November 20, 2016
THIS MOBILE APPLICATION LICENSE AGREEMENT (“LICENSE” OR “AGREEMENT”) IS A BINDING AGREEMENT AND LIMITS THE LIABILITY OF SAFETREK, INC. (“SAFETREK,” “LICENSOR” OR “WE”) TO YOU. READ THIS LICENSE CAREFULLY.
THIS LICENSE CONTAINS AN ARBITRATION CLAUSE IN SECTION 8.J., REQUIRING THAT ANY AND ALL CLAIMS, DISPUTES, OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR BREACH THEREOF (EXCEPT FOR INTELLECTUAL PROPERTY CLAIMS), SHALL BE SETTLED BY BINDING ARBITRATION.
BY ENTERING INTO THIS LICENSE, YOU AGREE TO COMPLY WITH THE APPLICABLE TERMS AND CONDITIONS OF YOUR MOBILE PROVIDER, THE ITUNES STORE AND THE APP STORE, GOOGLE PLAY, AND ANY OTHER THIRD PARTY APP STORE. (ITUNES AND APP STORE TERMS AND CONDITIONS AVAILABLE AT HTTP://WWW.APPLE.COM/LEGAL/INTERNET-SERVICES/ITUNES/US/TERMS.HTML. GOOGLE PLAY TERMS AND CONDITIONS AVAILABLE AT https://play.google.com/about/play-terms.html.) By entering into this License, you and Licensor acknowledge that the License is between you and Licensor only (not Apple and/or Google) and that Licensor alone (not Apple and/or Google) is solely responsible for the Application and the content thereof.
In this License, the words (i) “Mobile Device” means any mobile device you own or control; (ii) “Application” means the SafeTrek application and any related software, website(s), updates, content and/or documentation; and (iii) “Response Services” means all Response Services provided in connection with the Application as indicated more fully in Section 2 below. Other defined terms are included below.
BY DOWNLOADING OR USING THE APPLICATION OR RESPONSE SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS LICENSE; (B) AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE; AND (C) REPRESENT THAT YOU ARE AGED 18 YEARS OR OLDER. IF YOU ARE A PARENT OR LEGAL GUARDIAN OF A CHILD UNDER THE AGE OF 18 WHO YOU INTEND TO PERMIT TO USE THE APPLICATION OR RESPONSE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT BOTH YOU AND YOUR CHILD ARE PARTIES TO THIS AGREEMENT AND THAT ALL REFERENCES HEREIN TO YOU SHALL BE CONSTRUED AS APPLYING TO BOTH YOU AND YOUR CHILD SUCH THAT YOU AND YOUR CHILD ARE JOINTLY AND SEVERALLY BOUND BY ALL TERMS AND CONDITIONS OF THE AGREEMENT.
WITHOUT LIMITING THE APPLICABILITY OF OTHER TERMS OF THIS LICENSE, YOU SPECIFICALLY UNDERSTAND, ACKNOWLEDGE AND AGREE TO TERMS IN SECTIONS 7 AND 8. THOSE TERMS (AND OTHERS IN THIS LICENSE) LIMIT OUR LIABILITY TO YOU AND TO OTHERS.
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL THE APPLICATION AND/OR USE THE APPLICATION OR RESPONSE SERVICES.
IMPORTANT! NOT A REPLACEMENT FOR 911.
The Application and Response Services are not a replacement for 911 or any other public emergency Response Services. If you are in immediate danger, are suffering a medical emergency or are the victim of a crime, CALL 911 and/or the appropriate authorities and do not rely on the Application or the Response Services.
IMPORTANT! LIMITATIONS ON RESPONSE SERVICES BASED ON LOCATION.
YOU MAY ONLY USE THE APPLICATION OR SERVICES WITHIN THE 50 U.S. STATES AND THE DISTRICT OF COLUMBIA (THE “TERRITORY”).
IMPORTANT! LOCATION AND DATA BASED RESPONSE SERVICES.
The Application and Response Services rely on location-based Response Services to determine your location. To use the Response Services, you must permit us to use location- based Response Services on your Mobile Device. IF WE CANNOT USE THE LOCATION-BASED RESPONSE SERVICES ON YOUR MOBILE DEVICE, WE WILL NOT BE ABLE TO LOCATE YOU AND PROVIDE THE RESPONSE SERVICES. We will share your location in connection with the Response Services and with the Proper Authorities (as defined below) and any others to whom you permit us to provide your location through your selected privacy settings. IF YOU DO NOT USE LOCATION BASED RESPONSE SERVICES (E.G., YOU TERMINATE, REFUSE OR BLOCK THE LOCATION BASED RESPONSE SERVICES), WE CANNOT PROVIDE YOU THE RESPONSE SERVICES AND YOU SHOULD NOT USE THE APPLICATION. The Application also may rely on Push Notifications to notify you of an emergency. You MUST enable push notifications in the Application to be able to receive these notifications. The Application also depends on your Mobile Device having other hardware and activated software that allows the Application to access data necessary to provide certain features, including, for example, accelerometer, magnetometer and gyroscopic sensors. Your Mobile Device must include this hardware and software, and grant permission to SafeTrek to access and utilize data generated therefrom, in order for SafeTrek to provide all such features. Please contact SafeTrek if you have questions regarding what hardware and software is required.
IMPORTANT! WIRELESS NETWORK CONNECTIVITY AND COVERAGE.
The Application and Response Services require adequate Wi-Fi and/or Cellular connectivity (e.g., 2G, 3G, 4G, LTE or other). When your Mobile Device does not have adequate connectivity, the Application and Response Services may not work You MUST ensure that your Mobile Device has adequate wireless network connectivity and coverage.
A. Grant of License. Subject to the terms of this License, SafeTrek grants to you a limited, non-exclusive, non-transferable, non-commercial license to download, install and use the Application on a Mobile Device. The Application may include the delivery and receipt of alert communications from your Mobile Device (each, a “Signal”), text messages, the recording of location-based information and the transmission or receipt of other information (such Signals, text messages, location information and other information is collectively referred to as the “Data”). Subject to Section 5 of this License, Licensor owns the Data and you agree that we can share, provide or copy any of the Data and use it for any purpose, including any commercial purpose or provide any Data to law enforcement authorities.
B. License Controls. This license remains subject to the terms of this License, and Licensor reserves all rights not expressly granted to you. The terms of this License will govern any software upgrades that replace and/or supplement the original Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
2. Response Services.
A. Response Services. Response Services consist solely of personnel at our monitoring facility (collectively, “Personnel”) contacting the Public Safety Answering Point (“PSAP) (collectively, “Proper Authorities”), solely to the extent Personnel determine such action is desirable or advisable following receipt of a Signal from your Mobile Device through the Application and Data. Personnel’s determination regarding the appropriate course of action to be taken in connection with Data received and reviewed shall be based solely upon the Data then available to Personnel and in such Personnel’s sole and absolute discretion. Any attempt to contact Proper Authorities shall be made by Personnel using methods Personnel deem appropriate in such Personnel’s sole discretion. Licensor’s obligation to notify Proper Authorities shall be satisfied by contacting the Proper Authorities, by telephone, text message or other electronic means or leaving an electronic message, voicemail or similar message. The Response Services do not provide any form of real-time monitoring but consist solely of providing the Response Services set forth herein following our actual receipt of a Signal and Data. No Response Services shall be rendered for Signals or Data where, based upon Data received, Personnel determine, in their sole and absolute discretion, that assistance is not required. We have no obligation to provide, and will not provide, any form of service other than the Response Service.
B. Starting Response Services. The Response Services will not begin until you have properly activated the Response Services through the Application. Response Services cannot be rendered if we do not receive a Signal or Data. To use the Response Services, the Application must be able to successfully transmit a Signal and Data from your Mobile Device. If your Mobile Device is not connected to the Internet, or does not have an adequate upload/download connection speed or latency, we may not receive a Signal, an adequate Signal or any Data. Under any such circumstances, you agree that we cannot be held liable if we are unable to provide the Response Services.
C. Licensor May Change Response Services. Licensor may modify, terminate or suspend any particular form of Response Service at any time, including to the extent permitted, requested or required to do so by any applicable governmental authority, standards setting entity or insurance interest. Your obligations under this License, including Section 2, shall continue in the event of any (i) such modification, termination or suspension; or (ii) any non-response policy of any Proper Authority.
D. Before Dispatching Proper Authorities. Upon receipt of (a) a Signal and Data but before contacting any other person or entity, including any of the Proper Authorities, Personnel may contact or attempt to contact you as frequently as they deem appropriate to verify the need to respond to, or report the receipt of, a Signal or Data to any of the Proper Authorities, and (b) an abort code or your oral or written direction to disregard a Signal, Licensor may refrain from contacting Proper Authorities or otherwise providing Response Services or may advise Proper Authorities of the abort code or any such direction to disregard the receipt of the Signal.
E. Your Rights are Limited. All software, hardware, firmware, shareware, codes, information and documentation in connection with, related to, or resulting from the Application and Response Services are Licensor’s sole and exclusive property and that you have no rights whatsoever in any of the foregoing.
3. Fees. Licensor may require you to make an initial payment or one or more periodic fees to use the Application. Licensor will provide you a written or electronic notice if any such fee is to be imposed. Immediately following any such notice and continuing every period until the termination of this License, you shall pay Licensor in advance in accordance with our fee schedule (the “Fee”). You authorize Licensor to automatically charge the Fee via in app purchase or to your credit or debit card in advance on a periodic recurring basis. We may increase or decrease the Fee by written or electronic notice to you. Upon termination of this License, Licensor shall have no obligation to refund any portion of the Fee with respect to any period after the termination of this License.
4. Permitted Uses and Restrictions.
A. Legal Compliance. You agree to use the Application and Response Services in compliance with all applicable laws and our policies as published from time-to-time in notifications we send to you. You shall use the Application solely to obtain the Response Services. You shall not use the Application or Response Services for any illegal, unlawful or improper purpose (as determined by us from time-to-time, in our sole and absolute discretion), including (i) to harass or bully anyone; (ii) to falsely accuse or defame anyone; or (iii) to simulate or portray untrue or fictitious scenarios. Licensor may use and maintain the phone number, name and contact information, email address(es) and any other information you provide as unique account identifiers.
B. Intellectual Property Rights. You may not, and you agree not to, or to enable others to, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Application or the Response Services, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). You may not, and you agree not to, or to enable or permit others to breach the security of the Mobile Device, the Application or the Response Services for any purpose, including for the purpose of copying any other user’s information. Any attempt to do so shall be a violation of the rights of Licensor. If you breach this restriction, you may be subject to prosecution and damages. Unpublished rights are reserved under the copyright laws of the United States. To the extent the Application may be used to reproduce materials, it is licensed to you only for reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. If you are uncertain about your right to copy any material, you should contact your legal advisor.
C. Export Restrictions. You represent and warrant that: (i) you are not located in a country that is subject to a United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country; and (ii) you are not listed on any United States government list of prohibited or restricted parties. This License is subject to all applicable export restrictions. You will comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Application and its use.
D. Personal Use Only. You will use the Application and Response Services solely for your personal use and not for commercial purposes.
E. Unauthorized Access to Information. You understand and accept that there is a risk that unauthorized persons may gain access to the Application and/or our website and the data available through the Application and/or the website. You consent to our provision of data through the Application and website. You will keep confidential all passwords, account information and access codes that permit access to or the use of the Application or Response Services. Upon termination or suspension of this License by Licensor, Licensor may immediately, and without notice, disable your access to the Application and cancel all passwords or other access codes.
F. Mobile Devices. You will provide, at your own expense, the proper Mobile Device and communication services (cellular, Wi-Fi or otherwise) that you need to access and use the Application and Response Services. Licensor does not guarantee that the Application and Response Services can be accessed through, or will be compatible with, all devices or communication services. The Application or Response Services may fail due to a variety of circumstances, including circumstances or conditions beyond Licensor’s control. You understand and agree that communication services may be interrupted, circumvented or otherwise compromised. Such communication services are beyond Licensor’s control, and Licensor may not be able to assist in resolution of problems with respect to the Application or Response Services relating to such communication services. You understand that your use of the Application and/or Response Services may be limited by your communications services provider or by the capabilities or capacities of your Mobile Device. If your Mobile Device or wireless communication Response Services are incompatible, inoperative, interrupted or circumvented, or in ‘Airplane Mode’ or similar modes without radio communication, no data will be received by Licensor and the Application and Response Services may not be available.
