TERMS OF SERVICE

Effective Date: January 01, 2020

These Terms of Service (“Terms”) commence on the date that you accept it by checking a box or clicking on a button (or something similar) when you are asked to confirm that you accept these Terms. Acceptance in any of the foregoing manners (or other similar means) indicates that you agree to the terms and conditions of these Terms. If you are accepting on behalf of a company, organization, or other entity, then (1) "you" includes you and that entity (“you”), and (2) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity's behalf. Please read this agreement carefully to ensure that you understand each provision.

The following Terms, together with such other terms and policies referenced herein or otherwise specified by LotaData, Inc (“LotaData,” “we,” “our,” or “us”), constitute the binding legal agreement between LotaData and you regarding your access to and use of the following:

You represent that you have read and understood LotaData’s privacy policy (“Privacy Policy”) available at http://lotadata.com/privacy_policy and that by accepting these Terms you consent to the terms of the Privacy Policy, which are incorporated herein by this reference.

Do not access or use the Services if you are unwilling or unable to be bound by the Terms.

PLEASE NOTE: SECTION 14 (GOVERNING LAW AND VENUE) OF THESE TERMS CONTAINS AN ARBITRATION CLAUSE THAT APPLIES TO ALL USERS OF THE SERVICES. SECTION 14 (GOVERNING LAW AND VENUE) AFFECTS HOW DISPUTES WITH LOTADATA ARE RESOLVED. BY ACCEPTING THESE TERMS, YOU AGREE TO BE BOUND BY THIS ARBITRATION CLAUSE.

  1. 1. Modifications to this Agreement

    LotaData may modify the Terms from time to time. You understand and agree that your access to or use of the Services is governed by the Terms effective at the time of your access to or use of the Services. If LotaData makes material changes to the Terms, LotaData will notify you by email or by posting a notice on the Site at least 10 days prior to the effective date of the changes. LotaData will also indicate at the top of these Terms the date that revisions were last made. You should revisit the Terms on a regular basis, as revised versions will be binding on you. You understand and agree that your continued access to or use of the Services after the effective date of any modifications to the Terms indicates your acceptance of such modifications. Modification of the Terms will not affect the additional terms found in the Customer Addendums, as defined in Section 4.2. If the Terms are modified in a way that conflict with the Customer Addendums, then the Customer Addendums will prevail.

  2. 2. Using the Services

    If you are under 18 years of age, you may not use the Services. The Services may be modified, updated, interrupted, suspended or discontinued by LotaData at any time without notice or liability. LotaData may also schedule system downtime and unplanned system outages may occur. To use some of the Services, you may be required to create an account (“Account”). To create an Account, LotaData may require you to select a username and password. Any information submitted as part of the Account registration process must be accurate and complete. You are solely responsible for activity that occurs in your Account including any and all activities (including use services items, or services, as applicable) that are conducted through the use of your username and password whether or not authorized by you. You should keep your password confidential and notify us immediately of any unauthorized use of your account. LotaData reserves the right to close your account at any time for any or no reason, with or without notice, and in such case, you may not reopen an account without LotaData’s express written permission.

  3. 3. Becoming a Customer

    If you will be using LotaData’s GeoSDK, you are an application developer (“App Developer”). If you are a supplier of data that does not need LotaData’s GeoSDK, you are a data supplier (“Data Supplier”). If you are a Data Supplier that will be using the Services and is granted a right to sublicense the Platform, you are a platform licensee (“Platform Licensee”). If you are purchasing data from LotaData, you are a data purchaser (“Data Purchaser”). Collectively App Developers, Data Suppliers, Platform Licensees, Data Purchasers and other users of the Services are LotaData clients (“Customers”).

    1. 3.1. Approval Process

      All Customers must create an Account and provide LotaData with requisite information about yourself and the business entity (if any) that you represent. By creating an Account, you represent and warrant that: (a) you are at least 18 years of age; (b) all information and answers provided by you 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. All information and answers provided by you during Account creation are subject to verification and approval by LotaData, and you must submit additional information requested by LotaData and fully cooperate with any verification request from LotaData, or your Account creation will be denied. LotaData does not allow automatic account enablement and approval could take up to seven business days.

      If you are an App Developer, in addition to registering on the Platform you must submit additional information to LotaData. Upon LotaData’s acceptance, you will be deemed an approved developer (“Approved Developer”). Upon becoming an Approved Developer, your application/service will be deemed approved (“Approved Mobile Application”).

    2. 3.2. Customer Addendums

      All Customers and LotaData need to agree upon further terms that outline LotaData’s fees and revenue sharing schedule (“Customer Addendums”) before Customers will be allowed access to the GeoSDK, API, Reference Apps, Data, or Platform. The applicable Customer Addendums will be sent to you by LotaData after creating an Account.

