TERMS OF SERVICE
Last Updated: March [-], 2022
This Axon Protect Terms of Service (“Agreement”) is a binding agreement between you (“End User” or “you” or “your”) and Axon Enterprise, Inc. (“Company”). This Agreement governs your use of the Axon Protect application (including all related documentation, the “Application”). The Application is licensed, not sold, to you.
BY CLICKING THE “I AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. COMPANY MAY OCCASSIONALLY UPDATE THIS AGREEMENT. WHEN COMPANY POSTS CHANGES, COMPANY WILL REVISE THE “LAST UPDATED” DATE AT THE TOP OF THIS PAGE. YOUR CONTINUED USE OF THE APPLICATION WILL SIGNIFY YOUR ACCEPTANCE OF ANY SUCH CHANGES.
- License Restrictions. You shall not:
- a. copy the Application, except as expressly permitted by this license;
- b. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
- c. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
- d. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
- e. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;
- f. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application; or
- g. use the Application in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems.
- Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
- Geographic Restrictions. The Content and Services are based in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some Content and Services outside of the United States. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
- Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, 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. You agree that Company has no obligation to provide any Update 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: (a) the Application will automatically download and install all available Updates; or (b) 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.
- 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 (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company 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 entirely at your own risk and subject to such third parties’ terms and conditions.
- Term and Termination.
- a. The term of Agreement commences when you acknowledge your acceptance and will continue in effect until terminated by you or Company as set forth in this Section 9.
- b. You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
- c. Company may terminate this Agreement at any time without notice. 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 Company’s rights or remedies at law or in equity.
- Disclaimer of Warranties. THIS APPLICATION AND THE SERVICES PERFORMED IN CONNECTION THEREWITH ARE PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND SUBSIDIARIES, AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION AND RELATED SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION OR RELATED SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, SUBSIDIARIES, OFFICERS, EMPLOYEES, OR REPRESENTATIVES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR: (A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR (B) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION. THE FOREGOING LIMITATION WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
- Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns, and any of their respective licensors or service providers from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
- Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
- U.S. Government Rights. This Application is commercial computer software, as such term is defined in 48 C.F.R. § 2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
- Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Arizona in each case located in Maricopa County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
- Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
RapidSOS End User License Agreement
End User License Agreement
Last Updated: March 19, 2021
These Terms provide that all disputes between you and RapidSOS will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court as contemplated by these Terms. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the “Dispute Resolution and Arbitration” section below for the details regarding your agreement to arbitrate any disputes with RapidSOS.
The parties hereby agree as follows:
1. RapidSOS Service Overview
The RapidSOS Service provides an additional avenue for individuals to communicate with and receive certain information from participating organizations regarding safety, emergency response services, public health, and other services. In general, there are three kinds of end-users of the RapidSOS Service:
- If you use the RapidSOS Service to communicate with Emergency Service Providers (as defined below) or receive communications from Notification Providers (as defined below) you are a “Subscriber.”
- If you are a safety or emergency response provider including, without limitation, 9-1-1 or equivalent fire, police, emergency medical, emergency management, campus safety officials, public health services, or a monitoring service or central station, and you use the RapidSOS Service to receive information from Subscribers in order to facilitate the provision of safety or emergency services you are an “Emergency Service Provider.”
- If you use the RapidSOS Service to send emergency and general interest notifications and updates to Subscribers, you are a “Notification Provider.”
The features that are made available to you via the RapidSOS Service may vary depending on if you are registered as a Subscriber, Emergency Service Provider, or a Notification Provider. Some of the provisions in these Terms will only apply to certain types of end-users and we have noted where this is the case.
2. RapidSOS Service Within the Platform
Access to the RapidSOS Service may have been made available to you as a separate feature that is part of a program, platform or device (“Platform”) that you obtained from a third party (“Platform Provider”). Your use of any part of the Platform other than the RapidSOS Service is governed by the agreement between you and the Platform Provider. You agree that RapidSOS is not responsible or liable for any part of the Platform other than the RapidSOS Service.
You must be at least sixteen (16) years of age to use the RapidSOS Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least sixteen (16) years of age; (b) you have not previously been suspended or removed from the RapidSOS Service; and (c) your registration and your use of the RapidSOS Service is in compliance with all applicable laws and regulations. If you are using the RapidSOS Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
4. Accounts and Registration
4.1 To access most features of the RapidSOS Service, you must register for an account, and perform all data entry functions, either directly via the RapidSOS or through the Platform. If you register for an account directly with RapidSOS, you may be required to provide us with some information about yourself, such as your e-mail address, phone numbers or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. Your account information will also include any other information (which may include personally identifiable information or health-related information) that you enter into or provide to the RapidSOS Service or through a Platform.
Subscriber shall be solely and absolutely responsible for the information which it inputs, loads, deletes, unloads, modifies, and/or monitors. RapidSOS hereby grants to Subscriber a non-exclusive, non-transferable license to access the RapidSOS Services (or portion thereof) via the Internet to input, load, delete, unload and modify Subscriber’s information. Except for Subscriber’s (i) failure to keep confidential all such Subscriber information, (ii) use of the license or the Subscriber information in any manner that negatively affects RapidSOS, (iii) use of the license or the Subscriber information for any illegal purpose, (iv) violation of any applicable law or (v) Subscriber’s breach of this Agreement, this license shall continue during the Term. Subscriber agrees that upon Subscriber’s breach and/or termination of this Agreement, RapidSOS may immediately, and without notice, disable Subscriber’s access to the RapidSOS Service.
4.3 By creating an account with RapidSOS or through a Platform, you agree that RapidSOS may contact you to validate the phone number(s) or other information you register with your account. You also agree that if another individual registers and validates a phone number that you had previously registered, the phone number will be removed from your account and assigned to the other individual.
