A Colorado Corporation
Table of Contents
Section A. Introductory Terms
Section B. User Responsibilities
Section C. Intellectual Property
Section D. Termination for Cause
Section E. Disclaimer of Warranties, Limitation of Liability, and Indemnification
Section F. General Provisions
Date of last Revision: Feb. 6, 2015
A. Introductory Terms
- App: Any reference to mobile application (“App”) in this Agreement shall refer to www.getmotigo.com and related mobile and branded applications.
- Supporters: A type of User, which includes, but is not limited to, individuals, entities, friends, family, and coaches who provide encouragement or otherwise communicate through the App with Athletes.
- Athletes: A type of User, who is the recipient of messages sent through the App, primarily runners.
- Services Described: The Company provides a platform for Supporters to encourage Athletes, by “cheering” on Athletes with communications, primarily in the form of pre-recorded personalized audio messages. In addition, Athletes may record and purchase their own messages to play to themselves at a later time (collectively, these activities are “the Services”). The Company does not provide guidance or professional support for Athletes in terms of how to run, train, or engage in physical exercise. The Company does not provide any warranties, guarantees, or representations about the quality or nature of content communicated with the App. The Company does not modify, edit, or otherwise censor information on the App unless otherwise permitted to do so in this Agreement.
- No Agent Relationship: The Company provides the “Services Described” in Section A. There is no agency relationship, nor any other form of relationship that would bind or make Motigo liable for the actions of its Users.
B. User Responsibilities
- User Representations: Each User represents and warrants: (a) User has the authority and capacity to enter this Agreement, (b) if acting on behalf of an entity, that the User has authority to act on behalf of that entity (c) User is at least 13 years of age.
- User Responsibility with Own Physical Fitness: BEFORE YOU BEGIN ANY FITNESS OR NUTRITION PROGRAM, CONSULT YOUR PHYSICIAN TO DETERMINE IF THE FITNESS OR NUTRITION PROGRAM IS RIGHT FOR YOUR NEEDS. DO NOT START A FITNESS OR NUTRITION PROGRAM IF YOUR PHYSICIAN ADVISES AGAINST IT. PLEASE NOTE THAT THE COMPANY CANNOT PROVIDE YOU WITH MEDICAL ADVICE AND NOTHING SHOULD BE CONSTRUED AS SUCH.
- Content: User represents and acknowledges that he or she alone is responsible for any content he or she posts, transmits, sends, or otherwise provides on the App. User shall not post defamatory, inaccurate, abusive, obscene, racially offensive, pornographic, harassing, or illegal material, or any material that infringes on the rights of any third party.
- No Guarantee as to Nature of Communications Made with or on App: Most of the content and communications that appear on the App or have been communicated through it have been generated by its Users. As such, Company does not provide any warranties with respect to the nature, propriety, decency, accuracy, truthfulness, quality, or reliability of such communications.
- Account Security: You are responsible for maintaining the confidentiality of the Username and password you designate during the registration process, and you are solely responsible for all activities that occur under your Username and password. You agree to immediately notify the Company of any disclosure or unauthorized use of your Username or password or any other breach of security at email@example.com and ensure that you log out from your account at the end of each session.
- Right to Delete Content: Company reserves the right to delete or remove content from the App for any reason, with or without notice, depending on the nature of the objectionable material and the degree to which it is objectionable.
- Prohibited Activities: Users shall not:
- Use the App for any unlawful activities, whether unlawful under state, federal, or local laws;
- Contact any User after that User has requested that they no longer contact them or in violation of any legal prohibition restricting any User from contacting any person;
- Access another User’s account without permission;
- Publish or allow to be published malicious code intended to damage another User’s mobile device, browser, or computer;
- Provide material that exploits people in a sexual, violent or other illegal manner, or solicits personal information from anyone under the age of 18;
- Provide video, audio photographs, or images of another person without his or her permission (or in the case of a minor, the minor’s legal guardian);
- Publicize or promote commercial activities without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes; or
- Solicit passwords or personal identifying information for commercial or unlawful purposes from other Users or disseminate another person’s personal information without his or her permission.
- No Infringement: User agrees that the Company’s App and Services may contain proprietary information and material that is owned by Motigo and is protected by applicable intellectual property and other laws, including but not limited to trademark, copyright, and patent or trade secret laws. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the App or Services in compliance with this Agreement. No portion of the App or Services may be reproduced in any form or by any means, except as expressly permitted in these terms or otherwise in writing by an authorized agent of the Company. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the App or Services in any manner, and you shall not exploit the App or Services in any unauthorized way. In no way should your use of the App or Services be construed to diminish the Company’s intellectual property rights or be construed as to provide User a license or the ability to use the App or Services in any context other than as expressly permitted under this Agreement.
- No Right to Use Content. The App and Services are for personal use only. Users may not use the App or Services or any content contained in the Services (including, but not limited to, content of other Users, designs, text, graphics, images, video, information, logos, software, audio files and computer code) in connection with any commercial endeavors, such as (i) advertising or soliciting any User to buy or sell any products or services not offered by the Company or (ii) soliciting others to attend parties or other social functions, or networking, for commercial purposes. Users of the Services may not use any information obtained from the Services to contact, advertise to, solicit, or sell to any other User without his or her prior explicit consent. The Company may investigate and take any available legal action in response to illegal and/or unauthorized uses of the Services, including collecting Usernames and/or email addresses of Users by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the Services.
