Posted Date: April 21, 2015
The following Terms of Service (“Terms”) set out the relationship between you and M2Catalyst, LLC (“M2”) regarding your use of any of our websites, our mobile applications (“App” or “Apps”), or related services (“Service” or “Services”).
Your access to our Services is subject to the Terms outlined herein and subject to change, suspension, modification or discontinuation at any time, and we reserve the right to update and change these Terms by posting updates and changes to www.m2catalyst.com or any related Service. Any new features or tools that are added to a Service shall be also subject to these Terms. You are advised to check the Terms from time to time for any updates or changes that may impact you.
1. Modification of These Terms
M2 reserves the right to modify and/or change these Terms at any time and without prior notice. If M2 materially modifies these Terms, it will post the updated Terms on www.m2catalyst.com. M2 will also update the “Posted Date” at the top of this agreement and the “Last Updated Date” at the end of this agreement. By continuing to use the Services after M2 has posted a modification of these Terms, you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to uninstall or discontinue using the Services. This Agreement will also govern any software upgrades and/or updates provided by M2 that upgrade and/or supplement a Service, unless such upgrades and/or updates are accompanied by a separate license, in which case the terms of that separate license will apply.
2. The Services
M2 provides a wide array of Apps, websites, and related services. These Services may be Free Services or Paid Services, some or all of which may gather data on various performance parameters of the applications on your mobile device. You may be required to download the software in order to use the Services. The installation of any Service may enable M2 to access, use and collect a variety of information regarding your usage and information about your mobile device. The information collected is aggregated and anonymized to protect and respect your privacy. For more information on the type of Services M2 provides, please visit our website at www.m2catalyst.com.
3. License to Software and Use
Conditioned upon your compliance with the terms and conditions of these Terms, M2 hereby grants to you a limited, reversible, non-exclusive, personal, non-sublicensable, non-transferable, non-assignable license to install and use the executable form of the Services, solely for your personal use. M2 reserves all rights in the Services not expressly granted to you in these Terms.
With respect to any Third Party Software that may be incorporated with or into the Services, you acknowledge and agree that your use of such Third Party Software shall also be subject to its respective usage and privacy terms.
As part of the installation process of a Service, you may be changing your mobile device settings. By installing a Service, you agree you have approved such changes. The Services may allow you to reconfigure such settings at any time, either from within the Service itself, or from within the configuration options available in your mobile device. Such changes may include, without limitation, the following:
If such Service is an App, you may uninstall it by using the standard uninstall procedures offered by your device’s Operating System.
You may not use the Services in any manner that could: (i) damage, disable, overburden, or impair the Services (or any server or networks connected to them), or (ii) interfere with any third party’s use and/or enjoyment of the Services (or any server or networks connected to them).
4. License Restrictions
Except as expressly specified in these Terms, you may not: (a) copy or modify the Services; (b) transfer, sublicense, lease, lend, rent, or otherwise distribute the Services to any third party; or (c) use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms. You acknowledge and agree that portions of the Services, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of M2 and its licensors, if any. Accordingly, you agree not to disassemble, decompile or otherwise reverse engineer any components of the Services provided in object code, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
5. Updates; Additional Services; Tests
The Services may automatically download and install updates provided by M2, from time to time. These updates are designed to improve, enhance and further develop the experience of the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit M2 to deliver these to you) as part of your use of the Services.
Further, you agree that by using the Services you may periodically send technical data and related information to M2 to facilitate the provision of updates, product support and other services to you, if any, related to the Services. Such information may include, but is not limited to, technical information or personal preferences about your device, and/or internet Browser and/or system. Additionally, you agree M2 may conduct A/B testing and change the look and feel of the Services or add additional features in order to improve your experience with them.
We always aim to provide updates that will improve your experience and keep you satisfied, but if you are unhappy with any of the modifications to a Service, you may either uninstall the App or discontinue using the Service if such service is not an App. If you have questions or suggestions for future updates, please contact us.