4.4 To the extent that you are accessing the RapidSOS Service through a Platform Provider, you must confirm with the Platform Provider, at least once every six (6) months, that the information within your account is accurate. Failure to do so may prevent your ability to use the RapidSOS Service.
4.5 You agree your account will only include information about adults or children for whom you have appropriate legal responsibility or appropriate prior consent, and that the account does not infringe upon or invade the privacy of anyone.
4.6 You understand and agree that you are the only person authorized to create or edit your account, unless you have authorized another person to use your username and password to enter or modify your account on your behalf. You authorize RapidSOS to release any or all of your account information to any person to whom you have provided the username and password associated with your account or phone number.
4.7 You understand and agree that once the content of your account is made available to Emergency Service Providers, it may be transmitted over unsecured Emergency Service Provider radios or may otherwise be made accessible through unsecured communications as part of the information disseminated to or by Emergency Service Providers responding to a 9-1-1 call or to an emergency. You further understand that the content of your account may be stored as part of a public record associated with an emergency call if required by local statutes. RAPIDSOS DISCLAIMS ALL LIABILITY FOR ANY SUCH UNSECURED COMMUNICATIONS.
4.8 If you are a Subscriber, you understand and agree and hereby authorize RapidSOS to release and disclose your account information to Emergency Service Providers and Notification Providers in connection with the RapidSOS Service. If you are an Emergency Service Provider or Notification Provider, you understand and agree and hereby authorize RapidSOS to release and disclose your account information to Subscribers in connection with the RapidSOS Service.
4.9 As part of your account, you may have identified additional contacts or additional persons in your household (”Additional Contacts”). If you are a Subscriber, you understand and agree that RapidSOS or any Emergency Service Providers may, for reasons outside their control, be unable to contact or to notify any Additional Contacts in any emergency situation. If you are an Emergency Service Provider or Notification Provider, you understand and agree that RapidSOS may, for reasons outside their control, be unable to contact or notify any Additional Contacts of any information relating to your use of the RapidSOS Service. Efforts to notify such Additional Contacts or any such persons shall be satisfied by communicating one time via telephone, e-mail, SMS or other means and methods utilized by RapidSOS through the telephone numbers, e-mail, SMS or other methods supplied by Subscriber, or otherwise known to or available to RapidSOS.
5. Prohibited Conduct. BY USING THE RAPIDSOS SERVICE YOU AGREE NOT TO:
5.1 use the Platform or the RapidSOS Service for any illegal purpose or in violation of any local, state, national, or international law;
5.2 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
5.3 post, upload, or distribute content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
5.4 interfere with security-related features of the Platform or the RapidSOS Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Platform or the RapidSOS Service except to the extent that the activity is expressly permitted by applicable law;
5.5 interfere with the operation of the Platform or the RapidSOS Service or any other user’s enjoyment of the Platform or the RapidSOS Service, including by: (a) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Platform or the RapidSOS Service; (c) attempting to collect, personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Platform or the RapidSOS Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
5.6 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other RapidSOS Service or Platform account without permission, or falsifying your age or date of birth;
5.7 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 10) or any right or ability to view, access, or use any Material; or
5.8 attempt to do any of the acts described in this Section 5 or assist or permit any person in engaging in any of the acts described in this Section 5.
6. Third-Party RapidSOS Services and Linked Websites
RapidSOS may provide tools through the RapidSOS Service that enable you to export information, including your account information, to third party services including, but not limited to, the Platform. By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third-party service’s use of your exported information. The RapidSOS Service may also contain links to third-party websites. Linked websites are not under our control, we are not responsible for their content, and we are not responsible for any security protocols (or lack of security protocols) on such linked websites.
7. Termination of Use; Discontinuation and Modification of the RapidSOS Service
If you violate any provision of these Terms, your permission from us to use the RapidSOS Service will terminate automatically. In addition, RapidSOS may in its sole discretion terminate your account on the RapidSOS Service or suspend or terminate your access to the RapidSOS Service at any time, with or without notice. We also reserve the right to modify or discontinue the RapidSOS Service at any time (including by limiting or discontinuing certain features of the RapidSOS Service) without notice to you. RapidSOS together with the Platform Provider may decide to charge a fee for the use of all or certain features, and you will be provided with prior notice before such fees take effect (other than any fees described in these Terms). We will have no liability whatsoever relating to any change to the RapidSOS Service or any suspension or termination of your access to or use of the RapidSOS Service. You may terminate your account at any time by terminating your account with RapidSOS or the Platform (subject to the applicable terms and conditions of the Platform). If you terminate your account, or if your access to the RapidSOS Service is terminated for any other reason, then RapidSOS will no longer provide you with the RapidSOS Service or provide your account information to Emergency Service Providers or Notification Providers. RapidSOS may retain your Content or account information after your account is terminated. Termination of your account or your access to the RapidSOS Service may also lead to termination of your account and your access to the Platform.
9. Modification of these Terms
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be notified of the modified Terms in order to continue to use the RapidSOS Service. Material modifications are effective upon your acceptance of the modified Terms; continued use of the RapidSOS Service following such material modifications will be deemed your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
10. Ownership; Proprietary Rights
You agree that you will be responsible for your use of the RapidSOS Service, and you agree to defend and indemnify RapidSOS, the Platform Provider and each of their officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the ”Indemnitees”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the RapidSOS Service or the Platform; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party including, but not limited to, the Platform Provider. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
12. Disclaimers; No Warranties
BY USING THE RAPIDSOS SERVICE, YOU AGREE THAT RAPIDSOS CANNOT CONTROL THE MANNER IN WHICH EMERGENCY SERVICES ARE RENDERED, AND THEREFORE CANNOT AND DOES NOT GUARANTEE THAT EMERGENCY SERVICE PROVIDERS WILL UTILIZE THE INFORMATION PROVIDED. NOT ALL EMERGENCY SERVICE PROVIDERS HAVE ACCESS TO THE RAPIDSOS SERVICE AND THE RAPIDSOS SERVICE MAY NOT BE UTILIZED BY EMERGENCY SERVICE PROVIDERS THAT DO HAVE ACCESS.
