MOVING ANALYTICS TERMS OF SERVICE
Last Updated: Oct 24, 2022
You have arrived at www.movinganalytics.com, www.getmovn.com and/or are otherwise interacting with one of our health tracking device kits or mobile applications, such as Movn Rehab, which are all owned and operated by Moving Analytics, Inc. (collectively,“Moving Analytics,” "Company," "we,""our" or "us"). By installing and or using the Moving Analytics software, health tracking device kits, mobile application, or any included documentation, Moving Analytics’ website (“Website”) and any of Moving Analytics’ services (collectively the “Service” or “Services”)accessible by using the software (collectively, such software, mobile application, Website and Services, the “Software”), You acknowledge that you have read this agreement, understand it, and agree to be bound by the terms and conditions of this Terms of Service agreement (the “Agreement”). ThisAgreement applies to all visitors, users, and others who access the Services and Software (“User” or “you”).
THE SERVICES DO NOT PROVIDE MEDICAL ADVICE AND ARE NOT FOR MEDICAL EMERGENCIES. THE INFORMATION AND MATERIALS CONTAINED IN THE SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER DIRECTLY WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION.
CALL911 IMMEDIATELY IF YOU BELIEVE YOU ARE EXPERIENCING A MEDICAL EMERGENCY. DO NOT RELY ON COMMUNICATION THROUGH THE SERVICES FOR URGENT MEDICAL NEEDS.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAIN A MANDATORY MUTUAL INDIVIDUAL ARBITRATION PROVISION IN SECTION 11.2 (THE “ARBITRATION AGREEMENT”)AND A MUTUAL CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 11.3 (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, SUBJECT ONLY TO THE SPECIFIED EXCEPTIONS IN SECTIONS 11.2 AND 11.3 OR UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 11.2, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS ONLY TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTIONS OR PROCEEDINGS.
1. Our Service
This is a contract between you and Moving Analytics. You must read and agree to these terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Moving Analytics, and only in compliance with thisAgreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 18 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Moving Analytics.
1.2. Limited License
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Software and the Service for your non-commercial use only and as permitted by the features of the Service. Moving Analytics reserves all rights not expressly granted herein in the Service and the Company Content (as defined below). Moving Analytics may terminate this license at any time for any reason or no reason.
1.3. Software Use Restrictions
You shall not sublicense, distribute, hypothecate, lease, loan or otherwise convey the Software or the content made available through theSoftware (“Company Content”) or any portion thereof to anyone, and under no circumstance may you use or allow the use of the Software in any manner other than as expressly set forth above. You shall not modify the Software, incorporate the Software in whole or in part in any other product or create derivative works based on all or part of the Software. You shall not remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Software. You shall not use the Software in connection with a service bureau, time sharing or fee-for-service arrangement with third parties. Except to the extent permitted by applicable local law, you shall not reverse assemble, decompile or disassemble or otherwise reverse engineer any portion of the Software. If you dispose of any media embodying Software or Company Content, you will ensure that you have completely erased or otherwise destroyed any Software and Company Content stored on such media.
THE SOFTWARE IS NOT INTENDED FORUSE IN ANY SITUATION IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH OR BODILY INJURY OF ANY TYPE. YOU ARE SOLELY RESPONSIBLE FOR USING THE SOFTWARE IN A MANNER CONSISTENT WITH ALL APPLICABLE INTERNATIONAL, REGIONAL, FEDERAL,NATIONAL, STATE, AND LOCAL LAWS (“APPLICABLE LAWS AND REGULATIONS”).
1.4. User Accounts
Your account on the Service (your “User Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. You may never use another User’sUser Account without permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on yourUser Account, and you must keep your User Account password secure. You must notify Moving Analytics immediately of any breach of security or unauthorized use of your User Account. Moving Analytics will not be liable for any losses caused by any unauthorized use of your User Account.
You may not (i) create more than one account to access the Service,(ii) share your User Account with any third party nor (iii) transfer your account to any third party. Moving Analytics is not responsible for any loss or damage caused by, or expense incurred by you because of, your failure to safeguard your User Account. You agree that you shall not rent, resell, or to remarket the Service or to provide access to the Service to any third party.Moving Analytics may terminate any User Account in its sole discretion; you may not be permitted to create a new account to access the Service if your prior UserAccount have been terminated by Moving Analytics.
