THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
This End User License Agreement (“Agreement”) is between TALK-A-PHONE SERVICE CO., LLC, a Delaware limited liability company (“Provider”) and the person or entity (“User”) that uses the Talk-A-Phone emergency response application (the “Application”). By using the Application or clicking the “I AGREE” button, Users acknowledge that they have read this Agreement, understand it, and agree to be bound by the Agreement. If you do not agree to all of the terms set forth in this Agreement you are not authorized to use the Application and should exit from the Application immediately.
NOT A REPLACEMENT FOR 911 EMERGENCY SERVICES. The Service is not a replacement for 911. Even if User’s mobile device and the Application has cellular service, there are still many variables that Provider has no control over and Provider does not and cannot guarantee that data will be transmitted promptly. If you are in immediate danger or are the victim of a crime, you should call 911 or the appropriate law enforcement personnel and not rely on Providers services.
- Use of the Service. The “Service” is the provision of the mobile safety Application and a related cloud-based website service for public safety officials and Users. The Service enables Users to signal for help, take photos and videos of crime tips and report them, set a safety timer and more. Provider grants User a personal, non-exclusive, non-commercial, non-transferable license to download, install and use the Service on any mobile device that User owns or have rights to use with such download and use only in accordance with these Terms and Conditions, which may be modified at any time at the sole discretion of Provider without any obligation to provide Users with notice. User’s access and license may be subject to an agreement between Talk-A-Phone and User’s organization, and User agrees to be subject to all licenses and other requirements under an applicable agreement with User’s organization.User is responsible for its internet connection and all information technology infrastructure (including computers, software, hardware, databases, electronic systems and networks) that are necessary to access and use the Services.
- Ownership. Except for your personal information, the Service and all materials therein, including, without limitation, software, text photos, graphics, logos, intellectual property, audio and video are the exclusive property of Provider and its licensors (If any) (the “Provider Content”). Users agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, adapt, publish, edit or create derivative works from any Provider Content. Use of the Services for any purpose not expressly permitted by this Agreement is strictly prohibited. Users may choose, or Provider may periodically ask Users to submit ideas and comments about the Service, including, without limitation, how to improve the service. By submitting any idea, User agrees that your disclosure is without restriction, gratuitous and will not place Provider under any obligation. If you provide Provider with any ideas whether orally, in writing, or in any other way, you grant Provider a non-exclusive, worldwide, royalty-free, sub-licensable and non-revocable license to develop, make, have made, reproduce, modify, make derivative works of, sell, and offer to sell such ideas as part of Providers Services. Provider is free to use the idea without any additional compensation to you, and/or to disclose the idea on a non-confidential basis to anyone. You further acknowledge that, by acceptance of your submission Provider does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than you.
- Prohibited Activities. Except as otherwise expressly permitted under this Agreement, User shall not, either directly or indirectly:
- Copy the Services, Application or content, in whole or in part.
- Modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Services.
- Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services to any person or entity, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service.
- Reverse engineer, disassemble, decompile, decode or adapt the Services, the Applications, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part.
- Access or attempt to access the Services by any means other than the interface provided or authorized by Provider.
- Bypass or breach any security device or feature used for or contained in the Services.
- Remove, alter, or obscure any warranties, disclaimers, intellectual property notices or other symbols, notices, marks or serial numbers on or relating to the Services.
- Use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any person or entity, or that violates any applicable law.
- Use the Services for purposes of: (i) benchmarking or competitive analysis of the Services; (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to Provider’s detriment or commercial disadvantage.
- Violate applicable law through the use of the Services.
- Use or submit any offensive content including, without limitation, obscene language, obscene references, obscene images, threatening or harassing messages, discriminatory actions, messages, or images, and defamatory statements.
- Submit or post any false, misleading, or fraudulent statements or content.
- Engage in activity that is unauthorized advertisements or promotions, including unauthorized solicitation of other users.
- Collect personal information of other users of the Services without that user’s consent.
- Engage in activity that compromises the Services (such activity may include, without limitation, hacking, IP attacks, worms, viruses, spamming, phishing, cancel bots, Trojan horses, mail bombing or crashing, or introducing malware).
- Engage in any activity designed to impede the use of the Services by other users, including overloading and flooding.
- Access the Services by means of automated process, spiders, bots, or similar device.
- Use any data mining or similar data gathering and extraction methods in connection with the Services.
- Use the Services in any manner that is not expressly permitted by this Agreement.
- Eligibility. The Service is available only to individuals who are at least 14 years old and have otherwise achieved the age of adulthood in the applicable jurisdiction so as to be able to legally enter into this agreement. You represent and warrant that if you are an individual, you are of legal age to form a binding contract, and that all registration and other information you submit or provide to Provider is accurate and truthful. Provider may, at its sole discretion, refuse to offer the Service to any person or entity. This provision is void where prohibited by law and the right to access the Service is revoked in such jurisdictions. Provider may change its eligibility criteria at any time.
