Terms of Use
Terms of Use
Last Updated: November 17, 2020
These Terms of Use and End User License Agreement (“Terms of Use”) govern your use of our online interfaces and properties (e.g., websites and mobile applications) owned and controlled by invisaWear Technologies Corporation (“invisaWear,” “we,” or “our”), including the www.invisawear.com website and the invisaWear mobile application (the “Site”), as well as the services (“Services”) available to users through the Site. By downloading, installing, accessing or using the Site you will be bound by these Terms of Use and our Privacy Policy. If you do not agree to these Terms, invisaWear is not willing to grant you any right to use or access the Site to you. In such event, you may not download, install, access, use, or copy the Site.
The Site is licensed to you, not sold. Except for the limited license granted in these Terms of Use, invisaWear and its licensors retain all right, title and interest in the Site and all proprietary rights in the Site, including copyrights, patents, trademarks, and trade secret rights.
These Terms provide that all disputes between you and invisaWear or our Monitoring Company will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the “Dispute Resolution and Arbitration” section below for the details regarding your agreement to arbitrate any disputes with invisaWear and the “Requirements for Resolving Disputes” section below for the details regarding your agreement to arbitrate any disputes with our Monitoring Company.
The parties hereby agree as follows:
- invisaWear Service Overview and Software License
The invisaWear Service provides an additional avenue for registered individuals to communicate with and receive certain information from participating organizations regarding safety, emergency response services, public health, and other services. If you use the Service solely to communicate with our Monitoring Company and Emergency Service Providers (as defined below) or receive communications from Users (as defined below), but not to send emergency notifications out, you are a “Subscriber.” If you are a safety or emergency response provider including, without limitation, 9-1-1 or equivalent fire, police, emergency medical, emergency management, campus safety officials, or public health services and you use the Service to receive information from Subscribers, Users, or our Monitoring Company in order to facilitate the provision of safety or emergency services you are an “Emergency Service Provider.” For the avoidance of doubt, Emergency Service Provider does not include ADT LLC who is invisaWear’s contracted monitoring company (“Monitoring Company”). If you use the Service to send emergency and general interest notifications and updates to Subscribers, as well as to communicate with our Monitoring Company and Emergency Service Providers, you are a “User.” The features of the Service that are made available to you via the Service may vary depending on if you are registered as a Subscriber, Emergency Service Provider, or a User. By entering into this Terms of Use agreement you agree to the Monitoring Company’s Mobile Monitoring Terms included below, and consent to invisaWear sending your information to the Monitoring Company as part of the Services.
Grant of License. invisaWear grants you a revocable, nontransferable (except as provided below), personal, nonexclusive license to use the object code version of the application portions of the Site for use on your mobile device and the products you purchase from us. You may not install or use the application portions of the Site on a device that you do not own or control.
Limitations On License. The license granted to you in these Terms of Use is restricted as follows:
- Limitations on Copying and Distribution. You may not copy or distribute the Site except to the extent that copying is necessary to use the Site for purposes set forth herein.
- Limitations on Reverse Engineering and Modification; APIs. You may not (i) access or use the application programming interfaces (“APIs”) for any purpose other than your licensed use of the Site or (ii) reverse engineer, decompile, disassemble, modify or create works derivative of the Site, except to the extent expressly permitted by applicable law.
- Sublicense, Rental and Third Party Use. You may not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Site, or directly or indirectly permit any third party to copy and install the Site on a device not owned and controlled by you.
- Proprietary Notices. You may not remove any proprietary notices (g., copyright and trademark notices) from the Site or its documentation.
- Use in Accordance with Documentation. All use of the Site must be in accordance with its then current documentation, if any, provided with the Site or made available on the Site.
- Confidentiality. You must hold the application portions of the Site and any related documentation in strict confidence for your own use only.
- Compliance with Applicable Law. You are solely responsible for ensuring your use of the Site is in compliance with all applicable foreign, federal, state and local laws, and rules and regulations.
No Medical Advice
invisaWear does not provide medical advice or care. Emergency Service Providers are not contracted or employed by invisaWear. The Emergency Service Providers, and not invisaWear, are responsible for the quality and appropriateness of the care they render to you.
The Emergency Service Providers are independent of invisaWear and are merely using the Site as a way to communicate with you. Any information or advice received from an Emergency Service Provider comes from them alone, and not from invisaWear. Your interactions with the Emergency Service Providers via the Site are not intended to take the place of your relationship with your regular health care practitioners or primary care physician. Neither invisaWear, our Monitoring Company, nor any of its subsidiaries or affiliates or any third party who may promote the Site or Service or provide a link to the Service, shall be liable for any professional or other advice obtained from an Emergency Service Provider via the Site or Service, nor any information obtained on the Site. invisaWear does not recommend or endorse any specific Emergency Service Providers, tests, physicians, medications, products, or procedures. You acknowledge that your reliance on any Emergency Service Providers or information delivered by the Emergency Service Providers via the Site or Service is solely at your own risk and you assume full responsibility for all risks associated herewith.
invisaWear does not make any representations or warranties about the training or skill of any Emergency Service Providers who deliver services via the Site or Service. You will be provided with available Emergency Service Providers based solely on the information you submit to the Site. You are ultimately responsible for choosing the appropriateness of using a particular Emergency Service Provider.
The content of the Site and the Services, including without limitation, text, copy, audio, video, photographs, illustrations, graphics and other visuals, is for informational purposes only and does not constitute professional medical advice, diagnosis, treatment, or recommendations of any kind by invisaWear. You should always seek the advice of your qualified health care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. All information provided by invisaWear, or in connection with any communications supported by invisaWear, is intended to be for general information purposes only, and is in no way intended to create a provider-patient relationship as defined by state or federal law. While invisaWear facilitates your selection of, and communications with, Emergency Service Providers, invisaWear does not provide medical services, and the doctor-patient relationship is between you and the invisaWear Medical Group Emergency Service Provider you select, converse with, or otherwise engage with.
