Current member support** PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, ACCESSING, LOGGING INTO OR USING IamResponding.com AND/OR THE EMERGENCY RESPONDER REPLY SYSTEM™. **
** BY LOGGING INTO IamResponding.com AND/OR THE EMERGENCY RESPONDER REPLY SYSTEM™ OR USING ANY COMPONENT OR SERVICES OF IamResponding.com AND/OR THE EMERGENCY RESPONDER REPLY SYSTEM™, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT LOG INTO OR USE ANY COMPONENT OR SERVICES OF IamResponding.com AND/OR THE EMERGENCY RESPONDER REPLY SYSTEM™. **
INTRODUCTION.
Through the iamresponding.com site, Emergency Services Marketing Corp., Inc. (“ESMC”) makes available a variety of resources and services (collectively the “Services”) of IamResponding.com, which is also known as the Emergency Responder Reply System™ (“ERRS”). These Services are subject to the following terms and conditions (“Terms and Conditions”), which are legal obligations. The Services include any existing functions and features, updates, new features, enhancements and the addition of new Web properties. ESMC does not discriminate on the basis of race, ethnicity, national origin, age, gender, religion, sexual orientation or any other protected status.
ACCEPTANCE OF TERMS AND CONDITIONS.
By logging into or using the Services, you agree to be bound by, and to comply with, these Terms and Conditions and any other rules or guidelines which ESMC may implement for any individual Web site or Service. ESMC reserves the right to update these Terms and Conditions at any time without advance notice to you. You may review the most current version of the Terms and Conditions prior to logging into the Services by clicking the hypertext link located at the bottom of our home page (www.iamresponding.com), by clicking the hypertext link located on the Subscriber Log-in page accessed from our home page and/or Apps, or by requesting a printed copy from ESMC.
CONDITIONS AND RESTRICTIONS ON USE.
If you fail to comply with these Terms and Conditions, or if you engage in (or allow any third party to engage in) any of the following activities, ESMC may terminate your use of the Services: (a) using the Services for any unlawful purpose; (b) using the Services for any purpose or in any manner prohibited by the Terms and Conditions; (c) engaging in any conduct that ESMC, in its sole discretion, believes is or may be harmful to another user or to any other party, directly or indirectly; (d) violating any foreign, federal, state or local law or regulation; (e) using the Services in a manner that could impair, disable, overburden or damage any ESMC server, or the network(s) connected to any ESMC server, or interfere with any other party’s use and enjoyment of any Services; (f) attempting to gain unauthorized access to any Services, other accounts, computer systems or networks connected to any ESMC server or to any of the Services, through hacking, password mining or any other means. If you breach this Agreement or any subscription agreement with ESMC pertaining to ERRS, your right to use the Services will terminate immediately and without notice, but all provisions of this and any subscription agreements, except grants of licenses and/or rights of use of the Services, will survive termination and continue in effect. Your obligations under this Agreement and any Subscription Agreements will survive the termination of your subscription and of your authorization to use the Services.
REGISTRATION AND PRIVACY.
Certain of the Services may require you to register with and/or subscribe to the Services. You will provide us with current, complete and accurate information as prompted by the applicable registration/subscription form(s). You agree to update this data when necessary or requested to keep it current and accurate. You will be solely responsible for maintaining in confidence your master password and master user name, and your user name and password. You will be solely responsible for choosing and maintaining in confidence the passwords and user names of your members and/or employees. You are fully responsible for all activities that occur under your master user password, your user name and password, the passwords of your employees, agents and/or members, and your account. ESMC will not be responsible should someone else use your password(s) or account, and you agree to notify ESMC promptly of any unauthorized use of your account or other breach of security.
All registrations and subscriptions become ESMC’s exclusive property, and ESMC reserves the right to use all registrations, subscriptions and personally identifiable user information, subject to ESMC’s Privacy Policy, which is available from ESMC upon request. Please refer to our separate Privacy Policy for information concerning that policy.
DISCLAIMER OF WARRANTY.
ERRS AND THE SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS. ESMC DOES NOT WARRANT THAT ALL 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, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. YOU AGREE AND ACKNOWLEDGE THAT ESMC 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.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ESMC, ITS 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. YOU BEAR THE ENTIRE RISK AS TO SELECTING THE SERVICES FOR YOUR 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.
TITLE AND INTELLECTUAL PROPERTY RIGHTS.
Subscription agreements entered into with ESMC for ERRS and the Services do not confer any title, property rights, interest or ownership to subscribers, and convey only a nonexclusive, nontransferable, terminable, non-assignable, non-sublicensable, limited and temporary authorization to utilize the Services.
