Current member supportThis Master Services Agreement (“Agreement”), entered into concurrent with the execution of each Subscription Order Form (“Effective Date”), by and between Emergency Services Marketing Corp., Inc. d/b/a IamResponding and its affiliates (“IamResponding”) and Subscriber.
- Definitions
“IamResponding Services” or “Services” means the IamResponding platforms, web services, applications, or other products or services, including but not limited to the IamResponding APIs, Emergency Responder Reply System, Two Tone Detect, MyLocalSafety.
“MyLocalSafety” or “MyLS” means a mobile application through IamResponding that connects emergency service providers and field responders to their communities through tools including but not limited to residential preplans and community notifications.
“Order” or “Subscription Order Form” means each order that is executed under this Agreement for the IamResponding Services purchased by the Subscriber.
“Privacy Policy” means the IamResponding Privacy Policy which is available at https://www.iamresponding.com/privacy-policy/.
“Subscriber” means a field responder agency requesting access to the IamResponding Services as identified in the Subscription Order Form.
“Term” has the meaning ascribed to such term in the Order.
“Terms of Use” means the IamResponding terms of use agreed to by the Subscriber as part of the Subscription Order Form and available at https://www.iamresponding.com/terms-of-use/.
2. Description of the Services
During the Term, IamResponding shall provide Subscriber, subject to the terms and conditions of this Agreement and the agreements referenced herein, with those IamResponding Services, which includes IamResponding.com, as are selected in the Subscriber Order Form. The terms of this Agreement (including the Subscription Order Form and any other agreements referred to herein) shall prevail over the terms of any purchase order or other document provided by Subscriber unless signed by an authorized representative of IamResponding.
3. License and Restrictions
3.1. License.
3.1.1. Subject to the terms and conditions of this Agreement (including the Order Form and any other agreements referred to herein) and during the Term, IamResponding hereby grants to Subscriber a revocable limited non-exclusive license (a) to access, use, reproduce, distribute, display, transmit, and otherwise make available the Services to its Users (defined below) to the extent provided for in the Subscription Order Form; (b) to use and reproduce all Documentation for the Services and to grant Users the right to use and reproduce such Documentation solely for Subscriber’s internal function to the extent reasonably necessary to support the Subscriber’s User’s use of the Services in accordance with the license rights granted in Section 3.1.
3.1.2. The Services are for the use of subscribers of IamResponding, of such members and employees of subscribers as are authorized to utilize the Services pursuant to a subscription agreement with IamResponding (“Users”), and of such other individuals and entities as are authorized by IamResponding. With respect to the Services, Subscriber is responsible for the account creation of Users who will be granted permission by Subscriber to access IamResponding.com or MyLS in order to receive the Services. Subscriber agrees to be responsible for the acts and/or omissions of the Users or any other personnel who access the Services. In order to access the Services, each User agrees to be bound by the terms and conditions of the Privacy Policy and Terms of Use, together with the Subscriber. To the extent not prohibited by law, Subscriber will indemnify and hold IamResponding harmless from and against any and all claims or other damages arising from or related to the use of the Services by Subscriber’s Users, including any breach of the Privacy Policy and Terms of Use by the User. No terms of any agreement entered into between Subscriber and any User will be binding on IamResponding unless agreed to by IamResponding in an instrument exactly specifying such terms and signed by an authorized officer of IamResponding. In all instances, Subscriber agrees to share data related to such Users as is reasonably requested by IamResponding prior to giving such User access to the Services. IamResponding may, from time to time, modify the terms of the Privacy Policy or Terms of Use, with the modifications becoming effective upon publishing of the Privacy Policy or Terms of Use at the relevant URL provided. Subscriber will ensure that its Users agree at all times to the most recent Privacy Policy and Terms of Use published at the provided URL.
3.2. Restrictions.
3.2.1. Subscriber shall not (and Subscriber may not allow or assist any third party to) (a) use the Services for any unlawful purpose; (b) use the Services for any purpose or in any manner prohibited by this Agreement or the Terms of Use; (c) engage in any conduct that IamResponding, in its sole discretion, believes is or may be harmful to another user or to any other party, directly or indirectly; (d) violate any foreign, federal, state or local law or regulation; (e) use the Services in a manner that could impair, disable, overburden or damage any IamResponding server, or the network(s) connected to any IamResponding server, or interfere with any other party’s use of any Services; (f) loan, rent, lease, sublicense, distribute, sell or otherwise transfer all or any portion of the Services to third parties except as expressly authorized in writing by IamResponding, and specifically shall not share the Services with any other non-subscribing entity; (g) attempt to gain unauthorized access to any Services, other accounts, computer systems or networks connected to any IamResponding server or to any of the Services, through hacking, password mining or any other means. Any violation of this Section 3.2 shall be deemed a material breach of this Agreement.
