The following Terms of Use are a binding agreement between you and [Pegasus Management Inc., (ProCorder)] (we, us, our or, together with the Related Parties (as defined below) Company) and govern your use of the ProCorder applications, the Service provided through the ProCorder mobile application, and any related website (collectively, the Service). Please read these terms and the privacy policy carefully before using the Service. These terms contain, among other things, a mandatory arbitration clause and a class action waiver and by using the Services, you expressly waive your right to bring claims outside of arbitration, any class action claim, and any trial by jury. If you do not agree with any of the terms, you may not access or otherwise use the Services.
YOU AGREE AND ACKNOWLEDGE THAT RECORDING INDIVIDUALS WITHOUT THEIR CONSENT MAY BE ILLEGAL OR OTHERWISE PROHIBITED IN CERTAIN JURISDICTIONS AND THAT YOU SHALL BE SOLELY RESPONSIBLE FOR YOUR COMPLIANCE WITH ALL APPLICABLE LAWS. YOU AGREE NOT TO UPLOAD ANY CONTENT, OR USE THE SERVICE IN ANY MANNER TO PROCESS OR STORE CONTENT, FOR WHICH YOU DO NOT HAVE ALL NECESSARY RIGHTS AND CONSENT TO UPLOAD, PROCESS, STORE OR OTHERWISE POSSESS (INCLUDING THE CONSENT OF ANY INDIVIDUAL RECORDED OR OTHERWISE IDENTIFIED IN SUCH CONTENT).
LIMITATION OF LIABILITY: AS FURTHER DETAILED HEREIN, IF COMPANY OR ANY OF ITS AFFILIATES, AGENTS, REPRESENTATIVES, SUPPLIERS, SERVICE PROVIDERS, CONTRACTORS OR SUBCONTRACTORS (COLLECTIVELY, RELATED PARTIES) ARE FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO ITS NEGLIGENCE, BREACH OF WARRANTY, OR FAILURE TO PERFORM ITS OR THEIR OBLIGATIONS UNDER THIS AGREEMENT, THE MAXIMUM LIABILITY (INCLUDING JOINT AND SEVERAL LIABILITY) WILL BE $100. THIS AMOUNT IS THE AGREED UPON DAMAGES, IS NOT A PENALTY AND SHALL BE THE CUSTOMER’S EXCLUSIVE REMEDY. FURTHER, YOU RELEASE AND WAIVE FOR YOURSELF AND YOUR INSURER ALL SUBROGATION AND OTHER RIGHTS TO RECOVER AGAINST COMPANY ARISING AS A RESULT OF THE PAYMENT OF ANY CLAIM FOR LOSS, DAMAGE OR INJURY. YOU SHALL AND HEREBY DO WAIVE CALIFORNIA CIVIL CODE SECTION 1542 OR ANY SIMILAR LAW OF ANY JURISDICTION, WHICH SAYS IN SUBSTANCE: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
YOU UNDERSTAND AND AGREE THAT THE SERVICE MAY NOT PERFORM AS EXPECTED
SERVICE DESCRIPTION; GRANT OF LIMITED LICENSE USAGE RIGHTS; OWNERSHIP OF SERVICE
All software provided or access to the Service is licensed hereunder by Company to you solely to enable use of and access to the Service. Subject to your full and continued compliance with these Terms of Use, Company grants you a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to use the Service for the license term as agreed upon by you. Company may, in its sole discretion, change the functions and capabilities of the Service at any time. You acknowledge and agree that Company retains all rights, title, and interests (including without limitation patent rights, copyright rights, trademark rights, and other intellectual property and proprietary rights) in and to the Service and related documentation and computer code, including, without limitation, all copies, modifications, translations and other derivative works that duplicate or are based on the Service or components thereof. You acknowledge that the Service is proprietary to Company and Company reserves all rights not expressly granted herein and no other rights and licenses are granted or deemed to be granted hereunder. By its usage of the Service, you expressly agree to these Terms of Use and the Privacy Policy.
YOUR CONTENT; YOUR RESPONSIBILITIES; YOUR REPRESENTATIONS AND WARRANTIES; RESTRICTIONS ON USE, PROHIBITED USES
Your Responsibilities
You are responsible for all of your activity in connection with the Service (including, without limitation, all uses relating to your account).
You shall not, under any circumstance, upload content, or use the Service to process or store content, for which you do not have all necessary rights and consents to upload, process or store (including the consent of any individual identified in or recorded in such content).