You acknowledge that ERRS, the Services and components of ERRS and the software, including without limitation all source, object and executable code, and all ESMC Web sites are the intellectual property of and are owned by ESMC, its licensors and/or its suppliers. The structure, organization and code of ERRS are the valuable trade secrets and confidential information of ESMC, its licensors and/or its suppliers. ERRS and the software and Services of ERRS are protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the countries in which it is being provided and used. You acknowledge that ESMC, its licensors and/or its suppliers retain the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the ERRS, and that the ownership rights of ESMC, its licensors and/or its suppliers extend to any images, photographs, animations, videos, graphics, audio, music, text and “applets” incorporated into ERRS and all accompanying online and printed materials. You will take no actions which adversely affect the intellectual property rights of ESMC, its licensors and/or suppliers pertaining to ERRS. 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 ERRS and its Services, and such use of any trademark does not give you any right of ownership in that trademark. “Emergency Responder Reply System”, “ERRS”, “IamResponding,” “IamResponding.com.” “IaR” and “iamresponding” are registered and/or common law trademarks of ESMC, its licensors or its suppliers. Except as expressly stated above, this Agreement does not grant you any intellectual property rights in ERRS or its Services. Notifications of claimed copyright infringement should be sent to ESMC’s copyright agent.
CONFIDENTIALITY.
You acknowledge and agree that the Services and documentation constitute and contain valuable proprietary products and trade secrets of ESMC, its licensors and/or its suppliers, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, you agree to treat (and take precautions to ensure that your 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. You 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 ESMC.
USE OF SERVICES.
The Services are for the use of subscribers of ESMC, of such members and employees of subscribers as are authorized to utilize the Services pursuant to a subscription agreement with ESMC, and of such other individuals and entities as are authorized by ESMC. The products, services, software and information obtained from the Services may not be sold, transferred, licensed, reproduced, displayed, published, distributed, copied, performed or modified by you, or used by you or anyone else to create derivative works.
You agree to use the Services only to post, send, receive and view messages and material that are proper and, when applicable, related to the particular Service. As examples of improper use, you agree not to:
a. Harass, stalk, defame, abuse, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others. b. Post, upload or disseminate any obscene, indecent, profane, defamatory or other inappropriate or illegal material. c. Use the Services in connection with surveys, contests, raffles, games, “pyramid schemes,” chain letters, junk email, spamming or any duplicative or unsolicited messages. d. Collect or store personally identifying information about other users for commercial or unlawful purposes. e. Make any sexual request on behalf of or to a minor or harm minors in any other way. f. Impersonate anyone. g. Employ misleading addresses or false information. h. Upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including without limitation copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary approvals. i. Use any material or information, including without limitation images or photographs, which are made available through the Services in any manner that infringes anyone’s proprietary right. j. Upload, post, e-mail or otherwise transmit files that contain so-called viruses, Trojan horses, worms, time bombs, trap doors, corrupted files, or any other similar software or programs that may damage the operation of anyone’s computer or property or adversely affect the quality, performance or functionality of the Services. k. Advertise or offer to sell or buy any goods or services for any business purpose, unless expressly authorized in advance, in writing, by ESMC. l. Inhibit or restrict any other user from using and enjoying the Services. m. Delete or falsify any copyright information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded. n. Download any file posted by another user of a Service that you know, or reasonably should know, may not be legally reproduced, displayed, performed, or distributed in such manner. o. Violate any code of conduct or other guidelines which may apply to any particular Service. p. Collect information about others outside of your organization, including e-mail addresses. q. Violate any applicable laws or regulations, including without limitation regulations promulgated by the U.S. Securities and Exchange Commission, and rules of any national or regional securities exchange. r. Use, download or otherwise copy, or provide (whether or not for a fee) to anyone any directory of users of the Services or other user or usage information. s. Decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from or sublicense any software employed in connection with Services.
ESMC is not required to monitor the Services or the use of the Services. However, ESMC reserves the right to review and remove materials posted to the Services in its sole discretion.
In its sole discretion, ESMC may disclose any information it deems necessary or appropriate to satisfy any applicable law, regulation, legal process or governmental request, or refuse to post, remove or edit any materials, in whole or in part.
