Pocket Geek® Home Terms of ServiceDownload PDF
Effective June 1, 2020
The Service is not available to individuals under the age of 13. If You are 13 or older but under the age of 18, then Your parent or legal guardian must review and accept these Terms of Service on Your behalf through Our registration process. If You are a parent or legal guardian entering into these Terms of Service on behalf of and for the benefit of a child over 13 years but under the age of 18, then You agree to and accept full responsibility for that child's use of the Service, including all financial charges and legal liability that he or she may incur.
You are solely responsible for ensuring that Your use of the Service is in compliance with all laws, rules and regulations applicable to You. If the applicable law in the jurisdiction in which You reside requires that You must be older than 13 to use the Service, then the minimum age is the age that is mandated by such applicable laws. The right to access the Service is revoked in those jurisdictions where these Terms of Service or use of the Service are prohibited; or to the extent that the offer, sale or provision of the Service conflicts with any applicable law, rule or regulation.
The Service should not be used or relied on as an emergency locator system, used while driving or operating vehicles, used in connection with any hazardous environments requiring fail-safe performance, or used in any other circumstances in which the failure or inaccuracy of that application or the Service could lead directly to death, personal injury, or severe physical or property damage.
You acknowledge and agree that We have offered the Service, set its prices, and entered into these Terms of Service in reliance upon the warranty disclaimers and the limitations of liability set forth below. You further acknowledge and agree that (i) the warranty disclaimers and the limitations of liability set forth in these Terms of Service reflect a reasonable and fair allocation of risk between You and Us, (ii) the warranty disclaimers and the limitations of liability set forth in these Terms of Service form an essential basis of the agreement between You and Us, and (iii) We would not be able to provide the Service to You on an economically reasonable basis without these limitations and disclaimers.
Scope of Service
To use the Service, You must have a Smart Product that is compatible with the Service. Certain features of the Service may not be available to all customers or available on the Smart Product. We do not warrant that the Service will be compatible with Your Smart Product. Some features are only available in conjunction with a service contract offered by Us or Our affiliates. You may use those features of the Service in connection with Smart Product(s) owned or leased by You that are covered under one of Our or Our affiliate’s service contracts (“Covered Smart Product”) during the term of the service contract that covers Your Smart Product.
Privacy Notice and Guidelines to Service
Modification to These Terms of Service
We may revise these Terms of Service at any time, with or without notice, by updating this page or notifying You, and such revisions will be effective upon posting to this page. Please check these Terms of Service periodically for any changes. Your continued use of the Service following the posting of any revisions to these Terms of Service will mean You accept those changes. We reserve the right to alter, suspend or discontinue any aspect of the Services, including Your access to them. Unless explicitly stated, any new features will be subject to these Terms of Service.
Ownership and Proprietary Rights
The content, visual interfaces, information, graphics, design, compilation, software (including, but not limited to, the App), and all other elements of the Service (collectively, the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international laws and conventions, and all other relevant intellectual property and proprietary rights and applicable laws. All Materials are Our property, or the property of Our affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names displayed through the Service are proprietary to Us, Our affiliated companies and/or third-party licensors. Except as expressly authorized by Us in the End User License Agreement section below, You may not otherwise copy, reproduce, modify, adapt, display, perform, publish, create derivative works from, store, sublicense, translate, sell, rent, lease, loan, resell, or otherwise exploit the Materials. You agree not to disclose, publicly perform, transmit, distribute or provide the Materials to any other party. Furthermore, You may not: modify, disassemble, decompile or reverse engineer the Service and/or Materials, except to the extent that such restriction is expressly prohibited by law. The foregoing license grant under these Terms of Service is not a sale of the Materials or any copy thereof and We and Our third-party licensors retain all right, title, and interest in the Materials. Any attempt by You to transfer any of the rights, duties or obligations hereunder, is void. We reserve all rights not expressly granted herein.
