Software End User License Agreement
This End User License Agreement, including the Subscription
Form which by this reference is incorporated herein (this “Agreement“), is a binding
agreement between MOTION GENERATION and the user utilizing the workflows on MOTION
GENERATION.com (“Customer“).
MOTION GENERATION PROVIDES ACCESS TO THE WORKFLOWS SOLELY ON
THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER
ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON
DURING THE SUBSCRIPTION PHASE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER
IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE
[18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT]; AND
(II) THAT YOU ARE A LICENSED ATTORNEY IN CALIFORNIA IN GOOD STANDING WITH THE
CALIFORNIA BAR. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, MOTION
GENERATION WILL NOT AND DOES NOT AGREE TO PROVIDE ACCESS TO CUSTOMER AND YOU
MUST NOT UTILIZE MOTION GENERATION.COM OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT
OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS
GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT,
AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT CUSTOMER
DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF MOTION
GENERATION’S SOFTWARE.
1.
Definitions. For purposes of this Agreement, the following
terms have the following meanings:
“Authorized Users” means solely those individuals authorized to
use MOTION GENERATION.com pursuant to the license granted under this Agreement,
and who have been approved by the admins at MOTION GENERATION.
“Documentation” means user manuals, technical manuals, and any
other materials provided by MOTION GENERATION, in printed, electronic, or other
form, that describe the operation, use, or technical specifications of MOTION
GENERATION.com.
“Intellectual Property Rights” means any and all registered and
unregistered rights granted, applied for, or otherwise now or hereafter in
existence under or related to any patent, copyright, trademark, trade secret,
database protection, or other intellectual property rights laws, and all similar
or equivalent rights or forms of protection, in any part of the world.
“Customer” has the meaning set forth in the preamble.
“Subscription Fees” means the Subscription Fees, including all
taxes thereon, paid [or required to be paid] by Customer for the access and use
granted under this Agreement.
“MOTION GENERATION” has the meaning set forth in the preamble.
“Subscription Form” means the subscription form filled out and
submitted by the Customer, and accepted by MOTION GENERATION, for Customer’s use
of and access to MOTIONGENERATION.com granted under this Agreement.
“Person” means an individual, corporation, partnership, joint
venture, limited liability company, governmental authority, unincorporated
organization, trust, association, or other entity.
“Software” means MOTIONGENERATION.com programs and workflows
for which Customer is purchasing a license, as expressly set forth in the Subscription
Form.
“Term” has the meaning set forth in Section 11.
“Third Party” means any Person other than Customer or MOTION
GENERATION.
“Update” has the meaning set forth in Section 7(b).
2.
Grant and Scope of
License to use products. Subject to and conditioned upon Customer’s
payment of the Subscription Fees and Customer’s strict compliance with all
terms and conditions set forth in this Agreement, MOTION GENERATION hereby
grants to Customer the right to utilize the workflows contained on MotionGeneration.com
and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement.
3.
[Third-Party Materials. MotionGeneration.com utilizes
third party software and webservices in order to function. Customer
acknowledges this and consents to the use of these services. The workflows themselves
and all data that the customer inputs is contained on gavel.io’s servers. Gavel.io’s
terms of service can be found here: https://www.gavel.io/terms;
and their privacy policy can be found here: https://www.gavel.io/privacy.
4.
