Cloud subscription terms of service and end user license agreement

Terms of Service

This Annual Cloud Subscription Agreement (the "Agreement") is entered into by and between Motion LLC ("Motion"), with its principal place of business at 7520 Clover Ave., Suite 13, Mentor, OH 44060, and the customer identified in Exhibit A: Solution Summary (the "Customer").This Agreement, along with Exhibit A: Solution Summary, outlines the subscription-based cloud services provided by Motion and the Customer’s rights and obligations.

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 on Page 6 of this document.. 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.