This MotionHall Terms of Service (the "Terms of Service", together with any Work Orders and any addenda prepared and executed in accordance with the terms of this Agreement (each, an "Addendum", and collectively, the "Addenda"), all as amended from time to time the "Agreement") form an agreement between the customer accessing or otherwise using (the terms "use" and "using" will refer to any of the foregoing) the Services (the "Customer") and MotionHall Inc. ("MotionHall"), and is entered into on the earlier of the date Customer first uses any part of the Services and the date Customer agrees to be bound by this Agreement (the "Effective Date"). Each of MotionHall and Customer will individually be referred to as a "Party" and jointly as the "Parties".
This Agreement sets forth the terms and conditions that govern the MotionHall will: (a) provide MotionHall's proprietary solution for pharmaceutical market intelligence, predictive advisory and deal transactability ("MotionHall Services"); (b) license the MotionHall Software (as defined below); and (c) perform the professional services made available by MotionHall to Customers as described in the Professional Services Addendum ("Professional Services"). The MotionHall Services; Motional Hall Software and the Professional Services are collectively the "Services".
BY USING THE SERVICES (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 12(k). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO MOTIONHALL THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO MOTIONHALL THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
THE SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
MOTIONHALL'S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE SERVICES, EXCEPT WITH MOTIONHALL'S PRIOR WRITTEN CONSENT.
(a) Provisioning of the Services. Subject to Customer's and its Permitted Users' compliance with the terms and conditions of this Agreement, MotionHall will make the Services available to Customer and Permitted Users on the terms and conditions set out in this Agreement during the Term.
(b) Restrictions on Use. Customer will not itself, and will not permit others to:
(i) sub-license, sell, rent, lend, lease or distribute the MotionHall Services, MotionHall Software or any intellectual property rights therein, or otherwise make the Services available to others other than Permitted Users;
(ii) use the Services to permit timesharing, service bureau use or commercially exploit the Services;
(iii) create, produce or publish any derivative works using or containing the MotionHall Property (as defined below), including articles, blog posts, reports, databases, and analytics;
(iv) use or access the Services:
(A) in violation of any applicable law;
(B) in a manner that threatens the security or functionality of the MotionHall Services or MotionHall Software;
(C) to collect any content or information, whether by manually gathering or automated means such as harvesting bots, robots, spiders, or scrapers; or
(D) for any purpose or in any manner not expressly permitted in this Agreement;
(v) use the Services to create, collect, transmit, store, use or process any Customer Data:
(A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
(B) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
(C) that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
(vi) modify the MotionHall Services or MotionHall Software;
(vii) reverse engineer, decompile or disassemble the MotionHall Services or MotionHall Software;
(viii) remove or obscure any proprietary notices or labels on the MotionHall Services or MotionHall Software, including brand, copyright, trademark and patent or patent pending notices;
(ix) access or use the MotionHall Services for the purpose of building a similar or competitive product or service; or
(x) perform any vulnerability, penetration or similar testing of the MotionHall Services or MotionHall Software.
(c) Permitted Purpose. Customer may access and use the MotionHall Services and MotionHall Software solely for Customer's internal business purposes.
(d) Customer's Responsibility for Permitted Users. Customer is responsible for identifying and authenticating all Permitted Users, for ensuring only Permitted Users access and use the MotionHall Services and MotionHall Software, and for Permitted Users' compliance with this Agreement.
(e) Suspension of Access; Scheduled Downtime; Modifications. MotionHall may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
(i) suspend Customer's access to or use of the Services or any component thereof:
(A) for scheduled maintenance;
(B) due to a Force Majeure;
(C) if MotionHall believes in good faith that Customer or any Permitted User has violated any provision of this Agreement;
(D) to address any emergency security concerns;
(E) for non-payment of invoices and Fees for the Services;
(F) if required to do so by a regulatory body or as a result of a change in applicable law; or
(G) for any other reason as provided in this Agreement.
