Terms of Service
Date: 05 Feb 2018
EmergeTech, LLC AND ITS AFFILIATES (“EmergeTech”, “WE”, “OUR” AND “US”) PROVIDE: (1) SERVICES ACCESSIBLE THROUGH EMERGETECH’S WEBSITES (“WEB APPS”), (2) SOFTWARE THAT MAY BE DOWNLOADED TO YOUR SMARTPHONE OR TABLET TO ACCESS SERVICES (“MOBILE APPS”), AND (3) THE EMERGETMS™ TRANSPORTATON MANAGEMENT SERVICE (COLLECTIVELY, “EMERGETMS” OR “SERVICES”). SOME EMERGETECH SERVICES CAN BE USED TOGETHER OR IN WAYS THAT INTEGRATE WITH SERVICES FROM THIRD PARTIES. THE TERM “SERVICES” MEANS THE WEB APPS, MOBILE APPS, AND SUBSCRIPTION SERVICES.
These Terms of Service (“Terms” or “Agreement”) govern your access to and use of the Services. Please read these terms carefully.
The term “you,” as used in these Terms, means any person or entity who accesses or uses the Services and any person or entity who creates an Account (as defined in Section 2(a)) and accepts these Terms, including Owners, Authorized Users (as defined in Section 2(b)), as applicable (as described in Section 1(b)(ii)). These Terms give you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. THE DISCLAIMERS, EXCLUSIONS, MANDATORY AND BINDING ARBITRATION, LIMITATIONS OF LIABILITY, INDEMNIFICATION, WAIVER OF JURY TRIAL, WAIVER OF CLASS ACTION AND WAIVER OF PUNITIVE DAMAGES UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THESE TERMS ARE A LEGAL AGREEMENT. ACCESSING AND USING THE SERVICES, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY (SUBJECT TO SECTION 1(B)(II) BELOW) TO ACCEPT AND AGREE TO THESE TERMS. YOU REPRESENT THAT YOU ARE, SUBJECT TO SECTION 1(B)(II) BELOW, OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE SERVICES.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE SERVICES. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SERVICES.
AS DESCRIBED BELOW, SECTIONS 4 AND 5 DESCRIBE IMPORTANT LIMITATIONS OF THE Services, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
1. OVERVIEW, ELIGIBILITY, CUSTOMER SERVICE, TERM AND TERMINATION
- EmergeTMS is a transportation management system focused on connecting shippers and their partners when executing full truckload transactions. EmergeTMS includes: Quote Management, Partner Chat, Mobile/Ping Tracking, Analytics, History, and Automated Lane / Repeat Shipment creation.
- Using our mobile application for iOS, Android or other devices while driving a truck or motor vehicle can cause serious injury, death, or property damage to you or others. Do not use our mobile application unless your vehicle is stationary and parked. You assume all risks and responsibilities related to such use.
- EmergeTMS users who are motor carriers will manually enter rates to be conveyed to shippers via EmergeTMS. Carriers do not have to register with EmergeTMS before submitting rates to Shippers. EmergeTMS users must be bona fide motor carriers, shippers, freight brokers, 3PLs, freight forwarders or motor carrier agents, only. You understand and agree by your use of EmergeTMS that your access is for commercial purposes only and is limited to finding loads and/or trucks using our transportation management system offered on EmergeTMS. When submitting data to EmergeTMS, you knowingly consent and warrant that the information posted on EmergeTMS is accurate and they are authorized to submit the information.
- You agree at all times to: (i) provide current and complete information to EmergeTech, including registration information; and (ii) maintain and update your information to keep it accurate, current and complete. You acknowledge that, if any information provided by you to EmergeTech is untrue, inaccurate, not current, or incomplete, it shall be a violation of these Terms, and shall subject you to termination of your account without notice or warning, in addition to being subjected to all other legal remedies that may be available under law, or these Terms, including but not limited to civil and/or criminal actions under federal or state laws. EmergeTech may institute legal action against you to enforce these Terms, or for other violations of applicable law.