6. Proprietary Rights
The Services are licensed, not sold to you. You acknowledge and understand that M2 owns all right, title and interest in and to the Services, including without limitation all intellectual property rights therein. The Services are protected by United States (and other countries) copyright, trademark, patent, other statutory and common law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Services as delivered to you.
7. Privacy and Legal Rights
M2 prohibits the violation of a user’s privacy rights and the distribution of materials that are illegal, infringing or may be deemed offensive by M2, in its sole and absolute discretion. If you believe that your legal or privacy rights have been violated while using the Services, M2 encourages you to report such matters to M2 at your earliest convenience at email@example.com. M2 will, at its discretion, examine your complaint and take commercially reasonable efforts to attempt to resolve the issue as part of M2’s commitment to providing a positive user experience.
8. Your Obligations
You hereby acknowledge and agree to only use the Services as permitted in these Terms. You agree to comply with all applicable laws, rules and regulations when using the Services. You will not use the Services to infringe anyone’s rights, including, without limitation, any intellectual property rights of any person or entity.
You agree that you are solely responsible for (and that M2 has no responsibility to you or to any third party) your use of the Services, any breach of your obligations under these Terms, and for the consequences (including any loss or damage which M2 may suffer) of any such breach.
9. User Submissions
M2 does not claim ownership of photographs, graphics, video, messages, tags or other materials you submit for display, sharing or distribution to others through the Apps and Services. As between M2 and you, you own all rights to your User Submissions. However, you grant to M2 an irrevocable, perpetual, [non-exclusive], fully-paid, worldwide, license, with the right to sublicense through multiple tiers, to use, distribute, reproduce, modify, create derivative works from, adapt, publish, translate, publicly perform, and publicly display your User Submissions (in whole or in part) in any format or medium now known or later developed.
The rights granted by you in these Terms include the right of M2 to use User Submissions you upload or submit to or through the Apps and third party platforms and services such as Instagram. M2 reserves the right to display advertisements in connection with User Submissions and to use User Submissions for advertising and promotional purposes. M2 does not pre-screen User Submissions and you agree that you are solely responsible for all of your User Submissions. M2 is not required to host, display, or distribute any User Submissions, and may remove at any time or refuse any User Submissions, in its sole and absolute discretion. M2 is not responsible for any loss, theft or damage of any kind to any User Submissions, and M2 will not return any User Submissions. You represent and warrant that (i) your User Submissions and M2’s authorized use thereof do not and will not infringe the right of any third party (including, without limitation, intellectual property rights, rights of privacy or publicity, or any other legal or moral rights), and (ii) you have received the written consent of every individual whose name or image is present in your User Submissions, and that no such individual is under the age of 13.
10. No Obligation
M2 is not obligated to maintain or support the Services, or to provide you with updates, fixes, or services related thereto.
11. Export Laws
You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Services nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. Furthermore, you agree you will not export nor re-export the Services nor any technical data related thereto nor any direct product thereof to any US embargoed country.
By downloading and using the Services, you further represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
12. Disclaimer of Warranties
THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND. M2 DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM M2 OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. M2 DOES NOT REPRESENT OR WARRANT THAT: (I) THE SERVICES WILL MEET YOUR REQUIREMENTS OR WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (II) THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED; OR (III) THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE SERVICES AND ANY DATA ACCESSED THEREFROM. INFORMATION PROVIDED THROUGH THE SERVICES MAY BE DELAYED, INACCURATE, OR CONTAIN ERRORS OR OMISSIONS, AND M2 GROUP (DEFINED BELOW) WILL HAVE NO LIABILITY WITH RESPECT THERETO. M2 MAY CHANGE OR DISCONTINUE ANY ASPECT OR FEATURE OF THE SERVICES OR THE USE OF ALL OR ANY FEATURES OR TECHNOLOGY IN THE SERVICES AT ANY TIME WITHOUT PRIOR NOTICE TO YOU. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO UNINSTALL AND CEASE USE OF IT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
13. Limitation of Liability
IN NO EVENT WILL M2, ITS AFFILIATED ENTITIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AUTHORIZED AGENTS (COLLECTIVELY, THE “M2 GROUP”) BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE SERVICES UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE M2 GROUP WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL M2’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT PAID, IF ANY, BY YOU FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SUCH AS FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
To the maximum extent permitted by law, you agree to defend, indemnify and hold M2 harmless from and against any and all claims, suits, losses, liability, costs or expenses (including but not limited to reasonable attorneys fees) arising from or incurred as a result of your use of the Services, including your downloading, installation, or use of the Services, or your violation of these Terms.
