K-MOTION INTERACTIVE, INC.
Effective Date: 2/24/2019
Welcome to the K-Motion Interactive, Inc. (“K-Motion”) Platform!
BY ACCESSING OR USING THE PLATFORM 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 PLATFORM.
- ABOUT THE TERMS
- ABOUT THE PLATFORM
- TERMS OF SALE
- USER CONDUCT GUIDELINES
- INTELLECTUAL PROPERTY OWNERSHIP
- NO ENDORSEMENTS OR ADVICE
- COPYRIGHT POLICY
- APPS DOWNLOADED FROM THIRD PARTY APP STORES
- WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
- GOVERNING LAW & DISPUTE RESOLUTION
1. ABOUT THE TERMS
1.1 Key Terms
- “App” means any and all downloadable applications (including, any mobile or tablet applications) owned or operated by K-Motion through which access to the Platform Content is available. References to the “App” include any and all related features, functionality, tools, and content.
- “End User” means an authorized User of the Products.
- “K-Motion,” “we,” or “us” refer to K-Motion Interactive, Inc. and our officers, directors, employees, contractors and agents.
- “K-Motion Data” means information collected or generated by or on behalf of K-Motion for purposes of providing, measuring or improving K-Motion products and services, including for benchmarking performance, or preparing statistics or system metrics. For the avoidance of doubt, “K-Motion Data” shall not include any personally identifiable information of any User.
- “Platform” means, individually and collectively, the Products, Website and App including any locally downloaded or installed software, related services and promotions, and any other software and technology used to provide any of the foregoing.
- “Platform Content” refers to any and all videos, text, photos, information and other content included, provided or made available on or through the Platform, including K-Motion Data and all User Content except Your Content.
- “Products” means any of the of the software components embedded in the K-Motion wearable technology provided by K-Motion.
- “Users” means any and all persons that access or use the Platform, including End Users of the Products. References to “access” and/or “use” of the Platform (and any variations thereof) include the acts of accessing or browsing the Platform, and accessing or using the Platform Content.
- “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 Platform, excluding K-Motion Data.
- “Website” refers to any website owned or operated by K-Motion (including the website currently located at k-motion.com). References to the “Website” include any and all features, functionality, tools and content available on or through each such website.
- “Your Content” refers to User Content that is provided or made available or caused to be made available by you.
1.2 Platform Rules and Supplemental Terms
- 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 PLATFORM IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.
1.3 Amendment of Terms
K-Motion 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” or “update”). If we choose to amend the Terms, we will update the Effective Date at the top of the Terms and post the updated version. We may also, at our option, choose to notify you by e-mail or another means. By continuing to use the Platform after we have posted an updated version of the Terms or otherwise notified you of an update, 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 Platform.
No other modification, amendment, supplement of or to the Terms will be binding on K-Motion unless it is in writing and signed by an authorized representative of K-Motion.
2. ABOUT THE PLATFORM
2.1 License to Use
Subject to your compliance with the Terms, K-Motion grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Platform, 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 Platform as provided by K-Motion, in the manner permitted by the Terms.
2.2 End User Access Requests.
You may invite other Users and other third parties (who must become Users) to access Your Content and link to your Products and/or account by sending invitation requests. K-Motion will send invitees invitations to create a User account (if applicable) and access the Your Content and/or link to your Products. You acknowledge and agree that the accuracy of the invitee e-mail addresses provided is your sole responsibility, and that K-Motion is not responsible to verify either the accuracy of the e-mail addresses or the actual identities of the e-mail recipients. You authorize K-Motion to: (i) send e-mails to third parties inviting them to access the Your Content; (ii) share your first name, last name and status as a User of the Platform; and (iii) grant other Users access to Your Content.
2.3 Modifications and Updates to the Platform
K-Motion reserves the right, in its sole discretion, to modify or discontinue offering the Platform, 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 Platform 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 K-Motion 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.
2.4 International Users
K-Motion is based in the United States, and the Platform is owned and operated from the United States. You are prohibited from accessing or using the Platform from any territory where any of the Platform Content or any of the features, functionality, tools, or promotions offered on or through the Platform, is illegal. If you access the Platform 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.
3.1 Account Registration
While certain Platform Content is publicly available, you must register for a User account before you are able to use restricted aspects and areas of the Platform and the Products. You may register to create an account directly via the Platform, or through certain third-party social networking websites, as further described in this section.
