Thank you for your interest in Fullpower Technologies, Inc. (“Company”). These terms of use (“Terms”) govern your use of the Company Web sites located at http://www.sleeptracker.com/, http://www.motionx.com and http://www.mymotionx.com (the “Sites”) and the products (including software), services, information and other materials included in or otherwise made available through the Sites (collectively, the “Company Network”). Please read these Terms carefully. By using the Company Network, you are stating that you have read and understand, and agree to be bound by, these Terms. If you do not agree to these Terms, you are not permitted to use the Company Network.
1. Your Responsibilities. You are responsible for obtaining and maintaining all equipment and services needed for access to and use of the Company Network and for paying all charges related thereto. When you register to become a member of the Company Network, Company collects certain personal information about you. You agree that Company may use any information Company obtains about you in accordance with the provisions of Company’s Privacy Policy. You agree to: (a) provide true, accurate, current, and complete information as prompted by the registration form; and (b) maintain and update such information to keep it true, accurate, current, and complete at all times. In addition, you agree not to use the Company Network to: (a) violate any local, state, national, or international law or regulation; (b) transmit any material that is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; (c) transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; (d) transmit any material that contains adware, malware, spyware, software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (e) stalk, harass, or harm another individual; (f) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or (g) interfere with or disrupt the Company Network or servers or networks connected to the Company Network, or disobey any requirements, procedures, policies, or regulations of networks connected to the Company Network.
2. User Submissions. Company does not claim ownership of any information, data, text, software, music, sound, photographs, graphics, video, messages, tags or other materials you elect to submit through the Company Network (collectively, “User Submissions”). As between Company and you, you own all rights to your User Submissions. However, you grant to Company and Company’s affiliates, representatives, and assigns an irrevocable, perpetual, non-exclusive, fully-paid, world-wide, license (sublicensable through multiple tiers) to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display your User Submissions (in whole or in part) in any format or medium now known or later developed (including, for example, but without limitation, mobile technology devices and software, gaming platforms, and all other digital environments) without any accounting, payment, notification, credit, or other obligation to you. Company reserves the right to display advertisements in connection with User Submissions and to use User Submissions for advertising and promotional purposes. Company does not pre-screen User Submissions and you agree that you are solely responsible for all of your User Submissions. Company is not required to host, display, or distribute any User Submissions, and may remove at any time or refuse any User Submissions. Company is not responsible for any loss, theft or damage of any kind to any User Submissions. You represent and warrant that: (a) you own all rights in your User Submissions (including, without limitation, all rights to the audio, video, or digital recording, and the performance contained in your User Submissions) or, alternatively, you have acquired all necessary rights in your User Submissions to enable you to grant to Company the rights in your User Submissions described herein; (b) you have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of your User Submissions; (c) you are the individual pictured and/or heard in your User Submissions, or, alternatively, you have obtained permission from each person (including consent from parents or guardians for any individual under the age of eighteen (18)) who appears and/or is heard in your User Submissions to grant the rights to Company described herein; (d) you will make such permissions available to Company upon request; and (e) your User Submissions do not infringe the intellectual property rights, privacy, or any other legal or moral rights of any third party.
3. Copyright Infringement. Company respects the intellectual property rights of others. Accordingly, Company has a policy of removing User Submissions that violate copyright law, suspending access to the Company Network (or any portion thereof) to any user who uses the Company Network in violation of copyright law, and/or terminating in appropriate circumstances the account of any user who uses the Company Network in violation of copyright law. Pursuant to Title 17 of the United States Code, Section 512, Company has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright is being infringed by a user of the Company Network, please provide written notice to the following Company agent for notice of claims of copyright infringement.
Arthur Kinsolving
Fullpower Technologies, Inc.
1200 Pacific Avenue, Suite 300
Santa Cruz, CA 95060
Tel: (831) 460-7070
Fax: (831) 460-7071
Your written notice must: (a) contain your physical or electronic signature; (b) identify the copyrighted work alleged to have been infringed; (c) identify the allegedly infringing material in a sufficiently precise manner to allow Company to locate that material; (d) contain adequate information by which Company can contact you (including postal address, telephone number, and e-mail address); (e) contain a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, the copyright owner's agent, or the law; (f) contain a statement that the information in the written notice is accurate; and (g) contain a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner. Please do not send notices or inquiries unrelated to alleged copyright infringement to Company’s designated agent.
4. Termination. Company may terminate your Company Network membership or suspend your access to all or part of the Company Network, without notice, if you violate these Terms or you engage in any conduct that Company, in its sole and absolute discretion, believes is in violation of any applicable law or regulation or is otherwise harmful to the interests of Company, any other Company Network user, or any third party. YOU AGREE THAT COMPANY SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR REMOVING YOUR USER SUBMISSIONS OR SUSPENDING OR TERMINATING YOUR ACCESS TO THE COMPANY NETWORK (OR ANY PORTION THEREOF). You may discontinue your participation in and access to the Company Network at any time. Company reserves the right to investigate your use of the Company Network in the event Company, in its sole and absolute discretion, believes you have violated these Terms.
