Terms of Service for Wearsafe
Last Updated: February 2017
PLEASE READ THESE TERMS OF SERVICE (“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 ACCESSING OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS AND ALL OTHER TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE INTO THESE TERMS AND TO THE COLLECTION AND USE OF YOUR INFORMATION AS SET FORTH IN THE WEARSAFE 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 SERVICES 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.
NOTE TO USERS LOCATED IN THE EUROPEAN ECONOMIC AREA (EEA) REGARDING DATA TRANSFERS: USER INFORMATION IS TRANSFERRED FROM THE EEA TO THE UNITED STATES AND OTHER COUNTRIES FOR THE PURPOSES OF MARKETING, PROVIDING SERVICES, FACILITATING TRANSACTIONS, SECURITY, CUSTOMER SUPPORT, CUSTOMER COMMUNICATIONS, CREATING, DEVELOPING, OPERATING, DELIVERING, AND IMPROVING PRODUCTS, SERVICES, CONTENT AND ADVERTISING, VERIFICATION OF IDENTITY AND DETERMINATION OF APPROPRIATE SERVICES, THE PROVISION OF DATA SERVICES TO THIRD PARTY AGENTS INCLUDING SERVICES THAT PROVIDE COMPUTING AND VARIOUS INFORMATION PROCESSING OR DEVELOPMENT SERVICES, AUDITING, DATA ANALYSIS AND DATA STORAGE. BY USING THE SERVICE AND AGREEING TO THESE TERMS IN THEIR ENTIRETY, YOU HEREBY: (I) GIVE YOUR ONGOING CONSENT THAT YOUR USER INFORMATION (AS DEFINED HEREIN) MAY BE TRANSFERRED TO COUNTRIES OUTSIDE OF THE EEA, INCLUDING TO THE UNITED STATES; (II) ACKNOWLEDGE AND UNDERSTAND THAT THE LAWS AND REGIMES PROTECTING PERSONAL DATA MAY BE LESS RIGOROUS THAN THAT IN THE EEA; AND (III) AFFIRM, REPRESENT AND WARRANT THAT YOU HAVE BEEN FULLY INFORMED ABOUT THE TRANSFER OF YOUR USER INFORMATION AND THAT YOUR CONSENT TO SUCH TRANSFER IS MADE SPECIFICALLY AND FREELY. YOU MAY WITHDRAW YOUR CONSENT FOR FUTURE TRANSFERS AT ANY TIME BY CANCELLING YOUR ACCOUNT AS SET FORTH HEREIN AND CEASING ALL FUTURE USE OF THE SERVICE.
In these Terms:“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”).
“User” means any Subscriber and all visitors, users 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.
We refer to our hosted software applications as the “Software,” our mobile and wearable device applications as the “Applications,” and our proprietary and third party manufactured hardware devices designed to operate with our Software and Applications as the “Devices.”
The Software, the Applications and the Devices are collectively referred to as the “Service.”
We 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 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; (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 Wearsafe’s 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, and you agree that Wearsafe shall not be liable for any damages you allege to incur as a result of User Information.
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;
- Compromise the security 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;
- Develop any third-party applications that interact with User Information or the Service without our prior written consent; and
We may make Applications available to access the Service via a mobile and/or other hardware 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 for these services. You agree that you are solely responsible for any such charges. Wearsafe hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Applications for one Wearsafe account for your personal use.You may not: (i) modify, disassemble, decompile or reverse engineer the Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Applications to any third party or use the Applications to provide time sharing or similar services for any third party; (iii) make any copies of the Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Applications, features that prevent or restrict use or copying of any content accessible through the Applications, or features that enforce limitations on use of the Applications; or (v) delete the copyright and other proprietary rights notices on the Applications. You acknowledge that Wearsafe may from time to time issue upgraded versions of the Applications, and may automatically electronically upgrade the version of the Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, 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 reserves all rights 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.
The following applies to any Applications you acquire from the iTunes Store (“iTunes-Sourced Software”):You acknowledge and agree that these Terms are solely between you and Wearsafe, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Services. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Wearsafe as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Wearsafe as provider of the software. You acknowledge that, in the event of any third-party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party's intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You and Wearsafe 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 the terms and conditions 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.
Your Wearsafe account (“Account”) gives you access to the Service that we may establish and maintain from time to time and in our sole discretion. 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 Wearsafe immediately of any breach of security or unauthorized use of your Account. Wearsafe 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 Wearsafe Application. By providing Wearsafe with your email address and telephone number you consent to our using the email address or telephone number to send you Service-related notices or messages, including any notices required by law, in lieu of communication by postal mail. We may also use your email address or telephone number, as described in our Privacy Policy, to send you other messages, such as changes to features of the Service and special offers.
There is no cost for an individual User to use the Service to receive an Alert (as defined below) or to be included in another individual User’s network. The ability to create custom networks of Users and to send Alerts (“Subscription Services”) requires a paid subscription. If you elect to use Subscription Services, you agree to the pricing and payment terms, as we may update them from time to time. Wearsafe may add new Subscription Services for additional fees and charges, or amend fees and charges for existing Subscription Services, at any time in its sole discretion and we will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for Subscription Services will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the Subscription Services after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the Subscription Services prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully.Paid Subscriptions can be purchased either by (1) paying a monthly subscription fee; or (2) pre-payment giving you access to the Subscription Service for a specific time period (i.e., 6 months) (a “Pre-Paid Period”). Individual Subscribers who pay a monthly fee are charged monthly, in advance for Subscription Services. Wearsafe is not responsible for any charges or expenses you incur resulting from charges billed by Wearsafe or a third party payment processor (i.e., iTunes or Google Play) in accordance with these Terms (e.g. overdrawn accounts, exceeding credit card limit, etc.). By providing a credit card number or other payment method, you authorize Wearsafe (or a third party payment processor) to continue charging the payment method for all charges due Wearsafe until the Account for the Subscription Service is settled and is terminated by either you or Wearsafe. Wearsafe reserves the right to limit the number of Accounts that may be charged to a credit card or other payment or identification method per unique user.