3.2.2. Subscriber shall not (and Subscriber may not allow or assist any third party to) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying ideas, underlying logic, design, user interface techniques, protocols or algorithms of the Services by any means whatsoever, directly or indirectly, or disclose any of the foregoing, except to the extent Subscriber may be expressly permitted to decompile under applicable law in the European Union, if it is essential to do so in order to achieve operability of the Services with another software program, and Subscriber have first requested IamResponding to provide the information necessary to achieve such operability and IamResponding has not made such information available. IamResponding has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any information supplied by IamResponding or obtained by Subscriber, as permitted hereunder, may only be used by Subscriber for the purpose described herein and may not be disclosed to any third party or used to create any software or services which are substantially similar to the expression of the Services. Requests for information from users in the European Union with respect to the above should be directed to the IamResponding at legal@rapidsos.com.
3.3. Local, Long Distance, and Toll Free Telephone Numbers. Any and all local, long distance or toll free telephone numbers that IamResponding provides or assigns to Subscriber are the sole and exclusive property of IamResponding or its affiliates, and Subscriber shall have no rights whatsoever in or with respect to such telephone numbers. IamResponding reserves the right to change or re-assign such telephone numbers at any time.
3.4. Updates. IamResponding reserves the right to modify the appearance, content and/or functionality of the IamResponding and MyLS Services at any time, in its sole discretion, with the understanding that core functionality will be maintained.
3.5. Access to Service. Subscriber understands that there may be periodic service interruptions to the IamResponding and/or MyLS Services as the result of events or circumstances beyond the control of IamResponding. IamResponding has taken, and will continue to exercise, commercially reasonable efforts to mitigate such interruptions. IamResponding shall provide Subscriber with 24x7x365 email technical support. Support requests shall be addressed to support@emergencysmc.com. Subscriber understands that IamResponding will use its best efforts to classify the level of urgency of each support request, that such classifications shall be made in the sole discretion of IamResponding, and that the response time for each support request will be dependent upon such classification.
3.6. Suspension of Service. Subscriber agrees that IamResponding may suspend access to the Services if: (a) IamResponding reasonably believes that Subscriber’s use of the Services violates any law, regulation, rule or order, (b) IamResponding reasonably determines that Subscriber’s use of the Services violates any usage policy or guidelines that have been provided to Subscriber by IamResponding in writing, or (c) as otherwise provided in Section 10.
4. Fees and Payment Terms
4.1. Payment. In consideration for the rights granted in this Agreement, Subscriber shall pay IamResponding, directly or through an IamResponding affiliate, the fees set forth in each Order Form in accordance with the payment terms set forth therein, provided that, unless otherwise expressly stated in the Order.
4.2. Non-Cancellable. Except for termination of an Order by Subscriber under Sections 10.2 and 10.4, Subscriber’s obligation to pay the Fees is non-cancellable and all payments made by Subscriber are non-refundable.
4.3. Delinquent Payments. If Subscriber is delinquent on payments, access to the IamResponding Services may be suspended if delinquent payment continues for a period of five (5) days following IamResponding written notice or terminated for breach under Section [10.2].
4.4. Usage. Subscriber has specifically represented to IamResponding that its average annual number of dispatched events for the past three (3) years has been less than 100 events per year, and that it does not reasonably believe that this average will be exceeded during the term of this agreement. Subscriber understands that the subscription fee set forth in this agreement represents special pricing based specifically upon these representations, and that, but for such representations, the normal subscription fee for a one year subscription would be $810.
5. Warranty and Disclaimer of Warranty
THE SERVICES ARE PROVIDED “AS IS”. IAMRESPONDING DOES NOT WARRANT THAT ANY ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED, AND ASSUMES NO RESPONSIBILITY FOR ANY COMMUNICATIONS, WHETHER BY TELEPHONE, INTERNET OR OTHERWISE, OR FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY COMMUNICATIONS, INFORMATION, OR SETTINGS. SUBSCRIBER AGREES AND ACKNOWLEDGES THAT IAMRESPONDING IS NOT RESPONSIBLE FOR THE SECURITY OR PRIVACY OF COMMUNICATIONS SENT VIA THE SERVICES, INCLUDING BUT NOT LIMITED TO WHERE THE SERVICES ARE BEING ACCESSED VIA WIRELESS DEVICES OR OTHER EQUIPMENT USED TO ACCESS THE SERVICES, EXCEPT FOR THE SECURITY OR PRIVACY RESPONSIBILITIES EXPLICITLY STATED IN THE PRIVACY POLICY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IAMRESPONDING, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, AND DISTRIBUTORS, HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE SERVICES ARE FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE AND NON-INFRINGING. SUBSCRIBER BEAR THE ENTIRE RISK AS TO SELECTING THE SERVICES FOR SUBSCRIBER PURPOSES AND AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES. THIS LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. THE SERVICES ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR HIGH RISK ACTIVITIES.
