Last Updated: December 11th, 2017
1. Contractual Relationship
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE APPLICATION. THIS AGREEMENT CONTAINS IMPORTANT DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNITY OBLIGATIONS APPLICABLE TO THE APPLICATION AND, UNLESS YOU OPT OUT, THE USE OF BINDING ARBITRATION TO RESOLVE DISPUTES AS SET FORTH IN THE “DISPUTE RESOLUTION” SECTION IN SECTION 18 BELOW. BY DOWNLOADING OR USING THE APPLICATION YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT; AND (C) REPRESENT THAT YOU ARE AGED 13 YEARS OR OLDER, AND IF YOU ARE 13 OR OLDER BUT UNDER THE AGE OF 18, YOU REPRESENT THAT YOU HAVE REVIEWED THIS AGREEMENT WITH YOUR PARENT OR GUARDIAN AND UNDERSTAND AND AGREE TO ITS TERMS. BY ACCESSING, VIEWING, OR USING ANY PART OF THE APPLICATION YOU AGREE TO ALL OF THE BINDING TERMS AND CONDITIONS CONTAINED HEREIN AND INCORPORATED BY REFERENCE.
Companion reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this Agreement at any time, without notice. It is your responsibility to check this Agreement periodically for changes. If you do not agree to be bound by the modified terms or conditions of this Agreement, then you may not use the Application anymore. Your continued use of the Application following the posting of any changes to this Agreement constitutes acceptance of those changes. This Agreement is void where prohibited by law, and the right to access and use the Application is revoked in such jurisdictions. ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THIS AGREEMENT BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “DISPUTE RESOLUTION” SECTION IN SECTION 18 BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “DISPUTE RESOLUTION” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND COMPANION WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
2. Emergency Services
A. DISCLAIMERS. YOU ARE SOLELY RESPONSIBLE FOR YOUR SAFETY AND FOR THE SAFETY OF ANYONE YOU CONTACT THROUGH THE APPLICATION. YOUR USE OF THE APPLICATION IS AT YOUR SOLE RISK. COMPANION, ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, LICENSORS (INCLUDING CALL CENTERS) OR AGENTS DO NOT REPRESENT THAT THE APPLICATION WILL PREVENT ANY PERSONAL INJURY OR PROPERTY LOSS OR THAT THE APPLICATION WILL PROVIDE ADEQUATE WARNING OR PROTECTION. YOU ARE AWARE AND UNDERSTAND THAT THE APPLICATION IS NOT A SUBSTITUTE FOR EMERGENCY SERVICES, SUCH AS 9-1-1. IN THE EVENT OF AN EMERGENCY, DIAL 9-1-1 OR YOUR LOCAL EMERGENCY SERVICES, AS APPLICABLE . THE “CALL POLICE” FEATURE AND/OR SIMILARLY LABELED USER INTERFACE ELEMENTS FUNCTION SIMPLY TO CONTACT EMERGENCY SERVICES, WHICH ARE UNAFFILIATED WITH COMPANION. COMPANION MAY TAKE REASONABLE PRECAUTIONS TO ENSURE THAT THE ACTIVATION OF THE FEATURE WAS INTENTIONAL. WHILE THE APPLICATION MAY HAVE THE ABILITY TO DETECT YOUR LOCATION IN CONJUNCTION WITH YOUR USE OF THE APPLICATION, EMERGENCY SERVICES MAY BE UNAWARE. UNLESS YOU ARE A COMPANION PLUS SUBSCRIBER, COMPANION DOES NOT PROVIDE YOUR LOCATION INFORMATION TO EMERGENCY SERVICES OR OTHERWISE MAKE THAT INFORMATION AVAILABLE, AND IT IS YOUR SOLE RESPONSIBILITY TO PROVIDE INFORMATION TO EMERGENCY SERVICES UPON REQUEST BY THOSE SERVICES. COMPANION IS NOT RESPONSIBLE FOR ANY OTHER FIRST-PARTY OR THIRD-PARTY EMERGENCY SERVICE. COMPANION IS NOT RESPONSIBLE FOR ANY EMERGENCY SERVICES’ NEGLIGENCE, FAILURE TO RESPOND OR TO RESCUE YOU. COMPANION IS NOT RESPONSIBLE FOR THE PROVISION OR EFFECTIVENESS OF EMERGENCY SERVICES BY THE EMERGENCY SERVICES PROVIDER.
