Terms and Conditions
Last Updated: January 23rd, 2020
LIMITATION OF LIABILITY: AS FURTHER DETAILED HEREIN, IF COMPANY OR ANY OF ITS AFFILIATES, AGENTS, REPRESENTATIVES, SUPPLIERS, SERVICE PROVIDERS, CONTRACTORS OR SUBCONTRACTORS (COLLECTIVELY, “RELATED PARTIES”) ARE FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO ITS NEGLIGENCE, BREACH OF WARRANTY, OR FAILURE TO PERFORM ITS OR THEIR OBLIGATIONS UNDER THIS AGREEMENT, THE MAXIMUM LIABILITY (INCLUDING JOINT AND SEVERAL LIABILITY) WILL BE $250.00. THIS AMOUNT IS THE AGREED UPON DAMAGES, IS NOT A PENALTY AND SHALL BE THE CUSTOMER’S EXCLUSIVE REMEDY. FURTHER, I RELEASE AND WAIVE FOR MYSELF AND MY INSURER ALL SUBROGATION AND OTHER RIGHTS TO RECOVER AGAINST Company ARISING AS A RESULT OF THE PAYMENT OF ANY CLAIM FOR LOSS, DAMAGE OR INJURY.
YOU UNDERSTAND AND AGREE THAT THE SERVICE MAY NOT PERFORM AS EXPECTED
I. ASPIRATIONAL GOALS OF THE SERVICES
- In high-risk situations, Company Command Center operators might offer to intervene using a video-calling feature within the app, which allows operators to appear on screen and step in to assist in warding off suspicious individuals or aggressors.
- When notified by MEMBER of an emergency, Company will share relevant data with emergency responders to enable them to determine the nature or location of the threat and/or respond to MEMBER’s emergency situation.
- Company can provide tools to monitor the real time location of family members and personal contacts, subject to their permission and consent. Members can receive notifications whenever their loved ones enter or exit locations specified by the member via push notifications, in-app notifications, SMS or phone call. Members are also able to notify their personal network of their own whereabouts
- The Service has tools that can allow Company Command Center operators to summon local transportation providers, which can assist the member in reaching a safe destination of their choosing. These services are subject to availability in the member’s area
- The Service contains tutorials providing practical guidelines to interacting with Company services, including:
- a. How to trigger our application tools.
- b. How best to interact and follow advice from our Command Center operators.
- c. A wide-range of operating procedures.
II. WHAT MEMBERS CANNOT EXPECT FROM THE SERVICES
- MEMBER should not stop or reduce other safety practices due to their Company membership.
- MEMBER cannot expect absolute certainty that Company’s services will always keep MEMBER safe from potential attackers, criminal activity or otherwise dangerous situations.
- The Services are designed to assist members with the intention (but not the guarantee) of reducing the likelihood of unsafe situations materializing.
- MEMBER cannot expect Company to act as an equivalent or replacement for a personal bodyguard service.
- MEMBER cannot expect that Company will deploy members of the Company community into potentially dangerous situations. We will work with local authorities (911, police, emergency respondents) to send the appropriate party(s) to assist you.
- Company has no control over, and cannot make any guarantees regarding, the response time of any authorities or emergency responders. Not all locations have equal access to authorities and other external partners. MEMBER should be aware of MEMBER’s location at all times with respect to potential response times.
- Company is not responsible in any way for the safety of members or non-members.
- MEMBER cannot expect all Company issued notifications, applications, data and tools to be entirely error-free. Company’s services rely on predictive analytics that may be inaccurate.
III. SERVICE DESCRIPTION; GRANT OF LIMITED LICENSE USAGE RIGHTS; OWNERSHIP OF SERVICE
IV. LIMITED WARRANTY; OTHER PRECAUTIONS
A. Limited Warranty
- Company is committed to servicing our members in a manner consistent with general industry standards. Company will endeavor in good faith to live up to the full potential of our Services as described in this agreement.
