Terms of Service for Moxee Signal

Effective Date: May 1, 2019

 

THESE TERMS OF SERVICE (“TERMS”) FORM A BINDING AGREEMENT BETWEEN YOU AND KONNECTONE, LLC GOVERNING YOUR USE OF THE MOXEE SIGNAL DEVICE AND RELATED SERVICES AND APPLICATIONS (COLLECTIVELY, “SERVICE,” as more fully defined below). PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. IF YOU DO NOT AGREE WITH THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT USE THE SERVICE. BY CLICKING “ACCEPT” OR “I AGREE” WHERE INDICATED OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU AND ALL USERS OF THE SERVICE HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS AND ALL OTHER TERMS AND POLICIES INCORPORATED BY REFERENCE INTO THESE TERMS, INCLUDING, BUT NOT LIMITED TO, THE COLLECTION AND USE OF YOUR INFORMATION AS SET FORTH IN THE KONNECTONE PRIVACY POLICY WHETHER OR NOT YOU ARE A USER OF OUR SERVICE.

 

IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY, INSTITUTION OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS AS ITS AUTHORIZED REPRESENTATIVE, IN WHICH CASE THE TERMS “YOU” OR “YOUR” WILL REFER TO SUCH ENTITY AND ITS AFFILIATES AS WELL AS YOU. IF THE LEGAL ENTITY THAT YOU REPRESENT DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THESE TERMS, REGISTER, AND USE OR ACCESS THE SERVICE AS AN AUTHORIZED REPRESENTATIVE.

 

THESE TERMS CONTAIN A MANDATORY ARBITRATION OF DISPUTE PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

 

Modification of Terms:

These Terms may be changed, modified, supplemented, or updated by us from time to time via: (i) a prompt from an app or an SMS message that will allow you to read the new or modified terms, or (ii) by electronic mail. Revisions to these Terms will not be retroactive and they will become effective and be deemed accepted by Users: (a) immediately for those who become Users after the notification is posted, or (b) for preexisting Users, on the date specified in the notice, which will be no sooner than 30 days after the changes are posted (except changes required by law which will be effective immediately). If you do not agree with the modifications to these Terms, you must terminate your use of the Service, which will be your sole and exclusive remedy. You agree that your continued use of the Service constitutes your agreement to the modified Terms. Unless otherwise indicated, any new Content, product, service, feature or functionality added to the Service will also be subject to these Terms effective upon the date of their addition.

 

In these Terms:

Capitalized terms used herein will have the meanings ascribed to them below or where otherwise defined in line.

 

“Additional Services” means the insurance policies and other products and services which may be provided to a User by a third party.

 

“Alerts” means a text or other check-in communication from a User of the Service to a Contact Person.

 

“Applicable Law” means all laws governing the sale and use of the Service, including laws relating to privacy and the protection of data and laws regarding Intellectual Property Rights, in all jurisdictions in which the Service is accessed or used in any manner.

 

“Contact Person(s)” means those individuals that are set up to receive Alerts or other updates from a Subscriber’s Account.

 

“Content” means Alerts, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Information belonging to other Users.

 

“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

 

“KonnectONE,” “we,” “us,” “our” and terms of similar meaning means KonnectONE, LLC.

 

“Privacy Policy” means the KonnectONE privacy policy. You can find the policy by clicking in the “About” section of the Application for the Service or going to the following website: www.moxee.com/signal-privacy

 

“Professional Monitoring” means professional monitoring services, which may be provided to a User by a third party.

 

“Released Parties” means KonnectONE LLC, our supplier Wearsafe Labs LLC, and their respective affiliates, employees, officers, directors, agents, users, vendors, sponsors, contractors, advertisers, device manufacturers, distributors, resellers, retailers, business partners, and licensors and all emergency responders, Professional Monitoring providers and all other individuals, municipalities, agencies or entities providing aid or assistance in connection with the Service, or any of the successors or assigns of the foregoing.

 

“Service” means, collectively, the Software, the Applications, Professional Monitoring, Additional Services and the Devices. In connection with the Service, we refer to the hosted software applications as the “Software,” the mobile applications and Device firmware as the “Applications,” and all hardware devices designed to operate with the Software and Applications as “Devices.”

