MotiDay Terms of Use

Effective Date: 1^st of August, 2021

Introduction

These Terms of Use and the Privacy Policy (collectively “Terms”) govern the relation between you and Motiday (“us”, “we”, or “our”) and your use of the mobile application “MotiDay” (the “App”).

IMPORTANT NOTICE: THESE TERMS OF USE ARE SUBJECT TO BINDING ARBITRATION AND CLASS ACTION WAIVER. PLEASE READ SECTION 8 (“Mandatory Arbitration & Class Action Waiver”) CAREFULLY.

1.         Acceptance of Terms & Acknowledgments

Please read these terms carefully before downloading, installing, or using the App. By downloading, installing, accessing, or using the App, you accept and agree to be legally bound by these Terms.

a)         These Terms apply to the App, including any updates or changes made thereto.

b)         Changes to these Terms: If we make changes to these Terms we will provide an in-app notification and, as applicable, post the updated Terms of Use here and the updated Privacy Policy here. Your continued use or access of the App after the effective date of the new Terms will constitute your acceptance of the Terms and agreement to be legally bound by the new Terms.

2.         Limited License

Subject to these Terms and, as applicable, the App Store Rules and Play Store Rules (collectively, the “App Providers”), we grant to you a non-exclusive, non-transferable, non-sublicensable, personal, limited, revocable license to use the App. We reserve all rights in and to the App.

3.         Copyright & Trademark

a)         All intellectual property rights in and to the App belong to MotiDay or their licensors.

b)         The rights granted herein are licensed (not sold) to you.

c)         You have no rights in, or to, the App or its content other than the right to use the App in accordance with these Terms.

d)        All trademarks, service marks, trade names, and logos are proprietary to MotiDay or used by MotiDay with the permission of its third-party providers. Nothing contained on in these Terms or the App should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed on this website without our written permission. Your use of the trademarks displayed in this App, or any other content in this App, except as provided herein, is strictly prohibited. You acknowledge that you have no right to have access to the App in source code form.

4.         Restrictions

Except as expressly permitted by these Terms:

a)         The copy, reproduction, publication, further distribution, or public exhibition of any material provided by or through the App is strictly prohibited.

b)         Posting, uploading, submitting, or transmitting any material that violates, or encourage conduct violating, any applicable law or regulation is strictly prohibited.

c)         Posting, uploading, submitting, or transmitting any content that is fraudulent, false, deceptive, or misleading is strictly prohibited.

5.         Provided “As Is”, Disclaimer of Warranties, & Limited Liability

a)         THE APP IS PROVIDED “AS IS” AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED. ANY RELIANCE ON OR USE OF THE APP SHALL BE AT YOUR SOLE RISK.

b)         MotiDay, the App Store and the Play Store, shall not have any obligation to furnish any maintenance and/or support services with respect to the App. We expressly disclaim any liability for loss or damage sustained by you caused by or arising from your access and/or use of the App.

c)         You agree that you use the App at your own risk. To the fullest extent permitted under applicable law, in no event shall we be liable to you personally for any loss, injury or damages (including but not limited to any special, indirect, consequential, or punitive damages, lost profits, lost revenues or other incidental damages) arising out of the use, inability to use, or the results of use of the App.

6.         Payment & Subscription Cancellation

a)         Payment for in-app purchases, including subscriptions, are processed, and completed by the App Providers and subject to their terms and conditions.

b)         To cancel your subscription, follow the instructions of the App Provider from whom you purchased your subscription. All cancellations are subject to the terms and conditions of the App Store and the Play Store, as applicable.

7.         Governing Law

You agree these Terms and any claim or dispute arising from or related to these Terms or the App are governed by the laws of the State of Delaware without regard to any conflict of law provisions.

8.         Mandatory Arbitration & Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS

You agree that all disputes and claims arising from or related to your use of the MotiDay App shall be resolved by binding, individual arbitration under the American Arbitration Association’s rules for arbitration of consumer-related disputes. You understand that you are giving up the right to sue in court and the right to have a jury.

You agree to provide us an opportunity to resolve any dispute or claim prior to initiating arbitration proceedings and shall email us at [email protected] to notify us of any dispute or claim within thirty (30) days of the event(s) giving rise to your claim. Upon receipt, we shall have sixty (60) days to investigate your claim and to provide a response.

You also agree to waive any right to participate in any class action against us for any claim or dispute arising from or related to the Terms or your use of the MotiDay App.

a)         Initiation of arbitration

If after investigation we are unable to resolve your claim or if delay will cause significant injury to either party, you may demand arbitration by emailing us at [email protected] using the subject line “Demand for Arbitration”.

b)         Attorney fees and expenses

For any claim or dispute submitted for arbitration, the successful party shall be entitled to an award of reasonable attorney fees and expenses incurred in defending or prosecuting the claim or dispute.

The successful party in an action to enforce or dispute the arbitration and waiver of class action clause in these Terms shall be entitled to reasonable attorney fees and expenses.

9.         Indemnity

To the extent permitted by applicable law, you agree to indemnify us for any claims, actions, demands, losses, liabilities, damages, costs, and expenses (including legal expenses and other costs, such as attorneys' fees) reasonably incurred by us arising from your use of the App or your breach of these Terms. We reserve the right to assume the exclusive defense and control of any claim brought by a third party in connection with your use of the App and you agree to assist and cooperate with us in relation to any such claim.

10.       Severability

Each of the conditions of these Terms operates separately. If any court or competent authority decides that any term is unlawful or unenforceable, the remaining conditions will remain in full force and effect.

11.       No Waiver of Rights

If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations.

12.       Miscellaneous

a)         Section Headings: The use of headings in these Terms are for reference only and shall not affect the meaning or interpretation of these Terms.

b)         App Providers: By downloading the App, you agree to comply with the App Store Rules and Play Store Rules, as applicable. You acknowledge that the availability of the App may be dependent on the App Store or Play Store from which you receive the App. You acknowledge these Terms are between you and MotiDay and not with the App Store or Play Store. You acknowledge that the App Store and Play Store (and their respective subsidiaries) are third party beneficiaries to these Terms and will have the right to enforce these Terms against you.

c)         Events Outside Our Control: We are not liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by any act or event beyond our reasonable control, including any failure of public or private telecommunications networks.

13.       Entire Agreement

These Terms constitute the entire agreement between you and MotiDay with respect to your use of the App. These Terms supersede all prior understandings or agreements between you and MotiDay. Furthermore, you have voluntarily agreed to these Terms without relying on any statement, representation, assurance, or warranty other than those set out in these Terms.