Moving Analytics will protect as confidential any personal data that you may provide to complete the applicable online forms to establish your UserAccount with Moving Analytics. You agree to provide, maintain and update true, accurate, current and complete personal data on the screens that collect information from you in connection with the Software, and represent that you will not misrepresent your identity or your affiliation with any person or entity.
You may control your User profile and how you interact with the Service by changing the settings in your settings page. By providing MovingAnalytics your email address, you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
1.5. User Submissions
You agree that you will not upload or transmit any communications or submissions of any type, to public areas of the Software, including message boards if we add them to our Services (“Public Areas”) that infringe or violate any rights of any party. By submitting communications or other materials to the Public Areas, you agree that such submissions are non-confidential for all purposes.
If you make any such submission you agree that you will not send or transmit to Moving Analytics by email, (including through the email addresses listed on the "Contact Us" page) any communication or material that infringes or violates any rights of any party. If you submit any business information, idea, concept or invention to Moving Analytics by email, you agree such submission is non-confidential for all purposes.
If you make any such submission to a Public Area of ourWebsite or if you submit any business information, idea, concept or invention to Moving Analytics by email or otherwise, you automatically grant, or warrant that the owner of such communication or intellectual property has expressly granted, Moving Analytics a royalty-free, perpetual, irrevocable, world-wide nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display the communication or material in any media or medium, or any form, format, or forum now known or hereafter developed. Moving Analytics may sublicense its rights through multiple tiers of sublicenses. If you wish to keep any business information, ideas, concepts or inventions private or proprietary, do not submit them to a Public Area or toMoving Analytics.
1.6. Third-Party Materials
As part of our Services, Moving Analytics may provide you with a health tracking device kit that includes third-party health tracking devices such as a blood-pressure monitor, body weight scale, exercise bands, and wearable activity tracker (“Device Kit”). Moving Analytics may display, include, or make available the Device Kit and other third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (collectively the "Third-PartyMaterials"). You acknowledge and agree that Moving Analytics is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Moving Analytics does not assume and will not have any liability or responsibility to you or any other person or entity for anyThird-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and your access and use is entirely at your own risk and subject to such third parties' terms and conditions.
ANY THIRD-PARTY MATERIALS PROVIDED ARE FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY. THIRD PARTY MATERIALS ARE NOT MEDICAL DEVICES AND ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASES OR HEALTH CONDITIONS.
1.7. Apple Watches
As part of our Services and the Device Kit, MovingAnalytics may provide you with an Apple Watch, a wearable smartwatch produced by Apple Inc. (“Apple Watch”). The Apple Watch is aThird-Party Material and your use of the Apple Watch is subject to the additional terms and conditions as provided by Apple Inc. The Apple Watch, its data, and its functions and applications, such as the heart rate monitor and electrocardiogram test (“ECG” or “EKG”), are not medical devices and are intended for informational purposes only. They are not designed or intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease. The Apple Watch is provided solely as a convenience to you, and your access and use of the Apple Watch is entirely at your own risk.
1.8. Online Communication Services
You may send and receive electronic mail ("email"), engage in phone calls and chats, download and upload files and otherwise use the Services as permitted by this Agreement. Moving Analytics reserves the right to record any phone calls that occur between you and any of our customer service representatives and/or coaches. You are responsible for your communications and your use of the Services.
1.9. Prohibited Activities
By accessing our Software or using our Services, you agree to abide by the following standards of conduct. You agree that you will not, and will not authorize or facilitate any attempt by another person to use our Software or Services to: (a)use simultaneous, unattended or continuous connections to the Services with one account; (b) post or transmit any message that Moving Analytics deems libelous or defamatory; (c) post or transmit any message, data, image or program that is indecent, obscene or pornographic; (d) post or transmit any message, data, image, or program that would violate the property rights of others, including unauthorized copyrighted text, images or programs, trade secrets or other confidential proprietary information, and trademarks or service marks used in an infringing fashion; (e) use the Sites to threaten, harass, stalk, abuse, or otherwise violate the legal rights (including rights of privacy and publicity)of others; (f) intercept or attempt to intercept email or other private communications not intended for you; (g) send email to Users or other Internet users for any purpose other than personal communication, including to advertise or make any unsolicited offer to sell goods or services to other Users, use asa unsolicited mass distribution medium to communicate a generally unsolicited message, or use your email account as an address to which Users or otherInternet users need to respond (except as otherwise expressly permitted by theSites or Moving Analytics); (h) send unsolicited email messages through third-party mail servers in order to relay your email or hide the origination of your email to others; (i) upload or download files that contain software or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights to such files or have received all necessary consents; (j) upload files that contain a virus or corrupted data; (k) delete any author attributions, legal notices, or proprietary designations or labels in a file that you upload to BBS or the Sites; (l) falsify the source or origin of software or other material contained in a file that you upload to BBS or the Sites; (m) use the Sites in a manner that adversely affects the availability of its resources to other Users;(n) use, download, or otherwise copy or provide (whether or not for a fee) to a person or entity that is not a subscriber to the Sites the User directory or any portion thereof other than for personal, non-commercial purposes (except as otherwise expressly permitted by Moving Analytics); (o) falsely purport to bean employee or agent of Moving Analytics; (p) cause repeated disruptive incidents; or (q) act, or fail to act, in your use of the Sites, in a manner that is contrary to applicable law or regulation. In addition, you may not post or transmit any message which is harmful, threatening, abusive, or hateful.
