You must accept Cove Smart’s Terms and Conditions of Sale of Products and Services (“Terms of Sale”) to purchase a system and receive monitoring subscription services. Please review these Terms of Sale below, then check the “I agree” option.
------- Terms of Sale below -------
Last Updated: 8/26/2020
These Terms and Conditions of Sale of Products and Services together with the End User License Agreement (“EULA”) of RapidSOS, Inc., a Delaware corporation (“RapidSOS”) included as an Addendum hereto (collectively “Terms of Sale”), constitute an agreement between you, the purchaser (“Customer”, “you” or “your”), on the one hand, and Cove Smart, LLC, a Delaware limited liability company, its subsidiaries and affiliates (collectively, “Cove”, “we”, “us” or “our”), and with regard to its EULA only, RapidSOS, on the other hand, and govern your purchase and use of:
(1) home and business intrusion security products, including control panels, sensors, detectors, and key fobs (collectively “Security Equipment”); smoke detectors, CO detectors, flood/freeze detectors, and medical pendants (collectively “Life Safety Devices”); indoor, outdoor and doorbell cameras (“Cameras”) and any other video-related equipment (collectively “Surveillance Equipment”); home automation products, including smart lights, smart plugs, smart thermostats, garage door sensors and openers, and automatic door locks (collectively “Home Automation Products”) and other related products (Security Equipment, Life Safety Devices, Surveillance Equipment (including Cameras) and Home Automation Products are hereinafter referred to each as a “Product” and collectively, as the “Products” or your “System”);
(2) alarm monitoring and dispatch subscription services;
(3) home automation subscription services;
(4) customer support services; and
(5) websites, mobile applications (“Applications”), interactive features and downloads that Cove owns, operates, and makes available through its website found at www.covesmart.com (the Cove “Website”) and Applications and your use of such other mobile applications, Website, domains and sub-domains (items listed in this paragraph (5), collectively, the “Sites”) and any related services, however accessed and/or used, whether via personal computers, mobile devices, telecommunications, in person, and/or the Products (items listed in paragraphs (1), (2), (3) and (4) above and this parapraph (5), collectively, the “Services”) offered or created by Cove.
In addition, these Terms of Sale set forth your rights and obligations regarding your purchase(s) of Products and Services from Cove, including important limitations and exclusions, such as those contained in Cove’s Products and Services warranties set forth herein.
In the event that any of the terms, conditions, and notices contained in these Terms of Sale conflict with any other agreement entered into between you and Cove, including without limitation, the other terms, policies and guidelines contained within any particular section of the Sites, or with any terms included with any product or service purchased from us, then these Terms of Sale shall control.
1. Acknowledgment of Customer. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND COVE. BY AGREEING TO THESE TERMS OF SALE THROUGH A SITE, OR BY PURCHASING, ACCESSING, OR USING ANY PRODUCTS OR SERVICES, YOU ARE AGREEING TO AND ACCEPTING THESE TERMS OF SALE ON BEHALF OF YOURSELF AND ANY USER OR ENTITY YOU REPRESENT INCLUDING THE DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNITY OBLIGATIONS SET FORTH BELOW. YOU ALSO REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO AGREE TO AND ACCEPT THESE TERMS OF SALE, THAT YOU ARE OF SUFFICIENT LEGAL AGE, ACCORDING TO THE LAWS OF YOUR JURISDICTION OR PLACE OF RESIDENCE, TO PURCHASE AND USE THE PRODUCTS AND/OR SERVICES, AND TO AGREE TO THESE TERMS OF SALE. YOUR PURCHASE AND/OR USE OF THE PRODUCTS AND/OR SERVICES OFFERED TO YOU BY COVE IS EXPRESSLY CONDITIONED UPON YOU AGREEING IN THEIR ENTIRETY, WITHOUT MODIFICATION BY YOU, TO THESE TERMS OF SALE. IF YOU DO NOT AGREE WITH EACH OF THE PROVISIONS OF THESE TERMS OF SALE, YOU UNDERSTAND THAT YOU SHOULD NOT SELECT THE “I AGREE” BOX AND/OR PURCHASE OR USE COVE’S PRODUCTS AND/OR SERVICES. YOU MAY PRINT THESE TERMS OF SALE BY SELECTING THE “PRINTABLE” OPTION AT ANY TIME DURING YOUR REVIEW OF THEM OR BY ACCESSING THEM VIA COVE’S WEBSITE AND THEN CLICKING THE PRINT BUTTON ON YOUR INTERNET BROWSER.
2. Important Limitations on Resolving Disputes between You and Cove; Rights as a Consumer in Your Jurisdiction Not Affected.Please read these Terms of Sale carefully. They require that disputes between you and Cove relating to or arising from your purchase or use of the Products and Services be resolved, in each instance, in either a small claims action or a bench trial before a judge and that you waive your right to a jury trial and/or to participate in a class action against Cove.As a consumer, you have certain legal rights. The disclaimers, exclusions, and limitations of liability outlined in these Terms of Sale will not apply to the extent prohibited by applicable law in your jurisdiction or state of residence. For example, certain jurisdictions do not allow the exclusion of implied warranties, including exclusions relating to products or services that are faulty or not as described, or the exclusion or limitation of incidental or consequential damages or other rights. For a full description of your legal rights as a consumer you should refer to the laws applicable in your jurisdiction or state of residence. Nothing in these Terms of Sale will affect those other legal rights.
3. Right of Cove to Change these Terms of Sale from Time to Time. Cove reserves the right to alter, modify, change or update these Terms of Sale from time to time at any time determined by Cove at its sole discretion. Each time you purchase Products or Services from Cove, the Terms of Sale in effect at the time you make your purchase will apply to and govern that purchase between you and Cove. You should therefore review the Terms of Sale then in force any time you decide to make a purchase from Cove prior to making a purchase. If you purchase Services from Cove, Cove will notify you via your email address and/or through your online customer account with Cove if any changes to these Terms of Sale are made that may affect your purchase/subscription of the Services. In the event you have any questions about these Terms of Sale or any changes made to them, please contact Cove at www.covesmart.com/contact-us to receive answers to your questions.
4. Life Safety Notice. IF YOU PURCHASED A SYSTEM THAT INCLUDES SMOKE DETECTORS OR CARBON MONOXIDE DETECTORS, OR IF YOU ADD SMOKE DETECTORS OR CARBON MONOXIDE DETECTORS AT A LATER TIME, THERE MAY BE SPECIFIC REQUIREMENTS OR STANDARDS FOR THE INSTALLATION, MAINTENANCE, PERMITS AND LOCATION OF SUCH DETECTORS. CONTACT YOUR LOCAL AUTHORITY HAVING JURISDICTION OR CONSULT A QUALIFIED PROFESSIONAL TO ASSIST IN THE INSTALLATION, MAINTENANCE AND LOCATION OF SUCH DETECTORS. YOU HAVE SOLE RESPONSIBILITY FOR COMPLYING WITH ANY AND ALL CODES, LAWS AND STANDARDS THAT MAY APPLY TO THE INSTALLATION, PLACEMENT, USE AND MAINTENANCE OF THE SYSTEM. COVE MAKES NO WARRANTY OR REPRESENTATION THAT ANY SMOKE AND/OR CARBON MONOXIDE DETECTORS SOLD BY COVE CONSTITUTES A FIRE ALARM SYSTEM OR MEETS THE REQUIREMENTS OF ANY APPLICABLE STATE OR LOCAL LAW, CODE, ORDINANCE, OR AUTHORITY IN THE JURISDICTION OF YOUR PREMISES OR ANY INDUSTRY STANDARD, INCLUDING, BUT NOT LIMITED TO, NFPA 72.
5. Fire Alarm Components. If you purchase fire alarm Products as part of your System, Cove makes no representation that the fire alarm Products meet local code requirements or constitute a “fire alarm system” as that term is defined by the Authority Having Jurisdiction (“AHJ”) over fire alarm systems where your residence (“Premises”) are located. Cove recommends that you have a fire alarm system installed by a licensed professional pursuant to NFPA 72 standards and AHJ recommendations. You also understand that only those smoke detectors you purchase from Cove, if any, are monitored by a professional monitoring company (the “Monitoring Company”) of Cove’s choosing at a central monitoring center (the Monitoring Company’s “Central Station”) and are supplementary to your existing code-compliant system.
6. Payment Methods. Cove accepts credit cards and debit cards as forms of payment. If a credit card is being used for a transaction, Cove may obtain a pre-approval from the credit card company for an amount up to the amount due for the transaction. Ongoing charges to your credit card or debit card for Service Plans (defined below in Section 24), if any, will occur monthly beginning with the first payment due at the time of purchase and continue each month thereafter on that same day unless another date of the month is specified or requested by you. Cove accepts the following credit cards: MasterCard, American Express, Visa, and Discover. At Cove’s option, we may not accept prepaid debit cards on any purchase or transaction for any reason. We are unable to accept credit cards issued by banks outside of the United States. Debit cards and check cards have daily spending limits that may prevent the processing of your order.
7. Recurring Payment Authorization. You authorize Cove or its assignees to make electronic funds transfers (each an “EFT”) and/or Automated Clearing House transfers (each an “ACH Transfer” and collectively with EFT, “Transfers”) from your bank account or credit/debit card on file for your recurring monthly payments for your selected Service Plan, if any, on your monthly due date (“Payment Due Date”). If Cove changes the recurring monthly payment amount for your Service Plan, we will send you at least ten (10) days advance notice by email to the email address on file in your customer account before the recurring monthly payment amount is changed. You may change your Payment Due Date at www.covesmart.com/account or by calling Cove customer support which can be reached at (855) 268-3669. You also agree that Cove can charge your credit/debit card for any unpaid balance owed for Products or Services received, including amounts owed for Products if you choose the Pay Later Option (defined in Section 8 below), if any, the Monthly Subscription Fee (as described in Section 25 below), if any, and any late charges or interest you may have incurred for prior late payments. You agree to provide a valid credit/debit card for your payments and to update your credit/debit card account information as needed at www.covesmart.com/account or with Cove Customer Support which can be reached at (855) 268-3669. You certify that you are an authorized user of this credit/debit card and will not dispute these transactions with your credit card company or bank; so long as the transactions correspond to the terms of these Terms of Sale. If a Payment Due Date falls on a weekend or holiday, you understand that the payments may be executed on the next business day. In the event any direct payment transaction is returned, declined or rejected for any reason, you understand and agree that Cove may at its discretion continue to attempt to process the charge and you will be liable for a $20.00 return/decline fee for each of Cove’s attempts to collect which is returned or declined. All returned or declined payments will be initiated as a separate transaction from the authorized recurring payment. Client authorizes Company, at its sole discretion, as many Transfer attempts from Client’s bank account or credit/debit card, as Company deems necessary, each month for the total amount of Monthly Monitoring Fee(s) owed by Client during the Term of this Agreement when any Monthly Monitoring Fee payment from Client is returned or declined. You agree not to dispute this recurring billing with your credit card company or debit card company so long as the transactions correspond to the terms set forth in these Terms of Sale. You acknowledge and agree that you will be responsible for all overdraft charges or other charges imposed by your credit or debit card company in connection with Cove’s attempts to obtain payment of amounts due under this Agreement. You further authorize Cove to use all payment methods provided by Client to be used for the collection of payments due under these Terms of Sale.
