Terms of Service

Terms of Service – Last Update August 5, 2014

Copyright & Trademark

“MOTION MATH”, “QUESTIMATE”, all titles, characters, scripts, icons and all graphics on the Site of Motion Math, Inc. and its affiliates, are service marks, trademarks, and/or trade dress of Motion Math, Inc. or its affiliates. Use, reproduction, copying or redistribution of trademarks, without the written permission of Motion Math, Inc. or its affiliates is prohibited. All other trademarks or servicemarks appearing on the Site are the marks of their respective owners. Apple and the Apple logo are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc. Unless otherwise noted, all content on the Site is copyrighted by Motion Math.

Acceptance

Welcome to Motion Math, Inc.’s website. These Terms of Use govern your use of www.motionmathgames.com, accounts.motionmathgames.com and any successor websites of the foregoing (collectively, the “Site”), any Motion Math software, downloaded from this Site or obtained elsewhere (the “Software”), and all of the services made available on the Site (the “Services”). By using the Software, Services or visiting or browsing the Site, you acknowledge that you have read, understood, and agreed to be bound by these Terms of Use and any modifications that may be made to these Terms of Use from time to time. In addition, to the extent our Services or Software require you to set up an account with a password, if you are designated as the parent or legal guardian in the account, or are otherwise the person who first registers for a Service in such account, you agree to be responsible for ensuring that all users on your account comply with these Terms of Use and any modifications that may be made to the Terms of Use from time to time. If you do not agree to these Terms of Use, you should not use the Services or Software, or visit or browse the Site.

These Terms of Use constitute a binding legal agreement between you and Motion Math, Inc. (“Motion Math,” “we,” “us,” and “our”). If you are using the Site, Services or Software, on behalf of any entity or person (including child), you represent and warrant that you are authorized to accept these Terms of Use on such entity’s behalf or such person’s behalf, and that such entity or person agrees to indemnify you and Motion Math for violations of these Terms of Use. Please read these Terms of Use carefully before accessing or using the Site, Software or the Services.

For purposes of these Terms of Use and Motion Math, Inc.’s Privacy Policy, the phrases “Individual Customer” or “customers that are individuals”, means an individual or family who has directly purchased a Motion Math product or service for personal or family use and “School Customer” means an educational institution that has purchased products or services and provisions accounts for individual student users.

Modifications

We reserve the right to modify these Terms of Use at any time and in any manner at our sole discretion, including the fees for the Software or Services. Notice of any material modification of these Terms of Use will be posted in this section of the Site, and any such modifications will be effective upon the posting of such notice. Your continued use of the Site, Software or the Services constitutes your binding acceptance of such modifications. Please check this section of the Site before using the Site, Software or the Services to determine whether a change has been made to these Terms of Use. If you do not agree to any changes in the Terms of Use as they may occur, please arrange to terminate your registration with the Site immediately and discontinue your use of the Service, Software and the Site. You agree that we are not liable to you or to any third party for any modification of the Terms of Use.

Registration

Before you can use certain parts of the Software or Services, you may be required to register an account through the Site. If you are a customer that is an individual, you must be 18 years of age or older to register for a Motion Math account. In that event, however, you may add or register additional users to use the Services who are younger than 18 years old if you are such users’ parent or legal guardian. For the avoidance of doubt, if you are a School Customer, the preceding sentence does not apply to you, as the school is neither an individual nor under 18 years of age. You agree to provide true, accurate, current, and complete information about yourself and the users of the account as prompted by the Site’s registration form (such information, being the “Registration Data”), and you agree to maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or we have any reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, we may suspend or terminate your account and refuse to offer you any and all current or future use of the Services, Software and the Site. If you are a customer who is an individual, you agree that, if you provide any personally identifiable information about a child under age 13 in order to allow them to use the Site, Software or Services, that you are the parent/legal guardian of such child and that you consent to the child’s use of the Site, Software and Service and agree to be bound to these Terms of Use with respect to the child’s use. You understand that the privacy policy will apply to the child’s use of the Site, Software and Service.

