DataMotion, Inc.

Terms of Service

By becoming a registered user ("User" or "You") of DataMotion.com You agree to the following Terms of Service. Please read them carefully.

BY COMPLETING THE REGISTRATION PROCESS AND CLICKING THE "I ACCEPT" BUTTON, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF SERVICE.

  1. ACKNOWLEDGEMENT AND ACCEPTANCE OF TERMS OF SERVICE

    1. The DataMotion Services ("Service"), owned and operated by DataMotion, is provided to You under the Terms of Service and any written amendments thereto. As part of registration for the Service You expressly agree to comply with the following:
      1. You agree to provide true and correct registration information, such as name, street address, email address, etc. If the registration information is found to be fictitious, the account will be subject to immediate termination.
      2. You agree not to use the Service for illegal purposes or to conduct illegal activities, or for the transmission of material that You know to be unlawful in any jurisdiction, or the content of which is known to You to be invasive of another's privacy rights, or offensive, or that infringes or may infringe the intellectual property or other rights of another.
      3. You agree not to use the Service for the transmission of "junk mail", "Spam", or "chain letters" or to distribute any virus or other destructive code;
      4. You agree not to resale or otherwise distribute the Service, including use of or access to the Service.
      5. You agree that DataMotion may disable Your account immediately upon notice to You if DataMotion believes that You have committed a material breach of Terms of Service.
      6. Please report any violations of the Terms of Service to DTM-Notifications@lombardodier.com.
      7. You confirm that you have read and accept DataMotion privacy statement.
    2. You agree to be solely responsible for the contents of Your transmissions through the Service and, if applicable, for compliance with regulations such as US Export regulations, HIPAA Privacy, GDPR Privacy, etc. for data being transmitted.
    3. You agree (a) not to knowingly cause interruption of the Service or servers or networks connected to the Service; and (b) to comply with standard rules of Internet connectivity.

  2. DESCRIPTION OF THE HOSTED SERVICE

    1. Under the Agreement, and subject to Your timely payment of applicable fees due, DataMotion shall provide You with access to Service to send and receive e-mail messages, electronic files and data ("Objects") on DataMotion's system. You shall be responsible to provide for your own connectivity to the DataMotion Service. You understand and agree that DataMotion shall have no liability, and You shall not be excused from any of Your obligations under this Agreement, because of the quality, speed or interruption of the communication availability over the Internet.
    2. The Service enables Internet-based electronic courier service for encryption and transmission of Objects created and/or transmitted by and received from You and delivering the same to its designated recipient(s) solely at the discretion and direction of You. DataMotion does not process, compile or create any data from the Objects. DataMotion assumes no responsibility for Your deletion of or failure to store Your Objects. Further, the life expectancy, retention and/or deletion of the Object is under the sole Your control and preset limits on storage and retention of Objects. USER UNDERSTANDS AND AGREES THAT AN OBJECT ONCE DELETED OR EXPIRED ON THE SYSTEM CANNOT BE RECOVERED BY DATAMOTION AND THAT THERE IS NO RECOURSE WHATSOEVER TO DELETED OR EXPIRED OBJECT.
    3. The Service enables You as a registered sender to initiate the process whereby Objects containing data known only to the sender is packaged as an encrypted package using industry-standard encryption technology and given to the Service. The Service stores the encrypted packet until a designated recipient initiates the retrieval in decrypted form. DataMotion only acts as a temporary storage place for such packets and it cannot otherwise process these packets. DataMotion has no knowledge of the contents of the encrypted and/or stored packets.

    EXCLUSIONS: ANY DATA OBJECTS TRANSMITTED OUTSIDE OF THE SERVICE IS EXCLUDED FROM THE SCOPE OF THIS AGREEMENT AND ANY OBLIGATIONS OF DATAMOTION. Examples of such exclusions are, but not limited to: regular email transmissions, transmissions by fax or as hard copy, transmissions of Objects using physical media, etc.

  3. USER’S REGISTRATION AND USAGE OBLIGATIONS

    As part of the registration process for the use of the Service, You agree to: (a) provide true, accurate, and current information about You as reasonably required by the registration form, and (b) to maintain and update this information to keep it true, accurate, and current. DataMotion has a right to terminate the Service by due notice to You if You fail to comply with proper registration requirements. DataMotion does not sell or otherwise share Your registration information with any third party. You understand and agree that DataMotion may use aggregated, anonymous information about the usage of the Service for the purpose of improving the Service and for other internal business purposes of DataMotion.

