Subscriber Agreement and Terms and Conditions
In this Agreement the following definitions apply:
- “we,” “us,” “our,” and “KidGPS” mean Hoehn & Brown Technology, LLC DBA KidGPS, a Tennessee limited liability company and its affiliates;
- “you,” “your,” “customer,” and “user” mean an account holder or user with us;
- “Device” means any device, accessory or other product we sell, lease or finance to you or that is active on your account with us;
- “Service” means our offers, rate plans, options, or Devices on your account with us.
- “Services” means our offers, plans, options, or Devices on account with us.
YOUR ACCESS AND USE OF THE OUR DEVICES AND/OR SERVICES IS SUBJECT TO (1) THESE TERMS OF SERVICE, (2) YOUR AGREEMENTS WITH THIRD PARTIES, SUCH AS YOUR WIRELESS CARRIER, APP STORE/PLATFORM OR DEVICE PROVIDER AND (3) ALL APPLICABLE LAWS, RULES AND REGULATIONS. YOU MUST BE AT LEAST 18 YEARS OF AGE, THE AGE OF MAJORITY IN YOUR PLACE OF RESIDENCE TO USE THE KidGPS SERVICE. BY ACCESSING OR USING ANY OF OUR DEVICES AND/OR ANY PART OF OUR SERVICES, YOU ACKNOWLEDGE THAT YOU ACCEPT THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, YOU MAY NOT USE OUR DEVICES OR ANY PORTION OF OUR SERVICES.
The Subscription Agreement
This Subscriber Agreement (“Agreement”) is a contract under which we agree to provide and you agree to accept our Services. In addition to these Terms and Conditions of Service (“Ts&Cs”), there may be other Agreements including, but not limited to, the detailed plan or other information on Services we provide or refer you to during the sales transaction, any confirmation materials we may provide you, and Early Termination Fees if applicable. It is important that you carefully read ALL terms of this Agreement and any other Agreement you sign or accept.
Services Covered By These Ts&Cs & Additional Terms
These Ts&Cs apply to our Services Plans and any other Service we offer you that references these Ts&Cs. Additional Terms and Conditions may be applicable in the event you added services beyond our Services Plans. Also, a different dispute resolution provision will likely apply for services provided by another company, although the dispute resolution provisions in this Agreement still apply to our Services. You will be provided details on any additional terms with your selection of any of our bundled Service.
Additional Terms May Apply
Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
Reservation of Rights on Orders
We may accept, decline, or place limits on any order for any reason.
When You Accept The Agreement
You must have the legal capacity to accept the Agreement. You accept the Agreement when you do any of the following:
- sign a contract with us on paper or electronically;
- accept Agreement through an oral or electronic statement;
- purchase any KidGPS product or accessory;
- purchase our Services;
- purchase any product or service at KidGPS.us;
- attempt to or in any way use the Services;
- pay for the Services; or
- open any package or start any program that says you are accepting the Agreement when doing so.
If you don’t want to accept the Agreement, don’t do any of these things.
Our Right To Change The Agreement & Your Related Rights
We may change any part of the Agreement at any time including, but not limited to, rates, charges, how we calculate charges, or your terms of Service. We will provide you notice of changes that may impact you in a manner consistent with this Agreement (see “Providing Notice Under This Agreement” paragraph). Except as provided below, if a change we make to the Agreement is material and has a material adverse effect on you, you may terminate each Device materially affected without incurring an Early Termination Fee only if you:
- Call us within 30 days after the effective date of the change;
- and specifically advise us that you wish to cancel Services because of a material change to the Agreement that we have made.
If you do not cancel Service within 30 days of the change, an Early Termination Fee will apply if you terminate Services before the end of any applicable Term Commitment. The following, without limitation, will generally not be considered changes to the Agreement as contemplated in this provision and will not result in the waiver of applicable Early Termination Fees:
- changes to our Policies;
- changes to rates or charges that are not a core part of the rate plan package for which you contracted – for example, incidental, occasional or casual use charges and other options that do not require a Term Commitment;
- changes to Taxes & Government Fees; or
- changes to Surcharges, including assessing new Surcharges.