By using the Services, you acknowledge the potential risks associated with telecommunication and emergency response services. These include but are not limited to the following: information transmitted may not be sufficient (e.g. poor resolution of audio) to allow for appropriate response by our Monitoring Company and medical or health care decision making by the Emergency Service Provider; delays in evaluation or treatment could occur due to failures of electronic equipment; a lack of access to your medical records may result in adverse drug interactions or allergic reactions or other judgment errors; although the electronic systems we use incorporate network and software security protocols to protect the privacy and security of health information, those protocols could fail causing a breach of privacy of your health information.
- Eligibility
You must be at least eighteen (18) years of age to use the Service. If you are under the age of 18 and wish to create an account with invisaWear, your parent or legal guardian must create the account, submit your personal information and agree to these Terms of Use and the Privacy Policy on your behalf. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least eighteen (18) years of age or the parent or legal guardian of a user who is under the age of 18 ; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
- Accounts and Registration
3.1 To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your e-mail address, phone numbers or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. Your account information will also include any other information (which may include personally identifiable information or health-related information) that you enter into or provide to the Service. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at letschat@invisaWear.com.
3.2 You understand and accept full legal responsibility for the content, accuracy, and sufficiency of all information that you include or do not include as part of your account. You should only provide the information you want our Monitoring Company and Emergency Service Providers to have access to. All information within your account is subject to the invisaWear Privacy Policy.
3.3 By creating an account, you agree that invisaWear, our Monitoring Company, and Emergency Service Providers may contact you at the number you have provided, including calls, to receive informational, Services related (e.g., progress tracking, response to inquiries and requests, etc.) and marketing communications relating to the Site and Services. You can opt-out of receiving further calls from us by contacting letschat@invisawear.com. Please note, that by withdrawing your consent, some Site features and certain Services may no longer be available to you. You also agree that if another individual registers and validates a phone number that you had previously registered, the phone number will be removed from your account and assigned to the other individual.
3.4 You must confirm, at least once every six (6) months, that the information within your account is accurate. Failure to do so may prevent your ability to use the Service.
3.5 You agree your account will only include information about adults or children for whom you have appropriate legal responsibility or appropriate prior consent, and that the account does not infringe or invade the privacy of anyone.
3.6 You understand and agree that you are the only person authorized to create or edit your account, unless you have authorized another person to use your username and password to enter or modify your account on your behalf. You authorize invisaWear to release any or all of your account information to any person to whom you have provided the username and password associated with your account or phone number.
3.7 You understand and agree that once the content of your account is made available to our Monitoring Company and Emergency Service Providers, it may be transmitted over unsecured radios or may otherwise be made accessible through unsecured communications as part of the information disseminated to or by our Monitoring Company and Emergency Service Providers responding to a 9-1-1 call or to an emergency. You further understand that the content of your account may be stored as part of a public record associated with an emergency call if required by local statutes.
3.8 If you are a Subscriber, you understand and agree and hereby authorize invisaWear to release and disclose your account information to our Monitoring Company and Emergency Service Providers and Users in connection with the Service. If you are an Emergency Service Provider or User, you understand and agree and hereby authorize invisaWear to release and disclose your account information to Subscribers in connection with the Service.
3.9 As part of your account, you may have identified additional contacts or additional persons in your household (”Additional Contacts”). If you are a Subscriber, you understand and agree that invisaWear, our Monitoring Company, or any Emergency Service Providers may, for reasons outside their control, be unable to contact or to notify any Additional Contacts in any emergency situation. If you are an Emergency Service Provider or User, you understand and agree that invisaWear may, for reasons outside their control, be unable to contact or notify any Additional Contacts of any information relating to your use of the Service.
- Payment
Access to the Service, or to certain features of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. invisaWear may change the fees for the Service or any feature of the Service, including by adding fees, on a going-forward basis at any time. invisaWear will charge the payment method you specify at the time of purchase. You authorize invisaWear to charge all sums as described in these Terms, for the Service you select, to that payment method. If you pay any fees with a credit card, invisaWear may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
If you purchase a subscription to the Services through the Site, your subscription is continuous and will be automatically renewed at the end of the applicable subscription period, unless you cancel your subscription before the end of the then-current subscription period by clicking here. If you cancel your subscription, your account will automatically close at the end of your current billing period. invisaWear may change the price for your invisaWear subscription from time to time and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes will take effect at the start of the next subscription period following the date of the price change. Subject to applicable law, you accept the new price by continuing to use the invisaWear subscription Services after the price change takes effect. If you do not agree with a price change, you have the right to reject the change by unsubscribing from the subscription prior to the price change going into effect.
You represent and warrant that if you are making online payments that (i) any credit card, debit card and bank account information you supply is true, correct and complete, (ii) charges incurred by you will be honored by your credit/debit card company or bank, (iii) you will pay the charges incurred by you in the amounts posted, including any applicable taxes, and (iv) you are the person in whose name the card was issued and you are authorized to make a purchase or other transaction with the relevant credit card and credit card information.
- Your Content
5.1 Your Content Generally. Certain features of the Service may permit you to upload content to the Service, including medical information, messages, reviews, photos, video, images, folders, data, text, and other types of works (“Your Content ”) and to publish Your Content on the Service. You retain copyright and any other proprietary rights that you may hold in Your Content that you post to the Service.
5.2 Limited License Grant to invisaWear. By posting or publishing Your Content, you grant invisaWear a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute Your Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). invisaWear’s use of Your Content may be without any compensation paid to you.