Third-Party Sites, Products, and Services
IMPORTANT NOTE REGARDING THIRD PARTY SOFTWARE:
The Service may include certain features that when utilized connect You with software originating from third parties that is subject to its own terms and conditions. Please refer to https://www.logmeininc.com/legal/terms-and-conditions to view the terms of the relevant licenses regarding your rights under said licenses.
The Service is not available to any users suspended or removed from the Service by Us. You agree that the information You provide to Us upon registration and at all other times will be true, accurate, current and complete. You also agree that You will ensure that this information is kept accurate and up to date at all times.
When you register with the Service, You may be asked to create a password. As You will be responsible for all activities that occur under Your password, You should keep Your password strictly confidential at all times and follow industry best practices for protecting Your account.
YOU MUST NOTIFY US IMMEDIATELY OF ANY UNAUTHORIZED USE OF YOUR PASSWORD OR IF YOU BELIEVE THAT YOUR PASSWORD IS NO LONGER CONFIDENTIAL.
YOU MAY NOT SHARE YOUR ACCOUNT PASSWORD WITH ANY OTHER PERSON FOR ANY REASON.
Electronic (and other) Communications
We may provide Communications to You by one or more of the following methods: (1) via e-mail; (2) via telephone call; (3) on the App; (4) via text message or mobile message service; or (5) any other method to the extent permissible by law. With respect to text message and mobile messaging service Communications, Your carrier may charge You a fee for receiving the message. “Communications” means all notices, reports, documents, disclosures or other information that We are required to provide to You by law, or as reasonably necessary to provide the Service. Communications also means any marketing offers We may send through any of the methods identified below or any other electronic medium allowed by law, or surveys or questionnaires seeking input and feedback on the Services.
You may withdraw Your consent to receive marketing Communications electronically by emailing Us at firstname.lastname@example.org or by using the unsubscribe link in any e-mail Communication. You agree to allow Us a reasonable amount of time to process your request. You may request a paper copy of any Communication by emailing Us at email@example.com. We may charge You a reasonable service fee for a paper copy. If you cannot access Your Communications, You must promptly notify Us so We can help identify the issue, or arrange to have the Communications delivered via alternative means.
It is Your responsibility to provide Us with accurate contact information, which may include, but is not limited to a valid e-mail address. You must promptly advise us of any changes in your contact information. To view any Communication, You will need a compatible Smart Product with internet access.
Monitoring of Telephone Calls and Emails
Telephone calls and email correspondence with Us as a result of Your access to the Service may be recorded for training, administrative and security purposes, and as otherwise permitted by law. By using such communication methods, You are consenting to such recording and/or monitoring taking place.
Payment Terms, Cancellation, and Refund Policy
Fees, if any, to be charged to You for Your use of the Service, are disclosed when You register for the Service. You agree to pay any fees due for and incurred by Your use of the Service. The fees for Your use of the Service may be managed by Your mobile operator or administrator. If so, please refer to Your mobile operator’s billing statement for charges related to the Service and contact Your provider directly with any questions or comments related to these fees.
Any additional fees to be charged for Your use of the Service following registration (such as in-app purchases) will be disclosed to You before We request payment and will be charged only after You provide Your payment details. We will make any purchased features available for download or use as soon as We accept Your order.
You may be offered a no-charge trial period before any charges are incurred. If You choose to cancel during the trial period, You will not be charged. If You wish to discontinue using the Service after a trial period, You may cancel Your subscription at any time. If You do not cancel during the trial period, You will be charged the fees that were disclosed to You upon registration. If You are enrolled in a free trial period for access to the Service and at the end of the free trial period You are not enrolled in a paid subscription (automatically based on the trial terms or otherwise) We reserve the right to remove Your access to the Service at the end of the free trial without notice.