ESMC has a zero tolerance policy towards inappropriate activity by anyone who gains access to ESMC’s infrastructure, equipment, computers or servers. If, in ESMC’s sole discretion, Subscribers, their agents, independent contractors or assigns (valid or invalid) or any third party gaining access through a Subscriber’s account name and password are found to have engaged in any inappropriate activity or prohibited transaction, ESMC reserves the right to suspend and/or close Subscriber’s account, to share this information (together with Subscriber’s identity) to appropriate governmental agencies, and to pursue all available legal remedies. Prior to connecting to ESMC’s network, Subscribers represent and warrant that they have taken all commercially reasonable efforts in accordance with customary industry practice to protect their equipment, servers and computers against computer viruses, worms, Trojan horses, and other destructive hardware. Subscribers further agree on an ongoing basis to use all commercially reasonable efforts in accordance with customary industry practice to protect their equipment, servers and computers against computer viruses, worms, Trojan horses, and other destructive hardware.
SERVICES NOT A SUBSTITUTE.
The Services of the ERRS are provided as a supplement to existing dispatch, communication and response systems, and are not intended, and shall not be used by you, as a dispatch system for emergency events or situations, as a substitute for existing emergency communication systems, or as a substitute for the exercise of reasonable judgments made by you or reasonable emergency services providers. Use your good, reasonable common sense when using the Services, and do not substitute the Services for such common sense.
SERVICES AND SOFTWARE AVAILABLE ON THIS WEB SITE.
Any Services or software that are made available for downloading or use constitute the copyrighted and proprietary property and work of ESMC, its licensors and/or its suppliers. Such Services and software are made available for download and/or use solely by Subscribers according to the terms of the Subscription Agreement and this Terms of Use Agreement.
** COPYING OR REPRODUCING THE SERVICES OR SOFTWARE, OR ANY PORTION THEREOF, TO ANY OTHER LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. VIOLATORS WILL BE PROSECUTED TO THE MAXIMUM EXTENT OF THE LAW. **
** ESMC MAY MAKE AVAILABLE AS PART OF THE SERVICES OR IN ITS SOFTWARE PRODUCTS, TOOLS AND UTILITIES FOR USE AND/OR DOWNLOAD. ESMC MAKES NO ASSURANCES AS TO THE ACCURACY OF THE RESULTS OR OUTPUT THAT DERIVE FROM THE USE OF ANY SUCH TOOLS AND UTILITIES. **
DOCUMENTS AVAILABLE ON THIS WEB SITE.
ESMC grants you permission to use documents (such as white papers, press releases and FAQs) from the Services (“Documents”), provided that (1) the copyright notice shown below appears in all copies and that both the copyright notice and this permission notice appear, (2) no modifications of any Documents are made and (3) use of such Documents from the Services is for informational and non-commercial or personal use only and will not be copied or posted on any network computer or broadcast in any media. Accredited educational institutions may download and reproduce the Documents for distribution in the classroom, but distribution outside the classroom requires prior written permission. Use for any other purpose is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.
ESMC AND ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE DOCUMENTS AND RELATED GRAPHICS PUBLISHED AS PART OF THE SERVICES FOR ANY PURPOSE. ALL SUCH DOCUMENTS AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. ESMC, ITS LICENSORS AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, INCLUDING WITHOUT LIMITATION ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFORMATIONAL CONTENT OR ACCURACY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY. THE DOCUMENTS AND RELATED GRAPHICS PUBLISHED ON THE SERVICES MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. ESMC AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE PRODUCT INFORMATION OR THE PROGRAMS OR SERVICES DESCRIBED HEREIN AT ANY TIME.
Documents specified above do not include the design or layout of the www.iamresponding.com web site, www.emergencysmc.com web site, or any other site owned, operated, licensed or controlled by ESMC or its suppliers (“ESMC Web site(s)”). Elements of ESMC Web sites are protected by trade dress, trademark, unfair competition, and other laws and may not be copied or imitated in whole or in part. No logo, graphic, sound, text or image from any ESMC Web site may be copied or retransmitted unless expressly permitted by ESMC.
REVERSE ENGINEERING.
There is no tolerance for reverse engineering, so do not do it. You may not (and you 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 ERRS, its Services or its underlying software by any means whatsoever, directly or indirectly, or disclose any of the foregoing, except to the extent you 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 you have first requested ESMC to provide the information necessary to achieve such operability and ESMC has not made such information available. ESMC has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any information supplied by ESMC or obtained by you, as permitted hereunder, may only be used by you 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 software of ERRS. Requests for information from users in the European Union with respect to the above should be directed to the ESMC Customer Support Department.
MATERIALS PROVIDED TO ESMC OR POSTED ON ANY ESMC WEB SITE.