5.3 Representations and Warranties Regarding Your Content. You are solely responsible for Your Content and the consequences of posting or publishing Your Content. By posting or publishing Your Content, you affirm, represent, and warrant that:
- you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use and to authorize invisaWear and users of the Service to use and distribute Your Content as necessary to exercise the licenses granted by you in this Section 5 and in the manner contemplated by invisaWear, the Service, and these Terms; and
- your Content, and the use of Your Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause invisaWear to violate any law or regulation.
- Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
6.1 use the Service for any illegal purpose or in violation of any local, state, national, or international law;
6.2 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
6.3 post, upload, or distribute Your Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
6.4 interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
6.5 interfere with the operation of the Service or any other user’s enjoyment of the Service, including by: (a) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect, personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
6.6 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
6.7 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 11) or any right or ability to view, access, or use any Material; or
6.8 attempt to do any of the acts described in this Section 6, or assist or permit any person in engaging in any of the acts described in this Section 6.
- Third-Party Services and Linked Websites
invisaWear may provide tools through the Service that enable you to export information, including Your Content, to third party services. By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
- Termination of Use; Discontinuation and Modification of the Service
If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, invisaWear may in its sole discretion terminate your account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. invisaWear may decide to charge a fee for the use of all or certain features, invisaWear will provide you with prior notice before such fees take effect. We will have no liability whatsoever relating to any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting letschat@invisawear.com. If you terminate your account, or if your access to the Service is terminated for any other reason, then invisaWear will no longer provide you with the Service or provide your account to our Monitoring Company and Emergency Service Providers. You remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination. invisaWear may retain Your Content or account information after your account is terminated.
- Privacy Policy; Additional Terms
9.1 Privacy Policy. Please read the invisaWear Privacy Policy carefully for information relating to our collection, use, storage and disclosure of your personal information. The invisaWear Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
9.2 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the "Additional Terms"), such as end-user license agreements for any downloadable software applications, or rules applicable to a particular feature or content on the Service, subject to Section 10 below. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- Modification of these Terms
invisaWear reserves the right to modify these Terms at any time, effective upon posting. Any use of this website after such changes will be deemed an acceptance of those changes. You agree to review the Terms each time you access the Site so that you may be aware of any changes to these Terms. In the event that any of the Terms of Use are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect. These Terms constitute the entire agreement between invisaWear and you pertaining to the subject matter hereof. In its sole discretion, invisaWear may from time-to-time revise these Terms of Use by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Use, so you are aware of any such revisions to which you are bound. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages within this Site.
- Ownership; Proprietary Rights
The Service is owned and operated by invisaWear. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by invisaWear are protected by intellectual property and other laws. All Materials contained in the Service are the property of invisaWear or our third-party licensors. Except as expressly authorized by invisaWear, you may not make use of the Materials. invisaWear reserves all rights to the Materials not granted expressly in these Terms. You acknowledge and agree that any feedback, comments or suggestions you may provide regarding the Service ("Feedback") will be the sole and exclusive property of invisaWear and you hereby irrevocably assign to us all of your right, title and interest in and to all Feedback. Any data the we generate from your usage of the Service will be owned by invisaWear and handled subject to the terms of our Privacy Policy, as applicable.
- Claims of Copyright Infringement
We disclaim any responsibility or liability for copyrighted materials posted on our Site. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below.
invisaWear respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act ("DMCA"), we will respond promptly to notices of alleged infringement that are reported to invisaWear’s Designated Copyright Agent, identified below.
Notices of Alleged Infringement for Content Made Available on the Site
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through our Site by sending us a notice ("Notice") complying with the following requirements.
- Identify the copyrighted works that you claim have been infringed.
- Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site where such material may be found.
- Provide your mailing address, telephone number, and, if available, email address.
- Include both of the following statements in the body of the Notice:
"I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)."
"I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
- Provide your full legal name and your electronic or physical signature.
- Deliver this Notice, with all items completed, to our Copyright Agent:
Raymond Hamilton
invisaWear Technologies Corporation
44 Stedman Street, STE 8
Lowell, MA 01851
Email: notices@invisawear.com
- Indemnity
You agree that you will be responsible for your use of the Service, and you agree to defend and indemnify invisaWear and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the ”invisaWear Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
- Disclaimers; No Warranties
BY USING THE SERVICE, YOU AGREE THAT INVISAWEAR CANNOT CONTROL THE MANNER IN WHICH EMERGENCY SERVICES ARE RENDERED, AND THEREFORE CANNOT AND DOES NOT GUARANTEE THAT EMERGENCY SERVICE PROVIDERS OR OUR MONITORING COMPANY WILL UTILIZE THE INFORMATION PROVIDED. NOT ALL EMERGENCY SERVICE PROVIDERS HAVE ACCESS TO THE SERVICE AND THE SERVICE MAY NOT BE UTILIZED BY OUR MONITORING COMPANY OR EMERGENCY SERVICE PROVIDERS THAT DO HAVE ACCESS.
USE OF THE SERVICE DOES NOT CONSTITUTE AN AGREEMENT BETWEEN YOU AND SUBSCRIBERS, EMERGENCY SERVICE PROVIDERS, OR OTHER USERS. YOU WILL NOT RELY ON THE SERVICE AS THE SOLE MEANS BY WHICH YOU WILL COMMUNICATE INFORMATION TO SUBSCRIBERS, EMERGENCY SERVICE PROVIDERS, OUR MONITORING COMPANY OR USERS. INVISAWEAR IS NOT RESPONSIBLE FOR THE ACTIONS OF ANY SUBSCRIBER, EMERGENCY SERVICE PROVIDER, OR OTHER USER. INVISAWEAR DOES NOT GUARANTEE DELIVERY OF ANY MESSAGE OR INFORMATION AND IS NOT RESPONSIBLE FOR ANY ACTION OR OMISSION BETWEEN OR AMONG USERS OF THE SYSTEM. INVISAWEAR DOES NOT HAVE CONTROL OVER THE VOIP SERVICE, TELEPHONE SERVICE OR INTERNET SERVICE PROVIDERS NECESSARY FOR PROVIDING THE SERVICE AND ANY FAILURE DUE TO A THIRD PARTY SERVICE PROVIDER IS NOT THE RESPONSIBILITY OF INVISAWEAR.
YOU ARE RESPONSIBLE FOR MANAGING YOUR TELEPHONE SERVICE PROVIDER ACCOUNT, ACCOUNT SUBSCRIPTIONS, LOCATION TRACKING, AND OTHER OPT-IN STATUSES AS REQUIRED TO ALLOW THE SERVICES TO LOCATE AND COMMUNICATE WITH YOUR PHONE. DEVICES THAT ARE LOCATION COMPATIBLE MAY NOT BE LOCATABLE BY THE SERVICE OR THE TELEPHONE SERVICE PROVIDER AT ALL TIMES. ANY LOCATION PROVIDED IS APPROXIMATE AND DOES NOT PROVIDE GUARANTEED RESULTS.
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. THE INVISAWEAR ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE INVISAWEAR ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
- Limitation of Liability
IN NO EVENT WILL THE INVISAWEAR ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY INVISAWEAR ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE INVISAWEAR ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO INVISAWEAR FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM; OR (B) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- General
These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and invisaWear regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms should survive, will survive, including Sections 2, 4, and 6 through 18.
- Dispute Resolution and Arbitration
17.1 Generally In the interest of resolving disputes between you and invisaWear in the most expedient and cost effective manner, you and invisaWear agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND INVISAWEAR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.2 Exceptions. Despite the provisions of Section 17.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
17.3 Arbitrator. Any arbitration between you and invisaWear will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting invisaWear.
17.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice"). invisaWear's address for Notice is: 44 Stedman Street, Unit 8, Lowell, MA 01851. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or invisaWear may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or invisaWear must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, invisaWear will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by invisaWear in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
17.5 Fees. If you commence arbitration in accordance with these Terms, invisaWear will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Massachusetts County, Massachusetts, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse invisaWear for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
17.6 No Class Actions. YOU AND INVISAWEAR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and invisaWear agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
17.7 Modifications. If invisaWear makes any future change to this arbitration provision (other than a change to invisaWear's address for Notice), you may reject the change by sending us written notice within 30 days of the change to invisaWear's address for Notice, in which case your account with invisaWear will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
17.8 Enforceability. If Section 17.6 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for Boston, Massachusetts.
- Consent to Electronic Communications
By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
CAN-SPAM Act and Telephone Consumer Protection Act Compliance
invisaWear is committed to being compliant with the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAM-SPAM ACT”) and the Telephone Consumer Protection Act (“TCPA”). You consent to receive text messages from us as set forth in this Section 18 and Section 3.3 above. Emails, newsletters, and text messages received from us are intended to fully comply with the CAM-SPAM ACT and the TCPA. In the event you receive an email or text message from us which you do not believe is fully compliant with the CAN-SPAM ACT or the TCPA, please contact us immediately at the address listed below under the section “Contact Information.”
You shall not use or permit any of your employees, agents, or affiliates to market, promote, or solicit invisaWear products or services in ways that would violate the CAN-SPAM ACT, the TCPA or any other laws. You shall not infringe on the rights of others; distribute chain letters or unsolicited bulk electronic mail (“spamming”); propagate computer worms or viruses; use a false identity; attempt to gain unauthorized entry to any site or network; or infringe copyrights, trademarks, or other intellectual property rights.
You further agree to comply with U.S. export laws concerning the transmission of technical data and regulated materials via the Internet. You agree to indemnify and hold invisaWear and its affiliates harmless for any and all acts found or suspected to be in violation hereof. You shall indemnify and hold invisaWear and its affiliates harmless against and from losses, damages, costs, and reasonable attorney fees incurred in defending or resolving any suits brought against invisaWear or any of its affiliates by anyone arising out of any alleged violation of any anti-spamming rules, regulations, laws, statutes. Your Account will be terminated for any of the above infractions.
- Online Services Associated with the invisaWear Application
The application portions of our Site may be used to access certain online services. In some cases, you will not receive a separate notice when the invisaWear application connects to those services. Using the invisaWear applications constitutes your consent to the transmission of standard device information (including, but not limited to, technical information about your device, system, and application software) to those services. Your use of those services may be governed by additional terms and conditions. Using the online services will constitute your acceptance of and agreement to be bound by those additional terms and conditions, if any. You may not use any online services in any way that could harm those services, disrupt their operation, or impair any other user’s use of those services or the wireless network through which they are accessed. You may not use the online services to gain unauthorized access to or use of any service, data, account, or network by any means.
- Application Support; Functionality
All questions and requests relating to Site support must be directed to invisaWear. To submit a support request, please email us at support@invisaWear.com. The Select Third Parties, as defined in Section 22, are not responsible for providing support for the application portions of the Site and may not be contacted for support. invisaWear will use commercially reasonable efforts to respond to questions and provide support during the hours of 9am to 5pm (EST) Monday through Friday. Please note that we may change or remove functionality and other features of the Site at any time, without notice.