6. Limitation of Liability
SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH IAMRESPONDING MAY CHARGE FOR SUBSCRIPTIONS AUTHORIZING THE USE OF THE SERVICES DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY IAMRESPONDING OF THE RISK OF SUBSCRIBER CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH SUBSCRIBER USE OF THE SERVICES. ACCORDINGLY, SUBSCRIBER AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL IAMRESPONDING, ITS LICENSORS OR ITS SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR ANY LOST REVENUES, SPECIAL, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR IN ANY WAY RELATING TO THE SERVICES, TO THESE TERMS, TO ANY SUBSCRIPTION AGREEMENT, OR TO THE USE OF OR INABILITY TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE THE SERVICES, EVEN IF IAMRESPONDING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE THEORY (CONTRACT, WARRANTY, TORT OR OTHERWISE) UPON WHICH SUCH CLAIM IS BASED. SUBSCRIBER FURTHER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS OF LIABILITY SET FORTH WITHIN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF CONSIDERATION LEVIED IN CONNECTION WITH THE SUBSCRIPTION AUTHORIZING SUBSCRIBER TO ACCESS AND USE THE SERVICES, AND THAT WERE IAMRESPONDING TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH CONSIDERATION WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER. THE ENTIRE, COLLECTIVE LIABILITY OF IAMRESPONDING, IT LICENSORS, SUPPLIERS AND DISTRIBUTORS, AND SUBSCRIBER EXCLUSIVE REMEDY, UNDER ANY PROVISION OF THESE TERMS OR ANY SUBSCRIPTION AGREEMENT SHALL BE, AT IAMRESPONDING’S SOLE OPTION, EITHER (A) RETURN OF THE SUBSCRIPTION PRICE PAID FOR ANY REMAINING PORTION OF THE TERM OF THE SUBSCRIPTION OR (B) $250.00 USD.
7. Intellectual Property
7.1. Intellectual Property of IamResponding. IamResponding owns all right, title, and interest in and to the Services, including any alterations, adjustments, and all improvements, enhancements, and derivatives thereof, including all associated intellectual property rights found therein. Subscriber will not knowingly act to jeopardize, limit, or interfere in any manner with IamResponding’s ownership of and rights with respect to the Services.
7.2. Trademarks. Trademarks shall be used in accordance with accepted trademark practice, including identification of trademark owners’ names. Trademarks may only be used to identify printed output produced by the Services, and such use of any trademark does not give Subscriber any right of ownership in that trademark. “Emergency Responder Reply System”, “ERRS”, “IamResponding”, “IamResponding.com”, “IamResponding”, and “iamresponding” are registered or common law trademarks of IamResponding, its licensors or its suppliers. Except as expressly stated above, these Terms do not grant Subscriber any intellectual property rights in the Services.
8. Confidentiality
The Services and related documentation constitute and contain valuable confidential/proprietary information and trade secrets of IamResponding, its licensors and/or its suppliers, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, Subscriber shall treat (and take precautions to ensure that employees, agents and members treat) the Services and documentation as confidential, and to protect the confidentiality thereof, at all times exercising at least a reasonable degree of care in the protection of such confidential information. Subscriber shall not under any circumstances share or permit access to the Services, or provide any images of, or information about the Services to any actual or potential competitor of IamResponding.
9. Indemnification
By accessing or using the Services, Subscriber agree to indemnify, defend and hold harmless IamResponding, its licensors, suppliers, and distributors, including without limitation their successors and assigns, and their affiliates, owners, officers, directors and employees, to the fullest extent permitted by law, and to hold them harmless from and against any and all third party claims, demands, expenses, liabilities, damages, costs and/or causes of action whatsoever, including reasonable attorneys’ fees, arising from Subscriber use or misuse of the Services or from any person’s use or misuse of Subscriber’s credentials, regardless of whether such use is authorized by Subscriber, including but not limited to any claims of the accuracy and adequacy of the Services. Furthermore, by using the Services, Subscriber agree to release IamResponding, its licensors and its suppliers and distributors, their successors and assigns, and their affiliates, owners, officers, directors and employees, from any and all claims, demands, debts, obligations, liabilities, damages, costs and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, that Subscriber may have against them arising out of or in any way related to Subscriber use of the Services. Subscriber hereby agrees to waive all laws which may limit the efficacy of such releases.