 

“Subscribers” means, collectively, “Individual Subscribers,” which means individual subscribers to the Service, and “Institutional Subscribers,” which means corporate, institutional or other legal entity purchasers of the Service. “Account” means the Subscriber’s device registration account, set up online or using the Moxee app for the Device.

 

“User” means any Subscriber and all Contact Persons, visitors and other individuals who access, receive information from, interact with, or otherwise use or obtain the benefit from the Service, regardless of whether such person creates an Account. Users may include, for example, family members, friends, employees, contractors and agents.

 

“You” or “your” means: (i) an Individual Subscriber or User of the Service; and (ii) the Institutional Subscriber (as applicable) for which you are accepting these Terms if your use of the Service is in connection with such Institutional Subscriber’s purchase of the Service.

 

Your Information

In order to use the Service or create an Account you must enter and provide certain information about yourself and other Users (“User Information”). As a condition of using the Service or creating an Account, you acknowledge that you have read the Privacy Policy and agree to the collection, storage, use and disclosure of personal information and other data as described in such policies. You represent that where you provide information relating to another User that you have permission to do so.

 

Triggering of certain Alerts may result in the creation of an audio recording of User Information, as explained in our Product Manual. You acknowledge that KonnectONE provides the technology that can be used to create recordings and does not make decisions regarding when or whom to record. You further acknowledge that it is your responsibility to understand Applicable Laws regarding recording of conversations in the jurisdictions where you intend to use the Service, and that you will comply with such laws.

 

Your Ownership of Your User Information

We claim no ownership rights over User Information. The User Information you provide remains yours; however, by sharing User Information through the Service, you agree to allow others to view, edit, and/or share your User Information in accordance with these Terms. KonnectONE has the right (but not the obligation) in its sole discretion to remove any User Information that is uploaded or shared via the Service.

 

You agree not to post or transmit User Information that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property, including first responders; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal under Applicable Law; (vii) contains any information or content that you do not have a right to make available under Applicable Law or under contractual or fiduciary relationships; (viii) contains any information or content that you know is not correct and current; (ix) violates any school or other applicable policy; or (x) interferes with other Users.

 

You affirm, represent and warrant that your User Information and any use thereof as contemplated by these Terms and the Service will not violate any Applicable Law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights. KonnectONE takes no responsibility and assumes no liability for any User Information that you or any other User or third party uploads, transmits or shares over the Service. You will be solely responsible for User Information you provide in connection with your use of the Service, and the consequences of publishing it, and you agree that we are only acting as a passive conduit for your transmission of User Information. You understand and agree that you may be exposed to Content that is inaccurate, objectionable, inappropriate, or otherwise unsuited to your purpose.

 

Our License to Use Your User Information

We do not claim any ownership interest in User Information you provide, but we do need the right to use User Information to the extent necessary to provide the Service, now and in the future. Therefore, by virtue of your agreement to these Terms, and by uploading, storing, transmitting or distributing User Information to or through the Service, you hereby grant KonnectONE a worldwide, non-exclusive, royalty-free, fully transferable right (with the right to sublicense) to use, display, process, perform, reproduce, distribute, share, publish, modify, adapt, transmit, translate, aggregate, anonymize and de-identify User Information, in any and all media or distribution methods (now known or later developed). Such uses by KonnectONE will be in accordance with our Privacy Policy and require no compensation to be paid to you with respect to the User Information that you submit, post, transmit or otherwise make available through the Service.

 

Product End of Life 

Signal is designed with normal use for an expected life of 3 years.

Restrictions on Your Use of the Service

You agree to comply with all Applicable Law in connection with your use of the Service. You further agree not to collect or distribute content or data that violates the privacy, Intellectual Property Rights or other proprietary rights of any third party, or for any purposes that we reasonably determine to be harassing, obscene, unlawful, defamatory, threatening, coercive, fraudulent, abusive or otherwise objectionable. You are solely responsible for all User Information and all other content and information that you collect, upload, store, share, maintain or transmit through the Service. In addition to the other restrictions outlined in these Terms, you agree that you will not:

  • Use the Service for any purpose that is illegal, beyond the scope of its intended use, or otherwise prohibited in these Terms or the terms of any third party that govern a particular feature of the Service (including without limitation Professional Monitoring or any Additional Service);

  • Use the Service in any manner that could interfere with, disrupt, negatively affect, or inhibit other Users from fully utilizing the Service, or that could damage, disable, overburden, or impair the functioning of the Service in any manner;

  • Remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service;

  • Send any unsolicited or unauthorized advertising, spam, solicitations, or promotional materials;

  • Use any robot, spider, crawler, scraper, or other automated means or interface not provided by us to access the Service or to extract data;

  • Reverse engineer any aspect of the Service or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any area, content, or code of the Service;

  • Use or attempt to use another User’s account without authorization;

  • Attempt to circumvent any content-filtering techniques we employ, or attempt to access areas or features of the Service that you are not authorized to access;

  • Attempt to indicate in any manner that you have a relationship with us or that we have endorsed you or any products or services without our express written consent to do so;

  • Engage in any harassing, intimidating, predatory, or stalking conduct;

  • Create false identities or impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;

  • Buy, sell, rent, lease, or otherwise offer in exchange for any compensation, access to your Account or another User’s User Information without our prior written consent; or

  • Develop any third-party applications that interact with User Information or the Service without our prior written consent.

 

Your License to Use the Service

Subject to these Terms, you are hereby granted a non-exclusive, limited, revocable license to: (i) use the Service for your personal use only; and (ii) use the Applications and Devices only in connection with the Service. KonnectONE may terminate this license at any time for any reason or no reason. All licenses granted to you in these Terms are conditional on your continued compliance these Terms and will immediately and automatically terminate if you do not comply with any term or condition of these Terms.

 

Your Use of the Applications

We may make Applications available to access the Service via a mobile phone and/or other devices. To use the Applications, you must have a device that is compatible with the Applications and KonnectONE does not warrant that the Applications will be compatible with all devices. You may use mobile data in connection with the Applications and may incur additional charges from your wireless provider. You agree that you are solely responsible for any such charges.

 

You acknowledge that KonnectONE may from time to time issue upgraded versions of the Service and may automatically upgrade the version of the Applications that you are using. You hereby consent to such automatic upgrading and agree that all terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Applications is subject to the applicable open source or third-party software license, if any, authorizing use of such code. The foregoing license grant is not a sale of the Applications or any copy thereof, and KonnectONE or its third-party partners or suppliers retain all right, title, and interest in and to the Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. KonnectONE and its third-party partners and suppliers reserve all rights in the Service not expressly granted under these Terms.

 

If the Applications are being acquired on behalf of the United States Government, then the following provision applies. The Applications will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms and is prohibited except to the extent expressly permitted by these Terms. The Applications originate in the United States and are subject to United States export laws and regulations. The Applications 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 Applications may be subject to the import and export laws of other countries.

 

Your Account

Your account (“Account”) gives you access to the Service. You may never use another User’s Account without permission. When creating your Account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your Account, and you must keep your Account password secure. You must notify us immediately of any breach of security or unauthorized use of your Account. We will not be liable for any losses or damage caused by any unauthorized use of your Account.

 

You may control your Account and how you interact with the Service by changing the settings in the Application. By providing us with your email address and telephone number you consent to the use of your email address or telephone to send Service-related notices or messages, including any notices required by law, in lieu of communication by postal mail. We and our service providers may use your email address or telephone number to send you other messages, such as changes to features of the Service and special offers.

 

Text Messaging

The Moxee Signal Device is a personal alert device and will use short code 38127 to send Check-in Alerts, Yellow Alerts and Red Alerts to trusted contacts of the Device User. The Account Subscriber will invite trusted contacts via the app menu and provide the phone number of the contact(s) the Subscriber wants to invite. By creating an Account, you agree that the Service may send you informational text (SMS) messages as part of the normal function of your use of the Service. You, and each of your trusted contacts, may opt-out of receiving text (SMS) messages at any time by texting the word STOP from the mobile device receiving the messages to 38127. This will cancel the receipt of text messages. You will receive one additional SMS message to confirm your opt-out. At any time, you can text HELP to 38127, the short code for the Service. You acknowledge that opting out of receiving text (SMS) messages may impact your and your trusted contact’s use of the Service. Stopping text messages does not stop email Alerts. Message frequency varies by User. Message and Data Rates may apply.

