Hotshot Terms of Service
Last updated: March 22, 2016
Welcome to Hotshot. The website hotshot.mobi (the “Site”), and the Hotshot desktop and mobile applications (collectively, the “Applications”) and the online chat and file sharing services and the various other related features, functions, software, applications, websites and networks (collectively, the “Services”) are provided and operated, and are being made available to your organization (the “Organization”) and you and the other users of the Site, the Applications and the Services (collectively, “Users”) by Hotshot Technologies, LLC (“Hotshot”). All defined terms used herein shall have the meanings prescribed to these terms in these Terms of Service.
To access and use the Site, the Applications and the Services, you must be at least 18 years of age. BY REGISTERING FOR THE SITE, THE APPLICATIONS OR THE SERVICES, CLICKING “I AGREE” BUTTON OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SITE, THE APPLICATIONS OR THE SERVICES, YOU REPRESENT THAT:
· YOU SATISFY THE ELIGIBILITY REQUIREMENTS AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE, THE APPLICATIONS OR THE SERVICES; AND
· YOU WILL COMPLY WITH THESE TERMS AND ALL APPLICABLE LOCAL, STATE, NATIONAL AND INTERNATIONAL LAWS, RULES AND REGULATIONS.
3. License Grant.
3.1 LICENSE GRANT
Subject to your compliance with all the terms and conditions set out in these Terms, Hotshot hereby grants to you a limited, non-exclusive, non-transferable, freely revocable license during the term of your agreement with Hotshot (a) to install and use the Applications on your computers and mobile and other devices and (b) to access and use the Site and the Services as contemplated herein.
Any software that Hotshot provides you may automatically download updates and will prompt you to install them. Mobile users may install the updates automatically and you may be able to adjust these automatic updates through your device’s settings.
3.2 PREVENTION OF UNAUTHORIZED USE
Hotshot reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the Site, the Applications or the Services, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
4. Service Plans and Fees.
Hotshot offers various service plans with different features and subscription terms for the Services (the “Service Plans”).
The subscription term of all Service Plans will automatically renew for periods equal to the initial subscription term (and charged at the then-current rates) unless the subscription is cancelled or a different Service Plan with a different subscription term is selected. If the subscription is terminated, it will terminate at the end of the then-current month, but there will not be any credits or refunds for amounts accrued or paid prior to such termination unless required by law.
Hotshot may change, modify, or eliminate any Service Plan at any time, with or without notice. You agree that Hotshot will bear no liability to you or any third party if Hotshot does so.
All fees (the “Fees”) associated with the Service Plans shall be automatically charged to a credit card and paid in U.S. dollars. Hotshot reserves the right to increase any such Fees at any time upon reasonable notice posted in advance on the Site, the Applications or the Services. Any such increase shall apply after the then current subscription term ends.
If your Organization upgrades or downgrades to a Services Plan for which the Fees are different than the Fees for the previous Services Plan, then the Fees shall be adjusted to reflect the then current Fees for any such new Services Plan. If your Organization downgrades to a less expensive Services Plan and has pre-paid any Fees that are still outstanding, then your Organization shall receive a credit against future Fees for any such pre-paid Fees.
ALL FEES ARE NON-REFUNDABLE, NON-CANCELLABLE AND NON-CREDITABLE UNLESS SPECIFICALLY PROVIDED OTHERWISE IN THESE TERMS OR THE APPLICABLE TERMS AND CONDITIONS OR UNLESS REQUIRED BY LAW.
Your Organization is responsible for all sales, use, excise and other similar taxes (collectively, “Taxes”). To the extent that any such taxes are payable by Hotshot or an unaffiliated third party, your Organization must pay to Hotshot or such unaffiliated third party the amount of such taxes in addition to any other amounts owing for such Service Plans.
Payments or payment processing for the Fees are handled by unaffiliated third parties (e,g., companies that provide credit card processing services) (“Third Party Processors”).
If you are a person designated as an administrator for your Organization (an “Administrator”), you shall be responsible for signing-up for the Services, including any free trial. You may then send invitations to other potential users to enable them to be able to access and use the Services. You may also send invitations to other potential Administrators to enable them to perform the actions of an Administrator for your Organization including possibly revoking your status as an Administrator.
