1. ACCEPTANCE OF TERMS
Modio LLC (“Modio”, “we”, “us” and/or “our”) welcomes you. Modio provides access to Plot Services (defined below) to you subject to these Terms and Conditions (“TAC”), which may be updated by us from time to time. “You” or “your” means you, the Individual using Plot Services, and, jointly and severally, the entity or organization that is using Plot Services through or because of you. You represent and warrant that the individual using Plot Services can bind the forgoing entity or organization to these TAC. You can review the most current version of these TAC at any time at https://theplot.io/terms. By accessing Plot Services, you accept and agree to be bound by the terms and provisions of these TAC. In addition, when using Plot Services you shall be subject to any posted guidelines or rules applicable to such services, which may be modified from time to time, or changes to these TAC, all which may be posted on the website and/or application, and/or emailed to your current email address in your account. All such guidelines, rules or modifications are hereby incorporated by reference into these TAC. Your continued use of Plot Services following Modio’s notice or posting will constitute your acceptance of such changes. It is your responsibility to check regularly for changes to these TAC or rules or guidelines, and ensure that any contact information you provide to Modio is updated and correct. After you have enrolled for Plot Services, as noted below, if these TAC or any future changes to these TAC or guidelines or rules are unacceptable to you, your sole remedy is to cancel your participation in Plot Services.
2. YOUR ENROLLMENT AND CERTAIN OBLIGATIONS BY UTILIZING THIS WEBSITE AND/OR APPLICATION, AND/OR BY COMPLETING THE ENROLLMENT PROCESS AND CLICKING THE “I ACCEPT” BUTTON, AND/OR IN CONSIDERATION OF YOUR USE OF PLOT SERVICES YOU:
(a) agree to be bound by these TAC, and (b) represent, covenant and warrant that, (i) if you are an individual, you are 18 years old or older or; if you are an entity, that you are a corporation, partnership, or other legal entity duly formed in good standing where required to do business with all legal authority, and (ii) you have the power and authority to enter into and perform under these TAC, and you are not a person (or an entity, and/or representing an entity) barred from receiving Plot Services under the laws of the United States or other applicable jurisdiction.
You also agree to: (a) provide true, accurate, current and complete information, including but not limited to your email address, and billing and payment-related information and other account information, about yourself and any person or entity, as prompted by Plot Service’s enrollment form or otherwise (“Your Data”) or as required by Law, (b) maintain and promptly update Your Data to keep it true, accurate, current and complete, and (c) carefully and fully follow all Modio instructions
In addition, you represent, warrant, and covenant that: (i) your use of Plot Services is solely for lawful purposes, (ii) all information and/or Content (defined below) you provide to or post to Modio or Plot Services, in whatever media or medium is free of viruses, Trojan horses, trap doors, backdoors, Easter eggs, logic bombs, worms, time bombs, cancelbots, and/or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any Modio data, information, systems and/or equipment, (iii) submission of information or Content by you to Modio will not: cause damage to a user’s computer, download a software application(s), change a user’s settings, or create a series of multiple, sequential, stand-alone advertisements (including by pop-up window or pop-under window), (iv) the information and/or Content you provide to Modio, and/or any act or omission by you relating to Plot Services: (a) do not violate any applicable law (including, without limitation, the Fair Credit Reporting Act), statute, directive, ordinance, treaty, contract, or regulation, or Modio policies or guidelines (collectively, “Laws”), (b) do not infringe any copyright, patent, trademark, trade secret, or other intellectual property right of any person or entity, (c) do not breach any duty toward, or rights of, any person or entity, including rights of publicity and/or privacy, (d) are not false, deceptive, misleading, unethical, defamatory, libelous, or threatening, and (e) do not (as determined by Modio) reflect poorly on or tarnish the business, reputation or goodwill of Modio, (v) you will not reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of any of the Plot Services, or any aspect or portion thereof, (vi) you will not alter or remove any identification, trademark, copyright, or other notice from any aspect of Plot Services, and (vi) you will comply with any trade sanction, and/or import or export regulation that applies to your use of Plot Services, and obtain all necessary licenses to use, export, re-export, or import Plot, as applicable.