    3. 3.3. Certain Requirements

      In order to become and remain an Approved Developer, your Approved Mobile Application must meet the following requirements at all times; Platform Licensee must also require any sub-licensees to meet the following requirements at all times:

      1. 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.
      2. b) Your mobile application/service must not:
        • violate, infringe upon, or misappropriate any intellectual property right, right of privacy, right of publicity, or any other right of any person or entity;
        • contain or link to any content that is illegal, unlawful, threatening, harassing, abusive, defamatory, libelous, fraudulent, deceptive, invasive, vulgar, obscene, profane, pornographic, violent, hateful, racist, discriminatory, or otherwise objectionable or inappropriate, as determined by LotaData in its sole discretion;
        • contain or link to any content that depicts, promotes or encourages conduct that would constitute a criminal offense or otherwise violate any applicable law;
        • be directed to or targeting children/minors (i.e., those under the age of 13);
        • 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 LotaData (except with LotaData’s express prior written approval);
        • 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, or data.;
        • 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”;
        • engage in any spoofing, redirecting or trafficking from other sites in an effort to gain traffic;
        • promote any tobacco products, firearms or alcoholic beverages (except with LotaData’s express prior written approval);
        • promote gambling, contests, lotteries, raffles, or sweepstakes (except with LotaData’s express prior written approval); or
        • offer any product or service that competes with LotaData; or
        • provide third parties with any of the GeoSDK, API, Reference Apps, Data, Platform; or
        • provide any of the Data to third parties; or
        • systematically query the API or Platform or GeoSDK in a manner to obtain and cache all Data for a given locality, region or country. LotaData does not allow caching and storing of Data provided through the LotaData Services, unless specified in the expiry headers or through a separate agreement.
        • engage in any other activity or practice that violates this Agreement or any applicable law.

        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.

      3. 3.4. Usage Limits

        You agree to abide by any and all limitations (such as daily usage quotas that limit the number of queries that can be sent by the API to the Platform) for the 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 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. Usage limits can be found in the Customer Addendums.

      4. 3.5. Technical Support

        LotaData shall prove you with technical support comprised of email support regarding the operation and use of the Services. LotaData shall provide technical support only in US English and only during LotaData’s standard hours of operation between 9:00 AM through 5:00 PM Pacific Time, Monday through Friday (excluding holidays). LotaData’s technical support contact email address is support@lotadata.com.

    4. 4. Privacy

      When collecting Device Data (as defined in Section 7.1 of these Terms), Customers that are Approved Developers, Platform Licensees, and Data Suppliers must comply with your own publicly posted privacy policy that permits you to share, collect, use and disclose such Device Data to us, and for us to use such Device Data as contemplated under these Terms, and if required by applicable law, pursuant to consents obtained by you to do each of the foregoing. For clarity and without limitation, Approved Developers, Platform Licensees, and Data Suppliers are responsible for the content and placement of consumer-facing disclosure and obtaining consents regarding the collection and use of Device Data, including informing mobile users of Approved Mobile Applications (“End Users”), about the disclosure of data to LotaData and by LotaData to third parties for marketing purposes.

      As part of these Terms, Approved Developers and Platform Licensees (including sub-licensees) must obtain the consent from their End Users, either directly or through Platform Licensee’s own customers, to share device data with LotaData by incorporating into the privacy policy of their Approved Mobile Application language that is substantially similar to the following:

      “By using this app you consent to having certain device data shared with LotaData, Inc. (“LotaData”), one of our third party service providers. The device data that we share with LotaData will be subject to the LotaData privacy policy. By proceeding to use this app, you are consenting to LotaData’s privacy policy, which can be found at: http://lotadata.com/privacy_policy”.

    5. 5. Fees & Revenue Share

      LotaData reserves the right, in its sole discretion, to charge fees for use of or access to specific levels of service around the Services. If LotaData decides to charge fees for Services, such fees and additional terms and conditions will be disclosed to you in a Customer Addendum prior to 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 Services. Depending on which of the Services are being used, LotaData may use a revenue sharing structure rather than a fee arrangement. Your current fees and revenue sharing structure can be found in the Customer Addendum sent to you by LotaData.

