolution and Optional Arbitration” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as MOTION retains possession of Customer Data.

DISPUTE RESOLUTION AND OPTIONAL ARBITRATION

1. Dispute Resolution. In the event of any dispute, claim, question, or disagreement between you and MOTION (“Dispute”), Customer and MOTION shall first use reasonable best efforts to settle the dispute, claim, question, or disagreement. The parties agree to each have an appointed representative consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Neither Customer nor MOTION shall file or pursue any Disputes in any court, administrative, arbitral, or other adjudicative body prior to or during the engagement of such consultations and negotiations.
2. Optional Arbitration. Notwithstanding the adjudication requirement above, for any Disputes involving ten thousand dollars ($10,000) or less, either party may choose to resolve such Dispute through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference). Such arbitration shall be conducted through an established alternative dispute resolution provider mutually agreed upon by the parties, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision shall be final and legally binding.
3. Dispute Reimbursement. In the event of any litigation (including arbitration) between Customer and MOTION, the non-prevailing party shall reimburse the prevailing party for all reasonable and documented attorneys’ fees, costs, and expenses relating to the Dispute.

GENERAL PROVISIONS

1. Export Compliance. The Services, Content, other MOTION technology, and derivatives thereof may be subject to export and import control laws of Canada, the United States, the European Union, or other countries.
2. Canada Export Compliance. If Customer is domiciled in Canada, Customer agrees to comply fully with all relevant export laws and regulations of Canada, including, but not limited to Canadian Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security (“Canadian Export Controls”). Without limiting the generality of the foregoing, you expressly agree that you shall not export, directly or indirectly, re-export, divert, or transfer any portion of the Services or any direct product or technical data thereof to any destination, company or person restricted or prohibit by Canadian Export Controls. You further represent and warrant that you (or if acting on behalf of a legal entity, the legal entity and its officers, representatives, and shareholders) are not listed on any Specially Designated National or other denied parties list issued by any agency of the Canadian Government.
3. U.S. Export Compliance. If Customer is domiciled in the U.S., Customer agrees to comply strictly with all applicable export and import laws and regulations of the United States, including, but not limited to (i) the Export Administration Regulations maintained by the U.S. Department of Commerce, and (ii) the trade and economic sanctions maintained by the U.S. Department of Treasury Office of Foreign Assets Control, and will not allow use of the Services in a manner that breaches or facilitates the breach of such regulations. Customer has the responsibility to obtain any licenses required to export, re-export, or import the Services, including deemed exports. The Services shall not be provided to nor used by anyone: (a) located in any applicable embargoed or sanctioned countries or by any Foreign National of a U.S. embargoed country; or (b) included on the U.S. Treasury Department’s list of Specially Designated Nationals; (c) the U.S. Department of Commerce’s Denied Persons or Entity List; or (d) subject to trade control sanctions or blocking measures. By using the Services, Customer represents and warrants that neither Customer nor any Person provided access to the Service by Customer is located in any such country or on any such list.
4. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
5. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between MOTION and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form and (2) this Agreement. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
6. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
7. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
8. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
10. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, MOTION will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11. MOTION Contracting Entity, Notices, Governing Law, Venue and Time Limit. The MOTION entity entering into this Agreement, the address to which Customer should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where Customer is domiciled. No action, regardless of form, arising from the Agreement or any Services provided or to be provided hereunder may be brought by either party more than two (2) years after the cause of action has accrued, except that an action for non-payment may be brought at any time.

    For Customers domiciled in Canada and the United States
    If Customer is domiciled in:	The MOTION entity entering into this Agreement is:	Notices should be addressed to:	Governing law is:	Courts with exclusive jurisdiction are:
    United States	Converso Inc. (a/k/a Motion Meetings), a Delaware corporation	6 Madison Square West, 12th Floor, New York, NY, 10010 USA U.S.A. attn: General Counsel	California and controlling United States federal law	San Francisco, California, U.S.A.
    Canada	Converso Inc. (a/k/a Motion Meetings), an Ontario corporation	1600 – 401 Bay Street Toronto, ON M5H 2Y4 Canada attn: General Counsel	Ontario and controlling Canadian federal law	Toronto, Ontario, Canada

12. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
13. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
14. Governing language. The Agreement shall be prepared and interpreted in the English language. Any translation of the Agreement into another language is for the purpose of convenience only. Any inconsistency arising due to translation into another language or a difference of interpretation between two or more languages, will be resolved in favor of the English language version.
15. Electronic Communication. This Agreement may be accepted in electronic form (e.g., by an electronic or other means of demonstrating assent) and your acceptance will be deemed binding between us. Neither of us will contest the validity or enforceability of this Agreement and any related documents, including under any applicable statute of fraud because they were accepted or signed in electronic form. This electronic document and any other electronic documents, policies, and guidelines incorporated herein will be: (1) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for writing; (2) legally enforceable as a signed writing as against the parties subject to the electronic documents; and (3) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation, or administrative proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
16. California Users. 23.13 Under California Civil Code Section 1789.3, California users of the Service acknowledge receipt of the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at the Department of Consumer Affairs, Division of Consumer Services, Attn: Complaints Assistance Unit, 1625 North Market Blvd, Suite N112, Sacramento, California 95834, or by telephone at (800) 952-5210.
17. General Correspondence. Feel free to contact MOTION by email at [email protected] for any reason, including a request to be added to or taken off an email list, or if you have any questions or concerns. Please provide your company’s name in addition to your name and title.