USE OF THE RAPIDSOS SERVICE DOES NOT CONSTITUTE AN AGREEMENT BETWEEN YOU AND SUBSCRIBERS, EMERGENCY SERVICE PROVIDERS, NOTIFICATION PROVIDERS, THE PLATFORM PROVIDER, OR OTHER USERS. YOU WILL NOT RELY ON THE RAPIDSOS SERVICE AS THE SOLE MEANS BY WHICH YOU WILL COMMUNICATE INFORMATION TO SUBSCRIBERS, EMERGENCY SERVICE PROVIDERS, OR USERS. RAPIDSOS IS NOT RESPONSIBLE FOR THE ACTIONS OF ANY SUBSCRIBER, EMERGENCY SERVICE PROVIDER, NOTIFICATION PROVIDER, THE PLATFORM PROVIDER, OR OTHER USER. RAPIDSOS DOES NOT GUARANTEE DELIVERY OF ANY MESSAGE OR INFORMATION AND IS NOT RESPONSIBLE FOR ANY ACTION OR OMISSION BETWEEN OR AMOUNG USERS OF THE SYSTEM. RAPIDSOS DOES NOT HAVE CONTROL OVER THE VOIP SERVICE, TELEPHONE SERVICE OR INTERNET SERVICE PROVIDERS NECESSARY FOR PROVIDING THE RAPIDSOS SERVICE AND ANY FAILURE DUE TO A THIRD-PARTY SERVICE PROVIDER IS NOT THE RESPONSIBILITY OF RAPIDSOS. RAPIDSOS IS NOT A TELEPHONE COMPANY, INTERNET PROVIDER, WIRELESS NETWORK PROVIDER, OR OTHER TELECOMMUNICATIONS SERVICE PROVIDER. YOU ARE SOLELY RESPONSIBLE FOR PROVIDING AND MAINTAINING THE COMMUNICATION SERVICES NEEDED FOR RAPIDSOS SERVICE. ADDITIONALLY, IT IS YOUR RESPONSIBILITY TO PROVIDE AND MAINTAIN A RELIABLE POWER SOURCE FOR ANY PRODUCTS THAT USE THE RAPIDSOS SERVICE.
YOU ARE RESPONSIBLE FOR MANAGING YOUR TELEPHONE SERVICE PROVIDER ACCOUNT, INTERNET SERVICE PROVIDER ACCOUNT, ACCOUNT SUBSCRIPTIONS, LOCATION TRACKING, AND OTHER OPT-IN STATUSES AS REQUIRED TO ALLOW THE RAPIDSOS SERVICES TO LOCATE AND COMMUNICATE WITH YOUR PHONE OR OTHER CONNECTED DEVICE. DEVICES THAT ARE LOCATION COMPATIBLE MAY NOT BE LOCATABLE BY THE RAPIDSOS SERVICE OR THE TELEPHONE RAPIDSOS SERVICE PROVIDER OR INTERNET SERVICE PROVIDER AT ALL TIMES. ANY LOCATION PROVIDED IS APPROXIMATE AND DOES NOT PROVIDE GUARANTEED RESULTS. ANY ADDITIONAL INFORMATION PROVIDED OTHER THAN LOCATION DATA IS NOT GUARANTEED AND RELIES ON THE ACCURACY OF INFORMATION PROVIDED TO THE RAPIDSOS SERVICE BY YOU OR A PLATFORM PROVIDER.
THE RAPIDSOS SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE RAPIDSOS SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. THE INDEMNITEES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE RAPIDSOS SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE RAPIDSOS SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE INDEMNITEES DO NOT WARRANT THAT THE RAPIDSOS SERVICE OR ANY PORTION OF THE RAPIDSOS SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE RAPIDSOS SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
13. Limitation of Liability
IN NO EVENT WILL THE INDEMNITEES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE RAPIDSOS SERVICE OR ANY MATERIALS OR CONTENT ON THE RAPIDSOS SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT RAPIDSOS OR ANY INDEMNITEE HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. SUBSCRIBER UNDERSTANDS AND AGREES THAT RAPIDSOS IS NOT OBLIGATED TO NOTIFY OR DISPATCH MEDICAL, FIRE, OR POLICE ASSISTANCE AND THAT RAPIDSOS SHALL HAVE NO LIABILITY FOR FAILING TO DO SO OR FOR MEDICAL, FIRE, OR POLICE ASSISTANCE NOT RECEIVING SUCH NOTIFICATION OR NOT ACTING ON SUCH NOTIFICATION. IF RAPIDSOS ELECTS TO NOTIFY MEDICAL, FIRE, OR POLICE ASSISTANCE, RAPIDSOS’ LIABILITY FOR DOING SO SHALL BE LIMITED AS SET FORTH HEREIN AND RAPIDSOS TAKES NO RESPONSIBILITY FOR ANY FIRST RESPONDERS’ OR EMERGENCY ASSISTANCE RESPONSE TO SUCH A SIGNAL. SUBSCRIBER AGREES THAT IT IS SUBSCRIBER’S SOLE RESPONSIBILITY TO PREPARE FOR ANY MEDICAL, FIRE, OR POLICE EMERGENCY.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE INDEMNITEES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE RAPIDSOS SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID DIRECTLY TO RAPIDSOS FOR ACCESS TO AND USE OF THE RAPIDSOS SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM; OR (B) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
14. Governing Law
These Terms are governed by the laws of the State of New York without regard to conflict of law principles. Subject to Section 16 of these Terms, if a lawsuit or court proceeding is permitted under these Terms, you and RapidSOS agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York County, New York for the purpose of litigating any dispute. We operate the RapidSOS Service from our offices in New York, and we make no representation that Materials included in the RapidSOS Service are appropriate or available for use in other locations. Any claim brought against RapidSOS is subject to Section 16 of these Terms and, unless prohibited by applicable law, you must bring any claim against RapidSOS within one (1) year after the claim arose. If you do not bring such claim within such time period, then you waive your right to make such claim against RapidSOS and RapidSOS has no liability to you for such claim. It is critical that you bring any claim against RapidSOS in a timely manner. UNLESS PROHIBITED BY APPLICABLE LAW, RAPIDSOS AND YOU BOTH WAIVE YOUR RIGHT TO TRIAL BY JURY.