YOU UNDERSTAND THAT THE APPLICATION MAY BE INTERRUPTED, UNAVAILABLE OR OTHERWISE COMPROMISED, INCLUDING AS A RESULT OF INADEQUATE NETWORK CONNECTIVITY OR YOUR FAILURE TO PROVIDE A COMPATIBLE DEVICE OR NETWORK AS SET FORTH BELOW.
YOU ALSO ACKNOWLEDGE AND AGREE THAT YOU MUST OBEY ALL LAWS (INCLUDING TRAFFIC RULES) GOVERNING YOUR USE OF THE APPLICATION AND WITH RESPECT TO INCIDENT REPORTING AND YOU WILL NOT ACCESS OR USE THE APPLICATION IN A WAY THAT VIOLATES ANY LAW (INCLUDING TRAFFIC RULES). WITHOUT LIMITING THE FOREGOING, IT IS YOUR SOLE RESPONSIBILITY TO EXERCISE ALL SAFETY MEASURES REQUIRED BY LAW (WHILE ACCESSING THE APPLICATION.
B. Inadequate Network Connectivity. The “Call Police” feature and the Companion Plus features will not activate until you have properly initiated it through the designated user interface element in the Application. Emergency Services may not be rendered if Companion cannot communicate with your Device, as indicated more fully in Section 5 below. Companion is not liable if you have inadequate Network connectivity or if the “Call Police” user interface element does not function due to unforeseeable circumstances. The Application requires your permission to track your location and send you notifications. Without granting this permission, the Application will not function properly and Companion is not liable for such malfunction.
C. Right to Modify Emergency Services. Companion reserves the right to modify, terminate, or suspend the “Call Police” feature, any other features or the Application itself at any time and for any reason, including, but not limited to, to the extent permitted, requested or required to do so by any applicable governmental authority, standards setting entity, or insurance interest. Your obligations under this Agreement shall continue in the event of any such modification, termination or suspension. If you are dissatisfied with such modification, termination or suspension, your sole remedy is to stop using the Application or the affected feature(s).
3. Notifications and Text Messages . You acknowledge and agree that by using the Application, you choose to (i) receive push notifications and text messages both outside or inside the Application and (ii) send text messages to your friends and family whom you add from your “Contacts” on your Device to your safety circle or to any of your trips (each, a “Companion”) each time you add a Companion to your trip, provide an update during your trip or add someone to your safety circle. You can opt out of receiving push notifications after you first install the Application by changing the settings in your Device, but you and your Companions cannot opt out of receiving text messages. You agree that you will only send text messages to Companions who have provided consent to receiving text messages from you. Please be aware that third party messaging fees may occur for the text messages depending on the message plan you have with your wireless carrier.
4. Consent to Communicate . The Application may require that we or the Emergency Services communicate with you or your Companions. Our communication may take different forms, including a live operator telephone call, a pre-recorded telephone message using an auto-dialer, an SMS or other form of text message or some other form of electronic communications. We will communicate with your Companions at the mobile phone number they provide. You represent and warrant that you have the necessary permission to grant Companion your Companions’ contact information, including their phone numbers. COMPANION WILL NOT BE LIABLE FOR any losses, including Companion’s reasonable attorneys’ fees, arising out of or in connection with, due to or caused in whole or in part by, any claims asserted against Companion in connection with or as a result of our communications with YOU OR any of your Companions, including any claim under any state or federal consumer protection or similar law, including the Telephone Consumer Protection Act.