    Notwithstanding anything stated herein this Section III, You explicitly agree and permit DataMotion to send various Services updates, security updates, product updates, other informative material, etc. from time to time. You cannot opt out of this permission as long as you maintain Your account. Further, while submitting registration data and related personal data, You explicitly agree and affirm that You are aware of any and as applicable data privacy laws and regulations of Your country, state, county or any other jurisdiction. Examples of some such rules and regulations are, but not limited to, as commonly used acronyms, GLBA, HIPAA, HITECH, FTC, GDPR, APPs, PIPEDA, ICO, etc.

    You acknowledge that You have read and understood the features of Service as detailed in Exhibit A herewith. You further acknowledge that You are obligated to maintain security of the account taking care to follow proper procedure and controls, such as, but not limited to:

    1. You shall protect and not disclose or permit unauthorized access to Service using access credentials (user ID and password); any person who has access to Your access credentials can access the account and DataMotion cannot prevent such access;
    2. You ensure that You do not misspell either their own email address or their recipients’ email addresses, which would result in the delivery of information through the Services to unauthorized person(s);
    3. You shall not include any sensitive information (such as date of birth, Social Security Number, etc.) of any type in the Subject line of the email message sent thru Services, as the Subject line is not encrypted.

  4. DATAMOTION PRIVACY POLICY

    All Your Objects transmitted via the Service shall be the private, confidential communication between You and your designated recipient(s). DataMotion cannot and shall not access, monitor or disclose the contents of Your Objects. However, DataMotion may be required to make available You Objects to an authority as and when (a) required by law; (b) to comply with legal process; (c) if necessary to legally enforce the terms of this Agreement; (d) to respond to legal claims that such contents violate the rights of third parties; or (e) to legally protect the rights or property of DataMotion, or others. If DataMotion is required to make available Your Objects, DataMotion shall, if possible and to the extent permitted by law or under the court order, (i) notify You prior to undertaking any such disclosure and the parties will jointly determine the manner in which such disclosure may be undertaken, and, (ii) in the event that You elect to take action to oppose any such use or disclosure, DataMotion will reasonably cooperate with You. DataMotion Privacy Policy Statement is available on its website.

  5. USER ACCOUNT, PASSWORD AND SECURITY

    You will self-generate a password and account designation upon completing the registration process. You are solely responsible for maintaining the confidentiality of access to your account, and, for all activities which occur under Your account. You agree to immediately notify DataMotion of any actual or suspected unauthorized use of Your account or any other breach of security at DTM-Notifications@lombardodier.com . Your DataMotion account is associated with a single authorized email address. If you forward DataMotion plugins (e.g., the "SendSecure" button) to others then DataMotion shall not be responsible for the privacy or security of Your account.

  6. FEES

    You shall pay the applicable Service fees and renewal fees in full prior to commencement or renewal term of the Service. Your account shall be automatically disabled for non-payment of fees when due.

  7. TERM AND TERMINATION

    1. Termination for Convenience. Either party may terminate this Agreement at any time for convenience upon thirty (30) days written notice to the other party. In the event that You terminate this Agreement for convenience, any pre-paid service fees for the then-current year of Services will be non-refundable. In the event that DataMotion terminates for convenience, any pre-paid service fees for the remainder of the Term shall be refunded on a pro-rata basis.
    2. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, Your account shall be deleted from the Service and all Objects therein shall be automatically and irreversibly deleted and purged from the Service. Prior to the date of termination, You may download any and all of your Objects for permanent storage.

  8. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION

    1. Each party shall safeguard the other party’s Confidential Information from unauthorized use and disclosure using measures that are equal to the standard of performance used by such party to safeguard its own Confidential Information, but in no event using less than reasonable care. Therefore, except as directed by the other party or required by law, both parties agree to hold the Confidential Information of the other party in confidence and not to disclose to a third party except as reasonably necessary for purposes of this Agreement after having in place a confidentiality agreement with the recipient.
    2. Each party shall be responsible to promptly notify the other party of any breaches of confidentiality.