The amount due for your Product(s) under the Pay Later Option will be shown on Cove’s Website at the time of your purchase and will also be sent to you in your order confirmation email for your records. This amount is the same amount whether you paid for your Product(s) at the time of your purchase or at the time of the cancellation of your Service Plan. If you select the Pay Later Option, upon providing Cove notice of your decision to do so, Cove will bill your credit or debit card for the full amount of the Product(s) you purchased from Cove in a lump sum charge and will cancel your subscription to your Service Plan if you request such cancellation as explained in Section 24.b. below).
After maintaining a Service Plan for the Minimum Service Period, you may (but are not required to) cancel your Service Plan at any time by notifying Cove as outlined in Section 24.b. below, and will owe nothing for the Product(s) under the Pay Never Option.
9. Authorization for Cove to Contact You. You expressly authorize Cove and agree to receive pre-recorded/artificial voice messages calls and/or use of an automatic dialing device, text messages and/or emails from Cove, our partners, subcontractors, or any and all other companies that we may have to transfer your account to at any telephone number or email address that you have provided us or that we have otherwise obtained, which could result in charges to you. We may place such calls, texts or emails to (i) notify you of updates or changes to your customer account including new purchases by you; (ii) notify you of updates or changes to these Terms of Sale or Cove’s other terms and policies; (iii) troubleshoot problems with your account or System (iv) resolve a dispute; (v) collect a debt you owe to Cove, or any third-party providing Services to you ; or (vi) as otherwise necessary to service your account or enforce these Terms of Sale, our policies, applicable law, or any other agreement we may have with you.
The ways in which you may provide us a telephone or mobile number or email address include, but are not limited to, (1) providing the information to us at the time you (a) create your customer account, (b) make a purchase from us, or (c) you enter into an agreement with us; (2) by adding the information to your account at a later time; (3) providing it to one of our customer service representatives; (4) providing it to our affiliates, subcontractors, or any and all other companies that we may have to transfer your account to; or (5) by contacting us or our affiliates, subcontractors, or any and all other companies that we may have to transfer your account to from that phone number or email address. If a telephone number provided to us is a mobile telephone number, you consent to receive calls and SMS or text messages at that number. Standard telephone minute and text charges may apply if we contact you. You acknowledge that your authorization and consent for Cove to contact you via phone or email is given as bargained-for consideration of these Terms of Sale, Cove’s providing of its Services and access to the Sites, its creation of your account, and as such cannot be revoked by you without the mutual consent or agreement of Cove. You further agree that all consents provided in this section will survive termination or expiration of this agreement.
10. Additional Products and Services. You acknowledge that you have selected the Products that comprise your System and the Services relating thereto based on your personal considerations, such as cost, the condition of your Premises, insurance requirements, etc. You understand that additional Products and Services, at an additional cost, may provide increased detection. You agree that any additional Products and Services you later purchase from Cove shall be subject to these Terms of Sale. You also agree to pay Cove for such additional Products or Services. You understand that Cove does not provide any installation or repair services for the System, except as expressly set forth in these Terms of Sale. You shall provide and maintain adequate power for all equipment relating to your System, including batteries as discussed below.
11. Customer’s Duty to Verify Compatibility of Products and Services. You acknowledge that prior to making your purchase of any of the Products and Services from Cove, you have verified the compatibility of the Products and/or Services with other equipment in your home or business, such as ensuring that the cellular signal and Wi-Fi signal (if your System uses Cameras) received at your Premises is sufficiently strong to communicate with the Cove panel/digital communicator and Cameras (if applicable) of your System or that your heating, ventilation and air conditioning (“HVAC”) system is compatible with a smart thermostat Product or other Home Automation Products provided by Cove. You are solely responsible for determining the compatibility of the Products with other equipment in your home or business, and you agree that lack of compatibility is not a valid claim under the warranty provided by Cove with the Products and/or Services purchased from Cove and does not otherwise constitute a basis for receiving a refund after the 60-day Refund Period described below.
12. Nature of the Products; Installation; Testing and Ensuring Monitoring (If Applicable). You acknowledge that the Products involve a do-it-yourself installation and that Cove has no way to verify that the Products (sometimes collectively referred to herein as the “System”) are properly installed and tested at your Premises prior to any incident. You agree to self-install the System you purchase from Cove at your Premises and to follow the instructions provided by Cove in performing your installation of the System. You acknowledge that you understand that the Products (other than the Cove panel/digital communicator) are not connected to the electrical system of your Premises and require batteries to operate. THE PRODUCTS WILL NOT OPERATE, AND THE ALARM WILL NOT SOUND IF THE BATTERIES ARE LOW OR DEAD. It is your sole responsibility to maintain and replace the batteries of all component Products of the System. You agree to periodically test your System, at least monthly, observe your System, be aware of its operational status in accordance with the operating instructions and contact Cove to request assistance, if needed. In addition, as part of the installation process of the System, you are also solely responsible for ensuring that when applicable (i) the Internet connection speed at your Premises is sufficiently fast to allow for full functionality of the System and each of its component Products, particularly the streaming of video feeds from each of the System’s remote video cameras (if any are purchased by you), while your other wireless devices are in use at your Premises; and (ii) as further described below, the cellular signal reception at your Premises is continuous, uninterrupted and strong enough to provide a constant transmission signal from the System’s panel/digital communicator to the Central Station maintained by the Monitoring Company, in the event you subscribe to Cove’s alarm Monitoring Services (as described below in Section 25).
You understand that there may be laws, such as state statutes or local ordinances, enacted in the jurisdiction of your Premises, which are applicable to where and how to install your System. You acknowledge and agree that you are responsible for checking before installing any Cove Product that you are in compliance with all relevant laws in your jurisdiction. Cove is not responsible for any injury or damage caused by your installation of any of its Products or obligated to repair, restore, or redecorate the Premises in the event any Product is removed from the Premises.
If you wish to have your System professionally installed, you can hire, at your expense, a licensed installer of your choice to install your System for you. If available in your area, Cove will provide you with access to a communications platform for enabling the connection between individuals seeking to obtain installation services and individuals seeking to provide installation services in your area. These installers are not employees of Cove and are not affiliated with Cove. Although Cove may assist in putting you in contact with these installers to perform a professional installation of your System, Cove is not responsible for any conduct of, or liability associated with, these installers. You should do your own due diligence of the installers to select one that best fits your needs and work out a price beforehand of the costs the installers will charge you to install your System.
You may be able to utilize your existing alarm equipment with the Cove System if a component is in good working order and compatible with the Cove System and Central Station. Cove does not guarantee the compatibility of any of its Products with your existing alarm equipment and you are solely responsible for determining whether Cove’s Products are compatible with your existing alarm equipment before purchasing any Cove Products for use with your existing equipment. Cove also assumes no liability, and extends no warranty, for the use of any equipment or component not provided by Cove.
13. Cove’s Product Return and Services Cancellation Refund Policy.
Refund after purchase. . If, for any reason, you decide you want to return or cancel any Product(s) and/or Services you purchased from Cove for a full refund, including a refund of all Membership Fees and/or Activation Fees, if any, and fees for Services that Cove has provided to you, you must notify us no later than sixty (60) days following your date of purchase (the “Refund Period”) and also ship the Product(s) you want to return to us no later than the Refund Period. To initiate any return, you must obtain an Equipment Return Authorization from Cove by completing the required information at www.covesmart.com/account or contacting Cove customer support at (855) 268-3669. After you have provided the required information on the Cove Website or to Cove customer support, you will receive an email from Cove with the return instructions you must follow to receive your refund. In your return shipment, you must include the Equipment Return List provided with the email which lists the products you are authorized to return.
You must return all Products on that list AND any and all Products you received at your time of purchase as promotional Products (“Promotional Products”), if any, to Cove. To receive a full refund for any Product(s) you wish to return, you must ship your Product(s), all Promotional Products and any other materials, such as operation manuals and the Cove yard sign, provided to you with the Product(s) prior to the expiration of the Refund Period. Upon receipt of all required returned Product(s) and materials, including Promotional Products, if any, Cove will refund to you the actual price you paid for the Product(s) or credit the unpaid balance owed for the Product(s), if applicable. You will not receive a refund or credit for any missing or damaged Product(s) or Promotional Products or for any Product(s) shipped after the Refund Period deadline. If you do not have free shipping on your account and use the prepaid shipping label included with the return instructions, the cost of shipping your return may be deducted from any refund due you. Cove will process the refund owed to you as soon as possible but in no event more than 30 days from the date of receipt by Cove of the returned Product(s).
Additional requirements for receiving refunds or avoiding charges for an unpaid balance owed for Product(s) received. To receive a refund or avoid being charged by Cove for the unpaid balance owed for Product(s) you have received in accordance with the terms listed above, ensure that the Product(s) you are returning within the 60-day Refund Period are repackaged with all the cords, adaptors, components, and documentation that were included when you received the Product(s). Unless a Product is faulty or not as described, you will be responsible for all shipping costs associated with returning the Product(s) to Cove (unless you have free shipping on your account). If you purchase a Bundle (multiple Products sold together at a discount), Cove will not provide a refund if you return only part of the Bundle, and you must return all of the Products sold together in that Bundle in order to receive any refund or avoid being charged by Cove for the unpaid balance owed for equipment you have received. Cove may reduce the amount of your refund, or charge you the appropriate amount if you have not previously paid for your equipment in full, to reflect any reduction in value of the Product, as determined by Cove in its sole reasonable discretion, caused by your failure to protect the Product(s) from damage, uninstallation of the Product(s) and/or handling or damage during return shipping due to your packaging of the Products.
14. Product Exchanges. If you received the wrong Product, please reach out to Cove via phone at (855) 268-3669 or contact us at www.covesmart.com/contact-us within thirty (30) days of purchasing your order. We will review your order to find the issue and send to you the correct Product at no additional cost. We will also cover the shipping cost if we ask you to send back the incorrect Product to us. If return is requested, you must ship the incorrect Product to Cove within fourteen (14) days of receiving the email from Cove with instructions how to return the Product or you will be charged the cost of the Product.
15. Limited Warranty for Defective or Faulty Products. If any Product you receive in your order from Cove is faulty or defective or becomes faulty or defective within twelve (12) months of your purchase date of the Product (the “Limited Warranty Period”), then after receiving notification from you via phone at (855) 268-3669, Cove will mail a replacement Product to you at no additional cost to you. Cove will also send you an email with return instructions and a prepaid shipping label to return the defective or faulty Product(s). In the event you fail to ship the defective or faulty Product(s) to Cove within 14 days of receiving the email with the return instructions, Cove may charge you for the full cost normally charged by Cove for the unreturned Product(s). Any amount due will be charged to your credit/debit card on file by the next bill date that is/was used for your Service Plan. If you obtain a subscription to a Service Plan that has a lifetime limited warranty at any time within the Limited Warranty Period, you shall have a lifetime limited warranty (the “Lifetime Limited Warranty”) on all Security Equipment and Life Safety Devices you purchase from Cove ; therefore, the Lifetime Limited Warranty does NOT apply to any Surveillance Equipment (including Cameras) and/or Home Automation Products purchased from Cove, each of which is covered by a one-year manufacturer warranty. The Lifetime Limited Warranty on all Security Equipment and Life Safety Devices shall continue for the entire period you maintain your subscription to such Service Plan after the Limited Warranty Period. However, if you cancel your subscription to a Service Plan with a Lifetime Limited Warranty any time after the Limited Warranty Period, then upon such cancellation the Lifetime Warranty on Cove’s Products shall immediately expire.