Once You cancel the Service You will not be charged again, but You are responsible for whatever charges have already been incurred for the current billing period. For example, unless otherwise required by applicable law, if Your billing cycle is on the 13th of every month, and You cancel on the 22nd, You will still have to pay for the current month, but You will not be charged again after that. In order to treat everyone equally, no exceptions will be made. Please keep in mind, unless otherwise required by applicable law, a cancellation by You will not generate a refund -- it will only stop future charges.
Credit/Debit Card Transactions
We may retain the credit/debit card details You provide to Us after payment has been made if You provide Us with consent, if required by Our payment processor, or otherwise required by law. We do not maintain any security code that You may have given to Us in order to complete payment of a deductible, if any. This assists in reducing credit/debit card fraud. We and our payment processor are both PCI-compliant. Except in exceptional circumstances, any refund We provide to You for any payment You have made by credit/debit card is made back to the credit/debit card account used to make the initial payment.
Usage Rules and Prohibited Conduct
YOU UNDERSTAND AND HEREBY ACKNOWLEDGE AND AGREE THAT YOU MAY NOT AND WARRANT THAT YOU WILL NOT:
- use the Service or any location information displayed within the Services to stalk, harass, abuse, defame, threaten or defraud other users, or collect, attempt to collect, or store location or personal information about others;
- use the Service if you are under the age of 13 years old;
- use the Service for any commercial or non-private use without Our written consent, it being understood that the Service is intended for individual, non-commercial use only;
- fail to deliver payment for the Service;
- use the Service for any illegal purpose, or in violation of any local, state national or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy, and import or export control;
- post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be objectionable, libelous, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
- post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;
- use the Service with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, or otherwise capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management, or similar applications;
- use the Service in connection with hazardous environments requiring fail-safe performance or any application in which the failure or inaccuracy of that application or the Services could lead directly to death, personal injury, or severe physical or property damage;
- make unsolicited offers, advertisements, proposals, or send junk mail, to other users of the Service. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
- impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Services accounts of other users;
- share passwords or access to your Smart Product while the Service is running and/or accessible with any third party or encourage any other user to do so;
- misrepresent the source, identity or content of information transmitted via the Service;
- remove, circumvent, disable, damage, reverse engineer, or otherwise interfere with security-related features of the Service, digital rights management technologies that are integrated in the Service, features that prevent or restrict use or copying of any content accessible through the Service, or features that enforce limitations on use of the Service;
- intentionally interfere with or damage operation of the Service or any user's enjoyment of the Service, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code;
- attempt to gain unauthorized access to the Service, or any part of it, other accounts, computer systems or networks connected to the Service, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service;
- use any robot, spider, scraper or other automated means to access the Service for any purpose without Our express written permission or bypass Our robot exclusion headers or other measures We may use to prevent or restrict access to the Service or modify the Service in any manner or form, nor to use modified versions of the Service, including without limitation for the purpose of obtaining unauthorized access to the Service; or
- sell or transfer or allow another person to access your account password, profile, or account.
Suspension, Violations and Termination of Service
We reserve the right, but have no obligation, to monitor any user's registration or use of the Service. We reserve the right to disable, suspend or terminate Your access to the Service for any reason and without any notice, unless otherwise prohibited by law. You agree that We, in the good faith belief that You have violated any of the terms and conditions of these Terms of Service, may terminate any account or subscription (or any part thereof) for the Service and remove and discard all or any part of Your account at any time. You agree that any termination of Your access to the Service or any portion thereof may be impacted without prior notice, and You agree that We will not be liable to you or any third-party for any such termination nor obligated to reimburse you for payments made to Us (if any) unless otherwise required by applicable law. These remedies are in addition to any other remedies We may have at law or in equity.