- late payment;
- exceeding an Account Usage Limit (“AUL”);
- harassing/threatening our employees or agents;
- providing false information;
- interfering with our operations;
- using/suspicion of using Services in any manner restricted by or inconsistent with the Agreement or applicable state or federal laws;
- breaching the Agreement, including our Policies;
- providing false, inaccurate, dated or unverifiable identification or credit information, or becoming insolvent or bankrupt;
- modifying a Device from its manufacturer specifications; or
- if we believe the action protects our interests, any customer’s interests or our network.
Your Right To Terminate Services
You can terminate Services at any time by writing and/or emailing us and requesting that we deactivate all Services. You are responsible for all charges billed or incurred prior to deactivation. If Services are terminated before the end of your invoicing cycle, we will not prorate charges to the date of termination and you will not receive a credit or refund for any unused Services. Except as provided above, you must also pay us an Early Termination Fee for each applicable Device that you terminate.
Restrictions On Using Services
You may not use our Services:
- to transmit content/messages that are, or in any manner that is, illegal, unlawful, fraudulent, threatening, abusive, defamatory, or obscene;
- in a way that could cause damage or adversely affect our customers, reputation, network, property or Services;
- to communicate any unsolicited message;
- to infringe on the copyright or trademark of another, or upload or transmit any virus, worm, or malicious code;
- in any way prohibited by the terms of our Services, the Agreement or our Policies;
- to track a person without their knowledge or permission; or
- to use the device or services in anyway which is illegal.
No Right to Resale or Access Our Services or Tracking Information to Third Parties
You may not resell use of, or access to, our Services or tracking information to any third party. You may not use our Services for any commercial purpose without our prior written consent.
Consent for the Child
Your Device Number
Your Device is designed exclusively for use on our network and in other coverage areas we make available to you. Except for any legal right you may have to port/transfer your Device number to another provider, you have no and cannot gain any (for example, through publication, use, etc.) proprietary, ownership or other rights to any Device Number we assign to you, your Device, or your account. We will notify you if we decide to change or reassign your Device Number.
Subject to the exclusions contained below, KidGPS warrants its KidGPS GPS Beacon device (“Device”), and/or certified accessories sold for use with the Device (“Accessories”) to be free from defects in materials and workmanship under normal consumer usage for the term of coverage outlined below. This limited warranty is a consumer’s exclusive remedy, and applies as follows only to new Devices and/or new Accessories purchased by consumers in the United States or Canada.
This warranty is extended to the original end-user purchaser, beginning at the time of retail purchase. This limited warranty is the sole and exclusive remedy, offered in lieu of all other warranties, expressed or implied. KidGPS will not be liable for any indirect, incidental, or punitive damages arising from use of this product.
All Devices and Accessories shall be covered under this warranty for a period of one (1) year from the date of purchase regardless of when the Device or Accessory is actually received.
The following are excluded from coverage under this warranty.
- Normal Wear and Tear - Periodic maintenance, repair and replacement of parts due to normal wear and tear are excluded from coverage.
- Damage to any non-KidGPS product used in connection with this product.
- Scratching or surface damage to any KidGPS or non-KidGPS product.
- Ornamental Decorations - Ornamental decorations such as emblems, graphics, rhinestones, jewels, gemstones and their settings, and other decorative elements, are excluded from coverage.
- other acts which are not the fault of KidGPS, are excluded from coverage.
- Abuse & Misuse - Defects or damage that result from:
- improper operation, storage, misuse or abuse, accident or neglect, such as physical damage (cracks, scratches, etc.) to the surface of the product resulting from misuse;
- contact with liquid, water, rain, extreme humidity or heavy perspiration, sand, dirt or the like, extreme heat, food, or other acts of nature;
- subjecting the Product or Accessory to abnormal usage or conditions;
- Unauthorized Service or Modification;
- Defects or damages resulting from service, testing, adjustment, installation, maintenance, alteration, including without limitation, software changes, or modification in any way by someone other than KidGPS, or its authorized service centers, are excluded from coverage;
- Altered Products. Products or Accessories with serial numbers or date tags that have been removed, altered or obliterated;
- broken seals or that show evidence of tampering;
- mismatched board serial numbers; or
- nonconforming or non-KidGPS housings, antennas, or parts, are excluded from coverage.
Transferability. This warranty extends only to the first consumer purchaser, and is not transferable.
