Mobile Application End User License Agreement
This Mobile Application End User License Agreement ("Agreement") is a binding agreement between you ("End User" or "you") and Armor at Hand, Inc. (dba ArmorGIS) ("Company"). This Agreement governs your use of the RescueGIS application on the RescueGIS platform, (including all related documentation, the "Application"). The Application is licensed, not sold, to you.
BY CLICKING THE "AGREE" BUTTON OR INSTALLING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD OR INSTALL THE APPLICATION.
1. Disclosures. By downloading the Application you understand an agree that we use various service providers to host, administer, update, and otherwise manage the Application and the services available on the Application. You understand and agree that these third parties are agents of Company, and as such are the same as Company. You further agree and understand that the Application uses automated technologies to collect and transfer information related to your visit and use of the Application to such third party service providers. The information collected and transferred includes location, navigation data, search string data, text, image, and video watching data. You agree to the disclosure of the data related to your navigation around, and use of, the Application to these third parties for the purposes specified in the privacy policy which is accessible in the Application.
2. Electronic Signatures. By using the Service, you agree to transact electronically through the Application. You agree that your electronic signature is the legal equivalent of your manual signature. You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, constitutes your signature as if actually signed by you in writing. You also agree that no certification authority or other third party verification is necessary to validate your electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of your electronic signature.
3. Communications Consent. By providing your telephone number, you are providing express written consent to receive communications from Company, (including its affiliates, agents, service providers, and affiliates for the purposes of defined above) for any purpose, including but not limited to marketing various services from both Company and companies Company has joint marketing agreements with. Additionally, you agree to receive communications from Company regarding any information you may have obtained via your use of a Website. You agree that these communications include, but are not limited to, the use of an Automated Telephone Dialing System, prerecorded and/or artificial voice, SMS, MMS, text, fax, email or other similar means. Note, regardless of whether your phone number is registered on a state or federal Do Not Call list. You agree that Company is not responsible for any charges to you regarding these communications. Standard voice and data rates may apply. Should you wish to no longer receive communications, you may text “STOP” to cease receiving such communications. Further, you understand that you do not need to provide this consent to call as a condition to receive any good or service, in which case you will not provide your phone number.
4. License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to:
(a) download, install, and use the Application for your commercial use on a mobile device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with the Application's documentation; and
(b) access, stream, download, and use on such Mobile Device the Content and Services (as defined in Section 6) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and the Terms of Use applicable to such Content and Services as set forth in Section 6.
(c) This license grant permits you or your delegate to install and use the Application on up to nine additional Mobile Devices. These additional Mobile Devices will have sub-accounts which are linked to your account. Each user agrees to the Mobile Application End User Licensing Agreement at the download of the Application. You remain responsible for any violation of this Agreement on any Mobile Device linked to your account for users under the age of 18.
5. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
(a) The Application may provide you with access to the RescueGIS platform via the Application ("RescueGIS") and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application may be hosted on RescueGIS (collectively, "Content and Services"). Your access to and use of such Content and Services are governed by this Software-as-a-Service License (“SaaS License”), which are incorporated herein by this reference. Additionally, RescueGIS Smart Site product, services, features, functionality and content (collectively, “Smart Site” Content and Services) may be offered by your employer which may include indoor positioning features and devices. Your access to and use of such Smart Site Content and Services requires your employer to execute such a SaaS License and you to register with RescueGIS, and your failure to do so may restrict you from accessing or using certain of the Application's features and functionality. Any violation of such SaaS License will also be deemed a violation of this Agreement.
(b) You understand and agree that RescueGIS is only a communications channel and does not guarantee anyone’s safety. Your use of RescueGIS will require your interaction with other individuals and entities on the RescueGIS platform, including: (i) your contacts identified in your calling lists, (ii) site security personal, (iii) first responders, and (iv) Company clients who may make first responder services or the Application available to you. You understand and agree that Company may communicate, and direct your communications, to each of these entities as appropriate for your use of RescueGIS.
(c) Some features of RescueGIS are provided by a third party. RapidSOS provides connectivity to 911 services. Where you, or any user connected to your account uses the RescueGIS 911 service, you agree that this service is also governed by the RapidSOS Terms of Service, which are found at: https://rapidsos.com/business-terms-of-service.
We adhere to the Children’s Online Privacy and Protection Act (COPPA). This section describes our practices of collecting, using and disclosing personal information from children under the age of 13.
(a) Parental Consent Required.
(i) During the account creation and management process, we do allow you to install the RescueGIS application on your child’s phone. As part of this we request date of birth to determine which users are children. If your child is under 13 years old, your parental consent is required to authorize your child's RescueGIS application.