B. Other Precautions
- The Service is not failsafe, since Company cannot guarantee that notifications will be sent, received or read by Company or MEMBER. Company’s products and services (including the Service) depend upon cellular service for operation, transmission, communication and determination of location. If MEMBER is in an area with little or no cellular service or conditions otherwise prevent the effective operation of the cellular networks used by Company, including faulty or failed equipment, weather conditions, power outages, upgrade or maintenance work, radio frequency and/or cellular battery failure, there may be disruption of services. Company is not liable for any such cellular service interruptions impacting its products or services and may not be aware of such interruptions without notice from MEMBER. Accordingly, the Service should be used as only one of several precautions that MEMBER takes related to personal safety.
- MEMBER acknowledges that Company may be subject to applicable laws and industry standards designed to reduce false alarms and that may result in practices and procedures that delay either the notification of emergency responders or verification procedures in response to any notice of an emergency. IF Company HAS REASON TO BELIEVE THAT NO EMERGENCY CONDITION EXISTS, IT MAY ELECT, AT ITS OWN DISCRETION, NOT TO DISPATCH EMERGENCY AUTHORITIES, FOLLOW THE NOTIFICATION OR OTHER VERIFICATION PROCEDURES UTILIZED, AND/OR OTHERWISE PROVIDE SERVICES CONSISTENT WITH THIS AGREEMENT.
- MEMBER acknowledges that the provision of certain services may be restricted or prohibited in or around particular environments, including, for example, airports, aircraft, hospitals or war zones. Company maintains sole authority to refuse to provide or modify any portion of the services in its sole discretion. MEMBER agrees to comply with all such restrictions. Further, MEMBER agrees to immediately notify Company of any interruption, error, restriction or problem with its product or services.
V. MEMBER CONTENT; MEMBER RESPONSIBILITIES; MEMBER REPRESENTATIONS AND WARRANTIES; RESTRICTIONS ON USE, PROHIBITED USES
A. User Responsibilities
- MEMBER is responsible for all of MEMBER’s activity in connection with the Service.
- MEMBER is responsible for obtaining all insurance coverage that MEMBER believes is necessary to protect MEMBER (including any family members or dependents), and MEMBER’s residence, belongings or business, including coverage for personal injury and property damage. THE PAYMENTS YOU MAKE UNDER THIS AGREEMENT ARE NOT RELATED TO THE VALUE OF THE MEMBER, MEMBER’S POSSESSIONS, MEMBER’S RESIDENCE(S) OR THE PERSONS OCCUPYING MEMBER’S RESIDENCE(S), BUT RATHER ARE BASED ON THE COST OF THE SYSTEM AND THE SERVICES, AND TAKE INTO CONSIDERATION THE PROTECTIONS AFFORDED TO Company UNDER THIS AGREEMENT. MEMBER hereby releases Company from any liability for any event or condition customarily covered by homeowner’s, life, disability or business insurance, as applicable. MEMBER acknowledges that Company’s products and services are designed to reduce, but not eliminate, certain risks. Company does not guarantee that its services or products will prevent injury, loss, or damage to person or property, and Company assumes no liability for those risks .
- As part of the Services, MEMBER may receive communications through the Services, including messages that Company sends MEMBER (for example, via SMS). BY SIGNING UP FOR THE SERVICES, YOU AGREE TO RECEIVE COMMUNICATIONS FROM Company, AND YOU REPRESENT AND WARRANT THAT BY PROVIDING A WIRELESS PHONE NUMBER TO Company, YOU CONSENT TO RECEIVE COMMUNICATIONS FROM Company. In addition to any fee of which MEMBER is notified, MEMBER’s mobile provider’s standard messaging rates may apply to confirmation SMS, MMS or other text messages (each a “Text Message”) and all subsequent Text Message correspondence. Message and data rates may apply, according to MEMBER’s individual rate plan provided by MEMBER’s wireless carrier. Under no circumstances will Company or its affiliates be responsible for any text messaging or wireless charges incurred by MEMBER or by a person that has access to MEMBER’s wireless device or telephone number. If MEMBER’s carrier does not permit text alerts, MEMBER may not receive the Text Messages from Company. Text Message services are provided on an AS IS basis.