(ii) make any Modifications to the Services.
(f) Professional Services. Subject to the terms and conditions of the Professional Services Addendum, MotionHall may perform Professional Services as may be set out in a Work Order or an applicable statement of work.
(g) Subcontracting. MotionHall may engage third parties to assist it in providing the Services or any part thereof.
(h) Downloadable MotionHall Software. Use of the MotionHall Services may require or include use of downloadable software ("MotionHall Software") to be run directly on Customer's systems ("Customer Systems"). As a result, MotionHall Software, including such software, may automatically download and install updates and upgrades from time to time from MotionHall. These updates are designed to improve, enhance and further develop the MotionHall Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. Customer consents to the installation of MotionHall Software, including updates and upgrades (and authorizes MotionHall to deliver these to Customer) as part of Customer's use of the MotionHall Services. Customer acknowledges that MotionHall Software causes Customer Systems to communicate with MotionHall for the purposes described above. All updates, upgrades and maintenance are included with the Fees. Upgrades will occur on a regular basis with no effort required by Customer. Notifications will be made in advance of any upcoming significant releases, maintenance or other event that may affect the MotionHall Services. Some emergency updates may be communicated after they are delivered. Customer, at its sole expense, agrees to provide compatible Customer Systems for the activation of MotionHall Software and is responsible for upgrading and configuring Customer Systems to remain compatible with any minimum system requirements as required by MotionHall, during the Term. Customer is required to accept all patches, bug fixes and updates made by or on behalf of MotionHall to the MotionHall Services.
(a) In order for Customer to access and use the MotionHall Services, MotionHall will issue, one or more accounts (each a "Customer User Account") to Customer for use by and one or more individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the MotionHall Services (each, a "Permitted User").
(b) Customer will ensure that Permitted Users only use the MotionHall Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer will promptly notify MotionHall of any actual or suspected unauthorized use of the MotionHall Services. MotionHall reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose. Customer will ensure that all individual users of the MotionHall Services, including Permitted Users, are contractually bound to terms and conditions with Customer that are no less restrictive or protective of MotionHall's rights than those set forth in this Agreement.
(a) As between MotionHall and Customer, Customer retains all ownership and intellectual property rights in and to Customer Data. Customer grants to MotionHall a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose and transmit Customer Data to:
(i) provide the Services;
(ii) improve and enhance the Services and its other offerings; and
(iii) produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the "Aggregated Data").
MotionHall may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind. As between MotionHall and Customer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by MotionHall.
(b) MotionHall or its licensors retain all ownership and intellectual property rights in and to:
(i) The Services;
(ii) the MotionHall Services;
(iii) MotionHall Software;
(iv) anything developed or delivered by or on behalf of MotionHall under this Agreement including any Deliverables;
(v) all other MotionHall Confidential Information, including but not limited to, any reports generated from the Services or any Aggregated Data and
(vi) any Modifications to the foregoing (i), (ii), (iii) and (iv), (collectively "MotionHall Property").
(c) Customer grants to MotionHall and it's affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of MotionHall's affiliates' services ("Feedback"). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. MotionHall is not obligated to use any Feedback.
(d) All rights not expressly granted by MotionHall to Customer under this Agreement are reserved.
(a) Fees. Customer will pay to MotionHall the fees described in a Work Order ("Fees"). Unless otherwise noted on a Work Order, all Fees are identified in United States dollars and are payable in advance. Except as otherwise specified herein or in a Work Order:
(i) Fees are based on subscriptions purchased and not actual usage;
(ii) payment obligations are non-cancelable,
(iii) Fees paid are non-refundable; and
(iv) quantities purchased cannot be decreased during the relevant Term.
(b) Changes to the Fees. MotionHall reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than 30 days prior notice to Customer.