5. Device(s) and Network(s)
THE FOLLOWING CONCERNS THE DEVICE(S) AND NETWORK(S) REQUIRED FOR THE APPLICATION TO FUNCTION. READ THIS SECTION CAREFULLY. You must provide and use, at your own expense, a Device and Network that are compatible with the Application. Companion does not guarantee that the Application or Emergency Services can be accessed through, or will be compatible with, all Devices or Networks. The Application or Emergency Services may fail due to a variety of circumstances, including circumstances or conditions beyond Companion’s control. You understand and agree that Network connectivity may be interrupted, circumvented or otherwise compromised. Such Network connectivity is beyond Companion’s control, and Companion may not be able to assist in resolution of problems with respect to the Application or Emergency Services relating to such Network connectivity. You understand that your use of the Application and/or Emergency Services may be limited by your Network provider or by the capabilities or capacities of your Device. If your Device or Network are incompatible, inoperative, interrupted or circumvented, or in ‘Airplane Mode’ or similar modes without network connectivity, no data will be received by Companion and the Application and Emergency Services may not be available.
6. Registration and Your Information
If you want to use certain features of the Application you will have to create an account (“Account”). You can do this via the Application. When applicable, you may also do so through your account with certain third-party social networking services such as Facebook or Gmail (each, an “SNS Account”). If you choose the SNS Account option, Companion may create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access. Access to your account remains subject to the restrictions in Section 14(C) below.
7. Feedback . If you provide feedback or suggestions about the Application, then Companion (and those it allows to use its technology) may use such information for any purpose without any obligation to you.
8. Beta Features. If you are invited to access or access any beta features of the Application you acknowledge that: (a) such features have not been made commercially available by Companion; (b) such features may not operate properly, be in final form or fully functional; (c) such features may contain errors, design flaws or other problems; (d) it may not be possible to make such features fully functional; (e) use of such features may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss; (f) such features may change and may not become generally available; and (g) Companion is not obligated in any way to continue to provide or maintain such features. The beta features are provided AS IS, with all faults. You assume all risk arising from use of such features, including, without limitation, the risk of damage to your Device or the corruption or loss of data.
9. IP and Content Ownership
For purposes of this Agreement, “Companion Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Application, including, but not limited, any Content that Account holders (including you) provide to be made available through the Application.
A. Ownership and Rights to the Companion Content. Companion and its licensors exclusively own all right, title and interest in and to the Application and Companion Content, including all associated intellectual property rights. You acknowledge that the Application and Companion Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Application or Companion Content. By using the Application, you hereby assign to Companion all your right, title and interest in and to any Companion Content, including all associated intellectual property rights.
B. Your License to Companion Content. Subject to your compliance with this Agreement, Companion grants you a limited, non-exclusive, non-transferable, non-sublicensable license to use the Companion Content solely in connection with a Permitted Use of the Application. A “Permitted Use” means any use of Companion Content in connection with the Application, excluding prohibited activity under Section 11 (Permitted Uses and Restrictions) below or use of the Companion Content, made available to you via the Application, for commercial purposes, independent of the Application.
C. Your License to the Application. Subject to your compliance with this Agreement, Companion grants you the right to use the Application in accordance with the terms of this Agreement. Your ability to use the Application is limited, non-exclusive, non-transferrable, and cannot be used for commercial purposes. You agree and acknowledge that Companion may communicate with you or your Companions through your Device.
D. Rights Reserved. Companion reserves all rights not explicitly granted to you under this Agreement. The terms of this Agreement apply to any updated versions of the Application unless new Agreement terms are provided with the update.
10. App Store Provider Terms for Application. If you accessed or downloaded the Application from any app store or distribution platform (like the Apple Store, Google Play or the Amazon Appstore) (each, an “App Store Provider”), then you acknowledge and agree that:
· This Agreement is concluded between you and Companion, and not with App Store Provider, and that, as between Companion and the App Store Provider, Companion, is solely responsible for the Application.
· App Store Provider has no obligation to furnish any maintenance and support services with respect to the Application.