B. No Interference
- MEMBER’s use of the Service shall not unreasonably interfere with use of the Service by other members. MEMBER understands and agrees that Company shall have the sole right to decide whether MEMBER is in violation of any of the restrictions set forth in this Section, and Company shall have the right to terminate MEMBER’s access at any time and for any reason.
C. User Content
- Any information or content posted or transmitted through the Service is the sole responsibility of the person from whom such content originated, and MEMBER accesses all such information and content at MEMBER’s own risk. MEMBER is responsible for all content MEMBER contributes, in any manner, to the Service, and MEMBER represents and warrants that MEMBER has all rights necessary to do so, in the manner in which MEMBER contributes it. MEMBER will keep all registration information accurate and current. MEMBER is responsible for all its activity in connection with the Service.
D. License to User Content
- Anything MEMBER posts, uploads, shares, stores, or otherwise provides through the Service is MEMBER’s “User Content.” In order to display User Content on the Service, and to allow other members to have access to it (where applicable), MEMBER hereby grants Company a license to translate, modify, copy, store, make use of, reproduce and/or otherwise act with respect to such User Contents. MEMBER agrees that the licenses MEMBER grants are royalty-free, perpetual, sublicenseable, irrevocable, and worldwide. This is a license only – MEMBER’s ownership of User Content is not affected.
- If MEMBER shares User Content publicly on the Service and/or in a manner that more than just MEMBER can view, (each of the foregoing, “Public User Content”), then MEMBER grants Company the licenses above, as well as a license to display, perform, and distribute MEMBER’s Public User Content for the purpose of making that Public User Content accessible to other members and providing the Service necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Content in connection with the Service and/or otherwise in connection with Company’s business. Also, MEMBER grants all other members of the Service a license to access that Public User Content, and to use and exercise all rights in it, as permitted by the functionality of the Service.
- If MEMBER provides Company (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Service (“Feedback”), MEMBER grants Company the licenses above to such Feedback.
- MEMBER agrees that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world, and without any further compensation or right of MEMBER to review or approve any use permitted herein, Company may and is hereby authorized (1) to photograph, videotape, film and otherwise record me (including my voice, image, likeness and appearance) in any audio, visual, multi-media or other format (collectively, “Recordings”), and (2) to publish, display, perform, transmit, broadcast, distribute and otherwise use and exploit the Recordings, in whole or in part, with or without modification, in any manner and for any purpose related to Company’s business, products and services, and in any medium or technology now known or hereafter conceived, including without limitation, in connection with: providing call center and other member services; training and quality assurance purposes; and promotions, marketing and advertising via print, broadcast, Internet and mobile
- Company reserves the right to remove any User Content from the Service at any time, for any reason or for no reason at all. MEMBER, not Company, remains solely responsible for all Content that MEMBER uploads, posts, emails, transmits, or otherwise disseminates using, or in connection with, the Service, and MEMBER warrants that MEMBER possesses all rights necessary to provide such content to Company and to grant Company the rights to use such information in connection with the Service and as otherwise provided herein.
E. Certain Prohibited Uses
- MEMBER may not: (1) use the Services for the benefit of a third-party who is not a Company member except as necessary to directly benefit MEMBER; (2) post or transmit through the Service, or cause to be posted or transmitted through the Service, any communication or solicitation designed or intended to obtain password, account, or private information from any person; (3) use the Service to violate the security of any computer network, crack passwords or security encryption codes; (4) run Maillist, Listserv, any form of auto-responder, or “spam” on the Service, or any processes that run or are activated while MEMBER is not logged on to the Service, or that otherwise interfere with the proper working of or place an unreasonable load on the Service’s infrastructure; (5) use manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any portion of the Service; or (6) engage in any messaging or telephone calling through the Service in violation of any relevant laws or regulations (which may include and are not limited to, the Telephone Consumer Protection Act and the Do Not Call provisions of the Telemarketing Sales Rule).
F. User Representations and Warranties
- MEMBER represents, warrants and agrees that (a) MEMBER will access the Service solely for his or her individual, personal purposes (including those of any linked MEMBERs sharing the account) ; (b) MEMBER’s Service account will not be transferred to, or used on behalf of, another party or entity (c) MEMBER will not remove any copyright, proprietary rights or other notice included in or on any portion of the Service, computer code or documentation; (d) MEMBER will not distribute, transmit, display, disclose, divulge, reveal, report, publish or transfer the Service to any third party or reproduce or create derivative works based upon the Service or any portion thereof; and (e) neither MEMBER nor anyone else will attempt to reverse engineer, reverse assemble, disassemble, decompile, or otherwise attempt to discover the source code of the Service.
