Terms of Use
These terms of use (the “Agreement”) apply to your use of the eMotion..App on any platform or device, including any functions within the eMotion.. App such as Activities and Notifications (collectively, the “App”). The Agreement is a legally binding contract between Shenzhen Ultra Easy Technology Co. Ltd. (“we” “our” or “us”) and any person who accesses or uses the App or any of its functions (“you” or “your”). Please review this Agreement carefully before using the App.
1.Conditions for Use of the App
The App is offered subject to your acceptance without modification of this Agreement. By accessing or using the App, you agree to be bound by all of the terms and conditions of this Agreement as such terms and conditions may be modified by us from time to time in our sole discretion. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT WITHOUT MODIFICATION, THEN YOU MAY NOT ACCESS OR USE THE APP.Please check this Agreement periodically for changes. Your continued access or use of the App following any changes to the Agreement constitutes your acceptance of those changes.
The App must be paired with a compatible eMotion.watch, which you are responsible for obtaining, in order to use all the functionality of the App. The App may not function properly if you do not install any necessary companion applications or firmware or software updates to the App, your mobile device, of the eMotion. watch. You are responsible for your mobile carrier’s rates and fees that may apply while you are using the App. The App may enable you to use your compatible eMotion. watch item to execute certain functions on your mobile device. You assume all risks to your mobile device if you choose to use such features.
These Terms of Use apply only to your use of the App. The eMotion. watch that you pair with this App may be subject to its own terms of use, warranties and other policies (including the way in which those products interact with the App). You should refer to the information that was supplied with your watch to determine your rights and obligations with respect to those products.
2.Age Restrictions
By using the App, you warrant that you are of legal age to form a binding agreement or, if you are at least 14 years of age, but not yet of legal age to form a binding agreement, your parent or legal guardian has consented to your use of the App and accepts this Agreement as a binding agreement on your behalf. You may not use the App if you are not at least 14 years old.
3.Privacy Policy
All information provided and collected in App is handled in accordance with our Privacy Policy, which is hereby incorporated into and made part of this Agreement.
4.Use at Your Own Risk
The App is for your private, non-commercial use. Your use of the App is solely at your own risk. Without limiting any other terms of this Agreement, we do not make any representations, warranties or promises about the accuracy, reliability or effectiveness of any of the App functions or services, including without limitation, the number of steps you’ve taken, calories burned, sleep duration, heart rate and other information. The App is intended to provide a reasonable approximation of information such as the number of steps you’ve taken, calories burned, sleep duration and other information. The App is intended to provide a reasonable approximation of information such as pace, steps, calories burned, distance covered, heart rate and sleep. However, the App relies on the accuracy of the information you input, uses algorithms that are not necessarily perfect and is subject to other factors beyond our control. For instance while a heart rate sensors may typically provide an accurate estimate of a user’s heart rate, there are inherent limitations with the technology that may cause some of the heart rate readings to be inaccurate under certain circumstances, such as the fit of the Device, the physiology of the user and the type and intensity of the activity. We do not guarantee that the information provided by the App is 100% accurate. The App will not precisely track each calorie burned or each step taken, and will not precisely report pace, heart rate, distance covered or sleep. Do not rely on the information provided by the App for medical purposes. It is not a medical device. The App is not intended to provide any recommendations or treatment for any health conditions or physical status. The App is not designed or intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment or prevention of disease. You should consult a medical professional before engaging in any physical activity and for any fitness or health-related recommendations or treatment. Consult your physician before using a heart rate sensor.
5.Limited License
We hereby grant you a limited, personal, non-exclusive, non-transferable, non-assignable, non-sublicensable, and revocable right to install and use the App in accordance with this Agreement. The App is our valuable intellectual property and you obtain no rights to the App except to use it in accordance with this Agreement. You must not: (a) copy, redistribute, publish, reverse engineer, decompile, disassemble, modify, translate or make any attempt to access or use the source code of the App; (b) sell, assign, sublicense, transfer, distribute, lease or grant a security interest in the App; (c) reproduce, duplicate, copy, sell, resell, or exploit for commercial purposes any portion of the App; or (d) use the App in a manner prohibited by applicable laws or this Agreement.
6.Copyright Infringement
If you believe that any App Content infringes upon your copyright, please notify us in writing at:
Shenzhen Ultra Easy Technology Co., Ltd.