G. Licensor Responsible for Support. Licensor alone shall be responsible for providing all maintenance and support necessary to use the Application or Response Services. You and we understand, acknowledge and agree that Apple and/or Google shall have no such obligation.
H. Tradename. You acknowledge that “SafeTrek” is a trade name and trademark belonging to Licensor, and that any related names and marks are owned by Licensor. Without limiting the foregoing, you specifically agree that you will not, in any manner, use “SafeTrek” or any imitation or variant thereof as part of a trade name, company or firm name, trademark (which term is defined also to include any service mark) or domain name.
I. Intellectual Property Disputes. In the event of any third-party claim that the Application or your use or possession and use of the Application infringes the intellectual property rights of any third-party, Apple and/or Google shall have no responsibility therefor, and Licensor shall have the right, but not an obligation, to control the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
J. Updates. From time to time in our sole discretion, we may develop and provide Application updates including upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. We have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
i. the Application will automatically download and install all available Updates; or
ii. you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
K. Questions, Complaints and Claims.
Your questions, complaints and claims should be addressed to Licensor as follows:
Licensor’s Name: SafeTrek, Inc
Licensor’s Address: 911 Washington Avenue, Suite 230, St. Louis, MO 63101
Licensor’s Business Telephone Number: 314-328-5615
Licensor’s E-mail Address: firstname.lastname@example.org
L. Third Party Materials. The Application may display, include or make available third party content (including data, information, applications and other products, services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that Licensor is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Licensor does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties’ terms and conditions.
6. Term and Termination.
A. The term of Agreement commences when you download or install the Application and will continue in effect until terminated by you or Licensor as set forth in this section.
B. You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
C. Licensor may terminate this Agreement at any time without notice if it ceases to support the Application, which Licensor may do in its sole discretion. Upon notice to you, Licensor also may terminate this Agreement at any time for its convenience, in which event, upon your request, Licensor will, as its sole and final obligation, reimburse you any unearned charges you paid for the remainder of the then-applicable term. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
D. Upon termination:
i. all rights granted to you under this Agreement will also terminate; and
ii. you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.
E. Termination will not limit any of Licensor’s rights or remedies at law or in equity.
7. Disclaimer of Warranties. YOU AGREE THAT (I) USE OF THE APPLICATION OR RESPONSE SERVICES IS AT YOUR SOLE RISK AND THE ENTIRE RISK AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORT AND RESULTS REMAINS SOLELY WITH YOU, (II) THE APPLICATION AND THE RESPONSE SERVICES ARE INTENDED TO REDUCE (BUT NOT ELIMINATE) THE RISK OF LOSS, HARM, OR DANGER; AND (III) THE PRICE OF THE APPLICATION AND RESPONSE SERVICES IS INSUFFICIENT TO GUARANTEE THAT NO LOSS OR DAMAGE WILL OCCUR. THE APPLICATION AND RESPONSE SERVICES ARE PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION AND RESPONSE SERVICES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD AND WORKMANLIKE RESPONSE SERVICES, ACCURACY, QUIET ENJOYMENT AND NON- INFRINGEMENT OF THIRD PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION OR THE RESPONSE SERVICES. LICENSOR DOES NOT WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE APPLICATION OR RESPONSE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE OPERATION OF THE APPLICATION OR RESPONSE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR (C) DEFECTS IN THE APPLICATION, OR RESPONSE SERVICES WILL BE CORRECTED. THE APPLICATION OR RESPONSE SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY THE APPLICATION OR RESPONSE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE. THERE IS NO GUARANTEE THAT THE APPLICATION OR RESPONSE SERVICES WILL FUNCTION AS INTENDED, THAT ALL OR ANY FUNCTIONALITY WILL BE OPERATIONAL AT ALL TIMES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR AN LICENSOR AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT PERMIT THE WAIVER OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE WAIVERS AND LIMITATIONS MAY NOT APPLY TO YOU.