Use Restrictions. Customer shall not, directly or indirectly:
(a)
use (including make any copies of) MotionGeneration.com;
(b)
provide any other Person, including any subcontractor,
independent contractor, affiliate, or service provider of Customer, with access
to or use of MotionGeneration.com or Documentation;
(c)
modify, translate, adapt, or otherwise create
derivative works or improvements, whether or not patentable, of MotionGeneration.com
or Documentation or any part thereof;
(d)
combine MotionGeneration.com or any part thereof with,
or incorporate MotionGeneration.com or any part thereof in, any other programs,
without the express consent of Motion Generation;
(e)
reverse engineer, disassemble, decompile, decode, or
otherwise attempt to derive or gain access to the source code of MotionGeneration.com
or any part thereof;
(f)
remove, delete, alter, or obscure any trademarks or any
copyright, trademark, patent, or other intellectual property or proprietary
rights notices provided on or with MotionGeneration.com or Documentation,
including any copy thereof;
(g)
copy MotionGeneration.com or Documentation, in whole or
in part;
(h)
rent, lease, lend, sell, sublicense, assign,
distribute, publish, transfer, or otherwise make available MotionGeneration.com
, or any features or functionality of MotionGeneration.com , to any Third Party
for any reason, whether or not over a network or on a hosted basis, including
in connection with the internet or any web hosting, wide area network (WAN),
virtual private network (VPN), virtualization, time-sharing, service bureau,
software as a service, cloud, or other technology or service;
(i)
use MotionGeneration.com or Documentation in violation
of any law, regulation, or rule; or
(j)
use MotionGeneration.com or Documentation for purposes
of competitive analysis of MotionGeneration.com , the development of a
competing software product or service, or any other purpose that is to the MOTION
GENERATION’s commercial disadvantage.
(k)
Provide access to motion generation to anyone other
than the approved account user.
5.
Responsibility
for Use of Software. Customer is responsible and liable for all
uses of MotionGeneration.com and Documentation through access thereto provided
by Customer, directly or indirectly. Specifically, and without limiting the generality
of the foregoing, Customer is responsible and liable for all actions and
failures to take required actions with respect to MotionGeneration.com and
Documentation by its Authorized Users or by any other Person to whom Customer
or an Authorized User may provide access to or use of MotionGeneration.com and/or
Documentation, whether such access or use is permitted by or in violation of
this Agreement. The business of Motion Generation is to assist litigation
attorneys in the initial drafting of legal documents. Motion Generation makes
no representation regarding the accuracy of the documents generated from the
use of the workflows, other than that they are merely first drafts, and still
require the practiced eyes of qualified attorneys to review and finalize them
before they can be used in legal practice. As such Customer is responsible for not
only correctly inputting all information into the workflows, but also for
finalizing each document that is generated as a result.
6.
Collection and Use of Information.
(a)
Customer acknowledges that MOTION GENERATION may,
directly or indirectly through the services of Third Parties, collect and store
information regarding use of MotionGeneration.com and about equipment on which MotionGeneration.com
is used or through which it otherwise is accessed, through:
(i)
the provision of maintenance and support services[./;
and]
(ii)
security measures included in MotionGeneration.com as
described in Section 6.]
(b)
Customer agrees that the MOTION GENERATION may use such
information for any purpose related to any use of MotionGeneration.com by Customer
or on Customer’s equipment, including but not limited to:
(i)
improving the performance of MotionGeneration.com or
developing Updates; and
(ii)
verifying Customer’s compliance with the terms of this
Agreement and enforcing the MOTION GENERATION’s rights, including all
Intellectual Property Rights in and to MotionGeneration.com .
7.
Intellectual Property Rights. Customer acknowledges and
agrees that MotionGeneration.com and Documentation are provided under limited
license, and not sold, to Customer. Customer does not acquire any ownership
interest in MotionGeneration.com or Documentation under this Agreement, or any
other rights thereto, other than to use the same in accordance with the license
granted and subject to all terms, conditions, and restrictions under this
Agreement. MOTION GENERATION reserves
and shall retain its entire right, title, and interest in and to MotionGeneration.com
and all Intellectual Property Rights arising out of or relating to MotionGeneration.com
, except as expressly granted to the Customer in this Agreement. Customer shall
use commercially reasonable efforts to safeguard Motion Generation from
infringement, misappropriation, theft, misuse, or unauthorized access. Customer
shall promptly notify MOTION GENERATION if Customer becomes aware of any
infringement of the MOTION GENERATION’s Intellectual Property Rights in MotionGeneration.com
and fully cooperate with MOTION GENERATION in any legal action taken by MOTION
GENERATION to enforce its Intellectual Property Rights.