- You understand and agree that we reserve the right to change, remove, alter or delete any account username at any time and for any reason in our sole discretion. You will be responsible for the confidentiality and use of your username and password and agree not to provide access to your account via your username or password to any third party.
- YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD AND FOR ANY AND ALL ACTIVITIES THAT ARE CONDUCTED THROUGH YOUR ACCOUNT.
- You agree to notify us immediately of any unauthorized use, theft or misappropriation of your account, username, or password. We shall not be liable for any loss that you incur as a result of someone else using your username or password, either with or without your knowledge.
- As an added benefit option for members, EmergeTMS displays the mileage of certain lanes. It is meant only to give users an estimate as to the distance between the starting and destination points of the load. EmergeTech does not make claim to the accuracy of the mileage. The parties to the transaction, i.e., the EmergeTMS users, shall agree in advance to payment and charges such as accessorial fees. EmergeTech assumes no responsibility for rate disputes between users.
- You shall comply in full with all federal, state, local and foreign laws, rules and regulations in connection with your access to, and use of, EmergeTMS.
- EmergeTech reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, EmergeTMS (or any part thereof) with or without notice. We may also impose limits or restrictions on certain services, features or content, or restrict your access to parts or all of EmergeTMS without notice. You agree that EmergeTech shall not be liable to you or to any third party for any modification, suspension, or discontinuance of EmergeTMS.
- Eligibility. You may use the Services only if you have the legal capacity to form a binding agreement with us (except subject to the provisions of clause (1)(b)(ii) below), you accept these Terms by accessing or using the Services, and only if you are in compliance with these Terms and all applicable local, state/provincial, national and international laws, rules, and regulations. Only individuals age 18 and older are permitted to act as owners of Accounts.
- Customer Service. If you have any questions or concerns regarding the Services, or these Terms, please contact EmergeTech. You understand and agree that customer service and customer care and support offered and provided by EmergeTech is not a 911 service or dispatch center, an emergency service provider or dispatch service, or a lifesaving solution for people at risk in their home or otherwise. Please do not contact customer service or any customer care and support offered by EmergeTech with any life/safety emergency, medical emergency, or any other emergency. If you have any such emergency, you should immediately contact the police, fire department, 911 or appropriate emergency response service.
- Term and Termination. These terms will remain in full force and effect so long as you continue to access or use the Services, or until terminated in accordance with these Terms. At any time, EmergeTech may (i) suspend or terminate your right to access or use the Services, (ii) terminate these Terms with respect to you if EmergeTech in good faith believes that that you have used the Services in violation of these Terms, including any incorporated guidelines, terms or rules. If you transfer your Account to a new owner, your right to use the Services automatically terminates, and the new owner will have no right to use the Services under your Account (as described below) and will need to register for a separate Account with EmergeTech and accept these Terms. You may cancel and discontinue their EmergeTMS Account at any time by written notice to EmergeTech. Cancellation requests must be sent to support@EmergeTMS.com. The cancellation date will be the date when the cancellation request is received by EmergeTech.
- Effect of Termination. Upon termination of these Terms, your Account and your right to use the Services will automatically terminate.
- You represent and warrant that: (i) all required information you submit is truthful and accurate; (ii) you will maintain the accuracy of such information; and (iii) your use of the Services will not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper and lower-case letters, numbers and symbols) with your Account, and to maintain your password securely to prevent others from gaining access without your permission. You agree to immediately notify us of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. We are not liable for any loss or damage arising from your failure to comply with the above requirements.
- The individual who creates an Account is the “owner” of that Account. Individuals who are authorized to access and use Services are “Authorized Users. Authorized Users are responsible for their own actions in connection with the Services, and hereby agrees to be fully responsible for all actions taken by Authorized Users relating to the Services and the owner’s Account. If you are an owner who invites or enables an Authorized User, you acknowledge and agree that such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to use the Services set out above. As a result, you should authorize only those individuals that you trust to access your Account, your Products, and the Services.