ESMC does not claim ownership of the materials you provide to ESMC or post, upload, input or submit to any Services for review by anyone (each a “Submission” and collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting (“Posting”) your Submission you are granting ESMC, its affiliated companies and necessary sub-licensees permission to use your Submission in connection with the operation of their Internet businesses (including without limitation all Services), including without limitation the license rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; to publish your name in connection with your Submission; and to sublicense such rights to any supplier of the Services.
By Posting a Submission you warrant and represent that you own or otherwise control all of the rights to your Submission, including without limitation all rights necessary for you to provide, post, upload, input or submit the Submissions.
No compensation will be paid with respect to the use of your Submission, as provided herein. ESMC is under no obligation to post or use any Submission you may provide, and ESMC may remove any Submission at any time in its sole discretion.
In addition, by Posting a Submission that contains images, photographs, pictures or that is otherwise graphical in whole or in part (“Images”), you warrant and represent that (a) you are the copyright owner of such Images, or the copyright owner has granted you permission to use such Images or any content and/or images contained in such Images consistent with the manner and purpose of your use and as otherwise permitted by these Terms and Conditions and the Services, (b) you have the rights necessary to grant the licenses and sublicenses described in these Terms and Conditions, and (c) any person depicted in such Images has provided consent to the use of the Images as set forth in these Terms and Conditions, including without limitation the distribution, public display and reproduction of such Images. By Posting Images, you are granting (a) to all members of your private community (for each such Image available to members of such private community), and (b) to the general public (for each such Image available anywhere on the Services, other than a private community), permission to use your Images in connection with the use, as permitted by these Terms and Conditions, of any of the Services, and including without limitation a non-exclusive, world-wide, royalty-free license to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Images without having your name attached to such Images, and the right to sublicense such rights to any supplier of the Services. No compensation will be paid with respect to the use of your Images.
UNSOLICITED IDEA SUBMISSION POLICY.
ESMC does not accept or consider unsolicited ideas, materials or work which are submitted with any expectation of fees, royalties, property interest, ownership, rights, title or interest of any manner, or of any form of compensation whatsoever, including without limitation ideas for new promotions, new products, new or enhanced services, or technologies. To avoid potential misunderstandings or disputes when ESMC’s products or marketing strategies might seem similar to ideas, materials or work submitted to ESMC, please do not convey or send your unsolicited ideas, materials or work to ESMC or to anyone in any manner affiliated with ESMC if you have any expectation of receiving anything of any nature in return or exchange. If, despite our request, you still convey or send them, please understand that your ideas, materials or work will not be treated as confidential or proprietary, and we will have no obligations to you with respect to such ideas, materials or work, or their disposition.
LINKS TO THIRD PARTY SITES.
Third party site links will let you leave ERRS and/or ESMC’s site(s). Certain aspects of the Services may also launch and/or direct you to third-party services, content and/or applications. ESMC provides these links and access launchers to you only as a convenience, and the inclusion of any link or launch point does not imply endorsement by ESMC of the site or accessed/launched services. The linked and/or launched sites are not under ESMC’s control, and ESMC is not responsible for the content or services of any such site/application, of any link contained in a linked/launched site/application, or any changes or updates to such sites/applications. We encourage you to learn about the privacy policies and applicable terms of use of any such third parties and/or third-party sites. ESMC is not responsible for webcasting or any other form of transmission received from any linked site or application.
TRADEMARKS.
“Emergency Responder Reply System”, “ERRS”, “IamResponding,” “IamResponding.com.” “IaR” and “iamresponding” and/or other products referenced herein are either registered trademarks or common law trademarks of ESMC or its suppliers in the U.S., the European Union and/or other countries. The names of actual companies and products mentioned herein may be the trademarks of their respective owners. Other than within Testimonials specifically designated as such, the example companies, organizations, people and events depicted within the Services are fictitious. No association with any real company, organization, person, or event is intended or should be inferred from examples and depictions contained within the ERRS site. This Agreement does not grant you any right to use the trademarks, service marks or logos of ERRS, ESMC or its suppliers.
Apple™, iPhone™, and iPad™ are registered trademarks of Apple, Inc.
Android™, Google™, Google Maps™ and Google Street View™ are registered trademarks of Google, Inc.
INDEMNITY AND RELEASE.
