TERMS & CONDITIONS
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 DASHBOARD.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, YOU AGREE TO BE BOUND BY THIS AGREEMENT.
1. ACCEPTANCE OF TERMS & 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 (dashboard.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.
Account: Arrangement by which Customer or Customer representative has access to Customer’s Content using Motionloft’s Site.
Content: policy information, text, Data, location data, advice, suggestions, software, 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.
Data: The vehicle and pedestrian count data that is generated through the Sensor(s) and Customer is provided access to under the Motionloft Service Order, including the online and downloadable reports, graphs, and charts, API access, and .CSV files available to the Customer on Motionloft’s Site.
Location: Specific install points for Sensor(s).
Materials: All installation supplies for Sensor(s).
Sensor(s): Electronic device(s) used to provide Data analytics and metrics for pedestrian and vehicle counts.
Power Equipment: All battery and solar equipment sold to Customer that provides power to Sensor(s) when primary source of power is unavailable (e.g. solar kit, battery back-up kit)
Service: Data analytics and metrics service and any related products or service provided by Motionloft.
The term of this Agreement begins on the date we activate Services for your Account and Data is delivered to the Customer. This Agreement will continue until terminated by either party pursuant to the terms hereof.
A. Termination for Convenience
I. 1 Year or less Term
Customer agrees and understands that there is no termination for convenience during the Term of this Agreement.
II. Term of 2 + Years
Customer shall have the right to terminate a Service Order for convenience by giving not less than [30 Days] prior written notice, provided that no such termination shall be effective sooner than the date that is twelve (12) months after the start of the Initial Term. In such case, the Customer shall pay the difference between the total amount paid by Customer through the termination date and the full Motionloft List Price the Customer would have paid through the termination date for a contract of the same duration, which amount will not exceed the total contract value.
5. PAYMENT & INVOICING
All payment terms are outlined in the Service Order. Payment obligations are non-cancellable and all fees paid by Customer are non-refundable. Customer will be responsible to update their billing contact as needed.
A. Under 12 Months Term
Motionloft will invoice Customer for the full term upon successful installation of the Sensor(s) and when Customer is granted access to Sensor(s) Data (“Installation Date”). All payment terms are Net 30.
B. 1 Year Term
Motionloft will invoice Customer for the full term upon successful installation of the Sensor(s) and when Customer is granted access to Sensor(s) Data (“Installation Date”). All payment terms are Net 30.
C. 2+ Year Terms
Motionloft will invoice Customer for the Installation Fees, and the first annual Hardware and Service Fees upon successful installation of the Sensor(s) and when Customer is granted access to Sensor(s) Data (“Installation Date”). Subsequent invoices will be issued on each subsequent one-year anniversary of the Installation Date during the Term of the Service Order. All payment terms are Net 30.
Motionloft will add all applicable sales tax and use tax to the fees set forth herein in each Service Order. Customer is responsible for paying all taxes associated with its purchase of Motionloft Sensor(s), Power Equipment, and Services. If Motionloft has the legal obligation to collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Motionloft with a valid tax exemption certificate from the appropriate taxing authority.
7. AUTOMATIC RENEWAL
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 upon the same Terms and Conditions contained herein. If this Agreement renews as set forth herein, we will invoice you on a monthly basis, in advance, at Motionloft’s standard non-discounted monthly service fee, until you provide written notice that you wish not to continue the Service. The terms of this Agreement govern all renewals.
8. SERVICE AVAILABILITY
Please see the Motionloft Service Level Agreement for more details of our Service Availability and scope of our services.
9. 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) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (b) 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); (c) run Maillist, Listserv, any form of auto-responder or “spam” on the Service; or (d) 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.
10. INTELLECTUAL PROPERTY OWNERSHIP; LIMITED LICENSE
A. Motionloft’s Ownership Rights
All Materials, Services, Accounts, Data, and Content are provided by Motionloft unless indicated otherwise. All intellectual property rights in the Sensor(s), Services, Accounts, Data, 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, Data stored in Motionloft’s databases, and Content are copyrighted and are protected by federal and worldwide copyright laws and treaty provisions. Your use of the Motionloft Services, Account, Data, and Content does not grant you any ownership right or intellectual property right therein. Your purchase of Sensor(s) does not mean that you own any Intellectual Property rights in the Sensor(s), Services, Accounts, Data, and Content. Trademarks and copyrights, including the word “Motionloft”, and the Motionloft logo and the service mark MOTIONLOFT¨, are the property of Motionloft. All other names and trademarks are the property of their respective holders. Customer acknowledges that Motionloft has the right to use the Data in an aggregated and anonymous fashion in its algorithms and for reporting or resale, but will never associate any Data to a specific Customer name or specific Customer Location on resale.