Subject to any free trial period, an Administrator may elect to access and use the Services for itself and the other Users, by selecting one of the Service Plans. An Administrator may also cancel or upgrade or downgrade the Services Plan. By selecting one of the Service Plans, you agree on behalf of yourself and your Organization to the terms and conditions associated with such Service Plan, including the applicable pricing and the subscription term of such Service Plan.
You agree to pay all Fees in accordance with the applicable terms and conditions. In addition, to the extent that any Taxes are payable by Hotshot or Third Party Processor in connection with the Service Plan selected by you, you and your Organization agree to pay to Hotshot or such Third Party Processor the amount of such taxes in addition to any other amounts owing for such Service Plan.
When you sign-up for any Service Plan, you will provide a credit card number and agree and authorize Hotshot to charge your credit card for the Fees, renewals, any related taxes and any other amounts due and owing to Hotshot. In making payments, you acknowledge that you are not relying on future availability of any Service Plans beyond the current subscription term or any upgrades or feature enhancements. If you change your Service Plan, Hotshot will charge for the difference between your current Service Plan and your new Service Plan.
An Administrator may do the following through the web control panel on the Site or the Mobile Applications:
· Modifying the billing Information (adding/removing credit card information).
· Adding additional administrators and removing administrators.
· Modifying the billing subscription.
· Cancelling the account.
· Adding/removing 2-factor authorization.
Any other information may only be changed by contacting Hotshot at email@example.com.
6. Additional Policies.
When using the Site, the Applications and the Services, you will be subject to any additional posted policies, guidelines or rules applicable to the Site, the Applications and Services and features which may be posted from time to time (the “Policies”). All such Policies are hereby incorporated by reference into these Terms.
7. Respecting other People’s Rights.
Hotshot respects the rights of others and so should you. You therefore may not post or send Content that:
· violates or infringes someone else’s rights of publicity, privacy, copyright, trademark, or other intellectual property right;
· is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by Hotshot in its sole discretion;
· is false, misleading, untruthful or inaccurate;
· includes anyone's identification documents or sensitive financial information
· impersonates any person or entity, including any of Hotshot’s employees or representatives; or
· spams or solicits any Users.
8. Reverse Engineering.
You may decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of the Site, the Applications or the Services, in whole or in part provided that you adhere to the following restrictions:
Any source code that you derive shall be maintained as confidential and shall not be discloses to any other party.
Any vulnerabilities that you discover shall be promptly reported to Hotshot and Hotshot shall be allowed to fix the vulnerability before any disclosure of it publicly or privately. The time to fix any such vulnerability may range from two weeks to several months or longer depending on the difficulty of fixing the issue.
You shall not sell or otherwise receive any compensation from anyone else in exchange for the source code or any information describing vulnerabilities that you have discovered.
You shall not (a) interfere with the functioning of Hotshot’s production servers, (b) access, destroy, or leak customer information or interfere with the Services, (c) cause any financial loss to Hotshot or (d) use or otherwise exploit the vulnerabilities that you discover to affect other users including, decrypting the Content of other users or impersonating other users. Hotshot may in its sole discretion provide a set of “sandbox” servers and databases which you may attempt to hack freely.
The Applications and the Services were designed to enable Users to communicate and share files and Content with other Users on an end-to-end encrypted and private basis (the “End-to-End Encrypted Communications”). Some communications are encrypted using only SSL, are encrypted only in-transit, and are decrypted at the server . The following items are only encrypted using SSL:
· Information provided on the Site or in the Applications’ address book
· Names and email addresses, which are used to invite Users to download the Applications and use the Services
· Channel names
Emails that Hotshot sends are not encrypted.
Hotshot does not have the ability to view or decrypt End-to-End Encrypted Communications. Hotshot will make a good faith effort to properly utilize encryption algorithms and will make critical source code which handles encryption and cryptographic signing available for public review. Hotshot’s goal is to give independent third parties an opportunity to point out flaws in the system. However, history shows that despite these efforts, vulnerabilities are sometimes found which could allow for the unauthorized decryption of End-to-End Encrypted Communications or Content and/or the unauthorized use of a User’s identity within the Application or the Services. You acknowledge and assume this risk.