To make a Warranty Claim please see the Warranty Section available on our website.
KidGPS, at its option, will at no charge repair or replace any Product, Accessory or Software that does not conform to this warranty. We may use functionally equivalent reconditioned/refurbished/pre-owned or new Products, Accessories or parts.
ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGMENT AND FITNESS FOR A PARTICULAR PURPOSE, SHALL BE LIMITED TO THE DURATION OF THIS LIMITED WARRANTY, OTHERWISE THE REPAIR, REPLACEMENT, OR REFUND AS PROVIDED UNDER THIS EXPRESS LIMITED WARRANTY IS THE EXCLUSIVE REMEDY OF THE CONSUMER, AND IS PROVIDED IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OF IMPLIED. IN NO EVENT SHALL KIDGPS BE LIABLE, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) FOR DAMAGES IN EXCESS OF THE PURCHASE PRICE OF THE PRODUCT, ACCESSORY OR SOFTWARE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, SOFTWARE OR APPLICATIONS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE ABILITY OR INABILITY TO USE THE PRODUCTS, ACCESSORIES OR SOFTWARE TO THE FULL EXTENT THESE DAMAGES MAY BE DISCLAIMED BY LAW. Some states and jurisdictions do not allow the limitation or exclusion of incidental or consequential damages, or limitation on the length of an implied warranty, so the above limitations or exclusions may not apply to you. This warranty gives you specific legal rights, and you may also have other rights that vary from state to state or from one jurisdiction to another. Laws in the United States and other countries preserve for KidGPS certain exclusive rights for copyrighted KidGPS software such as the exclusive rights to reproduce and distribute copies of the KidGPS software. KidGPS software may only be copied into, used in, and redistributed with, the Products associated with such KidGPS software. No other use, including without limitation disassembly of such KidGPS software or exercise of the exclusive rights reserved for KidGPS, is permitted.
Disclaimer of Warranties
EXCEPT FOR THE LIMITED WARRANTIES STATED ABOVE IN THE WARRANTY SECTION, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (TO THE EXTENT ALLOWED BY LAW) ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING YOUR SERVICES (INCLUDING YOUR DEVICE). WE DON’T PROMISE UNINTERRUPTED OR ERROR-FREE SERVICES AND DON’T AUTHORIZE ANYONE TO MAKE WARRANTIES ON OUR BEHALF.
WE DISCLAIMS ALL LIABILITY FOR, OR WARRANTIES FROM, THIRD PARTY SERVICES OR PRODUCTS USED IN CONNECTION WITH OUR DEVICE AND/OR SERVICE, SUCH AS YOUR WIRELESS CARRIER, APP STORE/PLATFORM PROVIDER OR DEVICE MANUFACTURER.
Coverage; Where Your Device Will Work
Services that rely on location information, such as GPS, depend on your Device’s ability to acquire satellite signals (typically not available indoors) and network coverage. Network coverage and satellite signals are dependent on a number of factors not within our control including weather, topographical changes, changes to and support of network cellular technologies, the functionality of various satellites, cell towers, clouds, and other factors.
You understand and expressly limit and agree to hold harmless any and all harms that result from the Device not working, malfunctioning, or failing except as specifically provided herein.
Location Based Services
Our network generally knows the location of your Device when it is outdoors and turned on. Environmental factors (such as structures, buildings, weather, geography, landscape, and topography) can significantly impact the ability to access your Device’s location information and use of location-sensitive services.
Use of location-sensitive services require network coverage
You (the accountholder) are responsible for clearly and regularly notify the actual user of your Device that their location may be tracked or discovered.
Location Device / Emergency
Our Service is intended for use as a location device. However, our Service is not a failsafe security system. Therefore, proper safety precautions should always be used with children, despite the use of our Service.
Use Our Services At Your Own Risk
Our goal is to provide helpful and accurate information with our Service, but we make no endorsement, representation or warranty of any kind about any ability to accurately track a person. We are not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through our Services. Maps, directions, and other GPS or navigation data, including data relating to your current location, may be unavailable, inaccurate or incomplete. If you rely on any of our Devices or Service, you do so solely at your own risk.