For our School Customers, as explained in Motion Math’s Privacy Policy, Motion Math does not use personally identifiable information (as that term is defined by the Family Educational Rights and Privacy Act) provided by the School Customer about student users for any purpose other than to provide services to the School Customer and the student user.  Such information is maintained confidentially not shared with or sold or otherwise provided to third parties.  Additionally, to the extent that Motion Math collects, uses, or discloses any personal information (as that term is defined by the Children’s Online Privacy Protection Act) from children under the age of 13, that information is used solely to permit Motion Math to provide services to the School Customer and the student user.

You are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer. You are solely responsible for any activity related to your account. If you suspect any unauthorized use of your account, notify us immediately. You acknowledge and agree that we may preserve user information and may also disclose user information, if required to do so by law or if we believe, in good faith, that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms of Use; (c) respond to claims that any Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Motion Math, Inc., its users, or the public. Without limiting the foregoing, parents, legal guardians, and school officials who have registered accounts hereunder, understand that they are responsible for the acts and activities of their minor children in connection with any use of the Site, Software, and/or Software, and that the privacy policy will apply to their family’s use of the foregoing.

Fee Based Services and Software

Some Services and Software may be offered to you on a fee basis. All fees are quoted and must be paid in U.S Dollars. If you elect to purchase fee-based Services or Software and transmit to Motion Math a purchase request, you warrant that your use of the particular credit card or other Motion Math accepted payment method is authorized and that all information that you submit to Motion Math, or any third party designated by Motion Math, is true and accurate (including, without limitation, your credit card number and expiration date), and you agree to pay all fees, including any applicable sales taxes, you incur. Any account name, password, or user ID supplied to you in connection with any fee-based Services or Software you purchase is personal to you and the members of your household, and you may not transfer or make available your account name, password, or user ID to others. Any distribution by you of such account name, password, and/or user ID may result in cancellation of the fee-based Services and Software without refund and the imposition of additional charges based on your unauthorized use.

The Motion Math Blog

All posts by the authors, guest authors, and visitors reflect personal thoughts and opinions which are not necessarily those of the company.

Licenses

When you post Content, you hereby grant (or warrant that the owner of the Content grants) us and each user of the Site, Software or the Services a royalty-free, perpetual, irrevocable, fully sub-licensable, worldwide, non-exclusive right to use, reproduce, modify, translate, adapt, publish, create derivative works of, transmit, distribute, perform, display, delete (in whole or in part), and incorporate the Content for any purpose and without acknowledgement to you. By posting or providing Content, you represent and warrant that public posting and use of your Content by us and any of our users will not infringe on or violate the rights of any third party.

In addition, subject to the terms of this Agreement, we grant to you a limited, personal, non-exclusive, non-transferable license to use the Software solely to use the Service to the extent you have the right to access the Service. Your right to access the Service will be limited by the terms of this Agreement. Except for this license granted to you, we retain all right, title, and interest in and to the Software, including all related intellectual property rights. The Software and Services are protected by applicable intellectual property laws, including United States copyright law and international treaties. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Software and/or Services; (b) rent, lease, or sublicense the Software and/or Services; nor (c) circumvent or disable any security or technological features or measures in the Software and/or Services. You may not export or re-export the Software and/or Services without (a) the prior written consent of Motion Math; and (b) complying with applicable export control laws and obtaining any necessary permits and licenses.

Usage Guidelines and Restrictions

You agree not to use the Site, Software or the Services to:

  1. upload, post, e-mail, or otherwise transmit any Content that discusses illegal activities with the intent to commit them 
  2. upload, post, e-mail, or otherwise transmit any Content that contains personally identifying information (such as actual names, phone numbers, mailing addresses, e-mail addresses and URL), unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
  3. harm minors in any way or write comments that in any way refer to person(s) under 18 years of age with personally identifiable information;
  4. impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
  5. upload, post, e-mail, or otherwise transmit Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships, or under nondisclosure agreements);
  6. upload, post, e-mail, or otherwise transmit Content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights (“Rights”) of any party;
  7. upload, post, e-mail, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “spam,” “chain letters,” “pyramid schemes,” or any other forms of solicitation;
  8. upload, post, e-mail, or otherwise transmit any material that contains 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;
  9. interfere with or disrupt the Services, Software, the Site, or servers or networks connected to the Site, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site;
  10. intentionally or unintentionally violate any applicable local, state, national, or international law, “stalk” or otherwise harass another, or collect or store personal data about other users;
  11. use any automated means to access the Site, Software or the Services or collect any information from the Site, Software or the Services (including, without limitation, robots, spiders, or scripts); or
  12. frame the Site, Software or the Services, utilize framing techniques to enclose any service mark, logo, or other proprietary information, place pop-up windows over its pages, or otherwise affect the display of its pages. This means, among other activities, that you must not engage in the practices of “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information.

