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Last Updated: May 25, 2018
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “TERMS”) CAREFULLY. BY ACCESSING OR USING THIS WEBSITE (THE “WEBSITE”) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE OR APPLICATIONS (THE “SERVICE”), DOWNLOADING THE KEEPSAFE SOFTWARE APPLICATIONS FOR MOBILE DEVICES (EACH, AN “APPLICATION”, AND COLLECTIVELY, THE “APPLICATIONS”), COMPLETING THE REGISTRATION PROCESS, AND/OR MERELY BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH KEEPSAFE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE CUSTOMER, AND TO BIND THAT COMPANY TO THE TERMS. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE CUSTOMER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICE.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT KEEPSAFE’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 6.5 BELOW.
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY KEEPSAFE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Keepsafe will make a new copy of the Terms of Service available at the Website. We will also update the “Last Updated” date at the top of the Terms. If we make any material changes, and you have registered to use the Service, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new users of the Website or Service and will be effective thirty (30) days after posting of notice of such changes on the Website for existing users, provided that any material changes shall be effective for users who have a registered account on the Website (each, a “Registered User”) upon the earlier of thirty (30) days after posting of notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users. Keepsafe may require you to agree to the updated Agreement in a manner specified before further use of the Website or the Service is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Service. Otherwise, your continued use of the Website and/or Service constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT AGREEMENT.
- Keepsafe Service Description.
Keepsafe offers a variety of tools, applications, web services and widgets that allows users to capture, control and manage data and messages on your electronic devices. You can use the Service to intercept messages, move files from one storage location on your device to a restricted storage location, and create backup copies of your data. The Service further includes a virtual private network service (the “VPN Service”) which provides private and secure data transmission. Finally, the Service offers telephony and text messaging services, including the ability to send and receive text messages, create separate phone lines, and voicemail (the “Telephony Service”).
- Use of the Service and Keepsafe Properties.
Keepsafe and its licensors own all rights, title, and interest in the Application, the Software, the Website, the Service, and the information and content available on or through the foregoing (collectively, the “Keepsafe Properties”). The Keepsafe Properties are protected by copyright laws throughout the world. Subject to the Terms, Keepsafe grants you a limited license to reproduce portions of the Keepsafe Properties for the sole purpose of using the Keepsafe Properties for your personal, non-commercial purposes. Unless otherwise specified by Keepsafe in a separate license, your right to use any Keepsafe Properties is subject to the Terms. Keepsafe and its licensors reserve all rights not granted in these Terms.
2.1 Application License.
Application License. Subject to your compliance with the Terms, Keepsafe grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
2.2 Keepsafe Software.
Use of any software and associated documentation, other than the Application, that is made available via the Website or the Service (“Software”) is governed by the Terms. Any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, redistribution or use on a service bureau basis. If the Software is a pre-release version, then you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. Keepsafe grants you a non-assignable, non-transferable, non- sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Service in the manner permitted by the Terms. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of the Terms.
2.3 VPN Service.
VPN Service. The VPN Service has sufficient capacity to accommodate average non-commercial use. However, from time to time during periods of extraordinarily heavy usage of the VPN Service, you may temporarily experience slower service or service unavailability. No such temporary slowdown or unavailability shall constitute a breach or default by Keepsafe of its obligations. Keepsafe reserves the right to temporarily suspend or limit your use of the VPN Service if: (a) your usage level exceeds our average customer use level or otherwise negatively impacts the overall health of the network determined by Keepsafe in its sole and absolute discretion, or (b) you exceed any bandwidth limitations associated with your account. No such suspension or limitation of the VPN Service shall constitute a breach or default by Keepsafe of its obligations.
You understand that the Keepsafe Properties are evolving. As a result, Keepsafe may require you to accept updates to the Application or the Software that you have installed on your computer or mobile device. You acknowledge and agree that Keepsafe may update the Keepsafe Properties with or without notifying you. Any updates to the Keepsafe Properties are subject to these Terms. You may need to update third party software from time to time in order to continue using the Keepsafe Properties.