- Modified Devices and Operating Systems
invisaWear will have no liability for errors, unreliable operation, or other issues resulting from use of the Site on or in connection with rooted or jail broken devices or use on any mobile device that is not in conformance with the manufacturer’s original specifications, including use of modified versions of the operating system (collectively, “Modified Devices”). Use of the Site on Modified Devices will be at your sole and exclusive risk and liability.
- No Liability for Select Third Parties
Your wireless carrier, the manufacturer and retailer of your mobile device, the developer of the operating system for your mobile device, the operator of any application store, marketplace, or similar service through which you obtain the Site, and their respective affiliates, suppliers, and licensors (collectively, the “Select Third Parties”) are not parties to these Terms of Use and they do not own and are not responsible for the Site. invisaWear, and not any Select Third Parties, is responsible for addressing any claims raised by you or any third party regarding the Site or your use or possession thereof, including claims related to product liability, legal, or regulatory requirements, and consumer protection or similar legislation. You are responsible for complying with all application store and other applicable Select Third Parties’ terms and conditions. YOU AGREE (I) THE SELECT THIRD PARTIES DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE SITE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE; (II) IN NO EVENT WILL THE SELECT THIRD PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) ARISING OUT OF THIS AGREEMENT OR THE SITE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (III) IN ANY EVENT, THE MAXIMUM LIABILITY OF ANY SELECT THIRD PARTY FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) OF EVERY KIND WILL IN NOT EXCEED FIVE DOLLARS ($5.00); AND (IV) YOU WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST THE SELECT THIRD PARTIES ARISING OUT OF THE SITE AND THESE TERMS OF USE. THE THIRD PARTIES ARE INTENDED THIRD PARTY BENEFICIARIES OF THESE TERMS OF USE, AND ARE CAPABLE OF DIRECTLY ENFORCING ITS TERMS. NOTHING CONTAINED IN THESE TERMS OF USE WILL BE CONSTRUED AS MODIFYING OR AMENDING ANY AGREEMENTS OR OTHER TERMS BETWEEN YOU AND THE SELECT THIRD PARTIES WITH REGARD TO THEIR SUBJECT MATTER. In the event of any claim that the Site or your possession and use of the Site infringes a third party’s intellectual property rights, the Select Third Parties are not responsible for the investigation, defense, settlement, or discharge of the infringement claim.
- Location-Enabled Features
Certain location-enabled functionality made available on the Site is provided by Google Inc., Apple Inc., and other third party providers. Your use of that functionality may be subject to additional terms and conditions (as updated from time-to-time): http://www.google.com/intl/en-US_US/help/terms_maps.html and https://www.apple.com/legal/internet-services/maps/terms-en.html. You must exercise your own judgment as to the adequacy and appropriateness of the information. All location-based information is provided entirely “as-is,” without warranties of any kind. invisaWear makes no guarantees or warranties regarding the accuracy of any maps or location services on the Site. You are ultimately responsible for your own navigation and safety while using the Site.
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Other Important Terms
We may transfer our rights and obligations under a contract to another organization, but this will not affect your rights or our obligations under these Terms of Sale.
You may only transfer your rights or your obligations under these Terms of Sale to another person if we agree in writing.
We contract with OpenBorder, Inc. together with its subsidiaries (referred to as “OpenBorder”) to sell and deliver our products to international consumers.
If your order is shipping to Algeria, Andorra, Angola, Anguilla, Antigua and Barbuda, Argentina, Armenia, Aruba, Australia, Austria, Azerbaijan, Bahamas, Bahrain, Bangladesh, Barbados, Belgium, Belize, Benin, Bermuda, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, British Virgin Islands, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Cape Verde, Cayman Islands, Central African Republic, Chad, Chile, China, Colombia, Comoros, Cook Islands, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Eritrea, Estonia, Ethiopia, Falkland Islands, Faroe Islands, Fiji, Finland, France, French Guiana, French Polynesia, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Greenland, Grenada, Guadeloupe, Guatemala, Guernsey, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, Hong Kong, Hungary, Iceland, India, Indonesia, Iraq, Ireland, Israel, Italy, Ivory Coast, Jamaica, Japan, Jersey, Jordan, Kazakhstan, Kenya, Kiribati, Kuwait, Kyrgyzstan, Latvia, Lebanon, Lesotho, Liberia, Libya, Liechtenstein, Lithuania, Luxembourg, Macao, Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Martinique, Mauritius, Mayotte, Mexico, Moldova, Monaco, Mongolia, Montenegro, Montserrat, Morocco, Mozambique, Namibia, Nauru, Nepal, Netherlands, New Caledonia, New Zealand, Nicaragua, Niger, Nigeria, Niue, North Macedonia, Norway, Oman, Pakistan, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Réunion, Romania, Rwanda, Saint Barthélemy, Saint Helena, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, San Marino, Saudi Arabia, Senegal, Seychelles, Sierra Leone, Singapore, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Taiwan, Tajikistan, Tanzania, Thailand, Togo, Tonga, Trinidad and Tobago, Tunisia, Turkey, Turkmenistan, Turks and Caicos Islands, Tuvalu, Uganda, United Arab Emirates, United Kingdom, Uruguay, Uzbekistan, Vanuatu, Vatican City, Vietnam, Zambia, Zimbabwe where our international shipping is supported by OpenBorder, additional terms and conditions here may apply to you in addition to any relevant terms and conditions imposed in this Terms of Sale.
- Contact Information
The Service is offered by invisaWear Technologies Corporation, located at 44 Stedman Street, Unit 8, Lowell, MA 01851. You may contact us by sending correspondence to that address or by emailing us at letschat@invisaWear.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the address above with your electronic mail address and a request for these Terms.
