PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
In addition, when using the Product, you agree to abide by any applicable federal, state and local laws, posted guidelines or notices which may change from time to time. Security5 may modify, amend, or update this Agreement at any time by posting the amended terms at www.onalert24-7.com/eula-text-calling/ or upon updates to the App. Your continued use of the Product shall confirm your acceptance of the updated terms. Should you object to any term or condition of this Agreement, any guidelines, or any subsequent modifications thereto, your only recourse is to immediately discontinue use of the Product. This Agreement defines the terms and conditions that govern your use of the Product.
IMPORTANT: NOT A REPLACEMENT FOR 911. IF YOU ARE IN IMMEDIATE DANGER, ARE SUFFERING A MEDICAL EMERGENCY OR ARE THE VICTIM OF A CRIME, CALL 911 AND/OR THE APPROPRIATE AUTHORITIES IMMEDIATELY AND DO NOT RELY ON THE PRODUCT. The Device, if used, is intended to send an alert to the App on your smartphone using Bluetooth communication to initiate the transmission of SMS messages, MMS messages, email messages, or other messages (collectively, “Text Messages”) to a person or persons of your choosing (“Contacts”) using the Service. Furthermore, the App on your smartphone may be used to initiate the sending of automated voice messages (“Automated Messages”) to your Contacts using the Service. Additionally, the App itself may be used to initiate the transmission of Text Messages to your Contacts as well as to send Automated Messages, each a part of the Service. The Product does not assure that Text Messages, Automated Messages, or both have been sent or received. The Product is not medical equipment and it does not provide you with medical assistance. The Product does not call or initiate calls to 911 or any other emergency service center. The Product does not make or receive any phone calls. Even if your smartphone and App have connectivity, Security5 cannot and does not guarantee and has no control over whether your Text Messages or Automated Messages will be delivered real-time, delivered at all or accessed by or responded to by any recipient. The Device does not work under water. The Product does not work if your smartphone is out of network range.
IN NO EVENT DOES THIS AGREEMENT CREATE A DUTY TO RESCUE.
THIS PRODUCT MAY ONLY BE USED WITHIN THE UNITED STATES OF AMERICA AND ITS TERRITORIES TO SEND TEXT MESSAGES OR AUTOMATED MESSAGES TO MOBILE DEVICES OR PHONE NUMBERS WITHIN THE UNITED STATES OF AMERICA AND ITS TERRITORIES.
- ACCESS TO MOBILE NETWORK
You acknowledge that the Product does not come with any cellular or wireless service plan, data plan or other Internet connectivity services (each, a “Service Provider”). You are solely responsible for ensuring that your smartphone is compatible with the Product, is properly functioning, and has access to a Service Provider. Check with your Service Provider for compatibility and mobile data plan availability. You agree that Security5 has no responsibility for: (i) the provision of cellular data services; (ii) wireless services or other Internet connectivity services; or (iii) the terms under which Service Providers may offer those services. Service Providers may charge you or your recipients for SMS or MMS messages, calls, data or location services and other fees that Security5 does not control. You understand and agree that you may receive a call back from one or more of your contacts as well as from Security5’s calling system after an alert has been sent. You are solely responsible to pay any and all of these fees.
- BLUETOOTH CONNECTIVITY
The Device requires a Bluetooth 4.0 connection to connect with the App on your smartphone. The Device will not work if it is too far from your smart phone, and the App may not work if your smart phone is too far from the Device. The Device works ONLY when it is connected to and is in close proximity to your smartphone and the App is running. Furthermore, outside environmental factors, including electronic interference from other devices, may limit the maximum distance that the Device and App can connect and/or maintain a connection. Your smartphone must have location services, and these location services must be activated and available for the Product to determine your location.