- MEMBER represents, warrants and agrees that MEMBER will not use the Service in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, false, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities and/or sales without Company’s prior written consent, including without limitation contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including without limitation any employee or representative of Company; or (vi) contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program.
- MEMBER cannot transfer or assign this Agreement without Company’s express written consent. However, Company may assign or transfer this Agreement or subcontract its obligations hereunder at any time without MEMBER’s consent. If Company assigns, transfers or subcontracts its obligations pursuant to this Agreement, the assignee, transferee, and/or subcontractor shall have all of Company’s rights articulated hereunder. Company, Inc. is not responsible for the products or services of any third-party, including any assignee, transferee, and/or subcontractor.
G. Third Party Content
H. Third Party IP Rights
- Company may not monitor User Content but reserves the right to delete or disable content at any time and for any reason.
VI. PAYMENT TERMS
The Service may be a free trial or Paid Service. If you wish to use the Paid Service, you must pay all applicable fees for such Paid Service.
- Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
- Recurring Billing. Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY OR ANNUALLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, SEND US AN EMAIL AT [email protected]
- Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT INCLUDING A CURRENT E-MAIL ADDRESS. YOU ACKNOWLEDGE THAT IF YOU DO NOT PROVIDE A CURRENT E-MAIL ADDRESS, WE OR THE PAYMENT PROCESSOR MAY NOT BE ABLE TO SEND YOU BILLING RECEIPTS. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
- Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
- Auto-Renewal for Paid Services. Unless you opt out of auto-renewal, which can be done by selecting “Switch to Free Services” from the Subscription menu, any Paid Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign your Paid Services at any time, go to the subscription menu and select “Switch to Free Services.”. If you terminate a Paid Service, your subscription will revert to the free version immediately, and you will be refunded a portion of your unused subscription on a prorated basis. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY OR ANNUAL BASIS, YOU MUST CANCEL THE APPLICABLE PAID SERVICE BY BY GOING TO THE SUBSCRIPTION MENU AND SELECTING “SWITCH TO FREE SERVICES” OR TERMINATING YOUR ACCOUNT BEFORE THE END OF THE RECURRING TERM.
- Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
A. Termination by User
B. Termination by Company
C. Effects of Termination
- Provisions that, by their nature, should survive termination of these Terms shall survive termination including, without limitation, any obligation MEMBER has to pay (e.g. “Payment Terms”) or indemnify (e.g. “Indemnity and Disclaimers”) Company, any limitations on Company’s liability, any terms regarding ownership or intellectual property rights (e.g. “Service Description; Grant of Limited License; Ownership of Service”), and terms regarding disputes (e.g. “Dispute Resolution”), “MEMBER’s Representations and Warranties,” and “General.”
VIII. INDEMNITY AND DISCLAIMERS
- This Agreement is intended only for MEMBER’s benefit. Therefore, MEMBER agrees to indemnify, defend, hold harmless and release Company from liability and shall reimburse Company for any damages, losses, expenses (including reasonable attorneys’ fees and costs) incurred in connection with any claims, suits, judgments and causes of action which relate to Company’s products or services (including the Service). This duty to defend and indemnify includes claims brought by any third-party, including, without limitation, MEMBER’s insurance company, whether the claim arises under contract, warranty, negligence, or any other theory of liability. The duty to defend and indemnify applies even in the case of Company’s own negligence or breach of warranty.
- MEMBER WAIVES ANY RIGHTS THAT MEMBER’S INSURANCE CARRIER OR OTHERS CLAIMING THROUGH MEMBER MAY HAVE AGAINST Company, INCLUDING ANY RIGHTS OF SUBROGATION.