If you provide any information that is untrue, inaccurate, not current or incomplete, fail to promptly update Your Data to keep it true, accurate, current and complete, and/or you are in breach of these TAC, and/or Modio has grounds to suspect that (i) information you provided is untrue, inaccurate, not current or incomplete, and/or such information is in violation of these TAC, and/or (ii) you are and/or shall be in breach of these TAC, in addition to all other rights and remedies available to Modio, Modio has the right to suspend or terminate your account, without notice, and refuse any and all current or future use of Plot Services (or any portion thereof).
3. DESCRIPTION OF PLOT SERVICES
“Plot Services” are any and all products and/or services provided to you by Modio, including, without limitation, through this and/or any other website or application of Modio, and/or any web presence of Modio. Plot Services, also include, without limitation, Plot Services modified, amended, deleted or added to (including, without limitation new or different features, updates and/or augmentations), at any time, with or without notice. Without limiting the foregoing, Plot Services may include but are not necessarily limited to the ability to (i) upload and view images and drawings, and receive text related to the images and drawings, and (ii) download digital products from https://modio.tv/shop/, or such other location as we may designate.
You are responsible for obtaining access to Plot Services, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees. In addition, you must provide and are responsible for all equipment necessary to access Plot Services.
You understand and agree that the technical processing and transmission of Plot Services, including Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
4. MODIO PRIVACY POLICY
A. Your Data and certain other information about you are subject to our applicable privacy policy. For more information, see the full Modio Privacy Policy at https://theplot.io/privacy, or at another location we may designate. You understand that through your use of Plot Services you consent and, where required by Law, you have received the consent of the applicable third party, to the collection and use (as set forth in the applicable privacy policy) of this information and Your Data, including the transfer of this information or data to the United States and/or other countries for storage, processing and use by Modio and its subsidiaries, affiliates, and/or contractors, and the receipt of this information and Your Data by Modio from contractors of Modio.
B. Any information provided to you pursuant to Plot Services shall only be utilized for your internal purposes and, without limiting the foregoing, only for the purpose for which the information was provided to you. Without limiting the previous sentence, and notwithstanding any other provision of this Agreement which may be to the contrary, information provided to you pursuant to Plot Services shall not be used, whether directly or indirectly, by you for marketing, sales, and or the creation of or augmentation of any product(s) and/or service(s).
5. ACCOUNT, ACCOUNT ACCESS, PASSWORD AND SECURITY
You will receive a password and account designation (“Account”) upon completing Plot Services’ enrollment process. In addition you will be provided the means to allow access to your Content on Plot Services by others. You and NOT Modio are responsible for maintaining the confidentiality of the password and Account and are fully responsible for all activities that occur under your password or Account, including, without limitation, those to whom you have given access to your Content. You agree to (a) immediately notify Modio of any unauthorized use of your password or Account or any other breach of security, and (b) ensure that you exit from your Account at the end of each session. Modio cannot and will not be liable for any loss or damage arising from this Section 5.
6. YOUR CONDUCT
You understand that all information, data, text, script, software, music, sound, photographs, graphics, video, messages, tags, and/or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated; provided further that you, and NOT Modio, are responsible for any Content provided by you and/or others relating to Plot Services and/or your Account. This means that you, and not Modio, are entirely responsible for all Content that you, or others for which you provide access to Plot Services, upload, post, email, transmit or otherwise make available via Plot Services, even if on media provided by Modio. Modio does not control the Content provided by and/or posted by you or anyone else via Plot Services. As such, Modio does not warrant and/or guarantee the accuracy, integrity, non-infringement, non-misappropriation, or quality of such Content, or that such Content does not violate the rights of any third party, including, without limitation, privacy rights. Modio does not claim ownership of Content you or parties other than Modio submit or make available for inclusion on Plot Services. However, with respect to Content you, and/or others you allow to, submit or make available in relation to Plot Services, including but not limited to any Modio website, you grant Modio the perpetual, irrevocable, sublicenseable, and free right to use, distribute, reproduce, and adapt your Content, or Content of others you allow on Plot Services (in whole or in part), including without limitation, incorporating your Content or the Content of others you allow with respect to Plot Service, into other works in any format or medium now known or later developed. Under no circumstances will Modio be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, and/or any loss or damage of any kind incurred as a result of the use of any Content, whether or not posted, emailed, transmitted or otherwise made available via Plot Services. You agree that that have received the permission and agreement of those that you provide access to Plot Services, including, without limitation, your Account, to the terms and conditions of these TAC, including without limitation, this paragraph.