No Interference
Your use of the Service shall not unreasonably interfere with use of the Service by other users. You understand and agree that Company shall have the sole right to decide whether you are in violation of any of the restrictions set forth in this Section, and Company shall have the right to terminate your access at any time and for any reason.
Your Content
Any information or content posted or transmitted through the Service is the sole responsibility of the person from whom such content originated, and you access any and all such information and content solely at your own risk. You are responsible for all content you contribute, in any manner, to the Service, and you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it. You will keep all registration information accurate and current.
You agree that you are solely responsible for compliance with all applicable laws, rules and regulations regarding any content uploaded to the Service by you, including (without limitation) any laws related to privacy, wiretapping and/or audio recording.
You agree that you will not post, upload, share, store, or otherwise provide through the Services any content that: (i) infringes any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contains hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploits minors; (v) depicts unlawful acts or extreme violence; (vi) depicts animal cruelty or extreme violence towards animals; (vii) promotes fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violates any law.
License to Your Content
Anything you post, upload, share, store, or otherwise provide through the Service is your User Content. You hereby grant Company a license to translate, modify, copy, store, make use of, reproduce and/or otherwise act with respect to such User Content solely for the purpose of providing the Services to you.
If you provide Company (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Service (Feedback), you grant Company the licenses above to such Feedback.
Company reserves the right to remove any User Content from the Service at any time, for any reason or for no reason at all. You, not Company, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Service, and you represent and warrant that you possess all rights necessary to provide such content to Company and to grant Company the rights to use such information in connection with the Service and as otherwise provided herein.
Your Representations and Warranties
You represent, warrant and agree that (a) you will access the Service solely for your individual, personal purposes; (b) your Service account will not be transferred to, or used on behalf of, another party or entity (c) you will not remove any copyright, proprietary rights or other notice included in or on any portion of the Service, computer code or documentation; (d) you will not distribute, transmit, display, disclose, divulge, reveal, report, publish or transfer the Service to any third party or reproduce or create derivative works based upon the Service or any portion thereof; and (e) neither you nor anyone else will attempt to reverse engineer, reverse assemble, disassemble, decompile, or otherwise attempt to discover the source code of the Service.
You represent, warrant and agree that you will not use the Service in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, false, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities and/or sales without Company’s prior written consent, including without limitation contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including without limitation any employee or representative of Company; or (vi) contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program.
You represent, warrant and agree that all individuals recorded in any User Content have provided their express consent to be recorded.
You cannot transfer or assign this Agreement without Company’s express written consent. However, Company may assign or transfer this Agreement or subcontract its obligations hereunder at any time without your consent. If Company assigns, transfers or subcontracts its obligations pursuant to this Agreement, the assignee, transferee, and/or subcontractor shall have all of Company’s rights articulated hereunder. Company, Inc. is not responsible for the products or services of any third-party, including any assignee, transferee, and/or subcontractor.
Third Party Content
The Service may contain links or connections to third party websites or services that are not owned or controlled by Company. When you access third party websites or use third party services, you accept that there are risks in doing so. Company encourages users to be aware when they leave the Service and to read the terms and conditions and privacy policy of each third-party website or service that they visit or utilize.
Third Party IP Rights
Company may not monitor User Content but reserves the right to delete or disable content at any time and for any reason.
PAYMENT TERMS
The Service may be a free trial or Paid Service. If you wish to use the Paid Service, you must pay all applicable fees for such Paid Service.
Paid Services. Certain of our Services may be subject to payments now or in the future (the Paid Services). Please see our Apple App Store Subscriptions for a description of the current Paid Services. Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms of Use.
Billing. Company uses a third-party payment processor (the Payment Processor) to bill you through a payment account linked to your account on the Services (your Billing Account) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms of Use. Company is not responsible for error by the Payment Processor. By choosing to use Paid Services, you agree to pay Company, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize Company, through the Payment Processor, to charge your chosen payment provider (your Payment Method). You agree to make payment using that selected Payment Method. Company reserves the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.
Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If Company, through the Payment Processor, does not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
Recurring Billing. Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. COMPANY MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY OR ANNUALLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY COMPANY) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE COMPANY REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, SEND COMPANY AN EMAIL AT support@procorder.com.
Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT INCLUDING A CURRENT E-MAIL ADDRESS. YOU ACKNOWLEDGE THAT IF YOU DO NOT PROVIDE A CURRENT E-MAIL ADDRESS, COMPANY OR THE PAYMENT PROCESSOR MAY NOT BE ABLE TO SEND YOU BILLING RECEIPTS. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY COMPANY OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT COMPANY MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of applicable taxes), you have the right to receive, and Company shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that Company may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
Auto-Renewal for Paid Services. Unless you opt out of auto-renewal, which can be done by sending Company an email at support@procorder.com, any Paid Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign your Paid Services at any time, send Company an email at support@procorder.com. If you terminate a Paid Service, your subscription will revert to the free version, and you will not be refunded any portion of your unused subscription. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY OR ANNUAL BASIS, YOU MUST CANCEL THE APPLICABLE PAID SERVICE BY SENDING COMPANY AN EMAIL AT support@procorder.com OR TERMINATE YOUR ACCOUNT BEFORE THE END OF THE RECURRING TERM. PAID SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, COMPANY WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.]
Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that Company is authorized to charge your Payment Method for that Paid Service. Company may submit those charges for payment and you will be responsible for such charges. This does not waive Company’s right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
TERMINATION
Termination by You
You may stop using the Service at any time by contacting Company at support@procorder.com. Please refer to Company’s Privacy Policy, as well as the licenses above, to understand how Company treats information you provide to Company after you have stopped using the Service.
Termination by Company
Company, in its sole discretion, may terminate (or suspend access to) your use of the Service or your account, including for your breach of these Terms of Use. Company has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms of Use. Company has no duty to retain your Content, data, and information after termination.
Effects of Termination
Provisions that, by their nature, should survive termination of these Terms of Use shall survive termination including, without limitation, any obligation you have to pay (e.g. “Payment Terms”) or indemnify (e.g. “Indemnity and Disclaimers”) Company, any limitations on Company’s liability, any terms regarding ownership or intellectual property rights (e.g. “Service Description; Grant of Limited License; Ownership of Service”), and terms regarding disputes (e.g. “Dispute Resolution”), “Your Representations and Warranties,” and “General.”
INDEMNITY AND DISCLAIMERS
Dissatisfaction with Service; Terms of Use
Your only right with respect to any dissatisfaction with any modifications to these Terms of Use, or any policies or practices of Company, including, without limitation, (i) any change in the content of the Service, or (ii) any change in the amount or type of license fees, if any, is to terminate use of the Service.
Indemnification
You agree to indemnify, defend, hold harmless and release Company from all liability and shall reimburse Company for any damages, losses, expenses (including reasonable attorneys’ fees and costs) incurred in connection with any demand, claims, suits, judgments and causes of action which relate to Company’s products or services (including the Service) or otherwise arise from any breach of these Terms of Use. Without limiting the foregoing, you agree that the foregoing obligations apply to any claim related to breach of applicable law (including wiretapping laws and privacy laws). This duty to defend and indemnify includes claims brought by any third-party whether the claim arises under contract, warranty, negligence, or any other theory of liability. The duty to defend and indemnify applies even in the case of Company’s own negligence or breach of warranty.
Warranty Disclaimer
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE INCLUDING ALL CONTENT, USAGE OF THE SERVICE, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION ACCESSED BY ANY MEANS THEREOF IS PROVIDED “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, INTEGRATION, QUIET ENJOYMENT, COURSE OF PERFORMANCE OR USAGE OF TRADE ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. COMPANY MAKES NO WARRANTIES AS TO ANY INFORMATION, CONTENT OR MATERIALS IN MADE AVAILABLE THROUGH THE SERVICE, OR AS TO THE POSSIBLE USES OF ANY OF THE FOREGOING, EVEN IF COMPANY IS MADE AWARE OF ANY PARTICULAR USE(S).
Certain Liability Exclusions
YOU ACKNOWLEDGE THAT THE PAYMENTS YOU MAKE UNDER THIS AGREEMENT ARE SOLELY BASED ON THE COST OF THE SYSTEM AND THE SERVICES, AND SPECIFICALLY TAKE INTO CONSIDERATION THE LEGAL PROTECTIONS AFFORDED TO PEGASUS MANAGEMENT, INC. UNDER THIS AGREEMENT. THEREFORE, PEGASUS MANAGEMENT, INC. EXPRESSLY DENIES AND DISCLAIMS ALL LIABILITY FOR ANY LOSS OR DAMAGE WHICH MAY OCCUR PRIOR TO, AT OR AFTER SIGNING THIS AGREEMENT, INCLUDING LIABILITY BASED ON CONTRACT, TORT, NEGLIGENCE OF ANY DEGREE, WARRANTY (INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND ALL OTHER THEORIES OF LIABILITY.
