DATAMOTION MOBILE APP TERMS OF USE

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Effective Date: October 1, 2020

Welcome to the DataMotion mobile app!

BY ACCESSING OR USING THE APP YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS, AND THAT YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THE TERMS.

If you are accepting or agreeing to the Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to act on behalf of and bind that entity to the Terms.

IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE APP OR SERVICES.

  1. ABOUT THE TERMS
  2. IMPORTANT INFORMATION ABOUT THE APP
  3. ACCOUNTS
  4. THIRD PARTY CHARGES AND MOBILE ALERTS
  5. USER CONDUCT GUIDELINES
  6. ACCOUNT SUSPENSION AND CANCELLATION
  7. INTELLECTUAL PROPERTY OWNERSHIP
  8. NO ENDORSEMENT
  9. THIRD PARTY TERMS
  10. WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
  11. GOVERNING LAW & DISPUTE RESOLUTION
  12. MISCELLANEOUS

1. ABOUT THE TERMS

1.1 Key Terms

As used in these Terms of Use:

  • App” refers to any downloadable application (including, a mobile application) owned or operated by DataMotion, through which access to the Services is available. References to the “App” include any and all features, functionality, tools and content available on or through each such application.
  • Services” refers to the secured content sharing services provided by DataMotion and its service providers, and any and all related services and promotions.
  • User Content” refers to videos, text, photos, information and other content captured, recorded, stored, shared or otherwise made available or caused to be made available by users on or through the App.
  • Your Content” refers to User Content that is provided or made available or caused to be made available by you.
  • Users” means any and all persons that access or use the App. References to “access” and/or “use” of the App (and any variations thereof) include the acts of accessing or browsing the App, and accessing or using the Services.
  • DataMotion,” “we,” or “us” refer to DataMotion Inc. and our officers, directors, employees, contractors and agents. To the extent applicable, they also refer to our affiliates, service providers and licensors, and their respective officers, directors, employees, contractors and agents.

1.2  App Rules and Supplemental Terms

Your access to and use of the App is governed by the terms and conditions of these Terms of Use, our Privacy Policy, currently located at http://www.datamotion.com/privacy-policy (as described in more detail below), any and all other policies and rules referenced herein, posted on the App, or otherwise communicated to Users (the “App Rules”).

Certain of the features, functionality, tools, content and promotions available on or through the App may be subject to additional or supplemental terms and conditions (“Supplemental Terms”).  If you choose to access or use those features, functionality, tools or content or participate in those promotions, the applicable Supplemental Terms are also incorporated and deemed part of these Terms of Use.

If there is a conflict between these Terms of Use and the Supplemental Terms, the Supplemental Terms will govern and control with respect to the applicable features, functionality, tools, content and promotions.

PLEASE READ THE APP RULES AND ALL APPLICABLE SUPPLEMENTAL TERMS (COLLECTIVELY, THE “TERMS”) CAREFULLY, AS THEY CONTAIN TERMS AND CONDITIONS THAT IMPACT YOUR RIGHTS, OBLIGATIONS AND REMEDIES IN CONNECTION WITH YOUR USE OF THE APP. FOR EXAMPLE, THE TERMS INCLUDE:

  • IMPORTANT INFORMATION ABOUT THE FUNCTIONAL LIMITATIONS OF THE APP;
  • YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
  • LIMITATIONS OF OUR LIABILITY TO YOU; AND
  • A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.

YOUR ACCESS TO AND USE OF THE APP IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.

1.3  Amendment of Terms

DataMotion reserves the right, in its sole discretion, to amend the Terms, at any time and without prior notice, including to change, modify, add to, update or remove terms and conditions (collectively “amend”).  If we choose to amend the Terms, we will update the Effective Date at the top of the Terms and post the amended version.  We may also, at our option, choose to notify you by e-mail or another means.  By continuing to use the App after we have posted an amended version of the Terms or otherwise notified you of an amendment, you are affirming that you agree to be bound by the amended Terms.  This provision is subject to a few limitations in the “Dispute Resolution” section below.  If the amended Terms are not acceptable to you, your only recourse is to stop using the App.

