January 12, 2015.
These terms govern your use of our cell phone applications (collectively “Apps”), website or services (collectively, “Services”) and software that we include as part of the Services, including any applications such as ioSweep Admin, databases, scripts, instruction sets, and any related documentation (collectively “Software”) and Apps, Services or Software (collectively, “Systems”). By using the Systems or any part or function of the Systems, you agree to these terms. If you have entered into another agreement with us concerning specific Systems, then the terms of that agreement controls where it conflicts with these terms. As discussed more in Section 3 below, you retain all rights and ownership you have in your content or data that you make available through the Systems.
1. How this Agreement Works.
1.1 Choice of Law. If you reside in North America, your relationship is with ioSweep Systems, a DBA of Red Fox, Inc., a United States company, and the Systems are governed by the law of Utah, U.S.A You may have additional rights under the law. We do not seek to limit those rights to the extent prohibited by law.
1.2 Eligibility. You may only use the Systems if you are (a) over 18 years old and (b) allowed by law to enter into a binding contract.
1.4 Availability. Pages describing the Systems are accessible worldwide but this does not mean all Systems or service features are available in your country, or that user-generated content available via the Systems is legal in your country. We may block access to certain Systems (or certain service features or content) in certain countries. It is your responsibility to make sure your use of the Systems is legal where you use them. Systems are currently available in English only.
1.5 Systems. The Systems is licensed, not sold, only in accordance with these terms.
1.6 Activation. A cell phone will be considered active, if it has the ioSweep phone application or Apps, and the cell phone number of that active cell phone is stored on the administration database which is part of the Systems. The Software may require you to take certain steps to activate your Software or validate your subscription. Failure to activate or register the Software, validate the subscription, or a determination by us of fraudulent or unauthorized use of the Software may result in termination or suspension of the subscription.
1.8 Modification. We may modify or discontinue the Systems or any portions or features thereof at any time without liability to you or anyone else. However, we will make reasonable effort to notify you before we make the change. If we discontinue the Systems in its entirety, then we will provide you with a pro rata refund for any unused fees for the Systems that you may have prepaid.
2. Use of Systems.
2.1 License. Subject to your compliance with these terms and the law, you may access and use the Systems.
2.2 ioSweep Systems Intellectual Property. We (and our licensors) remain the sole owner of all right, title, and interest in the Systems or any part thereof. We reserve all rights not granted under these terms.
2.3 Storage. When the Systems provide storage, we recommend that you continue to back up your data regularly
3. Your Data:
3.1 Ownership. You retain all rights and ownership of your data. We do not claim any ownership rights to your data.
3.2 Our Access. We will not access, view, or listen to any of your data, except as reasonably necessary to perform the Systems. Actions reasonably necessary to perform the Systems may include (but are not limited to) (a) responding to support requests; (b) detecting, preventing, or otherwise addressing fraud, security, unlawful, or technical issues; and (c) enforcing these terms.
3.3 Feedback. You have no obligation to provide us with ideas, suggestions, or proposals (“Feedback”). However, if you submit Feedback to us, then you grant us a non-exclusive, worldwide, royalty-free license that is sub-¬licensable and transferrable, to use, reproduce, publicly display, distribute, modify, and publicly perform the Feedback.
3.4 Account Information. You are responsible for all activity that occurs via your account. Please notify Customer Support immediately if you become aware of any unauthorized use of your account. You may not (a) Share your account information (except with an authorized account administrator) or (b) use another person’s account. Your account administrator may use your account information to manage your use and access to the Systems.
4. Use of Systems.
4.1 Device-Based Systems License.Subject to your compliance with these terms, we grant you a non-exclusive license to install and use the Systems: (a) in the Territory, (b) so long as your subscription is valid, and (c) consistent with these terms and related documentation accompanying the Systems. “Territory” means worldwide, but excludes any U.S. embargoed countries and countries where you are prohibited from using the Systems. You may activate the Systems on as many cell phones as you like for which you will be billed monthly for each cell phone in Activation as defined by this agreement.
4.4 Other License Types.
(a) Evaluation Version. We may designate the Systems as “trial”, “evaluation”, “not for resale”, or other similar designation (“Evaluation Version”). You may install and use the Evaluation Version only during the evaluation period and only for evaluation purposes. You must not use any materials you produce with the Evaluation Version for anything other than non-commercial purposes.