Cove may use reconditioned parts or components in providing replacement parts or components to you under the Limited Warranty, but Cove shall warrant any replacement parts or components provided to you only for the remainder of the applicable Limited Warranty Period or Lifetime Limited Warranty. If, after the Limited Warranty Period or expiration of the Lifetime Warranty, as explained above, any Product becomes defective or faulty, Cove will replace the defective or faulty Product(s) with new Product(s) at Cove’s then-current prices for such Product(s) plus any applicable taxes and the cost of shipping the Product(s) to you (if you do not have free shipping on your account). Notwithstanding the preceding, Cove shall have no obligation during the Lifetime Limited Warranty, if applicable, or Limited Warranty Period, or thereafter to replace batteries or any part of the Products that is rendered defective due to acts of God, any casualty, vandalism, fire, lightning, flood, water, intrusion, electrical surges, your negligence, alterations or attempted unauthorized repair service not performed by Cove, misuse, tampering, abuse, accidents, improper installation of the System or any part or component of the Products that comprise the System by you that is not in accordance with instructions provided by Cove.
16. U.S. Sales Only. Purchases of Products and/or Services from Cove are, at present, available only in the United States. You agree not to use or attempt to use any Cove Product or Service from outside of the United States or for any illegal or unlawful purpose.
You acknowledge and agree that if you receive Monitoring Services from Cove, then the Monitoring Company shall have the rights set forth in Section 26 hereof below pertaining accessing, recording and maintaining audio and video transmissions, data and other communications received from your System, including Cameras and any other Surveillance Equipment.
18. Sales to End Users Only. Purchases made through Cove’s Website or any web app or mobile app are for retail end-user customers only. Sales to dealers, resellers or distributors or any other third-party are prohibited except where expressly authorized by Cove in writing.
19. Availability and Pricing All products offered at Cove’s Website are subject to availability and Cove reserves the right to impose quantity limits on any order of Products, to reject all or part of an order, and to discontinue offering certain Products and/or Services without prior notice. If any Service is discontinued, you will not be billed any new charges for that Service.
20. Prices. To finalize your order of Products and/or Services, including your subscription to a Service Plan or the Premier Membership Plan, if any, you will be required to pay at the time you place your order, a total price consisting of (i) the Membership Fee (as described in Section 23 below), if selected; (ii) the Products in your order, , unless you have selected the Pay Later or Pay Never Options (as described in Section 8 above); and (iii) the first month of your Monthly Subscription Fee (as described in Section 25 below), if any, less any discounts offered plus any applicable activation fee, sales tax and shipping charges. Cove reserves the right to change, at any time, prices for Products and Services offered, and does not provide refunds in the event of a future price drop or promotional offering, or price protection on the monthly subscription rate for your Service Plan unless the Service Plan you have selected includes lifetime price protection on the monthly subscription rate for your Service Plan. If Cove increases the Monthly Subscription Fee for your Service Plan, we will send you advance notice by email to the email address on file in your customer account. In the event a Product or Service Plan is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, we shall have the right to refuse or cancel any orders placed for Products or Services listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit or debit card account in the amount charged to your credit or debit card.
21. Sales Tax. Sales taxes, if applicable for your Premises, will be added to your purchase(s) of Products and/or Services from Cove’s Sites based on the address of your Premises and the sales tax rate in effect at the time your transaction is completed. If the sales tax rate for your Premises changes before the Products are shipped, the rate in effect at the time your order was received will apply. You are responsible for all applicable taxes, and Cove has the right to collect any tax it believes it is obligated to collect.
22. Shipping and Delivery. Orders will be processed within five (5) business days (subject to availability of Products), and shipped via ground transportation with FedEx or other freight carrier. Arrival will typically be within five (5) days of being shipped. Prices for the Products do not include shipping costs. Our delivery charges and methods are as described on www.covesmart.com, which may change from time to time. Title for Products you purchase passes to you at the time of delivery by Cove to the freight carrier, but Cove and/or the freight carrier will be responsible for any Product loss or damage that occurs when the Product is in transit to you. The estimated arrival or delivery date is not a guaranteed delivery date for your order. Refused deliveries will be returned to our warehouse. It may take up to 60 days for the returned items to be identified as refused and processed for a refund. If you have any questions about a refund for a refused delivery, you may contact us at www.covesmart.com/contact-us or call 855-268-3669.
23. Premier Membership. Cove may offer a Premier Membership plan (the “Premier Membership Plan”) for a set cost to be paid in full up front (the “Membership Fee”), which will provide you with special benefits, discounts, and/or services. If purchased, the Premier Membership Plan has a term of five (5) years, unless cancelled by you (as described below). Details about the Premier Membership Plan can be found at www.covesmart.com/membership. The benefits, discounts and/or services of the Premier Membership Plan may be modified by Cove from time-to-time at Cove’s sole discretion. Nevertheless, if any benefit, discount, or service is removed by Cove from the Premier Membership Plan after the date you pay the Membership Fee, you will continue to receive the same or equivalent benefits, discounts, and/or services for the entire term of the Premier Membership Plan even after removal by Cove. In addition, if any new benefits, discounts, or services are added to the Premier Membership Plan, Cove may, at its sole discretion, provide such to you at no additional charge.
24. Service Plans Offered by Cove. Cove offers three (3) separate service plans (each a “Service Plan” or collectively the “Service Plans”) to you and its other customers. Each Service Plan provides Monitoring Services (as described below).
Types of Service Plans. The Service Plans offered by Cove consist of the following:
Basic Service Plan – See Cove’s Website for details on the features, services, and/or benefits of the “Basic Service Plan.”
Plus Service Plan – See Cove’s Website for details on the features, services, and/or benefits of the “Plus Service Plan.”
Smart Service Plan – See Cove’s Website for details on the features, services, and/or benefits of the “Smart Service Plan.”
The features, services and/or benefits of each Service Plan may be modified or removed by Cove from time-to-time at Cove’s sole discretion, except for the providing of Monitoring Services. Nevertheless, if any feature, service, or benefit of the Service Plan to which you subscribed is removed by Cove after the date you subscribed to the Service Plan, you will continue to receive the same or equivalent features, services, and/or benefits after they are removed or modified from that Service Plan for the entire period you pay for the Service Plan. In addition, if any new features, services, or benefits are added to a Service Plan, Cove may, at its sole discretion, provide such to you at no additional charge.
Cancelling Your Service Plan. Excluding the obligations you owe to Cove to pay the price of the Product(s) you purchased before cancelling your Service Plan during the Minimum Service Period (i.e. the Pay Later Option), if applicable, you may cancel your Service Plan at any time by cancelling your subscription to the Service Plan by calling Cove at (855) 268-3669. All Service Plans require a minimum of 30 days verbal request of cancellation prior to the next billing date to assure cancellation of automatic payments. Cancellation requests submitted within the 30 day billing cycle will result in a final payment drawn from your account on your established auto-draft date. Once final payment has been drawn from your account, you will receive services 30 days from the last bill date. It is your responsibility to cancel services by requesting cancellation 30 days in advance of your next billing date. Step-by-step instructions are also available at support.covesmart.com. If you have fulfilled your applicable obligations, upon receiving your request to cancel, Cove will provide to you notice of termination of your Service Plan by email sent to the email address on file with Cove for your customer account. Your Service Plan, which includes Monitoring Services (as defined above), will terminate at the end of your current prepaid monthly subscription term. Upon termination of a Service Plan, Cove shall have no further obligation to provide the Services applicable to your Service Plan, and you shall have no further obligations to Cove except your obligation to pay any monies owed for Product(s) received and/or Services rendered but not paid for by you as of the date of termination. Subject to your obligations to pay the price of the Product(s) you purchased before cancelling your Service Plan during the Minimum Services Period (i.e. the Pay Later Option), if applicable, you may terminate your Service Plan for any reason or no reason by following the process set forth in this subsection. If you later choose to re-subscribe to a Service Plan, then you will receive the features, services, and/or benefits offered by Cove for that Service Plan at the time you re-subscribe, which may differ from those you received at the time you originally subscribed to that Service Plan before termination.
25. Monitoring Services. If you choose to purchase and subscribe to any of Cove’s Service Plans, you will receive monitoring services from Cove which includes monitoring your home or business System, as applicable, and notifying you and/or your emergency contacts (“Emergency Contacts”), and relevant governmental authorities (“Authorities”), as more fully discussed below, of any alarm codes triggered in your System depending on the Products you purchase from Cove (“Monitoring Services”). Cove will cause the Monitoring Company selected by us to provide monitoring center signal receiving and notification services with respect to your Premises. If you purchase Cove’s Monitoring Services, you agree to be bound by all conditions that apply to professionally monitored customers as set forth in these Terms of Sale below and as dictated by the Monitoring Company. In the event you choose to self-monitor your Premises using the Products and not purchase, suspend, or otherwise forego the Monitoring Services offered by Cove, you agree that you assume full responsibility for any damages caused by your failure to have your Premises monitored. Cove requires a month-to-month commitment from you for Monitoring Services until and unless terminated in accordance with subsection 25. c. below. When you purchase Monitoring Services with your initial purchase of Products and your Service Plan, you must pay the monthly rate for your Service Plan in advance for the upcoming month. For each month you receive Monitoring Services, you agree to pay each month in advance the monthly subscription rate applicable to the Service Plan you have chosen plus applicable governmental fees and taxes (the “Monthly Subscription Fee”) to Cove. Your Monitoring Services will begin once you have completed the installation of your System by following the on-screen instructions on your Cove panel/digital communicator. When your installation is complete, your System will then be placed on a two-hour testing period for you to become familiar with your System without triggering false alarms. After that testing period ends, your Monitoring Services will be activated. You will be given 15 days of free Monitoring Services from the date you purchase your System and Service Plan to provide you with ample time to install your System. Your monthly subscription term paid for by your Monthly Subscription Fee will begin at the end of that 15-day period no matter when the Monitoring Company actually begins to provide your Monitoring Services. You will receive continuing Monitoring Services as part of your Service Plan and you will be billed on the Payment Due Date – the monthly anniversary of the purchase date for your Service Plan for each successive monthly subscription term thereafter until and unless you cancel your Service Plan and Monitoring Services. Accordingly, your Payment Due Date for the Monthly Subscription Fee is the monthly anniversary of when you purchased your System although your Monitoring Services run month-to-month from the 16th day after you make your purchase. You may cancel your Monitoring Services at any time but you will owe the cost of, and continue to receive, Monitoring Services for the entire remaining period of the then-current monthly subscription term following cancellation. We may impose a late charge on each payment of the Monthly Subscription Fee owed for any month you use or subscribe to Monitoring Services that is not paid within fifteen (15) days of the date due equal to the lesser of (i) the maximum amount permitted by law, and (ii) interest as of the due date at the rate of 1.5% per month (18% per year). The provisions of this Section 25 are subject to the Product Return and Services Cancellation Refund Policy provisions of this Agreement.