No other modification, amendment, supplement of or to the Terms will be binding on DataMotion unless it is in writing and signed by an authorized representative of DataMotion.

1.4   Consequences of Non-Compliance

Your failure to comply with the Terms may result in the suspension or termination of your account and/or access to the App and the Services, and may subject you to civil and criminal penalties.

2.  IMPORTANT INFORMATION ABOUT THE APP

2.1  License to Use

Subject to your compliance with the Terms, DataMotion grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the App, including the right to download and install a copy of the App on each mobile device that you own or control. This license is granted for the sole purpose of enabling you to use and enjoy the benefit of the App as provided by DataMotion, in the manner permitted by the Terms.

2.2 Set-Up and Operating Requirements

In order to use the Services, you must:

  • have internet access (e.g., WiFi or 3G /4G with a data plan);
  • download the App on your smartphone or tablet;
  • have an active account registration for SecureMail or alternatively create a new SecureMail account through the App; and
  • provide and maintain complete, accurate and up-to-date account information, including contact information for your emergency contacts;

If any of the above requirements are not met, you will not be able to use some or all of the Services.

2.3 Service Limitations

In addition to the set-up and operating requirements, there are certain other circumstances that may limit the availability or effectiveness of the Services.

  • Service Area – The App is currently configured for use in United States only, and is not intended for use outside of the United States.
  • Service Interruptions – The Services can be interrupted for any reason that disrupts internet access, including in the event of:
  • electrical power outages
  • natural disasters
  • electronic interference
  • an outage affecting the data transport service
  • failure of originating or terminating access lines
  • network congestion and/or reduced routing speed of DataMotion’s network or another network (for example, due to spikes in call volume in the wake of local or national disasters), causing failed calls, busy signals or unexpected answering wait times (which may be longer than emergency calls placed via traditional telephone networks)
  • compatibility issues
  • equipment failures relating to your equipment (e.g., your mobile phone) or DataMotion’s equipment, including, hardware or software failures or misconfiguration affecting DataMotion, its offices, data centers, and/or any of its service providers

2.4 Acknowledgements

YOU AFFIRM THAT YOU HAVE READ THE FOREGOING AND ACKNOWLEDGE THAT:

  • DATAMOTION DOES NOT AND CANNOT GUARANTEE THAT THE APP WILL BE CONTINUOUS OR ERROR-FREE. FOR EXAMPLE, THE APP WILL NOT BE AVAILABLE OUTSIDE OF THE SERVICE AREA OR UNDER CIRCUMSTANCES SET FORTH ABOVE.
  • IF YOUR MOBILE OR DATA PLAN SERVICES OR ACCESS TO THE INTERNET OR OUR APP IS/ARE SUSPENDED, CANCELLED OR TERMINATED (E.G., AS A RESULT OF BILLING ISSUES OR OTHER BREACH), YOU MAY NOT BE ABLE TO USE SOME OR ALL OF THE APP.
  • YOU ARE EXCLUSIVELY RESPONSIBLE FOR YOUR USE OF THE APP AND YOUR CONTENT. ABUSE OF THE SERVICES MAY SUBJECT YOU TO CIVIL AND CRIMINAL FINES AND PENALTIES.

2.5  Modifications and Updates to the App

DataMotion reserves the right, in its sole discretion, to modify or discontinue offering the App, in whole or in part, or any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you.  We also retain the right to impose limits on your use and storage of User Content at our sole discretion at any time without prior notice to you.

We may from time to time develop and provide updates for the App, which may include upgrades, bug fixes, patches and other error corrections and/or new features, functionality, tools or content (collectively, “Updates”).  Updates may also modify or delete features, functionality, tools or content in their entirety.  Based on your mobile device settings, when your mobile device is connected to the internet either: (a) the Updates will automatically download and install; or (b) you may receive notice of or be prompted to download and install available Updates.  Please promptly download and install all Updates.  If you do not, portions of the App may not properly operate.  All Updates will be deemed part of the App and be subject to all terms and conditions of the Terms.

You agree that DataMotion has no obligation to provide any Updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.