The Service may allow the submission of content and materials (such as pictures, audio, video, documents, reviews, ratings, ideas, notes, concepts, or creative suggestions) by You and other Users ("User Submissions"), and the hosting, sharing and/or publishing of such User Submissions. You shall be solely responsible for Your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, You affirm, represent, and warrant that: (i) You own, or have the necessary licenses, rights, consents, and permissions to use, and authorize Us to use, all intellectual property and any other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Services and these Terms of Service; (ii) You have the written consent, release, and/or permission of each and every identifiable individual in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Services and these Terms of Service; and (iii) You agree not to make any User Submissions that (x) are unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another's privacy, or is harmful to minors in any way; (y) are pornographic or obscene, or that harasses, degrades, intimidates or are hateful toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; or that impersonates any person or entity, including, but not limited to, an officer, director, employee, or agent of Us or Our business associates; or (z) includes personal or identifying information about another person without that person's explicit consent. For clarity, You shall retain all of your ownership rights in your User Submissions.
By submitting a User Submission, You hereby grant Us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submission in connection with the Service and Our (and Our successors’ and assigns’) businesses, including, without limitation, for marketing or promotional purposes, in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after Your termination of Your account, the Service, or Your use of the Service. To the extent any User Submission You submit includes Your name, likeness, voice, or photograph, You acknowledge and agree that this license shall apply to the same.
For clarity, the foregoing license grant does not affect Your ownership or other license rights in Your User Submissions, including the right to grant additional licenses to Your User Submissions, unless otherwise agreed in writing. You represent and warrant that You have all rights to grant such licenses to Us without infringement or violation of any third-party rights including, without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
Except where prohibited by applicable law, by submitting a User Submission through the Services, You are waiving and agreeing not to assert any copyrights or “moral” rights or claim resulting from Our alteration of the User Submission or any photograph(s), footage, illustrations, statements or other work contained in the User Submission.
We assume no responsibility whatsoever in connection with or arising from User Submissions. We assume no responsibility for actively monitoring User Submissions for inappropriate content. If at any time We choose, in Our sole discretion, to monitor User Submissions, We nonetheless assume no responsibility for the content of the User Submissions, no obligation to modify or remove any inappropriate User Submissions, and no responsibility for the conduct of the User submitting User Submissions. Further, We do not endorse and have no control over the content of User Submissions submitted by other Users. We make no warranties, express or implied, as to the content of User Submissions or the accuracy and reliability of any User Submissions. Nonetheless, We reserve the right to prevent You from submitting User Submissions and to edit, restrict or remove User Submissions for any reason at any time.
Digital Millennium Copyright Act Compliance
It is Our policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. In addition, We will promptly terminate without notice the accounts of Users that are determined by Us to be "repeat infringers." A repeat infringer is a User who has been notified by Us of infringing activity violations more than twice and/or who has had a User Submission removed from the Service more than twice.
If you are a copyright owner or an agent thereof, and you believe that any content hosted on or through the Services infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Our Designated Copyright Agent with the following information in writing:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the applicable Service are covered by a single notification, a representative list of such works on the applicable Service;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Us to locate the material;
- information reasonably sufficient to permit Us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (for example, "I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law."); and
- a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, "I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is allegedly infringed by the aforementioned content.").
Our Designated Copyright Agent to receive notifications of claimed infringement can be reached at firstname.lastname@example.org.
You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
App End User License Agreement
- License Grant.We hereby grant You a personal, non-exclusive, non-transferable, revocable license to download, install and use the App on Your Smart Product to access the Service for the Covered Smart Product(s). We also hereby grant You a personal, non-exclusive, non-transferable, revocable license to copy and use the Materials (other than the App).
- Restrictions.You may not:
a. modify, disassemble, decompile or reverse engineer the App, except to the extent that such restriction is expressly prohibited by law;
b. rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Materials to any third-party;
c. make any copies of the Materials;
d. remove, circumvent, disable, damage or otherwise interfere with security-related features of the App, features that prevent or restrict use or copying of any content accessible through the App, or features that enforce limitations on use of the App;
e. delete the copyright and other proprietary rights notices on the Materials;
f. take any action that imposes or may impose (as determined by Us in Our sole discretion) an unreasonable or disproportionately large load on Our (or Our third-party providers’) infrastructure; or
g. interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service.