You agree to not use Plot Services to:
A. upload, post, email, transmit or otherwise make available any Content that is false, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
B. harm any person, including but not limited to minors, and any entity, in any way;
C. impersonate any person or entity, including, but not limited to, Modio, another person or entity utilizing (or allegedly utilizing) Plot Services, a governmental entity, financial institution and/or employer of prospective employer, and/or official, employee, and/or representative of the foregoing, and/or falsely state or otherwise misrepresent your affiliation with a person or entity;
D. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through Plot Service;
E. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law, contract, fiduciary relationships, and/or otherwise (such as, but not limited to, inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
F. upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
G. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
H. upload, post, email, transmit or otherwise make available 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;
I. disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of Plot Services are able to type, or otherwise act in a manner that negatively affects other users’ ability to engage in exchanges;
J. interfere with or disrupt Plot Services or servers or networks connected to Plot Services, or disobey any requirements, procedures, policies or regulations of Modio and/or the networks connected to Plot Services;
K. intentionally or unintentionally violate any applicable local, state, national or international law and/or regulations;
L. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
M. “stalk” or otherwise harass another; and/or
N. collect or store personal data about other users of Plot Services and/or Plot Services.
You acknowledge that Modio may or may not pre-screen or post-screen Content, but that Modio and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content that is available via Plot Services. Without limiting the foregoing, Modio and its designees shall have the right to remove any Content that violates these TAC or, in Modio’s sole opinion, is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with the use of any Content, and any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Modio or submitted to Modio.
You acknowledge, consent and agree that Modio may access, preserve and disclose your account information, Your Data, and/or Content if required to do so by law or if Modio has a good faith belief that such access, preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce these TAC; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service; (v) to provide Plot Services, (vi) to respond to complaints or inquiries to/from governmental entities and/or financial institutions, and/or (vii) protect the rights, property or personal safety of Modio, its users and/or the public.
You understand that Plot Services and software embodied within Plot Services may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Modio and/or content providers who provide content to Plot Services. You shall not attempt to override or circumvent any of the usage rules embedded into, or otherwise with, Plot Services.
Any reproduction, publication, distribution or public exhibition of the materials provided on Plot Services in whole or in part, outside of your Content in your Account, or the Content of others you have permitted in your Account, not authorized by Modio in writing, is strictly prohibited.
You shall not: (i) use any automated means, including agents, robots, scripts, or spiders to access, monitor, scrape, or manage your Account(s) or use with us, or to access, monitor, scrape or copy the Modio websites, Modio systems, Plot Services or any data therein, except those automated means expressly made available by us or authorized by us in advance in writing (e.g., third-party tools approved by us), (ii) bypass any robot exclusion headers on the Modio websites (including using any device, software, or routine to accomplish that goal), (iii) interfere or attempt to interfere with the proper working of the Modio websites, Plot Services, and/or Modio systems, (iv) use or combine the Modio websites, Plot Services and/or Modio systems with software which creates any obligation with respect to Modio contrary to these TACs, or grant to any third party any rights to, or immunities in relation to Modio’s intellectual property or proprietary rights. You may use data made available to you in connection with Plot Services solely for internal use to manage your account(s), or access us or your Account with us, and you will neither publish such data nor create profiles of our users.
We may redesign or modify at any time without notice the organization, specifications, structure, and/or appearance of Plot Services, Modio website(s), your Account(s), and/or any location where your information/Content may be displayed.
We reserve the right to modify or discontinue offering Plot Services, or any part thereof.
7. INTERSTATE NATURE OF COMMUNICATIONS ON THE MODIO WEBSITE / APPLICATION AND WITH MODIO
When you access, utilize and/or enroll with Modio, you acknowledge that in using Plot Services to send electronic communications you will be causing communications to be sent through Modio’s or other computer networks, portions which may be located in various locations in the United States and/or abroad. As a result, and also as a result of Modio’s network architecture and business practices and the nature of electronic communications, even communications that seem to be intrastate in nature can result in the transmission of interstate or international communications regardless of where you are physically located at the time of transmission. Accordingly, by agreeing to these TAC, you acknowledge that use of the service results in interstate, or even international data transmissions.
