The Site is a business service made available to you by MOTION. All of the content, software and services available through the Site, including but not limited to P2MRO and any subscription services, whether offered by MOTION or a third party link provided by the Site are referred to herein as the “Services.”
“Designated Equipment” shall mean the Licensee owned equipment enrolled in the P²MRO program.
“Licensee” Shall refer to you or any user authorized by you to use the Services and any legal entity that you represent.
“Licensee Data” shall mean the Licensee specific information created by Licensee or collected from Licensee, including all System Data, subsequently stored by MOTION on the “Motion System” and made available to Licensee for use or download by Licensee.
“Motion System” shall mean the cloud or other storage system maintained by MOTION.
“Software” shall include all P²MRO application programs, software, and related materials and documentation, which include web based, machine-readable or printed form, and any updates furnished by MOTION to Licensee.
“System Data” shall mean all data provided to or collected by MOTION in connection with Licensee’s use of and connection to the Services including, without limitation, all data provided through Third Party Devices.
“Third Party Device” shall mean any third party diagnostic device, including its embedded or associated software that connects the Licensee’s equipment to the Software. Third Party Devices may include devices sold or provided by MOTION.
REGISTRATION; ACCOUNTS Any purchase order form you submit in connection with the Services shall include all information which MOTION requires to enable MOTION to provide the Services for you, including your company name, the number of Authorized Users, as applicable, and any other instructions or requirements pertinent to your use of the Services. You are responsible for (a) protecting and safeguarding any keys, certificates, passwords, access codes, user IDs or other credentials and login information that have been provided to you or that are generated in connection with your use of the Services and (b) all activities that occur in connection with your account. You agree to provide true, current and accurate information to MOTION as required for your Authorized Users to access and use the Services and you will update such information as necessary from time to time, including in connection with any changes to such information. You must be at least 13 years of age to use the Services. Verification of your age may be requested or required in connection with your use of all or a portion of the Services. Should MOTION suspect that your personal data provided is not accurate or complete, MOTION may suspend or terminate your access to the Services.
CHANGES TO SERVICES. MOTION may improve or change the Services with or without prior notice to you, Authorized Users or others. MOTION may also update or revise its documentation relating to the Services during the Term with or without prior notice.
THIRD PARTY SOFTWARE. Licensee acknowledges that applications related to or embedded in the Software may include third party software, and Licensee agrees to abide by all applicable third party software terms and conditions as they relate to the Software.
THIRD PARTY DIAGNOSTIC EQUIPMENT. Licensee acknowledges Software will connect with the Third Party Devices, and Licensee agrees to abide by the terms and conditions governing the Third Party Devices as they relate to the Software. Licensee is responsible for obtaining all licenses, approvals or consents necessary to permit the Software to interface with the Third Party Devices, and Licensee hereby grants MOTION the right to interface with the Third Party Devices connected to the Designated Equipment. Licensee shall be responsible for selecting and maintaining the appropriate Third Party Devices and configuring it to connect with the Software, and Licensee acknowledges and agrees that MOTION is not responsible for the performance or operation of the Third Party Devices.
2. Licensee may make a reasonable number of copies of the Software solely as necessary for backup, archival, and testing purposes. Licensee may not otherwise copy the Software or distribute or transfer the Software or modify, or create derivative works of the Software, in whole or in part without the prior written consent of MOTION. Additionally, System Data may not be reproduced, copied, modified, translated, reverse engineered, or disassembled in whole or in part, without the express written consent of MOTION.
3. The Software, Services and System Data may only be used in conjunction with the Designated Equipment and approved Third Party Devices.
4. Licensee shall not remove, alter, or destroy any form of copyright notice, proprietary markings, or confidential legends placed upon or contained with the Software, Services or related equipment.
6. Licensee must adhere to any P²MRO-related agreements that may be signed in connection with an upgrade from older P²MRO Designated Equipment under license with MOTION, by fully retiring the original P²MRO Designated Equipment from any future use. Failure to comply with this stipulation will void any reduced upgrade Software license fee, and Licensee will be charged for a full hardware system license as a result.
