IMPORTANT READ CAREFULLY. YOUR USE OF THE APPLICATION (AS DEFINED BELOW) IS CONDITIONED UPON YOUR COMPLIANCE WITH, AND ACCEPTANCE OF, THE FOLLOWING AGREEMENT.
User License Agreement and Assumption of Risk, Release and Indemnity Agreement
(the "Agreement") is a binding agreement between Punch Technologies, Inc., a Delaware
corporation ("PunchAlert") and you individually, or the entity for which you
accept this Agreement ("you", and together with PunchAlert, the "Parties" and
each a "Party").
BY DOWLOADING, INSTALLING, ACTIVATING OR USING 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, OR IF YOU ARE NOT OF LEGAL AGE, YOUR PARENT AND/OR LEGAL GUARDIAN IS ENTERING INTO THIS AGREEMENT ON YOUR BEHALF; 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, INSTALL OR USE THE APPLICATION. IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT THE TERMS OF THIS AGREEMENT, PLEASE CONTACT PunchAlert AT CONTACT@PUNCHALERT.COM
1.Definitions. The following terms shall have the following meanings.
a)"Application" means, collectively, the Documentation, Software, and Services.
b)"Documentation" means all product user guides, installation guides, manuals, release notes, safety instructions or other end user documentation that PunchAlert provides to you in whatever form, whether through its website (http://www.punchalert.com)and includes our Open Source disclosure statement which can be reviewed here, otherwise, in connection with your use of any Software or Service.
c)"Software" means any PunchAlert software or application provided to you under this Agreement, in whatever form, medium or manner, including any updates, upgrades, amendments and modifications thereto.
d)"Services" means any services PunchAlert provides to you from time to time in conjunction with the Software as such services may be modified, changed, revised or deleted in whole or part from time to time, including without limitation any form of messaging including e-mail, instant messaging, SMS, phone, video, IP telephony and any subscription services to which you may subscribe and use in conjunction with the Software.
a)Application.Subject to the terms of this Agreement and payment of any applicable fees, PunchAlert grants you a limited, non-exclusive and nontransferable license, with no right to grant sublicenses, to download, install and use the Application in the Territory (as defined below) for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with the Documentation.
b)Third Party Software.The Software may contain or be provided with open source software and/or software owned by third parties ("Third Party Software"). You shall be licensed to use the Third Party Software only for purposes of using the Application, subject to applicable restrictions and other terms and conditions set forth in the Documentation and the OSS Disclosure. By using the Software you are also agreeing to be bound to the terms of such third party licenses. In no event shall the Application be deemed to be open source software. For a copy of any included open source software, please contact your PunchAlert representative.
The Software may contain or be provided with open source software and/or software owned by third parties ("Third Party Software"). You shall be licensed to use the Third Party Software for purposes of using the Application, subject to applicable restrictions and other terms and conditions set forth in the Documentation
c)General Rights and Obligations.PunchAlert is solely responsible for the design and function of the Application in the manner that it determines to be appropriate.PunchAlert reserves the right to modify, upgrade and fix the Application, and to add or delete features, in the normal course of its business. The Application, including but not limited to any updates, upgrades or patches that are provided by PunchAlert, will be delivered by PunchAlert only by electronic means. In no event will PunchAlert be required to deliver any Software, Documentation, or Service, or any updates, upgrades or patches, on tangible media. Any such updates, upgrades or patches shall be subject to the terms and conditions of this Agreement and any other additional terms and conditions (which may include the payment of fees) which PunchAlert may specify.
3.License Restrictions.You shall not:
a)copy the Application;
b)modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application or any part thereof except as otherwise allowed by the licenses governing the open source software.;
c)reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
d)remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
e)rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;
f)remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application; or
g)take any action or upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Application that: (i) infringes any patent, trademark, trade secret, right in confidential information, copyright, right of publicity or other right of any other person or entity, (ii) violates any international, federal, state or local law, statute, rule, regulation, ordinance or code or any contractual duty, or that you know is false, misleading, untruthful or inaccurate; (iii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane or otherwise inappropriate as determined by PunchAlert in its sole discretion; (iv) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (v) involves commercial activities and/or sales without PunchAlert's prior written consent; (vi) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of PunchAlert or any third party; (vii) impersonates any person or entity, including any employee or representative of PunchAlert; (viii) imposes or may impose, as determined by PunchAlert in its sole discretion, an unreasonable or disproportionately large load on PunchAlert's, or its third party providers', infrastructure; (ix) interferes or attempts to interfere with the proper working of the Application or any activities conducted on the Application; (x) bypasses any measures Punch Alert may use to prevent or restrict access to the Application or other accounts, computer systems or networks connected to the Application; or (xi) runs any form of auto-responder or spam on the Application.