8. SPECIAL ADMONITIONS FOR INTERNATIONAL USE AND EXPORT AND IMPORT COMPLIANCE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Use of Plot Services and transfer and posting of data to Modio and/or via Plot Services may be subject to the export and import laws of the United States and/or other countries. You agree to comply with all applicable export and import laws and regulations. In particular, you: (a) represent that you are not a party identified on any government export exclusion list, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists, nor will you transfer software, technology, and other technical data via Plot Services to parties identified on such lists; (b) agree not to use Plot Services for military, nuclear, missile, chemical or biological weaponry end uses in violation of U.S. export laws; (c) agree not to transfer, upload, or post via Plot Services any software, technology or other technical data in violation of U.S. or other applicable export or import laws.
9. CONTRIBUTIONS TO MODIO
By submitting ideas, suggestions, documents, and/or proposals (“Contributions”) to Modio through its suggestion, feedback, and/or other webpages, and/or through other means, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) Modio is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) Modio shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, including, without limitation, in any media worldwide; (d) Modio may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of Modio without any obligation of Modio to you; and (f) you are not entitled to any compensation or reimbursement of any kind from Modio under any circumstances.
10. INDEMNITY
You agree to indemnify and hold Modio, its subsidiaries and affiliates, and each of its and their owners, directors, officers, agents, employees, partners, representatives. contractors, and licensors (collectively, the “Modio Indemnitees”) harmless from any and all liabilities, claims and/or demands, including, but not limited to reasonable attorneys’ fees, made by any third party, including, but not limited to the person(s) or entity(ies) for whom you have solicited or provided access to your Account or Plot Services (collectively, “Your Other Parties”), arising out of Content you and/or Your Other Parties submit, post, transmit, modify or otherwise make available through Plot Services, your and/or Your Other Parties use of Plot Services, your and/or Your Other Parties connection to Plot Services, your and/or Your Other Parties violation of these TAC, your obligations set forth in these TAC and/or applicable Law, your violation of any rights and/or harm of another (including, without limitation Your Other Parties, and/or any act or omission by you or Your Other Parties.
11. NO COMMERCIAL REUSE OF PLOT SERVICES / NO CIRCUMVENTION / NO COMPETITION AGAINST MODIO
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, Plot Services (including but not limited to Content that is not yours, advertisements, software, web design, and/or your Modio (Plot) ID). In addition, you shall not circumvent your or another person or entity’s direct use of Plot Services by any means, including, but not limited to submitting (or having submitted) (i) your Content under an account or user ID other than your own, and/or (ii) another person’s Content under your account or your user ID. In addition, you shall not use Plot Services to compete, directly or indirectly, against Modio.
12. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that Modio may establish general practices and limits concerning use of Plot Services, including without limitation the maximum number of days that your information, email messages, message board postings or other uploaded Content will be retained by Plot Services, the maximum number of email messages that may be sent from or received by an account or otherwise on Plot Services, the maximum size of any email message or other message that may be sent from or received by an account or otherwise on Plot Services, the maximum disk space, if any, that will be allotted on Modio’s servers on your or anyone else’s behalf, and the maximum number of times (and the maximum duration for which) you or anyone may access Plot Services in a given period of time. You agree that Modio has no responsibility or liability for the deletion or failure to store any information, messages and other communications or other Content (whether or not they contain your information) maintained or transmitted by or to Modio and/or Plot Services. You acknowledge that Modio reserves the right to log off accounts, or the equivalent of accounts, that are inactive. You further acknowledge that Modio reserves the right to modify these general practices and limits at any time. Any changes or revisions these general practices or limits will be posted on our web site and/or application, and/or emailed to your current email address in your account. Any such changes/revisions will apply only after the effective date of such general practice or limits (as noted in the posting/email), unless otherwise clearly stated in such update. It is your responsibility to frequently check our website or application. If such changes or revisions to general practice or limits are unacceptable to you, your sole remedy is to cancel your participation in Plot Service.
13. MODIFICATIONS TO PLOT SERVICES
Modio reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, Plot Services (or any part thereof) with or without notice. You agree that Modio shall not be liable to you or to any third party for any modification, suspension or discontinuance of Plot Services, or any part thereof.