Our Service and Device are not substitutes for direct supervision
Our Service and Devices are not substitutes for responsible child care, adult care, or any other form of monitoring for person who may or may not need competent adult supervision, and should not be used as such. You agree to utilize all your best efforts to care for and tend to the dependents in your control. You may not utilize our service or device as a substitute for direct supervision and competent care. Our Device and Services may not function and is thus an ineffective substitute for adequate direct supervision and competent dependent care.
BY ACCEPTING THIS AGREEMENT, YOU AGREE TO INSTALL OUR SOFTWARE ONLY ON A DEVICE OR DEVICES OWNED BY YOU AND, FOR CLOUD-BASED OR OTHER MONITORING THAT DOES NOT REQUIRE INSTALLATION ON A DEVICE, TO USE IT ONLY IN CONNNECTION WITH AN ACCOUNT, APPLICATION, OR PROGRAM YOU HAVE THE LEGAL RIGHT TO ACCESS. YOU ALSO AGREE TO INFORM ANY PERSON(S) WHO USE(S) A DEVICE WITH THE SOFTWARE INSTALLED AND ANY OTHER PERSON WITH THE RIGHT TO ACCESS A MONITORED ACCOUNT OF THE PRESENCE OF THE SOFTWARE. FAILURE TO COMPLY MAY RESULT IN YOU BREAKING STATE AND FEDERAL LAWS. YOU UNDERSTAND AND AGREE THAT YOU SHALL BE RESPONSIBLE FOR ANY LEGAL COSTS INCURRED BY WE RESULTING FROM YOUR IMPROPER OR ILLEGAL USE OF THE SOFTWARE, OUR DEVICE AND/OR OUR SERVICES.
You agree that the installation and use of the Software and use of our Device and/or Services will be in accordance with all local, state, and federal laws governing the monitoring of device, account, application, or program activity and usage.
You agree to install our software ONLY on a device that is owned by you or on a device for which you have been given explicit permission by the device owner for such installation. You agree NOT install this Software on any device that is not owned by you or on any device for which you have not been given explicit permission for such installation.
For cloud-based or other monitoring that does not require installation on a device, you agree to use our software ONLY in connection with an account, application, or program you have the legal right to access.
You acknowledges that it is prohibited and against the terms of this Agreement NOT to inform any third party that you are monitoring the device, account, application, or program and that their use of our Device is subject to monitoring and recording.
Our application software that is subject to this license is referred to in this license as the Licensed Software. The Licensed Software and any other products offered on our website are licensed, not sold, to You. We reserve all rights not expressly granted to You.
1. Scope of License:
We grant You a non-exclusive, revocable, non-sublicensable, non-transferable End-User license right to install the Licensed Software on one mobile device that You own or control or to use the software for cloud-based monitoring of a specified account, application, or program. Nothing in this license should be interpreted as permitting installation of the Licensed Software on any device You do not own or control or which You do not have the legal right to monitor or to monitor any account, application, or program You do not have the legal right to monitor. For device-based monitoring, You may not distribute or make the Licensed Software available over a network where it could be used by multiple devices at the same time or on any device You do not own or control or which You do not have the legal right to monitor. It is Your responsibility to determine whether You have the legal right to monitor the device, account, application, or program; we cannot be held responsible if a user chooses to monitor a device, account, application, or program the user does not have the right to monitor.
2. Legal Use.
The Licensed Software, Device and Services are designed for use by those who have the legal right to monitor the device, account, application, or program on which it is installed or which it is used to monitor. We cannot provide legal advice to you regarding your use of the Licensed Software. Be aware that it is considered a violation of United States federal and/or state law in most instances to install or use surveillance software, such as the Licensed Software, in connection a mobile phone or other device, account, application, or program you do not have the right to monitor. The law generally requires you to notify users or owners of the device, account, application, or program that the device, account, application, or program is being monitored. Failure to do so may result in violation of applicable law, which could result in severe monetary and criminal penalties imposed on the violator. You should consult your own legal advisor with respect to legality of using the Licensed Software in the manner you intend to use it prior to downloading, installing, or using the Licensed Software. You take full responsibility for determining that you have the right to monitor the device, account, application, or program on which the Licensed Software is installed. We cannot be held responsible if a User chooses to monitor a device, account, application, or program the User does not have the right to monitor.
3. Improper Use.
You agree not to use the Licensed Software, Device or Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that we are not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using the Licensed Software, Device or Services.