1.10. Services Location
The Service is controlled and operated from facilities in the UnitedStates. Moving Analytics makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
2. Our Proprietary Rights
Unless otherwise noted, all Company Content contained on this Software is the property of Moving Analytics and/or its affiliates or licensors and is protected from unauthorized copying and dissemination byUnited States copyright law, trademark law, international conventions and other intellectual property laws. Domain names and product names are trademarks or registered trademarks of their respective owners. Company Content and Services are subject to change or termination without notice and at the discretion ofMoving Analytics. All rights not expressly granted herein are reserved toMoving Analytics and its licensors.
2.2. Use of Company Content
The Software and Company Content may contain typographical errors, other inadvertent errors or inaccuracies. We reserve the right to make changes to the Software, document names, Company Content, descriptions or specifications of products or Services, or other information without obligation to issue any notice of such changes.
You may view, copy, download, and print Company Content that is available through the Software, subject to the following conditions:
· The Company Content may be used solely for your personal informational purposes. No part of this Software or theCompany Content may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording for any other purpose.
· The Company Content may not be modified.
· Copyright, trademark, and other proprietary notices may not be removed.
2.3. Copying Restrictions
You may copy the Software onto your mobile device, and you may make one (1) copy of the Software for backup or archival purposes. You agree that (i) your use and possession of such copies shall be solely under the terms and conditions of this Agreement, and (ii) you shall place the same proprietary and copyright notices and legends on all such copies as included byMoving Analytics on any media embodying an authorized copy of the Software originally provided by Moving Analytics. Except as described in this paragraph, you are not permitted to copy the Software or Company Content.
2.4. Disclosure Restrictions
You acknowledge that the Software, including the source code for the Software and any information derived therefrom, constitutes a valuable trade secret of Moving Analytics. If you should gain access to such materials, you shall not disclose them to anyone.
3. Assumption of Risk
The Service is designed to provide a designated third-party with health-related information based on your use of theSoftware. The Software and any related data supplied to you by Moving Analytics does not provide medical advice. By granting you the right to use the Software,Moving Analytics does not assume any obligation or liability with respect to your health. In no event shall Moving Analytics be liable for any death or bodily injury that you suffer, or that you cause to any third party, in connection with your use of the Software or any activity you undertake in connection with your use of the Software.
Moving Analytics cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
5. Changes to Service; Termination
We may, without prior notice, change the Service; stop providing theService or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of thisAgreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement, and you will remain liable for all amounts due under the Agreement. You may terminate your relationship withMoving Analytics at any time by contacting Moving Analytics at email@example.com
If you fail to fulfill any of your obligations under this Agreement, and this Agreement terminates, Moving Analytics and/or its licensors may pursue all legal remedies available to them. You agree that Moving Analytics' licensors referenced in the Software are third-party beneficiaries of this Agreement and may enforce this Agreement as it relates to their intellectual property. Sections of this Agreement which by their nature survive expiration or termination of this Agreement shall survive according to their terms. Upon termination, you shall promptly uninstall and remove the Software from the mobile device on which it was installed.
6. Terms Applicable for Apple iOS
The following applies if you are accessing or using theService on any of Moving Analytics’ mobile applications, such as Movn Rehab, acquired from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that these Terms are solely between you and Moving Analytics, notApple, Inc. (“Apple”) and that Apple has no responsibility for theApple-Sourced Software or content thereof. Your use of the Apple-SourcedSoftware must comply with the Apple Media Services Terms and Conditions (https://www.apple.com/legal/internet-services/itunes/) and any other applicable Apple terms. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by the terms of this Agreement and any law applicable to Moving Analytics as provider of the software.