Content

The Site, Software and the Services may allow you and other third parties to post data, text, code, messages, opinions, advice, statements, reviews, comments, and other materials and information (collectively, “Content”). All Content, whether publicly posted on or privately transmitted via the Site, Software or the Services, is the sole responsibility of the person from whom the Content originated and not of Motion Math, Inc., or its shareholders, directors, officers, or employees. Motion Math, Inc. may review and delete any Content, in whole or in part, that in the sole judgment of Motion Math, Inc. violates these Terms of Use or that might be offensive, illegal, or that might violate the rights of or harm any third parties. Nonetheless, under no circumstances will Motion Math, Inc. or its stockholders, directors, officers, employees, agents, representatives, partners, or affiliates be held liable for any loss or damage caused by your reliance on Content obtained through the Site, Software or the Services. It is your responsibility to evaluate the Content available through the Services, Software or the Site. Although Content will not be pre-screened or reviewed, we reserve the right to refuse or delete any Content.

DO NOT SUBMIT OR DISTRIBUTE ANY UNSOLICITED SUBMISSIONS; NO IMPLIED CONTRACT. Motion Math does not accept or consider any creative ideas or suggestions relating to products or marketing plans unless it has specifically requested them. Therefore, please do not send to Motion Math any creative or original materials such as ideas for software products, games, or other products, or any other creative suggestions, ideas, notes, drawings, concepts or other information. Motion Math shall be free to use any such ideas, concepts, know-how, or techniques contained in any communication you send to the Site for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products using such information and shall not be liable to you or to any person claiming through you for any exploitation or disclosure of any submission.

Termination

You agree that Motion Math, Inc., in its sole discretion, may terminate your password, account (or any part thereof), and use of the Site, Software and the Services, and remove and discard any Content within the Site, for any reason, including, without limitation, for lack of use or if Motion Math, Inc. believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Use. Motion Math, Inc. may also in its sole discretion and at any time modify or discontinue providing the Site or the Services, or any part thereof, with or without notice.  You agree that any modification or termination of your access to the Site, Software or the Services may be effected without prior notice, and you acknowledge and agree that Motion Math, Inc. may immediately deactivate or delete your account and all related information and Content in your account and bar any further access to such information or to the Site, Software or the Services. Further, you agree that Motion Math, Inc. shall not be liable to you or any third party for any modification or termination of your access to the Site, Software, or the Services.

Privacy

Any information submitted on the Site or the Services is subject to our Privacy Policy, the terms of which are incorporated into these Terms of Use.  Please review our Privacy Policy carefully.

Disclaimer of Warranty/Limitation of Liability.

THIS SITE AND ANY INFORMATION, PRODUCTS OR SERVICES HEREIN ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR USE OF A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

Motion Math, Inc. does not warrant, and hereby disclaims any warranties, either express or implied, with respect to the accuracy, adequacy or completeness of any Site, information obtained from the Site, or link to a Site. Motion Math, Inc. does not warrant that Site will operate in an uninterrupted or error-free manner or that the Site is free of viruses or other harmful components. Use of information obtained from or through these Sites is at your own risk.

YOU AGREE THAT MOTION MATH, INC WILL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES, EITHER ACTUAL OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THESE TERMS, OR TO YOUR (OR ANY THIRD PARTY’S) USE OR INABILITY TO USE THE SITE, OR TO YOUR PLACEMENT OF CONTENT ON THE SITE, OR TO YOUR RELIANCE UPON INFORMATION OBTAINED FROM OR THROUGH THE SITE. IN PARTICULAR, MOTION MATH, INC WILL HAVE NO LIABILTY FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR DEFAMATION, ERRORS, LOSS OF DATA, OR INTERRUPTION IN AVAILABILITY OF DATA), ARISING OUT OF OR RELATING TO THESE TERMS, YOUR USE OR INABILITY TO USE A SITE, OR ANY PURCHASES ON THIS SITE, OR YOUR PLACEMENT OF CONTENT ON A SITE, OR TO YOUR RELIANCE UPON INFORMATION OBTAINED FROM OR THROUGH A SITE, WHETHER BASED IN CONTRACT, TORT, STATUTORY OR OTHER LAW, EXCEPT ONLY IN THE CASE OF DEATH OR PERSONAL INJURY WHERE AND ONLY TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY.