General Counsel – Intellectual Property
302-1 Building 1.Guangxingyuan Internet Industrial Park A District,
Baoyuan Road, Baoan District,
Shenzhen 518102
Attn: DMCA Copyright Agent
VIA EMAIL: jm.long@ute-tech.com.cn
Your notice must include (a) a description of the copyrighted work that you claim has been infringed; (b) a description of the location on the App where the allegedly infringing content is located; (c) your full name, postal address, telephone number, and email address; (d) a statement that you have a good faith belief that the use of the allegedly infringing material on the App is not authorized; (e) your physical or electronic signature; and (f) a statement that you are the copyright owner or an authorized agent of the copyright owner.
7.Submissions
We are pleased to hear from our customers and welcome feedback on the App. However, if you send us any ideas, suggestions, drawings, graphics, innovations, concepts, recommendations, or similar materials (“Submissions”) you agree that the Submissions are not confidential. You hereby assign such Submissions to us without compensation (or the expectation of compensation) and agree that we may disclose, reproduce, republish, modify, distribute, display, perform, transmit, sell, or otherwise use your Submissions for commercial or non-commercial purposes with no compensation to you. For any Submissions that cannot be legally assigned to us, you hereby grant us an unrestricted, perpetual, royalty-free, irrevocable and worldwide license to reproduce, republish, modify, distribute, display, perform, transmit, sell, or otherwise use your Submissions for commercial or non-commercial purposes with no compensation to you.
8.Prohibited Conduct
You agree to abide by all applicable laws and not to (a) upload, transmit, post, email, or otherwise make available to the App any material in any format that (i) is false, inaccurate, misleading, fraudulent, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, invasive of another's privacy, or libelous; (ii) infringes any third party's intellectual property or other proprietary right or rights of publicity or privacy; or (iii) contains viruses, worms, Trojan horses, time bombs, corrupted files, or any other software or programs designed to interrupt, interfere, intercept, expropriate, destroy or limit the functionality of the App or any computer software or hardware or equipment associated with the App; (b) alter, remove, or falsify any attributions or other proprietary designations of origin or source of the App or App Content; (c) impersonate any person or entity, including, but not limited to, our employees or officers, or falsely state or otherwise misrepresent your affiliation with any person or entity; (d) attempt, through any means, to gain unauthorized access to the App or another person’s account or information on or through the App; (e) use any robot, scraper, spider, or any other automatic device or manual process to monitor or copy the App or any App Content without our prior express written permission; (f) take any action that imposes an unreasonable or disproportionately large load on the App; (g) take any action that creates liability for us or causes us to lose any of the services of our business partners, vendors or suppliers; or (h) take any action that would cause us to violate any applicable law, statute, ordinance or regulation, or that violates the Agreement.
9.Promotional Information
We may from time to time make information available on the App regarding certain programs, offers, or promotions (“Promotions”). All Promotions are subject to the specific terms, conditions, and restrictions disclosed in connection with such Promotions and are subject to being withdrawn or changed without prior notice. We are not responsible for any typographical or other errors or omissions regarding prices, availability, or other information in connection with Promotions.
10.Other Applications and Websites
The App may contain links or other options to connect to other websites, applications or devices that are not owned or operated by us (“Third Party Apps”). We do not have any control over Third Party Apps and are not responsible for any information, functionality, products, services or content of such Third Party Apps, even if you choose to share information from the App with such Third Party Apps. Your use of the Third Party Apps is subject to the privacy policies and terms of use of the Third Party Apps and you should read and understand them before using any Third Party Apps. We do not represent or imply that we endorse any Third Party Apps. You are responsible for taking the necessary precautions to protect yourself and your device from viruses, worms, and other harmful or destructive content that may be accessible through Third Party Apps. We disclaim any responsibility for any harm resulting from your use of Third Party Apps.
11.Disclaimer
YOU AGREE THAT USE OF THE APP, AND ANY DEVICES YOU CONNECT TO THE APP OR MOBILE DEVICES YOU USE IN CONNECTION WITH THE APP, IS AT YOUR SOLE RISK. THE APP IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR AT OR THROUGH THE APP SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO WARRANTY THAT THE APP WILL MEET YOUR REQUIREMENTS, BE ACCURATE, COMPLETE, CURRENT OR TIMELY, UNINTERRUPTED, SECURE, OR ERROR FREE.
YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICES, INCLUDING MOBILE DEVICES YOU USE IN CONNECTION WITH THE APP, WATCH, OR DATA (INCLUDING LOSS OF DATA) THAT RESULTS FROM YOUR ACCESS OR USE OF THE APP. WE DO NOT WARRANT THAT THE APP IS FREE OF DEFECTS, VIRUSES, MALFUNCTIONS, OR HARMFUL COMPONENTS THAT COULD DAMAGE OR ALLOW UNAUTHORIZED ACCESS TO YOUR DEVICE OR DATA.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE CAUSED, OR ALLEGED TO HAVE BEEN CAUSED, DIRECTLY OR INDIRECTLY, BY THE INFORMATION OR IDEAS CONTAINED, SUGGESTED OR REFERENCED AT OR THROUGH THE APP.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE APP IS APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU ACCESS OR USE THE APP FROM OUTSIDE THE UNITED STATES OF AMERICA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION, EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES.