3. ACCESS TO SERVICES
- Access and Use. Subject to these Terms, EmergeTech grants you a non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Services solely for your internal business purposes and subject to these Terms (the “Permitted Purpose”).
- Automatic Software Updates. EmergeTech may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and you agree to promptly install any Updates EmergeTech provides. Your continued use of the Services is your agreement to (i) these Terms with respect to the Services, (ii) any change or updates that EmergeTech may make to these Terms over time.
- Certain materials may be displayed or performed on the Services (including, but not limited to text, graphics, articles, photographs, video, images, and illustrations (“Content”). The Content also includes information that you and other users provide us in the course of using the Services (collectively, “User Submissions”), which we may use to provide, maintain and improve the Services. Some content may be visible to others. You may also post feedback, comments, questions, or other information on EmergeTech’s websites. You are solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, or that you contribute in any manner to the Services; you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it; and you grant to EmergeTech an irrevocable, perpetual, worldwide, royalty-free, assignable, sublicenseable, transferrable license to use, modify, transfer, distribute, created derivative works from, reproduce, display and perform such Content and all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. EmergeTech reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence), or for no reason at all.
- Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services; (iii) you agree not to access the Services in order to build a similar or competitive service or product; (iv) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (v) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, the Products, the Product Software, or any other system, device or property; (vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Services or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by EmergeTech; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Services. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
- Open Source. Certain items of independent, third party code may be included in the Web Apps and/or Mobile Apps that are subject to certain open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license agreement under which such Open Source Software is distributed or to which it is subject.
- Security. EmergeTech cares about the integrity and security of your personal information. However, EmergeTech cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
- Modification. EmergeTech reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that EmergeTech will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
- Access Outside Certain Countries. Although EmergeTech’s websites are accessible worldwide, and the Services provided or accessed through or on the EmergeTech websites are available and supported in certain countries (“Target Countries”), the Services provided or accessed are not available to all persons or in all countries. If you choose to access the EmergeTech websites from outside a Target Country in which EmergeTech supports the Services , you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the EmergeTech websites are not designed for use in a non-Target Country and some or all of the features of the EmergeTech websites may not work or be appropriate for use in such a country. To the extent permissible by law, EmergeTech accepts no responsibility or liability for any damage or loss caused by your accessing or use of EmergeTech’s websites or EmergeTech Products in a non-Target Country. You will be bound by these Terms wherever you use the Services.
4. AGREED USAGE AND LIMITATIONS OF EMERGETECH SERVICES
- Intended Use of EmergeTech Services. The Services are intended to be accessed and used for non-time-critical information and control of EmergeTech Products. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond EmergeTech’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that EmergeTech is not responsible for any damages allegedly caused by the failure or delay of the Services.
- No Life-Safety or Critical Uses of the Services. You acknowledge and agree that the Services, whether standing alone or when interfaced with Third Party Product, System, or Service are not certified for emergency response. EmergeTech makes no warranty or representation that use of the Services with any Third Party Product, System, or Service will affect or increase any level of safety. YOU UNDERSTAND THAT THE SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH THIRD PARTY SERVICES, ARE NOT A THIRD PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. FURTHER, YOU UNDERSTAND THAT UNDER NO CIRCUMSTANCES WILL EMERGETECH DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY.
- Reliability of Services. You acknowledge that the Services, including remote access and mobile notifications, are not error-free or 100% reliable and 100% available. Proper functioning of the Services relies and is dependent on, among other things, the transmission of data through your Wi-Fi network, enabled wireless device (such as a phone or tablet) and broadband internet access, or optional Cellular Backup service, for which neither EmergeTech nor any wireless or data carrier is responsible, and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, unavailability of radio frequency channels, system capacity, upgrades, repairs or relocations, and priority access by emergency responders in the event of a disaster or emergency (collectively “Service Interruptions”). You understand that Service Interruptions may result in the Services being unreliable or unavailable for the duration of the Service Interruption. We cannot and do not guarantee that you will receive notifications in any given time or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. There is no way for EmergeTech to provide specific information relating to a situation in your home or elsewhere. You acknowledge that it is your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
- Service Interruptions; no refund or rebate. The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. EmergeTech does not offer any specific uptime guarantee for the Services.