10. Modification of these Terms.
Hotshot reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Site, the Applications or the Services. If Hotshot updates these Terms, it will update the “last updated” date at the top of the Terms. Please check these Terms, including any Policies, periodically for changes. Your continued use of the Site, the Applications or the Services after the posting of changes constitutes your binding acceptance of such changes. In the event that a change to these Terms materially modifies your rights or obligations (including applicable fees), Hotshot will make reasonable efforts to notify you of such change. Hotshot may provide notice through a pop-up or banner within the Site or Services, by sending an email to any address you may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, Hotshot may require you to provide consent by accepting the changed Terms. If Hotshot requires your acceptance of the changed Terms, changes are effective only after your acceptance. For all other changes, except as stated elsewhere by Hotshot, such amended Terms or fees will automatically be effective, replacing the previously-effective Terms or fees, thirty (30) days after they are initially posted on the Site, the Applications or the Services. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE SITE, THE APPLICATIONS AND THE SERVICES.
To the extent that any modifications to the Terms or Policies are not allowed under applicable laws, the prior most recent version of the Terms or Policies shall continue to apply.
11. Digital Millennium Copyright Act.
It is Hotshot’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to Hotshot’s DMCA Policy at http://hotshot.mobi/dmca/ If you file a notice with our copyright agent, it must comply with the requirements set forth at 17 U.S.C. § 512(c)(3). Hotshot reserves the right to terminate without notice any User’s access to the Services if that User is determined by Hotshot to be a “repeat infringer.” In addition, Hotshot accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
12. License Grant; Representations and Warranties.
12.1 LIMITED LICENSE GRANT TO HOTSHOT.
The Site, the Applications or the Services permit the submission and/or posting or linking of pictures, audio and video recordings, text, data, information and other input or any other content linked, posted, and/or submitted by you or other Users, in each case whether or not made available to other Users (“Content”). Hotshot does not have access to any Content that is uploaded, provided, posted, distributed or disseminated through End-to-End Encrypted Communications. By uploading, providing, posting, distributing or disseminating any Content that is not encrypted or is encrypted using SSL through the Site, the Applications or the Services, you hereby grant to Hotshot a worldwide, non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), assignable, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce and distribute this Content (and any copyrights, publicity, database and other proprietary rights therein), in connection with the Site, the Applications, the Services and Hotshot’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof), in any media formats and/or through any media channels.
12.2 CONTENT USE BY OTHER USERS.
You hereby consent to the use of your Content by other Users that are authorized to access your Content in the manner contemplated by these Terms and the Services.
12.3 CONTENT REPRESENTATIONS AND WARRANTIES.
You are solely responsible for your Content and the consequences of posting or publishing them. By uploading and publishing your Content, you affirm, represent, and warrant that: (1) you are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize Hotshot and the Users to use and distribute your Content as necessary to exercise the licenses granted by you in this Section 12 and in the manner contemplated by Hotshot and these Terms; (2) your Content does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, libel, or violate or invade the right of privacy, publicity or other rights of any person or entity; and (3) your Content does not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of the Services. Violators of these third-party rights may be subject to criminal and civil liability. Hotshot reserves all rights and remedies against any Users who violate these Terms.
12.4 CONTENT DISCLAIMER.
You understand that when using the Site, the Applications or the Services you may be exposed to Content or other materials from a variety of sources, and that Hotshot is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Content and other content. You further understand and acknowledge that you may be exposed to Content and other materials that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Hotshot with respect thereto. Hotshot does not endorse any Content and other material or any opinion, recommendation or advice expressed therein, and Hotshot expressly disclaims any and all liability in connection with Content and other materials. If notified by a User or a content owner of any Content or other content or materials that allegedly do not conform to these Terms, Hotshot may investigate the allegation and determine in its sole discretion whether to remove the Content or other content or materials, which it reserves the right to do at any time and without notice. For clarity, Hotshot does not permit copyright infringing activities on the Site, the Applications or the Services.