If you elect to receive Monitoring Services from Cove, then to ensure effective monitoring of your System, you must cooperate with Cove and the Monitoring Company and implement certain safeguards. As may be further referenced in these Terms of Sale, you agree to (i) read all operations/user’s manuals for your System, and to operate and maintain the System according to those instructions; (ii) test the System as needed, or at a minimum monthly, and to notify Cove immediately if you find anything wrong; (iii) replace batteries in the System components as necessary; (iv) not tamper with, disturb, damage, remove, or interfere with the System or allow anyone else to do so; (v) keep the System and its components in the same location as originally installed by you; (vi) avoid doing anything that might damage the System or that might cause false alarms; (vii) keep your information, including Emergency Contacts (defined below) information, updated of any changes by notifying Cove in writing at www.covesmart.com/contact-us or by making changes using your customer portal at www.covesmart.com/myaccount; and (viii) pay any fines that result from false alarms.
26. Central Station Monitoring. Monitoring of your System will begin when the necessary signal connections are made and the System is placed into service by you. Upon receipt of an alarm event signal from your System, Cove and/or the Monitoring Company will make every reasonable effort to notify you and the appropriate public-safety answering point (PSAP) that will then dispatch municipal police, medical personnel, or fire department (collectively, “Emergency Responders”) to your home or business depending upon the type of signal received. Not all signals will require notification to Emergency Responders and you may obtain a written response policy from Cove upon request. No response shall be required for supervisory, loss of electric or communication pathway, trouble or low battery signals. You acknowledge that signals which are transmitted over high speed Internet, cellular, or other modes of communication pass through communication networks wholly beyond the control of Cove and the Monitoring Company and are not maintained by either Cove or the Monitoring Company, and neither Cove nor the Monitoring Company shall be responsible for any failure or interruption in any such networks which prevents transmission signals from reaching the Central Station monitoring center operated by the Monitoring Company or damages arising therefrom, or for data corruption, theft or viruses to your computers if connected to the alarm communication equipment of your System. You acknowledge that Cove does not represent or warrant that your System may not be compromised or circumvented, including by hacking or otherwise.
Emergency Contact Information. You agree to furnish Cove with a written call list of names and telephone numbers of those persons you wish to receive notification of alarm signals (“Emergency Contacts”). You agree to provide Cove with up-to-date information for your Emergency Contacts as necessary on an ongoing basis to enable such notification. Cove and the Monitoring Company are entitled to rely solely on the Emergency Contacts information provided in writing by you to Cove. Unless otherwise provided in the call list, Cove and/or the Monitoring Company will make a reasonable effort to contact the first person reached or notified at the Premises or on the list of Emergency Contacts either via the Cove panel/digital communicator, telephone/cellular phone call, text or email message. No more than one call to a person on the Emergency Contacts list shall be required and any form of notification provided for herein, including leaving a message on an answering machine, shall be deemed reasonable compliance with Cove’s and/or the Monitoring Company’s notification obligation. All changes and revisions to your Emergency Contacts list shall be supplied to Cove in writing at www.covesmart.com/contact-us or using your customer portal at www.covesmart.com/myaccount.
Authorization to access panel to program and/or monitor video/audio devices to confirm alarm condition. You authorize Cove and/or the Monitoring Company to access the Cove panel/digital communicator of your System to input or delete data and programming. If the Products purchased by you from Cove contain video or listening devices permitting the Monitoring Company’s central office to monitor video or sound, then, upon receipt of an alarm signal, the Monitoring Company’s Central Station shall monitor video or sound for so long as its Central Station, in the Monitoring Company’s sole discretion, deems appropriate to confirm an alarm condition. You expressly authorize Cove and/or the Monitoring Company to release and provide video or sound recordings to the appropriate authorities upon receipt of an alarm signal from your System. The Monitoring Company is authorized to record and maintain audio and video transmissions, data and communications received from your System, including Cameras, upon the occurrence of an alarm event in connection with the dispatch of Emergency Dispatch Services (as defined below) and shall be the exclusive owner of such transmissions and data. All of your information and data shall be maintained confidentially by Cove and the Monitoring Company. As referenced above, if you elect to receive Monitoring Services, you agree to regularly check and test your System, at least monthly, to confirm that your System’s transmission signals are linked to the Monitoring Company’s Central Station monitoring center and/or communication network and notify Cove if there is any interruptions, failures, or other issues with the System’s transmission signals
Termination of Monitoring Services. Cove may, without prior notice, suspend or terminate its services, in event of (i) your default in performance of these Terms of Sale, including, without limitation, your Monthly Subscription Fee payment obligation; (ii) the Monitoring Company’s Central Station’s facility or communication network becomes nonoperational; or (iii) your System is sending excessive false alarms.
27. Contact Information. With respect to any phone number or other contact information you provide to Cove at any time, whether for purposes of alarm notification through Monitoring Services, general billing, or any other purpose, you represent that you are the subscriber associated with the phone number, email address or other contact information provided, or that you are otherwise expressly authorized by the person or persons associated with such phone number, email address, or other contact information to provide such information and use it as your own. You also expressly authorize Cove to contact you using an automated calling device, text, or email at such phone number, email address or other contact information, which you acknowledge and agree shall be provided for all purposes related to servicing or administering your account with Cove, including billing, under these Terms of Sale.
28. Permits. Your municipality may require a license or permit or the payment of taxes in connection with your installation, use or monitoring of your System by the Monitoring Company. You are solely responsible for complying with such obligations and providing Cove with any then current license or permit number you receive.
29. Emergency Dispatch Service. “Emergency Dispatch Services” shall be provided in accordance with these Terms of Sale and consist solely of Monitoring Company personnel contacting you, other Emergency Contacts provided by you, the appropriate PSAP for your area (which dispatches Emergency Responders), or any company that provides on-site response services (“Third-Party Responders”) upon the receipt of alarm signals from your System reporting specific conditions (“Listed Codes”) at the Premises. We shall provide Emergency Dispatch Services only for Listed Codes. Cove’s obligation to provide Emergency Dispatch Services shall be satisfied by Monitoring Company personnel contacting (or attempting to contact) Emergency Responders or Emergency Contacts or Third-Party Responders or by leaving a voicemail or similar type message with Emergency Responders or Emergency Contacts or Third-Party Responders. Emergency Dispatch Services are intended to reduce the risk of a burglary, robbery or other events occurring at the Premises but are not a guarantee such events will not occur or that there will be no personal injury or property loss as a result. The Monitoring Company will not contact (nor attempt to contact) any Third-Party Responder on your behalf unless you have specifically contracted with us and are current on your payments to provide Monitoring Services to you or you have previously requested that we provide such service (and we have agreed in writing to do so). Examples of where you might desire that the Monitoring Company attempt to contact a Third-Party Responder include situations (i) where the Premises are located in a jurisdiction in which the applicable Authorities will not respond to alarm signals at the Premises absent prior verification of an actual alarm event, or (ii) where you desire a faster response time than what might otherwise be provided by the applicable Authorities. Regardless of the circumstances, however, you acknowledge that, upon receipt of alarm signals from your System, the Monitoring Company will not contact (nor attempt to contact), nor have any obligation to contact, any Third-Party Responder unless you have previously contracted with us to provide such service or you have previously requested that we provide such service (and we have agreed in writing to do so).
30. Alarm Verification Prior to Dispatch. Upon receipt of a Listed Code and before calling any Authorities or Emergency Contacts or any Third-Party Responder, Monitoring Company personnel may, in their sole discretion, take any one or more of the following steps in an attempt to verify the need to report the Listed Code to Emergency Responders or any of the Emergency Contacts or any Third-Party Responder, (collectively, the “Alarm Verification Steps”): (i) telephone or attempt to telephone the Premises, (ii) if we have access to Real-Time Services, receive, retrieve and review video from the System, (iii) intercept or retrieve and listen to oral communications or other audio from the System; or (iv) undertake such other reasonable steps to verify the need to report the Listed Code. Following any one or more of the Alarm Verification Steps, Monitoring Company personnel may, in their sole discretion, determine to report (or not report) a Listed Code to Emergency Responders or any of the Emergency Contacts or any Third-Party Responder. In addition, if Monitoring Company’s Central Station personnel are unable to verify the need to report a Listed Code to Emergency Responders or any of the Emergency Contacts or any Third-Party Responder, Monitoring Company personnel shall have no obligation to report such Listed Code. Monitoring Company personnel shall have no obligation to review or monitor any audio or video from the System for any time that is not immediately before or after receipt of a Listed Code.
31. Alarm Cancellation. Upon receipt of any current cancellation code set in accordance with the owner’s manual for your System, via advice from any Emergency Contact responding to a text message sent to Emergency Contacts, or oral advice (confirmed by safe word) to disregard the receipt of a Listed Code, Monitoring Company personnel may, in their sole discretion, determine not to report a Listed Code to Emergency Responders or any of the Emergency Contacts or any Third-Party Responder.
32. Communication to Emergency Responders. You understand that your System signal shall be via cellular or satellite transmission. You understand that Cove and/or the Monitoring Company does not receive signals when the transmission mode is, or becomes, non-operational and that the signals to/from the Cove panel/digital communicator cannot be linked to the Monitoring Company’s central monitoring center if the transmission mode is interfered with, damaged, or otherwise rendered inoperative and/or if the cellular signal at your Premises is interrupted or too weak for a transmission signal to be sent or received by the digital communicator. You acknowledge that Cove does not represent or warrant that the System will prevent any loss by burglary, theft, robbery, fire, or otherwise; or that the System will in all cases provide the protection for which it is installed or intended. You further understand that Cove assumes no liability for failure of the System as a result of the transmission mode becoming non-operational as it is your sole responsibility to (i) confirm that the cellular signal at your Premises is sufficiently strong and continuous to ensure non-interruption of transmission by your System; and (ii) test your System periodically, at least monthly, to confirm that the System’s transmission signals are linked to the Monitoring Company’s central monitoring center and/or communication network; and (iii) notify Cove if there is any interruptions, failures, or other issues with your System’s transmission signals. You acknowledge and agree that Cove’s and/or the Monitoring Company’s sole responsibility upon receipt of a medical emergency signal transmitted from the panel is to notify the appropriate PSAP which will dispatch Emergency Responders (i.e. medical assistance providers) as directed by you (when possible) . You understand and agree that Cove and all Cove Parties (as defined below in Section 43) are hereby released from all liability due to active or passive, sole, joint or several negligence of any kind or degree of Cove or any other Cove Party which you, or anyone claiming through you, in any way might or could claim against Cove or such Cove Party based upon, arising out or from, in connection with, resulting from, related to or as a consequence of Cove’s or a Cove Party’s inability or failure to contact the appropriate PSAP or the improper dispatch of Emergency Responders. If Cove or any other Cove Party receives an abort message for any transmission from the Cove panel/digital communicator, from a person either on or off the Premises, via the Applications or electronically from the System prior to notifying the applicable PSAP for dispatch of Emergency Responders, Cove or the other Cove Parties will not notify such Emergency Responders, and Cove or the other Cove Parties will attempt to rescind the notification. You understand that existing and future local laws, ordinances and policies (collectively, “Policies”) may restrict Cove’s and other Cove Parties’ ability to provide the Services. Some Policies may require “enhanced verification,” which may, for example, require the Monitoring Company’s Central Station to make a series of calls to confirm an alarm event requires police response before the police will respond.