It is understood and agreed that we are the owner of all right, title, and interest to the Licensed Software. You, as licensee, through your downloading, installing, or use of this product do not acquire any ownership rights to the Licensed Software. The Licensed Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The rights granted in this license are limited to the right to download, install, and use the Licensed Software and do not include any other intellectual property rights. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Software. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Software, any updates, or any part. Any attempt to do so is a violation of our rights. If You breach this restriction, You may be subject to prosecution and damages. We may provide upgrades, modifications, updates, or additions (Modifications) to the Licensed Software during the term of your license. The terms of this License will govern any Modification unless such Modification is accompanied by a separate license, in which case the terms of that license will govern.
CHANGES. We reserve the right to change this License at any time without prior written notice; the changes will be effective when posted on our website. We may also change, discontinue, or impose limits on certain features of the Licensed Software without liability. Your continued use of the Licensed Software indicates your agreement to the changes.
5. Consent to Use of Data:
6. Term and Termination:
The term of this license runs concurrently with the term of your subscription plan, which is the period during which You are authorized to use the Licensed Software. Your rights under this license will be prolonged automatically without any written notice from We. Validity of the new subscriptions will be equal to the previously expired. To cancel the auto-renew subscription please contact our support team .
7. Services; Third Party Materials:
The Licensed Software enables access to third party services and websites (collectively and individually, Third Party Services). You understand that by using the Third Party Services, You may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL by you or by any person in control of the monitored device, account, application, or program may automatically and unintentionally generate links or references to objectionable material. Nevertheless, You agree to use the Services at Your sole risk and that We shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable.
Certain Services may display, include, or make available content, data, information, applications, or materials from third parties (Third Party Materials) or provide links to certain third party websites. By using the Services, You acknowledge and agree that We is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We does not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any third-party Services, Third Party Materials or websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to You.
Services may contain proprietary content, information, and material that is protected by applicable intellectual property and other laws, including but not limited to copyright; You will not use such proprietary content, information, or materials except for permitted use of the Services.
Activation & Miscellaneous Charges
Based on our Policies, we may charge activation, prepayment, reactivation, program or other fees to establish or maintain Services. Certain transactions may also be subject to a charge (for example, convenience payment, changing phone numbers, handset upgrades, etc.). You will be provided notice of these types of fees before we complete the requested transaction.
Account & Service Charges; Pro-rating; Unused Services
You are responsible for all charges associated with your account and the Services on your account, no matter who uses the Services or whether the Services were used. Charges include, but are not limited to, the monthly recurring charges, usage charges, taxes, surcharges and fees associated with your Services. These charges are described or referred to during the sales transaction, in our marketing materials, and in confirmation materials we may send to you.
Your bill provides you notice of your charges. It reflects monthly recurring charges (usually billed one bill cycle in advance) and usage/transaction specific charges (usually billed in the bill cycle in which they’re incurred). Your bill may also include other important notices (for example, changes to this Agreement, to your Service, legal notices, etc.). Your bill will only be available via the internet. You are responsible for providing a valid email address for communication. You agree to assume all responsibility, including payment of any additional fees or limitations incurred as a result of your email malfunctioning or not receiving our communication.
Your Payments; Late Fees; Overages
Payment is due in full as stated on your bill. If we do not receive payment in full by the date specified on your bill, a late payment charge, which may be charged at the highest rate permissible by law, may be applied to the total unpaid balance. We may also charge you any costs, including attorney’s fees, we pay to a collection agency to collect unpaid balances from you. You may be charged additional fees for certain methods of payment. We may charge you, up to the highest amount permitted by law, for returned checks or other payments paid by you and denied for any reason by a financial institution. Acceptance of payments (even if marked “paid in full”) does not waive our right to collect all amounts that you owe us. We may restrict your payment methods to cashier’s check, money order, or any other reasonable method at any time at our sole discretion.
Taxes & Government Fees
You agree to pay all federal, state and local taxes, fees and other assessments that we’re required by law to collect on the Services we provide you and remit to the government. These charges may change from time to time without advance notice. If you’re claiming any tax exemption, you must provide us with a valid exemption certificate. Tax exemptions generally won’t be applied retroactively.