(ii) We will not collect, use or disclose any personal information from your child unless you provide your consent.
(iii) Before you consent, you, as the parent/guardian, will be required to have your own account, to which your child’s RescueGIS application is linked. You are the owner of both the primary and secondary accounts and, as the owner of such accounts, have the duty to manage their use. This includes the requirement that only you allow the disclosure of personal information for any child under the age of 13 who is linked to your RescueGIS account with your consent.
(b) You, as the parent or guardian, are the primary account holder. This means that:
(i) You represent and warrant that you have the authority to consent to the collection of personal information from any child who uses RescueGIS with an account linked to your account.
(ii) You are responsible for deciding whether to share your child’s content with third parties.
(iii) You are responsible for the active monitoring of your child’s content. Children who are under the age of 13 are expressly prohibited from including any personally identifiable information in any content that they post to our website unless or until their parents or legal guardians give permission. You agree that you will only allow your child to include any personally identifiable information in their content with your consent.
(c) Any contacts related to an account used by a child must be over the age of 18.
(d) Where a child attempts to use the RescueGIS 911 service, you agree that such a user will first be routed through the RapidSOS concierge services prior to connecting with 911.
8. Updates.
(a) Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
(b) Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
(i) the Application will automatically download and install all available Updates; or
(ii) you may receive notice of or be prompted to download and install available Updates.
(a) General usage rules
(i) End User must not use the Content and Services in any way that causes, or may cause, damage to the Content and Services or impairment of the availability or accessibility of the Content and Services.
(ii) End User must not use the Content and Services:
(A) in any way that is unlawful, illegal, fraudulent or harmful; or
(B) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
(iii) End User must ensure that all Content complies with the provisions of this Agreement.
(b) Unlawful Content
(i) Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
(ii) Content, and the use of Content by End User in any manner licensed or otherwise authorized by End User, must not:
(A) be libelous or maliciously false;
(B) be obscene or indecent;
(C) infringe any copyright, moral right, database right, trademark right, design right, copy right, right in passing off, or other intellectual property right;
(D) infringe any right of confidence, right of privacy or right under data protection legislation;
(E) constitute negligent advice or contain any negligent statement;
(F) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(G) be in contempt of any court, or in breach of any court order; and
(H) constitute a breach of any contractual obligation owed to any person.
(iii) End User must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
(c) Graphic material
(i) Content must be appropriate for all persons who have access to or are likely to access the Content in question.
(ii) Content must not depict violence in an explicit, graphic or gratuitous manner.
(iii) Content must not be pornographic or sexually explicit.
(d) Factual accuracy
(i) Content must not be untrue, false, inaccurate or misleading.
(ii) Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons, legal or natural, must be reasonable, honestly held and indicate the basis of the opinion.
(e) Marketing and spam
(i) Content must not constitute or contain spam, and End User must not use the Content and Services to store or transmit spam - which for these purposes shall include all unlawful marketing or commercial communications.
(ii) End User must not send any spam to any person using any email address or other contact details made available through the Content and Services or that End User find using the Content and Services.
(f) Monitoring
(i) End User acknowledges that Company may actively monitor the Content and the use of the Content and Services.
(g) Hyperlinks
(i) End User must not link to any material using or by means of the Content and Services that would, if it were made available through the Content and Services, breach the provisions of this Agreement.
(h) Harmful software
(i) The Content must not contain or consist of, and End User must not promote or distribute by means of the Content and Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
(ii) The Content must not contain or consist of, and End User must not promote or distribute by means of the Content and Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
10. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, texts, images, videos, created in real-time by others and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
(a) The term of Agreement commences when you install the Application and will continue in effect until terminated by you or Company as set forth in this Section 11.
(b) You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
(c) Company may terminate this Agreement at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(i) all rights granted to you under this Agreement will also terminate; and
(ii) you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.
(e) Termination will not limit any of Company's rights or remedies at law or in equity.
12. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
13. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST, LOSS OF DATA, COMPUTER OR MOBILE DEVICE FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
14. Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
15. Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
16. US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
17. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
18. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule.
19. Arbitration & Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY - IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND COMPANY CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND COMPANY TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS. THIS MEANS THAT YOU WILL NOT BE ABLE TO BRING A CLASS, COLLECTIVE, OR REPRESENTATIVE LAWSUIT IN A COURT OF LAW BEFORE A JUDGE OR JURY CONCERNING ANY DISPUTE THAT MAY ARISE WHICH IS COVERED BY THE ARBITRATION AGREEMENT AND ARE INSTEAD AGREEING TO SUBMIT ANY SUCH DISPUTE SOLELY ON YOUR OWN BEHALF TO AN IMPARTIAL ARBITRATOR.