  9. INDEMNITY

    1. You agree to indemnify, defend and hold DataMotion and its parents, subsidiaries, affiliates, officers, directors and employees, harmless all losses, liabilities, costs, damages, penalties, fines and expenses, including reasonable attorneys' fees (collectively, "Losses") arising from any and all third-party claims, demands, threats, suits or proceedings ("Claim") resulting from or arising, directly or indirectly, out of any act or omission in breach of this Agreement attributable to You.
    2. DataMotion agrees to indemnify, defend and hold You and its parents, subsidiaries, affiliates, officers, directors and employees, harmless from any and all Losses arising from any claim alleging that the technology used to provide the Service or that comprises the Service violates the intellectual property rights of any third party.
    3. If any Claim is asserted or instituted with respect to which You or DataMotion is entitled to indemnification, then the party seeking indemnification shall promptly notify the indemnifying party of all material details of such Claim known to it. The party seeking indemnification agrees to cooperate with the indemnifying party in the defense of the claim and shall not compromise or otherwise settle any such claim without the indemnifying party’s prior written consent.

  10. LINKS

    The Objects that You send or receive may contain links to other Web sites or resources. You acknowledge and agree that DataMotion is not responsible for the availability of such external sites or resources, and that DataMotion does not endorse and is not responsible or liable to You for contents on or available from such sites or resources sent through the Service. You agree that DataMotion shall not be responsible or liable to You, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such external sites or resources.

  11. DATAMOTION PROPRIETARY RIGHTS

    You acquire only the right to use the Service and do not acquire any rights of ownership whatsoever in or to the Service, or any technology used to provide the Service. All rights, title, and interest in and to the Service and (other than content created as a result of use of the Service by You) the material on the DataMotion Web site, including without limitation all intellectual property rights therein, shall at all times exclusively remain with DataMotion. You shall retain all rights including ownership of intellectual property rights, if any, to content created or uploaded by You during use of the Service.

  12. WARRANTIES

    DataMotion represents and warrants that: (a) DataMotion has the power and authority to enter into and fully perform its obligations under this Terms of Service; and (b) the Services will be performed in a professional manner. You represent and warrant that: (a) You have the power and authority to enter into and fully perform your obligations under this Terms of Service; and (b) You shall limit use of the Service only to authorized uses and for purposes that are in accordance with this Terms.

  13. DISCLAIMER OF WARRANTIES

    USER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT USER'S SOLE RISK. THE SERVICE IS PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS SUBJECT TO DATAMOTION’S PROVISION OF SUPPORT SERVICES. EXCEPT FOR DATAMOTION’S WARRANTIES EXPRESSLY PROVIDED HEREIN, DATAMOTION EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

    DATAMOTION MAKES NO WARRANTY THAT THE SERVICE WILL MEET USER'S REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES DATAMOTION MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE. DATAMOTION MAKES NO WARRANTIES THAT DEFECTS IN THE SERVICE WILL BE CORRECTED.

    USER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE AND THAT IS NOT PROVIDED BY DATAMOTION IN ORDER TO USE THE SERVICE IS DONE AT USER'S OWN DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

  14. LIMITATION OF LIABILITY

    EXCEPT FOR AMOUNTS INDEMNIFIED UNDER THIS AGREEMENT FOR THIRD-PARTY CLAIMS AND EXCEPT FOR BREACHES OF SECTION VIII (NON-DISCLOSURE OF CONFIDENTIAL INFORMATION), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES CAUSED BY IT (INCLUDING BUT NOT LIMITED TO THOSE RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF USER'S TRANSMISSIONS OR DATA BY THIRD PARTIES OR RESULTING FROM CIRCUMSTANCES NOT UNDER THE CONTROL OF A PARTY), INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    USER FURTHER AGREES THAT DATAMOTION SHALL NOT BE LIABLE TO USER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM THE INTERRUPTION, SUSPENSION OR TERMINATION OF SERVICE, WHETHER SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT.

