Schedule
3
End-User Agreement
These Terms and Conditions (the
"Agreement") are provided by APRIVA LLC an
Arizona Limited Liability Company, dba Apriva ("Apriva"). The
communications service and mobile application provided by Apriva (collectively,
the "Service") is used in connection with certain Apriva software and hardware
devices and is only available in select Apriva service areas. Contact
Customer Service for availability in Your market area. Rates and Service are
subject to change by Apriva. Any such changes shall be posted on Apriva's
Web site at www.apriva.com.
"You," as referred to in this Agreement, means any entity, organization or
individual using the Service.
IMPORTANT: READ THIS AGREEMENT BEFORE
USING THE SERVICE PROVIDED BY Apriva. YOUR USE OF THE SERVICE, OR SIGNED
ACKNOWLEDGEMENT, WILL INDICATE YOUR ACCEPTANCE OF ALL OF THE FOLLOWING
TERMS. If this Agreement is unacceptable to You, do not use the
Service. Apriva is willing to provide the Service only if You agree to be
bound by the following terms:
1.
Services and Information. Apriva is not responsible for the accuracy or completeness
of information sent or received by You through the Service. In certain
instances, Apriva may make available through the Service certain information,
data, or messages (collectively referred to as "Information") independently
obtained by Apriva from various sources, their affiliates, and others
(collectively referred to as "Information Providers"). Such Information
may be the subject of additional terms and conditions of the Information
Providers. Your use of and access to the Information shall constitute
Your acceptance of those terms and conditions. If You do not agree to the
additional terms and conditions, do not use and access the Information.
The accuracy, completeness, timeliness, or correct sequencing of the
Information is not guaranteed by Apriva, the Information Providers, or any
parties processing Information or payments (the foregoing parties are
collectively referred to as the "Disseminating Parties").
2.
Disclaimer. YOU ASSUME TOTAL RISK AND RESPONSIBILITY FOR YOUR USE OF
THE SERVICE AND INFORMATION. NEITHER APRIVA NOR ANY DISSEMINATING PARTY
WILL BE LIABLE IN ANY WAY TO YOU OR ANY THIRD PARTY FOR (A) ANY INACCURACY,
ERROR OR DELAY IN, OR OMISSION OF, (I) ANY INFORMATION OR (II) THE TRANSMISSION
OR DELIVERY OF ANY SUCH INFORMATION, OR (B) ANY LOSS OR DAMAGE ARISING FROM OR
OCCASIONED BY (I) ANY SUCH INACCURACY, ERROR, DELAY OR OMISSION, (II)
NON-PERFORMANCE, OR (III) INTERRUPTION IN ANY SUCH INFORMATION FOR ANY REASON,
INCLUDING BUT NOT LIMITED TO ANY NEGLIGENT ACT OR OMISSION BY APRIVA OR ANY
DISSEMINATING PARTY. THE SERVICE AND INFORMATION ARE PROVIDED "AS IS,"
WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. APRIVA AND THE DISSEMINATING
PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT,
QUALITY OF INFORMATION, TITLE/NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR
PURPOSE.
Although Apriva uses commercially reasonable
efforts to provide for the secure transmission of information through the
Service, confidential use of the Service by You cannot be guaranteed by Apriva
or the Disseminating Parties. Apriva is not responsible for any harm that
You or any person may suffer as a result of a breach of confidentiality in
respect to Your use of the Service.
YOU HAVE NO CONTRACTUAL RELATIONSHIP WITH THE
UNDERLYING WIRELESS AND/OR TELECOMMUNICATIONS SERVICE CARRIER(S) AND YOU ARE
NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN APRIVA AND THE
UNDERLYING WIRELESS AND/OR TELECOMMUNICATIONS SERVICE CARRIER(S). YOU
UNDERSTAND AND AGREE THAT THE UNDERLYING WIRELESS AND/OR TELECOMMUNICATIONS
SERVICE CARRIER(S) SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY
KIND TO YOU. IN ANY EVENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER
FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR
OTHERWISE, YOUR EXCLUSIVE REMEDY FOR CLAIMS (WHETHER IN CONTRACT, TORT OR OTHERWISE)
ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER,
INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF SERVICE PROVIDED
HEREUNDER, IS LIMITED TO PAYMENT OF DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED
THE AMOUNT PAID BY YOU FOR THE SERVICES DURING THE TWO (2)-MONTH PERIOD
PRECEDING THE DATE THE CLAIM AROSE.