2.5 Certain Restrictions.
The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Keepsafe Properties, (b) you shall not frame or utilize framing techniques to enclose any Keepsafe trademark or logo (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Keepsafe’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Keepsafe Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not attempt or engage in, any potentially harmful acts that are directed against the Keepsafe Properties, including but not limited to violating or attempting to violate any security features of the Keepsafe Properties, using any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any Keepsafe Properties, or introducing viruses, worms, or similar harmful code into the Keepsafe Properties; (f) access the Keepsafe Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Keepsafe Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Keepsafe Properties; (i) you shall not use the Keepsafe Properties in any manner that could damage, disable, overburden, or impair Keepsafe’s systems or networks, or interfere with any other party’s use and enjoyment of the Keepsafe Properties, including without limitation, by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Keepsafe Properties; (j) you may not attempt to gain unauthorized access to any computer systems or networks associated with the Keepsafe Properties; (k) . Any future release, update or other addition to the Keepsafe Properties shall be subject to the Terms. Keepsafe, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Keepsafe Properties terminates the licenses granted by Keepsafe pursuant to the Terms.
2.6 Third Party Materials.
Third Party Materials. As a part of the Keepsafe Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Keepsafe to monitor such materials and that you access these materials at your own risk.
2.7 Telephony Services.
(a) Generally. The Telephony Services enable users to acquire phone numbers during the period for which the applicable fees have been paid. Users may be able to request specific phone numbers, however, Keepsafe does not guarantee that any particular phone number may be available. If a user does not renew their subscription to a particular phone number, Keepsafe reserves the right to immediately, without any grace period, to reclaim such phone number. In the event Keepsafe reclaims any phone number, all associated data, such as call history, text messages and voicemail, may be permanently deleted. You agree that Keepsafe will not be liable for the deletion of any such data.
(b) Restrictions. We reserve the right to reclaim any phone number from your Account and return that number to the relevant numbering plan if you do not send sufficient traffic over that phone number such that the phone number is unutilized or underutilized, as defined by any local, federal and/or national regulatory agency and/or governmental organization with oversight over the relevant phone number and numbering plan. If we seek to reclaim a phone number from your Account, excluding suspended or trial Accounts, we will send you an email in advance telling you that we are reclaiming the phone number, unless we’re otherwise prevented from doing so by the applicable regulatory agency or governmental organization. We also reserve the right to reclaim phone numbers from Accounts suspend for failure to pay and/or suspended for suspected fraud, and to reclaim phone numbers in free trial Accounts that are utilized for more than thirty (30) days. YOU WILL NOT ATTEMPT TO USE THE TELEPHONY SERVICES OR ALLOW ACCESS TO EMERGENCY, E911 OR 911 SERVICES.
3.1 Registering Your Account.
In order to access certain features of the Keepsafe Properties, you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account on the Application (“Account”).
3.2 Registration Data.
In registering for the Service, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least sixteen (16) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Service under the laws of the United States, your place of residence or any other applicable jurisdiction. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Keepsafe Properties by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or Keepsafe has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Keepsafe has the right to suspend or terminate your Account and refuse any and all current or future use of the Keepsafe Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform at any given time. Keepsafe reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Keepsafe Properties if you have been previously removed by Keepsafe, or if you have been previously banned from the Service.
3.3 Activities Under Your Account.
You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (1) notify Keepsafe immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session.
3.4 Necessary Equipment and Software.
You must provide all equipment and software necessary to connect to the Keepsafe Properties, including but not limited to, a mobile device that is suitable to connect with and use the Keepsafe Properties, in cases where the Service offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Keepsafe Properties.
- Responsibility for Content.
4.1 Types of Content.
You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Keepsafe Properties, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the party from whom such Content originated. This means that you, and not Keepsafe, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Keepsafe Properties (“Your Content”).
- User Conduct.
As a condition of use, you agree not to use the Keepsafe Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a) to take any action or (b) Make Available any Content on or through the Website and the Service that: (i) infringes or violates any patent, trademark, trade secret, copyright, contractual right, right of publicity or other right of any person or entity; (ii) violates any acceptable use or other information technology policy that may apply to your use of any computer system or network; (iii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iv) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (v) involves commercial activities and/or sales without Keepsafe’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (vi) impersonates any person or entity, including any employee or representative of Keepsafe; or (vii) is inappropriate in any other manner that Keepsafe determines in its sole, reasonable discretion.
- Fees and Purchase Terms.
6.1 General Purpose of Terms: Sale of Service, not Software.
The purpose of the Terms is for you to secure access to the Services. All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of Keepsafe’s Software or Application, and, furthermore, any use of Keepsafe’s Software or Application by you in furtherance of the Terms will be considered merely in support of the purpose of the Terms.
You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Keepsafe collects payments through a limited number of payment services (“Payment Provider”). You must provide Keepsafe with valid account information for the respective chosen Payment Provider. Your Payment Provider agreement governs your use of the designated credit card or other payment method, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing Keepsafe with your payment information, you agree that Keepsafe is authorized to immediately invoice your Account for all fees and charges due and payable to Keepsafe hereunder and that no additional notice or consent is required. You agree to immediately notify Keepsafe of any change in payment credentials for payment hereunder. Keepsafe reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Website or by e-mail delivery to you.