5. Modifications To Terms. Company may, in its sole and absolute discretion, change these Terms from time to time. Company will post notice of such changes on the Sites. If you object to any such changes, your sole recourse shall be to cease using the Company Network. Continued use of the Company Network following notice of any such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
6. Modifications To Company Network. Company reserves the right to modify or discontinue the Company Network with or without notice to you. YOU AGREE THAT COMPANY SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY SHOULD COMPANY EXERCISE ITS RIGHT TO MODIFY OR DISCONTINUE THE COMPANY NETWORK.
7. Fees. Company reserves the right at any time to charge fees for access to new Company Network content or services or to portions of the existing Company Network content or services or to the Company Network as a whole. In no event will you be charged for access to any Company Network content or service, or to the Company Network as a whole, unless we obtain your prior agreement to pay such charges. If you do not consent to such charges, however, you may not have access to paid content or services.
8. Password and Security. You are responsible for maintaining the confidentiality of your Company Network password, and you are solely responsible for all activities that occur under your password. You agree to immediately notify Company of any unauthorized use of your password or any other breach of security related to the Company Network. Company reserves the right to require you to alter your password if Company believes that your password is no longer secure. YOU AGREE THAT COMPANY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM YOUR FAILURE TO ADEQUATELY SAFEGUARD YOUR PASSWORD.
9. Links. Company’s provision of a link to any other Web site or Internet resource is for your convenience only and does not signify Company’s endorsement of such other Web site or resource or its contents. YOU AGREE THAT COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY INFORMATION, SOFTWARE, OR MATERIALS FOUND AT ANY OTHER WEB SITE OR INTERNET RESOURCE.
10. No Commercial Use. You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Company Network, use of the Company Network, or access to the Company Network. The Company Network is provided solely for your personal, noncommercial use.
11. Disclaimer of Warranties. YOU EXPRESSLY AGREE THAT USE OF THE COMPANY NETWORK IS AT YOUR SOLE RISK. THE COMPANY NETWORK IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE COMPANY NETWORK (INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT). COMPANY MAKES NO WARRANTY THAT THE COMPANY NETWORK WILL MEET YOUR REQUIREMENTS, OR THAT THE COMPANY NETWORK WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. COMPANY MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE COMPANY NETWORK, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE COMPANY NETWORK, OR THAT DEFECTS IN THE COMPANY NETWORK WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE COMPANY NETWORK IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING THEREFROM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE COMPANY NETWORK SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
12. Limitation of Liability. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM YOUR (OR ANYONE USING YOUR ACCOUNT’S) USE OF THE COMPANY NETWORK.
13. Exclusions And Limitations. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that Company may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Company’ liability shall be the minimum permitted under such applicable law.
14. Indemnification. You agree to indemnify, defend, and hold harmless Company, its parents, subsidiaries, affiliates, officers, directors, employees, consultants and agents from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees) that such parties may incur as a result of or arising from your (or anyone using your account’s) violation of these Terms. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Company’s defense of such claim.
15. Trademarks. MOTIONX, FULLPOWER, TAPTAP, SHAKESHAKE, TILTTILT, and TILT ‘N ROLL, SLEEPTRACKER, as well as certain other of the names, logos, and materials displayed in the Company Network, constitute trademarks, trade names, service marks or logos (“Marks”) of Company or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with Company or those other entities.
16. Copyrights; Restrictions on Use. The content on the Sites (the “Content”), including without limitation, video, text, photos, and graphics, is protected under United States and international copyright laws, is subject to other intellectual property and proprietary rights and laws, and is owned by Company or its licensors. The Content may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without the prior written permission of Company and its applicable licensors, with the sole exception that one copy may be downloaded onto a single computer for your personal, noncommercial use. You must abide by all copyright notices, information, or restrictions contained in or attached to any Content. The forgoing restrictions, however, shall not apply with respect to your own User Submissions.
17. Miscellaneous. These Terms, together with the terms of any end user license agreement to which you agree when downloading any software that Company makes available through the Company Network and any additional terms to which you agree when using particular elements of the Company Network, constitute the entire and exclusive and final statement of the agreement between you and Company with respect to the subject matter hereof, and govern your use of the Company Network, superseding any prior agreements or negotiations between you and Company with respect to the subject matter hereof. These Terms and the relationship between you and Company shall be governed by the laws of the State of California as applied to agreements made, entered into, and performed entirely in California by California residents, notwithstanding your actual place of residence. All lawsuits arising from or relating to these Terms or your use of the Company Network shall be brought in the Federal or State courts located in San Francisco County, California, and you hereby irrevocably submit to the exclusive personal jurisdiction of such courts for such purpose. The failure of Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you nevertheless agree that the court should endeavor to give effect to the intentions of Company and you as reflected in the provision, and that the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Company Network or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms are for convenience only and have no legal or contractual effect. The terms of Sections 2 and 11 through 17 of these Terms, as well as any other limitations on liability explicitly set forth herein, shall remain in full force and effect notwithstanding any termination of your use of the Company Network.