8. Our Liability is Limited. THIS SECTION SIGNIFICANTLY LIMITS OUR LIABILITY TO YOU AND THIRD PARTIES. READ THIS SECTION CAREFULLY.
A. YOU MUST MAINTAIN INSURANCE. WE ARE NOT AN INSURER AND THE SERVICE IS NOT A SUBSTITUTE FOR INSURANCE. OUR FEES REFLECT THE COST OF THE SERVICE, NOT ANY LOSSES, LIABILITIES, DAMAGES OR EXPENSES (COLLECTIVELY, “DAMAGES”) YOU OR ANY PERSON OR ENTITY NOT A PARTY TO THIS LICENSE (EACH, A “THIRD-PARTY”) MAY INCUR. YOU AGREE TO MAINTAIN INSURANCE COVERING YOU AND ALL THIRD PARTIES FOR ANY SUCH DAMAGES, INCLUDING MEDICAL, DISABILITY, LIFE, PROPERTY AND LIABILITY INSURANCE (COLLECTIVELY, THE “REQUIRED INSURANCE”).
B. RECOVERY LIMITED TO REQUIRED INSURANCE; RELEASE. YOU AGREE TO LOOK EXCLUSIVELY TO THE REQUIRED INSURANCE IN THE EVENT OF ANY DAMAGES AND YOUR RECOVERY (OR THE RECOVERY OF ANY THIRD PARTY) IS LIMITED TO ANY PROCEEDS RECEIVED FROM THE REQUIRED INSURANCE. YOU RELEASE EACH OF THE LICENSOR PARTIES FOR ALL DAMAGES COVERED BY THE REQUIRED INSURANCE, INCLUDING ANY INSURANCE DEDUCTIBLES, SELF- INSURED RETENTIONS OR SIMILAR AMOUNTS. IN THIS AGREEMENT “LICENSOR PARTIES” MEANS LICENSOR AND EACH OF ITS DIRECTORS, OFFICERS, MEMBERS, SHAREHOLDERS, PARTNERS, PRINCIPALS, EMPLOYEES, AGENTS, CONTRACTORS AND ANY OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS.
C. YOUR INDEMNITY OBLIGATION. YOU SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS EACH OF THE LICENSOR PARTIES FROM AND AGAINST ANY DAMAGES (INCLUDING REASONABLE ATTORNEYS’ FEES) ASSERTED AGAINST OR INCURRED BY ANY OF THE LICENSOR PARTIES IN CONNECTION WITH OR AS A RESULT OF ANY CLAIMS, ACTIONS, SUITS OR PROCEEDINGS (COLLECTIVELY, “CLAIMS”) OF ANY THIRD PARTY (COLLECTIVELY, “THIRD-PARTY CLAIMS”), INCLUDING YOUR INSURANCE COMPANY, ARISING OUT OF OR FROM, IN CONNECTION WITH, OR AS A RESULT OF, ANY OF THE COVERED CLAIMS (AS THAT TERM IS DEFINED IN THE NEXT SECTION). (FOR THE AVOIDANCE OF DOUBT, YOU SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS EACH OF THE LICENSOR PARTIES FOR THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF ANY OF THE LICENSOR PARTIES, NO MATTER WHEN ANY SUCH (1) NEGLIGENCE MAY HAVE OCCURRED OR (2) DAMAGES MAY HAVE BEEN SUSTAINED.)