14. TERMINATION
You may terminate your Modio (Plot) Account, any associated email address and access to Plot Services by submitting such termination request to Modio. Upon receipt of such request, Modio will terminate your account, any associated email address and access to Plot Services, if and when Modio deems it appropriate, in its sole discretion.
You agree that Modio may, without prior notice, immediately or not, terminate, limit your access to or suspend your Modio (Plot) account and access to Plot Services for any and/or no reason. Cause for such termination, limitation of access or suspension shall include, but not be limited to, (a) breaches or violations of these TAC or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) discontinuance or material modification to Plot Services (or any part thereof), (d) unexpected technical or security issues or problems, (e) a period(s) of inactivity, (f) engagement by you in fraudulent or illegal activities in the sole opinion of Modio, (g) nonpayment of any fees owed by you in connection with Plot Services, and/or (h) you are subject to any proceeding under any bankruptcy act or similar laws. Further, you agree that all terminations, limitations of access and suspensions shall be made in Modio’s sole discretion and that Modio shall not be liable to you or any third party for any termination, suspension, and/or limitation of access of your Account and/or access to Plot Services.
Termination of your Modio (Plot) account, any associated email address, and/or access to Plot Services includes, but is not limited to any or all of the following: (a) removal of access to all or part of the offerings within Plot Services, (b) deletion of your password, if any, and all related information, files and content associated with or inside your Account and/or access (or any part thereof), and (c) barring of further use of all or part of Plot Services, including but not limited to this website(s).
We may require reactivation charges to renew any Plot Services after termination, suspension, and/or limitation of access. Upon termination for any or no reason, you are responsible for paying all amounts and charges owing under these TAC and/or to Modio prior to and/or after termination, including, but not limited to any applicable cancellation fee(s). You agree to pay all costs including attorney’s fees, collection costs and court costs we incur in enforcing these TAC, and/or any provision thereof, through any appeal.
15. LINKS
Plot Services may provide, or third parties may provide, links to other World Wide Web sites or resources. You acknowledge and agree that Modio is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Modio shall not be responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site(s) or resource(s).
Plot Services may make certain content available to the public which you may choose to share or distribute. Modio makes no representations or warranties that the publicly available content complies with applicable laws or is compatible for playback on any particular devices. It is up to you to determine the appropriateness for sharing or distributing any publicly available content made available from Plot Services including but not limited to acknowledgment and adherence to ratings information that may be available for such content and the intended audience for such content.
16. MODIO’S PROPRIETARY RIGHTS
You acknowledge and agree that Plot Services and any necessary software used in connection with Plot Services (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other Laws. You further acknowledge and agree that Content contained in advertisements or information presented to you through or by Plot Services or by advertisers, is protected by copyrights, trademarks, service marks, patents or other proprietary rights and Laws. Except as expressly permitted by applicable Law or as authorized by Modio in a signed writing, or the applicable licensor (such as an advertiser), you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on Plot Services, Content that is not yours, or the Software, in whole or in part. Without limiting the foregoing, these TAC do not transfer from Modio to you any Modio developed, licensed, or owned property, including but not limited to technology, Software, and/or Content, and all rights, title, and interest, including, but not limited to copyrights, trademarks, service marks, patents or other proprietary rights, in the foregoing, and together with all derivative works, modifications, enhancements, and upgrades of the foregoing, but excluding your information and/or Content, are and will remain solely with Modio and are the sole property of Modio. Any rights not expressly granted in these TACs are reserved by us, and all implied licenses are disclaimed. You will not attempt to prohibit or enjoin Modio at any time from utilizing any property of Modio, and/or any skills or knowledge (including, but not limited to that of a general nature) that Modio acquires during the course of providing Plot Services. Modio may be required to disclose information to individuals asserting rights under the Digital Millennium Copyright Act or otherwise, and you expressly authorize Modio to comply with any and all lawful notices, subpoenas, court orders, or warrants relating to the Digital Millennium Copyright Act or otherwise, without prior notice to you. You agree not to access Plot Services by any means other than through the interface that is provided by Modio for use in accessing Plot Services.
17. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
A. YOUR USE OF PLOT SERVICES, INCLUDING BUT NOT LIMITED TO ANY WEBSITE(S) AND/OR APPLICATIONS RELATED THERETO, IS AT YOUR SOLE RISK. PLOT SERVICES AND WEBSITE(S) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MODIO, AND ITS AFFILIATES, AND EACH OF IT AND THEIR OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, REPRESENTATIVES, CONTRACTORS, AND LICENSORS (i) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND (ii) ASSUME NO RESPONSIBILITY FOR THE ACCURACY, CORRECTNESS, TIMELINESS, DELETION, ERRORS, MIS-DELIVERY, FAILURE, USE AND/OR MISUSE BY YOU OR ANYONE ELSE OF THE PLOT SERVICES, INCLUDING, BUT NOT LIMITED TO THE USE, MISUSE AND/OR STORAGE OF ANY USER OR THIRD PARTY COMMUNICATIONS AND/OR INFORMATION, (b) AND/OR SERVICES.
B. MODIO AND ITS AFFILIATES, AND EACH OF IT AND THEIR OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (i)PLOT SERVICES, INCLUDING BUT NOT LIMITED TO ITS WEBSITES, APPLICATIONS AND/OR SOFTWARE WILL MEET YOUR REQUIREMENTS; (ii) PLOT SERVICES, INCLUDING BUT NOT LIMITED TO THE MODIO WEBSITE(S), APPLICATIONS AND/OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF PLOT SERVICES OR SOFTWARE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH PLOT SERVICES, INCLUDING BUT NOT LIMITED TO THE MODIO WEBSITE(S), APPLICATION(S), AND/OR SOFTWARE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN PLOT SERVICES AND/OR SOFTWARE WILL BE CORRECTED.
C. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF PLOT SERVICES OR SOFTWARE IS ACCESSED OR PROVIDED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR, AND YOU HEREBY WAIVE, ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOURSELF, OTHERS, YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD AND/OR DISPLAY DEVICE, AND/OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR PROVISIONING OF ANY SUCH MATERIAL.
D. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MODIO AND/OR ITS AFFILIATES, AND/OR EACH OF IT AND/OR THEIR OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, PARTNERS AND LICENSORS, AND/OR THROUGH OR FROM PLOT SERVICES, INCLUDING BUT NOT LIMITED TO THE MODIO WEBSITE(S), APPLICATION(S) AND/OR SOFTWARE, SHALL CREATE ANY WARRANTY FROM SUCH PERSON OR ENTITY OR OTHERWISE.
E. A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING PLOT SERVICE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING PLOT SERVICES. IMMEDIATELY DISCONTINUE USE OF PLOT SERVICES AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING PLOT SERVICES: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
18. LIMITATION OF LIABILITY
WITHOUT LIMITING ANY OTHER PROVISION OF THESE TAC WHICH LIMIT MODIO’S LIABILITY, YOU EXPRESSLY UNDERSTAND AND AGREE THAT MODIO, ITS AFFILIATES, AND EACH OF IT AND THEIR OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, PARTNERS AND LICENSORS (COLLECTIVELY, MODIO PARTIES) (i) SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF MODIO or MODIO PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) , INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, MISUSE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MODIO AND/OR A MODIO PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), (II) SHALL NOT BE LIABLE TO YOU AND/OR ANYONE ELSE FOR ANY NEGLIGENT ACT OR OMISSION, (III) SHALL NOT BE LIABLE TO YOU AND/OR ANYONE ELSE FOR ANY STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON AND/OR RELATING TO PLOT SERVICES, (IV) SHALL NOT BE LIABLE TO YOU AND/OR ANYONE ELSE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (V) SHALL NOT BE LIABLE TO YOU AND/OR ANYONE ELSE FOR THE ITEMS SET FORTH IN SECTION 5, THE LAST SENTENCE OF SECTION 6, THE SECOND SENTENCE OF SECTION 12, THE SECOND SENTENCE OF SECTION 13, THE THIRD SENTENCE OF THE SECOND PARAGRAPH OF SECTION 14, THE LAST SENTENCE OF SECTION 15, AND/OR SECTION 17 OF THESE TAC, AND (VI) WITHOUT LIMITING THE FOREGOING, SHALL ONLY BE LIABLE TO YOU FOR DIRECT DAMAGES ONLY FOR ITEMS NOT SET FORTH IN THIS SECTION 18, IN THE AMOUNT OF FEES YOU HAVE ACTUALLY PAID TO MODIO FOR PLOT SERVICES OR PART THEREOF WHICH IS THE SUBJECT OF YOUR CLAIM.