· In the event of any failure of the Application to conform to any applicable warranty, you may notify App Store Provider and App Store Provider will refund the purchase price for the Application to you (if applicable) and, to the maximum extent permitted by applicable law, App Store Provider will have no other warranty obligation whatsoever with respect to the Application. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of an Application to conform to any warranty will be the sole responsibility of Companion.
· App Store Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Application or your possession and use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
· 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, Companion will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
· App Store Provider and its subsidiaries are third-party beneficiaries of this Agreement as related to your license of the Application, and that, upon your acceptance of the terms and conditions of this Agreement, App Store Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the Application against you as a third party beneficiary thereof.
· You must also comply with all applicable third-party terms of service when using the Application.
· You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the Application nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the Application you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
11. Permitted Uses and Restrictions
A. Personal Use Only. You may use the Application and Emergency Services solely for your personal use and not for commercial purposes.
B. Legal Compliance. You agree to use the Application in compliance with all applicable laws and our published policies, as published from time-to-time in notifications sent to you. You may not use the Application for any illegal, unlawful, or improper purpose (as determined by Companion from time-to-time, in our sole and absolute discretion). You cannot use the Application to harass, bully, falsely accuse, or defame anyone, or to simulate or portray untrue or fictitious scenarios. Companion may use and maintain your contact information, such as phone number, name, email address, postal address, or any other information you provide as unique account identifiers.
C. Intellectual Property Rights. YOUR RIGHTS TO THE APPLICATION ARE LIMITED. The Application and Companion’s software, hardware, firmware, shareware, codes, information, documentation, and any other intellectual property related to the Application are the sole property of Companion and you retain no rights to it. You may not, and you agree not to, or to enable others to, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Application, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). Further, you may not distribute, transfer, sublicense, lease, lend or rent the Application to any third party or make the functionality of the Application available to multiple users (excluding your Companions) through any means. You may not, and you agree not to, or to enable or permit others to breach the security of your Device and the Application for any purpose, including for the purpose of copying any other user’s information. Any attempt to do so shall be a violation of Companion’s rights. If you breach this restriction, you may be subject to prosecution and damages. Unpublished rights are reserved under the intellectual property laws of the United States. To the extent the Application may be used to reproduce materials, it is licensed to you only for reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. If you are uncertain about your right to copy any material, you should contact your legal advisor.
D. General Prohibitions. In addition to the above, you agree not to do any of the following: (A) use the Application for illegal purposes, including to make a false police report; (B) attempt to probe, scan or test the vulnerability of any Companion system or network or breach any security or authentication measures; (C) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Companion or any of Companion’s providers or any other third party (including another user) to protect the Application or Companion Content; (D) send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; (E) use any meta tags or other hidden text or metadata utilizing a Companion trademark, logo URL or product name without Companion’s express written consent; (F) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Application; (G) collect or store any personally identifiable information from the Application from other users of the Application without their express permission; (H) impersonate or misrepresent your affiliation with any person or entity; (I) violate any applicable law or regulation; or (J) encourage or enable any other individual to do any of the foregoing.
Although Companion is not obligated to monitor access to or use of the Application or Companion Content or to review or edit any Companion Content, we have the right to do so for the purpose of operating the Application, to ensure compliance with this Agreement, and to comply with applicable law or other legal requirements. Companion reserves the right, but is not obligated, to remove or disable access to any Companion Content, at any time and without notice, including, but not limited to, if Companion, at its sole discretion, considers any Companion Content to be objectionable or in violation of this Agreement. Companion has the right to investigate violations of this Agreement or conduct that affects the Application. Companion may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
E. Trade name. You agree that the words “Companion”, “Companion, LLC”, “Companion, Inc.” or any variations thereof are trade names that belong to Companion, and any related marks are trademarks owned by Companion. You specifically agree that you will never, in any way, use the words “Companion” or any imitation or variant thereof as part of a trade name, company name, or firm name in a manner likely to cause customer confusion with Companion’s Application and any other Companion products or services.
