Terms of Service
LotaData, Inc. (“LotaData”) – Developer Agreement
The following terms and conditions, together with such other terms and policies referenced herein or otherwise specified by LotaData, constitute the binding legal agreement (this “Agreement”) between LotaData and each user (“you”) regarding your access to and use of the following:
• the website, and related code and documentation as made available by LotaData (collectively, the “Site”);
• the Moments software development kit, and related code and documentation as made available by LotaData (collectively, the “SDK”);
• the application programming interfaces, and related code and documentation as made available by LotaData (collectively, the “API”);
• the web apps, mobile apps, and related code and documentation as made available by LotaData (collectively, the “Apps”);
• the geo data, and the geo profiles, and the geo-temporal data, and the demographic data, and the device data, and the user profiles, and the audience segments, and related services, and documentation (collectively, the “Data”);
• the visual explorer tool, and the data analysis platform, and the developer portal, the self-serve account management platform, and related services, and documentation (collectively, the “Platform”); and
• any and all information, content, tools, reports, insights and analyses as made available by LotaData, including, without limitation, End User Data (as defined in Section 7.1 of this Agreement). (all of the foregoing referred to hereinafter collectively as “LotaData Services”).
If you access LotaData Services as an agent or employee of or otherwise on behalf of a business entity, this Agreement is also legally binding upon the business entity that you represent, and you and the business entity that you represent shall be jointly and severally liable for all obligations hereunder. You represent and warrant that you are authorized to bind the business entity that you represent to this Agreement. As used hereinafter, “you” means and includes both you individually and the business entity (if any) that you represent.
You and LotaData may be referred to hereinafter individually as a “Party” and collectively as “Parties.”
BY ACCESSING OR USING ANY LOTADATA SERVICES, YOU EXPRESSLY ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. Changes to this Agreement
LotaData reserves the right to make changes to this Agreement at any time. If the changes are material, LotaData will provide you with notice and, where LotaData deems appropriate or is required by law, LotaData will obtain your consent to the changes. Unless expressly otherwise agreed, all material changes to this Agreement will apply prospectively only. By continuing to access and use LotaData Services after such notice and/or consent, you are bound by this Agreement as modified.
2. Access Restricted
While some parts of LotaData Services are free and accessible by the general public with strict usage limits, to access the SDK, API, Apps, Data and to participate in the Platform, you must be an Approved Developer (as defined in Section 5.1 of this Agreement). Unauthorized access to or use of any LotaData Services is strictly prohibited and may result in civil and/or criminal penalties.
3. Reservation of Rights
LotaData expressly reserves the right at any time, in its sole discretion, with or without notice, and without liability to you or any other user, to: (a) modify or discontinue any or all LotaData Services; (b) restrict, limit, suspend or terminate any user’s access to any or all LotaData Services; and (c) monitor any user’s activities associated with LotaData Services, to verify compliance with this Agreement.
4. Term and Termination
4.1 Term. This Agreement will commence upon LotaData’s approval and registration of you as an Approved Developer, and will remain in full force and effect for as long as you remain an Approved Developer and maintain an account on the Platform, but subject to the termination provisions set forth below (the “Term”).
4.2 Termination by LotaData. LotaData may terminate this Agreement with immediate effect upon notice to you:
(a) if you become insolvent or bankrupt, or make an assignment for the benefit of your creditors, or have a receiver appointed for your assets or business, or commence (or have commenced against you) legal process for dissolution, liquidation, or winding-up, or suspend or discontinue your business for any reason; or
(b) if you are non-compliant with the terms and conditions of this Agreement and fail to cure/rectify the non-compliance within three (3) business days upon receiving LotaData’s notice regarding your non-compliance.
4.3 Termination by You. You may terminate this Agreement at any time by terminating your account on the Platform, provided that you give LotaData at least thirty (30) days advance written notice of your account termination.
