YOGANOTCH TERMS OF SERVICE
These Yoganotch Terms of Service ("Agreement") is between the individual or entity ("you") that accepts it, and Notch Interfaces Inc. ("Notch"). You accept this Agreement by clicking an “agree" or similar button, where this option is provided by Notch, or by your use or access to Yoganotch devices or application or by registering a Yoganotch account. Your agreement to these terms also binds your authorized users, your company or organization. If you do not agree to the terms of this Agreement, do not accept it. Before accepting this Agreement, please carefully read it. Capitalized terms used but not defined in the body of this Agreement have the meaning given them in the “Definitions" exhibit. IF YOU DO NOT ACCEPT THIS AGREEMENT PLEASE DO NOT USE YOGANOTCH SERVICE, DEVICES AND DO NOT CREATE YOGANOTCH ACCOUNT.
1. Usage License
1.1. Usage License. Conditioned upon compliance with the terms and conditions of this Agreement, Notch hereby grants you a limited, non-exclusive, personal, revocable, non-sublicensable and non-transferable license to: (a) install Yoganotch software on devices owned or controlled by you (b) access Yoganotch application, and Yoganotch Content provided by Yoganotch Service, (c) use software embedded on Yoganotch Devices. This license is provided for personal and non-commercial use.
1.2. Restrictions. The license granted to you in Section 1.1 is subject to the following restrictions, as well as others listed in this Agreement:
1.2.1. Except as expressly permitted in Section 1.1: (a) you may not publish, distribute or copy Yoganotch software, and (b) you may not modify or create derivative works of Yoganotch software, Yoganotch Content or Yoganotch Devices
1.2.2. You may use the Yoganotch software solely in connection with Yoganotch Devices and Yoganotch Software.
1.2.3. You may not, and may not enable others to, copy (except for backup purposes), modify, reverse engineer, decompile, disassemble, adapt, or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, techniques, design, engineering, or algorithms in the Yoganotch Software, Yoganotch Sensors, Software or any software that forms part of the Yoganotch products, nor attempt to circumvent any related security measures (except as and only to the extent any foregoing restriction is prohibited by applicable law or permitted by applicable law notwithstanding the foregoing restriction).
1.3. Updates. The terms of this Agreement will apply to any Updates that Notch makes available to you. You agree that Updates may require you to change or update your Application, and may affect your ability to use, access or interact with the Yoganotch Software, the Yoganotch Content and Yoganotch Devices.
2. Acknowledgment and Waiver
If you rely on any Yoganotch Content or Yoganotch Service, you do so solely at your own risk. You knowledge that the use of Yoganotch may be associated with physical motions, physical training regimes, or other types of training and development. If you elect to use Yoganotch, you must take steps that ensure that your use of Yoganotch does not present risks of personal injury or death, property damage, or other losses. Yoganotch Sensors, the Yoganotch Software and Yoganotch Content may not always function as intended. You must design your Applications and Devices so that any failure of Yoganotch Sensors, the Yoganotch Software and/or such other software does not cause personal injury or death, property damage, or other losses. If you choose to use Yoganotch, (i) you assume all risk that use of Yoganotch Sensors, the Yoganotch Software, Yoganotch Content and/or such other software by you or by any others causes any harm or loss, including to you, or to third parties, (ii) you hereby waive, on behalf of yourself and third parties, all claims against Notch and its affiliates related to such use, harm or loss (including, but not limited to, any claim that Yoganotch Sensors, the Yoganotch Software, Yoganotch Content or such other software is defective), and (iii) you agree to hold Notch and its affiliates harmless from such claims. The use of Yoganotch should not replace your good judgement, common sense. Please comply with any safety recommendations and provisions associated with physical activity.
3. Confidentiality and Privacy
3.1. Beta Software etc. Obligations. You acknowledge and agree that Notch may share alpha or beta software or hardware with you that it identifies as non-public. If so, you agree not to disclose such software or hardware to others without the prior written consent of Notch until the time, if any, it is made public by Notch, and to use such software or hardware only for the purposes expressly permitted by this Agreement.