8.
PAYMENT.
All Subscription Fees are payable in advance in the manner set forth in the Subscription
Form and are non-refundable, except at the sole discretion of MotionGeneration].
Any renewal of the license or maintenance and support services hereunder shall
not be effective until the fees for such renewal have been paid in full.
9.
Term and Termination.
(a)
This Agreement and the license granted hereunder shall
remain in effect for as long as Customer maintains their subscription, or until
terminated as set forth herein (the “Term“).
(b)
Customer may terminate this Agreement by ceasing to use
and cancelling Customer’s subscription on MotionGeneration.com.
(c)
MOTION GENERATION may terminate this Agreement,
effective upon written notice to Customer.
10.
[Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty
Disclaimer].
(a)
MOTIONGENERATION.COM AND DOCUMENTATION ARE PROVIDED TO CUSTOMER
“AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, MOTION GENERATION, ON ITS
OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE MOTION
GENERATIONS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO MOTIONGENERATION.COM
AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY
ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE
PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE MOTION GENERATION PROVIDES
NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE
LICENSED SOFTWARE WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED
RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS,
OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY
STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE
CORRECTED.
11.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW:
(a)
IN NO EVENT WILL MOTION GENERATION OR ITS AFFILIATES,
OR ANY OF ITS OR THEIR RESPECTIVE MOTION GENERATIONS OR SERVICE PROVIDERS, BE
LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR
INABILITY TO USE MOTIONGENERATION.COM ; LOST REVENUES OR PROFITS; DELAYS,
INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF
DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR
SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION;
FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR
PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM
SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL,
OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE,
REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE MOTION
GENERATION WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b)
IN NO EVENT WILL MOTION GENERATION’S AND ITS
AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE MOTION GENERATIONS’ AND
SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH
THIS AGREEMENTOR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY,
INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY,
AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE MOTION GENERATION PURSUANT
TO THIS AGREEMENT FOR [(i)] MOTIONGENERATION.COM [OR (ii) UP TO TWELVE (12)
MONTHS OF THE SPECIFIC SERVICES], THAT IS [OR ARE] THE SUBJECT OF THE CLAIM.
(c)
THE LIMITATIONS SET FORTH IN SECTION 11(a) AND SECTION 11(b) SHALL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL
OF THEIR ESSENTIAL PURPOSE.
12.
Miscellaneous.
(a)
All matters arising out of or relating to this Agreement
shall be governed by and construed in accordance with the internal laws of the
State of California without giving effect to any choice or conflict of law
provision or rule. Any legal suit, action, or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby shall be
instituted in the federal courts of the United States of America or the courts
of the State of California in each case located in the City of Los Angeles and
County of Los Angeles, and each party irrevocably submits to the exclusive
jurisdiction of such courts in any such legal suit, action, or proceeding.
Service of process, summons, notice, or other document by mail to such party’s
address set forth herein shall be effective service of process for any suit,
action, or other proceeding brought in any such court.
(b)
MOTION GENERATION will not be responsible or liable to Customer,
or deemed in default or breach hereunder by reason of any failure or delay in
the performance of its obligations hereunder where such failure or delay is due
to strikes, labor disputes, civil disturbances, riot, rebellion, invasion,
epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts
of God, flood, fire, sabotage, fluctuations or non-availability of electrical
power, heat, light, air conditioning, or Customer equipment, loss and
destruction of property, or any other circumstances or causes beyond MOTION
GENERATION’s reasonable control.
