Last Updated: December 24, 2016
- the Blast Motion website at https://blastmotion.com/ (and all subdomains) where users may place orders for Blast Motion’s products and services (the “Site”);
- the Blast Motion portal and online platform that allows owners of Blast Motion’s sensors (“Sensors”) to access and interact with the data gathered from Sensors (the “Portal”);
- Blast Motion applications that are installed on your mobile device (each, an “App”);
- Blast Motion’s “Blast Connect” coaching and team management platform (“Blast Connect”); and
- all other related web sites, networks, downloadable software, and other services provided by Blast Motion and on which a link to this EULA is displayed.
In this EULA, the Site, Portal, Apps, Blast Connect, and all other Blast Motion services are collectively referred to as the “Service”, and the terms in this EULA apply to your use of any Blast Motion Service unless specifically stated otherwise (for example, in Section 6). This EULA is a legally binding contract between you and Blast Motion regarding your use of the Service. You may request a copy of this EULA by emailing us at firstname.lastname@example.org.
PLEASE READ THE EULA CAREFULLY. BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING ANY OF THE SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE EULA. IF YOU DO NOT AGREE, YOU MAY NOT USE THE SERVICES.
You acknowledge and agree that, as provided in greater detail in the EULA:
- the App is licensed, not sold to you, and that you may use the Service only as set forth in this EULA;
- your use of the Service may be subject to separate third party terms of service and fees, including without limitation the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the “Carrier”), which are your sole responsibility;
- the Service is provided “as is” without warranties of any kind and Blast Motion’ liability to you is limited;
- disputes arising hereunder will be resolved by binding arbitration, AND BY ACCEPTING THIS EULA, YOU AND BLAST MOTION ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Arbitration Agreement below for the details regarding your agreement to arbitrate any disputes with Blast Motion;
- the App requires access to the following services on your mobile device: UDID, MAC address, or other applicable device identifier, phone state and identity, internet, SMS/MMS messaging ; and
- access to certain features of the service may require access to information about the location of your device, such as GPS coordinates;
- if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple” in Section 6 below.
(a) The Service provides users of our Sensors the ability to measure and track performance statistics related to sporting and athletic activities via the Portal and the App. Users may also purchase Sensors and other Blast Motion products (“Products”) through the Site.
(b) Eligibility. If you are using or opening an account on the Service on behalf of an entity, organization, or company, then you represent and warrant that you: (i) are an authorized representative of that entity with the authority to bind such entity to this EULA and (ii) agree to be bound by this EULA on behalf of such entity.
(c) Children. No part of the Service is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS The Service AT ANY TIME OR IN ANY MANNER. If you are under 18 years of age, you represent and agree that you possess the legal consent of your parent or guardian to access and use the Service.
2. Accounts and Registration.
(a) Registration. To access most features of the Service, you must own a Sensor and register for an account (“Account”). When you register for an Account, you may be required to provide us with some information about yourself (such as your name, e-mail address or other contact information). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times.
(b) Account Security. Your Account is personal to you, and you may not share your Account information with, or allow access to your Account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use of the Service and to preserve the confidentiality of your username and password, and any device that you use to access the Service. You agree to notify us immediately of any breach in secrecy of your log-in information. You shall be solely responsible for maintaining the confidentiality of your password. If you have any reason to believe that your Account has been compromised or that your Account has been accessed by a third party, you agree to immediately notify Blast Motion via e-mail at email@example.com. You will be solely responsible for the losses incurred by Blast Motion and others due to any unauthorized use of your Account.
3. Payment Terms.
(a) General Payment Terms. Certain features of the Service, including the placing of orders using the Site or accessing certain features on the Portal, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept an estimate of the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. This no refund policy applies at all times regardless of your decision to terminate your usage, our decision to terminate your usage and any disruption caused to our Service for any reason whatsoever. Blast Motion may change the delivery or other fees for any feature of the Service, including by adding fees, on a going-forward basis at any time. Blast Motion will charge the payment method you specify at the time of purchase or as otherwise specified by you in your account information.
(b) Authorization. You authorize Blast Motion to charge all sums as described in this EULA, for the orders that you make and any Service you select, to the payment method specified in your account. If you pay any fees with a credit card, Blast Motion may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
(c) Payments through Stripe. In order to make payments to Blast Motion, you may be required to provide your credit card or bank account details to Blast Motion and Stripe, the payment service provider retained by Blast Motion (“Stripe”). Payment processing services by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement or making any payment through Stripe on the Service, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Blast Motion enabling payment processing services through Stripe, you agree to provide Blast Motion accurate and complete information about you and your business, and you authorize Blast Motion to share it and transaction information related to your use of the payment processing services provided by Stripe.
