Terms of Service for Wearsafe
Effective Date: March 25, 2021
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.
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: (i) immediately for those who become Users after the notification is posted, or (ii) 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:
“User” means any Subscriber and all visitors and other persons 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, your students, employees, contractors and agents.
“Wearsafe”, “we”, “us” “our” and terms of similar meaning means Wearsafe Labs LLC. “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.
Individual purchasers of the Service are referred to as “Individual Subscribers” and company, institution or other legal entity purchasers of the Service are referred to as “Institutional Subscribers” (Individual Subscribers and Institutional Subscribers, collectively, “Subscribers”).
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 the “Devices.”
We refer to professional monitoring services, which may be provided to a User by a third party, as “Professional Monitoring.”
We refer to insurance and protection products and services, which may be provided to a User by a third party as “Additional Services.”
The Software, the Applications, Professional Monitoring, Additional Services and the Devices are collectively referred to as the “Service.”
The term “Released Parties” means Wearsafe Labs LLC, any provider of Professional Monitoring or Additional Services, and each of their respective affiliates, employees, officers, directors, agents, brokers, third party administrators, users, vendors, sponsors, contractors, advertisers, device manufacturers, distributors, resellers, retailers, business partners, licensors, professional monitoring operators and all other individuals, municipalities, agencies or entities providing aid or assistance (medical or otherwise) in connection with the Service, or any of the successors or assigns of the foregoing.
Your Personal Information; Security
In order to use the Service or create an Account you must enter and provide certain personal information (“User Information”). As a condition of using the Service or creating an Account, you acknowledge that you have read the Privacy Policies referenced herein and fully consent to the collection, storage, use and disclosure of personal information and other data as described in such policies.
Your Ownership of Your User Information
WWe claim no ownership rights over User Information. The User Information you create 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. Wearsafe 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 individuals rendering aid or assistance; (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; (vii) contains any information or content that you do not have a right to make available under any 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 of the Service.
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 law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights. Wearsafe 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 shall be solely responsible for your User Information and the consequences of publishing it, and you agree that we are only acting as a passive conduit for your transmission of your User Information. You understand and agree that you may be exposed to User Information that is inaccurate, objectionable, inappropriate, or otherwise unsuited to your purpose.
Our License to Use Your User Information
Restrictions on Your Use of the Service
You agree to comply with all applicable laws and regulations in connection with your use of the Service, including, but not limited to, all-party consent laws applicable to the recording of conversations. 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 their intended use, or otherwise prohibited in these Terms or the terms of any third party that govern a particular feature of the 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 only in connection with the Service. Wearsafe 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 and/or other device. To use the Applications, you must have a device that is compatible with the Applications and Wearsafe 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 Wearsafe 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 consent to such automatic upgrading and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Applications is covered by 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 Wearsafe or its third-party partners or suppliers retain all right, title, and interest in 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. Wearsafe 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 (“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 User profile 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.
By creating an Account, you agree that the Service may send you informational text (SMS) messages as part of the normal business operation of your use of the Service. You may opt-out of receiving text (SMS) messages at any time by texting the word STOP for the Service from the mobile device receiving the messages. You will receive one additional SMS message to confirm your opt-out. At any time, you can text HELP to the short code for the Service. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Service.
Ownership of the Service and Content
Except for User Information, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Information belonging to other Users (the “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 Wearsafe and its licensors (including other Users who post User Information to the Service). “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. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such 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 Wearsafe 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, Wearsafe does not waive any rights to use similar or related ideas previously known to Wearsafe, 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 Wearsafe.
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 Wearsafe, 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.
The Service may from time to time provide automatic alerts and Account-related alerts. Automatic alerts 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 alerts, we strongly recommend that you do not. We may add new alerts from time to time, or cease to provide certain alerts at any time upon its sole discretion. Electronic alerts 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.
You understand and agree that any alerts, 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 alert.
YOU AGREE THAT THE RELEASED PARTIES SHALL NOT BE LIABLE FOR ANY DELAYS, FAILURE TO DELIVER, OR MISDIRECTED DELIVERY OF ANY ALERT; FOR ANY ERRORS IN THE CONTENT OF AN ALERT; 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 AN ALERT.
Professional Monitoring Services
The Service, including Professional Monitoring, is not a substitute for calling Emergency Services or 911 and all Professional Monitoring is performed by a licensed third-party provider.
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. WEARSAFE 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 ADDITIONAL SERVICE 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 SERVICE.
Waiver, Limitation of Liability, Indemnity
Without limitation of any of the foregoing disclaimers, you hereby waive and shall 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 SHALL BE OBTAINED BY YOU IN SUCH AMOUNTS AND COVERING SUCH PERILS AS YOU MAY DETERMINE; (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 INDIVIDUALS RENDERING AID OR ASSISTANCE WILL RESPOND; 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 SHALL ANY RELEASED PARTY BE LIABLE FOR ANY 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 SHALL 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 SHALL 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 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
You agree to defend, indemnify and hold harmless the Released Parties, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data, Alerts, or other content transmitted or received by you; (ii) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your 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.
You agree that: (i) the Service shall be deemed solely based in Connecticut; and (ii) the Service shall 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 Connecticut. These Terms shall be governed by the internal substantive laws of the State of Connecticut, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidences a transaction involving interstate commerce. 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 Hartford County, Connecticut 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 copyrights, trademarks, trade secrets, patents, or other Intellectual Property or proprietary 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 Connecticut (excluding choice of law).
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, 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 International 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 Hartford County, Connecticut, 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 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. 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 shall 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 shall 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 shall 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 shall 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 shall 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 WEARSAFE 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.
These Terms constitute the entire agreement between you and Wearsafe with respect to the subject matter of these Terms 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 shall be deemed to constitute you and Wearsafe 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 shall enjoy the same benefits as does Wearsafe 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 Wearsafe 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 Wearsafe must be sent to Wearsafe Labs LLC, attn. Legal Department, 1429 Park Street, Suite 205, Hartford, CT 06016
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 Wearsafe. Wearsafe 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.