  15. NOTICE

    Any notice to You by DataMotion shall be made either via the DataMotion SecureMail service or express courier service. Notices given by DataMotion SecureMail Service shall have the same legal validity as any other form of notice. Notices shall be effective upon receipt or upon attempted delivery, where receipt is refused. DataMotion may also provide notices of changes to the TOS or other matters by displaying notices to Users generally on the Service.

  16. GENERAL

    The TOS and the relationship between User and DataMotion shall be governed by the laws of the State of New Jersey without regard to its conflict of law provisions. User agrees to submit to the personal and exclusive jurisdiction of the courts located within the state of New Jersey.

    The failure of DataMotion to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS shall remain in full force and effect.

    User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or to the TOS must be filed within one (1) year after such claim or cause of action arose, or shall be forever barred.

    The section titles in the TOS are for convenience only and have no legal or contractual effect. These TOS (with any applicable registration forms), as such may be amended from time to time, constitute the entire agreement between you and DataMotion.

  17. SUPPORT SERVICES

    DataMotion's Standard Support services are available Monday-Friday, 8:30 AM to 6:30 PM Eastern TIME USA via e-mail (support@datamotion.com), website (https://www.datamotion.com/support/contact-support/), or telephone.

  18. GENERAL

    1. Choice of Law and Jurisdiction. This Agreement shall be governed by the laws of and shall have jurisdiction in the State of New Jersey. You expressly waive any right to the use of any other jurisdiction under any national, international, regional or local laws. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or to the TOS must be filed within one (1) year after such claim or cause of action arose, or shall be forever barred.
    2. Waiver. The failure or delay by DataMotion at any time to exercise or enforce any provision of this Terms of Service shall not constitute or be construed as a waiver thereafter to enforce any such right or provision in the future.
    3. Severability. If any provision of the terms is found by a court of competent jurisdiction to be invalid all other terms shall remain in full force and effect.

Exhibit A

DataMotion Services ("Service") enables pass-through secure electronic communication between an authorized You and its recipient(s) at the sole discretion of the You.

Service is fully described as follows:

  1. Service is a pass-through service as a secure electronic conduit. It is the electronic version of hard copy mail normally sent using US Postal Service (USPS) or delivery services such as FedEx (FedEx). In utilizing the Service, You send an encrypted email (equivalent to sealed envelope sent via USPS or FedEx) to a recipient solely identified by You by specifying recipient’s email address (equivalent to mailing address of hard copy mail).
  2. DataMotion has no means to access, read or process contents of the encrypted email sent using the Service and has no knowledge whether the contents of the encrypted email contain ePHI (Electronic Protected Health Information) or PII (Personally Identifiable Information) or other sensitive information, if any, transmitted by You, the same way as the USPS or FedEx are unaware of the contents of the sealed envelope.
  3. Service does not receive any unencrypted ePHI; does not create any ePHI; does not process any ePHI; does not use any ePHI; and does not disclose any ePHI except as directed by You. Service does not store any unencrypted data and is not capable of storing any unencrypted data, whether it is ePHI or not.
  4. Service cannot identify any Individual who may be the owner of any ePHI that You have communicated using the Service.
  5. You are not required to disclose, and shall not disclose, to DataMotion any contents of the encrypted email while utilizing the Service. DataMotion has no knowledge of contents of encrypted email or attachments, if any. DataMotion cannot obtain or otherwise acquire any unencrypted or unsecured ePHI or other sensitive information and is not a recipient of such information.
  6. Delivery of the encrypted email by Service is exclusively and solely governed by the recipient’s email address as specified by You. You are solely responsible for typing or spelling errors while specifying the recipient’s email address.
  7. Service is solely utilized by You at your sole discretion. You are solely and exclusively responsible for protecting confidential and secure access to the Service (Your ID and password). If You breach this confidentiality, DataMotion cannot provide any protection against any breach or violation of ePHI or other sensitive information whatsoever.
  8. Any of your communication passing through the Service automatically expires after 30 days and it is purged from the system. In addition, You may delete a communication at any time prior to its expiration. Such deleted communication is also purged from the system. Any deleted or expired and purged communication cannot be recovered in any manner whatsoever and it is permanently lost. You are solely responsible for ensuring that any information contained in such communications is appropriately handled, stored or archived independent of the Service, and DataMotion shall have no obligation or liability for the loss or deletion of such communications.