3.0 Prepaid Users and Extra Fees. Your Service Provider’s standard data rates may apply to Text Messages and Automated Messages, and your use of the Product is subject to any agreements with your Service Providers and any fees they may charge, including but not limited to the fees for data services. You acknowledge that certain operators of prepaid mobile plans do not support or offer certain mobile network services, such as data plans necessary to access the Internet, to users of their prepaid services. You understand and agree that the Product may not function, in whole or in part, if you have such prepaid service and your Service Provider does not support required mobile network services.3.1 Additional Charges for Emergency Services. You are solely responsible for any charges that may be assessed by emergency responders for false Text Messages and Automated Messages, as well as in relation to search and rescue activities resulting from you or your authorized users’ transmission of a Text Message or Automated Message. Should you deliberately or negligently misuse the Product, Security5 reserves the right to assess a fee in order to recoup its costs in relation to responding to and/or acting upon such misuse. Negligent and deliberate misuse includes, but is not limited to, pressing the panic button to ‘see if it works’ or otherwise knowingly pressing the panic button to initiate an emergency response when no emergency situation exists. Should it be determined by Security5 that you have deliberately or negligently misused the Product, Security 5 may, without further notice, bill your credit card the appropriate fee and you shall be responsible to pay any such fee. Security5 shall have such other rights and remedies against you for such misuse as may be available at law, and you agree to indemnify, defend and hold Security5 and its affiliates, licensors, licensees, and suppliers and their respective directors, officers, shareholders, members, employees, representatives, and agents from any liabilities or penalties arising from such misuse.3.2 Data Transmission. Security5 makes no representation as to the success of any Text Messages or Automated Messages. Regardless of whether a Text Message or Automated Messages is successfully sent, no refunds will be given. In addition to limitations resulting from incorrect use (for example, the App is not running or the Device or App are not sufficiently close), mobile communication networks have inherent characteristics that can create dropped data transmissions resulting in dropped or delayed Text Messages and Automated Messages. Dropped Text Messages or Automated Messages, or other data transmission errors will not be credited regardless of cause. Security5 shall not be liable for any damages that may result from such dropped or delayed data transmissions, including dropped or delayed Text Messages to your contacts, failed or invalid Automated Messages, failure of Google Maps™ display and/or invalid or incomplete data. The Product cannot send Text Messages to land lines, though Automated Messages may be delivered to land lines associated with your Contacts.
3.3 Authorized Users. You are solely responsible, and assume any liability, for any user authorized by you to utilize the Product. You are also responsible for the compliance with this Agreement by your authorized users. In addition, you agree to pass usage instructions and these terms and conditions to all of your authorized users. You are responsible for use by anyone else of your Product, and you will immediately contact Security5 if your smartphone with the App and/or Device is lost or stolen, or you have reason to believe that your account with Security5 has been compromised.3.4 Content License. You agree that you are solely responsible for (and that Security5 has no responsibility to you or to any third party for) any content that you create, transmit or display while using the Product and for the consequences of your actions by doing so. You acknowledge that the Text Messages and Automated Messages may include your location information. You acknowledge and agree that by submitting, posting or displaying the content to Security5, a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, create derivative works of, translate, publish, publicly perform, publicly display and distribute any content which you submit, post or display on or through, the Product or otherwise provide to Security5. Furthermore, you agree that this license includes a right for Security5 to make such content available to other companies, organizations or individuals as required for the use of the Product, for the benefit of Security5, or as Security5, in its sole discretion, deems appropriate. In order to provide for the use of the Product, Security5 may be required to transmit or distribute your content over various public networks and in various media, and may also be required to make changes to your content if so required by the technical requirements of connecting networks, devices, services or media.
3.6 Distribution of Information: You are providing Security5 with certain information for the purpose of providing the Service. You agree that Security5, its affiliated entities, Responders and any other party named in this Agreement all may, but are not obligated to, send and receive the information contained in this Agreement or otherwise provided by you to Security5 or concerning the Service.
3.7 Geographic Restrictions. This Product may only be used and operated within the United States of America and its Territories, and Text Messages may only be sent to phone numbers associated with Mobile Devices within the United States of America and its Territories. Automated Messages may only be made to phone numbers within the United States and its Territories. Use of the App or Device outside of the United States of America and its Territories, as well as Use of the App or Device to send Text Messages outside of the United States of America and its Territories, is strictly prohibited.
3.8 Content of Messages. You are solely responsible for any data or content that you send via Text Messages or Automated Messages, including any consequences of such messaging. You shall not send any content in violation of the restrictions in this Agreement. Content within Text Messages and Automated Messages are subject to provisions of this Agreement, including without limitation a Content License from you, discussed in more detail above.