33. False Alarms; Suspension of Services and Shut-Down. You agree to prevent false alarms and be solely responsible for false alarms. You must pay (or reimburse Cove) any fines, fees, costs, expenses, and penalties relating to your System or the Services assessed against you, Cove or the Monitoring Company’s Central Station by any person or entity, including court or government agency or any person or entity acting on the behalf of such court or agency. If (i) you default under these Terms of Sale; (ii) these Terms of Sale or the Services, including Monitoring Services, are terminated by any party for any reason; (iii) your System becomes a “runaway” system or excessively signals the Monitoring Company’s Central Station without apparent reason; or (iv) in the opinion of the Monitoring Company’s personnel, your System otherwise becomes a “problem account,” Cove may suspend the Services, including Monitoring Services, and you authorize Cove to disconnect your System from the Monitoring Company’s Central Station. The exercise of any such rights shall not be deemed a waiver of Cove’s or any other Cove Party’s right to damages. Cove’s obligations under these Terms of Sale are waived automatically without notice and you release Cove for all Losses (as defined below in Section 46) following any default or breach of these Terms of Sale by you or if the Monitoring Company’s Central Station, your System and any of the Services are destroyed, damaged, inoperable or malfunction for any reason whatsoever, for the duration of such interruption of Service, and you shall be entitled to a credit of the unearned charges paid by you for the period of interruption on your request, which credit shall not exceed one month’s Monthly Subscription Fee and shall be the limit of Cove’s liability. If the Services provided to you are suspended or terminated for any reason, Cove may, at its sole discretion, without notice and without any liability, remotely disable, disconnect or block your System and data from the System from communication with the Monitoring Company’s Central Station.
35. Video-Related Services. “Video-Related Services” consists solely of the following: (i) verification of alarm events by Monitoring Company’s Central Station personnel in connection with the Emergency Dispatch Services to be provided pursuant to Section 29 (“Verification Services”) using audio and video received from the System, including Cameras, and (ii) real-time access to video and audio from the System through the Applications (“Real-Time Services”) in accordance with the terms hereof. Verification Services are intended to assist you and any permitted Monitoring Company’s Central Station personnel to verify an alarm event at the Premises, not to reduce or eliminate any risk of loss. None of the Video-Related Services are intended to replace alarm Monitoring Services or to detect or prevent unauthorized intrusion onto the Premises or any other emergency condition, including fire, smoke, carbon monoxide, medical emergencies or water damage. The Verification Services are provided and shall be used by you solely for the verification of alarm events at the Premises and no other purpose. Monitoring Company’s personnel will not have access to the Real-Time Services unless such video and audio is received at the Monitoring Company in connection with the Emergency Dispatch Services. If you wish to opt out of the Verification Services you can do so by contacting Cove at (855) 268-3669, or at www.covesmart.com/contact-us
36. Remote Services Access; Excessive Data Usage; Audio and Video Limitations. If any Product or Services, including but not limited to a Service Plan, you purchase from Cove provides remote reviewing via Cove’s Sites, the Products are designed to transmit data via your high-speed Internet or cellular service to remote equipment supplied by Cove or your Internet or wireless connection device which is compatible with Cove’s remote services and Sites. Cove will grant access to a server permitting you to monitor your System, access the System to arm, disarm and bypass zones on the System, view the remote video camera(s), if any, and control other remote automation devices that may be installed in your Premises by you. The remote services server is provided either by Cove or a third party. If you purchase cameras, you shall install the camera(s) in a permissible legal location in your Premises to permit your viewing. Cove shall have no responsibility for failure of data transmission, corruption or unauthorized access to the camera data and shall not monitor or view said data. Cove shall have no liability for excessive data usage expense incurred by you attributable to the Products or Services you purchase from Cove. You acknowledge and understand that electronic data may not be encrypted and wireless components of your System, including Camera data, may not meet Advanced Encryption Standard specifications for encryption of electronic data established by the US National Institute of Standards and Technology and Cove shall have no liability for access to your System, including camera data, by others. If audio or video devices are installed in your Premises by you, you acknowledge that you have been advised to independently ascertain that the audio or video devices are used lawfully. Cove has made no representations and has provided no advice regarding the use of audio or video devices.
37. Lawful Recording of Video and Audio; Required Connectivity. Recording video or audio may be unlawful or violate an individual’s rights, including privacy rights. You shall not use any of the Video-Related Services, or permit the use of any of the Video-Related Services, for any unlawful purpose. For example, you shall not use the System to obtain or record video in any place where a person may have a reasonable expectation of privacy, including restrooms, dressing or changing areas, locker rooms or similar areas. You also shall take all steps necessary to alert individuals at the Premises of the possibility of recording video or audio. You shall use a form of connectivity to permit the transmission of video, audio and alarm signals from your System to Cove and any Monitoring Company. You shall instruct all persons who may use any Video-Related Services or the System of any limitations with respect to the Video-Related Services or the System. You shall comply with the provisions of this Section and Sections 35 and 36 with respect to the use of the Video-Related Services in connection with the System.
38. Interruption or Delay of Services. Cove assumes no liability for delays in installation or interruption of any Services, including Monitoring Services, due to strikes, riots, floods, fires, acts of God or any causes beyond the control of Cove. Cove will not be required to supply Services to you during the period of interruption of the Services due to any such cause.
39. Homeowners Insurance Discount. Homeowners’ insurance discounts may vary depending on the insurance company. Cove does not guarantee any discounts and recommends any inquiries be directed to your insurance provider.
40. Ownership of Sites, Licenses, and Access.
The Sites are owned by Cove. Cove grants you a limited license to access and make personal use of the Sites but does not grant you the authority to download or modify any portion of Cove’s proprietary information, Cove’s content found on the Sites, or the Sites themselves, except for documents available for downloading and printing from your customer account, unless you have obtained prior and express written consent of Cove. This license does not include any derivative use of the Sites or Cove content or any use of data mining, robots, or similar data gathering and extraction tools.
Licenses. Subject to the terms and conditions of these Terms of Sale, Cove grants you a non-exclusive, non-transferable license to access and use the Sites by (i) use of the Applications in connection with, and solely for the purpose of, controlling and monitoring the Services you are authorized to receive and/or control or monitor, and (ii) install and use the Applications solely on your own handheld mobile device (e.g., iPhone, iPad, or Android smartphone or other tablet device) and solely for the purposes set forth in these Terms of Sale. There is a risk that unauthorized persons may gain access to the Applications and data thereon and you agree to assume such risk. You consent to our posting alarm events, home automation controls and other status reports in connection with the Services on the Applications. You will keep confidential all information available on the Applications and all passwords relating to the Applications or access thereto. This license will continue and be co-extensive with the terms and conditions of these Terms of Sale, except for your (i) failure to keep confidential all information available on the Applications and all passwords or access codes relating to the Applications or access thereto, (ii) use of the license or the information in any manner that negatively affects us, (iii) use of the license or the information for any illegal purpose, (iv) breach of these Terms of Sale or (v) violation of any applicable law. You will be solely responsible for information you deliver, delete or modify. Upon termination of your Service Plan that provides access to the Applications or termination or suspension of the license by us, we may immediately, and without notice, disable your access to the Applications and cancel all passwords or other access codes. You will not (a) disclose or make available to third parties any portion of the technology associated with the Services or the Applications without our prior written consent, (b) copy, decompile, dissemble, reverse engineer, manipulate, modify, or make derivative works of any technology incorporated in the Services or the Applications. Cove may from time to time develop patches, updates, upgrades or other modifications (“Updates”) to improve the performance of the Products, Services or the Applications. These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update of the Updates. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services or the Applications. You acknowledge that you may be required to install Updates to use the Services and you agree to promptly install any Updates that Cove provides. IF YOU FAIL TO INSTALL ANY UPDATES PROVIDED BY COVE, YOUR ACCESS TO THE APPLICATIONS AND THE SERVICES MAY BE TERMINATED.
You agree that you will use the Sites only in combination with Cove’s Products and Services or Cove authorized products and services. If you are the manufacturer or distributor or authorized representative of a product or service that is not an authorized product or service, and you wish to request support for your product or service, please contact Cove at www.covesmart.com/contact-us to request further information. Cove is not required to acknowledge or respond to any such request, or to engage in or continue any discussions that may result from any such request, but may do so in its sole discretion.
You may not frame or utilize framing techniques to enclose any materials located on the Sites, including, without limitation, any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Cove, third parties, or Cove affiliates without express written consent from Cove. You may not use any of Cove’s tags or any other “hidden text” utilizing Cove’s name or trademarks without the express written consent of Cove. Any unauthorized use terminates any permission or license granted to you by Cove. For purposes of clarity, these Terms of Sale and the license(s) granted to you hereunder expressly exclude the right to use any content except as made available to you on the Sites. You may not copy or disseminate any content or other materials from the Sites.
You may not use any Cove logo or other proprietary graphic or trademark as part of the link without first obtaining express written permission from Cove. For purposes of clarity, Cove may obtain certain materials and content through a third-party content provider(s) under a license from said provider(s). THE LANGUAGE HEREIN NEITHER INTENDS TO, NOR SHALL IT BE INTERPRETED AS INTENDING TO, GRANT YOU ANY RIGHTS, TITLE, OR INTEREST TO COVE’S SITE MATERIALS OR CONTENT. By using the Sites, you expressly agree that you shall respect the intellectual property rights of all third parties, Cove, and any others who may provide materials and/or other content to the Sites. Cove only displays licensed content obtained from such third-party provider(s) in their original form and as licensed, unless expressly otherwise permitted by the license.
No unlawful or prohibited use. As an express condition of your use of the Sites, you agree, represent, and warrant that you will not use the Sites for any purpose that is unlawful, violates the rights of any third-party, or is otherwise prohibited by these Terms of Sale. You may not use the Sites in any manner which could damage, disable, overburden, or impair the Sites or the network(s) connected to the Sites or interfere with any other customer’s or party’s use and enjoyment of the Sites.
You may not use automated means of any kind to manipulate Cove’s data, information or Services provided via the Sites. You may not use automated means, including spiders, robots, crawlers, or similar technologies on the Sites or in connection with the Sites for any purpose. You may not decompile, disassemble, reverse engineer, copy, create derivative works from or display any of the Sites’ or Cove’s software code. You may not attempt to gain unauthorized access to the Sites, other customer accounts, third-party accounts, computer systems, or networks connected to the Sites through hacking, password mining, or any other means. You may not upload, link to, post or transmit in any way connected to the Sites: (i) content of an illegal nature (including content that violates any third-party’s intellectual property rights); or (ii) pirated software (or software sites), content that facilitates “hacking” or “cracking.” You may not obtain, or attempt to obtain, any materials or information through any means not intentionally made available through the Sites.
Cove reserves the right, in its sole and exclusive discretion, to immediately suspend or terminate the account(s) of and/or any and all access to the Sites for any customer or user of the Sites who violates any provision of these Terms of Sale. You expressly understand and agree that violation of the above may result in termination of your access and/or account and a breach of any agreement you have with Cove, along with a termination of all Services, without refund of any fees or other amounts paid by you to Cove.
Personal Non-Commercial Use Limitation. Unless otherwise specified, the Sites are for your personal and non-commercial use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any content, information, software, Products, or Services obtained from the Sites.
Copyrights and Trademarks. All of the materials and content appearing on the Sites are either owned, licensed or sub-licensed (including, without limitation, through these Terms of Sale) to Cove and are used by Cove in accordance with the applicable licenses and laws. You may not copy, distribute, or otherwise disseminate any materials or content (including any logos, images, or data) from the Sites or otherwise use in any manner inconsistent with the exclusive rights of the copyright or trademark holder, unless you are the owner of said materials or content or have express written permission from the owner of said materials. All rights not expressly licensed to you under these Terms of Sale or other applicable terms and conditions are expressly reserved by Cove, or, if applicable, by the owner of such rights.