4.4 Effect of Termination. Upon any termination of this Agreement:
(a) all rights and licenses granted by LotaData to you with respect to LotaData Services will immediately cease and terminate, and you will have no further right or license to access or use any LotaData Services in any manner or for any purpose;
(b) you must cease any further use of LotaData Services and remove the SDK from all your mobile applications/services; and
(c) you must destroy all LotaData Services (including all copies and duplicates thereof) in your possession or control and confirm such destruction upon LotaData’s request; and
(d) except as expressly otherwise provided in this Agreement, to the extent you have any accrued fees, credits, etc. on your account at the time of termination, LotaData will pay you such accrued fees, credits, etc. pursuant to the terms previously agreed between you and LotaData regarding the accrual and payment of such fees, credits, etc.
5. Approved Developer
5.1 Approval Process. You must be an Approved Developer to obtain access to the SDK, Data, API and Platform. To become an Approved Developer, you must register on the Platform and provide LotaData with requisite information about yourself and the business entity (if any) that you represent. By registering an application on the Platform, you represent and warrant that: (a) you are (or represent) a bona fide mobile application/service developer, and are at least 18 years of age; (b) all information and answers provided by you on the application are truthful and accurate; and (c) if you represent a business entity, the business entity that you represent has authorized the submission to LotaData of all information and answers provided by you on the application. All information and answers provided by you on the registration form are subject to verification by LotaData, and you must fully cooperate with any verification request from LotaData, or your application will be denied. Upon LotaData’s submission of the registration form, you will be deemed an “Approved Developer” and your proposed mobile application/service will be deemed an “Approved Mobile Application/Service.”
5.2 Certain Requirements. In order to become and remain an Approved Developer, your mobile application/service must meet the following requirements at all times:
(a) Your mobile application/service must contain bona fide and legitimate content, and not, for example, simply a list of links or advertisements. Also, your mobile application/service must serve a purpose substantially or completely separate and distinct from merely being designed to earn money solely from third party advertisers. In addition, prior to the launch of your mobile application/service, you must submit a demo version of your mobile application/service to LotaData for review and approval (unless LotaData has expressly waived in writing its right to review and approve), and the final published version of your mobile application/service must not materially differ and deviate from the demo version that was reviewed and approved by LotaData.
(b) Your mobile application/service must not:
i. violate, infringe upon, or misappropriate any intellectual property right, right of privacy, right of publicity, or any other right of any person or entity;
ii. access, collect, use, or provide or transmit to any third party, or allow any third party to access, collect or receive, any personally identifiable information about individual users and/or their mobile devices (collectively “End Users”) (except with LotaData’s express prior written approval and in accordance with Applicable Privacy Laws and Standards (as defined in Section 7.3 of this Agreement));
iii. contain or link to any content that is illegal, unlawful, threatening, harassing, abusive, defamatory, libelous, fraudulent, deceptive, invasive, vulgar, obscene, profane, pornographic, violent, hateful, racial, discriminatory, or otherwise objectionable or inappropriate, as determined by LotaData in its sole discretion;
iv. contain or link to any content that depicts, promotes or encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law;
v. be directed to or targeting children/minors (i.e., those under the age of 13);
vi. claim or suggest that your mobile application/service, or any other product or service offered by you or a third party, is endorsed or sponsored by, or is affiliated with, LotaData or (except with LotaData’s express prior written approval);
vii. contain or link to any known virus, Trojan horse, trap door, back door, Easter egg, worm, time bomb, cancelbot, adware, spyware, malware or other similar programming code or data, malicious or benign, that may damage, interfere with, intercept, lock out, or expropriate any hardware, system, program, content, data, or personally identifiable information;
viii. engage in any activity to deceive, mislead or harass, including, without limitation: forging or falsifying information; impersonating any person or entity; relaying emails or other communications in an anonymous fashion, relaying emails or other communications from any third-party server without that third-party’s permission, or using similar techniques to hide or obscure the source of emails or other communications; misrepresenting affiliation, connection or association with, any person or entity; transmitting or distributing “junk mail,” “chain mail” or “chain letters,” or engaging in unsolicited mass emailing, “spamming” or “spimming”; or making fraudulent offers to sell or purchase, or conducting any type of financial scam such as “pyramid schemes” and “ponzi schemes”;
ix. engage in any spoofing, redirecting or trafficking from other sites in an effort to gain traffic;
x. promote any tobacco products, firearms or alcoholic beverages (except with LotaData’s express prior written approval);
xi. promote gambling, contests, lotteries, raffles, or sweepstakes (except with LotaData’s express prior written approval); or
xii. offer any product or service that competes with LotaData; or
xiii. provide third parties with any of the Data, API, SDK except in conjunction with a product or service of your own; or
xiv. provide any of the Data to third parties in bulk; or
xv. systematically query the API or Platform or SDK in a manner to obtain and cache all Data for a given locality, region or country. LotaData does not allow for caching and storing of Data provided through the LotaData Services, unless specified in the expiry headers or through a separate agreement.
xvi. engage in any other activity or practice that violates this Agreement or any applicable law.