6.3 Service Subscription Fees.
You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select the term of your subscription (each, a “Service Commencement Dat”). Except as set forth in the Terms, all fees for the Services are non-refundable. No contract will exist between you and Keepsafe for the Services until Keepsafe or the Payment Provider, for example Apple or Google, accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
Keepsafe’s fees are net of any applicable Sales Tax. If any Service, or payments for any Service, are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Keepsafe, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority and you will indemnify Keepsafe for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or such other evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Keepsafe its permitted to pass to its customers that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
6.5 Automatic Renewal.
Your subscription will continue indefinitely until terminated in accordance with the Terms. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Keepsafe’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least 24 hours prior to the Renewal Commencement Date by logging into and going to the “Manage App Subscriptions” page in the Apple App Store or the “My Apps” page in the Google Play Store app. The same page will permit you to change your Account settings if you do not wish your subscription to renew automatically, or if you want to change or terminate your subscription.If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then- current subscription period. By subscribing, you authorize Keepsafe to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Keepsafe does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Keepsafe may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be re-activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
6.6 Pre-purchased Minutes and Texts.
Users of the Telephony Service may be able to purchase calling minutes and text messaging packages (collectively, “Pre-Purchased Packages“). Pre-Purchased Packages are not legal tender and cannot be reloaded, resold, transferred for value, redeemed for cash or applied to any other account, except to the extent described herein or as required by applicable law. Keepsafe prohibits and does not recognize any purported transfers of Pre-Purchased Packages outside of the Telephony Services, or the purported sale, lease, gift or trade in the “real world” of anything that appears or originates outside of the Telephony Services. Accordingly, you may not trade, sell or attempt to sell Pre-Purchased Packages for “real” money, or exchange those items or currency for value of any kind outside the Telephony Services. Any such transfer or attempted transfer is prohibited and void, and will subject your Account to termination. You shall ensure that you have sufficient Pre-Purchased Packages in your Account before you initiate any transaction that requires such credits. If you have insufficient Telephony Credits in your Account to complete the transaction, the transaction will be cancelled. ALL TRANSACTIONS MADE USING Pre-Purchased Packages ARE FINAL AND ARE NON-REFUNDABLE.
- Keepsafe Is Provided As-Is.
KEEPSAFE CANNOT GUARANTEE THAT YOUR CONTENT WILL BE SAFE FROM OUTSIDE ATTACKS, HACKERS OR OTHER WAYS OF ACCESSING YOUR CONTENT ON THE FILE SYSTEMS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE KEEPSAFE PROPERTIES IS AT YOUR SOLE RISK, AND THE KEEPSAFE PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. KEEPSAFE EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
- Limitation of Liability.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL KEEPSAFE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE, THE APPLICATION, THE SOFTWARE, THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT KEEPSAFE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL KEEPSAFE BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY KEEPSAFE AS A RESULT OF YOUR USE OF THE SERVICE DURING THE TWELVE-MONTH PERIOD PRECEDING THE DATE ON WHICH YOU FIRST ASSERT YOU CLAIM. IF YOU HAVE NOT PAID KEEPSAFE ANY AMOUNTS DURING SUCH PERIOD, KEEPSAFE’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50.00).
THE TELEPHONY SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS OR SMS MESSAGES TO ANY EMERGENCY SERVICES. NEITHER KEEPSAFE NOR ITS SUPPLIERS WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE OR LOSS ARISING FROM OR RELATED TO THE INABILITY TO USE THE TELEPHONY SERVICES TO CONTACT EMERGENCY SERVICES.
If Keepsafe becomes aware of any possible violations by you of the Terms, Keepsafe reserves the right to investigate such violations. If, as a result of the investigation, Keepsafe believes that criminal activity has occurred, Keepsafe reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Keepsafe is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on the Keepsafe Properties, including Your Content, in Keepsafe’s possession in connection with your use of the Keepsafe Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to any claims that Your Content violates the rights of third parties; (4) respond to your requests for customer service; or (5) protect the rights, property or personal safety of Keepsafe, its Users or the public, and all enforcement or other government officials, as Keepsafe in its sole discretion believes to be necessary or appropriate.