YOU SHALL INDEMNIFY AND HOLD HARMLESS APRIVA AND THE
UNDERLYING WIRELESS, AND/OR TELECOMMUNICATIONS SERVICE CARRIER(S) AND THEIR
OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS, INCLUDING WITHOUT
LIMITATION CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY
OR DEATH, ARISING IN ANY WAY, DIRECTLY OR INDIRECTLY, IN CONNECTION WITH THIS
AGREEMENT OR THE USE, FAILURE TO USE, OR INABILITY TO USE THE SERVICE AND/OR
NUMBER EXCEPT WHERE THE CLAIMS RESULT FROM APRIVA's
OR
THE UNDERLYING WIRELESS AND/OR TELECOMMUNICATIONS SERVICE CARRIER'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY SHALL SURVIVE THE
TERMINATION OF THE AGREEMENT.
YOU HAVE NO PROPERTY RIGHT IN ANY NUMBER
ASSIGNED TO IT, AND UNDERSTAND THAT ANY SUCH NUMBER CAN BE CHANGED FROM TIME TO
TIME.
YOU UNDERSTAND THAT Apriva AND THE UNDERLYING
WIRELESS AND/OR TELECOMMUNICATIONS SERVICE CARRIER(S) CANNOT GUARANTY THE
SECURITY OF WIRELESS OR OTHER TELECOMMUNICATIONS TRANSMISSIONS, AND WILL NOT BE
LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES.
3.
Exclusion of Damages. IN NO EVENT WILL APRIVA, ANY UNDERLYING WIRELESS AND/OR
TELECOMMUNICATIONS SERVICE CARRIER(S), OR ANY DISSEMINATING PARTY BE LIABLE TO
YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT,
PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS
OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS
INTERRUPTION, LOSS OF DATA, LOSS OF BUSINESS INFORMATION AND DAMAGES THAT
RESULT FROM INCONVENIENCE, DELAY OR LOSS OF THE USE OF SERVICE), EVEN IF APRIVA,
THE UNDERLYING WIRELESS AND/OR TELECOMMUNICATIONS SERVICE CARRIER(S), OR ANY
DISSEMINATING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR
LOSSES.
4.
Force Majeure. Neither Apriva, the underlying wireless and/or
telecommunications service carrier(s), nor any Disseminating Party shall be
liable for any loss resulting from a cause over which such entity does not have
direct control, including but not limited to, failure of electronic or
mechanical equipment or communication lines, Internet slowdowns or failures,
telephone or other interconnect problems, unauthorized access, theft, operator
errors, severe weather, earthquakes, floods, acts of war, and strikes or other
labor problems.
5.
Limitations on Your Use of The Service and Information. You agree not to reproduce, re-transmit, disseminate, sell,
distribute, publish, broadcast, circulate or commercially exploit the
Information in any manner without the express written consent of Apriva, and
the relevant Information Provider(s). You agree to immediately notify Apriva if
You become aware of any of the following: (a)
any loss or theft of Your access number(s) and/or password(s) to the Service or
Information, or (b) any unauthorized use of any of Your access number(s) and/or
password(s), or of the Service or any Information. You agree to abide by
all federal, state and local laws, rules, and regulations when utilizing the
Service and Information. You agree to defend, indemnify, and hold Apriva
and the Disseminating Parties harmless from and against any and all claims,
losses, liabilities, costs and expenses (including but not limited to attorney's
fees) arising from Your violation of this Agreement or any third party's
rights.
6.
No Reliance on Information. You acknowledge that neither the Service nor any of the
Information is intended to supply advice of any nature. Although the
Service may provide Information on a number of topics, none of the Information
is endorsed by Apriva, the underlying wireless service and/or telecommunication
carrier(s), or any Disseminating Party. Neither Apriva nor the
Disseminating Parties recommend any service or product offered or advertised in
the Information.