2.6 International Users

The App is controlled and operated within the United States and is not intended for use outside of the United States.  You are hereby prohibited from accessing or using the App from any territory where the App or any of the features, functionality, tools, content thereof, is illegal.  If you choose to access the App from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.

3. ACCOUNTS

3.1 Account Registration:   You may not register for an account on behalf of any person, other than yourself or, for organizational accounts, the organization you have authorization to represent.  No individual user may have more than one active account at any given time.  Organizations and other entities may have multiple users associated with the organizational account, but may not have multiple users using an individual log in credential.

3.1.1. Existing SecureMail Users:  You must login with your existing SecureMail account before you are able to use the Services via the App.

3.1.2. New Users/Accounts:  New users or accounts, not associated with an existing registration, must complete the SecureMail new account registration on the App before using any of the Services.

3.2 Account Set-Up

Your account and account profile page will be created based upon the information you provide to us.

You agree to provide complete, accurate and up-to-date information during the registration process and to update such information as necessary to ensure that it remains complete, accurate and up-to-date. Please note that the name and contact information associated with your SecureMail account will be shared in accordance with your selections in your account settings when you share Your Content.

When you create your account, you will be asked to create a username and password, which you will be solely responsible for safeguarding.  We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) for your DataMotion account or any other account that you may connect to your DataMotion account.  You agree not to disclose your username or password to any third party, and you agree to immediately notify DataMotion of any unauthorized use of your account.  You further acknowledge and agree that you will be solely responsible for any activities or actions on or through your account, whether or not you have authorized such activities or actions. DataMotion cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.

4. THIRD PARTY CHARGES AND MOBILE ALERTS

You are solely responsible for any fees or charges incurred to access the App through an internet access provider or other third party, including without limitation data charges incurred if you are not connected to WiFi access, charges to receive SMS messages or other mobile access, which may be billed to you or deducted from your prepaid balance by your mobile provider.  You agree that DataMotion is not liable in any way for any third party charges.

5. USER CONDUCT GUIDELINES

Any time you access or use the App, you are required to comply with our User conduct guidelines, as set forth below. Your Content may be viewed by other Users designated by you.  Thus, you should only capture, record, upload or share videos, images, information and other content that you are comfortable sharing with others.

You agree that you will not access or use the App to capture, record, upload, stream, share or store any video or images, or otherwise act in any manner, that:

  • is intended to perpetrate a hoax or otherwise defraud, mislead or deceive any person or entity;
  • violates, breaches or circumvents any local, state, federal or other law, rule or regulation, including any ruling or order of a court or administrative body;
  • violates, breaches or circumvents the rights of any person or entity, including infringing or misappropriating such party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
  • is defamatory, obscene, pornographic, vulgar, lewd, offensive or unlawful;
  • promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
  • is inflammatory, abusive, violent or threatening or promotes violence or actions that are threatening to any other person;
  • promotes illegal or harmful activities or substances; or
  • is harmful to children.

Without limiting the above, you are not authorized to access or use the App:

  • to impersonate any person or entity, or falsify or otherwise misrepresent your identity, credentials, affiliations or intentions;
  • to “stalk” or harass any other User;
  • to distribute unsolicited commercial or bulk electronic communications (or, “spam”), chain letters or “pyramid” schemes;
  • for political campaigning, recruiting votes or soliciting donations or other support for legislative or other initiatives;
  • to systematically retrieve information or content to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
  • if you are not able to form legally binding contracts (for example, if you are under 18);
  • if you are a person barred from receiving services under the laws of the United States or other applicable jurisdiction; or
  • for any other purposes that are not expressly permitted by the Terms.

Further, you may not:

  • access, copy, distribute, share, publish, use or store any information from or about any other User, for purposes that are inconsistent with our Privacy Policy, or otherwise violate the privacy rights or any other rights of other Users or any other third party, including by disclosing, selling, renting, distributing or exposing any User Content to a third party, using it for marketing purposes, or otherwise using it for any purposes unrelated to the App;
  • copy, distribute, share, publish, use, store, or prepare derivative works from any User Content that belongs to another User or to a third party, including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of the person or entity party holding the rights to license such use;
  • share your username or password, or transfer your account to another party without our consent;
  • circumvent our systems, policies, determinations as to your account status, including by attempting to access or use the App if your account has been suspended or cancelled or you have otherwise been temporarily or permanently prohibited or blocked from using the App;
  • access, search, collect information from, or otherwise interact with the App by “scraping,” “crawling” or “spidering” the App, by the use of any software, device, script or robot, or by any other means (automated or otherwise) other than through the currently available, published interfaces that are provided by DataMotion, unless you have been specifically authorized to do so in a separate agreement with DataMotion;
  • use, display, mirror or frame the App, or any feature, functionality, tool or content of the App, DataMotion’s name, any DataMotion trademark, logo or other proprietary information, without DataMotion’s express written consent;
  • interfere with, disrupt, damage or compromise the App or our systems or the access of any User, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the App or otherwise imposing an unreasonable or disproportionately large load on the App;
  • access, tamper with or use non-public areas of any of the App, DataMotion’s computer systems, or the technical delivery systems of DataMotion’s providers;
  • probe, scan, or test the vulnerability of any system or network of DataMotion or its providers, or breach or circumvent any security or authentication measures of such system or network;
  • avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by DataMotion or any of DataMotion’s providers or any other third party to protect the App;
  • forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the App to send altered, deceptive or false source-identifying information;
  • attempt to decipher, decompile, disassemble or reverse engineer any of the code or software used to provide the App;
  • export or re-export the App, except in compliance with the export control laws and regulations of any relevant jurisdictions;
  • otherwise abuse the App or breach the Terms; or
  • attempt to do any of the foregoing, or advocate, encourage or assist any third party in doing any of the foregoing.

5.1 Responsibility for User Content

Ultimately, all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the User who originated such content.  We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any User Content or endorse any opinions expressed in such User Content.  You understand that by using the App, you may be exposed to User Content that is offensive, harmful, inaccurate, misleading, fraudulent or otherwise inappropriate.  Under no circumstances will DataMotion be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of any User Content. Any use or reliance on any User Content is at your own risk.

5.2 Reporting Misconduct

If you feel that another User has violated the Terms, abused the App or otherwise acted inappropriately, you may report the User to DataMotion at contact@DataMotion.com. DataMotion reserves the right, but assumes no obligation, to investigate and take appropriate action in response to such reports.  Regardless of its action or inaction, in no event will DataMotion be liable for the acts or omissions of any User or any third party.

If you are a California resident, you may also report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.  See the “California Residents” subsection below for the full information required under California Civil Code §1789.3.

5.3 Investigations

DataMotion reserves the right to investigate and prosecute violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law to the fullest extent of the law.

Without limiting the foregoing, you acknowledge that DataMotion has the right, but not the obligation, at any time and without prior notice, to remove or disable access to the App, or any features, functionality, tools, or content thereof, and to any User Content, if we believe in good faith that it is reasonably necessary (i) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (ii) to respond to claims asserted against DataMotion, (iii) to enforce and to ensure a User’s compliance with the Terms, including the investigation of potential violations, (iv) to prevent, detect and investigate incidents of fraud, security and technical issues, (v) to protect the rights, property or safety of DataMotion, its Users or members of the public, and (vi) for the purpose of operating and improving the App (including for customer support purposes).

5.4 User Cooperation

You agree to cooperate with and assist DataMotion or its representative in good faith, in any such investigations, including by providing us with such information as we may reasonably request.

6. ACCOUNT SUSPENSION AND CANCELLATION

You may cancel your account at any time.

We may, in our discretion, without liability to you and without limiting our other remedies, with or without prior notice and at any time, decide to (i) limit, suspend, deactivate or cancel your account and take technical and legal steps to prevent you from using our App and Services at any time for any reason, and (ii) screen or delay the posting or delivery of Your Content.

DataMotion reserves the right to suspend or terminate your account or your access to the App if you create more than one account, or if any information provided during the registration process or thereafter is determined to be incomplete, inaccurate, out-dated, deceptive or fraudulent.

We reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a prolonged period of time.  We also reserve the right to cancel accounts of Users who fail to comply with the Terms, including the terms and conditions regarding User conduct, as set forth in the “User Conduct Guidelines” section above and elsewhere in the Terms.