4. Sending Messages Through the Service. The Service may allow registered users of the Service (“Registered Users”) to send or publicly post messages (“Messages”) to other Registered Users. Sending Messages is a privilege, not a right, and Blast Motion may terminate such privileges of any Registered User at any time and for any reason, without any liability to such Registered User. If a Registered User sends you an objectionable Message, then please notify us by sending an e-mail to firstname.lastname@example.org. You agree that Blast Motion may monitor Messages for compliance with this EULA, and therefore, Messages should not be considered confidential or proprietary. You hereby grant us an assignable, sublicensable, irrevocable license to reproduce and transmit your Messages in connection with facilitating transmission to the intended recipient through the Service and for such other purpose as Blast Motion may deem appropriate in its sole discretion.
6. App Terms.
The terms of this Section 6 govern your acquisition and use of App.
(a) Third Party Accounts. In order to download the App, you may be required by the third party who is distributing or providing you access to the App, such as Apple, Inc. (each, a “Distributor”) to create an account. You are solely responsible for maintaining the security of any logins, passwords, or other credentials that you select or that are provided to you to access your account with any Distributor. Your use of any account with a Distributor is subject to any terms, conditions, and policies, including privacy policies, of that Distributor. Blast Motion is not responsible for any act or omission of any Distributor.
(b) License to the App. Subject to your complete and ongoing compliance with all the terms and conditions set forth in this EULA (including without limitation payment of any applicable fees and compliance with all license restrictions), Blast Motion grants you (1) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded directly from Blast Motion or from a legitimate marketplace (such as Apple’s iTunes store), solely in object code format and solely for your personal use for lawful purposes, on a single compatible mobile device that you own or control; and (2) permission to access and use the Service, only for your personal use, and solely through the use of a licensed copy of the App. You may not reproduce, distribute, publicly display, or publicly perform the App or any part of the Service. Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to or derivative work of the App; or (b) interfere with or circumvent any feature of the App, including without limitation any security or access control mechanism. You may not use the App or the Service for any purpose other than a purpose for which the App and the Service are expressly designed. The term App, as used herein, includes any update or modification to the App made available to you by Blast Motion (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Service, you may not use them.
(c) Access to the App; Third Party Fees. Blast Motion does not provide you with the equipment to use the App. You are responsible for all fees charged by third parties to access and use the App (e.g., charges by mobile carriers). Without limiting the foregoing, you are solely responsible for the payment of all applicable fees associated with any carrier service plan you use in connection with your use of the Service (such as voice, data, SMS, MMS, roaming, other applicable fees charged by the carrier). Accordingly, you should use care in selecting a service plan offered by your carrier. If your device is lost or stolen, you must notify Blast Motion immediately to suspend services.
(d) Notice Regarding Apple. If you download software from Apple, Inc.’s App Store, your use of the software must at all times be in accordance with the Usage Rules set forth in the Apple, Inc. App Store Terms of Service, and you acknowledge that this EULA is between you and Blast Motion only, not with Apple. Apple is not responsible for the Service and the content thereof. This Agreement is not intended to provide for usage rules for software that are less restrictive than the Usage Rules set forth for “Licensed Applications” in, or that otherwise conflict with, the App Store Terms of Service. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) maintenance and support; (iii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iv) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
7. Portal and Website Terms.
The terms of this Section 7 govern your acquisition and use of Portal and Website.
(a) License Grant to You. The Portal and Website are licensed, not sold, to you for use only under the terms of this EULA. Subject to your complete and ongoing compliance with the terms and conditions of this EULA, Blast Motion hereby grants you a personal, limited, revocable, non-transferable license to access and use the Portal and Website solely for your own use or for the use of the organization on whose behalf you are authorized to act.
(b) License Limitations. You may not directly rent, lease, lend, sell, redistribute or sublicense the Portal and Website. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Portal and Website, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law), nor attempt to disable or circumvent any security or other technological measure designed to protect the Portal and Website or any content available through the Portal and Website. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted in the EULA, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights, and denial of access to the Portal and Website.
(c) Applicability to Updates. The terms of the EULA will govern any updates provided to you by Blast Motion that replace and/or supplement the Portal and Website, unless such upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern.
8. Blast Connect Terms
The terms of this Section 8 govern your acquisition and use of Blast Connect if you are a Blast Connect customer.
(a) Use of Blast Connect. Your access to Blast Connect is offered as a subscription service and Blast Connect is not sold to you. Subject to your complete and ongoing compliance with the terms and conditions of this EULA, Blast hereby grants to you a limited, worldwide, non-exclusive, non-transferable right to use Blast Connect solely for your own use or for the use of the organization on whose behalf you are authorized to act.
