Terms and Conditions Updated: March 1, 2012
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICES OFFERED BY MOTIONLOFT. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE VARIOUS WEBSITES AND SERVICES OWNED AND OPERATED BY MOTIONLOFT, INCLUDING, WITHOUT LIMITATION, THE MOTIONLOFT.COM WEBSITE AND DOMAIN NAME, AND ANY OTHER FEATURES, CONTENT, OR APPLICATIONS OFFERED FROM TIME TO TIME BY MOTIONLOFT IN CONNECTION THEREWITH. BY USING THE SITES OR SERVICE IN ANY MANNER, INCLUDING BUT NOT LIMITED TO VISITING OR BROWSING THE SITES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT APPLIES TO ALL USERS OF THE SITES OR SERVICE, INCLUDING USERS WHO ARE ALSO CONTRIBUTORS OF CONTENT, INFORMATION, AND OTHER MATERIALS OR SERVICES ON THE SITES.
Acceptance of Terms and Conditions
These Terms and Conditions constitute an agreement ("Agreement" or "Terms and Conditions") between you ("you", "your", "user", "Customer", or "Merchant") and Motionloft ("Motionloft", "us", "we" or "our") for data analytics and metrics services and any related products or services ("Service" or "Services"). This Agreement governs both the Services and any assigned account ("Account") used in connection with the Services.
Any of the following actions constitute your agreement, without limitation or qualification, to be bound by, and to comply with, the terms of this Agreement: (i) your initialization or registration of the Services, through the Motionloft website (Motionloft.com) or through any of the Motionloft subdomains (the Motionloft website and subdomains are collectively referred to herein as the "Site"); or (ii) through the use of your Account and password; or (iii) your use of the Site.
The term of this Agreement begins on the date we activate Services for your Account. This Agreement will continue from month to month until terminated by either party pursuant to the terms hereof.
ORDER ACCEPTANCE POLICY
Your submission of your order on the Site or receipt of an email confirmation signifies acceptance by Motionloft of your order and the provision of your Account. Motionloft may verify orders to prevent fraud. Should Motionloft suspect the placement of a fraudulent order (even after you have received an email confirmation of acceptance of your order and the provision of your Account), Motionloft may contact you by email or telephone regarding such suspected fraudulent order and, in Motionloft's sole discretion, we may interrupt, restrict, or terminate your Account without notice to you.
USE OF SERVICES & ACCOUNT; RULES OF CONDUCT
You represent and warrant that, if you are an individual, you are at least 18 years of age or the applicable age of majority in your geographic area, and that you possess the legal right and ability to enter into this Agreement, and if you are a corporation or other legal entity, you have all necessary right, title and interest to bind the entity. Whether an individual or an entity, you also represent and warrant that the information you provide for your Account is true and correct, and that, if signing on behalf of an entity, that you have all requisite corporate or entity power and authorization to do so. You agree not to use the Materials, Content, Services, and your Account for any unlawful or abusive purpose or in any way which interferes with our ability to provide Services to our customers, or which damages our property.
Certain pages on the Site, or access to the Services and/or your Account, may be accessed only by use of a password and log-in ("Credentials"). You are solely responsible for all uses of the Site and/or the Services and/or your Credentials. You should change your password once each month. You are responsible for maintaining the confidentiality of your Credentials. You are responsible for all activity that occurs under your Credentials. If your Services or Accounts are fraudulently used, you agree to immediately notify Motionloft of such unauthorized use. We have the right to interrupt, restrict, or terminate Services to your Account, without notice to you, if we suspect fraudulent or abusive activity. You agree to cooperate with us in any fraud investigation and to use any fraud prevention measures we prescribe.
Additionally, you shall not: (i) take any action that imposes or may impose (as determined by Motionloft in its sole discretion) an unreasonable or disproportionately large load on Motionloft's (or its third party providers') infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures Motionloft may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (iv) run Maillist, Listserv, any form of auto-responder or "spam" on the Service; or (v) use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Sites.