You may not register for an account on behalf of any person other than yourself.
For corporate clients, designated administrators will set up a primary account, and will designate the individuals who are eligible to sign up for subaccounts. Administrators for each client will have access to manage and view activities associated with the subaccounts registered to that client. (For simplicity, both accounts and subaccounts will be referred to hereafter as “accounts.”)
3.2 Account Set-Up
Your account and account profile page will be created based upon the information you provide to us or that we obtain via a third-party professional or social networking website (a “social media site”), as described below.
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 that you submit when you register 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 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) with your K-Motion account or any other account that you may connect to your K-Motion account. You agree not to disclose your password to any third party, and you agree to immediately notify K-Motion 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. K-Motion cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
In addition to registering directly through our Website or App, you may also be able to register for an account through certain social media sites by linking your account with the social media site account (or, “social media account”). You can do this by either (i) providing your social media account login information to K-Motion or (ii) allowing K-Motion to access your social media account, as permitted under the applicable terms and conditions that govern your use of the social media account. You represent that you are entitled to disclose your social media account login information to K-Motion and/or grant K-Motion access to your social media account for the purposes described herein, without breach by you of the terms and conditions that govern your use of the applicable social media site and without obligating K-Motion to pay any fees or making K-Motion subject to any usage limitations imposed by such social media site providers.
By granting K-Motion access to any social media accounts, you authorize K-Motion to access, make available and store any information and content, including profile photos, stored in your social media account, to be made available on your account profile page on the Platform. Depending on the social media account you choose and subject to the privacy settings that you have set in such social media account, personally identifiable information that you post to your social media account may become available on and through your account with K-Motion. All such information and content, if any, will be considered to be Your Content for purposes of the Terms. K-Motion makes no effort to review any of your information or content accessed from such social media sites for any purpose, including for accuracy, legality or non-infringement and K-Motion is not responsible for any such information or content.
Please note that if a social media account or associated service becomes unavailable or K-Motion’s access to such social media account is terminated by the social media site provider, the information and content accessed from your social media account may no longer be available on or through your account with us.
You have the ability to disable the connection between your account with us and your social media accounts, at any time, by accessing the “Settings” section of the Website and/or App. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SOCIAL MEDIA SITE PROVIDER ASSOCIATED WITH YOUR SOCIAL MEDIA ACCOUNT IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SOCIAL MEDIA SITE PROVIDER.
3.3 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 Platform at any time for any reason, and (ii) screen or delay the posting or delivery of Your Content.
K-Motion reserves the right to suspend or terminate your account or your access to the Platform if you if any information provided during the registration process or thereafter is determined to be incomplete, inaccurate, outdated, 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 below and elsewhere in the Terms.
If your account is deactivated or cancelled, K-Motion will have the right, but not the obligation to delete Your Content.
If K-Motion 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 K-Motion’s reasonable satisfaction.
4. TERMS OF SALE
You can browse and place orders for our Products through our Website. By placing an order through the Website, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed, as well as any shipping and handling charges and applicable taxes. Products purchased by you are for personal or gift use and not for resale. All orders are subject to acceptance by K-Motion. Acceptance of your order will occur upon your receipt of an email from K-Motion with a shipping confirmation. K-Motion reserves the right not to accept your order for any reason or no reason. K-Motion reserves the right to restrict multiple quantities of a Product being shipped to any one customer or postal address.
K-Motion can withdraw Products for sale from the Website at any time and for any reason. Prices listed through the Website are stated in U.S. dollars, and do not include any shipping and handling charges or applicable taxes, which will be charged to you during the order process. Payment is due upon ordering. Orders will not be sent until the payment has cleared. You agree to indemnify and hold K-Motion harmless from and against any liabilities, interest, penalties or fees assessed against K-Motion arising from your failure to pay any such taxes. All Product and Platform prices are subject to change at any time.
4.3 Payment/ Credit Cards
You agree to pay the fee for your subscription (if any) at the rates and payment schedule in effect when the charges are incurred, including any applicable taxes. Any change in the subscription fee will go into effect for the next billing period after we provide notice of the change. K-Motion will automatically charge the credit card or payment account associated with your account at the beginning of the billing period, and billing will recur automatically at the intervals indicated at the time of purchase, until you change or terminate your account. If you wish to designate a different credit card or payment account, or if there is a change in your credit card or payment account status, you must change your information in your account. This may temporarily disrupt your access to your account while K-Motion verifies your new payment information. Any change in the chosen payment method will go into effect for the next billing period.