16. Dispute Resolution and Arbitration
16.1 Generally. In the interest of resolving disputes between you and RapidSOS in the most expedient and cost-effective manner, you and RapidSOS agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND RAPIDSOS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Unless prohibited by applicable law, you must bring any claim against RapidSOS within one (1) year after the claim arose. If you do not bring such claim within such time period, then you waive your right to make such claim against RapidSOS and RapidSOS has no liability to you for such claim. It is critical that you bring any claim against RapidSOS in a timely manner.
16.2 Exceptions. Despite the provisions of Section 16.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
16.3 Arbitrator. Any arbitration between you and RapidSOS will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting RapidSOS.
16.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). RapidSOS’s address for Notice is: 3 Park Ave., Floor 22, New York, NY 10016. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or RapidSOS may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or RapidSOS must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, RapidSOS will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by RapidSOS in settlement of the dispute prior to the arbitrator’s award; or (iii) $100.
16.5 Fees. If you commence arbitration in accordance with these Terms, RapidSOS will reimburse you for your payment of the filing fee (if you are successful in the arbitration proceeding), unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse RapidSOS for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
16.6 No Class Actions. YOU AND RAPIDSOS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and RapidSOS agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
16.7 Modifications. If RapidSOS makes any future change to this arbitration provision (other than a change to RapidSOS’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to RapidSOS’s address for Notice, in which case your account with RapidSOS will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
16.8 Enforceability. If Section 16.6 is found to be unenforceable or if the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 14 will govern any action arising out of or related to these Terms.
17. Consent to Electronic Communications
18. Contact Information
The RapidSOS Service is offered by RapidSOS, Inc., located at 3 Park Ave., Floor 22, New York, NY 10016. You may contact us by sending correspondence to that address or by emailing us at email@example.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the address above with your electronic mail address and a request for these Terms.
Supplemental Consumer Monitoring Terms
MONITORING SERVICES TERMS
- These Monitoring Services Terms (“Terms”) set forth herein are affirmed by the Subscriber named in connection with that certain End User License Agreement (“EULA”) between Company named and Subscriber for the benefit of RapidSOS, Inc., together with its licensed affiliate (collectively, “RapidSOS”) and the RapidSOS partner providing the Monitoring Services (as defined herein) (“Central Station”), and shall be governed by the terms of the EULA; provided that, in the event of a conflict between these Terms and the terms and conditions of the EULA, these Terms shall be deemed to control as they pertain to the Monitoring Services only. Unless otherwise expressly set forth in the EULA or its attachments, the identity of the Central Station is Lydia Security Monitoring, Inc. dba Central Office Processing Services, C.O.P.S. Monitoring, United Central Control, UCC, and AlarmWATCH. Subscriber agrees to comply with these Terms. For avoidance of doubt, RapidSOS and the Central Station are intended to be and shall have the rights of third-party beneficiaries of these Terms.
- Subject to the terms and conditions set forth hereinafter, Central Station will perform Monitoring Services for an electronic security alarm and/or video and/or voice communication system and/or telematics and/or application-based (including mobile phone applications) system and/or personal emergency response systems, or other wearable devices (each, and collectively, “System”) as an agent of RapidSOS and Company. Central Station may, in its sole and absolute discretion add, change, or discontinue Monitoring Services; provided, however, Company shall give Subscriber thirty (30) days prior notice of any discontinuance or material change of the Monitoring Services.
- Subscriber understands and agrees that its local municipality may require that Subscriber obtain a license or permit for the use or monitoring of the System and that Subscriber is solely responsible for determining and complying with such obligations.