D. COVERED CLAIMS DEFINED. IN THIS LICENSE, “COVERED CLAIMS” MEANS ANY CLAIMS ARISING OUT OF OR FROM, IN CONNECTION WITH, OR AS A RESULT OF, ANY OF THE FOLLOWING: (A) THIS LICENSE (INCLUDING THE BREACH OF THIS LICENSE), (B) THE APPLICATION (INCLUDING THE APPLICATION’S FAILURE TO OPERATE OR THE IMPROPER OPERATION OF THE APPLICATION), (C) THE PORTAL (INCLUDING THE PORTAL’S FAILURE TO OPERATE OR THE IMPROPER OPERATION OF THE PORTAL), (D) THE RESPONSE SERVICES (INCLUDING ANY FAILURE TO PROVIDE THE RESPONSE SERVICES OR IF THE RESPONSE SERVICES ARE PROVIDED IMPROPERLY), (E) BREACH OF WARRANTY OR CONTRACT (EXPRESS OR IMPLIED), (F) PRODUCTS LIABILITY, (G) STRICT LIABILITY, (H) THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF ANY OF THE LICENSOR PARTIES, NO MATTER WHEN ANY SUCH (1) NEGLIGENCE MAY HAVE OCCURRED OR (2) DAMAGES MAY HAVE BEEN SUSTAINED, (I) ANY CLAIM FOR SUBROGATION, CONTRIBUTION OR INDEMNIFICATION, (J) ANY CLAIM FOR ANY FORM OF DATA BREACH, PRIVACY ISSUES (INCLUDING INVASION OF PRIVACY OR ANY STATUTORY PROTECTIONS OR BREACH OF ANY REGULATORY FRAMEWORK) OR CYBER-LIABILITY OR (K) ANY DOWNTIME, OPERATIONAL ERRORS, LOSS OF DATA, DELIVERY ERRORS, TRANSMISSION LOSSES OR OTHER LACK OF SERVICE OR INABILITY TO USE THE APPLICATION.
E. WAIVER OF SUBROGATION. TO INDUCE US TO ENTER INTO THIS AGREEMENT, YOU WAIVE ANY RIGHTS YOUR INSURANCE COMPANY MAY HAVE AGAINST ANY OF THE LICENSOR PARTIES FOR MONEY PAID TO YOU OR ON YOUR BEHALF, INCLUDING ALL RIGHTS OF SUBROGATION.
F. LICENSOR PARTIES NOT LIABLE FOR CERTAIN DAMAGES. LICENSOR PARTIES ARE NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY FORM OF EXEMPLARY, INCIDENTAL, SPECIAL, STATUTORY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR PERSONAL INJURY, DEATH, LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES, INCLUDING DAMAGES ARISING OUT OF OR RELATED TO ANY OF THE COVERED CLAIMS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
G. ANY POSSIBLE LIABILITY LIMITED IN AMOUNT. EVEN IF ANY OF THE LICENSOR PARTIES ARE LIABLE TO YOU OR ANY THIRD PARTY, ANY SUCH LIABILITY WILL NOT EXCEED TWO THOUSAND ($2,000.00) DOLLARS. IF YOU WISH TO INCREASE THE MAXIMUM AMOUNT OF THE LIMITED LIABILITY DESCRIBED IN THIS SECTION, YOU MAY OBTAIN A HIGHER LIMIT BY PAYING US AN ADDITIONAL AMOUNT DETERMINED BY US BUT WE WILL NOT BE HELD TO BE AN INSURER.
H. CONTENT AND INFORMATION. YOU ARE SOLELY RESPONSIBLE (A) FOR ALL CONTENT STORED ON OR RETRIEVED FROM YOUR MOBILE DEVICE OR THE APPLICATION AND (B) TO KEEP INFORMATION IN THE APPLICATION, INCLUDING ANY CONTACT INFORMATION, CURRENT, ACCURATE AND COMPLETE. NONE OF THE LICENSOR PARTIES MAY BE HELD LIABLE FOR YOUR FAILURE TO DO SO.
I. LIMITED TIME TO BRING CLAIMS. YOU MUST COMMENCE ALL CLAIMS AGAINST ANY OF THE LICENSOR PARTIES IN COURT OR BY ARBITRATION (AS APPLICABLE) WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED, WITHOUT JUDICIAL EXTENSION OF TIME, OR SUCH CLAIM IS BARRED. THE TIME PERIOD IN THIS PARAGRAPH MUST BE COMPLIED WITH STRICTLY.
