Last modified: June 2, 2014
Please be advised: This Agreement contains an agreement to arbitrate all claims and disclaimers of warranties and liability. You may pursue claims or seek relief (including monetary, injunctive and declaratory relief) against us only on an individual basis, and not as part of any class or representative action or proceeding.
www.motionpoint.com is not intended to be used by, and is not directed to, anyone under 18 years of age. You represent that you are at least 18 years of age. If we receive a complaint which states that a user is under 13 years of age, we will comply with the requirements of the Children’s Online Privacy Protection Act of 1998 (“COPPA”).
Your access and use of www.motionpoint.com may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of www.motionpoint.com or other actions that we, in our sole discretion, may elect to take. We reserve the right to suspend or discontinue the availability of www.motionpoint.com and/or any portion or feature of www.motionpoint.com at any time in our sole discretion and without prior notice. We will not be liable if for any reason all or any part of www.motionpoint.com is unavailable at any time or for any period.
You Must Maintain the Security of Any Password Issued to You. If www.motionpoint.com requires you to create a password to use certain portions of www.motionpoint.com, or use a password you have created with a third party, then it is your sole responsibility to maintain the security of that password. You agree that we shall not be liable for any loss that you may suffer as a result of the authorized or unauthorized use of your password by a third party. You shall not allow any person under the age of 18 to use any www.motionpoint.com service via your registration or password.
You Must Notify Us of a Breach. You agree to immediately notify us of any unauthorized use of your password, any unauthorized use of any account that you may have with us, any violation of this Agreement, or any other breach of security known to you in connection with any product or service available on www.motionpoint.com by sending an e-mail to: email@example.com.
If you transmit or submit information to www.motionpoint.com that is not Federally trademarked and/or copyrighted, you automatically grant us and our affiliates and assigns the worldwide, fully-paid, royalty-free, sublicensable, transferable, and exclusive right and license to use, copy, format, adapt, publish, distribute and/or incorporate any or all such information in any media whatsoever, including, without limitation, the Content (as defined below). Provided that you have obtained prior written permission from the owner of Federally trademarked and/or copyrighted information to transmit or submit such information to www.motionpoint.com, if you transmit or submit information to www.motionpoint.com that is Federally trademarked and/or copyrighted, you automatically grant us and our affiliates the worldwide, fully-paid, royalty-free right to use, copy, format, adapt, publish and/or incorporate any or all such information in any media whatsoever, including, without limitation, the Content. The above licenses granted by you are perpetual and irrevocable.
You shall not transmit or submit the following to www.motionpoint.com:
The names “WWW.MOTIONPOINT.COM,” “MOTIONPOINT,” “TRANSMOTION WEBCATT,” “TRANSCOPE,” “ONE-LINK DEPLOYMENT,” “TRANSSYNC,” “WEBCATT,” “MOTIONPOINT WEBSITE TRANSLATION,” and “TRANSMOTION,” and our graphics, logos, page headers, button icons, scripts, and service names are our or our affiliates’ trademarks or trade dress in the United States and/or other countries (collectively, the “Proprietary Marks”). You may not use the Proprietary Marks without our prior express written permission, which permission may be withheld in our sole discretion. We make no proprietary claim to any third-party names, trademarks or service marks appearing on www.motionpoint.com. Any third-party names, trademarks, and service marks are property of their respective owners.
The information, advice, data, software and content viewable on, contained in, or downloadable from, www.motionpoint.com (collectively, the "Content"), including, without limitation, all text, graphics, charts, pictures, photographs, images, line art, icons, renditions and floor plans, are copyrighted by, or otherwise licensed to, us or our Content suppliers. We also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of the Content (the “Collective Work”). All software used on www.motionpoint.com (the “Software”) is our property or the property of our software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using the Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to the Content, the Collective Work or the Software.
You shall be solely responsible for any damage resulting from your infringement of our or any third party's intellectual property rights regarding the Trademarks, the Content, the Collective Work, the Software and/or any other harm incurred by us or our affiliates as a direct or indirect result of your copying, distributing, redistributing, transmitting, publishing or using the same for purposes that are contrary to the terms and conditions of this Agreement.
We grant you a limited license to access, print, download or otherwise make personal use of the Content and the Collective Work in the form of: (i) one machine-readable copy; (ii) one backup copy; and (iii) one print copy, for your non-commercial use; provided, however, that you shall not delete any proprietary notices or materials as to the foregoing manifestations of the Content and the Collective Work. You may not modify the Content or the Collective Work or utilize them for any commercial purpose or any other public display, performance, sale or rental, decompile, reverse engineer, or disassemble the Content and the Collective Work, or transfer the Content or the Collective Work to another person or entity.
Except as otherwise permitted under the copyright laws of the United States, no other copying, distribution, redistribution, transmission, publication or use, other than the non-commercial use of the Content and the Collective Work as permitted by this Agreement, is permitted by you without our express prior written permission, which permission may be withheld in our sole discretion.