(a) You and Company mutually agree to forego the delay and expense of using a court of law and choose instead to benefit from the speedy, economical, and impartial dispute resolution procedure of using binding arbitration for any disputes that arise between You and Company, its related and affiliated companies, and/or any current or former employee, officer, or director of Company or any related or affiliated company as it relates to Your use of the Application and these Terms of Use. You and Company agree that this Arbitration and Class Action Waiver is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and will survive even after these Terms of Use terminate. Any revision to or termination of the Terms of Use that modify or terminate this Arbitration and Class Action Waiver shall not apply to a pending arbitration, to any claim that accrued prior to the modification or termination, or to any claim that the asserting party knew about prior to the modification or termination, except as may be required by applicable law.
(b) To initiate arbitration, the party desiring to pursue a legal dispute must prepare a written demand setting forth the claim(s) and deliver the written demand within the applicable statute of limitations period by hand or first class mail to the representatives of the other party. You and Company agree that the arbitration shall be administered by American Arbitration Association (“AAA”) before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA. Except to the extent that they are modified by the rules below, if You are an individual person, the AAA Consumer Arbitration Rules that are in effect at the time of the filing of the demand (and that are available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf) will apply.
(c) The parties agree that the applicable AAA rules are modified as follows:
Any arbitrator must be neutral as to all parties. Standards for the recusal of an arbitrator shall be the same standards under which trial judges are recused under California state law.
· No party is entitled to its attorneys’ fees, except as may be awarded in a matter authorized by and consistent with applicable law.
· All discovery shall be subject to any and all objections available under FRCP 26(b). Each party shall avoid broad or widespread collection, search, and production of documents, including electronically stored information (“ESI”). If a compelling need is demonstrated by the requesting party, the production shall: (i) be narrowly tailored in scope; (ii) only come from sources that are reasonably accessible without undue burden or cost; and (iii) be produced in a searchable format, if possible without undue burden or cost, and which is usable by the receiving party and convenient and economical for the producing party. Where the costs and burdens of the requested discovery outweigh its likely benefit, considering the needs of the case, the amount in controversy, and the importance of the discovery in resolving the issues, the arbitrator shall deny such requests or order production on condition that the requesting party advance to the producing party the reasonable costs involved in making the production, subject to the allocation of costs in the final award.
· The arbitrator shall have the authority to award the same damages and other relief that would have been available in court pursuant to the law governing the dispute(s).
· Either party shall have the right to file motions to dismiss and motions for summary judgment/adjudication.
· The arbitrator shall have the authority to issue an award or partial award without conducting a hearing on the grounds that there is no claim on which relief can be granted or that there is no genuine issue of material fact to resolve at a hearing.
· The Federal Rules of Evidence shall apply to all arbitration proceedings.
· The arbitrator must issue a decision in writing, setting forth in summary form the reasons for the arbitrator’s determination and the legal basis therefor.
· The arbitrator’s authority shall be limited to deciding the case submitted by the parties to the arbitration. Therefore, no decision by any arbitrator shall serve as precedent in other arbitrations except to preclude the same claim from being re-arbitrated between the same parties.
· The parties may settle any dispute on a mutual basis without involvement of the arbitrator.
· If You are an natural person acting in your personal capacity, You will pay the first $250, and Company will pay all other filing, administrative, or hearing fees. If Company initiates arbitration, Company will pay all filing, administrative, and hearing fees. Regardless of which party initiates arbitration, You will remain responsible for Your attorneys’ fees and costs unless the law governing the Covered Claim provides for an award of attorneys’ fees and costs and the arbitrator determines as part of the arbitration award that You may recover a certain amount of attorneys’ fees and costs.
(d) Except as otherwise required under applicable law, You and Company agree to arbitrate any disputes only on an individual basis and hereby waive any right to bring, participate in, or receive money or any other relief from any representative, class, or collective proceeding (“Class Action Waiver”).
(e) No party may bring a claim on behalf of other individuals, and no arbitrator hearing any claim under these Terms of Use may: (i) without the consent of all parties, combine more than one individual’s claim or claims into a single case; (ii) order, require, participate in, or facilitate production of class-wide contact information or notification of others of potential claims; or (iii) arbitrate any form of a class, collective, or representative proceeding.
(f) You agree that where an arbitration has already been initiated against Company, You agree that You will not initiate an arbitration against Company with substantially the same facts or legal theories of recovery. Further, You agree to abide by any final arbitration decision which follows an arbitration against Company with substantially the same facts or legal theories of recovery.
20. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
21. Entire Agreement. This Agreement and the SaaS License with your employer constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.
22. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