You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction, or (ii) modify any part of the Service. You shall abide by all applicable local, state, national and international laws and regulations.
You will not use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, "data mine", or in any way reproduce or circumvent the navigational structure or presentation of the Site or its contents.
NO EMERGENCY SERVICES
You expressly agree and understand that the Service is not intended to support or carry emergency or time-critical calls or communications to any type of hospital, law enforcement agency, medical care unit or any other kind of emergency or time-critical service ("Emergency Services"). You will not and will not allow your end users to utilize the Service in connection with life-critical or other Emergency Services. Motionloft, its affiliates or staff are in no way liable for such emergency calls or communications. By agreeing to this Agreement, you understand that additional arrangements outside of Motionloft must be made by you and your end users to access Emergency Services.
FEES AND SERVICES; MODIFICATIONS
Motionloft may change its fees and payment policies for the Service from time to time including but not limited to the addition of costs for geographic data, the importing of cost data from search engines, or other fees charged to Motionloft or its wholly-owned subsidiaries by 3rd party vendors for the inclusion of data in the Service reports, among other things. The changes to the fees or payment policies are effective upon our notice to you either by email or such other method as provided in your Account, or by your acceptance of such changes which will be posted at such URL as Motionloft may provide from time to time. Motionloft reserves the right, at any time, to change its prices and billing methods for the Service, effective immediately upon notice to you by either posting to the Site or by email delivery to you, or both, in our sole discretion. Unless otherwise stated, all fees are quoted in U.S. Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement for any reason and any collection expenses (including attorneys' fees) incurred by Motionloft will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with your Account.
EMAIL COMMUNICATIONS FROM MOTIONLOFT TO YOU
YOU AGREE THAT MOTIONLOFT MAY SEND EMAIL MESSAGES TO YOU FROM TIME TO TIME REGARDING PLANNED SERVICE DOWNTIME, NEW FEATURES, CHANGES TO THIS AGREEMENT, AND OTHER COMMUNICATIONS THAT WE BELIEVE OUR USERS WILL WANT TO KNOW ABOUT.
YOU MAY OPT OUT OF RECEIVING THESE EMAILS ONLY BY CANCELLING YOUR MOTIONLOFT SERVICE.
THE MATERIALS, CONTENT, SERVICES, AND ACCOUNTS ARE PROVIDED "AS IS" AND "AS AVAILABLE". WE MAKE NO WARRANTIES REGARDING THE MATERIALS, CONTENT, SERVICES, AND ACCOUNTS WHATSOEVER AND DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OR TRADE. WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties. If you rely on the representations or warranties of any third parties with respect to the Services (including, without limitation, by dealers or resellers of the Services) beyond those made by Motionloft, your sole remedy for such reliance is against the third party making such representation or warranty.
We will make every available effort to keep Motionloft Services operational 24 hours a day, 7 days a week. There will be periods of downtime for maintenance and upgrades, and sometimes, for reasons that we did not plan. We will attempt to provide at least 24 hours of notice for scheduled maintenance or downtime, but some downtime may be unscheduled and beyond our control.
WE MAKE NO GUARANTEE AS TO UPTIME OR AVAILABILITY OF THE SERVICE.