13. Prohibited Conduct.
BY USING THE SITE, THE APPLICATIONS AND THE SERVICES YOU AGREE NOT TO:
Selling, reselling, leasing, renting, licensing or sublicensing, in whole or in part, the Services, or using the Services for hosting or time sharing services, or as part of a service bureau or outsourcing offering;
Prepare any derivative work of the Site, the Applications or the Services, or any other program based upon the Applications or the Services;
Reproduce (except as expressly permitted herein), modify, adapt, or otherwise make any changes to the Site, the Applications or the Services or any part thereof;
Copy, disclose, or distribute any data available on the Site, the Applications or the Services in any medium, including without limitation, by any automated or non-automated “scraping;”
Interfere with, circumvent or disable any security or other technological features or measures of the Site, the Applications or the Services or attempt to gain unauthorized access to the Applications or the Services or its related systems or networks except as described in section 7;
Use bots or other automated methods to access the Site; and
Use the Site, the Applications or the Services for any unlawful or inappropriate activities, such as gambling, obscenity, pornography, violence, transmission of deceptive messages, or harassment.
14. Account and Account Security.
When you use the Site, the Applications or the Services or any applications, products, services, or information from Hotshot, you may be asked to provide an email address. The Application also generates encryption keys and a human-friendly text seed from which the encryption keys can be derived (the “Seed”). An individual who copies your encryption keys or your Seed can read your messages and use your identity within the Application. You are solely responsible for maintaining the security of your email account, your encryption keys, your Seed, and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account. You agree that the information you provide to Hotshot on registration and at all other times will be true, accurate, current, and complete. You also agree to make a good faith effort to ensure that this information is kept accurate and up-to-date. You may update or change most information that you provide to Hotshot through the settings panel on the Applications or the Site. Any other information may only be updated or changed by contacting Hotshot at firstname.lastname@example.org
If at any time you have reason to believe that your account is no longer secure (e.g., in the event of a theft of your email address password, your encryption keys, your Seed, or any credit, debit or charge card number), then you agree to immediately notify Hotshot. You may be liable for the losses incurred by Hotshot or others due to any unauthorized use of your Services account.
15. Third Party Sites.
The Site, the Applications and the Services may include links or references to other web sites or services (“Third Party Sites”) solely as a convenience to Users. Hotshot does not endorse any such Third Party Sites or the information, materials, products, or services contained on or accessible through Third Party Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Site, the Applications or the Services are solely between you and such advertiser. Access and use of Third Party Sites, including the information, materials, products, and services on or available through Third Party Sites are solely at your own risk.
16. Mobile and Data Charges.
You are responsible for any mobile and data charges that you may incur for using the Site, the Applications and the Services. If you’re unsure what those charges may be, you should ask your service provider before using the Services.
You agree that Hotshot, in its sole discretion, for any or no reason, and without penalty, may terminate your use of the Services or any account (or any part thereof) you may have with Hotshot and remove and discard all or any part of your account, user profile, and any Content, at any time. Hotshot may also in its sole discretion and at any time discontinue providing access to the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services or any account you may have or portion thereof may be effected without prior notice, and you agree that Hotshot will not be liable to you or any third party for any such termination. Hotshot reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Hotshot to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate these Terms. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Hotshot may have at law or in equity. As discussed herein, Hotshot does not permit copyright infringing activities on the Site, the Applications or the Services, and shall be permitted to terminate access to Site, the Applications or the Services, and remove all Content or other content submitted by any Users who are found to be repeat infringers. BY ACCEPTING THESE TERMS, YOU WAIVE AND SHALL HOLD CLEARCHART HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY HOTSHOT DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER HOTSHOT OR LAW ENFORCEMENT AUTHORITIES.
Your only remedy with respect to any dissatisfaction with (i) the Site, the Applications or the Services, (ii) any term of these Terms, (iii) any policy or practice of Hotshot in operating the Site, the Applications or the Services, or (iv) any Content transmitted through the Site, the Applications or the Services, is to terminate your account and your use of the Site, the Applications and the Services. You may terminate your use of the Site, the Applications and Services and your account at any time. After such termination, you must refrain from use of the Services until authorized by Hotshot.