10. Term and Termination
10.1. Term. The provisions related to the Term for each Order are set forth in the Order.
10.2. Termination. Either party may terminate this Agreement upon written notice to the other party (the “Non-Terminating Party”) if: (a) the Non-Terminating Party breaches any provision of this Agreement, including, but not limited to, failure to comply with the terms of the Order or Exhibit A (including any representations, warranties, covenants, and obligations therein), and does not cure the breach within 30 days after receiving written notice thereof, (b) the Non-Terminating Party commits a material breach of any provision of this Agreement that is not capable of being cured.
10.3. Termination by IamResponding. If Subscriber defaults in any respect whatsoever with regard to the terms and conditions of this Subscription Agreement or the Terms of Use, IamResponding shall have the right, in its sole discretion, to suspend or terminate Subscriber’s subscription to IamResponding and/or MyLS and to suspend or terminate Subscriber’s access to the IamResponding and/or MyLS Services. Any payments not timely made shall be considered a material default by Subscriber.
10.4. Effect of Termination or Non-Renewal. Upon termination or expiration of this Agreement, (a) Subscriber shall immediately cease all use of the Services, (b) if this Agreement is not renewed or is terminated by IamResponding in accordance with Section 10, (i) Subscriber shall promptly (but no later than thirty (30) days following the effective date of the termination or expiration) pay IamResponding any and all unpaid amounts owed to IamResponding under this Agreement and (ii) shall promptly cease using and destroy or return all items that contain any confidential information of IamResponding; and (c) all terms and conditions of this Agreement that reasonably should survive termination will so survive. For the avoidance of doubt, no refunds or credits for any charges or other fees or payments will be provided to Subscriber. In no event will IamResponding’s termination for cause pursuant to Section 10 relieve Subscriber’s obligation to pay any charges, fees, or other payments payable to IamResponding for the period prior to the effective date of termination.
11. General Provisions
11.1. Independent Contractor Relationship. IamResponding and Subscriber are independent contractors, and this Agreement will not be construed to determine that a party is a partner, joint venture, employment relationship, agent or fiduciary of the other party, to create any other form of legal association.
11.2. Severability. If any provision of this Agreement or the Terms of Use are determined by a court of competent jurisdiction to be invalid or unenforceable, then the remaining provisions of this Agreement or Terms of Use will nevertheless be given full force and effect.
11.3. Notice. All notices must be in English. Notices posted on IamResponding’s site are effective upon posting. Notices by email are effective on the sent date of the email. Notices by personal delivery are effective immediately. Notices to Subscriber shall be provided to the address on file with IamResponding. Notices to IamResponding shall be provided to the address immediately below, with a copy to legal@rapidos.com. Addresses for notice may be changed by a party providing notice to the other party per the terms of this Section.
Address for notice to IamResponding: IamResponding
P.O. Box 93
Dewitt, New York 13214
11.4. Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent. IamResponding may assign this Agreement, its rights, or obligations without consent: (a) to an affiliate or subsidIamRespondingy; or (b) for purposes of financing, merger, acquisition, corporate reorganization, or sale of all or substantially all its assets. This Agreement is binding upon the Parties respective successors and assigns.
11.5. Representation and Warranties. Each Party hereby represents and warrants that: (i) the Party has all necessary right, power and authority to execute, deliver and perform this Agreement, (ii) the execution, delivery and performance of this Agreement by the Party does not and will not contravene, violate, or constitute a default under applicable law, or any agreement or instrument to which the Party is a party or is otherwise subject, and (iii) the Party is and will be in compliance in all material respects with all applicable law.
11.6. Force Majeure. Except for Subscriber’s payment obligations, neither party will be deemed in breach for any cessation, interruption, or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, power failure, network interruptions or outages in telecommunications or the Internet, labor controversy, civil disturbance, terrorism, or war (whether or not officially declared) (each a “Force Majeure Event”).
11.7. Amendment/Waiver. This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representatives of both parties. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the party making the waiver. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
11.8. Governing Law. Absent a statutory requirement that Subscriber’s state law applies, all disputes, claims, or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby will be governed by and construed in accordance with the laws of the State of New York without regard to its rules of conflict of laws.
11.9. Entire Agreement. This Agreement, including its references, Exhibits, Subscription Order Forms, and Attachments hereto, constitutes the entire agreement between the Parties. The Agreement supersedes all previous proposals, both oral and written, negotiations, representations, writings and all other communications between parties and all prior agreements.
11.10.Counterparts. This Agreement may be executed in counterparts, whether scanned, faxed or electronically signed copies, each of which will be deemed an original and will constitute the same instrument.
11.11. Currency. All payments, costs, fees, and any dollar amounts expressed in this Agreement and any attachments hereto refer to United States Dollars.