You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-SourcedSoftware or your possession and/or use of the Apple-Sourced Software, including but not limited to: (i) product liability claims; (ii) any claim that theApple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Company as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Moving Analytics, 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 of this Agreement. You and Moving Analytics acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as they relate to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
7. Release and Indemnity
You hereby release Company from all damages (whether direct, indirect, incidental, consequential, or otherwise), losses, liabilities, costs, and expenses of every kind and nature, known and unknown, arising out of a dispute between you and a third party (including other Users)in connection with the Company Platform. In addition, each User waives any applicable law or statute, which says, in substance: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BYHIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
You agree to defend, indemnify and hold harmless MovingAnalytics and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers, and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including, without limitation, your breach of any of the representations and warranties under this Agreement; (iii)your violation of any third-party right, including, without limitation, any right of privacy or intellectual property rights; (iv) your interactions with other Users; (v) your violation of any applicable law, rule or regulation; (vi)User submission or any other content that is submitted via your User Account, including, without limitation, misleading, false, or inaccurate information;(vii) your negligence, recklessness or willful misconduct; or (viii) any other party’s access to and/or use of the Services with your unique user name, password, or other appropriate security code or credentials.
8. No Warranty
The Service is provided on an “as is” and “as available” basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from Company or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, Company, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Service.
Further, Company does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or service, and Company will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. ThisAgreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under thisAgreement will not apply to the extent prohibited by applicable law.
9. Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall Company, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, theService. Under no circumstances will Company be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized accessor use of the Service or your account or the information contained therein.
To the maximum extent permitted by applicable law, Company assumes no liability or responsibility for any (i)errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Service; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Service; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shallCompany, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding $1.00.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Company has been advised of the possibility of such damage.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under thisAgreement will not apply to the extent prohibited by applicable law.
10. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
10.1. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA without regard to its conflicts of laws provision. The United Nations Convention onContracts for the International Sale of Goods shall not apply. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in Los Angeles County, California; or any federal court located therein. In any action or proceeding to enforce or interpret thisAgreement, the prevailing party will be entitled to recover the costs and expenses (including reasonable attorneys' fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM COMPANY. ThisArbitration Agreement applies to and governs any dispute, controversy, or claim between you and Company that arises out of or relates to, directly or indirectly: (a) this Agreement, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) the Services, including access to or use of theServices, as well as receipt of any advertising, marketing, or other communications from Company; (c) any transactions through, by, or using the Services; or (d) any other aspect of your relationship or transactions with Company(each, a “Claim,” and, collectively, “Claims”). ThisArbitration Agreement will apply, without limitation, to all Claims that arose or were asserted before or after your acceptance of the Agreement.
If you are a new User, you can reject and opt-out of this Arbitration Agreement within thirty (30) days of accepting these Terms by emailing Company at firstname.lastname@example.org with your full name and stating your intent to opt-out of this Arbitration Agreement.Note that opting out of this Arbitration Agreement does not affect any other part of this Agreement, including the provisions regarding governing law or in which courts any disputes must be brought.
For any Claim, you agree to first contact us at email@example.com and to attempt to resolve the Claim with us informally. In the unlikely event that Company has not been able to resolve a Claim it has with you within sixty (60) days, we each agree to resolve such Claim exclusively through binding arbitration by the AmericanArbitration Association (“AAA”) before a single arbitrator (the “Arbitrator”), under theExpedited Procedures then in effect for AAA (the “Rules”), except as otherwise provided here in, or as otherwise determined by the Arbitrator. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement will control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in Los Angeles County, California, unless you andCompany agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any AAA filing and administrative andArbitrator fees in accordance with the Rules, and the award rendered by theArbitrator will include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain afee waiver from AAA; (ii) the award rendered by the Arbitrator may include your costs of arbitration, your reasonable attorneys’ fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction, on an individual basis only, without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the Arbitrator may be entered in any court of competent jurisdiction. You and Company agree that the Arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any disputes relating to the scope, interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable, or relating to any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel. The Arbitrator will also be responsible for determining all threshold arbitrability issues, including issues relating to contract formation and whether the Terms, or any provision of the Terms, are unconscionable or illusory.