- Software Upgrades.You acknowledge that We may from time to time issue upgraded versions of the App and that it may be necessary to use the most current version of the App to use the Service.
- Open Source.With respect to any open source or third-party code that may be incorporated in the Service, such open source code is covered by the applicable open source or third-party license EULA(s), referenced under Open Source Attributions in the Pocket Geek® Home App, authorizing use of such code. Current licensing information relating to the use of free and open-source software that may be contained in portions of the product, can be found there.
- Rights Reserved.The foregoing license grants under this Terms of Service are not a sale of the Materials or any copy thereof and We and Our third-party licensors retain all right, title, and interest in the Materials. Any attempt by You to transfer any of the rights, duties or obligations hereunder, is void. We reserve all rights not expressly granted under these Terms of Service.
- Government End Users.If the Service is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Materials, including without limitation the App, by the U.S. Government is subject to restrictions set forth in these Terms of Service and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.
- Export Control.The App is subject to United States export laws and regulations and may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the App may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the App.
Indemnification and Disclaimer of Warranties
You agree to indemnify and hold Us, Our affiliates and licensors, and Our or their respective officers, agents, employees, and successors (“Covered Entities and Persons”) harmless from and against any and all claims, liabilities, damages (actual and consequential), demands, losses and expenses (including legal and other professional fees) arising from or in any way related to Your use of the Service, App, and/or Materials, any violation of these Terms of Service, or any other actions connected with Your use of the Service, App, and/or Materials (including all actions taken under Your account). We reserve the right, on notice to You, to assume exclusive defense and control of any claim or action, subject to indemnification by You, without relieving You of Your indemnification obligations hereunder. Upon learning of a claim by a third party that Your use violates or allegedly violates a third party’s rights, You agree to promptly notify Us of any such claim. You agree to cooperate with Us as reasonably required in the defense of any such claims, and You shall not in any event settle any such claim or matter without the written consent of Us. In the event of such claim, We will provide notice of the claim, suit or action to the contact information We have for the account, provided that any failure to deliver such notice to You shall not eliminate or reduce Your indemnification obligation hereunder.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- (a) YOUR USE OF THE SERVICE AND MATERIALS IS AT YOUR SOLE RISK. THE SERVICE AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- (b) WE DO NOT WARRANT THAT (i) THE SERVICE OR MATERIALS WILL MEET ALL OR ANY OF YOUR REQUIREMENTS; (ii) THE SERVICE OR MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ANY DEFECTS OR ERRORS IN THE SERVICE OR MATERIALS WILL BE CORRECTED.
- (c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, SMART PRODUCT, OR OTHER DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
- (d) NO ADVICE, RECOMMENDATION, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE OR MATERIALS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
Documents, information, graphics and other Materials appearing on the App or the Services may include technical inaccuracies, miscalculations, typographical errors, and out-of-date information. Use of such documents, information, graphics or other Materials is at Your own risk.
SEE BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION.
Limitation of Liability and Damages
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COVERED ENTITIES AND PERSONS SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, UNDER ANY CONTRACT, WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE OR MATERIALS, INCLUDING BUT NOT LIMITED TO, (i) DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA, (ii) COVER, OR (iii) OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (1) THE USE OR THE INABILITY TO USE THE SERVICE OR MATERIALS; (2) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (3) OUR ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR ACCOUNT INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (4) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT INFORMATION; (5) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THESE TERMS OF SERVICE; (6) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING WITH THE SERVICE; OR (7) ANY OTHER MATTER RELATING TO THE SERVICE OR MATERIALS.
IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF THE COVERED ENTITIES AND PERSONS TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR YOUR USE OF THE SERVICE AND MATERIALS, WARRANTY, OR OTHERWISE EXCEED THE AMOUNTS PAID BY YOU FOR ACCESSING THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM OR ONE HUNDRED DOLLARS ($100.00 USD), WHICHEVER IS GREATER.