- DMCA Violations: If you believe any content on this App infringes on your copyright, you may request removal of the content by contacting the following address: firstname.lastname@example.org. The Company will respond to all requests as quickly as possible and to the best of its ability given its limited resources.
D, Termination for Cause
- Right to Terminate User Access: To protect the Company, its Users, including Athletes and Supporters, the Company reserves the right to terminate or block the User’s access to this App at any time, with or without cause. Should User violate any of the provisions of this Agreement, Motigo, at its sole discretion, without notice to User, may: (a) terminate the User’s account, while the User remains liable for all amounts due until and including to the scheduled date of termination; and/or (b) terminate all access to the Services and (c) preclude access to the Services (or any part thereof).
E. Disclaimer of Warranties, Limitation of Liability, and Indemnification
- Disclaimer of Warranties: ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Disclaimer of Liability: THE COMPANY ASSUMES NO LIABILITY AND IS NOT RESPONSIBLE FOR CONDUCT OR ACTIONS OF ATHLETES, SUPPORTERS OR ANY OTHER PARTY, WHETHER CONDUCTED ONLINE OR OFFLINE, OR FOR LIABILITY INCURRED THROUGH ACCIDENTS, NEGLIGENCE, RECKLESSNESS, OR INTENTIONAL DAMAGES THAT MAY RESULT FROM INTERACTIONS BETWEEN ATHLETES AND SUPPORTERS OR OTHER TYPES OF USERS. IN NO EVENT SHALL MOTIGO BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM USE OF SERVICES PROVIDED BY MOTIGO, WHETHER OR NOT USER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF SERVICES PROVIDED BY MOTIGO. THE COMPANY ASSUMES NO LIABILITY FOR THE ACTIONS OF ITS USERS, WHETHER THE RESULT OF ACCIDENT, NEGLIGENCE, RECKLESSNESS, OR INTENTIONAL DAMAGES THAT RESULT FROM INTERACTIONS BETWEEN USERS. MOTIGO IS NOT RESPONSIBLE FOR ANY DISTRACTION, SURPRISE OR ANY EFFECT THAT USERS’ COMMUNICATIONS OR CONTENT MAY HAVE, WHETHER ON RACE DAY OR AT ANY OTHER TIME.
- Assumption of Risk: USERS assume all risk related to or arising out of your use of the Services, whether online or offline. User further agrees to WAIVE, RELEASE, AND DISCHARGE from any and all claims, costs, or liabilities for death, personal injury or damages of any kind, which arise out of or relate to User’s use of the Services; User AGREES NOT TO SUE TwoTwelve, Inc. and its constituents for any of the claims, costs or liabilities waived, released or discharged herein; and User agrees to INDEMNIFY, DEFEND, and HOLD HARMLESS TwoTwelve, Inc. and its constituents from any claims made or liabilities assessed against them as a result of User’s use of the Services.
- Indemnification. To the fullest extent permitted by law, User shall indemnify and hold harmless Motigo, and agents and employees of Motigo from and against claims, damages, losses and expenses, from any misrepresentations made under this Agreement. The User understands the meaning and legal consequences of the representations and warranties made by the User herein, and agrees to indemnify and hold harmless the Company and each of its respective affiliates, and each of the respective directors, officers, principals, employees, counsel, agents, successors and assigns, if any, of each of the foregoing, from and against any and all loss, damage, liability or expense (including, without limitation, attorney’s fees) arising out of, due to, relating to, or in connection with, in each case in whole or in part, any misrepresentation made by the User of this Agreement, or any other agreement, instrument, or other document, any failure by the User to fulfill any of its covenants or agreements set forth herein or therein including but not limited to reasonable attorneys’ fees, arising out of or resulting from performance under this Agreement.
F. General Provisions
- Successors and Assignees: This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, and their respective representatives, successors and permitted assigns. This Agreement shall not be assignable by User. The Company, however, may assign this Agreement to an affiliate or in connection with a merger or sale of all or substantially all of such Party’s ownership or assets.
- Arbitration: The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof) or the Service shall be BINDING ARBITRATION administered by the American Arbitration Association. Users may not under any circumstances commence or maintain against the Company any class action, class arbitration, or other representative action or proceeding.
- Governing Law: With deference to any of the other provisions of this Agreement related to arbitration and mediation, this Agreement will be governed by and construed in accordance with the laws of the State of Colorado. The venue for any disputes shall be Denver, Colorado. The Parties hereby agree to waive the following defenses to any action brought in Colorado: forum non conveniens, lack of personal jurisdiction, insufficient process, insufficient service of process.
- Waiver: If one party waives any term or provision of this Agreement at any time, that waiver will only be effective for the specific instance and specific purpose for which the waiver was given. If either party fails to exercise or delays exercising any of its rights or remedies under this Agreement, that party retains the right to enforce that term or provision at a later time.
- Severability. If any court determines that any provision of this Agreement is invalid or unenforceable, any invalidity or unenforceability will affect only that provision and will not make any other provision of this Agreement invalid or unenforceable and such provision shall be modified, amended, or limited only to the extent necessary to render it valid and enforceable.
- Subject to Change: These terms are subject to change by Motigo at any time. If you have provided the Company with your email address, the Company will send you a notification at least 3 days in advance of its implementation of any such change. If you have not provided the Company with your email, you should review this Agreement on a regular basis for updates.