You may not use any meta tags or any other “hidden text” utilizing our name or trademarks without our express written permission, which permission may be withheld in our sole discretion.
You agree that you will not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor www.motionpoint.com or any portion of www.motionpoint.com or for any other purpose, without our express written permission which may be withheld in our sole discretion. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for your personal information) from www.motionpoint.com without our prior written permission and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of www.motionpoint.com or any activities conducted on www.motionpoint.com; or (iv) bypass any measures we may use to prevent or restrict access to www.motionpoint.com. Notwithstanding the foregoing, we grant the operators of public search engines permission to use spiders to copy materials from www.motionpoint.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. We reserve the right to revoke these exceptions either generally or in specific cases. You shall not collect or harvest any personally identifiable information, including account names, from www.motionpoint.com. You shall not use any communication systems provided on www.motionpoint.com (i.e., forums or email) for any commercial or solicitation purposes. You agree not to solicit for commercial purposes any users of www.motionpoint.com without our prior, written consent, which consent may be withheld in our sole discretion.
When you visit www.motionpoint.com or send email to us, you are communicating with us electronically. You consent to receive communications from us electronically. Although we may choose to communicate with you by regular mail, we may also choose to communicate with you by e-mail or by posting notices on www.motionpoint.com. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
You authorize us, our affiliates, agents, and independent contractors to contact you at any telephone number (including telephone numbers associated with mobile, cellular, wireless, or similar devices) you provide to us or from which you place a call to us, or any telephone number at which we reasonably believe we may reach you, using any means of communication, including, but not limited to, calls or text messages using an automatic telephone dialing system and/or prerecorded messages, even if you incur charges for receiving such communications.
You are responsible for obtaining and maintaining all telephone, computer hardware, Internet access services and other equipment or services needed to access and use www.motionpoint.com, and all costs and fees associated with Internet access or long distance charges incurred with regard to your access and use of www.motionpoint.com.
There may be provided on www.motionpoint.com links to other websites belonging to our advertisers, business partners, affiliates and other third parties. Such links do not constitute our endorsement of those websites, nor the products or services listed on those websites. We are not responsible for the activities or policies of those websites. We do not endorse or recommend the products of any particular advertiser, business partner, affiliate or other third party.
You acknowledge that we cannot guarantee the continuous operation of or access to www.motionpoint.com. You further acknowledge that operation of and access to www.motionpoint.com may be interfered with as a result of technical issues or numerous factors outside of our control.
The Content and all services and products associated with www.motionpoint.com are provided to you on an "as-is" and “as available” basis. WE make no representations or warranties of any kind, express or implied, as to the operation of www.motionpoint.com or the information, content, materials, products or services included on or associated with www.motionpoint.com. You expressly agree that your use of www.motionpoint.com and all products and services included on or associated with www.motionpoint.com is at your sole risk.
we do not make any representations, warranties or guarantees, express or implied, regarding the accuracy, correctness, or completeness of the Content or the services and products associated with www.motionpoint.com, nor the safety, reliability, title, timeliness, completeness, merchantability, conformity or fitness for a particular purpose of the Content or the services and products associated with www.motionpoint.com. It is your sole responsibility to independently evaluate the accuracy, correctness or completeness of the Content and the services and products associated with www.motionpoint.com. we make no representation, warranty or guarantee that the Content that may be available for downloading from www.motionpoint.com is free of infection from any viruses, worms, Trojan horses, trap doors, back doors, easter eggs, time bombs, cancelbots or other code or computer programming routines that contain contaminating or destructive properties or that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
www.motionpoint.com is controlled and offered by us from our facilities in the United States of America. We make no representations that www.motionpoint.com is appropriate or available for use in other jurisdictions. If you access or use www.motionpoint.com from other jurisdictions, you do so by your own volition and are solely responsible for compliance with local law. Notwithstanding the foregoing, you agree that you will not use www.motionpoint.com or any content obtained from www.motionpoint.com in a manner prohibited by any applicable state, federal or local laws, or restrictions or regulations.
WE shall in no event be responsible to, or liable to, you, or any third party, whether in contract, warranty, tort (including negligence) or otherwise, for any damages, including, but not limited to, special, incidental, indirect or consequential damages that include, but are not limited to, damages for any loss of profit, revenue or business, as a direct or indirect result of: (i) your breach or violation of the terms and conditions of this Agreement; (ii) your access and use of www.motionpoint.com; (iii) your DELAY IN ACCESSING OR inability to access or use www.motionpoint.com for any reason; (iv) your downloading of any of the Content or the Collective Work for your use; (v) your reliance upon or use of the Content or the Collective Work, OR (VI) ANY INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED THROUGH www.motionpoint.com, OR OTHERWISE ARISING OUT OF THE USE OF www.motionpoint.com, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE, OUR AFFILITES AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, DIRECTORS, OFFICRES, EMPLOYEES AND AGENTS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED $100.
