Terms and Conditions of Use
1. Acceptance of Terms
Komotion, Inc. (Komotion) provides access to this website as well as software products (along with updates and upgrades) subject to the user's acceptance of the following User Agreement which may be updated by Komotion from time to time. By becoming a user of this site, the user agrees to be bound by the terms of this agreement. When using a particular Komotion service or product the user also may be subject to any posted guidelines, rules, terms of service, policies or other contractual provision as noted. In the event of a conflict between any other agreement, rule, or terms of service and this agreement, the provisions of this agreement shall govern. Please direct any questions about this agreement to Komotion at before using this site.
2. Conditions of Website Use
Komotion hereby grants the user a nonexclusive, nontransferable license to access and use the website and to view and download a copy of the text and images expressley designated to the user by Komotion. The user may use the website only for retrieval of the content and shall comply with all applicable laws and regulations with respect to use of the website and content hereunder. This license only grants to the user the website and content, and the user does not acquire any right of ownership or title in them. All right, title and interest in and to the website and content will at all times remain the property of Komotion.
Any information a user provides to Komotion in connection with the use of the site: (a) shall not be false, inaccurate or misleading; (b) shall not be obscene or indecent; (c) shall not contain any viruses, Trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (d) shall not infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (e) shall not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; and (f) shall not create liability for Komotion.
Komotion shall have the unlimited right to use for any purpose, free of any charge, all submitted information including but not limited to quotes/testimonials, support queries, product usage ideas and product output examples. Komotion shall be free to use, for any purpose, any ideas, concepts, or techniques contained in information provided to Komotion through this site and www.komotion.com.
4. Acceptable and Lawful Use of Software
Any software product that is made available, either as a download or otherwise, from the site is the copyrighted work of Komotion. Use of the software product is governed by the terms of the end user license agreement, if any, which accompanies or is included with the software product ("license agreement"), or as expressly stated on the web site pages accompanying the software.
WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE PRODUCTS TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT ACCOMPANYING SUCH SOFTWARE.
THE SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE LICENSE AGREEMENT. EXCEPT AS WARRANTED IN THE LICENSE AGREEMENT, KOMOTION HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SOFTWARE PRODUCTS, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
5. No Endorsement of Content
This site may contain hyperlinks to third party web sites outside of the site. Komotion makes no representations or endorsements regarding the quality, accuracy, reliability or condition of any content posted on those third party web sites. Komotion has no control over the content of any hyperlinked third party websites and shall have no obligation to review those sites' content.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this agreement between users and Komotion. This agreement is between the user and Komotion and is not intended to be for the benefit of any third party.
8. System Integrity
Visitors may not use any device, software or routine to interfere with the proper working of the site. Users may not use any method to intercept or expropriate any system data or information from the site without the express written permission of Komotion. Users may not take any action that imposes an unreasonable burden upon the infrastructure used to support the efficient operation of the site including but not limited to unsolicited email (ie: "Spam").
Users shall not use any robot, spider, other automatic device, or manual process to monitor or copy Komotion's web pages or the content contained herein without the prior expressed written permission of Komotion. Information on the site is frequently updated and is proprietary or is licensed to Komotion. Users agree that they will not copy, reproduce, alter, modify, create derivative works, or publicly display any content from our website without the prior expressed written permission of Komotion and the appropriate third party.
9. System Outages
Komotion periodically may schedule system downtime for maintenance and other purposes. Unplanned system outages also may occur. Komotion shall have no liability whatsoever for the resulting unavailability of the site or for any loss of data or transactions caused by planned or unplanned system outages or the resultant delay, misdelivery, nondelivery of information caused by such system outages, or any third party acts or any other outages of webhost providers or the Internet infrastructure and network external to the site.
10. No Warranty
KOMOTION PROVIDES WEBSITE AND SOFTWARE PRODUCTS "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. KOMOTION SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF INFORMATIONAL CONTENT AND NON-INFRINGEMENT. USER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR USE OF THIS SITE, THE SOFTWARE PRODUCTS, AND HYPERLINKED WEBSITES. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to some users.
KOMOTION MAKES NO WARRANTY THAT THE SITE WILL MEET USERS' REQUIREMENTS, OR THAT SOFTWARE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, NOR DOES KOMOTION MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE PRODUCTS OR SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SITE OR THAT ANY DEFECTS WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY A USER FROM KOMOTION SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
11. Other Limitations of Liability
IN NO EVENT WHATSOEVER SHALL KOMOTION, ITS SUPPLIERS OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, INCLUDING BUT NOT LIMITED TO LOSS OF SALES, PROFIT, REVENUE, GOODWILL, OR DOWNTIME, (HOWEVER ARISING IN TORT, CONTRACT, OR OTHERWISE) REGARDLESS OF OUR NEGLIGENCE OR WHETHER WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL KOMOTION'S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED ANY AMOUNTS PAID TO US FOR THE SOFTWARE PRODUCTS BY THE USER.