By accessing or using the Services, you agree to indemnify, defend and hold harmless ESMC, its licensors and its 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 claims, demands, expenses, liabilities, damages, costs and/or causes of action whatsoever, including reasonable attorneys’ fees, arising from your use of the Services or from any person’s use of any account or password you maintain, regardless of whether such use is authorized by you. Furthermore, by using the Services, you agree to release ESMC, 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 you may have against them arising out of or in any way related to your use of the Services.
** YOU HEREBY AGREE TO WAIVE ALL LAWS WHICH MAY LIMIT THE EFFICACY OF SUCH RELEASES. **
MISCELLANEOUS.
(a) The failure of ESMC at any time to strictly enforce or require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same or any other term hereof. These Terms and Conditions may be amended only by ESMC. In the event of a breach or threatened breach of these Terms and Conditions, ESMC shall have all applicable equitable as well as legal remedies. (b) ESMC may elect to provide you with customer support and/or upgrades, enhancements, or modifications to the Services (collectively, “Support”), in its sole discretion, and may change, enhance, eliminate, suspend, or discontinue any aspect of the Services at any time, including the availability of any Service feature, database, or content. ESMC may also impose limits on certain features and services or restrict your access to parts or all of the Service or the ESMC web site without notice or liability. (c) ESMC reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that ESMC shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services. ESMC may also impose limits on certain features and services or restrict your access to parts or all of the Services or the ESMC web site. (d) You are not a party to or intended beneficiary of any license or sublicense agreement under which ESMC operates or provides the Services. You do not, and shall not, derive or obtain any benefits or rights by through, or from any such license or sublicense agreements.
LIMITATION OF LIABILITY.
** YOU ACKNOWLEDGE AND AGREE THAT THE CONDISERATION WHICH ESMC IS CHARGING FOR SUBSCRIPTIONS AUTHORIZING THE USE OF THE SERVICES DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY ESMC OF THE RISK OF YOUR CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH YOUR USE OF THE SERVICES. ACCORDINGLY, YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ESMC, 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 THIS AGREEMENT, 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 ESMC 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. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH WITHIN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF CONSIDERATION LEVIED IN CONNECTION WITH THE SUBSCRIPTION AUTHORIZING YOU TO ACCESS AND USE THE SERVICES, AND THAT WERE ESMC TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH CONSIDERATION WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER. **
Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you. In such states and jurisdictions, the liability of ESMC, its suppliers and distributors shall be limited to the maximum extent permitted by law.
** IN ANY CASE, THE ENTIRE, COLLECTIVE LIABILITY OF ESMC, IT LICENSORS, SUPPLIERS AND DISTRIBUTORS, AND YOUR EXCLUSIVE REMEDY, UNDER ANY PROVISION OF THESE TERMS OF USE, OR OF THE TERMS AND CONDITIONS OF ANY SUBSCRIPTION AGREEMENT, SHALL BE, AT ESMC’S SOLE OPTION, EITHER (a) RETURN OF THE SUBSCRIPTION PRICE PAID FOR ANY REMAINING PORTION OF THE TERM OF THE SUBSCRIPTION OR (b) U.S. $250.00. **
OTHER RESTRICTIONS.
You may not, and you will not allow any third party to, 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 ESMC. You may not copy any portion, component or software of the Services, except as expressly authorized in writing by ESMC, and any copies that you are permitted to make pursuant to such written authorization must contain the same copyright, patent and other intellectual property markings that appear on or in the Services and this Agreement. You may not modify, adapt or translate the Services. You may not, directly or indirectly, rent, lease, distribute, sell or create derivative works of the Services. You may not, directly or indirectly, obtain or attempt to obtain unauthorized access to the Services. You may not, and you will not allow any third party to, directly or indirectly, incorporate the Services, protocols, code or software, or any portion thereof, into any other service, software, hardware or other technology. You may not, directly or indirectly, encumber or suffer to exist any lien or security interest on the Services. You will comply with all applicable laws, and ESMC’s instructions regarding the use of the Services. You agree to notify your employees, members and agents who may have access to the Services of the restrictions contained in this Agreement and to ensure their compliance with these restrictions.
YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY AND ADEQUACY OF THE SERVICES FOR YOUR INTENDED USE AND YOU WILL INDEMNIFY AND HOLD HARMLESS ESMC, ITS LICENSORS AND ITS SUPPLIERS TO THE GREATEST EXTENT LAWFULLY POSSIBLE EXTENT FROM ANY THIRD PARTY SUIT BASED UPON THE ACCURACY AND ADEQUACY OF THE SERVICES IN YOUR USE.
INJUNCTIVE RELIEF.