12.Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR OUR AFFILIATES, LICENSORS, LICENSEES, CUSTOMERS, DEVICE MANUFACTURERS, EMOTION. BRAND OWNER OR EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES (OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS) SHALL BE LIABLE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RESULTING FROM THE APP OR THE USE, ATTEMPTED USE OR INABILITY TO USE THE APP, INCLUDING LOST REVENUE, LOST DATA, DAMAGED DEVICES OR OTHER INTANGIBLES, EVEN IF WE HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, YOU AGREE THAT OUR TOTAL LIABILITY FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE ACTUAL TOTAL AMOUNT, IF ANY, RECEIVED BY US FROM YOU TO ACCESS THE APP OR, IF GREATER, $100. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13.Indemnification
You agree to indemnify, hold harmless, and release us, our subsidiaries, our licensors, our licensees, our customers, the device manufacturers and the eMotion. brand owners, and each of their respective officers, directors, shareholders, employees, agents, representatives (and their respective successors and assigns) from and against any and all claims, damages, costs and expenses, including, but not limited to, reasonable attorney's fees, arising from or related to: (i) your access, use, attempted use, inability to use or misuse of the App; (ii) your violation of any of these Terms of Use; (iii) your violation of any third party right, including without limitation any copyright, property or privacy right; or (iv) any claim that your use of the App caused damage to a third party.
14.Export Controls and Designated Persons
It is possible that software available at or through the App may be subject to United States export controls administered by the United States Commerce Department or sanctions programs administered by the United States Treasury Department. No software available at or through the App may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) any country subject to a United States or United Nation embargo or sanction; (b) to anyone on the United States Treasury Department's list of Specially Designated Nationals and Blocked Persons; (c) to anyone on the United States Commerce Department’s Denied Persons List or Entity List; or (d) to anyone subject to the same or similar restrictions as the foregoing. By downloading or using any software available at or through the App, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any of the above lists or subject to such restrictions.
15.Arbitration
Any dispute, claim, or controversy arising out of or relating to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by individual arbitration in San Diego, California before a single neutral arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Any appeal shall be heard and decided by a panel of three neutral arbitrators. All arbitrators shall be retired judges or justices of any California state or federal court, and shall in their substantive rulings (as opposed to procedural or discovery-related rulings that are otherwise governed by the JAMS Comprehensive Arbitration Rules and Procedures), apply the laws of the State of California without giving effect to any choice or conflict of law provision or rules that would cause the application of the laws of any jurisdiction other than the State of California. The award of the arbitrator(s) shall be binding and final on all parties. The arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator(s) determine a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator(s) may award the prevailing party an appropriate percentage of the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. Judgment on the award rendered may be entered in any court having jurisdiction. The arbitrators may not award any punitive, incidental, indirect, special, or consequential damages, including, but not limited to, damages for lost profits.
Any dispute resolution proceeding arising out of or relating to this Agreement, including arbitration, will be conducted only on an individual basis and not in a class or representative action on behalf of others. There is no right for any dispute hereunder to be brought or heard as a class arbitration, class action, or private attorney general action or for the consolidation of arbitrations. Notwithstanding any other provision in this Agreement, and without waiving any party’s right to appeal, if this waiver of class action is held invalid or unenforceable, then the entire Arbitration clause in Section 17 (with the exception of this sentence) shall not apply.
16.Miscellaneous
If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the remainder of the Agreement, which shall remain in full force and effect. No waiver of any breach or default of the Agreement shall be deemed to be a waiver of any preceding or subsequent breach or default. Our failure to insist upon or enforce strict performance of any terms in this Agreement shall not be considered a waiver of those terms or any of our rights. You may be required to agree to additional terms and conditions to access particular sections or functions of the App. We reserve the right, in our sole discretion and without consent or notice, to transfer, assign, sublicense or pledge the App or this Agreement, in whole or in part, to any person or entity. You may not assign, sublicense or otherwise transfer in any manner any of your rights or obligations under the Agreement. The section headings used in the Agreement are for convenience only.
We may at any time, without notice and for any reason in our sole discretion, modify or discontinue the App or terminate or restrict your access to the App.
May, 2017