(c) Payment Methods. Customer must provide a valid method of payment upon Customer User Account creation. Customer agrees and acknowledges that MotionHall may bill Customer's payment method in accordance with this Agreement or as may be set out in a Work Order.
(d) Late Payment. Without limiting MotionHall's other rights, MotionHall may suspend Customer's access to the Services, if Customer has not paid the applicable Fees within 15 days of the date that such Fees become due. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less).
(e) Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of MotionHall.
(f) Suspension. Any suspension of the Services by MotionHall pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
(a) Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the "Recipient", the Party disclosing such information will be the "Discloser" and "Confidential Information" of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser's past, present or future customers, suppliers, technology or business, and where the Discloser is Customer includes Customer Data; provided that the Discloser's Confidential Information does not include, except with respect to Personal Information:
(i) information already known or independently developed by the Recipient without access to the Discloser's Confidential Information;
(ii) information that is publicly available through no wrongful act of the Recipient; or
(iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
(b) Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement:
(i) disclose Confidential Information of the Discloser to any person, except to:
(A) in the case of Customer to its own employees having a "need to know" and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; or
(B) in the case of MotionHall to MotionHall's employees, consultants, agents or affiliates, having a "need to know" and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing and to MotionHall's subcontractors, sub-processors to perform the Services;
(ii) use Confidential Information of the Discloser; or
(iii) alter or remove from any Confidential Information of the Discloser any proprietary legend.
Each Party will take industry standard precautions to safeguard the other Party's Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
(c) Exceptions to Confidentiality. Notwithstanding Section 7(b), the Recipient may disclose the Discloser's Confidential Information:
(i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or
(ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party's business.
(d) Return of Confidential Information. Upon the termination or expiration of this Agreement and all Work Orders under this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data) of the other Party in its possession or control within a reasonable amount of time, in accordance with the Recipient's data destruction practices. Notwithstanding the foregoing, MotionHall may retain any electronically archived Customer's Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
(a) Customer Warranty. Customer represents and warrants to and covenants with MotionHall that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions, and otherwise has all authority, in each case as required by applicable laws, to enable MotionHall to provide the MotionHall Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to MotionHall and to or from all applicable third parties.
(b) GENERAL DISCLAIMER. MOTIONHALL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY MOTIONHALL TO CUSTOMER ARE PROVIDED "AS IS" AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOTIONHALL HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, MOTIONHALL EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER'S USE OF THE SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
(a) Provider Indemnity. MotionHall will indemnify, defend, and hold harmless the Customer and its officers, directors, employees, and agents (each, a "Customer Indemnitee") from and against all Losses incurred by a Customer Indemnitee arising out of or relating to any Action by a third party (other than an affiliate or a Customer Indemnitee) that arise from or relate to any allegation that the MotionHall Software infringe any third-party intellectual property Right in Canada. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
(ii) modification of any MotionHall Software other than by MotionHall or with MotionHall's express written approval; or
(iii) unauthorized use of the MotionHall Software or MotionHall Services; or
(iv) Customer's indemnity in Section 9(b). This Section 9(a) states the MotionHall's sole liability to, and the Customer Indemnitees exclusive remedy against, MotionHall for any third party claim described in this section.
(b) Customer Indemnity. The Customer will defend, indemnify and hold harmless MotionHall, and its officers, directors, employees and agents (each, a "Provider Indemnitee") from and against any and all Losses incurred by a Provider Indemnitee arising out of or relating to any Action by a third party (other than an affiliate of a Provider Indemnitee) that arise from or relate to:
(i) Customer Data;
(ii) Customer's breach of any of Customer's obligations, representations, warranties or covenants under this Agreement;
(iii) unauthorized use of the Services by the Customer or any Permitted User; or
(iv) use of the MotionHall Services or MotionHall Software (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service. Customer will fully cooperate with MotionHall in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of MotionHall.