3.2. Notch Use of Assets. Subject to the terms and conditions of this Agreement, you grant to Notch and its affiliates a non-exclusive, worldwide and royalty-free limited license to use, reproduce, display, perform, publish and distribute screenshots, elements, assets, photographic, graphic or video reproductions or fragments of the content you may share within Yoganotch Software or Services in any medium or media for purposes of promotion of Yoganotch or Notch and its technology and business. This license will terminate if we terminate this Agreement, or, if you terminate it, if you inform us you have terminated it, except that in both cases the license will continue after termination with respect to any materials we created and first distributed prior to our termination or your notice of termination to us.
You may (but are not required to) provide feedback, comments and suggestions (collectively, "Feedback") to Notch. You hereby grant to Notch a non-exclusive, perpetual, irrevocable, paid-up, transferable, sub-licensable, worldwide license under all intellectual property rights covering such Feedback to use, disclose and exploit all such Feedback for any purpose.5. Your Obligations and Warranties
In addition to your other obligations under this Agreement, you warrant and agree that:
5.1. You are at least 18 years of age and have the right and authority to enter into this Agreement on your own behalf and that of your Authorized Users, or if you are entering into this Agreement on behalf of your company or organization, you have the right and authority to legally bind your company or organization and its Authorized Users.
5.2. You will use Yoganotch only in accordance with all accompanying documentation, in the manner expressly permitted by this Agreement, and your use of the Yoganotch will be in compliance with all applicable laws and regulations and all U.S. and local or foreign export and re-export restrictions applicable to the technology and documentation provided under this Agreement (including privacy and data security laws and regulations).6. Agreement
We reserve the right to change this Agreement, the Yoganotch Software, Yoganotch Content, Yoganotch Services or the licensing program at any time in our discretion. Notch may require that you either accept and agree to the new terms of this Agreement, or, if you do not agree to the new terms, cease or terminate your use of Yoganotch. Your continued use of Yoganotch after changes to this Agreement take effect will constitute your acceptance of the changes. If you do not agree to a change, you must stop using Yoganotch and terminate this Agreement.7. Term and Termination
7.1. Term This Agreement will continue to apply until terminated by either you or Notch as set out below.
7.2. Termination by You If you want to terminate this Agreement, you may terminate it by uninstalling and destroying all copies of Yoganotch that are in the possession, custody or control of you and your organization.
7.3. Termination by Notch Notch may at any time, terminate this Agreement with you for any reason or for no reason in Notch’s sole discretion, including as a result of non-compliance by you with the restrictions in Section 1.2 or Section 2, or for other reasons.
7.4. Effect of Termination Upon termination of this Agreement, all rights granted to you under this Agreement will immediately terminate and you must immediately cease all use and destroy all copies of Yoganotch in your possession, custody or control, and, except as specifically set out in Section 9, cease your distribution of Applications, Devices or Products. Sections 1.2, 2.1, 2.2, 4, 5.1, 5.2, 6, 8.4, 9 and 10 - 12, and the Definitions exhibit, will survive termination of this Agreement.8. Indemnification
You agree to indemnify, hold harmless and, at Notch’s option, defend Notch and its affiliates and their respective officers, directors, employees, agents, and representatives harmless from any and all judgments, awards, settlements, liabilities, damages, costs, penalties, fines and other expenses (including court costs and reasonable attorneys’ fees) incurred by them arising out of or relating to any third party claim (a) with respect to your Application, including products liability, privacy, or intellectual property infringement claims, or (b) based upon your negligence or willful misconduct or any breach or alleged breach of your representations, warranties, and covenants under this Agreement. In no event may you enter into any settlement or like agreement with a third party that affects Notch rights or binds Notch in any way, without the prior written consent of Notch.9. Warranty Disclaimer