- DISCLAIMER OF WARRANTIES; EXCLUSION OF WARRANTY. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. USER ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICE IS AT USER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, ACCURACY AND PERFORMANCE, IS WITH USER. USER ACKNOWLEDGES THAT USE OF THE APPLICATION IS NOT A SUBSTITUTE FOR USER’S GOOD JUDGMENT AND THAT USER ASSUMES ANY AND ALL RISK ARISING FROM OR RELATED TO ANY SITUATION, EVENTS OR LOCATIONS IN WHICH USER PLACES HIMSELF/HERSELF WHEN USING OR ACCESSING THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO APPLICATION AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OR REPRESENTATIONS OF ANY KIND. USER UNDERSTANDS AND AGREES THAT THERE IS NO GUARANTEE THAT THE SYSTEM WILL FUNCTION AS INTENDED, THAT ALL THE FUNCTIONALITY OR ANY FUNCTIONALITY WILL BE OPERATIONAL AT ALL TIMES. PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE APPLICATION WILL ALWAYS OR EVER BE OPERATIONALLY AVAILABLE, AND USER ACKNOWLEDGES SUCH. USER RECOGNISES THAT THERE ARE NUMEROUS FACTORS OUTSIDE OF PROVIDERS CONTROL, INCLUDING BUT NOT LIMITED TO GPS ACCURACY, CELLULAR SIGNAL STRENGTH, CONDITION OF A WIRELESS DEVICE, MOBILE PROVIDER, DEVICE OPERATING SYSTEM AND POWER OUTAGES. PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR VALIDITY OF ANY SERVICES, WILL BE FREE FROM INTERRUPTIONS, ERRORS OR BUGS, OR HARMFUL OR DANGEROUS CODE. TO THE MAXIMUM EXTENT ALLOWED BY LAW, PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER AND DISCLAIMS ALL SUCH WARRANTIES, INCLUDING EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS RELATING TO THE APPLICATION.
- LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, PROVIDER DISCLAIMS ANY AND ALL LIABILITY OF ANY KIND FOR THE CONSEQUENCES OF USING THE APPLICATION OR THE FAILURE OF THE APPLICATION TO PRODUCE ANY INTENDED BENEFIT. EXCEPT AS SPECIFICALLY PROVIDED HEREIN AND TO EXTENT ALLOWABLE UNDER THE LAW, USER AGREES TO WAIVE, AND NEITHER PROVIDER NOR USER’S ORGANIZATION, PROVIDER AFFILIATES, AGENTS OR RESELLERS SHALL BE LIABLE FOR, ANY CLAIM, DEMAND, ACTION, COSTS, EXPENSE OR DAMAGES ARISING FROM OR RELATING TO THE USER’S USE OF OR ACCESS TO THE SERVICE AND ANY PERSONAL INJURY OR PROPERTY DAMAGE SUFFERED BY USER WHILE USING THE APPLICATION. NEITHER PARTY SHALL HAVE LIABILITY TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, LOST PROFITS OR OTHER NON-DIRECT DAMAGES UNDER THIS AGREEMENT AND PROVIDER SHALL HAVE NO LIABILITY OF ANY KIND TO USER FOR THE CONSEQUENCES OF USING THE APPLICATION OR THE FAILURE OF THE APPLICATION TO PRODUCE ANY INTENDED BENEFIT. THE PARTIES AGREE THAT IN NO EVENT SHALL PROVIDER’S TOTAL LIABILITY TO USER UNDER THIS AGREEMENT EXCEED $100.
- Termination. This Agreement may be terminated immediately if User breaches any term of this Agreement. Provider may terminate this Agreement at any time or restrict or prevent User from accessing or using the Application at any time, for any reason or no reason at all, without providing any notice whatsoever to User. Provider may also terminate the Agreement and License in the event that the Agreement with User’s Organization is terminated. User may terminate this Agreement at any time by notifying Provider in writing. Upon termination of this Agreement, the license granted herein to User and User’s access to the Services shall immediately cease and User shall immediately cease all use of the Services and remove all copies of the Services and any related code from all electronic devices.
- Governing Law. You agree that the Service shall be deemed solely based in Delaware; and the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Talk-A-Phone, either specific or general, in jurisdictions other than Delaware. This Agreement shall be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. You agree to submit to the personal jurisdiction of the federal and state courts located in Delaware 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 our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below.
- Arbitration. For any dispute with Talk-A-Phone, you agree to first contact us via email and attempt to resolve the dispute with us informally. In the event that Talk-A-Phone is not able to resolve a dispute, both parties agree to resolve any claim, controversy or dispute (not including Talk-A-Phone’s claims for injunctive relief) in connection to this agreement using binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. The arbitration will be conducted in Illinois unless you and Talk-A-Phone agree otherwise. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees 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. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that party’s data security, Intellectual Property Rights, or other proprietary rights. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHERMORE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION.
- Copyright Owners. Important – Copyright Infringement Notice. Provider respects the intellectual property of others. Provider reserves the right, in appropriate circumstances and at its discretion, to terminate the accounts of users who infringe the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact the licensing manager, providing the information requested below. if we find that there is infringement upon your property, we will remove the material in question immediately.
- an electronic or physical signature of the person authorized to act on behalf of the copyright owner;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the material that you claim is infringing is located on our website;
- your address, telephone number, or email address so we can contact you;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the information in your notice to us is accurate and you are the copyright owner or authorized to act on the copyright owner’s behalf.
Provider’s agent for notice of claims of copyright infringement on the Services can be reached as follows:
- Severability. In the event that any one or more of the provisions of this Agreement are held to be invalid or otherwise unenforceable, the enforceability of the remaining provisions shall be unimpaired and enforced to the full extent permitted by law.
- Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
- Assignment. User may not assign this Agreement, or any rights or licenses granted to User under this Agreement without Talk-A-Phone’s prior written consent. Talk-A-Phone may assign this Agreement at any time in its sole discretion.
- Force Majeure. Neither party will be liable for failure to perform or delay in performance of any obligation under this Agreement if such failure or delay is due to fire, flood, earthquake, war (declared or undeclared), commercial impracticability, embargo, blockade, legal prohibition, governmental action, insurrection, damage, destruction or any other cause beyond the reasonable control of such party.
- Entire Agreement. This Agreement contains the entire agreement between Talk-A-Phone and User with respect to the subject matter hereof and supersedes and replaces any prior agreements between the parties with respect to such subject matter.