YOU SPECIFICALLY ACKNOWLEDGE THAT WE SHALL NOT BE LIABLE FOR OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM SUCH THIRD-PARTY CONDUCT RESTS ENTIRELY WITH THE THIRD PARTY.
YOU RECOGNIZE AND CONFIRM THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF OR IN CONNECTION WITH OUR ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY PROPERTY (REAL OR PERSONAL, TANGIBLE OR INTANGIBLE) OWNED OR CONTROLLED BY, OR LICENSED TO, US, OUR AFFILIATES, PARTNERS AND/OR LICENSORS, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY ACTIVITIES OR ACTIONS RELATED TO SUCH PROPERTY.
YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO www.motionpoint.com MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply to you.
You shall defend, indemnify and hold harmless us and our officers, directors, shareholders, employees, independent contractors, agents, representatives and affiliates from and against all claims and expenses, including, but not limited to, attorneys' fees, arising out of, or attributable to: (i) any breach or violation of this Agreement by you; (ii) your failure to provide accurate, complete and current personally identifiable information requested or required by us; (iii) your access or use of www.motionpoint.com; (iv) access or use of www.motionpoint.com under any password that may be issued to you; (v) your transmissions, or submissions to www.motionpoint.com; and/or (vi) any death, personal injury, property damage or emotional distress caused by you.
We reserve the right to amend this Agreement at any time, from time to time, in our sole discretion. Amendments to this Agreement will be posted here. Amendments will take effect immediately upon our posting of the updated Agreement on www.motionpoint.com. You are encouraged to revisit this Agreement from time to time in order to review any amendments that have been made. Your continued access and use of www.motionpoint.com following the posting of any amendments shall automatically be deemed your acceptance of the amendments.
You acknowledge that we may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement. For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the courts of record of Broward County, Florida, or the United States District Court, Southern District of Florida. You consent to the jurisdiction of such court and waive any objection to the laying of the venue of any such action or proceeding in such court. You agree that service of any court paper may be effected on such party by mail or in such other manner as may be provided under applicable laws, rules of procedure or local rules.
You agree that: (i) www.motionpoint.com shall be deemed solely based in the State of Florida; and (ii) www.motionpoint.com shall be deemed a passive website that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than the State of Florida. This Agreement is to be governed by and construed in accordance with the internal laws of the State of Florida, without regard for principles of conflicts of laws. Any civil action, claim, dispute or proceeding arising out of or relating to this Agreement, except for an injunctive action regarding a breach or threatened breach of any provision of this Agreement by you as provided above, shall be referred to final and binding arbitration, before a single arbitrator, under the commercial arbitration rules of the American Arbitration Association in Broward County, Florida. In the event that any limitation on the period of time for bringing an action, claim, dispute or proceeding against us, located in the “Limitations on Our Liability” section of this Agreement above, is determined or held to be inapplicable or unenforceable by any court, arbitration panel or other tribunal, then the statute of limitations for the State of Florida, including but not limited to Florida Statutes Section 95, shall apply to any such action, claim, dispute or proceeding referred to final or binding arbitration.
YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER WWW.MOTIONPOINT.COM USERS.
THEREFORE, YOU DO NOT HAVE THE OPPORTUNITY TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS AND YOU GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. By using www.motionpoint.com, you consent to these restrictions.
You and we shall select the arbitrator, and if you and we are unable to reach agreement on selection of the arbitrator within thirty (30) days after the notice of arbitration is served, then the American Arbitration Association shall select the arbitrator. Arbitration shall not commence until the party requesting it has deposited One Thousand Dollars ($1,000.00) with the arbitrator for the arbitrator's fees and costs. The party requesting arbitration shall advance such sums as are required from time to time by the arbitrator to pay the arbitrator's fees and costs until the prevailing party is determined or the parties have agreed in writing to an alternate allocation of fees and costs.
Judgment upon any award rendered by the arbitrator shall be final, binding and conclusive upon you and us and your and our respective administrators, executors, legal representatives, successors and assigns, and may be entered in any court of competent jurisdiction. Notwithstanding the previous sentence, in no event shall either you or we be entitled to punitive damages and both you and we hereby waive your and our respective rights to any punitive, special, indirect or consequential damages, including, but not limited to, damages for any loss of profit, revenue or business.
Should a dispute arise and should the arbitration provisions herein become inapplicable or unenforceable, or in any instance of any lawsuit between you and us, jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in Broward County, Florida.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of this Agreement, and shall not limit or otherwise affect in any way the meaning or interpretation of this Agreement.
All covenants, agreements, representations and warranties made in this Agreement, as may be amended by us from time to time, shall survive your acceptance of this Agreement and the termination of this Agreement.
If you have questions, comments, concerns or feedback regarding this Agreement or www.motionpoint.com, please contact us via any of the methods set forth below: