END USER LICENSE AGREEMENT (EULA)

This EULA is a legally binding agreement between the licensee end user (“End User”) and Motion LLC (“Motion”) setting forth the terms and conditions governing the use or access of Motion website or any Motion Platform mobile app (“Platform”), and the written technical specifications for the use or access of the Platform (the “Documentation”). Where the sense and context permit, references in this EULA to the Platform include the Documentation. By downloading and installing or otherwise using the Platform, and/or otherwise accepting this EULA, End User agrees to be bound by the terms and conditions of this EULA. If End User does not agree to or accept the terms of this EULA, End User may not access or use the Platform. 

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1. DEFINITIONS

“Transaction” and “Transaction Document” have the following meanings: “Transaction(s)” is a License transaction pursuant to which End User: Accepts this EULA as provided above and ii) takes actual or constructive possession of the Platform. A Transaction may take place by any lawful means, electronically or in writing, and may be confirmed by 

1. Purchase orders, credit orders, commitment letters, amendments to this EULA or other similar materials, signed or unsigned (each a “Transaction Document(s)”), or by the conduct of the affected parties. A Transaction may be initiated and implemented by any entity that is directly or indirectly a party to it, including End User or Motion. A Transaction Document may contain usage, business, legal and other terms and conditions agreed to by the parties. The foregoing notwithstanding, each Transaction will require that: 
   
   
   1. This EULA be accepted by End User and 
   2. End User obtains actual or constructive possession of the Platform. In the event of a conflict or inconsistency between the terms and conditions of this EULA and those set forth in a Transaction Document, the terms and conditions of this EULA will govern and control.

2. GRANT OF LICENSE

Motion grants End User a revocable, non-exclusive, non-transferable, limited license (“License’) to download, install, and use the Platform solely for End User’s internal business purposes for the management  and processing of End User business data or End User’s customer’s  data under the terms of this EULA.

RESTRICTIONS

End User  agrees not to, and End User will not permit others to:

1. License, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Platform or make the Platform available to any third party;
2. Use the Platform to gain access to or control over property, assets, or other items to which End User has  no legal right; and a use of the Platform for any illegal purposes.

3. MODIFICATIONS TO PLATFORM

Motion reserves the right to modify, suspend or discontinue, temporarily or permanently, the Platform or any service to which it connects, with or without prior notice and without liability to End User.

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4. ADDITIONAL TERMS

Nothing contained in this EULA is intended to prohibit or restrict the parties from mutually agreeing to enter into separate terms and conditions that

1.  Modify or supplement the terms and conditions (including business and/or financial terms) of this EULA or the License granted to End User pursuant to this EULA; or 
2. Create or modify the terms of a particular Transaction.

5. TERM AND TERMINATION

This EULA shall remain in effect until terminated by End User or by Motion.

Motion reserves the right, in its sole discretion, at any time and for any reason, to suspend or terminate this EULA, with or without prior notice.

This EULA will terminate immediately, without prior notice from Motion, in the event that End User fails to comply with any provision of this EULA. End User may also terminate this EULA by ceasing all usage of the Platform and deleting any downloadable Platform assets, including mobile apps and cached browser files.

Upon termination of this EULA, End User shall immediately cease all use of the Platform and delete all copies of the Platform from End User’s  mobile device or from End User’s  computer.

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6. AMENDMENTS TO THIS EULA

Motion reserves the right, at its sole discretion, to modify or replace this EULA at any time. If a revision is deemed material, we will provide at least 30 days’ notice prior to any new terms taking effect. The determination of what constitutes a material change will be made at our sole discretion.

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7. GENERAL

This EULA sets forth Motion's entire obligation and End User’s exclusive rights with respect to the Platform, and except to the extent otherwise specifically provided in a purchase order or other written communication or advertising signed or jointly issued by both parties with respect to the Platform, supersedes any conflicting terms of any purchase order and any other communication or advertising with respect to the Platform. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected. This EULA will be governed by the laws of the State of Ohio, without regard to its choice of law principles. The United Nations Convention for the International Sale of Goods will not apply.

1. Services provided

Motion shall provide the services described in this Agreement and detailed in Exhibit A.You agree to use our services only for lawful purposes and in accordance with these Terms. You must not engage in any activity that could damage, disrupt, or interfere with the proper functioning of our website or services.

Customer responsibilities

Customer shall:

1. Maintain continuous internet access and power for all applicable systems.
2. Ensure all third-party systems and infrastructure (including but not limited to HVAC, electrical, automation, mechanical, network, and security systems) are properly maintained and operational.
3. Comply with the End User License Agreement (EULA)

2. End user license agreement (EULA)

EULA Notice. This Agreement is made separate from the End User License Agreement (the “EULA”), which can be found here. The EULA is a separate agreement governing end user’s access to and use of Motion’s website, mobile app, or other graphical user interfaces (“Platform”). Customer agrees that the parts of this Agreement involving Motion’s website, mobile app, or other graphical user interfaces are subject to the EULA (and are specifically marked as such), and that all end users, including employees, staff, contractors, owners, executives, and all other persons acting on behalf of Customer in connection with this Agreement may be separately required to agree to be bound by the terms and conditions of the EULA before accessing the Motion’s website, mobile app, or other graphical user interfaces. Any end user’s refusal to agree to the terms and conditions of the EULA shall in no way impact the  validity and acceptance of this Agreement, as Motion will establish and maintain availability of its cloud services for the Motion Hubs covered by this Agreement regardless of whether end users agree to the terms of the EULA.

3. Term, renewal, and pricing

1. Term & Renewal: The term of this Agreement and any renewal term shall be as outlined in Exhibit A: Solution Summary.
2. Pricing & Discounts: The pricing and any applicable discounts shall be specified in Exhibit A.
3. Automatic Renewal: The subscription will  automatically renew for successive one-year terms unless canceled with at least 30 days’ prior written notice.

4. Payment terms

1. Invoices & Payment Due Dates: As detailed in  Exhibit A.
2. Currency: All payments must be made in United States Dollars (USD).
3. Late Payments: If payment is 30 or more days overdue, Motion reserves the right to  suspend or terminate the cloud service without notice.
4. No Refunds: All subscription fees are non-refundable.

5. Warranties and disclaimers

A. Motion software and Motion Hub warranty.

1. Motion warrants that its software, cloud platform, and Motion Hub hardware will perform in substantial accordance with their Documentation under normal operating conditions.
2. In the event the Motion Software or Motion Hub fails in a material respect to operate in accordance with the Documentation during the warranty period and Motion is unable to correct the defect, Motion’s sole and exclusive liability and End User’s sole and exclusive remedy shall be a refund of the License fee, if any, paid by End User for the Software or Motion Hub. In the event a reported problem with the Software or Motion Hub is End User’s fault, End User agrees to reimburse Motion for its correction efforts in accordance with its then standard rates. The foregoing limited warranty will not apply if failure of the Motion Software or Motion Hub is the result of damage or misuse caused by End User.
3. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE MOTION SOFTWARE OR MOTION HUB IS PROVIDED "AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY THAT THE MOTION SOFTWARE OR MOTION HUB IS FREE OF DEFECTS, MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE.

B. No warranty for third-party systems of customer infrastructure.

1. Motion is not responsible for failures caused by:
   
   1. Customer’s internet, network, or power supply.
   2. Any third-party hardware, software, or services that interact with Motion Hubs, including but not limited to:
      
      1. HVAC, electrical, mechanical, security, or automation systems.
      2. Sensors, controllers, or external software integrations.
   3. Customer’s failure to maintain, repair, or configure third-party infrastructure properly.
2. If external factors impact service quality, Motion is not liable for downtime, disruptions, or performance issues.

C. No guarantee of interrupted service.

1. Motion provides services on a commercially reasonable basis and does not guarantee uninterrupted service due to factors outside its control, including but not limited to:
   
   1. Power failures, internet disruptions, or cyber incidents.
   2. Hardware malfunctions are not related to Motion Hubs.
   3. Third-party system updates or modifications.

6. Limitation of Liability

1. Cap on Liability: Motion’s total liability under this Agreement shall not exceed the fees paid by Customer for the Services during the twelve (12) months immediately preceding the date of the claim.
2. In no event will Motion, its affiliates, resellers, or distributors or suppliers be liable for any indirect, special, incidental or consequential damages arising out of the use of or inability to use the Motion Software, Motion Platform or Motion Hub including, without limitation, damages for lost profits, loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof.

7. Indemnification

1. Customer agrees to indemnify, defend, and hold Motion and its affiliates, officers, directors, employees, and agents harmless from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from or related to:
   
   1. Customer’s third-party systems (including HVAC, electrical, automation, etc.).
   2. Network or infrastructure failures beyond Motion’s control.
   3. Unauthorized modifications or misuse of Motion Hubs or software.

8. Confidentiality

1. Both parties agree to keep all non-public, proprietary business information disclosed by the other party confidential and not to disclose it to any third parties without the prior written consent of the disclosing party.

9. Force Majeure

1. Neither party shall be liable for any failure or delay in performing its obligations under this Agreement due to events beyond its reasonable control, including but not limited to natural disasters, acts of war, labor strikes, or system-wide internet failures.

10. Dispute resolution, governing law, and jurisdiction

1. Disputes: Both parties agree to first attempt good-faith negotiations. If unresolved, disputes shall be resolved through binding arbitration in the State of Ohio.
2. Governing Law: This Agreement shall be governed by and construed in accordance with the law of the State of Ohio, without regard to its conflict of laws principles.
3. Jurisdiction and Venue: Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement, exclusively in the state or federal courts located in Franklin County, Ohio, USA. The parties hereby consent to the jurisdiction of such courts and waive any objection to the venue in Franklin County, Ohio.