(c) Your mobile application/service must at all times be in compliance with all of the privacy requirements set forth in Section 7.3 of this Agreement.
You understand and acknowledge that LotaData may deny your application and/or suspend or terminate your Approved Developer status, at any time and with or without reason, in LotaData’s sole discretion.
5.3 Account Responsibility. By creating an account on the Platform, you warrant that all account registration information you submit to LotaData is authorized, truthful and accurate. It is your responsibility to notify LotaData of any changes in your account information, including your contact information. As an account holder, you are responsible for safeguarding your account access information (username and password, etc.) and are responsible for all activities on your account. If you allow others to use your account, you are responsible for all their activities on your account.
5.5 Usage Limits. You agree to abide by any and all limitations (such as daily usage quotas) for the LotaData Services. You agree not to use methods (such as using multiple IP addresses) to get around these limitations. LotaData, in its sole discretion, may at any time change the specifications of or change the usage thresholds or restrict or limit access to the LotaData Services. LotaData may suspend or throttle Services to stay within cloud capacity limitations. You will not take steps to circumvent any technical measures LotaData may put in place to implement throttling or suspension.
5.6 Fees. LotaData reserves the right, in its sole discretion, to charge fees for use of or access to specific levels of service around the LotaData Services. If LotaData decides to charge fees for Services, such fees and additional terms and conditions will be disclosed to you prior to the effective date when such fees or requirements would be imposed. If you do not agree to such charges at the time of the fee disclosure, simply discontinue your use of the LotaData Services.
6. Intellectual Property License and Related Matters
6.1 LotaData’s Limited License to You. As an Approved Developer, you are hereby granted a non-exclusive, non-transferable, non-sublicensable, limited license to access LotaData Services solely for your own internal use (without alteration or modification of any kind) in connection with your Approved Mobile Application/Service, solely during the Term and in a manner strictly compliant with the terms and conditions of this Agreement.
6.2 Your License to LotaData. You hereby grant to LotaData and its partners, licensors, successors and assigns, and their respective agents, contractors and designees, a non-exclusive, royalty-free, worldwide license during the Term, to access and use your Approved Mobile Application/Service and your trademarks, service marks, logos, copyrights and other intellectual property associated with your Approved Mobile Application/Service, in connection with (a) operating the Platform and carrying out the Stated Purpose and (b) marketing and promoting your Approved Mobile Application/Service to potential customers and advertisers.
(a) You do not have or acquire any ownership right or interest in any LotaData Services. LotaData and its partners, licensors, successors and assigns retain exclusive ownership of all rights and interests (including all intellectual property rights) in and to all LotaData Services and reserve all rights not expressly granted herein. All LotaData Services are protected by U.S. and international copyright, trademark, and other intellectual property laws. The LotaData mark and logo are registered trademarks of LotaData. The mark and logo are trademarks of LotaData. All other marks and logos appearing on or in connection with LotaData Services are trademarks of their respective owners.
(b) You retain ownership of your Approved Mobile Application/Service and all your trademarks, service marks, logos, copyrights and other intellectual property associated therewith, but excluding the SDK as well as any other LotaData Services that you may incorporate into or use in connection with your Approved Mobile Application/Service.
6.4 Confidentiality. Other than any LotaData Services that are made public by LotaData, you agree to treat all LotaData Services as LotaData’s confidential and proprietary information, hold all such material in confidence, and not disclose or provide the same to third parties. You must protect and safeguard all LotaData Services (including copies and duplicates thereof) in your possession or control against unauthorized access or use by others, with at least the same degree of care that you use to protect your own most confidential or proprietary information, but in any event not less than reasonable care.