(b) Pre-release Version. We may designate the Systems as a pre-release or beta version (“Pre release Version”). Pre-release Version does not represent the final product and may contain bugs that may cause system or other failure and data loss. We may choose not to commercially release the Pre-release Version. You must promptly cease using the Pre-release Version and destroy all copies of Pre-release Version if we request you to do so, or if we release a commercial version of the Pre-release Version. Any separate agreement we enter into with you governing the Pre-release Version will supersede this section.
4.5 Restrictions and Requirements.
(a) Proprietary Notices. You must ensure that any permitted copy of the Systems that you make contains the same copyright and other proprietary notices that appear on or in the Systems.
(b) Restrictions. Unless permitted in these terms, you must not:
(1) modify, port, adapt, or translate the Systems or any part of it;
(2) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Systems;
(3) use or offer the Systems on a service bureau basis;
(4) (i) circumvent technological measures intended to control access to the Systems or (ii) develop, distribute, or use with the Systems, products that circumvent the technological measures; or
(5) rent, lease, sell, sublicense, assign, or transfer your rights in the Systems, or authorize any portion of the Systems to be copied onto another’s unauthorized device or enter into any action to create your own version of the Systems directly or indirectly through other parties or individuals.
4.6 Territory. You must not install or deploy the Systems outside of the country where you purchased the license. If you live in the European Economic Area, “country” means the European Economic Area. We may terminate the license granted herein or suspend the subscription or access to the Systems if we determine that you are using the Systems in violation of this Section.
5. User Conduct.
5.1 Responsible Use. The ioSweep communities often consist of users who expect a certain degree of courtesy and professionalism. You must use the Systems responsibly.
5.2 Misuse. You must not misuse the Systems. For example, you must not:
(a) copy, modify, host, sublicense, or resell the Systems;
(b) enable or allow others to use the Systems using your account information;
(c) access or attempt to access the Systems by any means other than the interface we provided or authorized;
(d) circumvent any access or use restrictions put into place to prevent certain uses of the Systems;
(e) Share content or engage in behavior that violates anyone’s Intellectual Property Right (“Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights.);
(f) Share any content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, or hateful;
(g) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(h) disrupt, interfere with, or inhibit any other user from using the Systems (such as stalking, intimidating, or harassing others, inciting others to commit violence, or harming minors in any way),
(i) engage in chain letters, junk mails, pyramid schemes, spamming, or other unsolicited messages;
(j) use any data mining or similar data gathering and extraction methods in connection with the Systems; or
(k) violate applicable law.
6. Fees. You must pay any applicable taxes, and any applicable third-party fee (including, for example telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, foreign exchange fees). We are not responsible for these fees. We may take steps to collect the fees you owe us. You are responsible for all related collection costs and expenses.
7. Your Warranty and Indemnification Obligations.
7.1 Indemnification. You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to your use of the Systems, or your violation of these terms.
8. Disclaimers of Warranties.
8.1 The Systems are provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. We make no commitments about the content within the Systems. We further disclaim any warranty that (a) the Systems will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results that may be obtained from the use of the Systems will be effective, accurate, or reliable; (c) the quality of the Systems will meet your expectations; or that (d) any errors or defects in the Systems will be corrected.
8.2 We specifically disclaim any liability for any actions resulting from your use of any Systems. You may use and access the Systems at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use and access of any Service or Software.
9. Limitation of Liability.
9.1 We are not liable to you or anyone else for any special, incidental, indirect, consequential, or punitive damages whatsoever (even if we have been advised of the possibility of these damages), including those (a) resulting from loss of use, data, or profits, whether or not foreseeable, (b)based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or (c) arising from any other claim arising out of or in connection with your use of or access to the Systems. Nothing in these terms limits or excludes our liability for gross negligence, for our (or our employees’) intentional misconduct, or for death or personal injury.
9.2 Our total liability in any matter arising out of or related to these terms is limited to US $100 or the amount that you paid for access to the Systems during the one-month period preceding the event giving rise to the liability, whichever is larger. This limitation will apply even if we have been advised of the possibility of the liability exceeding the amount and notwithstanding any failure of essential purpose of any limited remedy.
9.3 The limitations and exclusions in this Section 9 apply to the maximum extent permitted by law.
10.1 Termination by You. You may stop using the Systems at any time. Termination of your account does not relieve you of any obligation to pay any outstanding fees.
10.2 Termination by Us. If we terminate these terms for reasons other than for cause, then we will make reasonable effort to notify you at least 30 days prior to termination via the email address you provide to us with instructions on how to retrieve your content. We may at any time terminate these terms with you if:
(a) you breach any provision of these terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with these terms);
(b) you fail to make the timely monthly payment of fees for the Systems, if any;
(c) we are required to do so by law (for example, where the provision of the Systems to you is, or becomes, unlawful);
(d) we elect to discontinue the Systems, in whole or in part.