Mobile Monitoring Terms
invisaWear may use one or more third-party service providers to provide monitoring, communications, signal transmission services or other services. To the extent permitted by law, the limitations of liability and dispute resolution terms and conditions set forth in these Mobile Monitoring Terms (“Agreement”) shall apply to the services provided by third-party service providers in connection with this Agreement, and shall apply to them and protect such third-party service provider in the same manner as it applies to and protects invisaWear, including ADT LLC, which provides monitoring services (the “ADT Services”).
IMPORTANT - BY USING THE ADT SERVICES, INCLUDING USE THROUGH A THIRD-PARTY APPLICATION, YOU AGREE TO BE BOUND BY THIS AGREEMENT. THE TERMS OF THIS AGREEMENT MAY CHANGE FROM TIME TO TIME, IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT PERIODICALLY. BY ACCEPTING THIS AGREEMENT AND CONTINUING TO USE THE ADT SERVICES YOU ARE ACCEPTING THIS AGREEMENT, AND ANY UPDATES AND CHANGES TO THIS AGREEMENT. THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE THAT LIMITS YOUR LEGAL RIGHTS. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, DO NOT PROCEED ANY FURTHER WITH REGISTRATION FOR THE SERVICES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES OR THIS AGREEMENT IS TO CEASE USING THE SERVICES.
- SIGNAL RESPONSE
Upon receipt of an alarm signal (“Signal”) from you at ADT's central monitoring center, ADT may, at its sole discretion, attempt to contact you and/ or anyone on your emergency contact list (if applicable) using the data provided by invisaWear, to confirm that the Signal requires action and is not a false alarm. If ADT does not contact you and/or someone on your emergency contact list (if applicable), or if ADT questions the response it receives upon such contact, then ADT will attempt to notify the appropriate police department, medical response services or fire department if authorized by you and not otherwise prohibited by law. You agree that the very nature of Signal response, regardless of any delay, involves uncertainty, risk and possible serious injury, disability or death, for which you will not attempt to hold ADT responsible or liable; and that the actual time required for first responders to arrive at your premises and/or to transport any person requiring medical attention is unpredictable with many contributing factors, including telephone network operation, distance, weather, road and traffic conditions, alarm equipment function and human factors both within and outside of ADT's control. The person(s) identified on your emergency contact list (if applicable) are authorized to act on your behalf. Local laws, ordinances or policies may restrict ADT's ability to provide the Signal monitoring and response services described herein. ADT employs a number of industry-recognized measures to help reduce occurrences of false alarms. These measures include, but are not limited to, various procedures at ADT's central monitoring center to determine when and how to respond, if at all, to certain Signals. You consent to ADT's use of these measures. Upon receiving notification that a Signal has been received by ADT from you, the police department, fire department or other responding authority may forcibly enter your premises or the premises from which your signal originates.
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LIMITATIONS ON ADT’S LIABILITY
- NO WARRANTIES. YOU AGREE THAT ADT MAKES NO GUARANTEE OR WARRANTY OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO YOUR DEVICE(S) OR TO THE SERVICES ADT PERFORMS. YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT IS SET FORTH IN SECTION 2(d) (EXCLUSIVE REMEDY) BELOW. SOME STATES MAY NOT ALLOW THE PARTIES TO A CONTRACT TO LIMIT THE LENGTH OF AN IMPLIED WARRANTY. THE LAWS OF THE STATE WHERE YOU RESIDE WILL DETERMINE WHETHER THESE LIMITATIONS AND EXCLUSIONS APPLY.
- INSURANCE; WAIVER OF SUBROGATION. YOU AGREE THAT ADT IS NOT AN INSURER AND THAT ADT IS NOT PROVIDING YOU WITH INSURANCE OF ANY TYPE. ANY AMOUNTS YOU MAY PAY INVISAWEAR, ADT OR A THIRD PARTY FOR USE OF THE SERVICES ARE NOT INSURANCE PREMIUMS AND ARE NOT RELATED TO THE VALUE OF YOUR LIFE, PROPERTY, ANYONE ELSE’S LIFE OR PROPERTY IN YOUR CUSTODY OR LOCATED IN YOUR PREMISES OR ANY RISK OF LOSS OF THE AFFOREMENTIONED. INSTEAD, THE AMOUNTS YOU MAY PAY ARE BASED SOLELY UPON THE VALUE SERVICES ADT PROVIDES AND UPON THE LIMITED LIABILITY ADT ASSUMES UNDER THIS AGREEMENT. IF YOU WANT INSURANCE TO PROTECT AGAINST ANY RISK OF LOSS OF YOUR LIFE, PROPERTY, ANYONE ELSE’S LIFE OR PROPERTY, YOU WILL PURCHASE IT. IN THE EVENT OF ANY LOSS, DAMAGE OR INJURY, YOU WILL LOOK EXCLUSIVELY TO YOUR INSURER AND NOT TO ADT TO COMPENSATE YOU OR ANYONE ELSE FOR SUCH EVENT OR LOSS. YOU RELEASE AND WAIVE FOR YOURSELF AND YOUR INSURER ALL SUBROGATION AND OTHER RIGHTS TO RECOVER AGAINST ADT ARISING AS A RESULT OF THE PAYMENT OF ANY CLAIM FOR LOSS, DAMAGE, OR INJURY ARISING OF THIS AGREEMENT.