- Monitoring Service. Central Station operates a monitoring station(s) (“Monitoring Station”) for the receipt of audio transmissions from Systems; and communication with Subscriber and others including, but not limited to, police, fire, medical, ambulance, guard, patrol and response service, and other governmental, quasi-governmental, private or volunteer agencies, departments and organizations (collectively, “First Responders”), and others identified by Subscriber, such as emergency contacts (collectively, “Proper Authorities”), and the Subscriber desires to utilize Central Station for the receipt of (i) audio and/or video communication, (ii) electronic data transmissions (“Signals”), and/or (iii) video image transmissions from Systems, and for communication with Subscriber and Proper Authorities. “Monitoring Services” mean and consist solely of monitoring service personnel (“Operator”) communicating electronically with Proper Authorities or calling by telephone the telephone numbers supplied by Company, Subscriber or RapidSOS in writing for Proper Authorities (the “Call List”) within a reasonable period of time under the circumstances at the Central Station’s monitoring facility and the priority of the Signals which are identified in writing (“Listed Codes”) or video images which, in the Operator’s discretion reveal the necessity for Monitoring Services, appear on the Operator’s computer screen at the Central Station’s monitoring facility or when voice communication requesting assistance is received by an Operator from Company, Subscriber, or Subscriber’s premises. No Monitoring Service shall be rendered for voice communication which does not request assistance or for video images which do not clearly and conspicuously reveal the necessity for Monitoring Service. In the event a Signal is received at the Central Station’s monitoring facility which is not a Listed Code, Subscriber agrees that Central Station’s sole duty and obligation is for Central Station to log the Signal (the “Unlisted Code Policy”). If the premises is located in a jurisdiction requiring a personal verified on-site response (“Verified Response”) prior to dispatching a First Responder, it is Subscriber’s sole responsibility to engage a service to provide such Verified Response. All fees, costs and expenses in connection with Verified Response shall be borne by Subscriber (unless Company chooses to bear such expenses). Notwithstanding anything contained herein to the contrary, (a) upon receipt of a Listed Code or video images and prior to communicating electronically or by telephone to First Responders or the Call List, Central Station may, in its sole and absolute discretion and without any liability, attempt to telephone the premises or attempt to contact Subscriber through telephone, electronic mail, text message or other similar means of communication at numbers or addresses provided to Central Station in writing by RapidSOS or Company, as frequently as Central Station deems appropriate to verify the necessity to report the receipt of a Listed Code or video images to First Responders or the Call List, and (b) upon the receipt of an abort code or oral or electronic advice to disregard the receipt of a Listed Code or video images from Company, Subscriber, or any of Subscriber’s personal contacts on the Call List, all of whom have Subscriber’s authority and consent to direct Central Station to disregard receipt of a listed code, Central Station may, in its sole and absolute discretion and without any liability, refrain from contacting First Responders or the Call List or advise anyone previously notified of a Listed Code or video images of receipt of an abort code or oral or electronic advice to disregard the receipt of the Listed Code or video images. Central Station’s efforts to notify First Responders or the Call List shall be satisfied by advice electronically or by telephone to any person answering the telephone at the telephone number(s) provided to Central Station in writing or by leaving a message with a telephone answering service or any mechanical, electrical, electronic or other technology permitting the recordation of voice or data communications. Subscriber acknowledges and agrees that (i) all software, hardware, firmware, codes, signals, audio and voice communications, video images, information and documentation arising out of or from, in connection with, related to, as a consequence of or resulting from the Monitoring Services (collectively, the “IP Property”) are the sole and exclusive property of Company, Central Station or RapidSOS, as applicable, and Subscriber has no rights whatsoever in any of the IP Property, and (ii) Central Station or RapidSOS, as applicable, shall have the right in its sole and absolute discretion to destroy, delete, erase, etc. (collectively, “Destruction”) the IP Property at any time without notice to Subscriber; provided, that upon Subscriber’s written request to retain any specific IP Property being received by Central Station prior to the Destruction of the IP Property, Central Station shall use commercially reasonable efforts to store the specific IP Property as requested by Subscriber on the condition precedent that Subscriber pay all fees, costs and expenses related to your request.
- Consent to Intercept, Record, Disclose, and Use Contents of Communications. Subscriber, for itself, and as the authorized agent of its agents, servants, representatives, employees, contractors, officers, and directors (individually and collectively, “Subscriber Party”), hereby consents to RapidSOS and/or Central Station intercepting, recording, retrieving, reviewing, copying, disclosing and using the contents of all telephone, video, wire, oral, electronic, internet, broadband and other forms of transmission or communication to which Company, RapidSOS, and/or Central Station and Subscriber or Subscriber Party are parties.
- Consent to Call Subscriber and Call List. Subscriber, for itself and as the authorized agent of each Subscriber Party and each person on Subscriber’s Call List from time-to-time, consents to Company, RapidSOS and Central Station calling each such person’s telephone, cell phone, or other mobile device in connection with the Monitoring Services.
- Transmission of Data, Video, or Voice. Subscriber, on its behalf and on behalf of Subscriber Parties acknowledges and agrees that Systems are non-supervised reporting devices. If the transmission medium for delivery of data, video images or voice or other audio communications from Subscriber or Subscriber Party to the Monitoring Station is incompatible with the System or is inoperative, circumvented, compromised or interrupted by natural or human causes including, without limitation, the cutting of the telephone line, radio transmission interference, power line surges or outages, internet or broadband problems and internet or broadband provider problems, there is no indication of this fact at the Monitoring Station. Further, Subscriber understands that (i) a video system enables RapidSOS and/or Central Station to view the premises of the Subscriber or a Subscriber Party (“Premises”) to the extent a System connected to the Monitoring Station is in use, and (ii) a two-way voice system, if in use at the Premises, enables RapidSOS and/or Central Station to “listen-in” to the Premises or via the device in use to contact Central Station. Subscriber, for itself and as authorized agent of each Subscriber Party, authorizes and consents to Central Station viewing the transmission of data, video, and voice (including “listening-in”) at the Premises and the area outside the Premises and releases Company, Central Station, RapidSOS, and their representatives for all claims, losses, damages, costs and expenses due to Central Station viewing or receiving such data, video, or voice.