In the event that Keepsafe determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated inappropriate conduct, Keepsafe reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Keepsafe) that you have violated the Terms;
(b) Delete any of Your Content provided by you or your agent(s) to the Keepsafe Properties;
(c) Discontinue your registration(s) with the Keepsafe Properties;
(d) Discontinue your subscription to any Service;
(e) Notify and/or send Your Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(f) Pursue any other action which Keepsafe deems to be appropriate.
9.3 No Subsequent Registration.
If your registration(s) with or ability to access the Keepsafe Properties is discontinued by Keepsafe due to your violation of any portion of the Terms, then you agree that you shall not attempt to re-register with or access the Keepsafe Properties through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Keepsafe Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Keepsafe reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
- Miscellaneous Legal Terms.
10.1 Electronic Communications
The communications between you and Keepsafe use electronic means, whether you visit the Website or send Keepsafe e-mails, or whether Keepsafe posts notices on the Website or communicates with you via e-mail. For contractual purposes, you (1) agree to receive communications from Keepsafe in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Keepsafe provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
You hereby release Keepsafe and its successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage of any kind arising in connection with or as a result of the Terms or your use of the Website, the Application, the Software or the Service. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Keepsafe’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
10.4 Force Majeure
Keepsafe and its licensors shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God; war; terrorism; riots; embargos; acts of civil or military authorities; fire; floods; accidents; strikes or shortages of transportation facilities; fuel; energy; labor; materials; problems with your computing or network infrastructure, hardware or product; problems with your internet service provider (ISP) or any sites you are attempting access through the VPN Service; or any electrical or other utility outage.
10.5 Dispute Resolution
- (a) Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, Keepsafe may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from California law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the Keepsafe Properties.
- (b) Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
- (c) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
- (d) You and Keepsafe must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR KEEPSAFE MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Keepsafe will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) Keepsafe also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
- (e) The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 8 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States federal law.Notwithstanding the foregoing, either you or Keepsafe may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in San Francisco County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Francisco County, California, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Francisco County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
- (f) With the exception of (d)(i) and (ii) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (d)(i) or (ii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Keepsafe shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in San Francisco County, California. By using the Keepsafe Properties in any manner, you agree to the above arbitration provision.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
10.6 Choice of Law and Venue.
The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflict of laws principles that require the application of the law of a different state. You hereby expressly agree to the personal jurisdiction and venue in the state and federal courts for the county in which Keepsafe’s principal place of business is located for any lawsuit filed against you by Keepsafe arising from or related to the Terms.
Where Keepsafe requires that you provide an e-mail address, you are responsible for providing Keepsafe with your most current e-mail address. In the event that the last e-mail address you provided to Keepsafe is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Terms, Keepsafe’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Keepsafe at the following address: 178 Castro St., San Francisco, CA 94114. Such notice shall be deemed given when received by Keepsafe by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
10.10 App Stores.
Youacknowledgeandagreethattheavailabilityofthe Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge and agree that the Terms are between you and Keepsafe only, and not with the App Store. Keepsafe, not the App Store, is solely responsible for the Keepsafe Properties, including the Application, the contents thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Keepsafe Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third- party terms of agreement (e.g., the App Store’s terms and policies) when using the Keepsafe Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
10.11 Accessing and Download the Application from iTunes.
The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Terms are concluded between you and Keepsafe only, and not Apple, and (ii) Keepsafe, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Keepsafe and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Keepsafe.
(d) You and Keepsafe acknowledge that, as between Keepsafe and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Keepsafe acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Keepsafe and Apple, Keepsafe, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(f) You and Keepsafe acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
(g) Without limiting any other terms of the Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
10.12 Export Control.
You may not use, export, import, or transfer the Keepsafe Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Keepsafe Properties, and any other applicable laws. In particular, but without limitation, the Keepsafe Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Keepsafe Properties, 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. You also will not use the Keepsafe Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Keepsafe are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Keepsafe products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations..
10.13 International Users.
The Keepsafe Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Keepsafe intends to announce such Services or Content in your country. The Keepsafe Properties are controlled and offered by Keepsafe from its facilities in the United States of America. Keepsafe makes no representations that Keepsafe Properties are appropriate or available for use in other locations. Those who access or use the Keepsafe Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
10.14 Questions, Complaints, and Claims.
If you have any questions, complaints or claims, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
10.15 Consumer Complaints.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
10.16 Entire Agreement.
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
- International Provisions.
The following provisions shall apply only if you are located in the countries listed below.
11.1 United Kingdom.
A third party who is not a party to the Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Terms, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
Notwithstanding anything to the contrary in Section 8, Keepsafe is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).