8. In consideration of the grant of this License by MOTION, Licensee agrees to take appropriate action by instruction, agreement, or otherwise with its employees or other persons permitted access to the Software, Services, Designated Equipment, and/or System Data to ensure that the restrictions set forth above are understood and followed, and that the confidentiality of the Confidential Information, the Software, Services and/or the System Data shall be secured and protected.
Upon termination, all licenses granted hereunder shall immediately terminate. Licensee shall immediately cease all use of the Software, Services, the Confidential Information and Trade Secrets (as defined below), or any portion or derivative thereof, including but not limited to printouts and downloaded information and any documentation relating to the Software or Services, and shall return all copies and all derivatives thereof to MOTION or certify to MOTION in writing within thirty (30) days of termination that all copies of the Software, Services, Confidential Information and Trade Secrets and other materials, and all derivatives thereof, have been destroyed. MOTION shall retain Licensee Data for a period of 30 days, and may thereafter elect to return or destroy all such Licensee Data.
MAINTENANCE/MODIFICATION OF SOFTWARE AND EQUIPMENT AND DATA
1. MOTION and its third party service providers reserve the right to access and make changes to the Software and Services at any time without prior notice to Licensee. Such changes may include but are not limited to, changes to rules of operation, implementation of security measures, changes to accessibility policies and procedures, changes in types of terminal equipment and types of programming languages.
2. Licensee shall bear the sole responsibility of obtaining, maintaining, and operating at Licensee’s own expense all additionally required equipment and software needed in order to use the Software and Services. The minimum requirements may be updated from time to time by MOTION.
3. Subject to the provisions relating to Licensee Data in the section above captioned “TERM AND TERMINATION”, Licensee Data will be stored for a period of two years from the date such data is created. MOTION reserves the right to purge Licensee Data after two years from the date such data is first created and within thirty days of any termination, expiration or non-renewal of this Agreement.
WARRANTY/LIMITATION OF LIABILITY. THE SOFTWARE AND SERVICES ARE PROVIDED TO LICENSEE HEREUNDER ON AN “AS IS” BASIS. MOTION MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SOFTWARE, SERVICES OR ANY THIRD PARTY DEVICES. MOTION DOES NOT WARRANT THAT THE SOFTWARE, SERVICES AND EQUIPMENT WILL MEET LICENSEE’S NEEDS, THAT THE OPERATION OF THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, OR THAT THE SOFTWARE, SERVICES OR ANY THIRD PARTY DEVICES WILL BE COMPATIBLE WITH THE LICENSEE’S NETWORK, HARDWARE COMPONENTS, OR OTHER EQUIPMENT. MOTION DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OR ANY OTHER TERMS AND CONDITIONS REGARDING ANY SOFT¬WARE, SERVICES, EQUIPMENT, OR SYSTEM DATA LICENSED HEREUNDER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTIES ARISING BY STATUTE OR IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
UNDER NO CIRCUMSTANCES SHALL MOTION BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAM¬AGES ARISING FROM ANY SOFTWARE, SERVICES OR SYSTEM DATA LICENSED HEREUNDER OR ANY LOSS OF LICENSEE DATA ON THE MOTION SYSTEM, EVEN IF MOTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states do not allow the exclusion or limitation of liability or consequential or incidental damages, so the above limitation may not apply. MOTION’s entire liability and Licensee’s exclusive remedy for any failures of the Software, Services. Designated Equipment, or the System Data shall be, at MOTION’s option, either the return of the license fee or the replacement of the Software, Services and/or equipment.
EXPORT RESTRICTIONS. Without limiting the generality of your obligation to comply with all applicable laws, you agree to comply with any applicable export and import laws and regulations that apply to its use of the Software and Services. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Software or Services or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Order Forms or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (a) neither you nor any Authorized User is located in or will access the Software or Services from any country that is subject to a U.S. trade embargo, and (b) neither you nor any Authorized User is on any restricted party list maintained by the U.S. government (e.g. the Specially Designated Nationals list, the Unverified List) and you agree to notify MOTION promptly if you or any Authorized User appears on any such restricted party list during the Term.
SECTION HEADINGS. Section titles or captions contained herein are inserted only as a matter of convenience for reference and in no way define, limit, extend, or describe the scope hereof or the intent of any provision hereof.