LIMITATION OF LIABILITY
IN NO EVENT SHALL MOTIONLOFT, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, OR AGENTS BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF OR RELATING TO (i) YOUR INABILITY TO USE THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (ii) YOUR MISUSE OF THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (iii) NONPERFORMANCE OR A FAILURE OF THE SERVICES CAUSED BY ACTS OR OMISSIONS OF ANOTHER SERVICE PROVIDER, (iv) EQUIPMENT OR SOFTWARE FAILURE OR MODIFICATION; (v) TELECOMMUNICATIONS OR COMPUTER EQUIPMENT FAILURES, OR (vi) ACTS OF GOD, OR OTHER CAUSES BEYOND OUR REASONABLE CONTROL. THE FOREGOING SHALL APPLY EVEN IF MOTIONLOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MOTIONLOFT ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT YOUR ACCESS TO AND USE OF THE SITE, MATERIALS, CONTENT, SERVICES AND ACCOUNTS (1) WILL BE UNINTERRUPTED OR ERROR FREE; (2) IS FREE OF VIRUSES, UNAUTHORIZED CODE, OR OTHER HARMFUL COMPONENTS; (3) IS SECURE; OR (4) WILL MEET YOUR SATISFACTION. YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS YOU BELIEVE NECESSARY OR ADVISABLE TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF YOUR USE OF THE SITE, MATERIALS, CONTENT, SERVICES, AND ACCOUNT.
IN NO EVENT SHALL MOTIONLOFT, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER BE LIABLE FOR INJURIES TO PERSONS OR PROPERTY ARISING FROM USE OF THE SERVICES, OR ANY EQUIPMENT USED IN CONNECTION WITH THE SERVICES.
IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, MOTIONLOFT SHOULD HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, YOU AND MOTIONLOFT AGREE THAT IN NO EVENT SHALL LIABILITY OF MOTIONLOFT TO YOU FOR ANY REASON EXCEED OUR SERVICE CHARGES DURING THE AFFECTED PERIOD GIVING RISE TO SUCH LIABILITY.
YOU AND MOTIONLOFT AGREE THAT THIS SECTION OF THE AGREEMENT, "LIMITATION OF LIABILITY", IS AN AGREED ALLOCATION OF RISK BETWEEN YOU AND MOTIONLOFT. YOU ACKNOWLEDGE THAT, ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, MOTIONLOFT WOULD NOT PROVIDE THE SITE, MATERIALS, CONTENT, SERVICES, OR ACCOUNTS TO YOU.
INTELLECTUAL PROPERTY OWNERSHIP
All Materials, Services, Accounts, and content, including, but not limited to, policy information, text, data, location data, advice, suggestions, software, music, sound, photographs, video, graphics, graphs, dashboard information and presentation, the arrangement of text and images, commercially produced information, interactive features, and other material contained on the Site or through the Services ("Content"), are provided by Motionloft unless indicated otherwise. All intellectual property rights in the Materials, Content, Services, and Accounts (including copyrights, trademarks, service marks, trade secrets and patents) are the property of Motionloft. Motionloft retains all copyrights in the individual pages, and their components, and collective works available at the Site.
The Materials, Content, Services and Accounts are copyrighted and are protected by federal and worldwide copyright laws and treaty provisions. They may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way without Motionloft's prior written permission.
Trademarks and copyrights, including the word "Motionloft", and the Motionloft logo, are the property of Motionloft. All other names and trademarks are the property of their respective holders.
SINGLE COPY (INSTANCE) LICENSE; SITE CONTENT
You may utilize one copy (one "instance") of the materials (the "Materials") and/or Content found on this Site for use with the Services and/or Accounts. This is a license, not a transfer of title, and is subject to the following restrictions: unless you receive prior written consent from Motionloft and unless you receive any required regulatory approvals, you may not: (a) modify the Materials, Content, Services or Accounts or use them for any commercial purpose or any public display, performance, sale or rental; (b) decompile, reverse engineer, or disassemble software, Materials, Content, Services or Accounts; (c) remove any copyright or other proprietary notices from the Materials, Content, Services or Accounts; (d) unless otherwise provided herein, transfer or resell the Materials, Content, Services or your Account to another person. You agree to prevent any unauthorized copying of the Materials, Content, Services and Accounts. This license does not permit use of any data mining, robots (a.k.a. "bots"), scraping or similar data gathering or extraction methods, whether known or unknown.