NOTHING IN THESE TERMS OF SERVICE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Terms Applicable if Accessing Services through Apple iOS
If you are accessing or using the Service through an Apple device, the following applicable additional terms and conditions are applicable to you and are incorporated into the Terms by reference:
- (a) To the extent that You are accessing the Service through an Apple device, You acknowledge that these Terms are entered into between You and Us, that Apple, Inc. (“Apple”) is not a party to these Terms other than as third-party beneficiary as contemplated below.
- (b) The license granted to You under these Terms is subject to the permitted Usage Rules set forth in the App Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third-party terms of agreement applicable to the Service.
- (c) You acknowledge that We, and not Apple, are responsible for providing the Service and content thereof.
- (d) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to You with respect to the Service.
- (e) To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
- (f) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, You acknowledge that, solely as between Apple and Us, We and not Apple are responsible for addressing any claims You may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Service fails to confirm to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- (g) Further, You agree that if the Service, or Your possession and use of the Service, infringes on a third-party's intellectual property rights, You will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
- (h) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon Your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against You as a third-party beneficiary thereof.
- (i) When using the Service, You agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.
Dispute Resolution; Arbitration
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED HEREIN, AND IF YOU DO NOT OPT-OUT AS SET FORTH HEREIN, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.
Read the following arbitration provision carefully. It limits certain rights, including Your right to obtain relief or damages through court action.
Arbitration of Disputes. Unless you opt-out specifically as set forth in this Section, you agree that all disputes between You and Us (whether or not such dispute involves a third party) with regard to these Terms of Service or Your use of the Service will be resolved by binding, individual arbitration, except for disputes relating to the infringement of Your or Our intellectual property (such as trademarks, trade dress, copyright and patents) or where We are seeking a preliminary injunction (“Excluded Disputes”). To begin Arbitration, either You or We must make a written demand to the other party for arbitration. The Arbitration will take place before a single arbitrator. It will be administered in keeping with the Consumer Arbitration Rules (“Consumer Rules”) of the American Arbitration Association ("AAA") in effect when the claim is filed. You may get a copy of the AAA's Consumer Rules by contacting AAA at 1633 Broadway, 10th Floor, New York, NY 10019or visiting www.adr.org. Unless You and We agree, the arbitration will take place in the county and state (or equivalent political subdivision) where you live. Judgment on the award rendered by the arbitrators may be entered in any court having competent jurisdiction. The Federal Arbitration Act, 9 U.S.C. § 1, et seq., will govern and no state, local or other arbitration law will apply. YOU AGREE AND UNDERSTAND THAT this arbitration provision means that You give up Your right to go to court on any claim covered by this provision. You also agree that any arbitration proceeding will only consider Your claims. Claims by, or on behalf of, other individuals will not be arbitrated in any proceeding that is considering Your claims. In the event this Arbitration provision is stricken, severed, or otherwise deemed unenforceable by a court of competent jurisdiction, You and We specifically agree to waive and forever give up the right to a trial by jury. Instead, in the event any litigation arises between You and Us, any such lawsuit will be tried before a judge, and a jury will not be impaneled or struck. Any provision of applicable law notwithstanding, the arbitrators will not have authority to award punitive or exemplary damages.
Confidential Arbitration. You and We agree that except as may be required by law, neither You nor We may disclose the existence, content, substance, documents, or information submitted thereunder, or any results of any arbitration hereunder without the prior written consent of other party.
Opt Out of Arbitration. If You do not wish to have any dispute between You and Us arbitrated, You must notify Us in writing within thirty (30) days of the date that You first became subject to this arbitration clause. You may provide such notice by emailing us at email@example.com. Your opt-out notification to Us must include (1) your name, (2) your postal address, (3) your e-mail address, and (4) a clear statement that You do not wish to resolve disputes with Us regarding the Service through arbitration. Please note that opting out of arbitration will not affect any other agreements or waivers made in this Section.