- System Requirements. The Services will not be accessible without: (i) a working Wi-Fi network in your home that is positioned to communicate reliably with the Products; (ii) an enabled and supported wireless device, such as a phone or tablet (required for some features and functionalities of the Service); (iii) always-on broadband Internet access in your home with bandwidth sufficient to support the Products you use; and (iv) other system elements that may be specified by EmergeTech. Additionally, it may also be necessary to create and maintain an Account in order to access the Services. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. If you modify, substitute, move, or otherwise change any of the required system elements, it is your sole duty and responsibility to be sure they are compatible and properly configured to work with the Services. In addition, you acknowledge that EmergeTech may activate Bluetooth on your smartphone or tablet, with or without prior notification, in order to facilitate proper operation of the Services, enable communication with EmergeTech Products connected to the same EmergeTech account, and enable certain features.
- Cellular Back-Up in Case of Wi-Fi Outage. In the event of any Service Interruptions to your home’s Wi-Fi network or internet connection, the Services may be unreliable or unavailable for the duration of the Service Interruption. This means that features and functionalities of the Services may be unavailable on you Mobile App for the duration of the Service Interruption. You may have an option of selecting a cellular back-up subscription plan (“Cellular Backup”) to help improve connectivity in the event of any Service Interruption and decrease the likelihood of interruption of the Services and access to the various features and functionalities of your Services on your Mobile App.
- Product information. The Services provide you information (“Product Information”) regarding the Products in your home and their connection with other Services. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Services is not a substitute for direct access of the information in the home.
- Information reliability. All information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which (or from whose account) such Content originated and EmergeTech will not be liable for any errors or omissions in any Content. EmergeTech cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. Additionally, we cannot guarantee the authenticity of any data that users or merchants may provide about themselves. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.
- Representations. You warrant, represent and agree that you will not contribute any Content or otherwise use the Services 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 or is otherwise illegal; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of EmergeTech; (v) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vi) jeopardizes the security of your EmergeTech Account or anyone else’s Account (such as allowing someone else to log in to the Services as you); (vii) attempts, in any manner, to obtain or access the password, account, products, devices, systems, or other security information from any other user or third party; (viii) violates the security of any computer network, or cracks any passwords or security encryption codes; (ix) runs Maillist, Listserv, or any form of auto-responder or “spam” on the Services, or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any significant portion of the Content; (xi) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services; (xii) denigrates or disrupts any network capacity or functionality; or (xiii) engages in remote monitoring to provide professional medical care for any individual, including without limitation, in any health care and assisted living environment.
- Installation, test and use. It is your responsibility to install and use the Services pursuant to the applicable manual and instructions. It is your responsibility to test the Products once installed to be sure the Products (and any related components) are functioning and communicating as intended and designed, and then regularly test and maintain the Products after installation.
- Smart device standards/use. The Products may use various open or commonly available standards or means to communicate and work with smart or connected devices that are also similarly used by other systems or services not manufactured by EmergeTech, including Wi-Fi, Bluetooth, and IP devices. HOWEVER, SMART, CONNECTED, OR OTHER DEVICES AND RELATED SERVICES (“THIRD PARTY PRODUCTS, SYSTEMS, OR SERVICES”) THAT ARE NOT DESIGNATED BY EMERGETECH AS COMPATIBLE WITH THE SERVICES MAY NOT WORK WITH THE SERVICES, OR MAY HAVE LIMITED FEATURES OR FUNCTIONALITY, EVEN IF DESIGNED, SPECIFIED OR MARKETED TO OPERATE USING THE SAME OR SIMILAR STANDARDS OR MEANS OF COMMUNICATION. YOU AGREE ONLY TO USE THIRD PARTY SERVICES DESIGNATED BY EMERGETECH AS COMPATIBLE WITH THE SERVICES. FURTHER, YOU AGREE THAT EMERGETECH IS NOT RESPONSIBLE FOR, AND YOU HEREBY RELEASE AND HOLD EMERGETECH HARMLESS FROM AND AGAINST, ALL LIABILITY AND DAMAGES, INJURIES OR LOSS OF LIFE ARISING FROM. RELATED TO, OR CAUSED BY, ANY ATTEMPT BY YOU TO CONNECT, OR YOUR CONNECTION AND USE OF, THIRD PARTY SERVICES THAT ARE NOT CERTIFIED BY EMERGETECH AS COMPATIBLE WITH THE SERVICES.