- NO GUARANTEE; NO LIABILITY. YOUR DEVICE(S), EQUIPMENT, ADT’S SERVICES, AND/OR YOUR USE OF ADT’S SERVICES DO NOT CAUSE AND CANNOT ELIMINATE OCCURRENCES OF THE EVENTS THEY ARE INTENDED TO DETECT OR AVERT OR FOR WHICH NOTIFICATION IS PROVIDED, INCLUDING, BUT NOT LIMITED TO, FIRES, FLOODS, BURGLARIES, TORTS, ROBBERIES, ASSAULT OTHER CRIMINAL ACTIVITY, AND MEDICAL PROBLEMS. ADT MAKES NO GUARANTY OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT YOUR DEVICE(S), ADT’S SERVICES, AND/OR YOUR USE OF ADT’S SERVICES WILL DETECT OR AVERT SUCH INCIDENTS OR THEIR CONSEQUENCES. ADT DOES NOT UNDERTAKE ANY RISK THAT YOU OR YOUR PROPERTY, OR THE PERSON OR PROPERTY OF OTHERS, MAY BE SUBJECT TO INJURY OR LOSS IF SUCH AN EVENT OCCURS. THE ALLOCATION OF SUCH RISK REMAINS WITH YOU, NOT ADT. YOU RELEASE, WAIVE, DISCHARGE AND PROMISE NOT TO SUE OR BRING ANY CLAIM OF ANY TYPE AGAINST ADT OR ITS THIRD PARTY PROVIDERS FOR LOSS, DAMAGE, OR INJURY RELATING IN ANY WAY TO THE YOUR DEVICE(S) OR THE SERVICES PROVIDED BY ADT.
- EXCLUSIVE REMEDY. IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGES, IF ANY, THAT MAY RESULT FROM A FAILURE BY ADT TO PERFORM ANY OF ITS OBLIGATIONS. UNDER NO CIRCUMSTANCES WILL YOU ATTEMPT TO HOLD ADT LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY OR DAMAGES TO PROPERTY. IF, NOTWITHSTANDING THE PROVISIONS OF THIS SECTION 2 (LIMITATIONS ON ADT’S LIABILITY), ADT IS FOUND LIABLE FOR LOSS, DAMAGE, OR INJURY UNDER ANY LEGAL THEORY RELATING IN ANY WAY TO THE SERVICES PROVIDED BY ADT AND/OR YOUR DEVICE(S), ADT’S LIABILITY TO YOU SHALL BE LIMITED TO A SUM EQUAL TO 10% OF ANY AMOUNTS YOU MAY PAY FOR USE OF THE ADT SERVICES OVER LAST THE TWELVE MONTHS OR $500, WHICHEVER IS GREATER. THIS AGREED-UPON AMOUNT IS NOT A PENALTY. RATHER, IT IS YOUR SOLE REMEDY. UPON YOUR REQUEST, ADT MAY AGREE TO ASSUME LIABILITY BEYOND WHAT IS PROVIDED FOR IN THIS SECTION 2 BY ATTACHING AN AMENDMENT TO THIS AGREEMENT SETTING FORTH THE EXTENT OF ADT’S LIABILITY AND THE ADDITIONAL CHARGES TO YOU.
- APPLIES IN ALL CASES. THE PROVISIONS OF THIS SECTION 2 (LIMITATIONS ON ADT’S LIABILITY) APPLY NO MATTER HOW THE LOSS, DAMAGE, INJURY, OR OTHER CONSEQUENCE OCCURS, EVEN IF DUE TO THE PERFORMANCE OR NONPERFORMANCE BY ADT OF ITS OBLIGATIONS OR FROM NEGLIGENCE (ACTIVE OR OTHERWISE), STRICT LIABILITY, VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR ANY OTHER THEORY OF LIABILITY OR ALLEGED FAULT ON THE PART OF ADT, ITS AGENTS OR ITS EMPLOYEES.
- INDEMNITY BY YOU. IF ANY OTHER PERSON, INCLUDING YOUR SUBROGATING INSURER, MAKES ANY CLAIM OR FILES ANY LAWSUIT AGAINST ADT IN ANY WAY RELATED TO (1) YOUR DEVICE(S), EQUIPMENT, OR THE SERVICES PROVIDED BY ADT TO YOU, OR (2) ANY INACCURACIES IN ANY PERSONAL INFORMATION, INCLUDING ANY CONTACT INFORMATION, PROVIDED TO ADT IN ORDER FOR ADT OR ITS REPRESENTATIVE TO COMMUNICATE WITH YOU FOR ANY REASON (INCLUDING BUT NOT LIMITED TO IN REGARD TO THE ADT SERVICE), YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD ADT HARMLESS FROM ANY AND ALL SUCH CLAIMS AND LAWSUITS, INCLUDING THE PAYMENT OF ALL DAMAGES, EXPENSES, COSTS, AND ATTORNEYS’ FEES. YOUR DUTY TO DEFEND IS SEPARATE AND DISTINCT FROM YOUR DUTY TO INDEMNIFY AND HOLD HARMLESS AND ARISES UPON THE ASSERTION OF A CLAIM OR DEMAND AGAINST ADT AND REGARDLESS WHETHER ADT HAS BEEN FOUND LIABLE OR WHETHER ADT HAS INCURRED ANY EXPENSE.
- TIME TO BRING CLAIM OR SUIT. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST ADT AFTER THE SHORTER OF (1) ONE YEAR AFTER THE DATE OF THE LOSS, OR (2) THE SHORTEST TIME ALLOWED BY APPLICABLE LAW.
- BENEFIT TO OTHERS. THE PROVISIONS OF THIS SECTION 2 (LIMITATIONS ON ADT’S LIABILITY) SHALL APPLY TO AND BENEFIT ADT AND ITS AGENTS, EMPLOYEES, CONTRACTORS, SUBSIDIARIES, DEALERS, AFFILIATES, PARENTS (BOTH DIRECT AND INDIRECT), AFFINITY MARKETERS, INVISAWEAR, THIRD PARTY PROVIDERS OF YOUR DEVICE(S), AND ALL OTHER PARTNERS USED BY ADT IN PROVIDING THE SERVICES TO YOU.
