Motion Defense Terms of Service
If you do not agree with these terms and conditions, you must not accept this agreement and may not use the Services.
1. Accepting the Terms
- 1.1 In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.
1.2 You can accept the Terms by:
- a. clicking to accept or agree to the Terms, where this option is made available to you by Kicklet in the user interface for any Service; or
- b. by actually using the Services. In this case, you understand and agree that Kicklet will treat your use of the Services as acceptance of the Terms from that point onwards.
2. Provision of the Services
- 2.1 You acknowledge and agree that the form and nature of the Services which Kicklet provides may change from time to time without prior notice to you.
- 2.2 You acknowledge and agree that Kicklet may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Motion Defense’s sole discretion, without prior notice to you. You may stop using the Services at any time.
- 2.3 You acknowledge and agree that if Kicklet disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account.
3. Use of the Services
- 3.1 You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
- 3.2 You agree that you will not engage in any activity that interferes with or disrupts the Services (or any servers and networks which are connected to the Services).
- 3.3 Unless you have been specifically permitted to do so in a separate agreement with Kicklet, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
- 3.4 You agree that you are solely responsible for (and that Kicklet has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which Kicklet may suffer) of any such breach.
- 4.2 You agree to the use of your data in accordance with Motion Defense’s privacy policies.
- 5.1 You understand that all information (such as data files, photographs, videos, or other images) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content.”
- 5.2 You agree that you are solely responsible for (and that Kicklet has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Services and for the consequences of your actions (including any loss or damage which Kicklet may suffer) by doing so.
- 5.3 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services.
6. Proprietary rights
- 6.1 You acknowledge and agree that Kicklet owns all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
- 6.2 Unless you have agreed otherwise in writing with Kicklet, nothing in the Terms gives you a right to use any of Kicklet's or Motion Defense’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
- 6.3 If you have been given an explicit right to use any of these brand features in a separate written agreement with Kicklet, then you agree that your use of such features shall be in compliance with that agreement and any applicable provisions of the Terms.
- 6.4 Kicklet acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Kicklet, you agree that you are responsible for protecting and enforcing those rights and that Kicklet has no obligation to do so on your behalf.
- 6.5 You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services.
- 6.6 Unless you have been expressly authorized to do so in writing by Kicklet, you agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
7. Your License
- 7.1 Kicklet gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Kicklet as part of the Services as provided to you by Kicklet (referred to as the “Software” below). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Kicklet, in the manner permitted by the Terms.
- 7.2 You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Kicklet, in writing.
- 7.3 Unless Kicklet has given you specific written permission to do so, you may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.
8. Cancellation and Termination
- 8.1 The Terms will continue to apply until terminated by either you or Kicklet as set out below.
8.2 Kicklet may at any time, terminate its legal agreement with you if:
- a. you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or
- b. Kicklet is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
- c. the partner with whom Kicklet offered the Services to you has terminated its relationship with Kicklet or ceased to offer the Services to you; or
- d. Kicklet is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the service; or
- e. the provision of the Services to you by Kicklet is, in Kicklet’s opinion, no longer commercially viable.
- 8.3 Nothing in this Section shall affect Kicklet’s rights regarding provision of Services under Section 2 of the Terms.
- 8.4 When these Terms come to an end, all of the legal rights, obligations and liabilities that you and Kicklet have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 13.6 shall continue to apply to such rights, obligations and liabilities indefinitely.
9. Exclusion of Warranties
- 9.1 Nothing in these Terms, including sections 9 and 10, shall exclude or limit Kicklet’s warranty or liability for losses which may not be lawfully excluded or limited by applicable law. 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. Accordingly, only the limitations which are lawful in your jurisdiction will apply to you and our liability will be limited to the maximum extent permitted by law.
- 9.2 You expressly understand and agree that your use of the Services is at your sole risk and that the Services are provided "as is" and “as available.”
9.3 In particular, Kicklet, its subsidiaries and affiliates, and its licensors do not represent or warrant to you that:
- a. your use of the Services will meet your requirements,
- b. your use of the Services will be uninterrupted, timely, secure or free from error, and
- c. that defects in the operation or functionality of any Software provided to you as part of the Services will be corrected.
- 9.4 Any material downloaded or otherwise obtained through the use of the Services is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or other device or loss of data that results from the download of any such material.
- 9.5 No advice or information, whether oral or written, obtained by you from Kicklet or through or from the Services shall create any warranty not expressly stated in the Terms.
- 9.6 Kicklet further expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement.
10. Limitation of Liability
10.1 Subject to overall provision in paragraph 9.1 above, you expressly understand and agree that Kicklet, its subsidiaries and affiliates, and its licensors shall not be liable to you for:
- a. any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but not be limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss;
b. any loss or damage which may be incurred by you, including but not limited to loss or damage as a result of:
- i. any changes which Kicklet may make to the Services, or for any permanent or temporary cessation in the provision of the Services (or any features within the Services);
- ii. the deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through your use of the Services;
- iii. your failure to provide Kicklet with accurate account information;
- iv. your failure to keep your password or account details secure and confidential;
- 10.2 The limitations on Kicklet’s liability to you in paragraph 10.1 above shall apply whether or not Kicklet has been advised of or should have been aware of the possibility of any such losses arising.
11. Other content
- 11.1 The Services may include hyperlinks to other web sites or content or resources. Kicklet may have no control over any web sites or resources which are provided by companies or persons other than Kicklet.
- 11.2 You acknowledge and agree that Kicklet is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
- 11.3 You acknowledge and agree that Kicklet is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
12. Changes to the Terms
- 12.1 Kicklet may make changes to the Terms from time to time. When these changes are made, any new Terms will be made available to you from within, or through, the affected Services.
- 12.2 You understand and agree that if you use the Services after the date on which the Terms have changed, Kicklet will treat your use as acceptance of the updated Terms.
13. General legal terms
- 13.1 The Terms constitute the whole legal agreement between you and Kicklet and govern your use of the Services (but excluding any services which Kicklet may provide to you under a separate written agreement), and completely replace any prior agreements between you and Kicklet in relation to the Services.
- 13.2 You agree that Kicklet may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
- 13.3 You agree that if Kicklet does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Kicklet has the benefit of under any applicable law), this will not be taken to be a formal waiver of Kicklet’s rights and that those rights or remedies will still be available to Kicklet.
- 13.4 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
- 13.5 You acknowledge and agree that each member of the group of companies of which Kicklet is the parent shall be third party beneficiaries to the Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to the Terms.
- 13.6 The Terms, and your relationship with Kicklet under the Terms, shall be governed by the laws of the State of Ohio without regard to its conflict of laws provisions. You and Kicklet agree to submit to the exclusive jurisdiction of the courts located within the county of Franklin, Ohio to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that Kicklet shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
14. Enterprise Use
- 14.1 If you are a business entity, then the individual accepting on behalf of the entity (for the avoidance of doubt, for business entities, in these Terms, "you" means the entity) represents and warrants that he or she has the authority to act on your behalf, that you represent that you are duly authorized to do business in the country or countries where you operate, and that your employees, officers, representatives, and other agents accessing the Service are duly authorized to access Motion Defense and to legally bind you to these Terms.
- 14.2 Subject to the Terms, and in addition to the license grant in Section 7, Kicklet grants you a non-exclusive, non-transferable license to reproduce, distribute, install, and use Motion Defense solely on machines intended for use by your employees, officers, representatives, and agents in connection with your business entity, and provided that their use of Motion Defense will be subject to the Terms.
Last updated: June 27th, 2016