- Video Systems. If the System transmits video images, Subscriber shall (and shall cause relevant Subscriber Parties to) (i) provide and maintain adequate power and lighting for all cameras or other video-related equipment; (ii) inform all persons on the Premises that they may be monitored by video; (iii) not use or permit the use of video installed where any Person may have a reasonable expectation of privacy; (iv) use broadband connectivity exclusively to transmit video images from the system; (v) use the video system for security surveillance, management services, and emergency response only; (vi) not use the video system for any criminal, illegal, or otherwise unlawful activity; and (vii) obtain and keep in effect all permits or licenses required for the installation and operation of the video system. Subscriber understands and agrees (and shall inform relevant Subscriber Parties and receive their agreement) that (i) a video system enables RapidSOS and/or Central Station to record, store and review images of the interior of the Premises and the area outside of the Premises, to the extent applicable, and (ii) video with audio capability enables RapidSOS and/or Central Station to record, store and review oral communications from in and outside of the Premises. Subscriber hereby agrees, authorizes, and consents, and will cause relevant Subscriber Parties to agree, authorize, and consent, to Company, RapidSOS, and Central Station recording, storing, and reviewing video images and oral communications transmitted from the video system at the Premises or made part of the System. Monitoring Service in connection with the receipt of video images at Central Station’s Monitoring Station consists solely of Operator communicating electronically or calling by telephone the Proper Authorities within a reasonable period of time (and in consideration of the priority of all Signals and video images received by the Central Station’s Monitoring Station) after video images which, in the Operator’s reasonable discretion, reasonably conspicuously reveal the necessity for Monitoring Service, appear on the Operator’s computer screen at the Monitoring Station; provided, that the Operator shall not be required to view the video images more than one time as the video images appear on the Operator’s computer screen. Notwithstanding anything in these Terms to the contrary, RapidSOS’s and/or Central Station’s obligation to perform monitoring service in connection with any Listed Code received from activation of the an alarm/request for assistance or other Signal from the System is conditioned on (i) receipt of video images from the video system related to the Listed Code, and (ii) Operator’s determination, pursuant to this Section, of whether to communicate electronically or call by telephone First Responders or other Proper Authorities on the Call List.
- Medical Emergency Signal. Subscriber acknowledges and agrees that RapidSOS’s and/or Central Station’s sole responsibility upon receipt of a medical emergency signal transmitted from the System is to call by telephone or send an electronic, real-time, data communication to the medical assistance providers listed as Proper Authorities in the relevant Call List. Subscriber understands and agrees that Company, Central Station, RapidSOS, and their respective representatives are hereby released from all liability due to active or passive sole, joint or several negligence of any kind or degree of Company, Central Station, RapidSOS, or their respective representatives which Subscriber, or anyone claiming through Subscriber, in any way might or could claim against Company, Central Station, RapidSOS, or their respective representatives based upon, arising out of or from, in connection with, resulting from, related to or as a consequence of failure or improper dispatch of medical assistance providers.
- Service Information Obligation of Subscriber. Subscriber shall properly and accurately complete and deliver to Company and/or RapidSOS and/or Central Station in writing all information required by Company and/or RapidSOS and/or Central Station to perform Monitoring Services under these Terms (“Information”). All Information (and all additions, modifications or changes) shall be (i) Subscriber’s sole and absolute responsibility, and (ii) in writing or electronically transmitted by Subscriber to Company and/or RapidSOS and/or Central Station. All Information shall not become available for use until transferred by Central Station to its database which shall occur not sooner than the next business day after receipt of the Information by the Central Station. No oral communication shall be binding on Central Station. Notwithstanding the foregoing, in the event Company and/or RapidSOS and/or Central Station provides or agrees to provide any of the Information, Subscriber hereby releases Company and/or RapidSOS and/or Central Station for any and all acts, errors or omissions of Company and/or RapidSOS and/or Central Station, including Company’s and/or RapidSOS’s and/or Central Station’s active or passive sole, joint or several negligence of any kind or degree arising out of or from or related to Company and/or RapidSOS and/or Central Station providing, failing to provide or agreeing to provide any Information.
- False Alarms. In the event the System is activated for any reason outside the need for emergency assistance (a “False Alarm”), Subscriber shall be responsible for any fines, fees, costs, expenses and penalties assessed against Subscriber, Company, Central Station, or RapidSOS by any court, governmental agency, or municipality in connection with such False Alarm.
- PERS Communication Limitations. The personal emergency response system (“PERS”) equipment, including without limitation any mobile device or fall monitor, is not infallible and the transmission and receipt of communications to or from such equipment may be interrupted or otherwise compromised. The Monitoring Services may rely upon the availability of cellular service and data and the availability of global positioning system (“GPS”) or other location data to operate properly, all of which are provided by a third party that is not controlled by Central Station or RapidSOS. The ability of a mobile device to accurately track a Subscriber’s location is dependent the availability of GPS, cellular network, and/or wireless internet coverage, depending on Subscriber’s location. The device will function only in areas, locations, and buildings where such service is available. If such service is unavailable or unreliable, the device may not accurately reflect a Subscriber’s location (and, in the case of multistory buildings or construction, will not accurately reflect a Subscriber’s location) or it may not communicate at all with the Monitoring Station. In such event, Central Station may be unable to communicate a Subscriber’s location to a First Responder, and a First Responder may not be able to locate such Subscriber. Use of the 911 emergency services telephone line may enable a Subscriber to reach First Responders in this situation. Subscriber understands the information in this paragraph.
- Fall Detection. Subscriber understands that fall detection technology does not detect 100% of falls and may activate even when the Subscriber does not fall. In addition, the system must have sufficient battery charge and/or cellular signal strength to transmit information. A Subscriber should always push their help button when they need assistance.
- Email and Other Electronic Notices. In the event Subscriber elects to receive automatic email or other electronic notices of certain System events, e.g., the arming or disarming of the System, the triggering of an alarm by the System, etc., Subscriber acknowledges, understands and agrees that (i) any such notice is conditioned on (a) receipt of the data at Central Station’s Monitoring Station, (b) the proper operation of communication equipment, services, systems and networks including, without limitation, the internet, and (c) any failure, malfunction or delay in processing or transmitting the data by RapidSOS’s and/or Central Station’s equipment or software, and (ii) Company, RapidSOS and Central Station are hereby released from any liability arising out of or from, resulting from or in connection with the failure, malfunction or delay of any such notice for any reason, including Company’s, RapidSOS’s or Central Station’s or either of their respective representatives’ sole, joint or several negligence of any kind or degree.