You acknowledge that the unauthorized use, transfer or disclosure of the Services, the software which comprises the Services and documentation or copies thereof will (i) substantially diminish the value to ESMC, its licensors and its suppliers of the trade secrets and other proprietary interests that are the subject of this Agreement; (ii) render inadequate any remedy at law of ESMC, its licensors and/or its suppliers for such unauthorized use, disclosure or transfer inadequate; and (iii) cause irreparable injury in a short period of time. If you breach any of your obligations with respect to the use or confidentiality of the Services or documentation, ESMC, its licensors and its suppliers shall be entitled to equitable relief to protect their interests therein, including, but not limited to, preliminary and permanent injunctive relief.
EQUIPMENT REQUIRED AND OPTIONAL.
In order to use the Services, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay to providers of such access any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web. ESMC is not responsible in any manner for providing or supporting either such access or such devices.
Any required or optional equipment that you use to use or access the Services, whether required or optional, is subject to the terms, conditions, warranties and disclaimers provided by the manufacturer of the equipment. Please refer to the materials you received when you purchased the equipment to understand your rights and obligations, including what warranties and disclaimers apply to you.
LOCAL, LONG DISTANCE AND TOLL FREE TELEPHONE NUMBERS.
Any and all local, long distance and toll free telephone numbers that ESMC provides or assigns to subscribers are the sole and exclusive property of ESMC or its business affiliates, and subscribers shall have no rights whatsoever in or with respect to such telephone numbers. ESMC reserves the right to change and re-assign such telephone numbers at any time.
DISPATCH DATA.
If you import, or arrange for the import of, dispatch data from your dispatch center to ERRS, and if your members choose to have that information relayed to them via email, pager, text message, push notification, or otherwise, it is understood by you that: this functionality is dependent upon the technology capabilities of your dispatch center; this specific functionality will not work with all dispatch center systems; and no guarantees or warranties are made concerning this functionality. It is further understood by you that ESMC cannot control the timing, speed or reliability of the delivery of the dispatch information to your members once the information has been transmitted by ESMC to the members’ internet service providers, push notification services and/or cellular telephone providers. Therefore, it is specifically understood that this specific functionality is NOT to be relied upon under any circumstances as a primary means of notification for emergency events, and should only be utilized as a non-emergent, secondary means of notification. Certain cellular providers and push notification services may limit the number of characters permitted per message, and therefore it is also understood that certain transmitted messages may omit or delete information if the message exceeds the character length of the members’ notification provider.
Broadcast, written or transmitted notifications of incidents and/or incident locations provided through the Services are not intended, and shall not be used by you, as a substitute for emergency incident notifications provided directly to you by your dispatcher, PSAP or other emergency communications center through methods, means and/or systems other than the Services. Such notifications provided through the Services are intended, and shall be used by you, only as supplemental, rather than primary, notifications.
Alerts and audible tones associated with the Services are not designed or intended to alert you to the occurrence of an emergency incident requiring your services, and shall not be relied upon by you to awake or arouse you with respect to an emergency incident. Again, the Services are intended and shall be used by you only as a supplement to other, existing alerting and emergency communication systems.
To the greatest extent permitted by law, in consideration of the provision of this service, you release ESMC, its licensors and suppliers from any and all claims and liabilities of any nature whatsoever associated with any transmission of dispatch information.
You shall not under any circumstances cause dispatch information to be transmitted, re-transmitted, or forwarded, whether directly or indirectly from your IamResponding system, manually or automatically, to any servers, server networks, or mobile applications (“Apps”) other than those exclusively controlled and maintained by ESMC, excepting only Internet Service Providers (ISP’s) and telephone network carriers necessary to the minimal extent possible to permit the direct relay of dispatch information from IamResponding.com to your personal/work email inbox(s) and personal/work mobile device(s). These limited and minimal exceptions (ISP’s and telephone network carriers) are further limited to only those which simply pass through the dispatch information, without opening, manipulating, utilizing, converting, applying or modifying the information in any manner whatsoever. ESMC, its licensors and suppliers, are not, and shall not in any circumstance be responsible or liable for any transmission, transmission delay, failed transmission, or altered transmission of dispatch data in violation of this paragraph.
FORCE MAJEURE.