6.5 Prohibited Uses. You may not:
(a) copy or reproduce (including, without limitation, by way of downloading) any LotaData Services or any portion thereof (except with LotaData’s express prior written approval); however, you are allowed to make a single copy of the SDK for your internal backup purpose, but you must immediately delete such copy upon any termination of this Agreement;
(b) lease, rent, sell, distribute, publish, sublicense, assign, transfer, or otherwise make any LotaData Services or any portion thereof available to third parties, or subject any LotaData Services or any portion thereof to any mortgages, pledges, security interests, charges, claims, liens, or other encumbrances;
(c) alter, modify, translate, or otherwise create any derivative works from, any LotaData Services or any portion thereof; for the avoidance of doubt, an Approved Mobile Application/Service using and incorporating the SDK will not be deemed a derivative work of the SDK;
(d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code from, any LotaData Services or any portion thereof;
(e) remove, obscure, alter, or otherwise temper with any copyright or other legal notice or legend contained in or associated with any LotaData Services or any portion thereof;
(f) use any illegal, counterfeit, pirated, or unauthorized hardware or software in connection with the SDK, including use of tools to bypass, disable, or circumvent any encryption, security or authentication mechanism;
(g) access or use any LotaData Services or any portion thereof for any unauthorized purpose, including, without limitation: building a competitive product or service; building a product or service using similar ideas, concepts, features or functions; monitoring the Platform’s availability, performance or functionality; or for any other benchmarking or competitive purpose;
(h) use any automated program, tool, device or process (including, without limitation, web crawlers, robots, bots, spiders, and automated scripts) to access any LotaData Services or any portion thereof;
(i) “frame” or “mirror” or otherwise create a browser or border environment around, or deep-link to, any LotaData Services or any portion thereof;
(j) do anything to interfere or attempt to interfere with the proper working of any LotaData Services or any portion thereof or any server, network or system associated therewith, including, without limitation, taking any action that imposes an unreasonable or disproportionately large load on the LotaData infrastructure;
(k) subject any LotaData Services or any portion thereof to the terms of any open source or similar license that require, as a condition of use, modification and/or distribution of software subject to such license, that such software or other software combined and/or distributed therewith be (1) disclosed or distributed in source code form, (2) licensed for the purpose of allowing others to make derivative works, and/or (3) redistributed to others at no charge;
(l) download, install, use, export or re-export the SDK or any other LotaData software or any underlying information or technology in violation of U.S. export control laws or regulations;
(m) use the LotaData mark or logo, mark or logo, or any other mark, logo or source identifier of LotaData, as meta tags or ad keywords, as links, or to indicate or suggest endorsement or sponsorship by or affiliation with LotaData (except with LotaData’s express prior written approval).
6.6 Compliance with U.S. Export Control Laws. The SDK and all other LotaData software are subject to U.S. export control laws and regulations, and may not be downloaded, installed, used, exported or re-exported (a) into (or by or to a national or resident of) Sudan, Libya, North Korea, Iran, Syria, or any other Country to which the United States has embargoed goods, or (b) by or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading, installing or using SDK or any other LotaData software, 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 such list.
6.7 Invalid Activity. LotaData reserves the right to immediately suspend your account upon notice to you, if LotaData determines or suspects, in its sole judgment, that your account has been used for any invalid activity (such as inflating or generating invalid location signals, activity data, clicks, impressions, etc.). Upon such suspension, you have three (3) business days to present evidence to LotaData to show that there has been no invalid activity associated with your account. If LotaData determines, in its sole judgment, that the evidence presented by you is persuasive, LotaData will lift the suspension on your account. If LotaData determines, in its sole judgment, that the evidence presented by you is unpersuasive, or if you fail to present evidence in a timely manner, LotaData will have the right, in its sole discretion, to terminate and deactivate your account, in which event all fees, credits, etc. accrued on your account (not just those payments associated with the invalid activity) will be deemed forfeited by you. LotaData may use a variety of methods, at its discretion, to flag accounts for possible invalid activity. However, LotaData does not make any representation or warranty as to the effectiveness or results of its invalid activity detection program, and will not be responsible for its failure to detect any invalid activity.