3.9 Misuse. You agree that you will not use the Product (1) to send Text Messages or Automated Messages that are offensive, defamatory, abusive or obscene or intended to harass, (2) to transmit viruses or other disabling, damaging or harmful code, (3) for any purpose in violation of law, (4) in any manner that infringes or misappropriates third party rights, (5) in any manner which overloads or unreasonably interferes with the Product, smartphone, or other system of other users, (6) or is otherwise considered excessive. You agree to use the Device only with the App and Service and not to use any other equipment in connection with Product unless expressly approved by Security5. Failure to adhere to these restrictions may result in termination of this Agreement by Security5, and Security5 may exercise all other remedies available.
3.10 Text Messages. Subject to the terms and conditions of this agreement, Security5 will provide a Service for sending Text Messages through your use of the App, and if applicable, Device. The Service for sending Text Messages is provided on an as-is, as-available basis. Upon receiving a request from the App on your smartphone, the Service will attempt to send a text message to your Contacts. These text messages may be repeated from time to time until you cancel the request.
3.11 Automated Voice Messages. Subject to the terms and conditions of this agreement, Security5 will provide a Service for sending Automated Messages through your use of the App, and if applicable, Device. The Service for sending Automated Messages is provided on an as-is, as-available basis. Upon receipt of a request from your use of the App on your smart phone, the Service will attempt to call your Contacts one at a time. If there is no answer, the Service will try the next Contact on your list. If voicemail is reached, the Service will leave a voicemail with the Automated Message, and the Service will try the next Contact on your list. If a person is reached, the Automated Message will be played to the person, and the Service will stop calling your Contacts. The Service may continue to call the Contacts on your list from time to time until it reaches a person, you cancel the request, or after a set period of time.
You agree to pay a recurring subscription fee for your use of the Product. For each recurring period, the then current subscription fee will be charged to your payment card on record with Security5 or its service provider. You agree to keep the payment card on file current. Should any subscription fee charged to the payment card fail, you may be responsible for late charges and the Services provided by Security5 are subject to cancellation, in addition to any other remedies described herein or otherwise available to Security5. You may cancel your subscription at any time by contacting the retailer from which the Product was purchased and following their instructions. Any subscription fees paid for any unused period will not be refunded, except for cancellations within the first subscription period. If you cancel within the first subscription period, you are entitled to a pro-rata refund of subscription period that was not utilized.
- GRANT OF LICENSE
- Security5 grants you a limited, non-transferable, nonexclusive license to use the Product for the above-described purposes, subject to the following conditions:
- You may use the Product subject to the terms and conditions of this license for your personal use. You may copy the App for archival purposes only and any copy you make must retain all of the original copyright and trademark notices.
- Security5 reserves the right to replace, modify or upgrade the App or Service at any time by offering you a replacement or modified version of the App or Service, and to charge for such replacement, modification or upgrade. Any such replacement, modified, or upgraded App or Service offered to you by Security5 shall be subject to the terms of this Agreement (unless this Agreement is superseded by a further Agreement accompanying such replacement or modified version of or upgrade to the App). In the event that Security5 offers a replacement or modified version of or any upgrade to the App or Service, (a) your continued use of the Product is conditioned on your acceptance of such replacement or modified version of or upgrade to the App or Service and any accompanying superseding Agreement and (b) in the case of the replacement or modified App or Service, your use of all prior versions of the App is terminated.
Except for the limited warranty provided for the Device, which can be found at www.onalert24-7.com/limited-warranty/ or as otherwise provided with the Device when purchased:THE PRODUCT IS PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND, AND SECURITY5 AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, CONDITION, DESIGN, SPECIFICATIONS, WORKMANSHIP AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT THE PRODUCT IS FREE FROM LATENT DEFECTS OR DEFICIENCIES, AND THAT THE PRODUCT IS FREE FROM INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT OR PROPRIETARY RIGHT OF ANY THIRD PARTY.
- LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT ALLOWED BY LAW, SECURITY5 IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR USE OR COST OF SUBSTITUTE GOODS INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SECURITY5 OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.TO THE MAXIMUM EXTENT ALLOWED BY LAW, SECURITY5 IS, ITS SERVICE PROVIDERS AND THEIR AFFILIATES, AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AGENTS AND SUPPLIERS HEREBY EXPRESSLY EXCLUDE AND DISCLAIM ANY LIABILITY FOR ANY DAMAGES OR CLAIMS, INCLUDING INJURY OR DEATH, AND ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, RELIANCE, EXEMPLARY OR PUNITIVE LOSS, DAMAGE, COSTS OR EXPENSES (INCLUDING LOSS OF INCOME, MEDICAL AND OTHER EXPENSES, LOSS OF GUIDANCE, CARE AND COMPANIONSHIP) WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THE USE OR NONUSE OF THE PRODUCT OR ITS USE OR THE NONUSE BY YOU OR BY ANOTHER PERSON WHETHER OR NOT AUTHORIZED BY YOU TO UTILIZE THE PRODUCT. SECURITY5, ITS SERVICE PROVIDERS AND THEIR AFFILIATES, AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AGENTS AND SUPPLIERS EXCLUDE ALL LIABILITY, WHETHER RESULTING FROM CONTRACT, TORT (INCLUDING LIABILITY FOR NEGLIGIENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE IN RESPECT OF ANY LOSS, DAMAGE, COSTS, EXPENSES OR OTHER CLAIMS RESULTING FROM THE ACTS OR OMISSIONS OF SUCH PARTIES, FOR ANY FAULTS, FAILURES OR INADEQUACIES OF THE PRODUCT, INCLUDING, WITHOUT LIMITATION:ANY FAILURE OR DELAY IN THE TRANSMISSION OF TEXT MESSAGES OR AUTOMATED MESSAGES CAUSED BY MATTERS OUTSIDE OF SECURITY5 OR ITS SERVICE PROVIDERS’ AND THEIR AFFILIATES’ REASONABLE CONTROL, WHICH SHALL INCLUDE, BUT ARE NOT LIMITED TO, OUTBREAK OF HOSTILITIES, RIOT, CIVIL DISTURBANCE, ACTS OF TERRORISM, FIRE, EXPLOSION, FLOOD, SNOW, FOG OR OTHER INCLEMENT WEATHER CONDITIONS, FAILURE OF TELECOMMUNICATIONS OR SATELLITE SYSTEMS, ELECTRICAL POWER FAILURES OR FLUCTUATIONS, SURGES IN THE ELECTRICAL MAINS OR CURRENTS, DAMAGE CAUSED BY ELECTROMAGNETIC INTERFERENCE, THEFT, MALICIOUS DAMAGE, STRIKE, LOCK OUT OR INDUSTRIAL ACTION OF ANY KIND; ORFAILURE, DELAY OR INACCURACY OF THE GPS SATELLITES IN PROVIDING LOCATION COORDINATES; ORFAILURE, DELAY OR INACCURACY OF THE APP OR DEVICE TO PROCESS AND/OR TRANSMIT DATA TRANSMISSIONS, INCLUDING TEXT MESSAGES, AUTOMATED MESSAGES AND/OR LOCATION COORDINATES; ORFAILURE OF OR DELAY IN THE DATA TRANSMISSIONS, INCLUDING BUT NOT LIMITED TO TEXT MESSAGES OR AUTOMATED MESSAGES, AND TO TRANSMIT SUCH TRANSMISSIONS TO THE IDENTIFIED RECIPIENTS; ORFAILURE OF OR DELAY IN YOUR MOBILE PHONE PROVIDER TO TRANSMIT THE REQUEST TO SECURITY5; OR
FAILURE OF OR DELAY IN YOUR SMARTPHONE TO TRANSMIT ANY DATA TRANSMISSIONS, INCLUDING WITHOUT LIMITATION TEXT MESSAGES; OR
FAILURE OF OR DELAY ON BEHALF OF THE SECURITY5 SERVICE PROVIDERS TO PERFORM THE APPLICABLE SERVICES FOR WHICH EACH IS CONTRACTED; OR
FAILURE TO PROPERLY INSTALL OR CONFIGURE THE APP; OR
FAILURE OF SECURITY5 OR ITS SERVICE PROVIDERS TO PROVIDE ANY SERVICE(S), INCLUDING TEXT MESSAGES OR AUTOMATED MESSAGES, DUE TO THE SERVICE(S) HAVING BEEN CANCELLED PURSUANT TO THIS AGREEMENT; OR
NON-COMPATABILITY OF THE APP OR DEVICE WITH YOUR SMARTPHONE OPERATING SYSTEMS AND THIRD PARTY SOFTWARE; OR
FAILURE OR INADEQUACY OF POWER SUPPLY FOR THE DEVICE AND YOUR SMARTPHONE.