41. App Stores. You acknowledge and agree that the availability of the Applications is dependent on the third-party websites from which you download the Applications, e.g. the App Store from Apple or the Android app market from Google (each, an “App Store”). You acknowledge that these Terms of Sale are between you and Cove and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading the Applications from it, including the Applications. You agree to comply with, and your license to use the Applications is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, these Terms of Sale, the more restrictive or conflicting terms and conditions in these Terms of Sale apply. Cove will not charge you any additional fees for you to receive and download the Applications; however, your wireless service provider may charge a fee for air-time or data usage associated therewith. Check with your wireless carrier if you have questions about your wireless plan.
42. Data; Data Storage. You agree to permit Cove to track and retain personal information, demographic information, Product and monitoring usage statistics and related information for Cove’s internal marketing, demographic, and usage studies, so Cove can improve, personalize, and customize the Products and Services Cove provides to you and to Cove’s other customers and to better meet your needs and enhance your experience in using the Products and Services. All of your information and data received by Cove shall be maintained confidentially by Cove. Cove may delete any data delivered to us when (i) any storage period that applies to your account expires, (ii) you or Cove terminates your Service Plan, (iii) you deliver a written request to Cove, or (iv) when Cove chooses to do so at its sole discretion and such deletion is not prohibited by any applicable law, regulation, regulatory authority or other applicable judicial or governmental order. Notwithstanding anything contained herein to the contrary, Cove is not responsible for any change to or loss of any data.
43. Right to Subcontract. As referenced above, Monitoring Services, if purchased by you, of your System may be provided by a third-party independent contractor Monitoring Company. Cove may also, in its sole discretion, subcontract for the provision of any of the Services under these Terms of Sale. The provisions of these Terms of Sale inure to the benefit of and are applicable to (i) any subcontractor of Cove engaged to provide any of the Products or Services to you, including but not limited to RapidSOS, the Monitoring Services provided by the Monitoring Company at its Central Station (collectively, “Subcontractors”); and (ii) Cove and each of its affiliates, directors, officers, members, shareholders, employees, agents and representatives (each together with Subcontractors, a “Cove Party” and collectively, the “Cove Parties”), and bind you to all such persons or entities listed in the foregoing subsection (i) and (ii) with the same force and effect as they bind you to Cove. Any Subcontractor we engage is an independent contractor and not our partner, affiliate, or joint venture. You authorize Cove to act as your agent for purposes of working with, or providing any directions to, any Subcontractors with respect to the provision of the Services, including but not limited to Monitoring Services. You authorize Cove to share your personal information with Cove’s subcontractors or other authorized third parties for the purpose of providing Services to you under these Terms of Sale.
44. Assignment. You may not assign your rights or obligations under these Terms of Sale. Cove shall have the right to assign these Terms of Sale to any other person, firm or corporation without notice to you and upon such assignment shall have no further obligation hereunder. You acknowledge that these Terms of Sale, and particularly those Sections hereof relating to Cove’s disclaimer of warranties, maximum liability, limitation of liability, and third-party indemnification limitation on lawsuits, venue, and waiver of jury trial and class action, inure to the benefit of, are applicable to, and fully enforceable by, any assignees and/or Subcontractors of Cove, and these Sections bind you with respect to said assignees and/or Subcontractors with the same force and effect the Sections bind you to Cove.
45. Account, Password, and Security. When you register for the Sites, you will create a password to access certain materials on the Sites, including your personal customer account. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are solely responsible for any and all activities that occur under your account. You agree to immediately notify Cove of any unauthorized use of your account or any other breach of security. Cove will not be liable for any loss that you may incur as a result of someone else using your account or password, either with or without your knowledge. However, you may be held liable for losses incurred by Cove or a third party due to someone else using your account or password. You may not use any account that is registered to another person at any time without the permission of the account holder. By creating an account, you agree that you will provide only true and correct information to us about yourself and that you will not create an account for or on behalf of anyone else, unless legally authorized to do so, and that you will not use any pretext or deception to create an account, not in your own name or that would appear to be the account of another person. You agree that you will not use any pretext or deception to access or attempt to access the account of any other person.
COVE’S CHARGES FOR ITS PRODUCTS AND SERVICES ARE BASED SOLELY ON THE VALUE OF THE PRODUCTS AND SERVICES PROVIDED AND ARE NOT INSURANCE PREMIUMS NOR ARE THEY RELATED TO THE VALUE OF PROPERTY LOCATED ON OR NEAR YOUR PREMISES. YOU ACKNOWLEDGE AND AGREE THAT COVE IS NOT AN INSURER AND SHALL NOT PROVIDE INSURANCE COVERAGE AGAINST ANY LOSSES, AS DEFINED BELOW. TO THE EXTENT YOU WISH TO HAVE ANY INSURANCE COVERAGE FOR LOSSES AS DEFINED BELOW, IT IS YOUR RESPONSIBILITY TO PROCURE AND MAINTAIN SEPARATE INSURANCE POLICIES FROM AN INSURANCE COMPANY OR COMPANIES, SOLELY AT YOUR COST AND EXPENSE, COVERING ALL LOSS, DAMAGE OR EXPENSE (COLLECTIVELY “LOSSES”), INCLUDING ALL PROPERTY DAMAGE, PERSONAL INJURY (INCLUDING DEATH), ECONOMIC LOSSES OR ANY OTHER FORM OF LOSS, DAMAGE OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY (I) THESE TERMS OF SALE, INCLUDING ANY BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR OBLIGATION ARISING HEREUNDER; (II) THE SYSTEM; (III) THE SERVICES; (IV) THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF YOU OR ANY COVE PARTY (AS DEFINED BELOW); (V) THE IMPROPER OPERATION OR NON-OPERATION OF THE SYSTEM; (VI) BREACH OF CONTRACT, EXPRESS OR IMPLIED, WHICH OCCURS BEFORE OR AFTER YOUR AGREEMENT TO THESE TERMS OF SALE; (VII) BREACH OF WARRANTY, EXPRESS OR IMPLIED; (VIII) PRODUCT OR STRICT LIABILITY; (IX) THE LOSS OR DAMAGE TO OR MALFUNCTION OF PRODUCTS, SERVICES, OR FACILITIES NECESSARY TO OPERATE THE SYSTEM, TRANSMIT ANY SIGNAL TO OR RECEIVE SIGNALS AT THE MONITORING COMPANY’S CENTRAL STATION; (X) A CLAIM FOR SUBROGATION, INDEMNIFICATION OR CONTRIBUTION; (XI) A VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR ANY OTHER THEORY OF LIABILITY OR ALLEGED FAULT ON THE PART OF ANY COVE PARTY; (XII) A VIOLATION OF ANY LAW PROHIBITING THE INTERCEPTION OF ORAL COMMUNICATIONS BY ELECTRONIC MEANS; (XIII) THE ACTION OF ANY THIRD PARTY IN RESPONDING TO A SIGNAL FROM THE SYSTEM, OR (XIV) ANY UNAUTHORIZED ACCESS, USE OR DISCLOSURE OF YOUR PERSONAL INFORMATION (COLLECTIVELY, THE “COVERED CLAIMS”), RECOVERY FOR ANY LOSSES, AS DEFINED IN THIS SECTION, SHALL BE LIMITED TO THE INSURANCE YOU PURCHASE SEPARATELY FROM AN INSURANCE COMPANY, IF ANY.
47. Limitation of Liability Regarding Use of Products and Services and Release. BY AGREEING TO THESE TERMS OF SALE, YOU ARE RELEASING COVE, ITS AFFILIATES, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, SUBCONTRACTORS, AGENTS AND REPRESENTATIVES, INCLUDING BUT NOT LIMITED TO THE MONITORING COMPANY (COLLECTIVELY, THE “COVE PARTIES”) ON YOUR BEHALF AND ON BEHALF OF ALL OTHERS WHO MAKE CLAIMS UNDER THESE TERMS OF SALE FROM ALL LIABILITY ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIM (AS DEFINED ABOVE). UNDER NO CIRCUMSTANCES WILL COVE BE RESPONSIBLE OR LIABLE TO YOU FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, DEATH OR DAMAGES TO PROPERTY RELATING TO OR ARISING OUT OF YOUR USE OF THE PRODUCTS AND/OR SERVICES. NOTWITHSTANDING THE FOREGOING, EVEN IF ANY COVE PARTY IS FOUND LIABLE FOR ANY LOSSES (AS DEFINED ABOVE), ANY SUCH LIABILITY SHALL BE LIMITED TO THE LESSER OF THE AMOUNT PAID BY YOU FOR THE PRODUCTS AND SERVICES AND THE SUM OF $2,000.00 (WHICH AMOUNT REPRESENTS THE AGGREGATE MAXIMUM AMOUNT COVE MAY BE HELD LIABLE UNDER THESE TERMS OF SALE). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. COVE DISCLAIMS ALL LIABILITY OF ANY KIND OF COVE’S LICENSORS AND SUPPLIERS. COVE AND YOU ACKNOWLEDGE AND AGREE IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGES, IF ANY, THAT MAY RESULT FROM A FAILURE BY COVE TO PERFORM ANY OF ITS OBLIGATIONS. THIS AGREED-UPON AMOUNT IS NOT A PENALTY, AND IS THE SOLE REMEDY YOU HAVE AGAINST COVE RELATING TO THE PRODUCTS AND SERVICES.
THE LIMITATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND COVE AND REFLECTS AN ALLOCATION OF RISK BETWEEN YOU AND COVE, TOGETHER WITH THE OTHER COVE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS). NONE OF THE PRODUCTS OR SERVICES WOULD BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.
BY PURCHASING FROM COVE, YOU ACKNOWLEDGE THAT YOU HAVE HAD AN OPPORTUNITY TO REVIEW COVE’S WARRANTY TERMS, HAVE DONE SO TO THE DEGREE YOU FEEL YOU NEED TO BE FAMILIAR WITH THEM, AND YOU AGREE TO THEIR TERMS AND CONDITIONS, INCLUDING THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
48. No Warranties for Products and Services. THE PRODUCTS AND SERVICES ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE”, AND COVE AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT.
COVE MAKES NO REPRESENTATION OR WARRANTY THAT: (1) THE PRODUCTS OR SERVICES MAY NOT BE COMPROMISED OR CIRCUMVENTED, (2) THE PRODUCTS OR SERVICES WILL PREVENT ANY PERSONAL INJURY OR PROPERTY LOSS; OR (3) THAT THE PRODUCT OR SERVICES WILL PROVIDE ADEQUATE WARNING OR PROTECTION. COVE’S PRODUCTS AND SERVICES DO NOT CAUSE AND CANNOT ELIMINATE OCCURRENCES OF THE EVENTS THEY ARE INTENDED TO DETECT OR AVERT, INCLUDING, BUT NOT LIMITED TO, BURGLARIES, ROBBERIES, FIRES, FLOODS, AND MEDICAL PROBLEMS. YOU UNDERSTAND THAT A PROPERLY INSTALLED AND MAINTAINED ALARM SYSTEM OR PROPERLY OPERATING MEDICAL DEVICE MAY ONLY REDUCE THE RISK OF A BURGLARY, ROBBERY, FIRE, HEALTH CARE RESPONSE OR OTHER EVENTS OCCURRING WITHOUT PROVIDING AN ALARM SYSTEM, LIFE SAFETY SYSTEM OR MEDICAL DEVICE, BUT IT IS NOT INSURANCE OR A GUARANTEE THAT THE PRODUCTS AND SERVICES PURCHASED WILL DETECT OR AVERT SUCH INCIDENTS OR THEIR CONSEQUENCES, OR THAT THERE WILL BE NO PERSONAL INJURY OR PROPERTY LOSS AS A RESULT.