18. Ownership; Proprietary Rights.
The Site, the Applications and the Services are owned and operated by Hotshot. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, intellectual property and all other elements of the Site, the Applications and the Services provided by Hotshot (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any Content that are provided and owned by Users, all Materials contained on the Site, the Applications and the Services are the property of Hotshot or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Hotshot or its affiliates and/or third-party licensors. Except as expressly authorized by Hotshot, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Notwithstanding the foregoing, you may, create, display and distribute screenshots of the Mobile Applications and otherwise use the Applications publicly subject to, and otherwise in accordance with, these Terms. Hotshot reserves all rights not expressly granted in these Terms.
You agree to indemnify, save, and hold Hotshot, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Site, the Applications, the Services, any of the Content, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you herein. Hotshot reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Hotshot, and you agree to cooperate with Hotshot’s defense of these claims. Hotshot will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
20. No Warranties; Disclaimers.
20.1 NO WARRANTIES.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HOTSHOT AND ITS AFFILIATES, CONTRACTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, THIRD-PARTY PARTNERS, LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “HOTSHOT PARTIES”) DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED WITH RESPECT TO THE SITE, THE APPLICATIONS AND THE SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, HOTSHOT PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE SITE, THE APPLICATIONS AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE HOTSHOT PARTIES OR THROUGH THE SITE, THE APPLICATIONS AND THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
20.2 “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS”.
YOU EXPRESSLY AGREE THAT THE USE OF THE SITE, THE APPLICATIONS AND THE SERVICES ARE AT YOUR SOLE RISK. THE SITE, THE APPLICATIONS, THE SERVICES AND ANY DATA, ASSESSMENTS, RESULTS, INFORMATION, THIRD-PARTY SOFTWARE, CONTENT, THIRD PARTY SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE, THE APPLICATIONS OR THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
20.3 PLATFORM OPERATION AND CONTENT.
THE HOTSHOT PARTIES DO NOT WARRANT THAT THE DATA, ASSESSMENTS, RESULTS, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SITE, THE APPLICATIONS, THE SERVICES, OR ANY THIRD PARTY SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
THE HOTSHOT PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE, THE APPLICATIONS, THE SERVICES OR ANY THIRD PARTY SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
20.5 HARM TO YOUR COMPUTER.
YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, ASSESSMENTS, RESULTS OR DATA THROUGH THE SITE, THE APPLICATIONS, THE SERVICES OR ANY THIRD PARTY SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
21. Limitation of Liability and Damages.
21.1 LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL THE HOTSHOT PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE MATERIALS, ASSESSMENTS, RESULTS OR CONTENT ON THE SITE, THE APPLICATIONS OR THE SERVICES OR ANY THIRD PARTY SITES, OR ANY OTHER INTERACTIONS WITH HOTSHOT, EVEN IF HOTSHOT OR A HOTSHOT AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, HOTSHOT’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
21.2 LIMITATION OF DAMAGES.
IN NO EVENT WILL THE HOTSHOT PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SITE, THE APPLICATIONS OR THE SERVICES OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU (OR ON YOUR BEHALF), IF ANY, TO HOTSHOT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR TEN DOLLARS, WHICHEVER IS GREATER.
21.3 RELEASE FOR DISPUTES BETWEEN USERS.
If you have a dispute with any other Users or other third parties, you release Hotshot and the other Hotshot Parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
21.4 THIRD PARTY SITES.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN HOTSHOT AND RECEIVED THROUGH OR ADVERTISED ON THE SITE, THE APPLICATIONS OR THE SERVICES OR RECEIVED THROUGH ANY THIRD PARTY SITES.