(b) Use Restrictions. Except as otherwise explicitly provided in this EULA or as may be expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use Blast Connect; (b) use Blast Connect to provide services to third parties (e.g., as a service bureau); (c) rent, lease or otherwise permit third parties to use the sensor metric data or derivative analysis delivered through Blast Connect; or (d) circumvent or disable any security or other technological features or measures of Blast Connect.
(c) Reservation of Rights. Customer will not have any rights to Blast Connect except as expressly granted in this EULA. Blast reserves to itself all rights to Blast Connect not expressly granted to Customer in accordance with this EULA.
9. User Content
(a) User Content Generally. Certain features of the Service may permit users to post content, including messages, reviews, photos, video, images, folders, data (including data collected by the Sensors), text, and other types of works (collectively, “User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
(b) Limited License Grant to Blast Motion. By posting or publishing User Content, you grant Blast Motion a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Any such use of your User Content by Blast Motion may be without any compensation paid to you.
(c) Limited License Grant to Other Users. By posting and sharing User Content with another user of the Service, you hereby grant that user a non-exclusive license to access and use such User Content as permitted by this EULA and the functionality of the Service.
(d) User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting and publishing User Content, you affirm, represent, and warrant that:
- you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize Blast Motion and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 8 and in the manner contemplated by Blast Motion and this EULA; and
- your User Content, and use of your User Content as contemplated by this EULA, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person.
(e) User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Blast Motion may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this EULA or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Blast Motion with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to this EULA, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Blast Motion does not permit copyright-infringing activities on the Service.
10. Digital Millennium Copyright Act
(a) DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Service, you may contact our Designated Agent at the following address:
Blast Motion, Inc.
5803 Newton Drive, Suite D,
Carlsbad, CA 92008
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
(b) Repeat Infringers. Blast Motion will promptly terminate without notice the accounts of users that are determined by Blast Motion to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had User Content removed from the Service more than twice.
11. Prohibited Conduct.
Your right to use the Service is a privilege, not a right, and is expressly conditioned on the following:
(a) You may access the Service solely as intended through the provided functionality of the Service and as permitted under this EULA.
(b) You agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream, or broadcast any part of the Service without Blast Motion’s prior written authorization, including, by way of example and not limitation, by doing or engaging in any of the following without Blast Motion’s express written consent:
(i) altering, defacing, mutilating or otherwise bypassing any approved software through which the Service is made available; and
(ii) using any trademarks, service marks, design marks, logos, photographs or other content belonging to Blast Motion or obtained from the Service.
(c) You agree not to bypass, circumvent, damage or otherwise interfere with any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine content from any part of the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage.
(d) You agree not to undertake, cause, permit or authorize the translation, reverse engineering, disassembling or hacking of any aspect of the Service, including any content available on or through the Service, or attempt to do any of the foregoing, except and solely to the extent permitted by this EULA, the authorized features of the Service, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by Blast Motion.
(e) You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Service, including any content available on or through the Service, or any portion thereof, through any other application or website, unless and solely to the extent Blast Motion makes available the means for embedding any part of the Service or content.
(f) You agree not to access, tamper with, or use non-public areas of the Service, Blast Motion’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Blast Motion’s providers.
(g) You agree not to harass, abuse, harm or advocate or incite harassment, abuse or harm of another person or group, including Blast Motion employees and other users.
(h) You agree not to knowingly provide any false personal information to Blast Motion or any other user, or create a false identify or impersonate another person or entity in any way.
(i) You agree not to create a new Account, without Blast Motion’s express written consent, if Blast Motion has previously disabled an Account of yours.
(j) You agree not to solicit, or attempt to solicit, personal information from other users.
(k) You agree not to restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about users.
(l) You agree not to use the Service, without Blast Motion’s express written consent, to communicate or facilitate any commercial advertisement or solicitation, except as expressly permitted in this EULA.
(m) You agree not to gain unauthorized access to the Service, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service.
(n) You agree not to knowingly post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service.
(o) You agree not to knowingly interfere with or disrupt the Service, or networks or servers connected to the Service, or violate the regulations, policies or procedures of such networks or servers.
(p) You agree not to violate any applicable federal, state or local laws or regulations or this EULA.
(q) You agree not to knowingly assist or permit any persons in engaging in any of the activities described above.
A breach of these restrictions may subject you to prosecution and damages, as well as liability for infringement of intellectual property rights.