7. End User Data and Privacy Requirements
7.1 Data Collection by LotaData. You understand and acknowledge that the SDK, API and the Platform are designed to enable and facilitate LotaData’s collection, research and analysis of relevant data about End Users over time and across different Approved Mobile Applications/Services, including geo-location data, mobile device data, traffic data, activity data, behavioral data, interactions with sensors, IoT, advertisements, demographics, preferences, interests, and other relevant data points, whether or not personally identifiable (collectively, “End User Data”), from which data LotaData can then build consumer profiles for legitimate LotaData business purposes, including without limitation, engagement optimization, personalized notifications, ad-decisioning, and/or audience building (collectively, the “Stated Purpose”). Accordingly, by using the SDK and the Platform as specified in this Agreement, you expressly authorize and allow LotaData, to the fullest extent permitted by applicable law, to access, collect and receive End User Data on and in connection with your Approved Mobile Application/Service and to use and maintain such End User Data for the Stated Purpose. Also, as a condition of using the SDK, you agree to comply with the technical specifications provided by LotaData so as to enable LotaData to carry out the Stated Purpose on and in connection with your Approved Mobile Application/Service (including, without limitation, enabling LotaData to collect and receive End User Data and to deliver in-app ads and notifications).
7.2 Data Ownership. You acknowledge and agree that as between the Parties, LotaData and its partners, licensors, successors and assigns will own all right, title and interest in and to all End User Data collected or received on or in connection with your Approved Mobile Application/Service.
7.3 Privacy Requirements.
(a) Both Parties agree to ensure that all data collection, use, sharing, disclosure, and storage activities associated with the Approved Mobile Application/Service, including the provisioning and transmission of any End User Data to LotaData, are fully compliant with all applicable data privacy laws and standards, including, without limitation, the following (collectively “Applicable Privacy Laws and Standards”):
i. all U.S. federal laws, regulations, rules, policies and guidelines relating to consumer privacy, including those issued by the U.S. Federal Trade Commission (“FTC”) concerning online behavioral advertising, online privacy protection for children, and sending of unsolicited commercial email or text messages (“spams”);
ii. all U.S. state laws relating to consumer privacy, including: the California Online Privacy Protection Act (Cal. Business and Professions Code §§ 22575-22579) and the associated guidelines issued by the California Attorney General (http://oag.ca.gov/sites/all/files/agweb/pdfs/privacy/privacy_on_the_go.pdf and https://oag.ca.gov/sites/all/files/agweb/pdfs/cybersecurity/making_your_privacy_practices_public.pdf), as may be amended or updated from time to time; and the California “Shine the Light” law (Cal. Civil Code § 1798.83), as may be amended or updated from time to time;
iii. the Self-Regulatory Principles of the Digital Advertising Alliance (“DAA”), currently available at http://www.aboutads.info/principles, as may be amended or updated from time to time;
iv. the Network Advertising Initiative (“NAI”) Code of Conduct and Mobile Application Code, currently available at http://www.networkadvertising.org/code-enforcement/code, as may be amended or updated from time to time;
v. the U.S. – E.U. Safe Harbor framework and the U.S. - Swiss Safe Harbor framework as set forth by the U.S. Department of Commerce regarding the notice, choice, onward transfer, security, data integrity, access, enforcement, collection, use, and retention of personal data from European Union member countries and Switzerland.
vi. any written agreements either Party may have with non-governmental privacy certification or self-regulatory bodies (e.g., TRUSTe) or with mobile industry associations (e.g., the Mobile Marketing Association); and
vii. any other data privacy related rules or policies as LotaData may establish or specify from time to time.
(b) Both Parties agree to not access, collect, use, or provide or transmit to any third party, or allow any third party to access, collect or receive, any personally identifiable information about End Users on or in connection with the Approved Mobile Application/Service, except with LotaData’s express prior written approval and in accordance with Applicable Privacy Laws and Standards.