5. LIMITATIONS OF EMERGETECH SERVICES DUE TO THIRD PARTIES
- General. The Services rely on or interoperate with Third Party Products, Systems, or Services. These Third Party Products, Systems, or Services are beyond EmergeTech’s control, but their operation may impact or be impacted by the use and reliability of the Services. You acknowledge and agree that: (i) the use and availability of the Services is dependent on third party product vendors and service providers, (ii) these Third Party Products, Systems, or Services may not operate in a reliable manner 100% of the time, and they may impact the way that the Services operate, and (iii) EmergeTech is not responsible for damages and losses due to the operation of these Third Party Products, Systems, or Services.
- Third Party Service Providers Used by EmergeTech. You acknowledge that EmergeTech uses third party service providers to enable some aspects of the Services – such as, for example, data storage, Cellular Backup, synchronization, and mobile device notifications through mobile operating system vendors and mobile carriers. YOU AGREE NOT TO RELY ON THE SERVICES FOR ANY LIFE SAFETY OR TIME-CRITICAL PURPOSES. FURTHER, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO RELEASE AND HOLD HARMLESS THIRD PARTY SERVICE PROVIDERS FROM ALL LIABILITY, DAMAGES OR LOSSES OF ANY KIND OR SORT, PERSONAL INJURY OR LOSS OF LIFE ARISING FROM YOUR USE OF THE SERVICES.
- App Stores. You acknowledge and agree that the availability of the Mobile Apps is dependent on the third-party websites from which you download the Mobile Apps, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that these Terms are between you and EmergeTech and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with, and your license to use the Mobile Apps 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, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
- Third Party Website Links and Referrals. EmergeTech’s websites may contain links to other web sites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”). Such Third Party Sites and Referred Vendors are not under our control. EmergeTech provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites or Referred Vendors. Your use of these Third Party Sites is at your own risk.
- Authorized Users. EmergeTech is not responsible for any Authorized User’s behavior, or for any personal injury, death, property damage (including, without limitation, to your home), or other harm or losses arising from or relating to their use of the Services.
- Release Regarding Third Parties. EmergeTech is not responsible for third parties or their Services, including, without limitation, the App Stores, Third Party Product, System, or Service, Third Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. EmergeTech hereby disclaims and you hereby discharge, waive and release EmergeTech and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their Services. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
6. OWNERSHIP AND INTELLECTUAL PROPERTY
- EmergeTech Property. You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the Product, Product Software, and Services are EmergeTech Property. You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the Product, Product Software, and Services are owned by EmergeTech or our affiliates or licensors. Your possession, access, and use of the Product, Product Software, and Services do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. EmergeTech and its affiliates and licensors and suppliers reserve all rights not granted in these Terms. Subject to the foregoing, you own the specific items of Product that you have purchased from EmergeTech.
You may only copy parts of the Services on to your own computer for your own personal use. You may not use the content of the Services in any other public or commercial way nor may you copy or incorporate any of the content of the Services into any other work, including your own web site without the written consent of EmergeTech. You must have a license from us before you can post or redistribute any portion of the Services. Other than with respect to User Submissions, EmergeTech retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any content therein.