12. Third-Party Service and Linked Websites. Blast Motion may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Blast Motion with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using these tools, you agree that we may transfer such information to the applicable third-party service. Such third party services are not under our control, and we are not responsible for their use of your exported information. The Service may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
13. Termination of Use; Discontinuation and Modification of the Service. If you violate any provision of this EULA, your permission to use the Service will terminate automatically. Additionally, Blast Motion, in its sole discretion may terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at email@example.com. If you terminate your account, you will remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination. If you or we terminate your account, you must immediately destroy all copies of the App and all of its component parts.
14. Feedback. We appreciate hearing from our users and welcome your comments regarding the Service. Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials (“Feedback”), we will:
(a) own, exclusively, all now known or later discovered rights to the Feedback;
(b) not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any Feedback; and
(c) be entitled to unrestricted use of the Feedback for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
(b) Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the “Additional Terms”), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Service, subject to Section 16 below. All such Additional Terms are hereby incorporated by reference into, and made a part of, this EULA.
16. Modification of this EULA. We reserve the right, at our discretion, to change this EULA on a going-forward basis at any time. Please check this EULA periodically for changes. If a change to this EULA materially modifies your rights or obligations, you will be required to accept such modified terms in order to continue to use the Service. Material modifications are effective upon your acceptance of such the modified EULA. Immaterial modifications are effective upon publication. For the avoidance of doubt, disputes arising under this EULA will be resolved in accordance with this EULA in effect that the time the dispute arose.
17. Ownership; Proprietary Rights. The Service is owned and operated by Blast Motion. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, Site, Portal, App, services, and all other elements of the Service (the “Materials”) provided by Blast Motion are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of Blast Motion or our third-party licensors. Except as expressly authorized by Blast Motion, you may not make use of the Materials. Blast Motion reserves all rights to the Materials not granted expressly in this EULA.
18. Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Blast Motion and its officers, directors, employees, consultants, affiliates, subsidiaries, agents, and Distributors (collectively, the “Blast Motion Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service; (ii) your violation of this EULA or any representation, warranty, or agreements referenced in this EULA, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim. If the defense or settlement is assumed by you, Blast Motion may at any time thereafter elect to take over control of the defense and settlement of the claim. You must not settle any claim without Blast Motion’s prior written consent.
19. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE BLAST MOTION ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE BLAST MOTION ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE BLAST MOTION ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS EULA. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND AS BETWEEN YOU AND BLAST MOTION, YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA OR ANY OTHER LOSS THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
20. Limitation of Liability
IN NO EVENT WILL THE BLAST MOTION ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE BLAST MOTION ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE BLAST MOTION ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THIS EULA, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO BLAST MOTION FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THIS EULA THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS EULA BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS EULA. THE LIMITATIONS IN THIS SECTION 20 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21. Governing Law. This EULA is governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Blast Motion agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Diego County, California for the purpose of litigating all such disputes. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
23. Dispute Resolution and Arbitration
(a) Generally. In the interest of resolving disputes between you and Blast Motion in the most expedient and cost effective manner, you and Blast Motion agree that any and all disputes arising in connection with this EULA will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this EULA, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND BLAST MOTION ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) Exceptions. Notwithstanding Section 23(a), we both agree that nothing in this EULA will be deemed to waive, preclude, or otherwise limit either of our right to: (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address intellectual property infringement claims.
(c) Arbitrator. Any arbitration between you and Blast Motion will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Blast Motion.
(d) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). Blast Motion’s address for Notice is: Blast Motion, Inc., 5803 Newton Drive, Suite D, Carlsbad, CA 92008. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Blast Motion may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Blast Motion must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Blast Motion will pay you: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by Blast Motion in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000.00, whichever is greater.
(e) Fees. If you commence arbitration in accordance with this EULA, Blast Motion will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in San Diego County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Blast Motion for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(f) No Class Actions. YOU AND BLAST MOTION AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Blast Motion agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(g) Modifications. If Blast Motion makes any future change to this arbitration provision (other than a change to Blast Motion’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Blast Motion’s address for Notice, in which case your account with Blast Motion will immediately be terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
(h) Enforceability. If Section 23(f) is found to be unenforceable or if the entirety of this Section 23 is found to be unenforceable, then the entirety of this Section 23 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 22 will govern any action arising out of or related to this EULA.
25. Contact Information. The services hereunder are offered Blast Motion, Inc., 5803 Newton Drive, Suite D, Carlsbad, CA 92008. You may contact us by sending correspondence to the foregoing address or by emailing us at firstname.lastname@example.org. If you are a California resident, you may have this EULA mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for this EULA. Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
26. Open Source Software. The Service may include open source software or third party software. Any such software is made available to you under the terms of the applicable licenses. Please review the applicable notices and license terms at the following location: https://blastmotion.com/terms-of-service/open-source-software-disclosure/