Not withstanding anything to the contrary, nothing in this Arbitration Agreement will be deemed as preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights; or as preventing you from asserting claims in as mall claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative)basis.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, will be severed.Severance of the void, unenforceable, or unlawful provision, in whole or in part, will have no impact on the remaining provisions of this ArbitrationAgreement, which will remain in force, or on the parties’ ability to compel arbitration of any remaining Claims on an individual basis pursuant to thisArbitration Agreement. Notwithstanding the foregoing, if the Class Action/JuryTrial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief)must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement will be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief will be stayed pending the outcome of any individual claims in arbitration.
10.3. Class Action/Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE COMPANY PLATFORM FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS MUTUAL WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND COMPANY MUTUALLY AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER USERS. YOU AND COMPANY FURTHER AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO ATRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OFANY KIND AS A PLAINTIFF OR CLASS MEMBER.
10.4. Jurisdictional Issues
Unless otherwise specified by MovingAnalytics to you in writing, we make no representation that information on theSoftware or Services are appropriate or available for use outside the UnitedStates. Those who choose to access the Services from outside the United States do so on their own initiative and at their own risk and are responsible for compliance with all Applicable Laws and Regulations.
11.1. Ads, Searches and Links to OtherSites
Moving Analytics may provide links to third-party websites (“sites”). MovingAnalytics does not recommend and does not endorse the content on any third-party sites. Moving Analytics is not responsible for the content of linked third-party sites, sites framed within the Moving Analytics Website, third-party sites provided as search results, or third-party advertisements, and does not make any endorsements or representations regarding their content or accuracy. Your use of third-party sites is at your own risk and subject to the terms of service of use for such sites. You acknowledge and understand that should you choose to provide any personal data to such third-party sites, the recipients of such personal data, after it is disclosed, may not be subject to the same obligations under federal privacy laws or other Applicable Laws andRegulations, and such third-party sites may use or re-disclose the information in accordance with Applicable Laws and Regulations and their respective privacy policies.
11.2. U.S. Government Users
Pursuant to the policy stated at 48 CFR227.7202-1, U.S. Government users acknowledge that (i) the Software is commercial computer software, (ii) this Agreement embodies the licenses customarily used by Moving Analytics for licenses in Software granted to the public, and (iii) the licenses set forth herein shall apply to all possession, use and duplication of the Software by the U.S. Government, except to the extent which such licenses are inconsistent with Federal procurement law. TheContractor/manufacturer is Moving Analytics Inc.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but maybe assigned by Moving Analytics without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
11.4. Reliability of Communication Networks
You understand and agree that MovingAnalytics does not control the system that provides the internet connectivity for the System, Software or the availability of service for any computer or electronic device. You understand and agree that the Moving Analytics is not responsible for any mistake or lack of signal or service because of those systems. You also understand and agree that the Moving Analytics is not responsible if one of those systems breaks any laws related to the way information is sent using any computer or other electronic device.
11.5. Export Restrictions
You may not export or re-export anySoftware except in full compliance with all United States laws and regulations and other Applicable Laws and Regulations, executive orders and the like, including the Export Administration Regulations of the U.S. Department ofCommerce. Without limitation of the foregoing, no Software may be exported or re-exported into (or to a national or resident of) any country to which theU.S. embargoes goods, or to anyone on the U.S. Treasury Department's list ofSpecially Designated Nationals and Blocked Persons or the U.S. CommerceDepartment's Denied Persons List.
11.6. No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term and Moving Analytics’ failure to assert any right or provision under thisAgreement shall not constitute a waiver of such right or provision.
Notices to you hereunder shall be sent to the email address provided by you when you registered to download and install the Software. Notices to Moving Analytics shall be sent to the attention of its CEO at Moving Analytics, Inc., 16969 Von Karman Ave. STE 175, Irvine, CA, 92606 . Each party may change such address upon written notice to the other party.
11.8. Complete Agreement; Severability
This Agreement constitute the entire agreement between you and Company concerning the Services. Except as otherwise stated in the Arbitration Agreement, if any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect, except that in the event of unenforceability of the Class Action/Jury Trial Waiver, the entire Arbitration Agreement will be unenforceable.
11.9. Notification Procedures and Changes to the Agreement
Moving Analytics may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Moving Analytics in our sole discretion. Moving Analytics reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Moving Analytics is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Moving Analytics may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement.Your continued use of the Service after any such change constitutes your acceptance of any such new terms of service. If you do not agree to any of these terms or any future terms, do not use or access (or continue to access)the Service.
If you have any questions about this Agreement, please contact firstname.lastname@example.org.