7.
Ownership. All copyrights, patents, patent rights, trade secrets,
trademarks, servicemarks, tradenames, moral rights
and other intellectual property and proprietary rights in the Service and
Information are and will remain the sole and exclusive property of, as
applicable, Apriva and its vendors/licensors and Disseminating Parties.
The Service and Information contain material that is protected by United States
copyright law and trade secret law, and by international treaty
provisions. All rights not expressly granted to You under this Agreement
are expressly reserved by Apriva and its vendors/licensors and the
Disseminating Parties. You may not remove or modify any proprietary
notice of Apriva and its vendors/licensors and Disseminating Parties from the
Service or Information.
8.
Customer Data. You acknowledge and agree that in connection with the Service
Apriva will collect, store and process personal information and other data
("Customer Data") from Your customers, including cardholder data, email
address, cellular telephone number, and data relating to the transaction
processed using the Service. You consent to Apriva's collection, storage and
processing of Customer Data in order to provide the Service to You. Your access
to Customer Data and related reports may be made available to you by Apriva at
an additional charge.
9.
Termination. You may terminate this Agreement at any time for any
reason. Apriva reserves the right to terminate Your access to the Service and
Information or any portion of them in its sole discretion, without notice, and
without limitation, for any reason whatsoever, including but not limited to the
unauthorized use of Your access number(s) and/or password(s), breach of this
Agreement, failure to pay amounts due to Apriva and/or the Disseminating
Parties, discontinuance of the Service or loss of access to any Information
from any of the Disseminating Parties. Upon termination, Apriva and the
Disseminating Parties shall have no liability to You; provided, however, that
if the termination is without cause, Apriva shall refund the pro rata portion
of any fee which may have been pre-paid by You for the portion of the Service
not furnished to You as of the date of such termination.
10.
Motient Addendum. To the extent the
Service is provided through Motient Communications,
Inc., you acknowledge that in addition to this Agreement, You agree to be bound
by the attached terms and conditions of the Motient
Addendum in Your use of the Service.
11.
General. You acknowledge that, in providing You with the Service,
Apriva has relied upon Your assent to be bound by the terms of this Agreement.
Subject to Apriva's right to change applicable pricing and Service terms by
posting such changes on its Web site, this Agreement and any license or other
restrictions provided with the Information constitute the entire agreement
between the parties and supersedes all prior or simultaneous representations,
negotiations, and agreements, whether written or oral, and all industry customs
or trade practices. Neither party has entered into this Agreement by reason of
or in reliance on any representations which are not fully stated in this
Agreement. If any provision of this Agreement is invalid or unenforceable
under applicable laws, it is, to that extent, deemed omitted and the remaining
provisions will continue in full force and effect. This Agreement and
performance hereunder will be governed by and construed in accordance with the
laws of the State of Arizona. Any dispute, controversy or claim arising
under, out of, in connection with or in relation to this Agreement, or the
breach, termination, validity or enforceability of any provision hereof (a
"Dispute"), if not resolved informally through negotiation between the parties,
will be submitted to a binding arbitration by a single arbitrator conducted in
accordance with and subject to the Commercial Arbitration Rules of the American
Arbitration Association then applicable. Any negotiation or arbitration
pursuant to this Section will take place in Scottsdale, Arizona. The
award of the arbitrator shall be final, binding, and convertible to a court
judgment in any appropriate jurisdiction. Notwithstanding the foregoing,
this Section shall not preclude either party from seeking temporary,
provisional, or injunctive relief from any court. In any action/arbitration
brought under this Agreement, the prevailing party shall be entitled to recover
its actual costs and attorneys' fees and all other litigation costs, including
expert witness fees, and all actual attorneys' fees and costs incurred in
connection with the enforcement of a judgment arising from any action or
proceeding.
12.
Survival. The terms and conditions of Sections 2 through 11, above,
shall survive any expiration or termination of this Agreement.