IN NO EVENT SHALL THE TOTAL, MAXIMUM, AGGREGATE LIABILITY OF SECURITY5 AND ITS SERVICE PROVIDERS FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE PRODUCT OR THIS AGREEMENT EXCEED THE AMOUNTS PAID BY YOU TO SECURITY5. THE LIMITATIONS IN THIS SECTION SHALL APPLY TO ALL CLAIMS, DAMAGES, LOSSES, COSTS AND EXPENSES HOWSOEVER CAUSED AND WHETHER FOR BREACH OF CONTRACT, IN TORT, BY WAY OF NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE.
- INTELLECTUAL PROPERTY OWNERSHIP
The structure, organization, design, and code of the Product are the valuable trade secrets, confidential information, or intellectual property of Security5 and its licensors. The Product is protected by law, including without limitation U.S. Pat. No. 7,907,931, the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Product and all rights not expressly granted herein are reserved by Security5. GoogleMaps is a trademark of Google Inc. As between you and Security5, you agree that Security5 owns all intellectual property relating to the Product and/or associated software and data, and you shall not attempt to challenge the validity or enforceability of any such rights.
- THIRD-PARTY CLAIMS
In the event any claim is brought against you alleging that the Product, or your possession and use of the Product, breaches any third-party’s intellectual property rights, your sole remedy is to immediately notify Security5 in writing for a refund of the purchase price. Security5 shall not be liable for any defense, settlement, or discharge of such claim, except as provided in the preceding sentence. You agree that, in the event Security5 notifies you to immediately cease using the Product due to a third-party claim of infringement, regulatory or legal requirement or for any other reasonable purpose, you shall do so promptly. Notwithstanding anything to the contrary above, Security5’s total liability shall be limited to the purchase price of the Device.
Without prejudice to any other rights, Security5 may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement. Security5 may terminate this Agreement by offering you a superseding Agreement for the Product, or any replacement or modified version of or upgrade to the Product and conditioning your continued use of the Product or such replacement, modified or upgraded version on your acceptance of such superseding Agreement. In addition, Security5 may terminate this Agreement by notifying you that your continued use of the Product is prohibited. In the event that Security5 terminates this Agreement, you must immediately stop using the Product and destroy all copies of the Product and all of its component parts.
- EXPORT CONTROLS
Export of the Product outside of the United States of America and its territories is strictly prohibited. Furthermore, none of the Product or underlying information or technology may be downloaded, exported, or reexported into any country to which the United States (”U.S.”) has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Product, you are agreeing to the foregoing and you are representing and warranting that you are not a national or resident of, or located in or under the control of, any country subject to such export controls.
- RESTRICTED RIGHTS
The Product is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19, subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause in DFARS 252.227-7013, or subparagraph (d) of the Commercial Computer Software—Licensing at NASA FAR Supplement 16-52.227-86, or their equivalent, as applicable.
This Agreement represents the complete agreement between the parties concerning the Product, and supersedes any and all prior agreements or representations. This Agreement may only be amended by Security5 as provided for in this Agreement, or by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be governed by and construed under California law as if this Agreement had been entered into in between California residents and fully performed within California. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
Any and all unresolved disputes arising under this Agreement shall be submitted to arbitration in San Diego County, California, USA. The arbitration shall be conducted under the rules then prevailing of JAMS. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. You acknowledge that a violation of this Agreement may cause irreparable harm to Security5, and you agree that, in addition to any other remedies provided by law, Security5 shall be entitled to seek injunctive relief against any such violation in a court of competent jurisdiction without having to post a bond.