21.5 BASIS OF THE BARGAIN.
YOU ACKNOWLEDGE AND AGREE THAT HOTSHOT HAS OFFERED THE SITE, THE APPLICATIONS AND THE SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND HOTSHOT, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND HOTSHOT. HOTSHOT WOULD NOT BE ABLE TO PROVIDE THE SITE, THE APPLICATIONS OR THE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
21.6 LIMITATIONS BY APPLICABLE LAW.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
22. United States Export Controls.
You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any software, technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by you that you will not export such software, technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under these Terms are contingent on your compliance with this provision.
Hotshot may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on the Site, the Applications or the Services. Notice will be deemed given twenty-four hours after email is sent, unless Hotshot is notified that the email address is invalid. Alternatively, Hotshot may give you legal notice by mail to a postal address, if provided by you through the Services. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Site, the Applications or the Services is deemed given 30 days following the initial posting.
The failure of Hotshot to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Hotshot.
23.3 DISPUTE RESOLUTION.
If a dispute arises between you and Hotshot, the goal is to provide you with a neutral and cost effective methods of resolving the dispute quickly. Accordingly, you and Hotshot agree that any dispute, claim or controversy at law or equity that arises out of this Agreement, the Site, the Applications or the Services (a “Claim”) will be resolved in accordance with this Section or as Hotshot and you otherwise agree in writing. Before resorting to these dispute methods, Hotshot strongly encourages you to first contact Hotshot directly to seek a resolution.
(a) Choice of Law. These Terms shall be governed in all respects by the laws of the State of New York as they apply to agreements entered into and to be performed entirely within New York between New York residents, without regard to its conflict of law provisions. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CLAIM OR OTHERWISE IN CONNECTION WITH THESE TERMS, THE SITE, THE APPLICATIONS OR THE SERVICES.
(b) Arbitration and Class Action Waiver.
PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
(i) Arbitration. YOU AGREE THAT ALL CLAIMS BETWEEN YOU AND Hotshot (WHETHER OR NOT SUCH CLAIM INVOLVES A THIRD PARTY) IN CONNECTION WITH THESE TERMS, THE SITE, THE APPLICATIONS OR THE SERVICES, INCLUDING WITHOUT LIMITATION, YOUR RIGHTS OF PRIVACY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION'S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND HOTSHOT HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND HOTSHOT WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. You may bring claims only on your own behalf.
Neither you nor Hotshot will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST Hotshot INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Hotshot is a party to the proceeding.
This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either Hotshot or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
(ii) Judicial Forum for Disputes. In the event that the agreement to arbitrate under Section 22.3(b) is found not to apply to you or your claim, you and Hotshot agree that any judicial proceeding (other than small claims actions) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the federal or state courts of New York County, NY. Both you and Hotshot irrevocably consent to venue and personal jurisdiction there. Notwithstanding the foregoing, Hotshot may bring a claim for equitable relief in any court with proper jurisdiction.
(iii) This arbitration agreement will survive the termination of your use of the Site, the Applications or the Services or your relationship with Hotshot.
(c) Improperly Filed Claims. All claims you bring against Hotshot must be resolved in accordance with this Section 22.3. All claims filed or brought contrary to this Section 22.3 shall be considered improperly filed. Should you file a claim contrary to this Section 22.3, Hotshot may recover attorneys’ fees and costs up to $15,000, provided that Hotshot has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
If any provision of these Terms (including any Policies) is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
These Terms and related Policies, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Hotshot without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
Upon termination of these Terms, your use of the Site, the Applications or the Services or your relationship with Hotshot, any provision which, by its nature or express terms should survive , will survive such termination or expiration, including, but not limited to, Sections 1, 2, and 8 -22.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
23.8 ENTIRE AGREEMENT.
23.9 NO AGENCY.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
23.10 GEOGRAPHIC RESTRICTIONS
Hotshot is based in the United States. Hotshot makes no claims that the Site, the Applications or any of its content or the Services is accessible or appropriate outside of the United States. Access to the Site, the Applications and the Services may not be legal by certain persons or in certain countries. If you access the Site, the Applications and the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Hotshot with respect thereto.
The Site, the Applications and the Services are offered by Hotshot located at: 5203 South 11th East, Idaho Falls, ID 83404 and email: support@Hotshot.mobi. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.