10.4 Survival. Upon expiration or termination of these terms, your indemnification obligations, our warranty disclaimers or limitations of liabilities, and dispute resolution provisions stated in these terms will survive. Upon the expiration or termination of the Systems, some or all of the Systems components may cease to operate without prior notice.
11.1 Screening. We do not review data uploaded to the Systems, therefore is it the customer’s responsibility to screen for certain types of illegal content (for example, child pornography) or other abusive content or behavior.
11.2 Disclosure. We may access or disclose information about you, or your use of the Systems, (a) when it is required by law (such as when we receive a valid subpoena or search warrant); (b) to respond to your requests for customer service support; or (c) when we, in our discretion, think it is necessary to protect the rights, property, or personal safety of us, our users, or the public.
12. Export Control Laws.
The Systems, content, and your use of the Systems, and content, are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the Systems, and content. You agree to comply with all the laws, restrictions, and regulations.
13. Dispute Resolution.
13.1 Venue. Any claim or dispute you may have against us must be resolved by (a) a court located in Utah County, Utah, U.S.A., if the law of Utah, U.S.A., governs the Systems, You agree to submit to the personal jurisdiction of the applicable court for the purpose of litigating the claim or dispute. The parties specifically disclaim the applicability of the U.N. Convention on Contracts for the International Sale of Goods.
13.2 Injunctive Relief. Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Systems or content in violation of these terms you agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
14. Specific Software Terms.
This section applies to specific Software and components. If there is any conflict between this section and other sections, then this section governs in relation to the relevant Software or components.
(a) Additional Definitions.
(1) “Deploy” means to deliver or otherwise make available, directly or indirectly, by any means including but not limited to a network or Internet, an Extended Document to one or more recipients.
15. Jurisdiction-Specific Terms.
This section applies to specific jurisdictions. If there is any conflict between this section and other sections, then this section governs in relation to the relevant jurisdiction.
16. Notice to U.S. Government End Users.
For U.S. Government procurements, Software is a commercial computer software as defined in FAR 12.212 and subject to restricted rights as defined in FAR Section 52.227-19 "Commercial Computer Software - Restricted Rights" and DFARS 227.7202, “Rights in Commercial Computer Software or Commercial Computer Software Documentation”, as applicable, and any successor regulations. Any use, modification, reproduction release, performance, display or disclosure of the Software by the U.S. Government must be in accordance with license rights and restrictions described in these terms.
17. Notification of Copyright Infringement.
17.1 DMCA. We respect the Intellectual Property Rights of others and we expect our users to do the same. We will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act (“DMCA”).
18. Compliance with Licenses.
If you are a business, company, or organization, then we may, no more than once every 12 months, upon seven 7 days’ prior notice to you, appoint our personnel or an independent third party auditor who is obliged to maintain confidentiality to inspect your records, systems, and facilities to verify that your installation and use of any and all Systems is in conformity with its valid licenses from us. Additionally, you will provide us with all records and information requested by us in order to verify that its installation and use of any and all Systems is in conformity with your valid licenses from us within 30 days of our request. If the underpaid fees exceed 5% of the value of the payable fees, then you will also pay for our reasonable cost of conducting the verification.
19.1 English Version. The English version of these terms will be the version used when interpreting or construing these terms.
19.2 Notice to ioSweep Systems. You may send the notices to us to at the following address: ioSweep Systems, PO Box 1244, Salem, Utah 84653, Attention: General Counsel.
19.3 Notice to You. We may notify you by email, postal mail, or other legally acceptable means.
19.4 Entire Agreement. These terms constitute the entire agreement between you and us regarding your use of the Systems and supersede any prior agreements between you and us relating to the Systems.
19.5 Non-Assignment. You may not assign or otherwise transfer these terms or your rights and obligations under these terms, in whole or in part, without our written consent. We may transfer our rights under these terms to a third party.
19.6 Severability. If a particular term is not enforceable, the unenforceability of that term will not affect any other terms.
19.7 No Waiver. Our failure to enforce or exercise any of these terms is not a waiver of that section.
20. Third-Party Notices.
20.1 Third-Party Software. The Systems may contain third-party software, subject to additional terms and conditions, available at http://www.ioSweep.com/go/thirdparty.
ioSweep Systems, a DBA of Red Fox, Inc.: PO Box 1244, Salem, Utah 84653