(c)
All notices, requests, consents, claims, demands,
waivers, and other communications hereunder shall be in writing and shall be
deemed to have been given: (i) when delivered by hand (with written
confirmation of receipt); (ii) when received by the addressee if sent by a
nationally recognized overnight courier (receipt requested); (iii) on the date
sent by facsimile or email (with confirmation of transmission) if sent during
normal business hours of the recipient, and on the next business day if sent
after normal business hours of the recipient; or (iv) on the [third] day after
the date mailed, by certified or registered mail, return receipt requested,
postage prepaid. Such communications must be sent to the respective parties at
the addresses set forth on the Subscription Form (or to such other address as
may be designated by a party from time to time in accordance with this Section 16(c)).
(d)
This Agreement, together with the Subscription Form, and
all other documents that are incorporated by reference herein, constitutes the
sole and entire agreement between Customer and MOTION GENERATION with respect
to the subject matter contained herein, and supersedes all prior and
contemporaneous understandings, agreements, representations, and warranties,
both written and oral, with respect to such subject matter.
(e)
Customer shall not assign or otherwise transfer any of
its rights, or delegate or otherwise transfer any of its obligations or
performance, under this Agreement, in each case whether voluntarily,
involuntarily, by operation of law, or otherwise, without MOTION GENERATION’s
prior written consent, which consent MOTION GENERATION may give or withhold in
its sole discretion. For purposes of the preceding sentence, and without
limiting its generality, any merger, consolidation, or reorganization involving
Customer (regardless of whether Customer is a surviving or disappearing entity)
will be deemed to be a transfer of rights, obligations, or performance under
this Agreement for which MOTION GENERATION’s prior written consent is required.
No delegation or other transfer will relieve Customer of any of its obligations
or performance under this Agreement. Any purported assignment, delegation, or
transfer in violation of this Section 16(e) is void. MOTION GENERATION may freely assign or otherwise transfer
all or any of its rights, or delegate or otherwise transfer all or any of its
obligations or performance, under this Agreement without Customer’s consent.
This Agreement is binding upon and inures to the benefit of the parties hereto
and their respective permitted successors and assigns.
(f)
This Agreement is for the sole benefit of the parties
hereto and their respective successors and permitted assigns and nothing
herein, express or implied, is intended to or shall confer on any other Person
any legal or equitable right, benefit, or remedy of any nature whatsoever under
or by reason of this Agreement.
(g)
This Agreement may only be amended, modified, or
supplemented by an agreement in writing signed by each party hereto. No waiver
by any party of any of the provisions hereof shall be effective unless
explicitly set forth in writing and signed by the party so waiving. Except as
otherwise set forth in this Agreement, no failure to exercise, or delay in
exercising, any right, remedy, power, or privilege arising from this Agreement
shall operate or be construed as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power, or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, remedy,
power, or privilege.
(h)
If any term or provision of this Agreement is invalid,
illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or
unenforceability shall not affect any other term or provision of this Agreement
or invalidate or render unenforceable such term or provision in any other
jurisdiction.
(i)
For purposes of this Agreement, (a) the words
“include,” “includes,” and “including” shall be
deemed to be followed by the words “without limitation”; (b) the word
“or” is not exclusive; and (c) the words “herein,”
“hereof,” “hereby,” “hereto,” and
“hereunder” refer to this Agreement as a whole. Unless the context
otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and
Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits
attached to, this Agreement; (y) to an agreement, instrument, or other document
means such agreement, instrument, or other document as amended, supplemented,
and modified from time to time to the extent permitted by the provisions
thereof and (z) to a statute means such statute as amended from time to time
and includes any successor legislation thereto and any regulations promulgated
thereunder. This Agreement shall be construed without regard to any presumption
or rule requiring construction or interpretation against the party drafting an
instrument or causing any instrument to be drafted. The Subscription Form [and
all Annexes, Schedules, and Exhibits] referred to herein shall be construed
with, and as an integral part of, this Agreement to the same extent as if they
were set forth verbatim herein.
(j)
The headings in this Agreement are for reference only
and do not affect the interpretation of this Agreement.