You agree that the Service contains Content specifically provided by Motionloft or its partners and that such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by all copyright notices, information, and restrictions contained in any Content accessed through the Service. You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit any Content or third party submissions or other proprietary rights not owned by you except as expressly authorized in a superseding agreement between you and Motionloft or with the consent of the respective owners or other valid right. You may, to the extent the Sites or a superseding agreement between you and Motionloft expressly authorize you to do so, download or copy the Content, and other items displayed on the Sites for download, provided that you maintain all copyright and other notices contained in such Content.
The Content provided by or through the Service should not be relied upon. Motionloft makes no representations or warranties concerning the appropriateness, accuracy, reliability, usefulness, completeness, or timeliness of such Content.
SENSOR INSTALLATION CONSENT, WAIVER, RELEASE AND LICENSE
Your agreement to these Terms and Conditions may include your agreement to permit us to install sensor(s) (collectively one or more sensors are referred to in this waiver simply as a "Sensor") in your location.
In the event you have agreed to permit us to install a Sensor at your location, the following shall apply:
You represent and warrant that you are in lawful possession of the location. You represent and warrant that this consent does not conflict with, or violate, the terms of any other agreement to which you are a party, such as a lease or other rental agreement.
In consideration of being permitted to participate in, and benefit from, the collection of data in connection with your business, and the businesses surrounding your business, you:
- Consent to the installation of the Sensor(s) in your business, to be installed in places where we and you agree to.
- Knowingly and freely assume all risks associated with the installation of the Sensor. The specific risks include, without limitation, the possibility of defective wiring or installation which may result in electrical surges and outages, which may also result in fire. The Sensor is plugged into, and uses your electrical power. It does not use your wi-fi or broadband data line(s).
- Grant us and our subcontractors permission, called a license, to come into your location and install (including measuring and activities related to the preparation of installing), operate, maintain, repair and replace the Sensor at your location, to remain installed for an indefinite period.
- Agree not to block the front of the Sensor that faces outside;
- Agree not to handle the Sensor, or tamper with it, since it is calibrated to point in a particular direction;
- Agree not to open the window where a Sensor is installed;
- Agree to keep it plugged in;
- Agree to provide us with access to the Sensor upon 24 hours' notice and during normal business hours;
- Agree to notify us if you need to move or remove it or shut down a Sensor, and we will send someone to help you do that;
- Understand that the Sensor is Motionloft's property, as is the information it is collecting;
- Release Motionloft from and against any and all claims, injuries, liabilities or damages arising out of or related to installation or existence of the Sensor at your location.
- Agree that you have read this consent, waiver, and release and you acknowledge that you fully understand its terms. You acknowledge that you are signing this document freely and voluntarily.
TERMINATION / CANCELLATION
You may terminate this Agreement at any time by ceasing all use of the Services or by notifying Motionloft of your desire to cancel your Service. We may terminate this Agreement, at any time, without notice to you, if we believe, in our sole judgment, that you have breached or may breach any term or condition of this Agreement, or any representation or warranty herein. You agree that termination of this Agreement will not relieve you of any obligation to pay any accrued charges.
All sections which by their nature should survive the expiration or termination of the Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
You shall be charged the full amount of the fee for the month in which the Services were terminated. There is no pro-rated refund or discount provided when an account is terminated.
Contact firstname.lastname@example.org for full details.
COOPERATION WITH GOVERNMENT AUTHORITIES
If necessary and in accordance with applicable law, Motionloft will cooperate with local, state, federal, international, and/or worldwide government authorities to protect this Site, Materials, Content, Services, Accounts, visitors, customers, Motionloft, its parents, subsidiaries, affiliates and their respective members, managers, directors, officers, employees, stockholders and agents and operational providers, from the unauthorized use of this Site, Materials, Content, Services and Accounts.
LINKS TO OTHER MATERIALS
The linked sites are not necessarily under the control of Motionloft and Motionloft is not responsible for the content of any linked site or any link contained in a non-affiliated linked site. Motionloft reserves the right to terminate any link or linking program at any time. Motionloft has selected the links for your convenience. The selection or omission of links is not intended to endorse any particular companies or products. If you decide to access any of the third-party sites linked to this Site, you do so entirely at your own risk. Any links to any portion of the Site shall be the responsibility of the linking party, and Motionloft shall not be responsible for notification of any change in name or location of any information on the Site.