Disputing Charges – You Must Still Pay Undisputed Charges
Any dispute to a charge on your bill must be made within 60 days of the date of the bill that initially contained the charge. Disputes can only be made by calling or writing us as directed on your invoice or elsewhere. You accept all charges not properly disputed within the above time period – undisputed charges must still be paid as stated on your bill.
Your service shall be as follows:
§ 24 hour a day, 7 day per week access tracking of your KidGPS tracking beacon via the KidGPS iOS or Android app.
You agree to make payments on or before the day of the purchase of each month in the amount set forth in your Agreement plus additional taxes, fees, or surcharges as provided for in this Ts&Cs. You hereby authorize us or our assigns or agents to charge your credit card a monthly reoccurring fee for the pendency of your contract in the full amount of the bill owing. You will receive a monthly receipt of your payment. This receipt may be sent electronically or in a hard copy via mail.
KidGPS may assign the rights to this contract to third parties at our sole discretion without input or consent from you.
Your Device may be set to operate both domestically and may also operate internationally. However, you will be charged additional fees if the Device is in another country other than the United States and is utilized. The rate on these fees shall be the actual cost of international roaming charges plus a 40% administration fee. These rates will be charged for any month in which there is any international usage, no matter if the usage was less than an actual month.
Protecting Our Network & Service
We can take any action to:
- protect our network, our rights and interests, or the rights of others; or
- optimize or improve the overall use of our network and Services. Some of these actions may interrupt or prevent legitimate communications.
You Agree To Receive Alerts And Notifications
As part of your use of our Services, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You can control receipt of non-service related communications from your account settings. You are responsible for any messaging or data fees you may be charged by your wireless carrier.
We Are Not Responsible For Third-Party Links On The KidGPS Service
Our Services contains links to third-party websites, apps, services and resources (collectively “Third-Party Services”) that are not under our control. We provide these links only as a convenience and are not responsible for the content, products or services that are available from Third- Party Services. You acknowledge sole responsibility and assume all risk arising from your use of any Third-Party Services.
KidGPS Does Not Control Third-Party Services That You Link With Your KidGPS Account
If Your Device Is Lost or Stolen
Call us immediately if your Device is lost or stolen because you may be responsible for usage charges before you notify us of the alleged loss or theft. You agree to cooperate if we choose to investigate the matter (provide facts, sworn statements, etc.). We may not waive any Early Termination Fees if you choose to terminate Services as a result of loss or theft of your Device.
We are the exclusive owner or authorized licensors of our Service and Device, including all copy, software, graphics, designs and all copyrights, trademarks and other intellectual property or proprietary rights contained therein. Without limiting the foregoing, you acknowledge that our Service and Device are our exclusive property, and that you will not take any act inconsistent with our ownership rights or that would damage our ownership rights. No part of our Service or Device may be reverse engineered, decompiled or modified, nor may derivative works be created based on the our Service or Device, without our prior written consent. All rights not granted under these Terms of Service are reserved by us
You Agree We Are Not Responsible For Certain Problems
You agree that neither we nor our vendors, suppliers or licensors are responsible for any damages resulting from: anything done or not done by someone else; providing or failing to provide Services, including, but not limited to, deficiencies or problems with a Device or network coverage (for example, dropped, blocked, interrupted messages, etc.); traffic or other accidents, or any health-related claims relating to our Services; False messages sent while using our Services; an interruption or failure in accessing or attempting to access emergency services from a Device; interrupted, failed, or inaccurate location information services; or things beyond our control, including acts of God (for example, weather-related phenomena, fire, earthquake, hurricane, etc.), riot, strike, war, terrorism or government orders or acts.
You Agree Our Liability Is Limited – No Consequential Damages
TO THE EXTENT ALLOWED BY LAW, OUR LIABILITY FOR MONETARY DAMAGES FOR ANY CLAIMS YOU MAY HAVE AGAINST US IS LIMITED TO NO MORE THAN THE PROPORTIONATE AMOUNT OF THE SERVICE CHARGES ATTRIBUTABLE TO THE AFFECTED PERIOD. UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER ARISING OUT OF OR RELATED TO PROVIDING OR FAILING TO PROVIDE SERVICES IN CONNECTION WITH A DEVICE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS, BODILY HARM, DEATH, EMOTIONAL DISTRESS, OR COST OF REPLACEMENT PRODUCTS AND SERVICES.