COMPANY SHALL NOT BE LIABLE FOR ANY USE OF OR RELIANCE ON THE SERVICE UNDER ANY CIRCUMSTANCES, OR FOR ANY INTERRUPTION, UNAVAILABILITY OF OR ERROR IN THE SERVICE OR ANY INFORMATION MADE AVAILABLE THROUGH THE SERVICE, EVEN IF CAUSED BY, COMPANY’S NEGLIGENCE AND OR FAILURE TO ISSUE ALERTS OR NOTICES. COMPANY WILL NOT BE LIABLE FOR ANY FAILURE OF OR DELAY IN PERFORMANCE DIRECTLY OR INDIRECTLY CAUSED BY ACTS OR OMISSIONS OF YOU (OR ANY OTHER USERS AFFILIATED OR ASSOCIATED WITH YOUR ACCOUNT) OR ANY OTHER THIRD PARTY. YOU AGREE TO ASSUME ALL OF THE RISKS IN USING THE COMPANY SERVICE, WHETHER KNOWN OR UNKNOWN, INCLUDING WITHOUT LIMITATION, THE RISK THAT THE SERVICE OR THE INFORMATION MADE AVAILABLE THROUGH THE SERVICE WILL BE INTERRUPTED, UNAVAILABLE, INACCURATE OR INCOMPLETE. COMPANY RESERVES THE SOLE RIGHT TO MODIFY OR DISCONTINUE THE SERVICE AT ANY TIME WITH OR WITHOUT NOTICE TO YOU. COMPANY WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY SHOULD COMPANY EXERCISE SUCH RIGHT. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY SHALL HAVE NO LIABILITY WHATSOEVER FOR THIRD PARTIES WHO ARE NOT USERS.
IF COMPANY OR ANY OF ITS AFFILIATES, OR ANY OF ITS OR THEIR AGENTS, REPRESENTATIVES, SUPPLIERS, SERVICE PROVIDERS, CONTRACTORS OR SUBCONTRACTORS ARE FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO ITS OR THEIR NEGLIGENCE, THE FAILURE TO PERFORM ITS OR THEIR OBLIGATIONS UNDER THIS AGREEMENT IN ANY RESPECT AT ALL, BREACH OF WARRANTY, OR PRODUCT FAILURE, THE MAXIMUM LIABILITY (INCLUDING JOINT AND SEVERAL LIABILITY) WILL BE $100. THIS AMOUNT IS THE AGREED UPON DAMAGES, IS NOT A PENALTY AND SHALL BE THE YOUR EXCLUSIVE REMEDY. THIS LIMITATION OF LIABILITY SPECIFICALLY COVERS LIABILITY FOR: (1) LOST PROFITS; (2) LOST OR DAMAGED PROPERTY; (3) GOVERNMENTAL FINES AND CHARGES; (4) CLAIMS OF THIRD PARTIES; AND (5) ANY AND ALL TYPES OF DAMAGES, INCLUDING: DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL AND PUNITIVE.
Limitation of Liability Generally
IN NO EVENT SHALL COMPANY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING WITHOUT LIMITATION ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK, SYSTEM, ACTS OF GOD OR ACTS OF GOVERNMENTS), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, OR (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL. IN NO EVENT SHALL COMPANY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT FOR DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF $100.
THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THE PROCEEDING PARAGRAPH SHALL APPLY REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF THE PARTY AGAINST WHOM DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NOTHING IN THIS SECTION SHALL LIMIT A PARTY’S LIABILITY FOR DAMAGES ARISING FROM PERSONAL BODILY INJURY (INCLUDING DEATH), WILLFUL MISCONDUCT OR FRAUD, ANY BREACHES OF “RESTRICTIONS ON USE; PROHIBITED USES” OR “FEES,” OR ANY EXCLUSION OR LIMITATION OF LIABILITY THAT IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW.
You must bring any claim arising out of this Agreement or related to the products or services (including the Services) provided by Company within one (1) year after the date on which the claim arose or the shortest duration permitted under applicable law if such period is greater than one (1) year. If you do not, you waive, to the extent permitted by law, all rights you may have with respect to such claim and Company shall not have any liability to you relative to that claim.