(d) You shall implement all such opt-ins and opt-outs regarding LotaData’s collection of End User Data on and in connection with your Approved Mobile Application/Service, as may be required by Applicable Privacy Laws and Standards, including, without limitation, opt-in regarding the collection and use of geo-location data, and opt-out regarding the collection and use of End User Data for targeted/behavioral//interest-based advertising and marketing. Without limiting the generality of the preceding sentence, you represent and warrant that, with respect to precise geo-location data and unique mobile device identifiers, you will obtain affirmative consent (opt-in) from End Users prior to LotaData’s collection or receipt of such data on or in connection with your Approved Mobile Application/Service.
(e) You shall promptly notify LotaData should you become aware or have a reasonable belief that allowing LotaData to collect or receive End User Data on and in connection with your Approved Mobile Application/Service is or may be in violation of Applicable Privacy Laws and Standards, and shall take all necessary actions as requested by LotaData to rectify such actual or potential violation.
(f) LotaData may disclose End User Data if required to do so by law or in the good-faith belief that such action is necessary to comply with applicable laws (such as U.S. Copyright law) or respond to a court order, judicial or other government subpoena, or warrant in the manner required by the requesting entity. LotaData also reserves the right to disclose user information that we believe, in good faith, is appropriate or necessary: to take precautions against liability; to protect LotaData from fraudulent, abusive, or unlawful activities; to investigate and defend ourselves against third-party claims or allegations; to assist government enforcement agencies; to protect the security or integrity of the LotaData Services; or to protect the rights, property, or personal safety of LotaData, our users, or others.
(g) LotaData uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information. We cannot, however, ensure or warrant the security of any information transmitted to LotaData, and you do so at your own risk. Once we receive your transmission of information, LotaData makes commercially reasonable efforts to ensure the security of our systems. However, please note that this is not a guarantee that such information may not be accessed, disclosed, altered, or destroyed by breach of any of our physical, technical, or managerial safeguards.
(h) For the European Economic Area or other non-U.S. territories, please note that any End User Data through the LotaData Services will be transferred outside the European Economic Area or such other non-U.S. territory for use by LotaData and its affiliates for any of the purposes described herein. In addition, because LotaData operates globally, we may make information we gather available to worldwide business units and affiliates. By providing any data to the LotaData Services, you hereby expressly consent to such transfers of your data to the United States or other countries.
(i) LotaData receives information from our supply / publisher and demand / advertiser partners about their users, such as the geolocation data of a user’s mobile device and an identifier. The identifier may be a device ID from the user’s mobile device, such as the IDFA for iOS devices or Android ID for Android devices. We may also receive a user’s age, gender, date of birth and other information, if the user provided it to that partner. The information that we receive from such partners is combined with additional information we collect from 3rd party sources. This supplemental data is associated with geographic locations, such as demographic and business information.
(j) LotaData Services may include links to other websites or apps or services whose privacy practices may differ from ours. If you visit and/or submit personal information to any of those sites or apps or services, your information is governed by their privacy statements. We encourage you to carefully read the privacy statement of any website you visit.
(k) LotaData Services assign your computer one or more cookies which may collect information to personalize your online experience. We, and third-party service providers with whom we partner, may use standard Internet tools such as cookies and web beacons, which collect information that tracks your use of our website and enables us to customize our services. These cookies and web beacons may be set by our third-party partners and service providers to assist us in managing LotaData Services and in understanding how users interact with our services. These technologies collect non-personal information about your visits and interaction.
8. Disclaimer of Warranties
EXCEPT AS EXPRESSLY OTHERWISE SPECIFIED BY LOTADATA AND EXCEPT WHERE PROHIBITED BY APPLICABLE LAW:
(a) LOTADATA MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, REGARDING THE SDK, API, THE PLATFORM, OR ANY OTHER LOTADATA SERVICES;
(b) THE SDK, API, THE PLATFORM, AND ALL OTHER LOTADATA SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED;
(c) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, LOTADATA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTY OF NON-INFRINGEMENT, WITH RESPECT TO THE SDK, API, THE PLATFORM, AND ALL OTHER LOTADATA SERVICES; AND
(d) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LOTADATA DOES NOT WARRANT THAT THE SDK, API, THE PLATFORM, AND ALL OTHER LOTADATA SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; OR THAT ANY DEFECT OR ERROR WILL BE CORRECTED; OR THAT THE SDK, API, THE PLATFORM, AND ALL OTHER LOTADATA SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU USE THE SDK, API, THE PLATFORM, AND ALL OTHER LOTADATA SERVICES ENTIRELY AT YOUR OWN RISK.