Individual Subscribers may cancel Subscription Services at any time; however, there are no refunds for any unused time on a subscription. Following any cancellation, however, you will continue to have access to the service through the end of your current billing period. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our Individual Subscribers ("credits"). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle an Individual Subscriber to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.
30 Day Return Policy for Purchased Wearsafe Tag Devices
If you are unsatisfied with your purchase of a Wearsafe Tag device from wearsafe.com for any reason (excluding devices provided to you at no cost in connection with the purchase of Subscription Services), you have 30 days from the date of purchase to return the device in accordance with our Return Policy, excluding any Subscription Services.
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 “Wearsafe 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 Wearsafe Content. All rights to the Service, the Content and such software are expressly reserved by Wearsafe. Use of the Wearsafe 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 Idea, 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 are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, 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.
YOU AGREE THAT WEARSAFE AND ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, USERS, VENDORS, SPONSORS, CONTRACTORS, ADVERTISERS, DEVICE MANUFACTURERS, DISTRIBUTORS, RESELLERS, RETAILERS, BUSINESS PARTNERS, LICENSORS AND ALL EMERGENCY RESPONDERS AND ALL OTHER INDIVIDUALS, MUNICIPALITIES, AGENCIES OR ENTITIES PROVIDING AID OR ASSISTANCE IN CONNECTION WITH AN ALERT, OR ANY OF THE SUCCESSORS OR ASSIGNS OF THE FOREGOING (EACH A “RELEASED PARTY” AND COLLECTIVELY 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.
General Service Warranty Disclaimer
THE SERVICE AND THE WEARSAFE 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 FROM WEARSAFE OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WHILE WEARSAFE ATTEMPTS TO PROVIDE A GOOD USER EXPERIENCE, WE CANNOT AND DO 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 WEARSAFE CONTENT ARE ACCURATE, COMPLETE, RELIABLE OR CURRENT, OR THAT THE SERVICE OR THE WEARSAFE CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
WEARSAFE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEARSAFE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND WEARSAFE 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 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 Wearsafe Content. You use the Wearsafe Content and the Service at your own risk.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WEARSAFE OR ANY OTHER 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. UNDER NO CIRCUMSTANCES WILL WEARSAFE OR ANY RELEASED PARTY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WEARSAFE AND THE RELEASED PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) BOLDILY INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS 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 OUR 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. IN NO EVENT SHALL WEARSAFE OR ANY RELEASED PARTY BE LIABLE TO YOU OR YOUR SUCCESSORS OR PERMITTED ASSIGNS IN THE AGGREGATE FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $50.00.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, MALPRACTICE, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WEARSAFE OR 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.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
FOR EU USERS, THIS SECTION DOES NOT REDUCE YOUR MANDATORY CONSUMER RIGHTS UNDER THE LAWS OF YOUR LOCAL JURISDICTION.
FOR NEW ZEALAND USERS, THIS SECTION DOES NOT EXCLUDE, RESTRICT OR MODIFY THE APPLICATION OF ANY RIGHT OR REMEDY THAT CANNOT BE SO EXCLUDED, RESTRICTED OR MODIFIED INCLUDING THOSE CONFERRED BY THE NEW ZEALAND CONSUMER GUARANTEES ACT 1993.
Indemnity
You agree to defend, indemnify and hold harmless Wearsafe and 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
Wearsafe makes no representations that the Service is appropriate or available for use in other locations. 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 United States and local 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 materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
Governing Law
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 Wearsafe, 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 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 a our 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).
Arbitration
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM WEARSAFE.
In the unlikely event that Wearsafe has not been able to resolve a dispute it has with you after 60 days, we each agree to resolve any claim, dispute, or controversy (excluding any Wearsafe claims 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, Connecticut, unless you and Wearsafe 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 Wearsafe may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Wearsafe 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 Wearsafe may attend by telephone, unless the arbitrator requires otherwise. Any settlement offer made by you or Wearsafe 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 Wearsafe Users, but is/are bound by rulings in prior arbitrations involving the same Wearsafe 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 Wearsafe from seeking injunctive or other equitable relief from the courts as necessary to protect any of Wearsafe’s 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 WEARSAFE 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.
Miscellaneous
Except as expressly stated herein, including the rights of the Released Parties, there are no other third-party beneficiaries to these Terms. You and Wearsafe 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 right (and will be deemed to have accepted the right) to enforce these Terms against you, including but not limited to those terms pertaining to disclaimers, waivers, limitations of liability and indemnification, 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 must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to you may also be sent to the applicable Account email address and are deemed given when sent. Notices to Wearsafe must be sent to Wearsafe Labs Inc. 1429 Park Street, Suite 205, Hartford, CT 06106, with a copy to the Legal Department.
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 not assign these Terms without providing notice to you, except Wearsafe may assign these Terms or any rights or obligations under these Terms to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
Except for payment obligations, neither Wearsafe nor you will be liable for inadequate performance to the extent caused by a condition that was beyond the party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
Updated February 2017