DISPUTE RESOLUTION – ARBITRATION PROVISIONS
PLEASE READ THIS SECTION CAREFULLY. THE ARBITRATION CLAUSE, JURY WAIVER, SEVERABILITY PROVISION AND THE REST OF THIS SECTION ARE IMPORTANT PARTS OF THE AGREEMENT BETWEEN YOU AND COMPANY. These Terms of Use are governed by and will be construed under the laws of the State of Delaware, without regard to the conflicts of laws provisions thereof. Any and all claims between you and Company shall be finally arbitrated: (1) in English; (2) in accordance with the Consumer Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect; (3) in the your state of residence; (4) at Company’s expense to the extent required by law; (5) pursuant to the Federal Arbitration Act; (6) by one arbitrator who shall: (i) be selected from the appropriate list of JAMS arbitrators in accordance with such Rules; (ii) have sole authority to decide any question concerning the scope, applicability, enforceability, revocability, and/or validity of this arbitration agreement; and (iii) be barred from presiding over any class, collective, or representative action, consolidating multiple claimants’ cases or awarding any non-individualized relief (Class Action Waiver). The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Any arbitration will take place on an individual basis. Class arbitrations, class actions, representative actions, any other form of collective action or consolidated proceedings are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. If the above Class-Action Waiver is found to be unenforceable or invalid, any class or representative claims would proceed in state or federal courts located in Boston, Massachusetts. Under no circumstances shall any class or representative claims proceed in arbitration. To the extent the Class Action Waiver is valid, claims subject to the Class Action Waiver shall go forward in individual arbitration (as described above) and any such claims shall be stayed pending resolution of the individual arbitration.
GENERAL
Company has the right to modify these Terms of Use. Any modification is effective upon posting a notice of the change via the Service, or immediately upon notice by electronic mail. Your continued use of the Service following notice of any modification to this Agreement shall be conclusively deemed an acceptance of all such modification(s). These Terms of Use (including the Company Privacy Policy) constitute the entire agreement between you and Company and supersedes all prior agreements, whether written or oral. Failure by Company to enforce any provision of this agreement shall not be construed as a waiver of any provision or right. You may not assign, delegate or transfer these Terms of Use or his or her rights or obligations hereunder in any way (by operation of law or otherwise) without Company’s prior written consent. Company may transfer, assign, or delegate these Terms of Use and Company’s rights and obligations without consent. If any provision of the Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Use will otherwise remain in full force and effect and enforceable. You understand and agree to be responsible for any additional charges, including false alarm fines or fees, telephone signal transmission or mobile data, and other services.
United States Laws and Regulations
The Service is operated from Company servers in the United States. You are responsible for compliance with the laws of the jurisdiction in which it is located. In no event shall you use the Service in any location where such use is prohibited or restricted by local law or where Company would incur a tax or fee obligation that would not be paid by you. You may not use or export the Service or the products thereof in violation of United States laws and regulations, including, without limitation, export administration regulations. Company may assign this Agreement in its sole discretion at any time.
Use by Children
The Children’s Online Privacy Protection Act (COPPA) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. Company does not knowingly collect or solicit personally identifiable information from a child under 13 without obtaining verifiable consent from that child’s parent or guardian (Parental Consent), except for the limited amount of personally identifiable information Company needs to collect in order to obtain Parental Consent (Required Information). Until Company has received Parental Consent, Company will only use Required Information for the purpose of obtaining Parental Consent. If you are a child under 13, please do not attempt to send any personal information about yourself to Company before Company obtains Parental Consent, except for the Required Information in the context of the Parental Consent process. If you believe that a child under 13 has provided Company with personal information (beyond the Required Information) without Company’s obtaining Parental Consent, please contact Company at support@procorder.com.
APPLE TERMS AND CONDITIONS
These Terms of Use apply to use of all the Service, including the applications available via the Apple, Inc. (Apple) App Store (the Application), but the following additional terms also apply to the Application:
Both you and Company acknowledge that the Terms are concluded between you and Company only, and not with Apple, and that Apple is not responsible for the Application or the Content;
The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Service for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Service;
You will only use the Application in connection with an Apple device that you own or control;
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support service with respect to the Application;
In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
You acknowledge and agree that Company, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Company, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
Both you and Company acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
Both you and Company acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.