Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all users of the Service. By accessing or using the Service, you agree to be bound by these Terms. If you disagree with any part of the Terms, you may not access the Service.
These Terms, and your right to use the Service, are subject to the additional terms contained in a separate agreement (the “Master Agreement”) between ProPhoenix and the state or local government, government agency, police or fire department or other purchaser of the Service (the “First Responder”). These Terms will continue in effect as long as the Master Agreement remains in effect, and these Terms and your right to use the Service will terminate when the Master Agreement terminates.
You will only use this application to send notifications based on events that you believe to be emergencies or other critical incidents, other than mutually scheduled testing.
You will update this application as soon as you are notified that an update is available; you acknowledge that use of an outdated version my present security risks and/or loss of functionality or communications integrity.
You will maintain the telecommunications connections that are necessary to operate the Service. ProPhoenix makes no representations about the reliability or timeliness of any cellular, Bluetooth or land-line communications to or from the Service, because parts of those telecommunications process are outside of ProPhoenix’s control. ProPhoenix disclaims all liability arising from your use of third-party services.
Your Rights to Use the Service
Subject to the terms and conditions of these Terms, ProPhoenix grants you a non-exclusive, non-transferable license to access and use the Service by installing and using the mobile application solely on your own handheld mobile device (e.g., iPhone, iPad, or Android smartphone or other tablet device) and solely for the purposes set forth in these Terms.
There is a risk that unauthorized persons may gain access to the mobile application and data thereon, and you agree to assume such risk. You consent to our tracking your location through the Service and sharing your location information with others, including your First Responder. You consent to our posting alarm event and other status reports in connection with the Service. You will keep confidential all information available on the mobile application and all passwords relating to the mobile application or access thereto. This license will continue and be co-extensive with the term of the Master Agreement except for your (i) failure to keep confidential all information available on the mobile application and all passwords or access codes relating to the mobile application or access thereto, (ii) use of the license or the information in any manner that negatively affects us or the Service, (iii) use of the license or the information for any illegal purpose, (iv) breach of these Terms or (v) violation of any applicable law. You will be solely responsible for information you deliver, delete or modify. Upon termination of these Terms or termination or suspension of the license by us, we may immediately, and without notice, disable your access to the mobile application and cancel all passwords or other access codes. ProPhoenix may from time to time develop patches, updates, upgrades or other modifications (“Updates”) to improve the performance of the Services or the mobile application. These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services or the mobile application. You acknowledge that you may be required to install Updates to use the Services and you agree to promptly install any Updates that ProPhoenix provides. IF YOU FAIL TO INSTALL ANY UPDATES PROVIDED BY PROPHOENIX, YOUR ACCESS TO THE APPLICATION AND THE SERVICES MAY BE TERMINATED.
You may use the Service only for lawful purposes. You may not:
You agree to prevent false alarms and be solely liable for false alarms. You must pay (or reimburse ProPhoenix for) any fines, fees, costs, expenses and penalties relating to the Service assessed against you, ProPhoenix or the First Responder by any person or entity, including any court or governmental agency or any person or entity acting on the behalf of such court or agency. If (i) you default under these Terms, (ii) these Terms or the Service is terminated by the First Responder or ProPhoenix for any reason, (iii) you excessively signal the First Responder without apparent reason, or (iv) in the opinion of First Responder personnel, you otherwise become a “problem account,” we may suspend your right to use the Service.
Disclaimer of Warranties
YOUR USE OF THE SERVICE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE IS AT YOUR OWN RISK. THE SERVICE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NEITHER PROPHOENIX NOR ANY PERSON ASSOCIATED WITH PROPHOENIX MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER PROPHOENIX NOR ANYONE ASSOCIATED WITH PROPHOENIX REPRESENTS OR WARRANTS THAT THE SERVICE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. WHILE WE ATTEMPT TO MAKE YOUR ACCESS AND USE OF THE SERVICE SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICE OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation on Liability
NEITHER PROPHOENIX NOR ITS LICENSORS OR SERVICE PROVIDERS WARRANT THAT THE SERVICE WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL PROPHOENIX HAVE ANY LIABILITY FOR PERSONAL INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE ARISING FROM FAILURE OF THE SOLUTION TO DELIVER AN ELECTRONIC COMMUNICATION, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF PROPHOENIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
IN NO EVENT WILL PROPHOENIX, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICE, ANY SERVICES LINKED TO IT, ANY CONTENT ON THE SERVICE OR SUCH OTHER SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE OR SUCH OTHER SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless ProPhoenix, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms. THE FOREGOING INDEMNIFICATION OBLIGATIONS MAY NOT BE ENFORCEABLE IN SOME STATES, SO SUCH OBLIGATIONS MAY NOT APPLY TO YOU.
Governing Law and Jurisdiction
This Agreement shall be governed by and construed according to the laws of the State of New Jersey without reference to its conflicts of law rules. The interpretation of these Terms shall not be construed against the drafter. You agree that any action at law or in equity arising out of or relating to these Terms shall be filed only in the state and federal courts located in New Jersey and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action, or proceeding arising out of these Website Terms.
All claims, actions or proceedings against ProPhoenix must be commenced in court within one (1) year after the cause of action has accrued, without judicial extension of time, or such claim, action or proceeding is barred. The time period in this Section must be complied with strictly.
Waiver and Severability
No waiver of by ProPhoenix of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of ProPhoenix to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
Additions, amendments, modifications or deletions to these Terms shall not become part of the Agreement unless agreed to in writing by the parties; provided that ProPhoenix may add, amend, modify or delete the terms of these Terms by providing prior written notice of such addition, amendment, modification or deletion on its mobile application, which amended terms shall be binding upon the parties.