YOGANOTCH, THE YOGANOTCH SENSORS, THE YOGANOTCH SOFTWARE AND THE YOGANOTCH CONTENT ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. NOTCH, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY DISCLAIMS ALL REPRESENTATIONS, PROMISES, OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO YOGANOTCH, THE YOGANOTCH SENSORS, THE YOGANOTCH SOFTWARE AND THE YOGANOTCH CONTENT, INCLUDING THEIR CONDITION, AVAILABILITY, OR THE EXISTENCE OF ANY LATENT DEFECTS, AND NOTCH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SUITABILITY, AND FITNESS FOR ANY PURPOSE. NOTCH DOES NOT WARRANT THAT THE SDK, THE YOGANOTCH SENSORS, THE YOGANOTCH SOFTWARE OR THE YOGANOTCH CONTENT WILL BE ERROR-FREE OR THAT THEY WILL WORK WITHOUT INTERRUPTION.10. Limitation of Liability
IN NO EVENT WILL NOTCH’S LIABILITY, OR THOSE OF ITS SUPPLIERS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO YOGANOTCH EXCEED ONE HUNDRED DOLLARS. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, OR A BREACH OF THE LICENSE RESTRICTIONS OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
11.1. Assignment You may not assign this Agreement without the prior written consent of Notch. Any assignment without such consent is void and of no effect. Notch may assign this Agreement without your consent in connection with (a) a merger or consolidation of Notch, (b) a sale or assignment of substantially all its assets, or (c) any other transaction which results in another entity or person owning substantially all of the assets of Notch. In the event of a permitted assignment, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
11.2. Waiver; Severability The failure of the other party to enforce any rights under this Agreement will not be deemed a waiver of any rights. The rights and remedies of the parties in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.
11.3. Reservation All licenses not expressly granted in this Agreement are reserved and no other licenses, immunity or rights, express or implied, are granted by Notch, by implication, estoppel, or otherwise. The software in Yoganotch is licensed, not sold.
11.4. Export Restrictions The software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users, and end use.
11.5. Governing Law and Jurisdiction This Agreement will be exclusively governed by and construed under the laws of the State of New York, without reference to or application of rules governing choice of laws. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in New York, New York and you hereby consent to such jurisdiction. However, Notch may apply to any court or tribunal worldwide, including but not limited to those having jurisdiction over you or your Authorized Users, to seek injunctive relief.
11.6. Relationship of the Parties This Agreement does not create any agency, partnership, or joint venture relationship between Notch and you. This Agreement is for the sole benefit of Notch and you (and indemnified parties), and no other persons will have any right or remedy under this Agreement.
11.7. Notice The address for notice to Notch under this Agreement is: Notch Interfaces Inc. 544 Park Avenue Brooklyn, NY 11205 USA Attention: Yoganotch Customer Relations Notch may provide you notice under this Agreement by email or other electronic communication or by posting communications to Yoganotch community on the Yoganotch website. You consent to receive such notices in any of the foregoing manners and agree that any such notices by Notch will satisfy any legal communication requirements.
11.8. Entire Agreement This Agreement is the entire understanding of the parties with respect to its subject matter and supersedes any previous or contemporaneous communications, whether oral or written with respect to such subject matter.
Whenever capitalized in this Agreement: "End User" means you "Notch" "we" or "us" means Notch Interfaces Inc., a Delaware corporation with a principal place of business at 544 Park Avenue, Brooklyn, New York, 11205, USA. "Yoganotch Sensors" means the motion capture sensors (“notches"), wearable devices that form a wireless sensor network, collect and process motion data from onboard sensors provided by Notch Interfaces Inc.. "Yoganotch Software" means the Yoganotch core services application and related applications that interact with Yoganotch or Notch Sensors and an operating system to make motion control functionality available to Applications, and includes any Updates thereto. "Yoganotch Content" means video, audio and graphic materials produced by Notch Interfaces Inc. and affiliated parties provided with Yoganotch application or through Yoganotch website or through the website or application of affiliated parties. "Non-Redistributable Materials" means the Yoganotch Software, and any other code, files or materials that are not specifically designated in Yoganotch as made available for incorporation into Applications or Devices or that are specifically designated in Yoganotch as not subject to distribution. "Yoganotch Devices" means devices, accessories, straps, mounts, clothing, and other hardware items that are provided as part of Yoganotch product offering. "Updates" means updates, upgrades, modifications, enhancements, revisions, new releases or new versions to Yoganotch that Notch may make available to you in connection with this Agreement. Other capitalized terms used in this Agreement have the meaning given them elsewhere in this Agreement.