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(a) AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MOTIONHALL IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE LESSOR OF EITHER:
(A) THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE MOTIONHALL SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR
(B) $10,000. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL MOTIONHALL'S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(b) TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL MOTIONHALL BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY:
(I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES;
(II) LOST OR LOSS OF
(D) USE, OR
(III) BUSINESS INTERRUPTION;
(IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES;
(V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
(a) Term. A subscription to Services will commence on the Effective Date and will continue in full force and effect for the period described on the Work Order, unless terminated earlier pursuant to this Agreement (the "Term").
(b) Renewal: If provided for in the Work Order, the Term will renew automatically on the terms in the Work Order unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the then-current Term.
(c) Termination. Notwithstanding any other Section of this Agreement, MotionHall may, in its discretion, terminate the Services at any time by providing at least 30 days advance written notice to Customer. MotionHall may, in addition to other relief, terminate this Agreement if the Customer commits a material breach of this Agreement and fails to correct such breach within 30 calendar days after receipt of notice of such breach. MotionHall may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to Customer if Customer becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.
(d) Effect of Termination. Upon expiration or earlier termination of this Agreement, Customer will immediately discontinue use of the MotionHall Services, MotionHall Software and Customer will delete or, if requested by MotionHall, return any MotionHall Property in its possession, and certify in writing to the MotionHall that the MotionHall Property has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle the Customer to any refund. All Fees due and payable and any amounts due to MotionHall are immediately due and are to be immediately paid by Customer to MotionHall.
(e) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 6 (Fees and Payment), Section 7 (Confidential Information), Section 8 (Warranty and Disclaimer), Section 9 (Indemnities), Section 10 (Limitation of Liabilities), this Section 11(e) (Survival), and Section 12 (General Provisions).
(a) Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to MotionHall, to the following MotionHall's address and email contact:
and (ii) if to Customer, to the current mailing or email address that MotionHall has on file with respect to Customer. MotionHall may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer's contact information on file with MotionHall current at all times during the Term.
(b) Assignment. Customer may not assign this Agreement to any third party without MotionHall's prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. MotionHall may assign this Agreement or any rights under this Agreement to any third party without Customer's consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
(c) Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in British Columbia, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent MotionHall from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
(d) Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the Services. MotionHall makes no representation or warranty that the Services or any part thereof may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.
(e) Construction. Except as otherwise provided in this Agreement, the Parties' rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms "include" and "including" mean, respectively, "include without limitation" and "including without limitation." The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms "consent" or "discretion" mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
(f) Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party's reasonable control (except for a failure by Customer to pay Fees or Customer's indemnities under this Agreement), including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party's employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites ("Force Majeure"). For clarity, a Force Majeure event will not excuse the Customer from its failure to pay Fees or Customer's indemnities under this Agreement.
(g) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
(h) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(i) Independent Contractors. MotionHall's relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
(j) Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
(k) Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, MotionHall MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN "AMENDMENT"), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY MotionHall, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
(l) Customer Lists. With the prior written consent of the Customer, MotionHall may identify the Customer by name and logo as a MotionHall customer on the Website and on other promotional materials. Any goodwill arising from the use of the Customer's name and logo will inure to the benefit of the Customer.
(m) English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C'est la volonté expresse des Parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.
(a) "Action" means any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise.
(b) "Customer Data" means any data, information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or makes available to the MotionHall Services, including but not limited to Personal Information, excluding Aggregated Data and any other MotionHall Property.
(c) "Deliverables" has the meaning in the Professional Services Addendum.
(d) "Loss" or "Losses" means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
(e) "Modifications" means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and "Modify" has a corresponding meaning.
(f) "Personal Information" means information about an identifiable individual.
(g) "Professional Services Addendum" means an addendum to this Agreement related to Professional Services and posted on the Website.
(h) "Website" means any websites used by MotionHall to provide the Services, including the websites located at www.motionhall.com.
(i) "Work Order" means a work order that references these Terms of Service and that is executed by both Parties or otherwise accepted by Customer.