4.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 to you, and subject to all terms, conditions and restrictions under this Agreement. PunchAlert reserves and shall retain its entire right, title and interest in and to the Application, including all patents, trade secrets, copyrights, trademarks and other intellectual property rights therein or relating thereto.
6.Territory. The Application is intended for use only in the United States of America and Canada (the "Territory"). PunchAlert may change the Territory by posting such change on its website and such posting shall be deemed to be notice of the change.
7.Term and Termination. This Agreement is effective until terminated. This Agreement, including without limitation your right to use the Application, terminates immediately if you fail to comply with any of this Agreement's provisions or otherwise breach any representation or warranty herein. In addition, PunchAlert may terminate this Agreement with or without cause immediately and without notice. Sections shall survive the termination of this Agreement. Upon the termination of this Agreement, (i) PunchAlert may immediately terminate and block your access and use of the Application, and (ii) you shall cease all use of the Application and uninstall the Application from your Mobile Device. Without limiting the foregoing, in the event of a breach that gives rise to the right by PunchAlert to terminate this Agreement, PunchAlert may elect, as an interim measure, to suspend its performance hereunder (including, without limitation, your right to access and use the Applications) until the breach is cured and all fees shall continue to accrue during the period of such suspension. PunchAlert's exercise of its right to suspend performance shall be without prejudice to PunchAlert's right to terminate this Agreement upon written notice to you.
8.Content. By transmitting any message, communication, information or data including without limitation photos, location information, emergency alerts or responses ("Content"), you grant PunchAlert and its affiliates a perpetual, non-exclusive, worldwide, royalty-free, sub-licensable and irrevocable license to collect, use, store, handle, reproduce, display, perform, and transmit such Content for any purpose in connection with the Application, including without limitation, any marketing or development efforts. You represent and warrant, and can demonstrate to PunchAlert's full satisfaction upon request, that you (a) own or otherwise control all rights to all Content, or that the Content is in the public domain, (b) you have the permission to use the name and likeness of each identifiable individual person in such Content and to use such individual's identifying or personal information as contemplated by this Agreement, and (c) you are authorized to grant all of the aforementioned rights to the Content to PunchAlert.
9.Ideas and Suggestions. PunchAlert wishes to continually improve its Application. PunchAlert welcomes any ideas, suggestions or feedback related to the Application or for upgrades, updates, improvements, new features or functions thereto ("Ideas"). If you provide Punch Alert with any Ideas, whether orally, in writing, or in any other way, you hereby irrevocably assign all rights to modify, enhance or otherwise create derivative works of the Application using such Ideas, together with all copyrights, trade secrets, trademarks, patents, patent rights and other intellectual property rights related thereto. No rights to the Applications are granted to Client hereunder other than as expressly set forth herein. You represent and warrant, and can demonstrate to PunchAlert's full satisfaction upon request that you (a) own or otherwise control all rights to all Ideas, or that the Ideas are in the public domain, and (b) you are authorized to grant all of the aforementioned rights to the Ideas to PunchAlert.
10.Third Party Content and Services. The Application may permit you to link to other websites, services or resources on the Internet ("Third Party Services"). When you access such Third Party Services, you do so at your own risk. The Third Party Services are not under PunchAlert's control, and you acknowledge that PunchAlert is not responsible and will not be liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such Third Party Services.
11.Export Restrictions. 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 country in which you downloaded the Application.
12.Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PunchAlert, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND ITS AFFILIATES' 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 LIMITING THE GENERALITY OF THE FOREGOING, PunchAlert PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OR GUARANTY OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, DEVICES, HARDWARE, SOFTWARE 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, OR THAT ANY MESSAGES, CONTENT OR INFORMATION SENT BY OR TO YOU WILL BE ACCURATE, TRANSMITTED SUCCESSFULLY OR IN AN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. 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 OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT ANY WARRANTY WHATSOEVER CANNOT BE EXCLUDED AS SET OUT ABOVE BUT CAN BE LIMITED IN DURATION, SUCH WARRANTIES ARE HEREBY LIMITED TO THIRTY (30) DAYS FROM THE DATE YOU FIRST INSTALLED THE SOFTWARE ON ANY DEVICE OR COMMENCED TO USE THE APPLICATION. THE APPLICATION MAY BE USED IN CONJUNCTION WITH EXISTING EMERGENCY SERVICES BUT IT SHOULD NOT BE CONSIDERED A REPLACEMENT FOR CURRENT SECURITY SERVICES USED OR A REPLACEMENT FOR OFFICIAL EMERGENCY RESPONDERS, SUCH AS 911.