IN NO EVENT WILL WE BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR OTHER CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, LOST OPPORTUNITIES, COSTS OF COVER, EXEMPLARY, PUNITIVE, PERSONAL INJURY/WRONGFUL DEATH, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
We each agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents/information and the proposed resolution. You agree to contact us with disputes by calling or writing us as instructed on your invoice. We will contact you by letter to your billing address or on your Device.
Instead Of Suing In Court, We each agree to finally settle all disputes (as defined and subject to any specific exceptions below) only by arbitration. In arbitration, there’s no judge or jury and review is limited. However, just as a court would, the arbitrator must honor the terms and limitations in the Agreement and can award the same damages and relief, including any attorney’s fees authorized by law. The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act (“FAA”), and judgment on the award may be entered in any court with jurisdiction.
We each also agree as follows:
“Disputes” are any claims or controversies against each other related in any way to our Services or the Agreement including, but not limited to, coverage, Devices, privacy, or advertising, even if it arises after Services have terminated – this includes claims you bring against our employees, agents, affiliates or other representatives, or that we bring against you.
If either of us wants to arbitrate a dispute, we agree to send written notice to the other providing a description of the dispute, previous efforts to resolve the dispute, all supporting documents/information, and the proposed resolution.
Notice to you will be sent to your address provided us when you sign up for our service, and notice to us will be sent to: 913 Phillips St Nashville TN 37208. We agree to make attempts to resolve the dispute. If we cannot resolve the dispute within forty-five (45) days of receipt of the notice to arbitrate, then we may submit the dispute to formal arbitration.
The FAA applies to this Agreement and arbitration provision. We each agree the FAA’s provisions, not state law, govern all questions of whether a dispute is subject to arbitration.
Unless we each agree otherwise, the Arbitration will be conducted by a single neutral arbitrator and will take place in the county of your last billing address. The federal or state law that applies to the Agreement will also apply during the arbitration
We each agree not to pursue arbitration on a classwide basis. We each agree that any arbitration will be solely between you and us (not brought on behalf of or together with another individual’s claim). If for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate doesn’t apply and the dispute must be brought in court.
We each are responsible for our respective costs relating to counsel, experts, and witnesses, as well as any other costs relating to the arbitration.
Exceptions To Our Agreement To Arbitrate Disputes
Either of us may bring qualifying claims in small claims court in Davidson County, Tennessee. In addition, this arbitration provision does not prevent you from filing your dispute with any federal, state or local government agency that can, if the law allows, seek relief against us on your behalf.
No Class Actions
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
No Trial By Jury
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
You agree to indemnify, defend and hold us, and our officers, directors, employees and agents, harmless from any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with your actions including, but not limited to, failing to provide appropriate notices regarding location-sensitive services (see “Location Based Services” paragraph), or violating this Agreement, any applicable law or regulation or the rights of any third party. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Providing Notice To Each Other Under The Agreement
Except as the Agreement specifically provides otherwise, you must provide us notice by calling or writing us as instructed on your invoice. We will provide you notice in your bill, correspondence to your last known billing address, to any fax number or e-mail address you’ve provided us, by calling you on your home, by voice message on your home phone.
Other Important Terms
Subject to federal law or unless the Agreement specifically provides otherwise, this Agreement is governed solely by the laws of the state of Tennessee, without regard to the conflicts of law rules of that state. If either of us waives or does not enforce a requirement under this Agreement in an instance, we don’t waive our right to later enforce that requirement. Except as the Agreement specifically provides otherwise, if any part of the Agreement is held invalid or unenforceable, the rest of this Agreement remains in full force and effect. This Agreement isn’t for the benefit of any third party except our corporate parents, affiliates, subsidiaries, agents, and predecessors and successors in interest. You may not assign the Agreement or any of your rights or duties under it. We may assign the Agreement. The Agreement and the documents it incorporates make up the entire agreement between us and replaces all prior written or spoken agreements – you cannot rely on any contradictory documents or statements by sales or service representatives. The rights, obligations and commitments in the Agreement that, by their nature, would logically continue beyond the termination of Services (including, but not limited to, those relating to billing, payment, dispute resolution, no class action, no jury trial), survive termination of Services.