USERS UNDERSTAND AND AGREE THAT THE SUBMISSION OF DIGITAL IMAGES TO KOMOTION, AND THE DOWNLOAD AND UPLOAD OF ANY MATERIAL THROUGH THIS SITE IS DONE AT THE USER'S DISCRETION AND RISK AND THAT THE USER WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO HIS/HER IMAGES, ANY LOSS OF THE USER'S IMAGES AND ANY DAMAGE TO THE USER'S COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT IN THE DOWNLOAD OR UPLOAD OF ANY MATERIAL.
KOMOTION NEITHER ASSUMES, NOR DOES AUTHORIZES ANY OTHER PERSON TO ASSUME ON ITS BEHALF, ANY OTHER LIABILITY IN CONNECTION WITH THE PROVISION OF THE SITE AND SOFTWARE PRODUCTS. The limitations of liability provided in this agreement inure to the benefit of Komotion, our affiliates and to all of our respective officers, directors, employees, attorneys and agents.
Users agree to indemnify, defend and hold harmless from and against any and all claims, demands, actions, costs, liabilities, losses and damages of any kind (including attorneys' fees) resulting from the user's (directly or through its agents) use of the site or software products provided hereunder by Komotion; user's breach of any provision of this agreement or any intentional wrongdoing by the user. Any such indemnification shall be conditioned on Komotion's: (a) promptly notifying the indemnifying party in writing of any such claim, demand, action, cost, liability, loss or threat of any thereof; (b) cooperating with the indemnifying party in the defense or settlement thereof; and (c) allowing the indemnifying party to control such defense or settlement. Komotion shall be entitled to participate in such defense at its own cost and expense. Komotion reserves the right to report any wrongdoing to the applicable government agencies or otherwise.
13. Intellectual Property
All pages within the site are the property of Komotion. The site and the software products are protected by federal and international copyright and trademark laws. No portion of the materials on the site pages may be reprinted, republished, modified, or distributed in any form without the express written permission of Komotion. A user may not, and this agreement does not give a user permission to, reproduce, reverse engineer, decompile, disassemble, modify or create derivative works with respect to the site or the software products. Certain content may be licensed from third parties and all such third party content and all intellectual property rights related to the content belong to the respective third parties. A user may not remove any copyright, trademark or other intellectual property or proprietary notice or legend contained on the site or its content. Any rights not expressly granted by this agreement with respect to the site are reserved by Komotion.
B. Trademark Notice
Komotion, Shozam, Web Gallery Wizard and QuickView are trademarks of Komotion, Inc. Any other trademarks and / or logos used on this site are the trademarks, service marks or logos of their respective owners. Nothing in this agreement shall confer any right of ownership of any of the trademarks to any user. Further, nothing in this site shall be construed as granting, by implication or otherwise any license or right to use any trademark used or displayed on this site, without the express written permission of Komotion or the trademark owner.
C. Linking to the Site
Unless a user has a written agreement in effect with Komotion which states otherwise, users may only provide a hyperlink to Komotion's websites on another website, if the user complies with all of the following: (a) the link must be a text-only link clearly marked either (i) "komotion.com" or www.komotion.com or (ii) "shozam.com" or "www.shozam.com"; (b) the link must "point" to the URL "http://www.komotion.com" or "http://www.shozam.com" and not to other pages within these websites; (c) the link, when activated by a user, must display the Komotion website full-screen and not within a frame on the linking website; and (d) the appearance, position and other aspects of the link must not be such as to damage or dilute the goodwill associated with Komotion and trademarks or create the false appearance that Komotion is associated with or a sponsor of the linking website. Komotion reserves the right to revoke its consent to any link at any time in its sole discretion.
D. Ideas; feedback
Komotion may accept or consider unsolicited ideas such as ideas for new products, themes, software products, processes, new advertising campaigns, new promotional activities, marketing plans or new product names. Please be advised that Komotion will not treat them as confidential or proprietary.
Komotion welcomes any feedback regarding this website, its products and software products. However, please be advised that such feedback will not be deemed confidential. By sending Komotion feedback, the user agrees to allow Komotion to use such feedback on an unrestricted basis, including for, but not limited to, advertisement purposes.
14. Electronic Signatures
Users and Komotion agree that any document or record, including this agreement, which is transmitted or received by electronic transmission by either party shall be treated in all manner and respects as an original signed document where sufficient indicia of acceptance by the respective party exists. Accessing the site constitutes acceptance of this agreement by the user. The user and Komotion further agree that by entering into this agreement they shall agree to accept electronic signatures or other reasonable electronic indicia as effective forms of acceptances. Such indicia of acceptance shall be considered for these purposes as an original signature and any such electronic transmission shall be considered to have the same binding legal effect as an original signed document. The user shall not raise electronic transmission or electronic signatures as a defense to this agreement or the binding nature thereof or in any matters related to the agreement, and user agrees to waive such defense.
15. Governing Law and Choice of Forum
This agreement shall be governed by and construed in accordance with the laws of the state of California, exclusive of its choice of law rules and matters affecting copyrights, trademarks and patents under U.S. federal law. In any action to enforce this agreement, the prevailing party will be entitled to costs and attorneys' fees. Any suit relating to this agreement, the site or the software products shall be brought exclusively in the federal or state courts located in San Diego County, California, and both parties consent to the jurisdiction thereof.
Updated: September 25, 2008