 

Carriers: Supported carriers include all major United States carriers including AT&T, T-Mobile®, Verizon Wireless, Sprint, Boost, U.S. Cellular®, MetroPCS®, InterOp, Cellcom, C Spire Wireless, Cricket, Virgin Mobile and others. The Released Parties, T-Mobile and other carriers are not liable for delayed or undelivered messages. For more information, email Moxee Customer Care at support@moxee.com.

 

Ownership of the Service and Content

Except for User Information, the Service and all materials therein or transferred thereby, including, without limitation, Content, all Software made available to Users on the Service or used to provide and operate the Service, and all Intellectual Property Rights related thereto, are the exclusive property of KonnectONE and its licensors (including other Users who post User Information to the Service).

 

Except as explicitly provided herein, nothing in these Terms will be deemed to create a license in or under any Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Content. Use of the Content for any purpose not expressly permitted by these Terms is strictly prohibited.

 

You may choose to submit suggestions, comments or ideas about the Service, including without limitation about how to improve the Service (“Suggestions”). By submitting any Suggestion, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place KonnectONE under any fiduciary or other obligation, and that we and our licensors and suppliers are free to use the Suggestion without any additional compensation to you, and/or to disclose all Suggestions on a non-confidential basis to anyone. You further acknowledge that, by acceptance of your Suggestion, KonnectONE does not waive any rights to use similar or related ideas previously known to KonnectONE, or developed by its employees, or obtained from sources other than you.

 

All trademarks, service marks, product names or logos mentioned in the Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by KonnectONE.

 

Your Agreement Not To Assert or Advise Others

You agree, during the term of your Account and for five (5) years following any termination or expiration, you will not initiate (or encourage any third party to initiate), nor will you authorize, assist, counsel, advise or act as an expert in any action asserted against KonnectONE, Wearsafe Labs LLC, or any of our respective affiliates, Users, vendors, distribution partners, resellers, or licensors, any patent infringement claim regarding the Service.

 

Modifications to the Service

We reserve the right to modify or discontinue, temporarily or permanently, the Service or any features or portions thereof without prior notice. You agree that we will not be liable for any modification, suspension, or discontinuance of the Service or any part thereof.

 

Advisories

The Service may from time to time provide automatic advisories and Account-related advisories. Automatic advisories are sent to you following certain changes made online to your Account, such as a change in your registration information. Although you may have the option to suppress some of these automatic advisories, we strongly recommend that you do not. We may add new advisories from time to time, or cease to provide certain advisories at any time upon our sole discretion. Electronic advisories may be sent to the email address or telephone number you have provided. If your email address or telephone number changes, you are responsible for informing us of that change.

 

Advisory Disclaimer

You understand and agree that any Alerts, advisories, notifications, communications or messages provided to you, by you or on your behalf through the Service may be delayed or prevented by a variety of factors. We neither guarantee the delivery nor the accuracy of the content of any such message.

 

YOU AGREE THAT THE RELEASED PARTIES WILL NOT BE LIABLE FOR: ANY DELAYS, FAILURE TO DELIVER, OR MISDIRECTED DELIVERY OF ANY SUCH MESSAGES; FOR ANY ERRORS IN THE CONTENT OF A MESSESSAGE; OR FOR ANY ACTIONS TAKEN OR NOT TAKEN BY YOU, ANY RELEASED PARTY OR ANY OTHER THIRD PARTY IN RELIANCE ON OR IN CONNECTION WITH A MESSAGE.

 

Professional Monitoring Services

The Service, including Professional Monitoring, is not a substitute for 911, and all Professional Monitoring is performed by a licensed third-party provider. As described below, neither KonnectONE nor Wearsafe Labs assumes any responsibility for Professional Monitoring Services.