Venue. If You have not validly opted out of arbitration, You expressly agree that any action at law or in equity relating to the arbitration provision of these Terms of Service or the Excluded Disputes will be filed only in the state or federal courts sitting Delaware County, PA and You hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action, and to extra-territorial service of process. If You have validly opted out of arbitration, You expressly agree that any action at law or in equity arising out of or directly or indirectly relating to these Terms of Service or the Services shall be filed only in the federal or state courts sitting in Delaware County, PA and You hereby consent and submit to personal jurisdiction of such courts for the purposes of any action related to these Terms of Service or the Services, and to extra-territorial service of process.
Class Action Waiver
Neither You nor We shall be entitled to join or consolidate claims under or relating to these Terms of Service by or against other individuals or entities or litigate or pursue any claim as a representative member of a class or in a private attorney general capacity. THIS MEANS THAT YOU WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN ANY CLASS OR CONSOLIDATED ACTION WHATSOEVER. A court may sever any portion of this dispute resolution provision if it finds such unenforceable.
THESE TERMS OF SERVICE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF PENNSYLVANIA WITHOUT REGARD TO CONFLICT OF LAW RULES OR PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF LAWS OF ANY OTHER JURISDICTION.
IF YOU ARE A CONSUMER, HOWEVER, THIS PROVISION SHALL NOT BE CONSTRUED TO LIMIT YOUR RIGHTS UNDER APPLICABLE CONSUMER PROTECTION LAWS IN YOUR JURISDICTION, INCLUDING AS SET FORTH BELOW.
Exclusions and Limitations; Consumer Protection Notice
If You are a consumer, the provisions in these Terms of Service are intended to be only as broad and inclusive as is permitted by the laws of your state of residence. Certain states, like New Jersey, have heightened consumer protection laws that may make certain terms of these Terms of Service inapplicable to You. If You are a New Jersey consumer, the terms of certain Sections that broadly reference applicable law, including, but not limited to those entitled Indemnification and Disclaimer of Warranties, Limitation of Liability, Governing Law, Class Action Waiver, and Severability and Interpretation do not limit or waive your rights as a consumer under New Jersey law and the provisions in these Terms of Service, as they pertain to You, are intended to be only as broad and inclusive as is permitted by the laws of the State of New Jersey. No provision of these Terms of Service shall limit or waive Your rights as a consumer under the law of Your state of residence. In any event, We reserve all rights, defenses and permissible limitations under the law of Your state of residence.
Severability and Waiver
If in any cause of action brought forth by You, in any court of law, having the jurisdiction to decide on this matter, a court rules that any provision of these Terms of Service are invalid, then that provision will be given no effect for the limited purpose of adjudicating the cause of action, without affecting the rest of these Terms of Service. The remaining provisions of the Terms of Service will continue to be valid and enforceable.
Our failure to enforce any part of these Terms of Service shall not constitute a waiver of Our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that We will waive compliance in the future. In order for any waiver of compliance with the Terms of Service to be binding, We must provide you with written notice of such waiver through one of Our authorized representatives.
These Terms of Service state the entire agreement with regard to the items discussed above regarding the Service, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between You and Us with respect to the Service.
We shall not be liable for any failure to perform Our obligations hereunder where such failure results from any cause beyond Our reasonable control including, without limitation, mechanical, electronic or communications failure or degradation.
These Terms of Service are personal to You, and are not assignable, transferable or sublicensable by You except with Our prior written consent. We may assign, transfer or delegate any of Our rights and obligations hereunder without consent.
BY USING THIS SERVICE, YOU AGREE TO THE PROVISIONS CONTAINED ABOVE.
Please contact firstname.lastname@example.org or Assurant, Attn: Premium Technical Support Team, 2405 Commerce Ave NW #100, Duluth, GA 30096 with any questions or comments.