ESMC shall not be liable for any default or delay in the performance of any of its obligations to Subscribers if such default or delay is caused, directly or indirectly, by: fire, flood, earthquake, significant weather events, or other such occurrences; labor disputes, strikes or lockouts; wars (declared or undeclared), rebellions or revolutions; riots or civil disorder; unavoidable casualties; interruptions of transportation or communications facilities or delays in transit or communication; supply shortages or the failure of any party to perform any commitment relative to the production or delivery of any equipment or material required to perform the obligations; embargoes; actions, inactions, rulings, regulations, decisions or requirements, whether valid, invalid, formal or informal, of any government, tribunal or governmental agency; or any other cause, whether similar or dissimilar to those enumerated herein, beyond ESMC’s reasonable control.
NOTICES.
All notices, authorizations, and requests in connection with this Agreement shall be deemed given (i) five days after being deposited in the U.S. mail, postage prepaid, certified or registered, return receipt requested; or (ii) one day after being sent by overnight courier, charges prepaid, with a confirming fax; and addressed as set forth in your Subscription Agreement or to such other address as the party to receive the notice or request so designates by written notice to the other. ESMC may also provide Notices to you by email addressed to the email address that you provide as your primary contact email address in your Subscription Agreement, and such Notice is deemed given at the time sent by email.
NONASSIGNABILITY and NON-SHARING.
You shall not assign or otherwise license your Subscription or Subscription Agreement, or any rights that you may have thereunder, without the prior written consent of ESMC. You shall not share the Services with any other non-subscribing entity.
#####NO THIRD PARTIES. By subscribing to and/or utilizing ERRS and/or the Services, you agree and acknowledge that there are no known or intended third party beneficiaries of your subscription and/or use of ERRS and the Services. You further agree and acknowledge that there are no contractual agreements, obligations or relationships of any nature whatsoever, express or implied, between you and any party other than ESMC concerning or pertaining in any manner whatsoever to the ERRS and/or the Services.
MAPPING SERVICES.
The Services include certain mapping, directions and routing features (collectively “Mapping Services”) that that display content that is not ESMC’s, and which is provided under license to ESMC by Google, Inc. Mapping Services content is provided solely by Google, and not ESMC. By accessing and/or utilizing any of the Mapping Features, you consent and agree to be subject to, and bound by, and you further agree to comply with, any and all of Google, Inc.’s Terms of Use concerning such Mapping Features, in addition to these Terms of Use. Google Maps™ terms of use may be obtained directly from Google, may be found on Google’s website(s), and are available here: http://www.google.com/intl/en-US/help/terms_maps.html.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ESMC AND GOOGLE INC. DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES FOR MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE WITH RESPECT TO MAPPING SERVICES. ESMC SPECIFICALLY DOES NOT WARRANT THAT MAPPING SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. MAPPING SERVICES ARE NOT DESIGNED OR INTENDED FOR HIGH RISK OR EMERGENCY RESPONSE ACTIVITIES.
You are solely responsible for your own conduct when using the Mapping Services. Please keep your eyes on the road and obey all applicable laws. Do not manipulate the Services or Mapping Services while driving. Directions may be inaccurate, incomplete, dangerous or prohibited. Traffic data is not real-time, and location accuracy cannot be guaranteed. Map data, traffic, directions, and related Mapping Services content are provided for planning purposes only. You may find that weather conditions, construction projects, closures, road and bridge weight restrictions, bridge height restrictions, or other events or circumstances may cause road conditions or directions to differ from map results and Mapping Services content. It is understood, and you agree, that you know the roads, bridges, access points, clearance heights, gross vehicle weight restrictions, and road and bridge construction, closures and modifications where you will be driving better than ESMC and Google. Mapping Services are subject to errors and mistakes, and must not be substituted by you for the exercise of your common sense, logic, knowledge, reason and other available mapping resources. If you choose to follow any routing or direction information provided by the Mapping Services, you voluntarily, completely and solely assume the risk and responsibility of anything bad that may result, whether foreseeable or not.
Certain Mapping Services may require you to enable location services within your Web-access computer or device. You may elect to enable or disable such location services on your own access device, and the choice that you make will affect the functionality of the Mapping Services. To provide location-based services, ESMC and/or Google may collect, use, and share precise location data, including the real-time geographic location of your computer or device. This location data is used by ESMC to provide and improve location-based products and services. Some location-based services require your personal information for the feature to work. Information which is part of, overlayed, embedded within, or attached to the Mapping Services in any manner, including but not limited to hydrant locations and information, drafting sites, fill sites, buildings or other structures, premises history or plans, emergency property information and any other such data: is not, and will not be, verified by ESMC in any manner for reliability or accuracy; is provided for planning purposes only; is not to be relied upon by you during an emergency event; and may be shared and/or made available to any authorized user of the Services, including users in other subscribing entities. You should independently verify the accuracy of any mapping information within the Mapping Services within your primary and mutual aid districts, and you should make any necessary or applicable corrections to such information. Even if mapping irregularities or inaccuracies are reported to ESMC, ESMC does not warrant that such irregularities or inaccuracies will be corrected, and you should assume that they will not be.