If K-Motion is unable to successfully charge your credit card or payment account for fees due, or invoices are not paid in full when due, we reserve the right to restrict or suspend access to your account, or terminate your account. If you terminate your account for any reason or if we terminate your account due to your breach, such termination will be effective immediately, and you will be immediately billed for any unbilled fees incurred prior to the effective date of termination. You will not receive a refund for any amounts you already paid for that billing period. Further, you agree to reimburse us for any collection costs and interest for any overdue amounts.
We may contact you via email regarding your account, for example, in connection with a problem with your credit card or payment account.
4.5 Free Trial Offers
If you receive a free trial offer for a specific time period, you will not be charged during the period of the free trial, but the subscription fee will be automatically charged to the credit card associated with your account for the subsequent period the day after your free trial period has ended, in advance, in accordance with the “Subscriptions” terms stated above. Thereafter, you will be charged at monthly intervals until you decide to cancel. Please make a note of when your free trial will expire as you may not receive additional notice prior to the automatic charge if you do not cancel before the free trial period expires. Free trials are limited to one per person. If you attempt to register for a second free trial offer, K-Motion will automatically charge the credit card or payment account associated with your account at the will automatically charge your credit card in accordance with the “Subscriptions” terms stated above. If you do not wish to pay the applicable fees for a subscription, you should cancel your account before the free trial period ends and not complete any subsequent registration for a subscription.
4.6 No Refunds
K-Motion’s Delivery and Return Policy may be found here. Unless K-Motion agrees or states otherwise in writing, all other fees and charges are nonrefundable.
4.7 Third Party Charges and Mobile Alerts
You are solely responsible for any fees or charges incurred to access the Platform 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 K-Motion is not liable in any way for any third party charges.
5. USER CONDUCT GUIDELINES
Any time you access or use the Platform, you are required to comply with our User conduct guidelines, as set forth below. You agree that you will access and use the Platform for your personal use only.
5.1 Public Areas. Your Content may be viewed by other Users you designate, and by other persons or entities, including through third party services and websites when you share Your Content via social media. Thus, you should share videos, images, information and other content that you are comfortable sharing with others.
You agree that you will not access or use the Platform to capture, record, upload, 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 Platform:
- 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 without K-Motion’s prior authorization;
- to collect, store or use any information from or about another User, other than as otherwise intended by such User;
- 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, or prepare derivative works from any Platform Content that belongs to K-Motion, 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;
- transfer your account to another party without our consent;
- circumvent our systems, policies, including by attempting to access or use the Platform you have been temporarily or permanently prohibited or blocked from using the Platform;
- access, search, collect information from, or otherwise interact with the Platform by “scraping,” “crawling” or “spidering” the Platform, 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 K-Motion, unless you have been specifically authorized to do so in a separate agreement with K-Motion;
- use, display, mirror or frame the Platform, or any feature, functionality, tool or content of the Platform, K-Motion’s name, any K-Motion trademark, logo or other proprietary information, without K-Motion’s express written consent;
- interfere with, disrupt, damage or compromise the Platform 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 Platform or otherwise imposing an unreasonable or disproportionately large load on the Platform;
- access, tamper with or use non-public areas of any of the Platform, K-Motion’s computer systems, or the technical delivery systems of K-Motion’s providers;
- probe, scan, or test the vulnerability of any system or network of K-Motion 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 K-Motion or any of K-Motion’s providers or any other third party to protect the Platform;
- 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 Platform 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 Platform;
- export or re-export the Platform, except in compliance with the export control laws and regulations of any relevant jurisdictions;
- otherwise abuse the Platform 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.
5.3 Non-Disparagement. You agree that you will not engage in any activities or conduct or post or distribute any content that is disparaging to K-Motion or its business, and that you will not use any K-Motion trademarks or confidential information in any manner directed to creating a negative impression of K-Motion in the marketplace.
5.4 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 Platform, you may be exposed to User Content that is offensive, harmful, inaccurate, misleading, fraudulent or otherwise inappropriate. Under no circumstances will K-Motion 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.