 

General Service Warranty Disclaimer

THE SERVICE AND THE CONTENT ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. KONNECTONE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL ALWAYS BE SECURE OR ERROR-FREE, THAT THE SERVICE WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS, THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, THAT THE SERVICE OR THE CONTENT ARE ACCURATE, COMPLETE, RELIABLE OR CURRENT, OR THAT THE SERVICE OR THE CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE, INCLUDING ANY PROFESSIONAL MONITORING OR ADDITIONAL SERVICES AS DEFINED HEREIN OR ANY HYPERLINKED WEBSITE OR SERVICE, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

 

Waiver, Limitation of Liability, Indemnity

Without limitation of any of the foregoing disclaimers, you hereby waive and will not assert any claims, allegations, complaints or causes of action of any nature whatsoever against the Released Parties arising out of, or in any way relating to, use of the Service or the Content.

 

YOU UNDERSTAND AND ACKNOWLEDGE THAT: (I) NO RELEASED PARTY IS AN INSURER OF PERSON, LIFE, LIMB, OR PROPERTY AND THAT INSURANCE, IF ANY, COVERING PERSONAL INJURY, LIFE LOSS, AND PROPERTY LOSS OR DAMAGE WILL BE OBTAINED BY YOU IN SUCH AMOUNTS AND COVERING SUCH PERILS AS YOU MAY DETERMINE IN YOUR SOLE DISCRETION; (II) YOUR USE OF THE CONTENT AND THE SERVICE IS AT YOUR OWN RISK; (III) THE AMOUNT YOU PAY FOR THE SERVICE IS BASED ONLY ON THE VALUE OF THE SERVICE PROVIDED AND NOT ON THE VALUE OF ANY PROPERTY OR ITS CONTENTS; (IV) IT IS DIFFICULT TO DETERMINE IN ADVANCE THE VALUE OF ANY PROPERTY THAT MIGHT BE LOST, STOLEN OR DESTROYED IF THE SERVICE FAILS TO OPERATE PROPERLY; (V) IT IS DIFFICULT TO DETERMINE IN ADVANCE HOW FAST EMERGENCY RESPONDERS WILL RESPOND AND RELEASED PARTIES BEAR NO RESPONSIBILITY FOR EMERGENCY RESPONSE; AND (VI) IT IS DIFFICULT TO DETERMINE IN ADVANCE THE DAMAGES THAT WOULD BE PROXIMATELY CAUSED BY A FAILURE TO PERFORM, ANY NEGLIGENCE IN PERFORMANCE, OR A FAILURE OF THE SERVICE.

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ANY RELEASED PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, CONSORTIUM OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE.

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RELEASED PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY: (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) LIFE LOSS, BOLDILY INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM EITHER (A) YOUR ACCESS TO OR USE OF THE SERVICE OR (B) THE ACTIONS OR ACTIONS NOT TAKEN BY THE RELEASED PARTIES OR ANY THIRD PARTY IN CONNECTION WITH THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS, ANY ACCOUNT AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER INFORMATION OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.

 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LIABILITY OF THE RELEASED PARTIES TO YOU, YOUR SUCCESSORS AND PERMITTED ASSIGNS FOR DAMAGES OR OTHER MONETARY RELIEF WILL BE LIMITED IN THE AGGREGATE TO AMOUNTS ACTUALLY PAID FOR THE SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE CLAIM FIRST AROSE. IN NO EVENT WILL THE RELEASED PARTIES BE RESPONSIBLE FOR ANY AMOUNTS THAT CANNOT BE ATTRIBUTED TO DIRECT AND ACTUAL DAMAGES.

 

THIS LIMITATION OF LIABILITY SECTION WILL BE THE SOLE AND EXCLUSIVE REMEDY AND APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, MALPRACTICE, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF A RELEASED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

 

Indemnity

You agree to defend, indemnify and hold harmless the Released Parties, from and against any and all claims, causes of action, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees and costs) arising from: (i) your or any User’s use of and access to the Service, including any data, Alerts, Content or other Content transmitted or received by you; (ii) your or any User’s violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) your or any User’s violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your or any User’s violation of any Applicable Law, rule or regulation; (v) any claim or damages that arise as a result of any of User Information or any that is submitted via your Account; or (vi) any other party’s access and use of the Service with your unique login, password or other appropriate security code.