The Mapping Services may extract certain data from dispatch messages provided through the Services in an attempt to identify the location of a reported incident. You are solely responsible for verifying that the address extracted and mapped is the correct incident address, and you should not rely on the Services and Mapping Services for this information.
ESMC, its licensors and suppliers shall have no liability whatsoever to you or any third-parties for any mistakes, errors or delays of any nature whatsoever relating to the Mapping Services. By utilizing the Mapping Services, you agree (on your own behalf and on behalf of the subscribing entity with whom you are affiliated) to defend and indemnify, to the greatest extent permitted by law, ESMC, its licensors and suppliers with respect to any claim of any nature whatsoever asserted by any person or entity arising by, through or as the result of your use of the Mapping Services.
GOVERNING LAW, JURISDICTION AND VENUE.
The validity, interpretation, construction and performance of this Terms of Use Agreement and of your Subscription Agreement shall be governed by the laws of the State of New York without giving any effect or regard to its conflict of law provisions. The New York state courts in and for Onondaga County, New York (or, if there is exclusive federal jurisdiction, the United States District Court for the Northern District of New York) shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement and/or your Subscription Agreement, and you hereby consent to the personal and subject matter jurisdiction of such courts and waive any objection as to venue in such jurisdiction.
SURVIVAL.
This Agreement shall be binding upon the parties, their successors and permitted assigns. You may not assign any rights to the use or access of ERRS or its Services without the express prior written consent of ESMC.
SEVERABILITY.
If all or part of any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such portion(s) of the provision(s) as are held to be illegal, invalid or unenforceable will be construed to reflect the parties’ original intent, and the remaining portions and provisions shall remain in full force and effect.
ENTIRE AGREEMENT.
This Agreement, and the most recently executed Subscriber Agreement by the entity with which you are affiliated for the purpose of obtaining access to ERRS, if any, constitute the entire agreement between you and ESMC and govern your use of the Services, superseding any prior agreements between you and ESMC with respect to the Services. In the event of a specific conflict between these Terms of Use and the terms and conditions of your executed Subscription Agreement, the Subscription Agreement shall control.
HEADINGS.
The section headings in this Agreement are for convenience only, do not import any terms or conditions, and shall not be utilized in any interpretation of the terms or conditions of this Agreement.
STATUTE OF LIMITATIONS.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services, to this Terms of Use Agreement, or to your Subscription Agreement must be filed within one (1) year of the accrual of such claim or cause of action or it shall be forever barred. As a condition precedent to the commencement of any litigation against ESMC, its licensors, suppliers or distributors, you must provide written notice to ESMC, by certified mail, of the existence and specific basis of your claims and allegations within sixty (60) days of the accrual of your claim, and must submit your claim to private, non-binding mediation to be held in Onondaga County, New York. You may not in any event commence litigation against ESMC, licensors, its suppliers or distributors until after a determination and/or statement of findings has been issued by a mediator.
COPYRIGHT NOTICE.
Copyright ©2007-2016 Emergency Services Marketing Corp., Inc., Post Office Box 93, Dewitt, New York 13214-0093, USA. All rights reserved.
Any rights not expressly granted herein are reserved. Send your questions to dseidberg@emergencysmc.com
Last modified: December 5, 2016. Section modified: Entire Agreement (The paragraph entitled “Entire Agreement,” not the actual entire agreement!)
Previous Modification: May 9, 2016. Section(s) modified: Conditions and Restrictions on Use; Copyright Notice.
Previous modification: March 29, 2013. Section(s) modified: Introduction, Acceptance of Terms and Conditions, Conditions and Restrictions on Use, Title and Intellectual Property Rights, Trademarks, Dispatch Data, Registration and Privacy, Disclaimer of Warranty, Confidentiality, Use of Services, Services not a Substitute, Services and Software Available on this Website, Reverse Engineering, Links to Third-Party Sites, Indemnity and Release, Miscellaneous, Limitation of Liability, Other Restrictions, Injunctive Relief, Equipment Required and Optional, No Third Parties, Entire Agreement, Statute of Limitations. Section(s) added: Mapping Services.
Previous modification: January 28, 2013. Section(s) modified: Dispatch Data; Copyright Notice
Previous modification: November 18, 2010