We may, but are not required to monitor or control the User Content captured, recorded, uploaded, streamed, shared or stored on or through the Platform, and we cannot take responsibility for such User Content. Any use or reliance on any User Content is at your own risk.
5.5 Reporting Misconduct
If you feel that another User has violated the Terms, abused the Platform or otherwise acted inappropriately, you may report the User to K-Motion at [email protected]. K-Motion 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 K-Motion 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.
K-Motion 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 K-Motion has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Platform by any User, to access, review, preserve and disclose any User Content, or to remove or disable access 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 K-Motion, (iii) to enforce and to ensure a User’s compliance with the Terms, including the investigation of potential violations, (iv) to conduct risk assessments, and prevent, detect and investigate incidents of fraud, security and technical issues, (v) to protect the rights, property or safety of K-Motion, its Users or members of the public, and (vi) for the purpose of operating and improving the Platform (including for customer support purposes).
5.7 User Cooperation
You agree to cooperate with and assist K-Motion or its representative in good faith, in any such investigations, including by providing us with such information as we may reasonably request.
6. INTELLECTUAL PROPERTY OWNERSHIP
6.1 The Platform
The K-Motion Data and the Platform, and all features, functionality, tools and content thereof, including visual interfaces, design, compilation, information, data, computer code (including source code or object code), and all other elements of the K-Motion Data and Platform, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the Platform, and all intellectual property rights therein are the exclusive property of K-Motion 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 Platform.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with K-Motion (the “K-Motion Marks”) are the property of K-Motion, and that you are not permitted to use the K-Motion 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 Platform 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 K-Motion or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at K-Motion’s sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by K-Motion 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.
6.2 Your Content
By capturing, recording, uploading, sharing or storing Your Content, you hereby grant K-Motion a worldwide, non-exclusive, transferable, sublicensable, royalty-free right and license to use, copy, reproduce, process, adapt, modify, distribute, post, broadcast, publicly perform, publish and display Your Content in any and all media as necessary to provide the Platform to you, including, customer support services, and otherwise operate the Platform, including for product development and de-bugging purposes.
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 Platform, subject to any applicable data protection laws.
K-Motion 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 K-Motion under these Terms. Notwithstanding the foregoing, nothing in these Terms is intended to prevent K-Motion from generating and using K-Motion Data for purposes of providing, measuring, improving and marketing K-Motion’s products and services; provided that K-Motion shall not disclose to any third party any information that is identifiable as User-specific information.
You acknowledge and agree that you are solely responsible for Your Content, and for any consequences thereof, including the use of your Content by other users and our third party partners.
You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to Your Content, and that neither Your Content, nor K-Motion’s use of Your Content (or any portion thereof) on or through the Platform 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.
K-Motion will not be responsible or liable for any use of Your Content by K-Motion, any other User, or any third party in accordance with the Terms.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Platform (“Feedback”). You may submit Feedback by e-mailing us, at [email protected]. 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 K-Motion. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by K-Motion or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to K-Motion 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 K-Motion’s rights in such improvements, enhancements and modifications.
7. COPYRIGHT POLICY
K-Motion respects copyright law and the intellectual property rights of others, and we expect our Users to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. In appropriate circumstances, we will terminate the accounts of Users who are determined to be repeated copyright infringers.
If you believe that your proprietary work has been copied in a way that constitutes copyright infringement by any content or material on our Platform, please e-mail our registered agent for notification of claims of infringement pursuant to Section 512(c) of the Copyright Act at [email protected]. In your notice, please provide the following information:
1. a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright;
2. a description of the copyrighted work that you claim has been infringed;
3. a description of the material that you claim to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information sufficient to permit us to locate the material;
4. your contact information, including your address, telephone number and e-mail address;
5. a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. a statement that the information in the notification is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed.
We reserve the right to remove User Content alleged to be infringing without prior notice, at our sole discretion.
If you believe that any of Your Content was subsequently removed from the Platform, or to which access was disabled, were improperly removed or disabled, please provide the following Counter-Notification to our Copyright Agent (see 17 U.S.C. Section 512(g) for further detail):
1. your physical or electronic signature.
2. a description of the materials that have been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
3. a statement, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
4. your name, address and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, and that you will accept service of process from the person who provided notification of the alleged infringement.
(See 17 U.S.C. Section 512(c)(3) for further detail about the Digital Millennium Copyright Act).