J. YOU MUST ARBITRATE CLAIMS. YOU AND LICENSOR PARTIES AGREE THAT ANY AND ALL CLAIMS, DISPUTES, OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS LICENSE, OR BREACH THEREOF (EXCEPT FOR ANY INTELLECTUAL PROPERTY CLAIMS), SHALL BE SETTLED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES. ARBITRATION SHALL PROCEED SOLELY ON AN INDIVIDUAL BASIS WITHOUT THE RIGHT FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS-ACTION BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF OTHERS. IF THIS CLASS-ACTION WAIVER IS DEEMED INVALID OR UNENFORCEABLE, THEN THIS ENTIRE ARBITRATION PROVISION SHALL NOT APPLY. BY AGREEING TO ARBITRATE, YOU AND LICENSOR PARTIES GIVE UP YOUR RESPECTIVE RIGHTS TO HAVE CLAIMS, DISPUTES, AND CONTROVERSIES ARISING OUT OF OR RELATING TO THIS LICENSE, OR BREACH THEREOF (EXCEPT FOR ANY INTELLECTUAL PROPERTY CLAIMS), HEARD AND DECIDED IN A COURT OF LAW AND DECIDED BY A JURY. BY AGREEING TO ARBITRATE, YOU AND LICENSOR PARTIES ALSO WAIVE YOUR RIGHT TO BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. ARBITRATION SHALL BE CONDUCTED BEFORE A PANEL OF THREE ARBITRATORS, SELECTED PURSUANT TO THE AAA’S ARBITRATOR SELECTION PROCESS.. THE ARBITRATORS SHALL DECIDE ANY ISSUES REGARDING ARBITRABILITY AND THE ENFORCEABILITY OF THIS ARBITRATION PROVISION. YOU AND LICENSOR PARTIES AGREE THAT ANY ARBITRATION SHALL BE BROUGHT IN THE STATE IN WHICH YOU LIVE. YOU AND LICENSOR PARTIES AGREE THAT JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATORS MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE ENFORCEABILITY OF THIS ARBITRATION PROVISION SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT (“FAA”), 9 U.S.C. § 1, ET SEQ. AND THE LAW OF THE STATE OF MISSOURI. EXCEPT AS MAY BE REQUIRED BY LAW, NEITHER YOU NOR LICENSOR PARTIES MAY DISCLOSE THE EXISTENCE, CONTENT, OR RESULTS OF ANY ARBITRATION HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF BOTH PARTIES. FOLLOWING YOUR PAYMENT OF THE FILING FEE, LICENSOR PARTIES WILL PAY ALL OTHER ARBITRATION FEES AND COSTS. THE PAYMENT OF ATTORNEYS’ FEES SHALL BE IN ACCORDANCE WITH SECTION 12 BELOW. IF THE FILING FEE EXCEEDS THE AMOUNT YOU WOULD HAVE HAD TO PAY FOR COURT PROCEEDINGS OR YOU ARE UNABLE TO PAY THE FILING FEE, LICENSOR PARTIES WILL ALSO PAY THE FILING FEE. IN THE EVENT THE ARBITRATORS DETERMINE THAT EITHER THE SUBSTANCE OF YOUR CLAIM OR THE RELIEF SOUGHT IN THE DEMAND IS FRIVOLOUS OR BROUGHT FOR AN IMPROPER PURPOSE, YOU SHALL REFUND SUCH AMOUNTS TO LICENSOR THAT LICENSOR PAID AND THAT WOULD HAVE OTHERWISE BEEN YOUR OBLIGATION TO PAY UNDER THE AAA RULES. THE ARBITRATORS’ DECISION IS FINAL AND BINDING, EXCEPT FOR ANY RIGHT OF APPEAL PROVIDED BY THE FAA. YOU AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO THE FOREGOING ARBITRATION PROVISION AND CLASS-ACTION WAIVER.
K. APPLE AND GOOGLE’S LIABILITY IS LIMITED. APPLE AND/OR GOOGLE IS NOT RESPONSIBLE FOR ANY CLAIMS BY YOU OR ANY THIRD-PARTY RELATING TO THE APPLICATION OR USE OF THE APPLICATION OR RESPONSE SERVICES, INCLUDING ANY PRODUCT LIABILITY CLAIMS OR CLAIMS THE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT, INCLUDING CLAIMS ARISING UNDER ANY CONSUMER PROTECTION OR SIMILAR LEGISLATION.
