Terms and Conditions
Updated: May 1, 2014


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.

Definitions

Sensor: Motionloft-owned device used to provide Data
Materials: Hardware and installation supplies for Sensor
Data: Aggregated traffic counts calculated by the Motionloft Sensors
Account: Arrangement by which Customer or Customer representative has access to Customer’s proprietary Content using Motionloft’s website
Content: 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

TERM

The term of this Agreement begins on the date we activate Services for your Account. This Agreement will continue until terminated by either party pursuant to the terms hereof.

SERVICE AVAILABILITY

WE MAKE NO GUARANTEE AS TO UPTIME OR AVAILABILITY OF THE SERVICE. 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.

USE OF SERVICES & ACCOUNT; RULES OF CONDUCT

You represent and warrant 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. You also represent and warrant that the information you provide for your Account is true and correct, and that the person signing on behalf of an entity has 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 of your 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 upon your actually knowing of such. 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: (a) 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; (b) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (c) 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); (d) run Maillist, Listserv, any form of auto-responder or "spam" on the Service; or (e) use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Sites.

You shall not (directly or indirectly): (a) 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 (b) 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.

INTELLECTUAL PROPERTY OWNERSHIP

All Materials, Services, Accounts, and Content are provided by Motionloft unless indicated otherwise. All intellectual property rights in the Materials, Services, Accounts, and Content (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, Services, Accounts, and Content 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.

PAYMENT

If you choose to be invoiced monthly, MotionLoft will mail an invoice to the Billing Contact for the monthly cost per Sensor on or before the first day of each calendar month. Invoice payment terms shall be Net 30. If the first day of the Initial Term is on a day other than the first day of a calendar month, MotionLoft will invoice you for a pro rata portion of the Cost for such month. 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.

You shall have the right to terminate this Agreement at any time upon at least thirty days’ notice if you have not had Service at any one Sensor for more than 72 hours total in any one calendar month, or if you have not been able to access your Account for at least 72 hours during any one calendar month, and such have not been caused by you. 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.

At the end of the Initial Term, and absent a 30-day notice to terminate this Agreement prior to the end of the Initial Term by either party, this Agreement shall automatically renew on a month-to-month basis, subject to a 30-day notice to terminate by either party. If this Agreement renews as set forth herein, we will invoice you on a monthly basis, in advance, at the monthly rate set forth above, subject to change upon 30-days’ notice by us. In no event will you be obligated to make such payment if you have not received at least 30 business days’ notice of the payment amount and due date.

SENSOR INSTALLATION AND MAINTENANCE

You hereby agree to permit us to install Sensor(s) (collectively one or more sensors are referred to in this agreement simply as a "Sensor") in your Location. Sensor installation is an unobtrusive process, the only requirements being a clear line of site to the street, and access to 110V power outlets. You understand that, for the Data at the Location to be delivered, the power supply must be continual and uninterrupted, and a clear line of site to the street must be available. Motionloft is not responsible for acts outside of its control that interrupt its ability to provide its Data, and payment from you shall continue in spite of any such interruptions in power or street site, or delays in access to its sensors caused by you, your agents, representatives, contractors, employees, invitees, licensees, or any other causes outside of Motionloft’s reasonable control.

We agree that we shall maintain, repair and replace the Sensors as necessary to keep them functioning as intended in a like-new condition.

In consideration of the mutual promises made herein, you:

  • a) Consent to the installation of the Sensor(s) in your business, to be installed in exact places noted in the Location Site Map, as shown as Exhibit A in the Service Order.

  • b) Grant us and our subcontractors 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 Locations, to remain installed for the Initial Term and subsequent terms of this Agreement; provided, however, that no entrance onto your location shall be permitted unless and until we and our contractors shall have provided you proof of commercial liability insurance in the amount of $2,000,000 per occurrence, $4,000,000 all occurrences, written by an insurance licensed to issue such coverage in the State of California, including contractual liability which covers this Agreement, agreeing not to terminate or reduce coverage without giving you at least thirty days prior notice, and naming you as an additional insured.

  • c) Agree not to block the front of the Sensor that faces outside.

  • d) Agree not to handle the Sensor or tamper with it, since it is calibrated to point in a particular direction.

  • e) Agree not to shift the position of the Location where a Sensor is installed.

  • f) Agree to keep the Sensor(s) plugged in.

  • g) Agree to provide us with access to the Sensor(s) upon 24 hours' notice and during normal business hours.

  • h) Agree to notify us if you need to move, remove, or shut down a Sensor, and we will send someone to do that.

  • i) Understand that the Sensor is Motionloft's property, and agree to pay Motionloft $500 for each Sensor which is damaged beyond repair or cannot be located when this Agreement is terminated.

  • j) Represent and warrant that you are in lawful possession of the Location, and represent and warrant that this Agreement 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.

  • k) You agree that at the end of the Term, Motionloft will remove the Sensor hardware unless permitted, in writing, to leave the Sensor(s) in place for as long as Customer permits. The Sensor(s) will continue to collect data, and at such time as Customer desires, Customer may enter into a new agreement with Motionloft and access such data.