If your account is deactivated or cancelled, DataMotion will have the right, but not the obligation to delete Your Content.

If DataMotion has suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to DataMotion’s reasonable satisfaction.

6.1 Policy Enforcement

When an issue arises, we reserve the right to consider such User’s performance history and the specific circumstances in applying our policies, and to determine how strictly to enforce such policies in an effort to achieve a fair outcome for all parties involved.

7. INTELLECTUAL PROPERTY OWNERSHIP

7.1 The App

The App, and all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries.  You acknowledge and agree that the App, and all intellectual property rights therein are the exclusive property of DataMotion and its licensors.  You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the App.

Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with DataMotion (the “DataMotion Marks”) are the property of DataMotion, and that you are not permitted to use the DataMotion Marks without our prior written consent.

You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the App in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of DataMotion or the intellectual property owner, as applicable.

This foregoing license is subject to modification or revocation at any time at DataMotion’s sole discretion.

No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by DataMotion or its licensors, except for the licenses and rights expressly granted in the Terms.  All rights not expressly granted to you by the Terms are hereby reserved.

7.2 Your Content

By capturing, recording, uploading, sharing or storing Your Content, you hereby grant DataMotion a worldwide, non-exclusive, transferable, sublicensable, royalty-free right and license to use, copy, reproduce, process, adapt, modify, distribute, broadcast, and display Your Content as necessary to provide the Services to you, including, customer support services, and otherwise operate the App, including for product development and de-bugging purposes.

You agree that this license includes the right for DataMotion to provide and improve the App and to make Your Content available to other companies, organizations or individuals who have a business relationship with DataMotion (each, a “partner”) for the distribution of such content solely in connection with DataMotion’s provision of the Services to you, subject to our terms and conditions for such use.

We may modify or adapt Your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to Your Content as are necessary to conform and adapt that content to any requirements or limitations of any networks, devices, services or media.  You further grant us the right to use, copy, distribute, post, broadcast, publicly perform, publish and display your name, city, state and other information in connection with Your Content as described herein or elsewhere on the App, subject to any applicable data protection laws.

DataMotion does not claim any ownership rights in Your Content and nothing in the Terms will be deemed to restrict any rights that you may have to use and exploit any such content, subject only to the licenses granted to DataMotion. You hereby represent and warrant that DataMotion’s use of Your Content (or any portion thereof) on or through the App or in connection with the Services will infringe, misappropriate or violate the rights of any person or entity, including patent, copyright, trademark, trade secret, moral rights, industrial rights, database rights or other proprietary or intellectual property rights, rights of publicity or privacy or data protection or contractual rights, or result in the violation of any applicable law or regulation. DataMotion will not be responsible or liable for any use of Your Content by any User with whom you share Your Content via the App.

7.3 Feedback

We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the App (“Feedback”).  You may submit Feedback by e-mailing us, at feedback@DataMotion.com.  You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of DataMotion.  Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by DataMotion or its affiliates for any purpose whatsoever, including developing, improving and marketing products.  You hereby irrevocably transfer and assign to DataMotion all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.

You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect DataMotion’s rights in such improvements, enhancements and modifications.

8. NO ENDORSEMENTS

8.1 Users

Users are required by the Terms to provide accurate information and, although DataMotion may conduct certain limited checks and/or institute certain processes designed to help verify information provided by Users, we do not guarantee the completeness or accuracy of any information provided by any User, including the User’s purported identity, credentials or background.

Any indication that a User has been “verified” (or similar language) only means that the User has completed a relevant verification process.  It is not an endorsement, certification or guarantee by DataMotion about the User, including of the User’s identity, credentials or background.  Any such description is intended only help you to evaluate and you make your own decisions about the identity and suitability of others whom you contact or interact with via the App.

We recommend that you exercise due diligence when deciding to communicate or interact with another User, and we will not be responsible or liable for any damage or harm resulting from your interactions with other Users.

8.2 Links to Third-Party Websites and Services

The App may also provide links to third-party websites, resources or services.  You acknowledge and agree that DataMotion is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date.  Links to such websites, resources or services do not imply any endorsement by DataMotion of such websites, resources or services or the content, products or services available on or through such websites, resources or services.  You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.