YOU AGREE THAT BY USING THE PRODUCTS AND SERVICES, COVE 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. YOU AGREE THE ALLOCATION OF SUCH RISK REMAINS WITH YOU, NOT COVE. BY USING THE PRODUCTS AND/OR SERVICES, YOU RELEASE, WAIVE, DISCHARGE AND PROMISE NOT TO SUE OR BRING ANY CLAIM OF ANY TYPE AGAINST COVE FOR LOSS, DAMAGE OR INJURY RELATING IN ANY WAY TO THE PRODUCTS OR SERVICES PROVIDED BY COVE.
IN NO EVENT SHALL COVE OR ANY OTHER COVE PARTY, BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE PRODUCTS AND SERVICES, WITH THE DELAY OR INABILITY TO USE THE PRODUCTS OR RELATED SERVICES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF THE COVE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY ITEM OR PORTION OF THE PRODUCTS OR SERVICES, OR WITH ANY PART OF THESE TERMS OF SALE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PRODUCTS AND SERVICES.
NEITHER COVE NOR ANY OTHER COVE PARTY REPRESENTS THAT THE PRODUCTS AND SERVICES MAY NOT BE COMPROMISED OR CIRCUMVENTED; THAT THE PRODUCTS AND SERVICES WILL PREVENT ANY PERSONAL INJURY OR PROPERTY LOSS; OR THAT THE PRODUCTS AND SERVICES WILL IN ALL CASES PROVIDE ADEQUATE WARNING OR PROTECTION. YOU UNDERSTAND THAT USE OF THE PRODUCTS AND/OR SERVICES MAY BE INTERRUPTED, CIRCUMVENTED, UNAVAILABLE (FOR A LIMITED OR EXTENDED TIME PERIOD) OR OTHERWISE COMPROMISED, INCLUDING AS A RESULT OF EQUIPMENT DESIGNED OR USED BY A THIRD PARTY FOR THE PURPOSE OF CAUSING FALSE ALARMS OR GAINING UNAUTHORIZED ACCESS TO OR OTHERWISE AFFECTING OR CONTROLLING THE PRODUCTS AND SERVICES (INCLUDING ANY CAMERA).
49. Disclaimer of Warranties and Limitation of Liability Regarding Use of or Transmissions of Information or Data to or from the Sites.
THE INFORMATION, SOFTWARE, CONTENT, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITES ARE PROVIDED AS-IS AND MAY INCLUDE INACCURACIES, DEFECTS OR TYPOGRAPHICAL ERRORS. CHANGES MAY BE MADE TO THE SITES FROM TIME TO TIME AND TO THE INFORMATION CONTAINED THEREIN. COVE AND/OR ITS AUTHORIZED CONTRACTORS OR AFFILIATES MAY MAKE IMPROVEMENTS AND/OR CHANGES TO THE SITES AT ANY TIME.
THE COVE PARTIES DO NOT MAKE ANY REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS, ACCURACY OF THE CONTENT, SOFTWARE, AND RELATED GRAPHICS OR INFORMATION CONTAINED WITHIN THE SITES FOR ANY PURPOSE. ALL SUCH INFORMATION, SOFTWARE, AND RELATED GRAPHICS OR INFORMATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. THE COVE PARTIES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, SERVICES, AND RELATED GRAPHICS OR INFORMATION, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE, AND NON-INFRINGEMENT.
COVE AND THE OTHER COVE PARTIES TAKE SECURITY SERIOUSLY AND CARE ABOUT THE INTEGRITY OF YOUR PERSONAL INFORMATION. ALTHOUGH WE USE COMMERCIALLY REASONABLE PHYSICAL, ADMINISTRATIVE, AND TECHNOLOGICAL METHODS WITH REGARD TO THE TRANSMISSION OF DATA USING THE SITES, INCLUDING HTTPS, TLS/SSL PROTOCOL, AES AND RSA DATA ENCRYPTION, COVE CANNOT, HOWEVER, GUARANTEE THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR USE YOUR PERSONAL INFORMATION FOR IMPROPER PURPOSES. IN THE EVENT THAT ANY INFORMATION UNDER OUR CONTROL IS COMPROMISED AS A RESULT OF BREACH OF SECURITY, COVE WILL TAKE REASONABLE STEPS TO INVESTIGATE THE SITUATION AND WHERE APPROPRIATE, NOTIFY THOSE INDIVIDUALS WHOSE INFORMATION MAY HAVE BEEN COMPROMISED AND TAKE OTHER STEPS, IN ACCORDANCE WITH ANY APPLICABLE LAWS AND REGULATIONS.
YOU SPECIFICALLY AGREE THAT NO COVE PARTY SHALL BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO, OR ALTERATION OR USE OF, YOUR TRANSMISSIONS OF PERSONAL INFORMATION OR DATA, ANY MATERIAL, OR DATA SENT OR RECEIVED (OR NOT SENT OR RECEIVED), OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SITES. YOU EXPRESSLY AGREE THAT COVE IS NOT RESPONSIBLE FOR ANY CONTENT SENT USING AND/OR INCLUDED IN THE SITES BY ANY THIRD PARTY.
50. Release of Insured Losses; Waiver of Subrogation. You release Cove for all Losses covered by your insurance policies and for all insurance deductibles. You also waive and release any subrogation and other rights you or your insurance company may have against Cove for money paid to you on your behalf.
51. Indemnification. You agree to indemnify and hold Cove and any Cove Party, and the respective successors, and assigns of each, harmless from any claim, demand, or damage, including reasonable attorneys’ fees, asserted by any third party due to, or arising out of, your use of the Products, Services or Sites and/or any information (text or graphical), software, or products obtained through the Sites, Products or Services and/or from Cove. IF ANYONE OTHER THAN YOU (INCLUDING YOUR INSURANCE COMPANY) ASKS ANY COVE PARTY TO PAY FOR ANY LOSSES (AS DEFINED ABOVE), INCLUDING ANY ATTORNEYS’ FEES, ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIM (AS DEFINED ABOVE), INCLUDING THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF YOU OR ANY COVE PARTY, YOU SHALL INDEMNIFY, DEFEND AND HOLD SUCH COVE PARTY HARMLESS (WITHOUT ANY CONDITION THAT ANY OF THEM FIRST PAY), FOR ALL LOSSES (AS DEFINED ABOVE), INCLUDING ATTORNEYS’ FEES, ASSERTED AGAINST OR INCURRED BY SUCH COVE PARTY. THE FOREGOING INDEMNIFICATION OBLIGATIONS MAY NOT BE ENFORCEABLE IN SOME STATES, SO SUCH OBLIGATIONS MAY NOT APPLY TO YOU.
52. Remedies for Breach. In the event you materially breach any of the provisions of these Terms of Sale and to the extent permitted by applicable law, Cove has the right to exercise any one or more of the following remedies:
Discontinue providing Services if being received by you as outlined in the Terms of Sale;
Require you to immediately pay the sum of the remaining unpaid balance you owe for the Product(s) purchased by you:
Require you to pay us the actual and reasonable costs of collection, including attorney’s fees (except where prohibited by law in the state in which you reside), we will be obligated to pay any attorney’s fees incurred by you in any action in which you prevail;
Take possession of the Product(s) and sell, lease, license or otherwise dispose of the Product(s) to satisfy any unpaid balance you may owe for the Product(s).
53. Credit Report Notice. To the extent required by state law, you are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfill the terms of your credit obligations.
54. Dispute Resolution.You and Cove each agree that if you are in default, including a material breach of any of your obligations under these Terms of Sale, or if you have any claims against Cove, any other Cove Party that may arise out of these Terms of Sale or out of the relationship between you and Cove, including but not limited to disputes as to these Terms of Sale, the Sites license, Sites access restriction and/or termination, Cove’s trademarks, copyrights, patents, trade secrets, trade dress and other intellectual property rights; privacy, the Services, Products, Monitoring Services, or disclaimer of warranties (each a “Claim” or collectively, “Claims”), then each of you and Cove shall give written notice to the other of any default or Claim and a period of fifteen (15) days to cure such default or Claim from the date such notice is provided, unless a longer period is mutually agreed upon by you and Cove (the “Cure Period”). If a breach, default or Claim is not cured within the Cure Period, then you or Cove (and/or the relevant Cove Party) agree to pursue any and all Claims or disputes against the other for default (i) in small claims court for any claim or dispute the alleged value of which is equal to or less than the jurisdictional maximum for small claims court in the relevant jurisdiction; or (ii) in court before a judge in a bench trial for all claims and disputes which have an alleged value in excess of the jurisdiction maximum for small claims court in the relevant jurisdiction.
Jury Trial Waiver. Unless otherwise prohibited by law, COVE, ALL OTHER COVE PARTIES, AND YOU EACH WAIVE ANY RIGHT TO A JURY TRIAL.
Class Action Waiver. Unless otherwise prohibited by law, COVE, ALL OTHER COVE PARTIES, AND YOU EACH AGREE THAT ANY PROCEEDINGS WHETHER IN SMALL CLAIMS COURT OR IN COURT BEFORE A JUDGE, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION.
55. Time Limitation on ActionsAll Claims, disputes, actions, or proceedings against Cove must be commenced in small claims court or court, as applicable, under the Dispute Resolution provision above, within one (1) year after the cause of action or the basis for the Claims or disputes has accrued, without judicial extension of time, or such Claim, dispute, action or proceeding is barred, except where prohibited by law. The time period in this Section must be complied with strictly.
Severability/No waiver. If any part of these Terms of Sale is determined to be invalid or unenforceable pursuant to applicable law including, without limitation, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by the valid and enforceable provision that is the closest match to the intent of the original provision and the remainder of these Terms of Sale shall remain in effect. No waiver of any of the terms of these Terms of Sale will be valid unless in writing and designated as such. No failure or delay in enforcing your or Cove’s rights shall be construed as a waiver.
English language version controlling. It is the express will of you and Cove that these Terms of Sale be prepared in English. In the event that these Terms of Sale are translated into another language or otherwise reprinted, this English language version of these Terms of Sale (as amended) shall govern if any inconsistencies from such translation arise.
Cove’s right to change these Terms of Sale as it deems reasonable or necessary; Notices. Cove reserves the right to change these Terms of Sale as it deems reasonable and appropriate without notice to you. Any changes to these Terms of Sale are effective as soon as such changes are posted to one or more of Cove’s Sites. The date of the most recent changes to these Terms of Sale are listed at the beginning of this document. Cove encourages you to use its Sites to verify the date that these Terms of Sale were last updated whenever you contact Cove’s Sites to determine whether or not changes have been made. Cove may, from time to time, post notices on one or more of its Sites if Cove believes, in its sole discretion, that it has made material changes to these Terms of Sale.