We may change or modify this Agreement from time to time, but any such change (a) will be made in good faith, and (b) if significant (as determined in the sole discretion of Motionloft), will only be made after first providing you with notice of the change. You can review the most current version of this Agreement at any time at our Site (Motionloft.com). If you do not agree to a significant change, you may terminate this Agreement by terminating use of the Services and/or by requesting that we terminate your Services.
We may assign all or part of our rights or duties under this Agreement in connection with a sale of all or substantially all the assets of Motionloft to a third party without notice to you; provided any such third party shall be obliged to honor the terms of this Agreement. You may not assign this Agreement without our prior written consent.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS MOTIONLOFT, ITS PARENTS, SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, EXPENSES OR DAMAGES (INCLUDING ATTORNEYS' FEES), WHETHER KNOWN OR UNKNOWN, ARISING FROM, INCURRED AS A RESULT OF, OR IN ANY MANNER RELATED TO (A) YOUR USE OF THE SERVICES, (B) ANY OTHER PERSON'S USE OF ANY ACCOUNT YOU MAINTAIN, REGARDLESS OF WHETHER SUCH USE IS AUTHORIZED BY YOU, OR (C) YOUR PROMISES OR STATEMENTS MADE IN THIS AGREEMENT. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES. NOTWITHSTANDING THE FOREGOING, YOU SHALL NOT BE LIABLE FOR CLAIMS, EXPENSES OR DAMAGES ARISING FROM THE INTENTIONAL OR GROSSLY NEGLIGENT ACTS OF MOTIONLOFT OR ITS EMPLOYEES, AGENTS, CONTRACTORS, OR REPRESENTATIVES. THIS INDEMNIFICATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
CREDIT CARD/PAYMENT INFORMATION
Except as otherwise provided in this Agreement, notices and other communications under this Agreement shall be in writing and shall be delivered, mailed by first-class mail, postage pre-paid, or sent by electronic mail, or air courier, addressed (a) if to you, at the address as kept in our files or at such other address as you shall have furnished to us in writing, or (b) if to us, at:
Attn: Customer Support Department
290 Division Street, Suite 403
San Francisco, CA 94103
Your notice must specify your name and Account. Each such notice, request, or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the mails with first class postage prepaid, addressed as aforesaid, (ii) if sent by email, when sent and receipt is electronically confirmed or (iii) if given by any other means (including, without limitation, by air courier), when delivered at the address specified above. Oral notices shall be deemed effective on the date reflected in our records.
This Agreement shall be governed by and construed in accordance with the laws of the state of California, excluding that body of law applicable to conflicts of law.
JURISDICTION & VENUE
You and Motionloft agree that any suit, action, or proceeding arising out of or relating to this Agreement shall be instituted only in a California state or federal court sitting in San Francisco, California, United States of America. You and Motionloft each waive any objection you or Motionloft may have now or hereafter to the laying of the venue of any such suit, action or proceeding, and irrevocably submit to the jurisdiction of any such court in any such suit, action or proceeding.
GENERAL INFORMATION, PUBLICITY, ENTIRE AGREEMENT
If any part of this Agreement is held invalid or unenforceable, that portion shall be construed to reflect the parties' original intent, and the remaining portions shall remain in full force and effect.
You hereby consent to Motionloft publicizing the existence (but not the terms) of the relationship contemplated hereunder as a part of promotional and marketing activities from time to time by Motionloft.
This Agreement constitutes the entire agreement between Motionloft and you with respect to your use of the Motionloft Site, Materials, Content, Services, and your Account, and it supersedes all prior or contemporaneous communications and proposals, whether oral or written, between Motionloft and you with respect thereto.
The failure of Motionloft to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Motionloft shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.