19. FEES AND PAYMENT.
A. Fees. The fees for Plot Services are set forth in Plot Services and/or the websites and/or applications related thereto. Such fees may be changed with or without notice.
B. Payment. Payment, in the sole discretion of Modio, shall be by credit card, either directly or through a third party service provider. Modio may change at any time the method of payment. By providing to us or our third party provider your credit card information, you have authorized payment to us by credit card, and no additional notice or consent will be required for billings to that credit card or account for any and all uses or subsequent uses of Plot Services. You will immediately advise us of any changes to your credit card account, such as account number or expiration date changes, and changes to your address. You also authorize us to update your payment information with data we obtain from your financial institution, the issuer of your credit card, or from MasterCard, Visa, American Express or Discover, or other entity. Unless and until Modio discontinues accepting your credit card, you preauthorize for billing your credit card and you authorize Modio or its third party supplier to retain your credit card information. You shall pay or otherwise be responsible for all federal, national, state, provincial or local sales, use, excise, gross receipts, value added, municipal fees, transfer, transaction, property, fund, or similar taxes, fees, or surcharges (hereinafter “Tax”) imposed on, or with respect to, Plot Services. Without limiting the foregoing, Modio reserves the right to charge a tax recovery fee to recover the cost/Tax incurred, to transport your document(s) across our telecommunications and/or Internet infrastructure. This fee can be charged on a per invoice basis. In addition, you agree to comply with any terms and conditions of a Modio third-party supplier processing payment.
Time is of the essence for payment under any method. Acceptance of late or partial payments (even if marked “Paid in Full”) shall not waive any of our rights to collect the full amount due. Notice of any payment disputes (which must only be in good faith) must be in writing and received by Modio, at the email address as set forth on the applicable Modio website and/or application, within ten (10) days after payment or you waive any objection. Any payments not received by the payment date are subject to a late payment fee equal to the lesser of, as of each such date, the rate of 1.25% per month (which is an annual percentage rate of fifteen percent (15%) or the maximum rate permitted by applicable Law.
Modio retains the right at any time to modify, suspend, and/or terminate billing and/or payment methods. Any such modification, suspension, or termination, or your failure for any or no reason to make payment, has no effect on your liability for charges and fees that you have incurred in connection with Plot Services.
20. NO THIRD-PARTY BENEFICIARIES/OUR RELATIONSHIP
Except as otherwise expressly provided in these TAC, you agree that there are and shall be no third-party beneficiaries to this agreement. These TAC will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Modio and you. Neither Modio nor you will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided in these TAC.
21. NOTICE
Modio may provide you with notices, including those regarding changes to these TAC, including by, but not limited to, email, regular mail, SMS, MMS, text message, postings on Plot Services, or other means now known or hereafter developed. You must ensure that your contact and account information with us is current and correct, and promptly notify us in writing of any changes to such information. Notices from Modio may not be received if you violate these TAC by accessing Plot Services in an unauthorized manner. Your agreement to these TAC constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed Plot Services in an authorized manner.
22. TRADEMARK INFORMATION
You agree that all of Modio’s trademarks, trade names, service marks, logos and other Modio and brand features, and product and service names of Modio are trademarks and the property of Modio (the “Modio Marks”). Without Modio’s signed written prior permission, you agree not to display or use in any manner the Modio Marks.