 

Note to International Users

We make no representations that the Service is appropriate or available for use in locations outside of the United States. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all Service are solely directed to individuals, companies, or other entities located in the United States.

 

Governing Law

You agree that: (i) the Service will be deemed solely based in the State of Washington, USA; and (ii) the Service will be deemed a passive one that does not give rise to personal jurisdiction over any of the Released Parties, either specific or general, in jurisdictions other than Washington. These Terms will be governed by the internal substantive laws of the State of Washington, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in King County, Washington for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of Intellectual Property Rights, as set forth in the Arbitration provision below.

 

If you are a federal, state, or local government entity in the United States using the Service in your official capacity and legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you. For such U.S. federal government entities, these Terms and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of Washington (excluding choice of law).

 

Arbitration

READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF UNDER THESE TERMS.

 

In the unlikely event that we have not been able to resolve a dispute with you after 60 days following notice of the dispute, we each agree to resolve any claim, dispute, or controversy (excluding any claims we may bring for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof, including without limitation federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation or any other legal theory (collectively, “Claims”), by binding arbitration in accordance with and subject to the consumer arbitration rules of the American Arbitration Association (AAA) by one arbitrator (except that you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis). The arbitration will be conducted in King County, Washington, unless we agree otherwise. Each party will be responsible for paying any filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator will include costs of arbitration, reasonable attorneys’ fees for prevailing parties and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the value of the relief sought is $10,000 or less, you or we may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and us subject to the discretion of the arbitrator to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or we may attend by telephone, unless the arbitrator requires otherwise. Any settlement offer made by you or us, or the content of any settlement discussions between us, will not be disclosed to the arbitrator.

 

The arbitrator(s) will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator will not be bound by rulings in prior arbitrations involving different Users, but is/are bound by rulings in prior arbitrations involving the same User to the extent required by applicable law. The award of the arbitrator will be final and binding, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Nothing in this Section will be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to protect any of our or our third-party partners’ or suppliers’ proprietary interests.

 

Prohibition of Class and Representative Actions and Non-Individualized Relief

ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.

 

YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND KONNECTONE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

 

Miscellaneous

These Terms, along with the KonnectONE Privacy Policy, constitute the entire agreement between you and KonnectONE and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of these Terms. Nothing herein will be deemed to constitute you and KonnectONE as partners, joint venturers, or principal and agent.

 

You acknowledge and agree that each of the Released Parties (and their successors and assigns) are intended third-party beneficiaries of these Terms and that, upon your acceptance of the terms and conditions of these Terms, each Released Party will have the express right (and will be deemed to have accepted the right) to enforce these Terms against you. Furthermore, each Released Party will enjoy the same benefits as does KonnectONE with respect these Terms as a third-party beneficiary thereof, including but not limited to those terms pertaining to disclaimers, waivers, limitations of liability and indemnification. Except as expressly stated herein, there are no other third-party beneficiaries to these Terms.

 

The following applies to any Applications you acquire from the iTunes Store (“iTunes-Sourced Software”):

You acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the iTunes-Sourced Software, 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 as relates to your license of the iTunes-Sourced Software against you as a third-party beneficiary thereof.

Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.

Notices to KonnectONE must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to you may be sent to the applicable Account email address or via SMS or push notification and are deemed given when sent. Notices to KonnectONE must be sent to KonnectONE LLC, attn. Legal Department, 40 Lake Bellevue Drive, Suite 350, Bellevue, WA 98005

 

A waiver of any default is not a waiver of any subsequent default.

 

You may not assign or transfer these Terms or any rights or obligations under these Terms without the written consent of KonnectONE. KonnectONE may assign these Terms, any of its rights and delegate any of its duties to any party at any time without providing notice to you. Any other attempt to transfer or assign is void.

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