Motion Math, Inc. makes no representation regarding your ability to transmit and receive information from or through the Site and you agree and acknowledge that your ability to access the Site may be impaired. Motion Math, Inc. disclaims any and all liability resulting from or related to such events.

If you are dissatisfied with the Site, Services and/or Software, or with any terms, conditions, rules, policies, guidelines or practices of using the Site, Services and/or Software, your sole remedy is to discontinue using the Site, Services and/or Software.

Indemnity

You agree to indemnify and hold Motion Math, Inc. or its stockholders, directors, officers, employees, agents, representatives, partners, or affiliates harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, arising out of, resulting from or connected with the use, modification, misinterpretation, misuse, or reuse by you of the Site, the Software, the Services, or Content, including without limitation these Terms of Use. For the avoidance of doubt, your indemnification obligations described in this section will not apply in the event that a loss, liability, claim, or demand is caused by our gross negligence.

Links and Advertising

The Site may include links to websites maintained or controlled by others. Motion Math, Inc. is not responsible for and does not routinely screen, approve, review or endorse the contents of or use of any of the products or services that may be offered at these webites..

Your correspondence or business dealings with, or participation in promotions of, other users, advertisers, or partners found on or through the Site, Software or the Services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such user, advertiser, or partner. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or partners on the Site, Software or the Services.

Choice of Law/Forum Selection.

These Terms of Use are governed in all respects by the laws of the State of California, U.S.A., as such laws are applied to agreements entered into and to be performed entirely within California between California residents. Any controversy or claim arising out of or relating to these Terms of Use, the Services, the Software, or the Site will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in San Francisco County, California, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. The award of the arbitrator will be final and binding upon the parties without appeal or review except as permitted by California law. Notwithstanding the foregoing, either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration. By using the Site, Software or the Services, you consent and submit to the exclusive jurisdiction and venue of the state and federal courts located in San Francisco County, California, U.S.A.

Motion Math controls and operates this Site from its offices in San Francisco, California, USA and makes no representation that these materials are appropriate or available for use in other locations. If you use this Site, Software and Services from other locations you are responsible for compliance with applicable local laws. If any portion of these terms is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law to the greatest extent possible and the remainder of the provisions shall remain in full force and effect.

Release

In the event that you have a dispute with one or more users of the Site, Software or the Services, you release Motion Math, Inc. and its stockholders, directors, officers, employees, agents, representatives, partners, and affiliates from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code — 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

Claims of Copyright Infringement

Motion Math, Inc. respects the intellectual property rights of others, and requires that the people who use the Site, Software and the Services do the same. If you believe your copyright has been violated on the Site, please give notice as stated under Reporting of Alleged Copyright Infringement.If we receive such a claim, we reserve the right to refuse or delete Content as described under these Terms of Use and to terminate a user’s account. Our designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act OF 1998 (“DMCA”) is:

582 Market St., Suite 511
San Francisco, CA 94104
Attn: Copyright Infringement

General

Motion Math, Inc.’s failure to act in a particular circumstance does not waive its ability to act with respect to that circumstance or similar circumstances. By using the Site, Software or the Services, you consent to receiving electronic communications from Motion Math, Inc. These communications will include notices about your account and information concerning or related to the Software or Services. You agree that any notice, agreements, disclosure, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. Motion Math, Inc. is excused for any failure to perform to the extent that its performance is prevented by any reason outside of its control. In these Terms of Use, the word “including” shall be construed as if followed by the words “but not limited to.” These Terms of Use, together with our Privacy Policy, comprise the entire agreement between you and Motion Math, Inc. and supersede all prior agreements between the parties regarding the subject matter contained herein.

Questions

If you have questions regarding these Terms of Use, contact us at info@motionmathgames.com.