13.Limitation of Liability. TO THE EXTENT ANY CLAIM IS NOT BARRED UNDER SECTION 17, IN NO EVENT SHALL PunchAlert OR ITS AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, AGGRAVATED OR EXEMPLARY DAMAGES, DAMAGES RELATED TO OR ARISING FROM PERSONAL INJURIES OR DEATH, MEDICAL OR HEALTH COSTS OR EXPENSES, OR MENTAL DISTRESS, DAMAGES FOR LOSS OF PROFITS OR REVENUES, LOSS OF INFORMATION, CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, OR OTHER SIMILAR PECUNIARY LOSSES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE APPLICATION, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PunchAlert WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PunchAlert'S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
14.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 ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
15.Assumption of Risk.IN ANY USE OF THE APPLICATION, ESPECIALLY WHEN RESPONDING TO ALERTS OR REPORTS GENERATED BY THIRD PARTIES, RISK OF SERIOUS PHYSICAL INJURY IS POSSIBLE. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE FULLY AWARE AND UNDERSTAND THAT: (I) THERE ARE INHERENT RISKS IN USING THE APPLICATION; (II) THE INHERENT RISKS OF INJURY RESULTING FROM THE APPLICATION'S USE ARE POTENTIALLY SIGNIFICANT,INCLUDING RISKS AND DANGERS OF GRAVE OR MINOR BODILY INJURY, INCLUDING WITHOUT LIMITATION PERMANENT DISABILITY, PARALYSIS, DEATH, AND OTHER RISKS; (III) THAT THESE RISKS AND DANGERS MAY BE CAUSED BY, ARISE OUT OF, OR BE IN CONNECTION WITH YOUR OWN ACTIONS OR INACTIONS, THE ACTIONS OR INACTIONS OF OTHERS USING THE APPLICATION, OR THE CONDITION OR OPERATION OF THE APPLICATION, OR LACK OR INSUFFICIENCY THEREOF, OR THE NEGLIGENCE OF A RELEASED PARTY (AS DEFINED BELOW) OR ITS AFFILIATES; (IV) THERE ARE PHYSICAL RISKS INVOLVED WITH CERTAIN USES OF THE APPLICATION; (V) YOU UNDERSTAND YOUR EXPERIENCE AND CAPABILITIES, AND YOU BELIEVE YOU ARE QUALIFIED TO USE THE APPLICATION. YOU DO KNOWINGLY AND FREELY ASSUME ALL RISKS (BOTH KNOWN AND UNKNOWN, FORESEEABLE AND UNFORESEEABLE) AND TAKE FULL RESPONSIBILITY FOR YOUR USE OF THE APPLICATION OR ACTIONS YOU TAKE OR DO NOT TAKE RELATED TO YOUR USE OF THE APPLICATION.YOU REPRESENT TO THE RELEASED PARTIES THAT YOU ACCEPT AND ASSUME RESPONSIBILITY FOR ANY LOSS, DAMAGE, OR INJURY YOU MAY SUSTAIN OR CAUSE AS A RESULT OF YOUR USE OF THE APPLICATION. YOU UNDERSTAND THERE MAY BE OTHER RISKS NOT KNOWN TO YOU OR THAT ARE NOT READILY FORESEEABLE AT THIS TIME. THE RISKS OUTLINED IN THIS AGREEMENT ARE NOT EXHAUSTIVE, AND YOU ACKNOWLEDGE THAT THERE MAY BE OTHER RISKS, HAZARDS, AND DANGERS THAT, BASED ON THE CIRCUMSTANCES, ARE INHERENT IN THE USE OF THE APPLICATION. YOU UNDERSTAND AND ACCEPT THE INHERENT RISKS OF RECEIVING ALERTS OF CRIMINAL ACTIVITY OR EMERGENCIES REPORTED BY THIRD PARTIES ("ALERTS"), RESPONDING OR NOT RESPONDING TO SUCH ALERTS, AND THE INHERENT RISKS IN RELYING ON OR OTHERWISE BELIEVING SUCH ALERTS, INCLUDING WITHOUT LIMITATION:
a)the possibility that an Alert is false, inaccurate, or produced by a third party by mistake, in bad faith or in error;
b)the possibility that you will be held liable for your actions or inactions in responding to an Alert, including without limitation the possibility that you may negligently contribute to your own injury or that of others;
c)the possibility that you will suffer property damage, physical injury, kidnapping or death as a result of responding to an Alert;
You understand that injuries, death, property damage and other losses may result from the accepted risks of using the Application and receiving Alerts, that such use has the potential to be dangerous, and that the risks listed in this Agreement are just a sampling and you are not relying on the Released Parties to list all possible risks related to the use of the Application.For purposes of this Agreement, "Released Parties" means, collectively, PunchAlert, its owners, agents, employees, trustees, independent contractors, managers, members, and any affiliate, successor, or assign of any of the foregoing.