INDEMNIFICATION

Motionloft agrees to defend and indemnify Customer against any and all actions, claims, losses, damages, liabilities, awards, costs and expenses (including attorney fees and costs) (any or all a “Claim”) which Customer incurs or becomes obligated to pay resulting from or arising out of any Claim asserted against Customer with respect to the installation of, and the ongoing existence of, the Sensor(s), including, but not limited to, any Claim for personal or bodily injury or property damage arising out of or resulting in any way from any defect in the Sensor(s) or its installation, so long as any such Claims are not contributed to by any act of, or by any omission to perform some duty imposed by law or agreement on Customer, including, by way of example only, Customer’s tampering or misuse of the Sensor(s), or any breach of any terms, conditions, obligations, warranties or representations by Customer herein or in the T&C’s. Motionloft will be liable to Customer with respect to any Claims only if Customer gives Motionloft written notice thereof no later than 45 days following your receipt of written notice of the Claim.

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.

CONFIDENTIAL INFORMATION

Confidential Information of Motionloft, including, but not limited to trade secrets, know-how, Inventions (whether patentable or not) ideas, improvements, materials, data, drawing, processes, results and formulae and all other business, technical and financial information (“Confidential Information”) shall be the confidential information of Motionloft, provided that the foregoing will be deemed Confidential Information of Motionloft only to the extent clearly identified to Customer as such in writing at the time of disclosure.

Customer shall, at all times, both during the term of this Agreement and thereafter for a period of five (5) years, keep in confidence as a fiduciary all Confidential Information received from Motionloft. Customer shall not use the Confidential Information of Motionloft, other than as expressly permitted under the terms of this Agreement or by a separate written agreement. Customer shall take reasonable steps to prevent unauthorized disclosure or use of Confidential Information of Motionloft and to prevent it from falling into the public domain or into the possession of unauthorized persons or entities. Customer shall not disclose Confidential Information of Motionloft to any person or entity other than its officers, employees, consultants and subsidiaries who need access to such Confidential Information in order to perform its obligation under this Agreement and who have entered into written confidentiality agreements which protect the Confidential Information. Upon termination of this Agreement, Customer shall promptly return any and all Confidential Information to Motionloft.

Confidential
Information of Customer, including, but not limited to, trade secrets, know-how, inventions (whether patentable or not), ideas, improvements, materials, data, specifications, drawings, processes, results, and formulae and all other business, technical and financial information (“Confidential Information”) shall be the confidential information of Customer. Motionloft shall, at all time, both during the term of this Agreement and thereafter for a period of five (5) years, keep in confidence all Confidential Information received from Customer. Motionloft shall not use the Confidential Information of Customer other than as expressly permitted under the terms of this Agreement or by a separate written agreement. Motionloft shall take reasonable steps to prevent unauthorized disclosure or use of Customer's Confidential Information and to prevent it from falling into the public domain or into the possession of unauthorized persons or entities. Motionloft shall not disclose Confidential Information of Customer to any person or entity other than its officers, employees, consultants and subsidiaries who need access to such Confidential Information in order to perform its obligations under this Agreement and who have entered into written confidentiality agreements which protect the Confidential Information of Customer. Upon termination of this Agreement, Motionloft shall promptly return any and all Confidential Information to Customer.

Exception to Confidential Information 
Information that is in or enters the public domain and becomes generally known on a non-confidential basis through no improper action or inaction of Party or any affiliate, agent or employee shall not be considered Confidential Information hereunder. Without granting any right or license, the Parties agree that the obligations set forth in sections 30.1 and 30.2, shall not apply to the extent that Confidential Information includes information which the Parties can document (a) was rightfully in its possession or known by it prior to receipt from the disclosing Party, (b) was rightfully disclosed to it by another person without restriction on disclosure, (c) developed independently by either Party without access to the other Party’s Confidential Information, (d) is expressly authorized for disclosure by the disclosing Party, or (e) is disclosed pursuant to the requirement of a court, or other governmental body, provided the receiving Party provides reasonable advance notice of such court order to the disclosing Party to enable the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure prior to disclosure, and, in any event, discloses only the minimum amount of information necessary to comply with such requirements.

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, and other communications that we believe our users will want to know about. All email communication shall be sent to you at the addresses in the Agreement or to any other addresses requested by notice to you at least 20 days in advance. You may opt out of receiving these emails only by canceling your Motionloft Service.

NO WARRANTIES

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.

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 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.

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.

SINGLE COPY (INSTANCE) LICENSE; SITE CONTENT

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) decompile, reverse engineer, or disassemble software, Materials, Content, Services or Accounts; (b) remove any copyright or other proprietary notices from the Materials, Content, Services or Accounts.

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.

PRIVACY

Contact privacy@motionloft.com 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.

ASSIGNMENT

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.

NOTICES

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:

  • Motionloft
  • Attn: Customer Support Department
  • 550 15th St. Suite 29
  • 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.

GOVERNING LAW

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.

MODIFICATIONS TO THE WEBSITE

All Customers use Motionloft’s web application, located at http://www.motionloft.com (the “Website”). On a periodic basis, Motionloft will make modifications to the Website to improve and expand the Services being provided to the Customer. Should any Website modification of a material nature be unacceptable to the Customer, the Customer may terminate this Agreement upon 30-days notice to Motionloft.

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.