C. Not Member’s Sole Means of Personal Protection
- MEMBER agrees not to rely on the Service as MEMBER’s only means to keep safe and MEMBER hereby releases Company from any and all claims, demands, damages and liabilities, of any type and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with MEMBER’s personal safety (including any bodily injury, death or property damage). If MEMBER is a California resident, MEMBER shall and hereby does 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 or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
D. 9 – 1 – 1
- MEMBER can dial 9-1-1 at any time using MEMBER’s mobile phone. The Service is not the same as dialing 9-1-1. THE MEMBER SHOULD ALWAYS DIAL 9-1-1 IF MEMBER BELIEVES MEMBER OR OTHERS TO BE IN DANGER OR AT RISK OF BODILY HARM OR SUSPECT CRIMINAL ACTIVITY.
E. Limited to English Language
- MEMBER acknowledges that although Company is using reasonable efforts to expand languages supported by the Service, it does not currently support any language other than English. MEMBER’s only right with respect to dissatisfaction with Company, including languages supported by the Service, is to terminate use of the Service.
F. User Authentication; Interaction with Other Users
- Company cannot and does not represent that any MEMBER is the person who he or she claims to be. MEMBER’s interactions with organizations and/or individuals found on or through the Service, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such interactions, are solely between MEMBER and such organizations and/or individuals and at MEMBER’s own risk. MEMBER should make whatever investigation MEMBER feels necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. MEMBER agrees that Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
G. Warranty Disclaimer
- EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE INCLUDING ALL CONTENT, USAGE OF THE SERVICE, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION ACCESSED BY ANY MEANS THEREOF IS PROVIDED “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, INTEGRATION, QUIET ENJOYMENT, COURSE OF PERFORMANCE OR USAGE OF TRADE ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. Company MAKES NO WARRANTIES AS TO ANY INFORMATION, CONTENT OR MATERIALS IN MADE AVAILABLE THROUGH THE SERVICE, OR AS TO THE POSSIBLE USES OF ANY OF THE FOREGOING, EVEN IF Company IS MADE AWARE OF ANY PARTICULAR USE(S). THE PRODUCT IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE REQUIRING FAIL-SAFE CONTROLS.
H. Certain Liability Exclusions
- MEMBER ACKNOWLEDGES THAT NEITHER Company NOR ITS AFFILIATES, NOR ANY OF ITS OR THEIR AGENTS, REPRESENTATIVES, SUPPLIERS, SERVICE PROVIDERS, CONTRACTORS OR SUBCONTRACTORS IS AN INSURER OF OR AGAINST ANY POTENTIAL OR ACTUAL LOSS OR DAMAGE TO PERSON OR PROPERTY THAT MAY OCCUR. MEMBER ACKNOWLEDGES AND AGREES THAT IT IS EXTREMELY DIFFICULT TO CALCULATE THE ACTUAL DAMAGES, IF ANY, WHICH MAY RESULT FROM Company’S ALLEGED FAILURE TO PERFORM THE SERVICES DUE OR FROM THE OPERATION OF ITS PRODUCTS, DUE TO, AMONG OTHER THINGS, THE: (A) UNCERTAIN AND/OR UNKNOWN PECUNIARY VALUE OF ANY INJURY, DAMAGE OR LOSS INVOLVING MEMBER OR THEIR PROPERTY; (B) UNCERTAIN AND/OR UNKNOWN RESPONSE TIMES OF EMERGENCY RESPONDERS; (C) INABILITY TO ASCERTAIN WHAT PORTION, IF ANY, OF AN ALLEGED INJURY WAS PROXIMATELY CAUSED BY THE Company’S ALLEGED FAILURE TO PERFORM THE SERVICES OR FAILURE OF THE PRODUCTS; AND (D) THE GENERAL NATURE OF THE PRODUCTS AND SERVICES. MEMBER FURTHER ACKNOWLEDGES THAT THE PAYMENTS MEMBER MAKES UNDER THIS AGREEMENT ARE NOT RELATED TO THE NET WORTH, VALUE OR EARNING CAPACITY OF THE MEMBER OR THEIR PROPERTY, BUT RATHER ARE BASED ON THE COST OF THE SYSTEM AND THE SERVICES, AND SPECIFICALLY TAKE INTO CONSIDERATION THE LEGAL PROTECTIONS AFFORDED TO Company, INC. UNDER THIS AGREEMENT. THEREFORE, Company, INC. EXPRESSLY DENIES AND DISCLAIMS ALL LIABILITY FOR ANY LOSS OR DAMAGE WHICH MAY OCCUR PRIOR TO, AT OR AFTER SIGNING THIS AGREEMENT, INCLUDING LIABILITY BASED ON CONTRACT, TORT, NEGLIGENCE OF ANY DEGREE, WARRANTY (INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND ALL OTHER THEORIES OF LIABILITY.