Applicable law/Jurisdiction and venue. You and Cove agree that all Products and Services you purchase shall be deemed to be provided by Cove solely based in Utah. You and Cove further agree that all Claims and disputes against Cove or any other Cove Party and any disputes that may relate to or arise out of these Terms of Sale or out of the relationship between you and Cove, shall be governed by the internal laws of the State of Utah, without regard to choice of law principles. Subject to applicable law of the Jurisdiction in which your Premises are located, you and Cove also agree that all Claims will be brought in accordance with the Dispute Resolution provisions of these Terms of Sale in the Federal, State, or local small claims, courts located in Salt Lake County, Utah, and you hereby irrevocably submit to the exclusive personal jurisdiction of such courts for such purpose.
Internet content not guaranteed to remain confidential. Cove takes reasonable and industry standard measures to protect information transmitted via the Internet. However, please remember that transmissions on the Internet are not always confidential even if Cove and you take protective measures. If you are transmitting confidential information, you are doing so at your own risk. If your payment information is hacked or otherwise comprised during any payment transaction with us, then please contact your bank to address the issue given that it is solely in possession of the merchant data used in connection with any and all transactions. in connection with any and all transactions.
Customer service. If you have any questions, comments, or concerns, please contact Cove’s customer support department during normal business hours Monday through Friday Mountain Standard time via phone at (855) 268-3669, or contact Cove at www.covesmart.com/contact-us.
Last Updated: July 15, 2019
These Terms provide that all disputes between you and RapidSOS will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT 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 RapidSOS.
The parties hereby agree as follows:1. RapidSOS Service Overview
The RapidSOS 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. In general, there are three kinds of end-users of the RapidSOS Service:
If you use the RapidSOS Service to communicate with Emergency Service Providers (as defined below) or receive communications from Notification Providers (as defined below) 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 RapidSOS Service to receive information from Subscribers in order to facilitate the provision of safety or emergency services you are an “Emergency Service Provider.”
If you use the RapidSOS Service to send emergency and general interest notifications and updates to Subscribers, you are a “Notification Provider.”
The features of the RapidSOS Service that are made available to you via the RapidSOS Service may vary depending on if you are registered as a Subscriber, Emergency Service Provider, or a Notification Provider. Some of the provisions in these Terms will only apply to certain types of end-users and we have noted where this is the case.2. RapidSOS Service Within the Platform
Access to the RapidSOS Service is made available to you as separate feature that is part of a program, platform or device (“Platform”) that you obtained from a third party (“Platform Provider”). Your use of any part of the Platform other than the RapidSOS Service is governed by the agreement between you and the Platform Provider. You agree that RapidSOS is not responsible or liable for any part of the Platform other than the RapidSOS Service.3. Eligibility
You must be at least thirteen (13) years of age to use the RapidSOS Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least thirteen (13) years of age; (b) you have not previously been suspended or removed from the RapidSOS Service; and (c) your registration and your use of the RapidSOS Service is in compliance with all applicable laws and regulations. If you are using the RapidSOS 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.4. Accounts and Registration
4.1 To access most features of the RapidSOS Service, you must register for an account either directly with RapidSOS or through the Platform. If you register for an account directly with RapidSOS, 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 RapidSOS Service. If you register for your account directly with RapidSOS, you will be asked to provide RapidSOS with a password. You are solely responsible for maintaining the confidentiality of your account and password. Regardless of whether you registered your account with RapidSOS or through the Platform, you agree to accept responsibility for all activities that occur on the RapidSOS Service under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at support@RapidSOS.com.
4.3 By creating an account with RapidSOS or through the Platform, you agree that RapidSOS may contact you to validate the phone number(s) you register with your account. 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.
4.4 You must confirm with the Platform Provider, 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 RapidSOS Service.
4.5 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.
4.6 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 RapidSOS 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.
4.7 You understand and agree that once the content of your account is made available to Emergency Service Providers, it may be transmitted over unsecured Emergency Service Provider radios or may otherwise be made accessible through unsecured communications as part of the information disseminated to or by 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.
4.8 If you are a Subscriber, you understand and agree and hereby authorize RapidSOS to release and disclose your account information to Emergency Service Providers and Notification Providers in connection with the RapidSOS Service. If you are an Emergency Service Provider or Notification Provider, you understand and agree and hereby authorize RapidSOS to release and disclose your account information to Subscribers in connection with the RapidSOS Service.
4.9 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 RapidSOS 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 Notification Provider, you understand and agree that RapidSOS may, for reasons outside their control, be unable to contact or notify any Additional Contacts of any information relating to your use of the RapidSOS Service.
5. Prohibited Conduct. BY USING THE RAPIDSOS SERVICE YOU AGREE NOT TO:5.1 use the Platform or the RapidSOS Service for any illegal purpose or in violation of any local, state, national, or international law;
5.2 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
5.3 post, upload, or distribute 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;
5.4 interfere with security-related features of the Platform or the RapidSOS 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 Platform or the RapidSOS Service except to the extent that the activity is expressly permitted by applicable law;
5.5 interfere with the operation of the Platform or the RapidSOS Service or any other user’s enjoyment of the Platform or the RapidSOS 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 Platform or the RapidSOS 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 Platform or the RapidSOS Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
5.6 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other RapidSOS Service or Platform account without permission, or falsifying your age or date of birth;
5.7 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 10) or any right or ability to view, access, or use any Material; or
5.8 attempt to do any of the acts described in this Section 5, or assist or permit any person in engaging in any of the acts described in this Section 5.6. Third-Party RapidSOS Services and Linked Websites
RapidSOS may provide tools through the RapidSOS Service that enable you to export information, including your account information, to third party services including, but not limited to, the Platform. 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 RapidSOS Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.7. Termination of Use; Discontinuation and Modification of the RapidSOS Service
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be notified of the modified Terms in order to continue to use the RapidSOS Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.10. Ownership; Proprietary Rights
You agree that you will be responsible for your use of the RapidSOS Service, and you agree to defend and indemnify RapidSOS, the Platform Provider and each of their officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the ”Indemnitees”) 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 RapidSOS Service or the Platform; (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 including, but not limited to, the Platform Provider. 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.12. Disclaimers; No Warranties
BY USING THE RAPIDSOS SERVICE, YOU AGREE THAT RAPIDSOS CANNOT CONTROL THE MANNER IN WHICH EMERGENCY SERVICES ARE RENDERED, AND THEREFORE CANNOT AND DOES NOT GUARANTEE THAT EMERGENCY SERVICE PROVIDERS WILL UTILIZE THE INFORMATION PROVIDED. NOT ALL EMERGENCY SERVICE PROVIDERS HAVE ACCESS TO THE RAPIDSOS SERVICE AND THE RAPIDSOS SERVICE MAY NOT BE UTILIZED BY EMERGENCY SERVICE PROVIDERS THAT DO HAVE ACCESS.
USE OF THE RAPIDSOS SERVICE DOES NOT CONSTITUTE AN AGREEMENT BETWEEN YOU AND SUBSCRIBERS, EMERGENCY SERVICE PROVIDERS, THE PLATFORM PROVIDER, OR OTHER USERS. YOU WILL NOT RELY ON THE RAPIDSOS SERVICE AS THE SOLE MEANS BY WHICH YOU WILL COMMUNICATE INFORMATION TO SUBSCRIBERS, EMERGENCY SERVICE PROVIDERS, OR USERS. RAPIDSOS IS NOT RESPONSIBLE FOR THE ACTIONS OF ANY SUBSCRIBER, EMERGENCY SERVICE PROVIDER, THE PLATFORM PROVIDER, OR OTHER USER. RAPIDSOS DOES NOT GUARANTEE DELIVERY OF ANY MESSAGE OR INFORMATION AND IS NOT RESPONSIBLE FOR ANY ACTION OR OMISSION BETWEEN OR AMOUNG USERS OF THE SYSTEM. RAPIDSOS DOES NOT HAVE CONTROL OVER THE VOIP SERVICE, TELEPHONE SERVICE OR INTERNET SERVICE PROVIDERS NECESSARY FOR PROVIDING THE RAPIDSOS SERVICE AND ANY FAILURE DUE TO A THIRD PARTY SERVICE PROVIDER IS NOT THE RESPONSIBILITY OF RAPIDSOS.
YOU ARE RESPONSIBLE FOR MANAGING YOUR TELEPHONE SERVICE PROVIDER ACCOUNT, ACCOUNT SUBSCRIPTIONS, LOCATION TRACKING, AND OTHER OPT-IN STATUSES AS REQUIRED TO ALLOW THE RAPIDSOS SERVICES TO LOCATE AND COMMUNICATE WITH YOUR PHONE. DEVICES THAT ARE LOCATION COMPATIBLE MAY NOT BE LOCATABLE BY THE RAPIDSOS SERVICE OR THE TELEPHONE RAPIDSOS SERVICE PROVIDER AT ALL TIMES. ANY LOCATION PROVIDED IS APPROXIMATE AND DOES NOT PROVIDE GUARANTEED RESULTS.
THE RAPIDSOS SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE RAPIDSOS SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. THE INDEMNITEES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE RAPIDSOS SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE RAPIDSOS 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 INDEMNITEES DO NOT WARRANT THAT THE RAPIDSOS SERVICE OR ANY PORTION OF THE RAPIDSOS SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE RAPIDSOS 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.13. Limitation of Liability
IN NO EVENT WILL THE INDEMNITEES 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 RAPIDSOS 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 RAPIDSOS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE INDEMNITEES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE RAPID 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 RAPIDSOS OR THE PLATFORM PROVIDER FOR ACCESS TO AND USE OF THE RAPIDSOS 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.14. Governing Law
These Terms are governed by the laws of the State of New York without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, you and RapidSOS agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York County, New York for the purpose of litigating any dispute. We operate the RapidSOS Service from our offices in New York, and we make no representation that Materials included in the RapidSOS Service are appropriate or available for use in other locations.15. General
16.1 Generally. In the interest of resolving disputes between you and RapidSOS in the most expedient and cost effective manner, you and RapidSOS 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 RAPIDSOS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16.2 Exceptions. Despite the provisions of Section 16.1, 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.
16.3 Arbitrator. Any arbitration between you and RapidSOS 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 RapidSOS.
16.4 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"). RapidSOS's address for Notice is: 234 West 39th Street, Floor 9, New York, NY 10018. 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 RapidSOS may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or RapidSOS 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, RapidSOS will pay you the highest of the following: :info the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by RapidSOS in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
16.5 Fees. If you commence arbitration in accordance with these Terms, RapidSOS 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 New York County, New York, 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 RapidSOS 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.
16.6 No Class Actions. YOU AND RAPIDSOS 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 RapidSOS 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.
16.7 Modifications. If RapidSOS makes any future change to this arbitration provision (other than a change to RapidSOS's address for Notice), you may reject the change by sending us written notice within 30 days of the change to RapidSOS's address for Notice, in which case your account with RapidSOS will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
16.8 Enforceability. If Section 16.6 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 16 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 15 will govern any action arising out of or related to these Terms.17. Consent to Electronic Communications
The RapidSOS Service is offered by RapidSOS, Inc., located at 3 Park Avenue, 22nd floor, New York, NY 10016. You may contact us by sending correspondence to that address or by emailing us at email@example.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.
A copy of this End User License Agreement is also available at https://rapidsos.com/business-terms-of-service.