    6. 6. Intellectual Property License; Proprietary Rights and Trademark

    7. 6.1. Data Collection and Use

      In general, LotaData collects information about End Users’ devices (“Device Data”) from Customers that integrate LotaData’s products into their apps either through a software development kit (“SDK”) or from Customers that otherwise share Device Data with LotaData. Device Data collected by LotaData may include the following: (a) location data of End Users’ devices, such as latitude-longitude coordinates obtained through GPS tools, WiFi data, cell tower triangulation or other techniques, (b) the associated device identifier of End Users’ devices, such as the Identifier for Advertisers or IDFA for iOS devices or Advertiser ID for Android/Google devices, (c) other information about End Users’ devices, such as: device type (e.g., tablet, smartphone), hardware model, operating system and version, mobile browser type (e.g., Chrome, Firefox, Safari), mobile network information, and information about speed, bearing, orientation, time zone, timestamp and altitude, (d) End Users’ use information of LotaData’s products and services (through Customers’ apps using LotaData’s GeoSDK), such as: access time, access location, activity and internet protocol address, (e) predicted data about End Users, such as age, date of birth, street address, characteristics or interest, and/or (f) any other information End Users voluntarily provide to LotaData or to LotaData’s Customers. Device Data is collected in order to build profiles for legitimate business purposes, including without limitation, engagement optimization, customized content, personalized notifications, ad-decisioning, and/or audience building (collectively, the “Stated Purpose”). Accordingly, by supplying Device Data, you expressly authorize and allow LotaData, to the fullest extent permitted by applicable law, to securely access, collect and receive Device Data and to use and maintain such Device Data for the Stated Purpose. Also, as a condition of using the GeoSDK, API, Reference Apps, and Platform, 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 (including, without limitation, enabling LotaData to collect and receive Device Data and to deliver in-app content and notifications).

    8. 6.2. LotaData’s Limited License to You

      Approved Developers are hereby granted a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to (i) install, embed and use the GeoSDK as an embedded component (without alteration or modification of any kind) of your Approved Mobile Application and (ii) use the Reference Apps in order to assist you with the installation and embedding of the GeoSDK into your Approved Mobile Application, in each case solely during the term of the Customer Addendum and in a manner strictly compliant with these Terms.

      Platform Licensees are hereby granted a non-exclusive, non-transferable, sublicensable, limited license for both the internal use and the commercial use of the API and the Platform, subject to all terms, conditions, requirements, restrictions and limitations set forth in the Customer Addendum and with these Terms.

      Customers, excluding Platform Licensees, are hereby granted a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to use the API and Platform to access, query and analyze the Data, including the Device Data, for the Stated Purpose, solely during the term of the Customer Addendum and in a manner strictly compliant with these Terms. Customer may not use the API or Platform for any other purpose without LotaData's prior written consent.

    9. 6.3. Ownership

      1. a) You do not have or acquire any ownership right or interest in any of the 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 Services and reserve all rights not expressly granted herein. All Services are protected by U.S. and international copyright, trademark, and other intellectual property laws. The LotaData mark and logo, the CityDash mark and logo, and the People Intelligence mark are registered trademarks of LotaData. The marks and logo are trademarks of LotaData.
      2. b) You retain ownership of your Approved Mobile Application and all your trademarks, service marks, logos, copyrights and other intellectual property associated therewith, but excluding the GeoSDK as well as any other Services that you may incorporate into or use in connection with your Approved Mobile Application.
      3. c) All third-party trademarks, service marks, logos, and trade names are the property of their respective owners and their use within the Services is not meant to convey any relationship with or endorsement by such third parties.
    10. 6.4. Confidentiality

      “Confidential Information” means LotaData confidential and proprietary information, including LotaData’s API structures, Platform design, Data formats, workflows, segment definitions, and Customer Addendums. You agree to hold all Confidential Information in confidence, and to not disclose or provide Confidential Information to third parties. You must protect and safeguard all Confidential Information (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. You may, however, disclose Confidential Information your own customers as necessary or appropriate in connection with your business, provided that those customers that receive Confidential Information are subject to similar confidentiality obligations to protect that Confidential Information. In addition, you agree to not disclose any Confidential Information to a third party whose main business is the collection, analysis, and sale of geolocation data, irrespective of whether or not such third party is your customer.

    11. 7. Prohibitions

      You may not:

      • copy or reproduce (including, without limitation, by way of downloading) any Services or any portion thereof (except with LotaData’s express prior written approval); however, you are allowed to make a single copy of the GeoSDK for your internal backup purpose, but you must immediately delete such copy upon any termination of these Terms;
      • lease, rent, sell, distribute, publish, sublicense (unless you are a Platform Licensee), assign, transfer, or otherwise make any Services or any portion thereof available to third parties, or subject any Services or any portion thereof to any mortgages, pledges, security interests, charges, claims, liens, or other encumbrances; a Platform Licensee may sublicense, sell, or otherwise distribute the Platform subject to the Customer Addendum;
      • alter, modify, translate, or otherwise create any derivative works from, any Services or any portion thereof; for the avoidance of doubt, an Approved Mobile Application using and incorporating the GeoSDK will not be deemed a derivative work of the GeoSDK;
      • reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code from, any Services or any portion thereof;
      • remove, obscure, alter, or otherwise temper with any copyright or other legal notice or legend contained in or associated with any Services or any portion thereof;
      • use any illegal, counterfeit, pirated, or unauthorized hardware or software in connection with the GeoSDK, including use of tools to bypass, disable, or circumvent any encryption, security, data transfer, data synchronization, cloud endpoint connections or authentication mechanism;
      • access or use any 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;
      • use any automated program, tool, device or process (including, without limitation, web crawlers, robots, bots, spiders, and automated scripts) to access any Services or any portion thereof;
      • • “frame” or “mirror” or otherwise create a browser or border environment around, or deep-link to, any Services or any portion thereof;
      • do anything to interfere or attempt to interfere with the proper working of any 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;
      • subject any 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;
      • download, install, use, export or re-export the GeoSDK or any other LotaData software or any underlying information or technology in violation of U.S. export control laws or regulations;
      • use the LotaData mark or logo or any other 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).
    12. 8. Suggestions and Improvements