12. Payment and Fees
If you sign up for Companion Plus, Companion may charge you periodic fees to use the Application or certain aspects of the Application (the “ Premium Services”). Such fees will be set forth in the Application. Fees for the Premium Services are subject to change at any time. You agree that Companion may charge the fees for such Premium Services to your payment account and that you will pay the applicable fees assessed to your Account. We will charge your Account the monthly fee at the beginning of your subscription and on a monthly basis thereafter until you cancel. You must cancel your subscription before it renews each month to avoid the billing of the next month’s fees to your Account. You will not receive a refund for any partial month cancellation. If you purchase an annual membership, you agree to pay the annual fee at the beginning of the subscription term. Annual membership fees are nonrefundable once paid. Unless you notify us before a charge that you want to cancel or do not want to auto renew, you understand your membership will automatically continue and you authorize us (without notice to you, unless required by applicable law) to collect the then-applicable membership fee from your Account.
From time to time at our sole discretion, we may develop and provide updates to the Application including upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. Companion is not responsible for providing any updates or to continue to provide or enable any particular features or functionality. Based on your Device settings, when your Device is connected to the Internet either (i) the Application will automatically download and install all available Updates or (ii) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement. You are not authorized to have the Application repaired by a third party, and Companion is not liable if a third-party has attempted to update, repair or service the Application.
14. Representations and Warranties
B. Content and Information. You are solely responsible (a) for all content stored on or retrieved from your device or the Application and (b) to keep information in the Application, including any contact information, current, accurate, complete, and secure. Companion may not be held liable for your failure to do so.
C. Unauthorized Access. You assume the risk of unauthorized persons gaining access to the Application and/or the data available through the Application. You agree to keep confidential all passwords, account information and access codes that permit access to and enable use of the Application. Companion encourages you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Companion immediately of any breach of security or unauthorized use of your account. Companion will not be liable for any losses caused by any unauthorized use of your account. Upon termination of this Agreement by Companion, Companion may immediately, and without notice, disable your access to the Application and cancel all passwords or other access codes. You are responsible for all activities that occur under your Account, whether or not you know about them.
15. Disclaimer of Warranties
THE APPLICATION IS PROVIDED “AS IS.” COMPANION AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AFFILIATES AND LICENSORS (INCLUDING ANY CALL CENTERS) HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER COMPANION NOR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AFFILIATES OR LICENSORS (INCLUDING ANY CALL CENTERS), MAKE ANY WARRANTY THAT OUR APPLICATION WILL BE AVAILABLE ON A SECURE OR ERROR FREE BASIS OR THAT ACCESS THERETO WILL BE CONTINUOUS OR UNINTERRUPTED. NEITHER COMPANION NOR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AFFILIATES OR LICENSORS (INCLUDING ANY CALL CENTERS), MAKE ANY WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COMPANION CONTENT OR DATA CONTAINED WITH OR DATA GENERATED BY THE APPLICATION FOR ANY PURPOSE. COMPANION AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AFFILIATES AND LICENSORS (INCLUDING ANY CALL CENTERS) ARE NOT RESPONSIBLE FOR ANY FAILURE CAUSED BY SERVER ERRORS, MISDIRECTED OR REDIRECTED TRANSMISSIONS, FAILED INTERNET CONNECTIONS, INTERRUPTIONS OR FAILURES IN THE TRANSMISSION OF DATA, DAMAGE OR INJURY CAUSED BY A FAILURE OR DELAY IN CONNECTING A CALL TO ANY ENTITY, INCLUDING 9-1-1, OR ANY OTHER EMERGENCY SERVICE OR OTHER TECHNICAL DEFECT. COMPANION DOES NOT WARRANT THAT THE APPLICATION WILL OPERATION PROPERLY ON YOUR DEVICE. YOU UNDERSTAND THAT YOU DOWNLOAD FROM, OR OTHERWISE OBTAIN CONTENT OR SERVICES THROUGH OUR APPLICATION AT YOUR OWN DISCRETION AND RISK. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO SOME OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO THE EXTENT SUCH JURISDICTIONS’ LAW IS APPLICATION TO THIS AGREEMENT, IN WHICH CASE WARRANTIES SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