- Feedback. You may choose to, or EmergeTech may invite you to submit comments, suggestions, or ideas about the Services, including how to improve the Services (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place EmergeTech under any fiduciary or other obligation. EmergeTech may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that EmergeTech does not waive any rights to use similar or related ideas previously known to EmergeTech, developed by its employees, or obtained from other sources.
- User Submissions. You hereby grant us with a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferable right to access, display, or otherwise use your User Submissions (including all related intellectual property rights) solely in connection with providing you the Services and as directed by you. You also hereby do and shall grant each user of the Services a non-exclusive license to access and use your User Submissions through the Services and as permitted through the functionality of the Services and under these Terms. Furthermore, you understand that we retain the right to reformat, modify, create derivative works of, excerpt, and translate any User Submissions submitted by you. For clarity, the foregoing license grant to EmergeTech does not affect your ownership of or right to grant additional licenses to the material in your User Submissions, unless otherwise agreed in writing.
7. INDEMNITY FOR THIRD PARTY ACTIONS
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, RELEASE AND HOLD EMERGETECH AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY THE “EMERGETECH PARTIES”) HARMLESS FROM AND AGAINST (I) ALL CLAIMS, ACTIONS, LAWSUITS AND ANY OTHER LEGAL ACTION BROUGHT BY ANY THIRD PARTY AGAINST ANY OF THE EMERGETECH PARTIES ARISING FROM OR RELATING TO (A) YOUR USE AND EACH AUTHORIZED USER’S USE OF THE SERVICES, (B) YOUR OR YOUR AUTHORIZED USERS’ VIOLATION OF THESE TERMS, (C) ANY USER SUBMISSIONS OR FEEDBACK YOU PROVIDE; OR (D) YOUR OR YOUR AUTHORIZED USERS’ VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD PARTY (COLLECTIVELY “THIRD PARTY ACTIONS”); AND (II) ANY AND ALL RELATED LOSSES, DAMAGES, SETTLEMENTS AND JUDGMENTS (INCLUDING PAYMENT OF THE EMERGETECH PARTIES’ ATTORNEYS’ FEES AND COSTS) INCURRED BY ANY OF THE EMERGETECH PARTIES, ASSESSED OR FOUND AGAINST ANY OF THE EMERGETECH PARTIES, OR MADE BY ANY OF THE EMERGETECH PARTIES, RELATING TO OR ARISING FROM ANY SUCH THIRD PARTY ACTION (“THIRD PARTY RELATED LOSSES”). YOU UNDERSTAND AND AGREE THAT YOUR INDEMNIFICATION OBLIGATION TO THE EMERGETECH PARTIES APPLIES EVEN IF SUCH THIRD PARTY ACTION AND THIRD PARTY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF ANY KIND OR DEGREE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF ANY OF THE EMERGETECH PARTIES. HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. FURTHER, YOUR INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF THE EMERGETECH PARTIES, OR GROSS NEGLIGENCE OF THE EMERGETECH PARTIES IN THOSE STATES THAT DO NOT PERMIT INDEMNIFICATION FOR GROSS NEGLIGENCE. EmergeTech reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify EmergeTech and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without EmergeTech’s prior written consent. EmergeTech will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
8. WARRANTY DISCLAIMERS
- THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND EMERGETECH 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.
- EMERGETECH AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EMERGETECH OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
- EMERGETECH DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY SERVICE OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND EMERGETECH WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF SUCH SERVICES.
- EMERGETECH MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND EMERGETECH WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. EMERGETECH MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OFFERED OR PURCHASED THROUGH THE SERVICES.
- THE SERVICES MAY PROVIDE YOU INFORMATION REGARDING YOUR SERVICES (“SERVICE INFORMATION”) OR OTHER PERIPHERALS CONNECTED TO YOUR SERVICES (“SERVICE PERIPHERALS”). THE TYPE OF SERVICE PERIPHERALS THAT MAY BE CONNECTED TO YOUR SERVICES MAY CHANGE FROM TIME TO TIME. WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, ALL SERVICE INFORMATION IS PROVIDED FOR YOUR CONVENIENCE “AS IS”, AND “AS AVAILABLE”. EMERGETECH DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT SERVICE INFORMATION OR SERVICE PERIPHERALS WILL BE AVAILABLE, ACCURATE, OR RELIABLE.