- Company SHALL NOT BE LIABLE FOR ANY USE OF OR RELIANCE ON THE SERVICE UNDER ANY CIRCUMSTANCES, OR FOR ANY INTERRUPTION, UNAVAILABILITY OF OR ERROR IN THE SERVICE OR ANY INFORMATION MADE AVAILABLE THROUGH THE SERVICE, EVEN IF CAUSED BY, Company’S NEGLIGENCE AND OR FAILURE TO ISSUE ALERTS OR NOTICES. Company WILL NOT BE LIABLE FOR ANY FAILURE OF OR DELAY IN PERFORMANCE DIRECTLY OR INDIRECTLY CAUSED BY ACTS OR OMISSIONS OF THE MEMBER (OR ANY OTHER MEMBERS AFFILIATED OR ASSOCIATED WITH MEMBER’S ACCOUNT) OR ANY OTHER THIRD PARTY. MEMBER AGREES TO ASSUME ALL OF THE RISKS IN USING THE Company SERVICE, WHETHER KNOWN OR UNKNOWN, INCLUDING WITHOUT LIMITATION, THE RISK THAT THE SERVICE OR THE INFORMATION MADE AVAILABLE THROUGH THE SERVICE WILL BE INTERRUPTED, UNAVAILABLE, INACCURATE OR INCOMPLETE. Company MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT MEMBER WILL BE CONTACTED BY ANY COMMERCIAL PARTY OR GOVERNMENTAL AUTHORITY OR THAT IF CONTACTED, THE INFORMATION PROVIDED WILL BE ACCURATE. Company RESERVES THE SOLE RIGHT TO MODIFY OR DISCONTINUE THE SERVICE AT ANY TIME WITH OR WITHOUT NOTICE TO MEMBER. Company WILL NOT BE LIABLE TO MEMBER OR ANY THIRD PARTY SHOULD Company EXERCISE SUCH RIGHT. MEMBER ACKNOWLEDGES THAT Company HAS NO CONTROL OVER THE CONDUCT OF ANY COMMERCIAL PARTY OR GOVERNMENTAL AUTHORITY OR OTHER THIRD PARTIES OR FOR THE ACCURACY OF THEIR NOTIFICATIONS. Company SHALL NOT BE LIABLE FOR THE ACCURACY OR DELIVERY TIME OR CONTENT OF NOTIFICATIONS. TO THE FULLEST EXTENT PERMITTED BY LAW, Company SHALL HAVE NO LIABILITY WHATSOEVER FOR THIRD PARTIES WHO ARE NOT Company MEMBERS.
- IF Company OR ANY OF ITS AFFILIATES, OR ANY OF ITS OR THEIR AGENTS, REPRESENTATIVES, SUPPLIERS, SERVICE PROVIDERS, CONTRACTORS OR SUBCONTRACTORS ARE FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO ITS OR THEIR NEGLIGENCE, THE FAILURE TO PERFORM ITS OR THEIR OBLIGATIONS UNDER THIS AGREEMENT IN ANY RESPECT AT ALL, BREACH OF WARRANTY, OR PRODUCT FAILURE, THE MAXIMUM LIABILITY (INCLUDING JOINT AND SEVERAL LIABILITY) WILL BE $250.00. THIS AMOUNT IS THE AGREED UPON DAMAGES, IS NOT A PENALTY AND SHALL BE THE MEMBER’S EXCLUSIVE REMEDY. THIS LIMITATION OF LIABILITY SPECIFICALLY COVERS LIABILITY FOR: (1) LOST PROFITS; (2) LOST OR DAMAGED PROPERTY; (3) GOVERNMENTAL FINES AND CHARGES; (4) CLAIMS OF THIRD PARTIES; AND (5) ANY AND ALL TYPES OF DAMAGES, INCLUDING: DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL AND PUNITIVE.