16. Indemnification and Limitation of Liability
A. Indemnification. You shall indemnify, defend, and hold harmless Companion, its employees, officers, directors, shareholders, agents and its affiliates against any damages, including reasonable attorney’s fees, or claims arising out of: (a) your use of the Application, (b) your violation of this Agreement, or (c) your violation of applicable laws or regulations. Companion reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Companion. Companion will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
B. Limitation of Liability. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE APPLICATION REMAINS WITH YOU. THIS SECTION SIGNIFICANTLY LIMITS OUR LIABILITY TO YOU AND THIRD PARTIES. PLEASE READ THIS SECTION CAREFULLY. WE ARE NOT AN INSURER AND THE APPLICATION IS NOT A SUBSTITUTE FOR INSURANCE IN NO EVENT WILL COMPANION, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, ITS LICENSORS (INCLUDING ANY CALL CENTERS) OR ITS AFFILIATES, BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES; (II) THE COST OF PROCUREMENT FOR SUBSTITUTE PRODUCTS OR SERVICES; (III) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; (IV) ANY DAMAGES ARISING FROM YOUR USE OR INABILITY TO USE THE APPLICATION OR COMPANION CONTENT, (V) ANY DAMAGES FOR INJURIES TO YOU OR OTHER PERSON ARISING OUT OF OR RELATING TO YOUR USE OF THE APPLICATION; OR (VI) FOR ANY AMOUNTS THAT EXCEED THE FEES PAID BY YOU TO COMPANION UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION. COMPANION, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AND LICENSORS (INCLUDING ANY CALL CENTERS) SHALL HAVE NO LIABILITY FOR ANY FAILURE, DELAY, OR LOSS DUE TO MATTERS BEYOND THEIR REASONABLE CONTROL. EVEN IF COMPANION IS LIABLE TO YOU OR ANY THIRD PARTY, ANY SUCH LIABILITY WILL NOT EXCEED ONE HUNDRED ($100.00) DOLLARS. THESE LIMITS AND EXCLUSIONS APPLY EVEN IF COMPANION AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AND LICENSORS (INCLUDING ANY CALL CENTERS) KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES AND WHETHER ARISING BASED ON NEGLIGENCE, TORT OR BREACH OF CONTRACT. THESE LIMITATIONS SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT. THE FOREGOING SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANION AND YOU.
C. Third Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that Companion is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Companion does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties’ terms and conditions.
17. Term and Termination
The Agreement commences when you download or install the Application and will continue in effect until terminated by you or Companion as set forth in this Section. Companion may terminate this Agreement at any time without notice if it ceases to support the Application, which Companion may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement. Upon termination, all rights granted to you under this Agreement will also terminate, and you must cease all use of the Application and delete all copies of the Application from your Device and account. Termination will not limit any of Companion’s rights or remedies at law or in equity. Upon any termination, discontinuation or cancellation of the Application or your Account, all provisions of this Agreement which by their nature should survive will survive, including, without limitation, Section 2 (Emergency Services), Section 9 (IP and Content Ownership), Section 11 (Permitted Uses and Restrictions), Section 15 (Disclaimers of Warranties), Section 16 (Indemnification and Limitation of Liability), Section 17 (Term and Termination), Section 18 (Dispute Resolution), Section 19 (Controlling Law and Severability), Section 20 (Force Majeure) and Section 21 (Miscellaneous).