- LIMITATION OF LIABILITY. SUBSCRIBER UNDERSTANDS AND AGREES: THAT NONE OF COMPANY, CENTRAL STATION, RAPIDSOS, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS OR EMPLOYEES (COLLECTIVELY, “REPRESENTATIVES”) IS AN INSURER; THAT SUBSCRIBER CURRENTLY HAS AND SHALL ALWAYS MAINTAIN INSURANCE COVERING SUBSCRIBER AND SUBSCRIBER PARTIES, INCLUDING, TO THE EXTENT APPLICABLE, SUBSCRIBER PARTIES WHO MAY BE ON THE PREMISES, FOR MEDICAL, DISABILITY, LIFE, AND PROPERTY DAMAGE; THAT RECOVERY FOR ALL SUCH LOSS, DAMAGE, COST AND EXPENSE SHALL BE LIMITED TO ANY SUCH INSURANCE COVERAGE ONLY; AND THAT COMPANY, CENTRAL STATION, RAPIDSOS, AND THEIR RESPECTIVE REPRESENTATIVES ARE RELEASED FROM ALL LIABILITY DUE TO ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE, THE IMPROPER OPERATION OR NON-OPERATION OF THE SYSTEM, BREACH OF CONTRACT, EXPRESS OR IMPLIED, BREACH OF WARRANTY, EXPRESS OR IMPLIED, OR BY LOSS OR DAMAGE TO OR MALFUNCTION OF FACILITIES NECESSARY TO OPERATE THE SYSTEM, TRANSMIT ANY SIGNAL OR VIDEO IMAGE, OR OPERATE ANY MONITORING FACILITY. SUBSCRIBER FURTHER UNDERSTANDS AND AGREES: THAT SHOULD THERE ARISE ANY LIABILITY ON THE PART OF COMPANY, CENTRAL STATION, RAPIDSOS OR THEIR RESPECTIVE REPRESENTATIVES FOR ANY LOSS, DAMAGE, COST OR EXPENSE DUE TO ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE, PRODUCT OR STRICT LIABILITY, BREACH OF WARRANTY, EXPRESS OR IMPLIED, BREACH OF CONTRACT, EXPRESS OR IMPLIED, OR FOR CONTRIBUTION OR INDEMNIFICATION, SUCH LIABILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF $1,000.00 COLLECTIVELY.
- NO WARRANTIES. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION OF THESE TERMS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Release of Insured Losses and Waiver of Subrogation. Subscriber hereby waives any rights Subscriber’s insurance company may have to be reimbursed by Company, Central Station, RapidSOS, or their respective Representatives for money paid to Subscriber or on Subscriber’s behalf. Subscriber hereby release Company, Central Station, RapidSOS, and their respective Representatives for all losses, damages and expenses which are insured.
- INDEMNIFICATION. IF ANYONE OTHER THAN SUBSCRIBER, INCLUDING SUBSCRIBER’S INSURANCE COMPANY, ASKS COMPANY, CENTRAL STATION, RAPIDSOS, OR THEIR RESPECTIVE REPRESENTATIVES TO PAY FOR ANY LOSS, DAMAGE OR EXPENSE (INCLUDING, WITHOUT LIMITATION, ECONOMIC LOSSES, PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) DUE TO (I) BREACH OF CONTRACT OR WARRANTY, EXPRESS OR IMPLIED, (II) ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE BY COMPANY, CENTRAL STATION, RAPIDSOS, OR THEIR RESPECTIVE REPRESENTATIVES, (III) FAILURE OR MALFUNCTION OF THE SYSTEM OR THE CENTRAL STATION’S MONITORING STATION, (IV) RECORDING OF COMMUNICATIONS OR VIDEO SURVEILLANCE/RECORDING, (V) PRODUCT OR STRICT LIABILITY, OR (VI) A CLAIM FOR SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, SUBSCRIBER AGREES TO PAY (WITHOUT ANY CONDITION THAT COMPANY, CENTRAL STATION, RAPIDSOS, OR THEIR RESPECTIVE REPRESENTATIVES FIRST PAY) FOR ALL LOSSES, DAMAGES, COSTS AND EXPENSES INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES, WHICH MAY BE ASSERTED AGAINST OR INCURRED BY COMPANY, CENTRAL STATION, RAPIDSOS, OR THEIR RESPECTIVE REPRESENTATIVES.
- Contractual Limitation of Actions. All suits against Company, Central Station, RapidSOS, or their respective Representatives must be commenced in court within one (1) year after the cause of action has accrued, without judicial extension of time, or said suit is barred. The time period in this Section is of the essence and must be strictly complied with.
- Suspension of Service. Should there be a termination or suspension of the contract between RapidSOS and Central Station, or upontermination or suspension of Monitoring Services for any reason under Central Station’s contract with RapidSOS, or if the Systemexcessively sends video images or signals to Central Station’s Monitoring Station, Subscriber unconditionally and irrevocably authorizesRapidSOS and/or Central Station to, without limitation, concurrently or consecutively, do any one or more of the following: ignore all videoimages and signals received from the System, disconnect the System, or render the System incapable of signaling locally or communicatingwith the Central Station’s monitoring facility by deletion or modification of data necessary to operate the System. Subscriber agrees that Company’s, RapidSOS’s and Central Station’s obligations hereunder are waived automatically without notice and Subscriber releases Company, RapidSOS and Central Station for all loss, damage and expense in the event the monitoring facility, equipment, or facilitiesnecessary to operate the System or Monitoring Station are interrupted, circumvented, compromised, destroyed, damaged, inoperable ormalfunction (collectively, an “Interruption”) for any reason whatsoever including, without limitation, Subscriber’s sole, joint or severalnegligence, for the duration of such Interruption of Service.