L. RELEASES BY CALIFORNIA RESIDENTS. IF YOU ARE A CALIFORNIA RESIDENT, YOU SHALL AND HEREBY DO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR EXPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
THE LIMITATIONS IN THIS SECTION 8 APPLY REGARDLESS OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. Controlling Law and Severability. This License will be governed by and construed in accordance with the laws of Missouri, excluding its conflict of law principles. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
10. Force Majeure. Our obligations under this Agreement are waived automatically without notice and you release us for all Damages (i) following any default or breach of this Agreement by you; (ii) if the monitoring facility or any communications equipment or communications services used to transmit data to the monitoring facility are destroyed, damaged or inoperable for any reason not within Licensor’s control, (iii) delays or interruption in the Response Service(s) due in whole or in part, directly or indirectly, to riots, strikes, lockouts, terrorism, war (declared or undeclared), weather, natural phenomenon, acts of God, governmental orders, laws, rules or regulations, transportation, environmental conditions or (iv) any other reason beyond the control of Licensor (the items in (ii) through (iv) are referred to collectively as the “Force Majeure Events”). Our obligations under this Agreement are suspended for the duration of any such Force Majeure Events.
11. Terms Applicable to Third Parties. Licensor may, in its sole and absolute discretion, subcontract for the provision of any of the Response Services. The terms of this License inure to the benefit of and are applicable to (i) Apple and Apple’s subsidiaries; (ii) Google and Google’s subsidiaries; (iii) any subcontractors engaged to provide any of the Response Services to you; and (iv) each of the Licensor Parties and bind you to all such persons or entities listed in subsection (i), (ii), or (iii) with the same force and effect as they bind you to Licensor. The Licensor Parties and the persons or entities listed in this section shall (A) have the right to enforce the terms and conditions of this License against you as a third-party beneficiary and (B) be the only third-party beneficiaries (intended, incidental or otherwise) under this Agreement.
12. JURISDICTION, VENUE, WAIVER OF JURY TRIAL AND ATTORNEYS’ FEES. TO THE EXTENT A CLAIM IS NOT SUBJECT TO ARBITRATION UNDER SECTION 8.J ABOVE, EACH PARTY HEREBY IRREVOCABLY AGREES THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING (“SUIT”) ARISING OUT OF OR FROM, IN CONNECTION WITH OR AS A RESULT OF THIS LICENSE SHALL BE BROUGHT EXCLUSIVELY IN THE STATE COURTS OF THE CITY OF ST. LOUIS, MISSOURI OR THE COURTS OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION. EACH PARTY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF EACH SUCH COURT IN ANY SUCH SUIT AND WAIVES ANY OBJECTION THAT IT MAY HAVE TO JURISDICTION OR VENUE OF ANY SUCH SUIT. EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUIT BROUGHT BY EITHER PARTY. YOU CONSENT TO LICENSOR’S RESPONSE SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR OTHER LEGAL PROCEEDING SENT BY FIRST-CLASS U.S. MAIL TO THE ADDRESS YOU PROVIDE LICENSOR. IN THE EVENT OF ANY ARBITRATION OR LITIGATION BROUGHT BY EITHER PARTY TO THIS AGREEMENT, THE PREVAILING PARTY IN SUCH ARBITRATION OR LITIGATION SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ALL COSTS, ATTORNEYS’ FEES AND OTHER EXPENSES INCURRED BY SUCH PREVAILING PARTY IN THE ARBITRATION OR LITIGATION.
13. Miscellaneous. This License constitutes the entire agreement between Licensor and you regarding the Application and Response Services and supersedes all prior or contemporaneous understandings regarding such subject matter. Licensor may amend or modify this License at any time by delivering a modification notice (each a “Notice”) to you via e-mail at the e-mail address you provide on our website. Any Notice shall, once transmitted, amend the terms this License. If you (i) object to any amended terms; (ii) you do not agree to this License or (iii) become dissatisfied with the Response Services or the Application in any way, your sole recourse is to immediately discontinue use of the Response Services and the Application. You may not amend or modify this License unless such amendment or modification is in writing and signed by Licensor. When used in this License, the term “including” means “including, without limitation or example.” Section headings are for convenience only and are not part of this License. References to the singular shall include the plural and references to the plural shall include the singular. You may not assign this License. Licensor may assign all or any portion of this License.