23. CONFIDENTIALITY / NO PUBLICITY
“Confidential Information” means any and all information disclosed to you by Modio, either directly or indirectly, in writing, orally, or by inspection of tangible objects, other than information that you can establish: (i) was publicly known and made generally available in the public domain prior to the time of disclosure to you by Modio, (ii) becomes publicly known and made generally available after disclosure to you by Modio other than through your action or inaction, or (iii) is in your possession, without confidentiality restrictions, prior to the time of disclosure by Modio, as shown by your files and records. You will not at any time: (a) sell, license, and/or transfer any Confidential Information, (b) disclose or otherwise make available to any person or entity any Confidential Information, and/or (c) access, use, reproduce, or copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to you and in accordance with these TAC. You will take all measures to protect the secrecy of, and to avoid disclosure and/or unauthorized use of, the Confidential Information. If required by law to disclose Confidential Information, you may do so provided that: (1) you give Modio prompt written notice of such requirement prior to such disclosure, (2) at Modio’s request, you assist Modio in obtaining an order or other arrangement protecting the Confidential Information from public disclosure, and (iii) any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. All Confidential Information will remain Modio’s personal property, and all documents, electronic media, and other items containing or relating to any Confidential Information must be delivered to Modio, destroyed, or uninstalled immediately upon Modio’s request, or upon termination of your use or access to Plot Services. Notwithstanding anything to the contrary in these TAC or the applicable Privacy Policy, all data and information gathered or received by us in connection with providing Plot Services and all information described in the applicable Privacy Policy may be shared with and used by certain third parties selected by Modio. You may not issue any press release or other public statement regarding these TAC, Plot Services, Modio, and/or a Modio Party, without Modio’s prior written consent.
24. GENERAL
Entire Agreement/No Assignment. These TAC constitute the entire agreement between you and Modio, govern your use of Plot Services (including, but not limited to the Modio website(s) and application(s) and supersedes any prior version of these TAC and/or any agreement or understanding, oral or written, between you and Modio with respect to Plot Services. These TAC may only be amended or terminated in a writing approved in writing by Modio. You shall not assign, sublicense, delegate and/or transfer any right or obligation pursuant to these TAC and/or Plot Services. Without limiting the foregoing, you agree that your Modio (Plot) Account is non-transferable by you, including but not limited to any rights to your Modio (Plot) ID or contents within your Account. may assign, sublicense, delegate and/or transfer any right or obligation pursuant to these TAC and/or Plot Services, at any time to any person or entity, without notice to you.
Choice of Law/Forum/Non-consolidation/Statute of Limitations. You and Modio each agree that these TAC and the relationship between the you and Modio (and the Modio Indemnitees) shall be governed by the laws of the State of California, without regard to its conflict of law provisions and that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to these TAC, or the relationship between you and Modio and/or Plot Services, shall be brought exclusively in the courts of competent jurisdiction located within Orange County, State of California, USA. For purposes of this TAC and Plot Services, you (i) agree to submit to the personal jurisdiction of the courts of competent jurisdiction located within Orange County, State of California, USA, and (ii) agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. ANY CLAIM OR CAUSE OF ACTION AGAINST MODIO WILL BE ADJUDICATED ON AN INDIVIDUAL BASIS AND WILL NOT BE CONSOLIDATED IN ANY PROCEEDING WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. You agree that regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to Plot Services and/or these TAC must be filed by you within one (1) year after such claim or cause of action arose or be forever barred.
Waiver and Severability of Terms. The failure of Modio to exercise or enforce any right or provision of these TAC shall not constitute a waiver of such right or provision. If any provision of these TAC is found by a court of competent jurisdiction to be invalid, you and Modio nevertheless agree that the court should endeavor to give effect to the intentions as reflected in the provision, and the other provisions of these TAC remain in full force and effect.
Force majeure. Modio shall not be liable for any failure or delay in its performance under these TAC or as relates to Plot Services due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of terrorism, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, failure of the Internet, and/or telecommunications carrier.
Survival. The definitions in these TAC, and the provisions of Sections 1 (third sentence only) 2 (third paragraph only), 4, 5 (second and third sentences only), 6, 7, 8, 9, 10, 11, 12, 13, 14 (third sentence of the second paragraph, and the complete third paragraph only), 15 (second and third sentences only), 16, 17, 18, 19, 20, 21, 22, 23, and 24 of these TAC, survive any termination or expiration, if any, of these TAC.
Headings. The section titles in these TAC are for convenience only and have no legal or contractual effect.
Copyright Or Intellectual Property Complaints
Modio respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been violated, please provide us with the following information:
A. a physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property right;
B. a description of the copyrighted work or other intellectual property that you claim has been infringed or violated;
C. a description of where the material that you claim is infringing is located on our website;
D. your address, telephone number, and email address;
E. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
F. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Please send the foregoing information to our agent for notice of claims of copyright or other intellectual property infringement at:
Copyright Agent:
Modio LLC
info@modio.tv
These Modio Terms and Conditions were last updated and are effective as of November 28, 2018.