- Applicable law. These Terms are governed by and construed according to the laws of Delaware.
- Type and Place of Suit. Each party unconditionally and irrevocably agrees that all claims, actions or proceedings arising out of or from, in connection with, as a result of, related to or as a consequence of these Terms or the services contemplated herein (a “Suit”) shall be limited to breach of these Terms (all other types of claims being hereby waived and Company, Central Station, RapidSOS, and their respective representatives being hereby released) brought exclusively in the state or federal courts located in the district or county where Central Station’s Monitoring Station related to such Suit is located and the parties each unconditionally and irrevocably consents to the exclusive jurisdiction of these courts.
- Service of Process. The parties to these Terms each authorize and consent to service of process by U.S. mail, certified, return receipt requested, or national overnight courier service (with confirmation of receipt).
- WAIVER OF TRIAL BY JURY. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY SUIT BROUGHT BY A PARTY.
- Assignability. These Terms and the agreement contained herein are not assignable by Subscriber. These Terms and the agreement contained herein, or any portion thereof is assignable by RapidSOS.
- Validity. Should any provision hereof (or portion thereof), or its application to any circumstances, be held illegal, invalid or unenforceable to any extent, the validity and enforceability of the remainder of the provision and these Terms, or of such provisions as applied to any other circumstances, shall not be affected thereby, and shall remain in full force and effect as valid, binding and continuing. Upon determination that any provision or portion thereof is invalid, illegal or unenforceable, the court or other dispute resolution forum shall modify the provision or portion thereof so as to affect the original intent of the parties as closely as possible so that such provision or portion thereof is valid, legal and enforceable.
- Modifications. All changes or amendments to these Terms must be in writing and signed by the parties hereto to be binding.
- Right to Subcontract. Subscriber agrees that RapidSOS and/or Central Station may, in their sole and absolute discretion, subcontract for the provision of services under these Terms. Subscriber agrees that the provisions of these Terms inure to the benefit of and are applicable to any subcontractors engaged by RapidSOS and/or Central Station to provide any Monitoring Services to Subscriber, and that any such subcontractor shall be an intended third party beneficiary of these Terms with the same force and effect as they apply to RapidSOS and/or Central Station; provided that subcontractor will fulfill all of RapidSOS’s and/or Central Station’s obligations hereunder with respect to any such subcontract and the subcontracting party will remain responsible for the actions or inactions of subcontractor in accordance with these Terms.
- Paragraph Headings. The paragraph titles used herein are for convenience of the parties only and shall not be considered in construing the provisions of these Terms.
- Central Station as Subcontractor. Subscriber understands and agree that (i) the relationship among Company, Central Station, and RapidSOS is that of independent contractors and not as partners or joint venturers, and (ii) none of Company, Central Station, or RapidSOS shall be liable to Subscriber, directly or indirectly, for any liability of the others to Subscriber.
- Right to Notice and Cure. In the event of any breach of these Terms, Subscriber agrees to provide written notice to RapidSOS specifically identifying the nature of the breach and the provisions of these Terms affected thereby, and to permit Central Station to cure the breach within five (5) business days after receipt by Central Station of the written notice or, if the breach cannot be reasonably cured within said period, to promptly commence to cure and diligently proceed until cured. If RapidSOS and/or Central Station cures any said breach as provided herein, the agreement set forth in these Terms shall continue unabated and Central Station shall not be liable to Subscriber or any Subscriber Parties for any loss, damage or expense arising out of or from, resulting from, related to, in connection with or as a consequence of any said breach.
- Company and/or RapidSOS as Agent; Revocation; Ratification; Retroactive Date. Subscriber hereby appoints Company and/or RapidSOS as Subscriber’s agent to give direction to Central Station as if done by Subscriber in Subscriber’s own right concerning any and all matters arising out of or from, in connection with or related to the performance of Monitoring Services. The authority granted to Company and/or RapidSOS under this Section shall continue to be binding upon Subscriber until termination of the EULA; provided that such termination shall not affect anything done by Central Station in reliance hereon or pursuant hereto prior to actual receipt of said written and signed notice of revocation. Subscriber hereby ratifies and confirms all prior and contemporaneous acts of Company and/or RapidSOS in accordance with this Section which Subscriber acknowledges and agrees shall be and is deemed to be retroactive to the initial date Central Station performed any Services for Subscriber or on Subscriber’s behalf as a subcontractor of RapidSOS.
- Execution in Counterparts. These Terms may be executed in any number of counterparts, any one of which need not contain the signature (including electronic signature) of more than one party, but all of which shall together constitute one and the same instrument. The parties agree that these Terms and the signatures affixed hereto may be transmitted and delivered by facsimile and electronic mail (scanned copy delivered in pdf version) and that all such signatures and these Terms transmitted or delivered by facsimile or electronic mail shall be deemed to be originals for all purposes and given the same legal force and effect as the original agreement and original signatures.
- Storage of Agreement and Information. Subscriber authorizes Company and/or RapidSOS and/or Central Station to scan, image or otherwise convert, store or retain these Terms and all Information and other written materials in an electronic format of any nature and, in the sole and absolute discretion of RapidSOS and/or Central Station, to destroy all written documents or materials which have been so converted. Subscriber agrees that an electronically produced copy of these Terms and all other written documents and materials so converted is legally equivalent to the original for any and all purposes, including litigation or arbitration.