I. Limitation of Liability Generally
- IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING WITHOUT LIMITATION ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK, SYSTEM, ACTS OF GOD OR ACTS OF GOVERNMENTS), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, OR (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL. IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT FOR DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF $100.
- THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THE PROCEEDING PARAGRAPH SHALL APPLY REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF THE PARTY AGAINST WHOM DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NOTHING IN THIS SECTION SHALL LIMIT A PARTY’S LIABILITY FOR DAMAGES ARISING FROM PERSONAL BODILY INJURY (INCLUDING DEATH), WILLFUL MISCONDUCT OR FRAUD, ANY BREACHES OF “RESTRICTIONS ON USE; PROHIBITED USES” OR “FEES,” OR ANY EXCLUSION OR LIMITATION OF LIABILITY THAT IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW.
- MEMBER must bring any claim arising out of this Agreement or related to the products or services (including the Services) provided by Company within one (1) year after the date on which the claim arose or the shortest duration permitted under applicable law if such period is greater than one (1) year. If MEMBER does not, MEMBER waives, to the extent permitted by law, all rights MEMBER may have with respect to such claim and Company shall not have any liability to MEMBER relative to that claim.
IX. DISPUTE RESOLUTION – ARBITRATION PROVISIONS
PLEASE READ THIS SECTION CAREFULLY. THE ARBITRATION CLAUSE, JURY WAIVER, SEVERABILITY PROVISION AND THE REST OF THIS SECTION ARE IMPORTANT PARTS OF THE AGREEMENT BETWEEN MEMBER AND Company.
A. United States Laws and Regulations
- The Service is operated from Company servers in the United States. MEMBER is responsible for compliance with the laws of the jurisdiction in which it is located. In no event shall MEMBER use the Service in any location where such use is prohibited or restricted by local law or where Company would incur a tax or fee obligation that would not be paid by MEMBER. MEMBER may not use or export the Service or the products thereof in violation of United States laws and regulations, including, without limitation, export administration regulations. Company may assign this Agreement in its sole discretion at any time.
B. Use by Children
- The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. Company does not knowingly collect or solicit personally identifiable information from a child under 13 without obtaining verifiable consent from that child’s parent or guardian (“Parental Consent”), except for the limited amount of personally identifiable information Company needs to collect in order to obtain Parental Consent (“Required Information”). Until Company has received Parental Consent, Company will only use Required Information for the purpose of obtaining Parental Consent. If you are a child under 13, please do not attempt to send any personal information about yourself to Company before Company obtains Parental Consent, except for the Required Information in the context of the Parental Consent process. If you believe that a child under 13 has provided Company with personal information (beyond the Required Information) without Company’s obtaining Parental Consent, please contact Company at [email protected].
XI. APPLE TERMS AND CONDITIONS
- Both MEMBER and Company acknowledge that the Terms are concluded between MEMBER and Company only, and not with Apple, and that Apple is not responsible for the Application or the Content;
- The Application is licensed to MEMBER on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Service for MEMBER’s private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Service;
- MEMBER will only use the Application in connection with an Apple device that MEMBER owns or controls;
- MEMBER acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support service with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, MEMBER may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to MEMBER will be to refund to MEMBER the purchase price, if any, of the Application;
- MEMBER acknowledges and agrees that Company, and not Apple, is responsible for addressing any claims MEMBER or any third party may have in relation to the Application;
- MEMBER acknowledge and agree that, in the event of any third-party claim that the Application or MEMBER’s possession and use of the Application infringes that third party’s intellectual property rights, Company, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- MEMBER represent and warrant that it is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that MEMBER is not listed on any U.S. Government list of prohibited or restricted parties;
- Both MEMBER and Company acknowledge and agree that, in MEMBER’s use of the Application, MEMBER will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
- Both MEMBER and Company acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against MEMBER as the third-party beneficiary hereof.
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