B. Limited License; Use of Data
Notwithstanding anything to the contrary and subject to the confidentiality terms of this Agreement, during the term of this Agreement Motionloft grants Customer a non-exclusive license and right to download, use, copy, reproduce, retain, distribute, transmit, display, disclose, report, publish the Data collected for all Customer’s Locations and displayed on the Dashboard as it sees fit for business purposes (the “License”), but not for resale. Motionloft agrees that Customer shall have the right to access the Dashboard to download and copy all historical Data collected for all Customer’s Locations in connection with this Agreement during the Term of this Agreement and for 90 days after the termination of all contracts entered into between Customer and Motionloft, at no additional cost to Customer.
If the Customer alters, modifies or edits the Data, Customer shall remove all of Motionloft’s names, logos, service marks, trademarks, and trade names from all work or works that Customer has altered, modified, or edited.
11. SENSOR INSTALLATIONS AND MAINTENANCE
You hereby agree to permit us to install Sensor(s) (collectively one or more Sensor(s)s are referred to in this agreement simply as a “Sensor(s)” in your Location. Sensor(s) 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 in order 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 Sensor(s) caused by you, your agents, representatives, contractors, employees, invitees, licensees, or any other causes outside of Motionloft’s reasonable control.
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 in the Motionloft Data Proposal subject to the following installation parameters:
- Installation height is up to 14 feet (Sensor location is ladder accessible).
- Installation location is on a window, wall, or light pole.
- Installation Time (Local) is between 6 am – 8 pm.
- Standard 110v Power Outlet is within 30 feet of Sensor(s) Location.
- Additional equipment or labor fees associated with a non-standard installation (i.e. scissor lift rental, bucket truck, or additional labor hours) must be approved by Customer in advance and in writing on the Order(s) and will be charged to Customer at Motionloft’s cost plus 10%.
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(s) 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 $1,000,000 per occurrence, $2,000,000 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(s) that faces outside.
d) Agree not to handle the Sensor(s) 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(s) 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(s), and we will send someone to do that. Additional charges will apply if Motionloft moves a Sensor per Customer’s request.
i) Understand that when a Service Order includes Hardware rental, the Sensor(s) remain Motionloft’s property, and Customer agrees to pay Motionloft $1,000 for each Sensor that is not returned to Motionloft at the end of the Term, or is damaged beyond repair. No loss or damage of Sensor(s) shall relieve Customer of any obligation to pay for the Services remaining on the Term.
j) Represent and warrant that you are Property Owner or Manager of the Location or have obtained permission from the Property Owner or Manager 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) Agree that at the end of the Term, Motionloft will remove the Sensor(s) 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. If you purchased Sensor(s) and/or Power Equipment, you are responsible for the removal and appropriate disposal of the Sensor(s) and Power Equipment at the end of the Term.
l) If Customer is required to install power outlets or other electrical work at Customer’s Location for the Sensor(s), Customer will be invoiced directly from the electrician for the work completed and Customer understands that Motionloft assumes no liability for damages to persons or property caused by any defect therein.
A. By Motionloft
Except to the extent of Customer’s negligence, willful misconduct or breach of this agreement, Motionloft agrees to defend and indemnify, and hold harmless 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 Customer’s receipt of written notice of the Claim.
B. By Customer
Except to the extent of Motionloft’s negligence, willful misconduct or breach of this agreement, Customer agrees 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) Customer’s use of the Services, (b) any other person’s use of any account Customer maintains, regardless of whether such use is authorized by Customer, or (c) Customer’s promises or statements made in this Agreement, including any breaches of representations or warranties. Notwithstanding the foregoing, Customer 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. Customer will be liable to Motionloft with respect to any Claims only if Motionloft gives Customer written notice thereof no later than 45 days following Motionloft’s receipt of written notice of the Claim
C. Intellectual Property Infringement
In the event that a claim for which Motionloft is obligated under Section 9(A) to provide indemnity relates to an alleged infringement of third-party intellectual property rights, Motionloft may, at its option and expense, and in lieu of any indemnity obligation provided in Section 9(A): (a) procure for Customer the right to continue using the Sensor(s) or Service, (b) modify the Sensor(s) or Service so that they become non-infringing, or (c) terminate the Agreement and grant Customer a credit for any fee already paid for the Service that has not yet been provided by Motionloft. Motionloft and Customer further specifically agree that compliance with this Section 9(C) satisfies all of Motionloft’s obligations under this Agreement, including but not limited to its indemnity obligation. The parties agree that these indemnification provisions shall apply to the fullest extent permitted by law and shall survive termination of this Agreement.