- WHEN YOU INSTALL, SETUP OR USE THE SERVICES YOU ARE GIVEN THE OPPORTUNITY TO CHANGE DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN CAUSE NON-RECOMMENDED OR UNINTENDED OPERATION OR NON-OPERATION OF YOUR SERVICES AND ANY CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR ANY DAMAGES AND LOSSES CAUSED BY, OR RELATED TO, THE CHOICES YOU MAKE FOR THE PARTICULAR SETTINGS FOR THE SERVICES, AND SETTING OR CHANGING DEFAULTS.
9. WAIVER OF SUBROGATION
You should protect against any risk of loss with the appropriate insurance coverage, and you are responsible for obtaining all insurance coverage you believe is necessary. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND THE APPLICABLE POLICY OR POLICIES OF INSURANCE YOU OBTAIN AND MAINTAIN, YOU RELEASE EMERGETECH AND ITS LICENSORS AND SUPPLIERS FROM ALL LIABILITY FOR ANY LOSS, OCCURRENCE, EVENT OR CONDITION COVERED BY YOUR INSURANCE..
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL EMERGETECH OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
IN EVERY EVENT, EMERGETECH’S TOTAL MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES SHALL BE LIMITED TO FIVE ($5.00) US DOLLARS.
THE CONSIDERATION BEING PAID HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR EMERGETECH TO ASSUME ANY RISKS BEYOND THOSE EXPRESSLY ASSUMED HEREIN AND IF ANY SUCH RISKS WERE TO BE ASSUMED BY EMERGETECH, EMERGETECH WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT CHARGING SUBSTANTIALLY HIGHER FEES.
SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
11. FEES AND PAYMENT
Certain Services may be provided for a fee. You shall pay all applicable fees regarding the Services selected by you in accordance with the Terms of Sale.
12. DISPUTE RESOLUTION
These Terms shall be governed by and construed in accordance with the laws of the state of U.S.A. You agree to the non-exclusive jurisdiction of the courts in the County of Maricopa, Arizona, U.S.A. for any disputes, claim or cause of action arising out of, or relating to or in connection with these Terms or your use of the Services, including any disputes relating to the existence or validity of these Terms, provided that you agree to submit any such disputes, claims or causes of action exclusively to the courts of the County of Maricopa, Arizona, U.S.A.
13. DIGITAL MILLENNIUM COPYRIGHT ACT
If you are a copyright owner of an agent thereof and believe that any Content infringes upon your copyrights, please sent notice to our designated agent identified below. According to the U.S. Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(3), your notice must comply with the following requirements:
- A physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owners, its agent or the law; and
- A statement that the information in the notification is accurate and under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The designated agent for notice of copyright infringement claims may be reached as follows:
Michael Brooks II
8333 N Via Paseo Del Norte
Scottsdale, AZ 85258
The preceding information is provided exclusively for notifying us that your copyrighted material may have been infringed. All other inquiries, such as questions related to the Services and requests or concerns regarding improper postings and/or content, will not receive a response through this process.
We reserve the right to make changes to these Terms. Any changes we make to these Terms will be effective immediately upon notice, which we may provide by any means including, without limitation, posting on the EmergeTech websites, the Web Apps or the Mobile Apps. Your use of the Services after such notice will be deemed acceptance of such changes.
These Terms are governed by and construed in accordance with the laws of the State of Arizona and the United States of America, without regards to their respective principles of conflicts of law. You agree to the exclusive personal jurisdiction by the federal and state courts located in County of Maricopa, Arizona, United States of America, in any matter arising from or related to these Terms and your use of the Services and you waive any jurisdictional, venue, or inconvenient forum objections to such courts.
If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.