- OTHER PARTIES LIMITATION. If you purchase your device(s) or use the services through another business or person, or from ADT through a referral from another business or person, you agree that such other business or person acts solely as an independent contractor and has no responsibility or liability to you for the performance or nonperformance of the services provided by ADT. To the extent permitted by law, the limitations of liability and dispute resolution terms and conditions set forth in Section 2 (LIMITATIONS ON ADT’S LIABILITY) and Section 3 (REQUIREMENTS FOR RESOLVING DISPUTES) in this agreement shall apply to third-party application, device, and service providers in connection with this agreement, and shall apply to them and protect such third-party in the same manner as it applies to and protects ADT.
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REQUIREMENTS FOR RESOLVING DISPUTES
- Binding Arbitration. ADT AND YOU AGREE THAT ANY AND ALL DISPUTES ARISING UNDER THIS AGREEMENT SHALL BE GOVERNED BY BINDING ARBITRATION AS SET FORTH IN THIS SECTION 3 (REQUIREMENTS FOR RESOLVING DISPUTES). Arbitration is a dispute-resolution process that does not involve a judge or jury. Instead, Disputes are decided by a neutral third-party arbitrator in a process that is less formal than court.
- Small Claims Court Allowed. ADT agrees not to elect arbitration if you file a Dispute in a small claims court in your state of residency so long as the Dispute is individual and non-representative in nature and remains exclusively as such in small claims court.
- Advanced Notice Requirement. Before initiating an arbitration or a small claims matter, you and ADT agree to first provide to the other a written “Notice of Dispute” that will contain: (a) a written description of the issue and the supporting documents and information, and (b) a specific request for money or other relief. A Notice of Dispute to ADT should be sent to: Litigation Department, ADT Security Services, 1501 Yamato Road, Boca Raton, FL 33431. ADT will mail a Notice of Dispute to the current address on your Account.
- Rules for Proceeding. You and ADT agree to make attempts to resolve the Dispute prior to commencing an arbitration or small claims action. If an agreement cannot be reached within forty-five (45) days of receipt of the Notice of Dispute, ADT or you may commence an arbitration proceeding or small claims action.
- Initiation of Arbitration Proceeding. If either you or ADT elects to arbitrate a Dispute, the Dispute shall be resolved by arbitration pursuant to this Arbitration Agreement and the then-current code of proceedings of the national arbitration organization to which the Dispute is referred. ADT or you may refer a Dispute to either the American Arbitration Association (“AAA”) or the Judicial Arbitration and Mediation Services (“JAMS”). If ADT elects arbitration and chooses one of the organizations to administer, you may object and automatically have the other organization administer the proceedings simply by notifying ADT of your objection in writing within 30 days of your receipt of ADT’s initial selection. To obtain a copy of the procedures, or to file a Dispute, you may contact the organizations at the following: (1) AAA, 335 Madison Avenue, New York, NY 10017, adr.org, and (2) JAMS, 1920 Main Street, Suite 300, Los Angeles, CA 92614, www.jamsadr.com.
- Law Governing Disputes. Because your transaction(s) with ADT involves interstate commerce, this Arbitration Agreement and any Dispute arbitrated hereunder shall be governed by the Federal Arbitration Act (“FAA”). The JAMS or AAA code of procedures, as chosen, will govern the arbitration, but if there is a conflict between the applicable code of procedures and this Arbitration Agreement, this Arbitration Agreement shall control to the fullest extent permitted by the FAA. Unless otherwise agreed to by you and ADT, the arbitration will be conducted by a single, neutral arbitrator at a location within the federal judicial district in which you reside. Upon your request, ADT will reimburse you for all filing and administrative fees required for initiating the arbitration. Otherwise, each party is responsible for its own respective costs and fees, including, but not limited to, attorney and expert fees. The arbitrator shall apply applicable substantive law and, upon the request of either you or ADT, issue a written explanation of the basis for the decision.
- Waiver of Litigation. IF EITHER YOU OR ADT ELECTS TO ARBITRATE A DISPUTE, YOU AND ADT WAIVE THE RIGHT TO A JURY TRIAL AND TO OTHERWISE LITIGATE THE DISPUTE IN COURT. BY AGREEING TO ARBITRATE, YOU AND ADT MAY ALSO WAIVE OTHER RIGHTS THAT WOULD OTHERWISE BE AVAILABLE IN COURT. FURTHER, IF EITHER ADT OR YOU ELECTS TO ARBITRATE A DISPUTE, YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR TO PARTICIPATE AS A MEMBER OF ANY CLASS ACTION RELATING TO THE DISPUTE. This means that all Disputes selected for arbitration will be arbitrated on an individual basis, between ADT and you only, without exception. A Dispute cannot be joined or consolidated with any other claim or action.
- Arbitration is Final. Judgment on the arbitration award may be entered in any court having proper jurisdiction. EXCEPT AS FOLLOWS, THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. ADT or you may appeal the arbitrator’s initial award to a three-arbitrator panel administered by the same arbitration organization upon written notice within 30 days of the initial award. The arbitration organization will notify the other party of the appeal. The panel shall consider any aspect of the initial award objected to by the appealing party and issue a decision within 120 days of the date of the notice of appeal. The majority decision by the three-member panel shall be final and binding. Any dispute regarding the applicability, enforcement or interpretation of Section 2 (LIMITATIONS OF ADT’S LIABILITY) or this Section 3 (REQUIREMENTS FOR RESOLVING DISPUTES) shall be resolved by a court having proper jurisdiction. This Arbitration Agreement will not prevent you from bringing a Dispute to the attention of any federal, state, or local government agency. This Arbitration Agreement shall survive termination of this Agreement.