D. CONFIDENTIAL INFORMATION
As used throughout this Agreement, Confidential Information means information not generally known to third parties and which is proprietary to the Party disclosing such information (the “Disclosing Party”) including information 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 Disclosing Party. All information of the Disclosing Party that is disclosed to the other Party (the “Receiving Party”) or to which the other Party obtains access, whether originated by the Receiving Party or by the Disclosing Party or others, shall be presumed to be Confidential Information.
The Parties shall, at all times, both during the term of this Agreement and thereafter for a period of three (3) years, keep in confidence all Confidential Information received from Disclosing Party. Receiving Party shall not use the Confidential Information of Disclosing Party, other than as expressly permitted under the terms of this Agreement or by a separate written agreement. Receiving Party shall take reasonable steps to prevent unauthorized disclosure or use of Confidential Information of Disclosing Party and to prevent it from falling into the public domain or into the possession of unauthorized persons or entities. Receiving Party shall not disclose Confidential Information of Disclosing Party 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, Receiving Party shall promptly return any and all Confidential Information to Disclosing Party.
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 this section 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.
A. Service Warranty
Other than the warranties provided in the Motionloft Service Level Agreement, we make no representations or warranties regarding the Sensor(s), Data, 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. Motionloft does not guarantee specific results from the use of the Services. Motionloft makes no warranty that the Service will be free of viruses and harmful code, or timely, secure.
B. Sensor Warranty
For Sensor(s) installed under a standard Service Agreement, Motionloft agrees to maintain, repair and replace the Sensor(s) as necessary to keep them functioning as intended in a like-new condition.
C. Two (2) Year Limited Warranty
If you purchased the Sensor(s) and/or Power Equipment as a part of your Services, Motionloft warrants that the Sensor(s) and/or Power Equipment shall be free from material defect for a period of two (2) years from the date of delivery and installation (“Warranty Period”). During the Warranty Period, Motionloft shall repair or replace the Sensor(s) and/or Power Equipment if it becomes defective at no cost to Customer, on the condition that defect has not been willfully or negligently caused by Customer.
15. LIMITATION OF LIABILITY
IN NO EVENT SHALL MOTIONLOFT, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, 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. 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. MOTIONLOFT DOES REPRESENT AND WARRANT THAT WITH REGARD TO PROTECTING AND SECURING THE WEBSITE, MATERIALS, CONTENT, SERVICES AND ACCOUNTS, IT SHALL DEPLOY INDUSTRY STANDARD SOFTWARE AND EMPLOY PROCEDURES SUFFICIENT TO OBTAIN A QUALYS® SECURE SEAL FOR THE SITE. 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, MATERIAL, CONTENT, SERVICE, 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.
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. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES.
17. 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, Data, 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, Data, Content, Services and Accounts.
Either Party may assign all or part of its rights or duties under this Agreement in connection with a sale of all or substantially all the assets of the party to a third party without notice; provided any such third party shall be obliged to honor the terms of this Agreement.
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 on the Service Order or at such other address as you shall have furnished to us in writing, or (b) if to us, at:
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.
20. 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.
21. 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. Each party agrees that all claims and matters may be heard and determined in any such court and each party waives any right to object to such filing on venue, forum non-convenient, or similar grounds.
22. FORCE MAJEURE
No Party shall be deemed in default of this Agreement to the extent that any delay or failure in the performance of its obligations under this Agreement results from any cause beyond its reasonable control and without its fault or negligence, such as acts of God, acts of Governmental Authority, embargoes, epidemics, war, riots, insurrections, acts of terrorism, fires, explosions, earthquakes, floods, unusually severe weather conditions.
23. GENERAL INFORMATION, PUBLICITY, ENTIRE AGREEMENT
If any provision of this agreement shall be declared by any court of competent jurisdiction to be illegal, void, or unenforceable, the other provisions shall not be affected but shall remain in full force and effect.
You hereby consent to Motionloft publicizing the existence, (but not the terms) of the relationship including logo and name, contemplated hereunder as a part of promotional and marketing activities from time to time by Motionloft.
This Agreement, Service Order, and any Exhibits attached hereto constitutes the entire agreement between Motionloft and you with respect to Motionloft Site, Materials, Content, Services, and your Account and it supersedes any and all prior arrangements, representations, promises, understandings, negotiations, communications, and conditions in connection with said matters and any representations, promises or conditions not expressly incorporated herein or therein or expressly made a part hereof or thereof shall not be binding upon any party. If there is any conflict or inconsistency between the terms and conditions set forth in the main body of this Agreement and any other document and agreement, the provisions of this Agreement and Service Order shall control with respect to the rights and obligations. The failure of either Party to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.