18 . Dispute Resolution
A. Arbitration. You agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Application (collectively, “Disputes”) will be settled by binding arbitration between you and Companion, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (an “ IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Companion with written notice of your desire to do so by email or regular mail at firstname.lastname@example.org or at Companion, Inc., 120 E 23rd Street New York, NY 10010 within thirty (30) days following the date you first agree to this Agreement (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Companion with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in the preceding sentence. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Companion with an Arbitration Opt-out Notice, will be the state and federal courts located in the State of New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Companion with an Arbitration Opt-out Notice, you acknowledge and agree that you and Companion are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Companion otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” Section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of this Agreement.B. Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“ AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “ AAA Rules”) then in effect, except as modified by this “Dispute Resolution” Section. (The AAA Rules are available at https://www.adr.org/ or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
C. Arbitration Process, Location, Procedure, and Fees. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides the relevant forms at https://www.adr.org/) Unless you and Companion otherwise agree, arbitration shall be conducted in the city and state of Companion’s headquarters by one (1) arbitrator pursuant to the Commercial Arbitration Rules of the AAA. The Parties agree the arbitrator shall be (a) an attorney in good standing by the state where the arbitration is held and (b) experienced in commercial contract law or (c) a retired judge. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The Parties agree that the arbitrator’s decision shall be final and binding, and judgment may be entered upon it in any court having jurisdiction thereof. The Parties shall bear their respective arbitration costs, and the non-prevailing Party shall bear the costs due the arbitrator and AAA. Should any suit, action or other legal proceeding arise from, in connection with, or as a result of this Agreement, it shall be brought exclusively in the municipal or state courts of record or the courts of the United States located in the district or county in which Companion’s headquarters is located.
19. Controlling Law and Severability
This Agreement will be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law principles. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement shall continue in full force and effect.
20. Force Majeure
Our obligations under this Agreement are waived automatically without notice and you release us for all losses following (i) any default or breach of this Agreement by you or (ii) the occurrence of equipment failure, riots, strikes, lockouts, terrorism, war (declared or undeclared), weather, natural phenomenon, acts of God, governmental orders, laws, rules or regulations, transportation, environmental conditions or (iii) any other reason beyond the control of Companion. Our obligations under this Agreement are suspended for the duration of any such events.
This Agreement constitutes the entire agreement between Companion and you regarding the Application, and supersedes all prior or contemporaneous understandings regarding such subject matter. Companion may amend or modify this Agreement at any time by delivering a modification notice (“ Notice”) to you via e-mail at the e-mail address you provide. Any Notice shall, once transmitted, amend the terms of this Agreement. If you (i) object to any amended terms; (ii) you do not agree to this Agreement or (iii) become dissatisfied with the Application in any way, your sole recourse is to immediately discontinue use of the Application. You may not amend or modify this Agreement unless such amendment or modification is in writing and signed by Companion. When used in this Agreement, the words “including” and “include” mean “including, but not limited to”. Section headings are for convenience only and are not part of this Agreement. References to the singular shall include the plural and references to the plural shall include the singular. You may not assign or sublicense this Agreement. Companion may assign all or any portion of this Agreement. Your questions, complaints, and claims should be addressed to Companion at email@example.com.
22. Copyright Policy. Companion respects the intellectual property rights of others and expects its users to do the same. It is Companion’s policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others. In accordance with the Digital Millennium Copyright Act of 1998 (“ DMCA”), the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf , Companion will respond expeditiously to claims of copyright infringement committed using the Companion Application that are reported to Companion’s Designated Copyright Agent, identified in the sample notice below.
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Application by completing the following DMCA Notice of Alleged Infringement and delivering it to Companion’s Designated Copyright Agent. Upon receipt of the Notice as described below, Companion will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material name from the Application.
DMCA Notice of Alleged Infringement (“Notice”)
1. Identify the copyrighted work that you claim has been infringed, or - if multiple copyrighted works are covered by this Notice - you may provide a representative list of the copyrighted works that you claim have been infringed.
2. Identify the material that you claim is 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, including at a minimum, if applicable, the URL of the link shown on the Application where such material may be found.
3. Provide your mailing address, telephone number, and, if available, email address.
4. Include both of the following statements in the body of the Notice:
o “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
o “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
5. Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to Companion’s Designated Copyright Agent:Companion, Inc.