Our designated copyright agent for notice of alleged copyright infringement is:
16419 North 91st St
Scottsdale, AZ 85260
E-mail: [email protected].
8. NO ENDORSEMENTS OR ADVICE
Users are required by the Terms to provide accurate information and, although K-Motion 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 K-Motion 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 Platform.
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.
- Links to Third Party Websites and Services
The Platform may also provide links to third-party websites, resources or services. You acknowledge and agree that K-Motion 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 K-Motion 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.
8.3 No Advice. The information available on or through the Platform is for informational purposes only. No such information is intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Platform. If you think you may have a medical emergency, call your doctor or 911 immediately. Reliance on any information provided by K-Motion, K-Motion employees or other Users is solely at your own risk.
9. APPS DOWNLOADED FROM THIRD PARTY APP STORES
Our App may be available for download from third party app stores which are not owned or operated by K-Motion. 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 K-Motion only, and not Apple, and (ii) K-Motion, 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 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 K-Motion 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 K-Motion.
· You acknowledge that, as between K-Motion 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 K-Motion and Apple, K-Motion, 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 K-Motion that:
(i) you have the power and authority to accept and agree to the 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 Platform,
(iv) the exercise by K-Motion of the rights granted by you hereunder will not cause K-Motion 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.
EXCEPT AS EXPRESSLY PROVIDED IN K-MOTION’S LIMITED WARRANTY, THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, K-MOTION 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 PLATFORM, OR THAT USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY PLATFORM 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 PLATFORM IS AND REMAINS WITH YOU.
- WITHOUT LIMITING THE FOREGOING, K-MOTION DISCLAIMS ANY AND ALL LIABILITY RELATED TO (I) YOUR USE OF OR INABILITY TO USE THE PLATFORM, (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 PLATFORM, AND (III) ANY PLATFORM CONTENT ACCESSED, VIEWED OR DOWNLOADED IN CONNECTION WITH THE USE OF THE PLATFORM.
- YOU ACKNOWLEDGE AND AGREE THAT THE ACCESSING AND USING THE PLATFORM ARE DONE AT YOUR OWN DISCRETION AND RISK, AND YOU AND HEREBY RELEASE K-MOTION AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
- INFORMATION AND OTHER CONTENT PROVIDED ON OR THROUGH THIS PLATFORM DOES NOT CONSTITUTE MEDICAL PRACTICE OR ADVICE, NOR IS IT INTENDED TO REPLACE THE NECESSITY OF CONSULTATION WITH A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROFESSIONAL.
- IN NO EVENT WILL K-MOTION 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 K-MOTION 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 EXCLUSIVE 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, K-MOTION’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 K-MOTION AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THE TERMS FURTHER 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.
To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold K-Motion 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 Platform, the Products and Platform Content, including any and all features, functionality, tools, and promotions available on and through the Platform, (ii) 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, (iii) your disputes with another User or any third party; and (iv) your gross negligence or willful misconduct.
10.7 Obligation to Defend.
You agree that, at K-Motion’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you to conduct the defense, (i) K-Motion 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 K-Motion (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 K-MOTION HAVE AGAINST EACH OTHER ARE RESOLVED.
11.1 Governing Law
The Terms shall be governed by and interpreted in accordance with the laws of the State of California without regard to conflict of law principles.
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 at a location to be agreed upon within the city and county of San Francisco, California, 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 K-Motion 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 Platform, including the App (collectively, “Disputes”) in the federal and state courts located within the city and county of San Francisco, California, and each us agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that K-Motion retains the right to submit a Dispute to any court of competent jurisdiction. K-Motion 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 K-MOTION 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 K-MOTION 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 of us 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 K-Motion. We will notify you of amendments to this section by posting the amended Terms on www.k-motion.com. 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 Platform immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and K-Motion 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).
12.2 Entire Agreement
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. K-Motion 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 notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by K-Motion (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the Platform. For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.
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.
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.
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.
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 K-Motion at [email protected].
You can also write to us at:
K-Motion Interactive, Inc.
16419 North 91st St
Scottsdale, AZ 85260
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 Platform or requests to receive further information regarding use of the Platform may be sent to the above address or to [email protected].
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.
Copyright ©2019 K-Motion Interactive, Inc. All rights reserved.