16..You will comply with all rules of PunchAlert. If you observe any hazards, either subjective or objective, to yourself, you will immediately leave the unsafe area.Without limiting the generality of the foregoing, you therefore agree that: (a) you will follow PunchAlert's rules and abide by this Agreement at all times; (b) you will at all times be responsible for your personal safety; and (c) you will be financially responsible for any medical expenses you may incur.
17.Release and Covenant Not to Sue.IN CONSIDERATION OF THE LICENSE GRANTED TO YOU UNDER THIS AGREEMENT, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, YOU HEREBY RELEASE, DISCHARGE AND COVENANT NOT TO SUE THE RELEASED PARTIES, AND ALL OTHERS ACTING ON THEIR BEHALF, AND ANY SUCCESSORS AND ASSIGNS OF ANY OF THE AFOREMENTIONED ENTITIES OR INDIVIDUALS FROM ANY AND ALL INJURIES, LOSSES, LIABILITIES, CAUSES OF ACTION, SUITS, CLAIMS, AND DAMAGES (INCLUDING ATTORNEY'S FEES AND COSTS) RELATED TO YOUR USE OF THE APPLICATION, INCLUDING, WITHOUT LIMITATION, ALL LIABILITY AND CLAIMS FOR PROPERTY DAMAGE, PERSONAL INJURIES OR WRONGFUL DEATH, EVEN THOUGH SUCH INJURY, LOSS OR DAMAGE RESULTS FROM THE NEGLIGENCE OF A RELEASED PARTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND FOR THE AVOIDANCE OF DOUBT, PunchAlert WILL NOT BE LIABLE FOR ITS NEGLIGENT ACTS OR OMISSIONS.
18.Indemnification. You agree to indemnify, defend and hold harmless PunchAlert 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 reasonable attorney's fees, arising from or relating to your use or misuse of the Application, your breach of Section 17 above or any other breach by you of this Agreement or any representation or warranty herein. Furthermore, you agree that PunchAlert assumes no responsibility for the Content you submit, make available or receive through the Application.
19.Assignment. PunchAlert may assign this Agreement without notice to you. You shall not assign or otherwise transfer this Agreement or any rights and obligations hereunder without the prior written consent of PunchAlert and any such transfer without PunchAlert's prior written consent shall be null and void. PunchAlert may perform all obligations to be performed under this Agreement directly or may have some or all obligations performed by its contractors or subcontractors or their affiliates.
20.Force Majeure. Notwithstanding any other provision of this Agreement, PunchAlert shall not be in default or breach of this Agreement for failure to fulfill its obligations when due to an act of Force Majeure. An act of Force Majeure shall include, without limitation, an act of God such as a fire, flood, earthquake, epidemic, volcanic eruption, adverse weather conditions, storm, hurricane or other natural disaster, a strike, lock-out, labor dispute, war, invasion, rebellion, revolution, insurrection, terrorist attack, act of sabotage, civil disturbance, blockade, riot, civil commotion, malicious damage, interruption or failure of electricity, power supply, interruption or failure of the internet or other telecommunication facility, network or means of telecommunication, computer virus or bug, third party computer infiltration, attack by a hacker, governmental restriction, or any other act or circumstance that is beyond the reasonable control of PunchAlert.
21.Modifications to EULA.Except to the extent that PunchAlert is expressly precluded by applicable law, PunchAlert reserves the right to amend this Agreement for any reason whatsoever by providing you with notice of the change either electronically (as contemplated by the notice provision above) or by posting notice of the change here. If you continue to use the Application or any part thereof after notice of the amendment, you shall be deemed to have accepted the Agreement as amended.