15. Applicable Law
These Terms shall be governed by and interpreted under the laws of the State of California, without regard to its conflicts of laws provisions.
16. Binding Arbitration and Class Action Waiver
This section applies to any dispute EXCEPT IT DOES NOT INCLUDE A DISPUTE RELATING TO THE ENFORCEMENT OR VALIDITY OF M2’S INTELLECTUAL PROPERTY RIGHTS. Dispute means any dispute, action, or other controversy between you and M2 concerning the Services (including their price) or this agreement, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law.
If you and M2 do not resolve any dispute by informal negotiation, any effort to resolve the dispute will be conducted exclusively by binding arbitration. You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor M2 will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
Any arbitration will be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and in many cases its Supplementary Procedures for Consumer-Related Disputes. For more information, see www.adr.org or call 1-800-778-7879. You agree that arbitration shall be held in Orange County, California.
To the extent permitted by law, any claim or dispute against M2 relating to this Agreement or the Services must be submitted by you to binding arbitration as described above within one year. The one-year period begins on the date when the claim or dispute first could be filed. Any claim or dispute that is not filed in an arbitration proceeding within that time is permanently barred. This section applies to you and your successors and assigns.
17. Term and Termination
Your license to use the Services under these Terms shall continue until it is terminated by either party. You may terminate these Terms at any time, by discontinuing the use of all or any of the Services. These Terms and the license granted to you under these Terms will terminate automatically if you breach any term of these Terms. Upon termination, you must promptly destroy and/or delete all copies of the Services in your possession or control, if applicable. Sections 2, 3, 4, 6 through 16, 18 and 19 shall survive the termination of these Terms.
(a) These Terms and all the policies referenced herein constitute the entire agreement between M2 and you concerning the subject matter hereof, and it may only be modified by a written amendment signed by an authorized executive of M2.
(b) The section titles in these Terms are provided solely for convenience and have no legal or contractual significance.
(c) The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
(d) If for any reason a court of competent jurisdiction finds any provision of these Terms or portion thereof, to be unenforceable, that provision of these Terms shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of these Terms shall continue in full force and effect. M2 reserves the right, at our discretion, to update or revise these Terms.
(e) Except as required by law, the controlling language of these Terms is English. In the event of inconsistency or discrepancy between the English version and any other language version, the English language version shall prevail.
(f) You may not assign your rights under these Terms to any party without M2’s consent.
(g) If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
(h) Nothing in these Terms will be construed as creating a joint venture, partnership, employment or agency relationship between you and M2, and you do not have any authority to create any obligation or make any representation on M2’s behalf.
(i) If you have any questions about the Services, please visit our website at www.m2catalyst.com
19. Third Party Beneficiaries
You acknowledge that third party application marketplaces, including but not limited to Google Play, may be third party beneficiaries of these Terms and upon your acceptance of these Terms such stores or marketplaces may have the right to enforce these Terms against you as a third party beneficiary. You further acknowledge and agree that such parties are not parties to these Terms other than as third party beneficiaries and are not responsible for providing maintenance and support services with respect to the Services.
20. Software Questions, Comments, and Contact Information
If you have any questions, complaints and/or claims, you may contact M2 at:
M2Catalyst, LLC, 65 Enterprise, Aliso Viejo, CA 92656
Last updated: April 21, 2015