We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.

9.THIRD PARTY TERMS

The App may be available for download from third party app stores which are not owned or operated by DataMotion. When downloading, installing, accessing, using or browsing the App, you must comply with any applicable third party terms and conditions, including any End User License Agreement, your mobile device agreement or any wireless data service agreement, and ensure that your use of the App is not in violation of any such terms or conditions.

 

Without limiting the foregoing, any Apps accessed through or downloaded from Apple’s App Store (an “App Store Download”) may only be used (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system), and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store terms and conditions.

 

Without limiting the foregoing, the following applies to App Store Downloads:

  • You acknowledge and agree that (i) these Terms are between you and DataMotion only, and not Apple Inc. (“Apple”), and (ii) DataMotion, not Apple, is solely responsible for the App Store Download and content thereof. Your use of the App Store Download must comply with the App Store’s terms and conditions.
  • You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Download.
  • In the event of any failure of the App Store Download to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Download to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Download. As between DataMotion and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of DataMotion.
  • You acknowledge that, as between DataMotion and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Download or your possession and use of the App Store Download, including: (i) product liability claims; (ii) any claim that the App Store Download fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
  • You acknowledge that, in the event of any third-party claim that the App Store Download or your possession and use of that App Store Download infringes that third party’s intellectual property rights, as between DataMotion and Apple, DataMotion, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
  • You acknowledge and agree that Apple and its subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Download, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Download against you as a third party beneficiary thereof.
  • Without limiting any other terms of the Terms, you must comply with all applicable third party terms and conditions when using the App Store Download.

10. WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION

10.1 Warranties by Users

You represent and warrant to DataMotion that:

(i)  you have the power and authority to accept and agree to the Terms as an individual or on behalf of the organization you represent and identified in these Terms;

(ii) you own or control all of the rights necessary to grant the rights and licenses granted herein;

(iii) you will not violate any federal, state or local laws, rules or regulations or infringe the rights of any third party, including, any intellectual property, privacy or publicity-related rights, in connection with Your Content or otherwise in connection with your access to or use of the App;

(iv)                the exercise by DataMotion of the rights granted by you hereunder will not cause DataMotion to violate any applicable laws, rules or regulations, to infringe the rights of any third party; and

(v)  all account information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.

10.2 Disclaimers

EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE APP AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.  TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, DATAMOTION EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE APP OR SERVICES, OR THAT USE OF THE APP OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY USER CONTENT.

10.3 Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:

  • THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE APP IS AND REMAINS WITH YOU.
  • WITHOUT LIMITING THE FOREGOING, DATAMOTION DISCLAIMS ANY AND ALL LIABILITY RELATED TO (I) YOUR USE OF OR INABILITY TO USE THE APP, (II) THE ACTS OR OMISSIONS OF ANY OTHER USER OR ANY OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE APP, AND (III) ANY USER CONTENT ACCESSED, VIEWED OR DOWNLOADED IN CONNECTION WITH THE USE OF THE APP.
  • YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING AND USING THE APP, SUBMITTING AND TRANSMITTING YOUR CONTENT, COMMUNICATING OR INTERACTING WITH OTHER USERS AND ACCESSING, AND VIEWING OR DOWNLOADING THE USER CONTENT OF OTHER USERS ARE DONE AT YOUR OWN DISCRETION AND RISK, AND YOU AND HEREBY RELEASE DATAMOTION AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
  • IN NO EVENT WILL DATAMOTION BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DATAMOTION HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
  • CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION, SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, DATAMOTION’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).

10.4  Basis of the Bargain

YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DATAMOTION AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

10.5  Exclusions

NOTHING IN THE TERMS IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY.  ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW.

10.6 Indemnification

To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold DataMotion, its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the App, including any and all features, functionality, tools, content and promotions available on and through the App, (ii) Your Content, (iii) any interactions with any other User, (iv) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (v) your gross negligence or willful misconduct.

10.7 Obligation to Defend.

You agree that, at DataMotion’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you conduct the defense, (i) DataMotion may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of DataMotion (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.

10.8 No Implied Indemnity.

No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.