      By sending us any ideas, suggestions, documents or proposals (“Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) LotaData is under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) LotaData may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute and sublicense the Feedback and you irrevocably waive, and cause to be waived, against LotaData and our users any claims and assertions of any moral rights contained in such Feedback.

    13. 9. Indemnity

      You will indemnify, defend, and hold harmless LotaData from and against any and all claims, demands, actions, costs, liabilities, losses, and damages of any kind (including attorneys' fees) arising from or related to your use of the Services, any Device Data that you collect or provide to us in violation of any applicable law, regulation or these Terms, and any other violation of applicable law or regulation or breach of these Terms by you. LotaData will indemnify, defend, and hold you harmless from and against all claims, demands, actions, costs, liabilities, and damages of any kind (including attorney’s fees) arising from or related to any claim or allegation of infringement or misappropriation of copyrights, trademarks or trade secrets by the Site, GeoSDK, Reference Apps, API or Platform and any violation of applicable law or regulation or breach of these Terms by LotaData.

    14. 10. Disclaimers; Limitations of Liability; No Warranties

      PLEASE READ THIS SECTION CAREFULLY SINCE THIS SECTION LIMITS THE LIABILITY OF THE LOTADATA TO YOU. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. IF YOU ARE UNSURE ABOUT THIS OR ANY OTHER SECTION OF THESE TERMS, PLEASE CONSULT WITH A LEGAL PROFESSIONAL PRIOR TO ACCESSING OR USING THE SERVICES. BY ACCESSING OR USING THE SERVICES, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS, INCLUDING THIS SECTION 11 (DISCLAIMER; LIMITAIONS OF LIABILITY; NO WARRANTIES). YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.

      THE SERVICES ARE MADE AVAILABLE TO YOU ON AN “AS IS” WITHOUT WARRANTY, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. AS SUCH, YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. LOTADATA MAKES NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY OR RELIABILITY OF THE SERVICES, THE SAFETY OR SECURITY OF THE SERVICES, OR THE SERVICES CONTENT. ACCORDINGLY, LOTADATA IS NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SERVICES’ INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY OR RELIABILITY OF THE SERVICES CONTENT.

    15. 11. Waiver

      LotaData’s failure 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 made explicitly, in writing and signed by LotaData.

    16. 12. Relationship of Parties

      These Terms do not create any agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship. These Terms are solely between you and LotaData and are not for the benefit of any third party.

    17. 13. Governing Law and Venue

      Agreement to Arbitrate. THIS SECTION ONLY APPLIES TO RESIDENTS OF THE UNITED STATES OF AMERICA AND CANADA.

      If a dispute arises between you and LotaData, before bringing a legal case, we strongly encourage you to first contact us directly to seek a resolution by sending an email to our customer support at support@lotadata.com.

      This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to its principles of conflicts of law. Any dispute, controversy or claim arising out of or relating to this Agreement, or the interpretation, breach, termination or validity hereof, may be submitted by either Party to be finally resolved by arbitration by written notice to the other Party. The arbitration shall be conducted in San Francisco, California in accordance with the arbitration rules of JAMS pursuant to its Streamlined Arbitration Rules and Procedures in effect at the time of the arbitration.

      There shall be one arbitrator and the arbitration proceedings shall be conducted in English. Once a dispute is referred to arbitration, such dispute shall be finally and exclusively settled through binding arbitration unless the Parties otherwise reach an agreement to resolve the dispute. Judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. Nothing herein shall restrict or limit either Party’s right to seek injunctive, temporary or other equitable relief from any court of competent jurisdiction.

    18. 14. Miscellaneous

        14.1. Agreement Between You and LotaData

        These Terms combined with the signed applicable Customer Addendum contain the entire agreement between you and LotaData regarding the use of the Services, and supersede any prior agreement between you and LotaData on such subject matter. The parties acknowledge that no reliance is placed on any representation made but not expressly contained in these Terms or the Customer Addendum.

        14.2. Severance

        If any provision of these Terms is found to be unenforceable or invalid, then only that provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable.

        14.3. Section Titles

        The section titles in these Terms are for convenience only and have no legal or contractual effect.

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