SOME STATES MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. BUT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXCLUDE ALL WARRANTIES.
9. Limitation of Liability
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL LOTADATA OR ANY OF ITS PARTNERS, LICENSORS, SUCCESSORS OR ASSIGNS BE LIABLE TO YOU UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND, OR LOSS OF BUSINESS GOODWILL OR OPPORTUNITY) ARISING OUT OF OR RELATING TO THE SDK, API, THE PLATFORM, OR ANY OTHER LOTADATA SERVICES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR TOTAL LIABILITY, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS LOTADATA AND ITS PARTNERS, LICENSORS, SUCCESSORS AND ASSIGNS AND THEIR RESPECTIVE AGENTS, CONTRACTORS AND DESIGNEES, FOR AND FROM ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION, DAMAGES, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND LEGAL COSTS) ARISING OUT OF OR RELATING TO:
(a) YOUR APPROVED MOBILE APPLICATION/SERVICE, OR ANY OTHER PRODUCT OR SERVICE PROVIDED BY YOU, OR ANY ACTIVITY OR BUSINESS OR TRADE PRACTICE YOU ENGAGE IN;
(b) YOUR USE OR MISUSE OF THE SDK, API, THE PLATFORM, OR ANY OTHER LOTADATA SERVICES;
(c) YOUR VIOLATION OF ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND/OR
(d) YOUR VIOLATION OF ANY APPLICABLE LAW (INCLUDING, WITHOUT LIMITATION, YOUR VIOLATION OF ANY APPLICABLE PRIVACY LAWS AND STANDARDS) OF USE OR ANY APPLICABLE LAW.
LotaData may at any time assign or transfer this Agreement (in whole or in part), or delegate any of its obligations under this Agreement, to a third party without your consent. You may not assign or transfer this Agreement (in whole or in part), or delegate any of your obligations under this Agreement, to any third party, except with LotaData’s express prior written consent (which consent may be granted or withheld by LotaData in its sole discretion). This Agreement shall be binding on, inure to the benefit of, and be enforceable against, the Parties’ successors and permitted assigns.
12. Governing Law; Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of California (without regard to the conflict of laws provisions thereof). You expressly consent to the exclusive venue and personal jurisdiction of the state and federal courts located in the State of Maryland for any actions arising from or relating to this Agreement.
If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar economic effect.
14. Force Majeure LotaData shall not be liable to you by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of LotaData.
15. Attorneys’ Fees
LotaData shall be entitled to an award of its reasonable costs and expenses, including attorneys’ fees, in any action or proceeding arising out of or relating to this Agreement.
16.1 You acknowledge and agree that any unauthorized and/or unlawful use of any LotaData Services would result in irreparable injury to LotaData for which monetary damages would be inadequate. In such event, LotaData shall have the right, in addition to other remedies available to it pursuant to this Agreement, to immediate injunctive relief against you without the need to post a bond. Nothing contained in this Agreement shall be construed to limit any legal remedies available to LotaData.
16.2 This Agreement contains the entire agreement and understanding between the Parties relating to the subject matter hereof, and merges and supersedes any and all prior understandings and communications, whether written or oral, between the Parties.
16.3 Each Party is an independent contractor and not a partner, joint venturer or employee of the other. Except as necessary to allow LotaData to perform hereunder, neither Party shall have the right to bind the other or to incur any obligation on the other’s behalf.
16.4 By registering on the Platform, you consent to receiving communications from LotaData electronically, which communications may be in the form of emails, notices posted on the Platform, and/or notices or messages posted to your account on the Platform. You acknowledge and agree that all agreements, notices, disclosures and other communications that LotaData provides to you electronically satisfy any legal requirement that such communications be in writing. Any notice from LotaData to you hereunder may be sent to the email address listed in your account, or by posting it directly to your account on the Platform.
16.5 LotaData’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
16.6 If you are a competitor of LotaData, you must have LotaData’s explicit written consent to use the LotaData Services.
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