11. GOVERNING LAW & DISPUTE RESOLUTION

PLEASE READ THIS SECTION CAREFULLY.  IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND DATAMOTION HAVE AGAINST EACH OTHER ARE RESOLVED.

11.1 Governing Law

The Terms shall be governed by and interpreted in accordance with the laws of New York without regard to conflict of law principles.

11.2  Arbitration

Notwithstanding any contrary provision of these Terms, all disputes, claims, controversies and matters relating to or in connection with these Terms (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  The arbitration shall take place in the County of New York in the State of New York before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language.  All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis.  No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.

11.3  Jurisdiction and Venue

Subject to the above arbitration provisions, you and DataMotion agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the App (collectively, “Disputes”) in the federal or state courts located in the County of New York of the State of New York and each party agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that DataMotion retains the right to submit a Dispute to any court of competent jurisdiction. DataMotion also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located.  You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.  The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.

 

11.4 Prohibition of Class and Representative Actions and Non-Individualized Relief

YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST DATAMOTION ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW.  FURTHER, UNLESS BOTH YOU AND DATAMOTION OTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.

11.5 Future Amendments to this Section

Both you and DataMotion agree that if we make any amendment to this “Dispute Resolution” section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment.  However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and DataMotion.  We will notify you of amendments to this section by posting the amended Terms on the App.  If you do not agree to the amended terms, you may close your account within 30 days and you will not be bound by the amended dispute resolution terms.  If you do not have an account (or once you have closed your account, if applicable), you must cease using the App immediately.  By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and DataMotion in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).

12. MISCELLANEOUS

12.1 Privacy

Our collection and use of information about Users is governed by our Privacy Policy.  By accessing and using the App, you consent to the collection and use of this information, including the transfer of this information outside the United States, for storage, processing and use by DataMotion.  As part of providing you the App, we may need to provide you with certain communications, such as service announcements and administrative messages.  These communications are considered part of the Service, which you may not be able to opt-out from receiving.

12.2 Entire Agreement

These Terms, including these Terms of Use, our Privacy Policy, the applicable Supplemental Terms and any and all App Rules, constitute the entire and exclusive understanding and agreement between you and DataMotion regarding your access to and use of the App and supersede and replace any and all prior or contemporaneous oral or written understandings or agreements between you and DataMotion and regarding the subject matter hereof.

12.3 Assignment

You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion.  Any attempted assignment, transfer, delegation or sublicense without the foregoing consent will be null and void. DataMotion may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.

Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.

12.4 No Agency

Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.

12.5 Survival of Terms

Any provisions of the Terms that contemplate performance or observance subsequent to the expiration or termination of these Terms of Use shall survive such expiration or termination.

 

12.6 Notices

Any notices or other communications by us permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by DataMotion (i) via e-mail (in each case to the address that you provide), or (ii) by posting via the App.  For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.

12.7 Waiver

Our failure to exercise any right or enforce any obligation under these Terms of Use or to take action with respect to a breach by you or others will not constitute a waiver of such right, obligation or breach.  The waiver of any right, obligation or breach will be effective only if in writing and signed by a duly authorized representative of DataMotion.  In addition, no waiver granted in any instance shall constitute a waiver in any other instance.

12.8 Remedies

Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.

12.9  Severability

Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.

12.10 Headings

The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.

12.11 Third-Party Beneficiaries

Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.

12.12  Construction

In the Terms, unless the context requires otherwise: (i) “herein,” “hereof,” “hereunder,” “hereto,” and similar terms refer to the Terms collectively and as a whole, and not merely to the specific section, paragraph or clause in which the term appears; (ii) “or” connotes any combination of all or any of the items listed; and (iii) “including” (and any of its derivative forms) means “including but not limited to.”

12.13 Contact Us

If you have any questions or concerns, please contact DataMotion at contact@DataMotion.com.

You can also write to us at:

DataMotion

200 Park Avenue, Suite 302

Florham Park, New Jersey 07932

 

12.14 California Residents

Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:

Complaints regarding the App or Services or requests to receive further information regarding use of the App or Services may be sent to the above address or to contact@DataMotion.com.

The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210.  Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.

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