sfara Terms of Service
THESE TERMS OF SERVICE CONTAIN A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN SECTION 11 BELOW THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS OF SERVICE AND WITH RESPECT TO ANY “DISPUTE” (AS DEFINED BELOW) BETWEEN YOU AND US OR OUR AFFILIATES. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS FURTHER DESCRIBED IN SECTION 11 BELOW AS LONG AS YOU OPT-OUT WITHIN THIRTY (30) DAYS.
1. Binding Agreement
You represent that you are of legal age to form a binding contract and legally able to accept these Terms of Service. If you do not agree to these Terms of Service, you may not use the Service. You are responsible for your own compliance with these Terms of Service, as well as for the compliance of anyone who uses your Service account or utilizes the sfara App on your device, whether or not authorized by you. We reserve the right to change these Terms of Service from time to time, in which case, where required, we will notify you of or solicit your consent to such changes. Such changes will be effective when posted, provided that we may only amend the alternative dispute, venue and time limit of claims provisions to the extent allowed by applicable law. Any changes made to the Terms of Service will only apply prospectively. By continuing to use the Service, the sfara Web site or the sfara App after we post any such changes, you accept the Terms of Service as modified. Check the sfara Web site for the most up-to-date information. Certain features, products, software or services that you purchase or download from sfara may be subject to additional terms and conditions presented to you at the time that you use, purchase or download them.
Your Service Plan (including without limitation its pricing and other terms) are part of these Terms of Service. The initial term of your Service Plan (or any trial period) shall commence on the date that you enrolled in the Service (unless otherwise identified in your Service Plan) and shall continue for the period set forth in your Service Plan. The duration of any limited trial may change from time to time. [In order to decline to receive the sfara services during a trial period, you must decline the service online.]
2. License Grant
We use software, including the sfara App, in connection with the Service. Subject to your compliance with these Terms of Service and the terms of open source licenses governing the components included in the sfara App, sfara hereby grants you a personal, non-transferable, limited, non-exclusive license to use the sfara App for the sole purpose of using the Service. (Please see Section 13 for additional information regarding such open source licenses.) This license does not grant you the right to use the sfara App for any other purpose, or to disclose, reproduce, distribute, modify or create derivative works of the sfara App. sfara retains ownership of the sfara App, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any intellectual property of sfara. Any software that we provide you may automatically download and install upgrades, updates, or other new features onto your device, which may affect or erase data that you have previously stored on the sfara App or on your device.
You may register with us directly via the sfara App. In certain circumstances, your employer, with your permission, may register you for the Service on your behalf as an employee benefit. In the case of an employer-sponsored service offering, we may create an account for you with the information about you that we have received from your employer (which may include, without limitation, personally identifiable information). Such account will not be active until you complete the registration. To complete your registration and provide you with the Service, we will need certain satisfactory identification information from you. You agree to provide true, accurate, current and complete information about yourself, and you are responsible for keeping such information up-to-date (including your contact information). The information you submit must describe you (you may not impersonate another person or entity), and you may not sell, share or otherwise transfer your account information. Until you complete registration, the Service will not function appropriately or at all.
4. Costs of the Service
i. Service Rates: If your Service included one or more trial(s) for specified Service Plans, following any trial period, you must elect a Service Plan to continue to receive the Service.Your Service Plan describes the Service features that we will provide to you, the applicable charges for such Service features, and any optional features that may be available to you (and the prices therefore) (the “Service Rates”). Payments are non-refundable. All Service Rates are subject to change without prior notice, subject to your termination rights set forth in Section 10(ii). Furthermore, any Service upgrades, enhancements or updates that you request may be subject to additional fees or charges for which you shall be fully responsible. Our ability to provide the Service and maintain its quality may be impaired when customers place emergency or roadside assistance calls (or other demands on future services) that are illegitimate or excessive relative to typical usage by other customers for similar Service Plans. Such illegitimate or excessive usage suggests that the Service is being used in violation of these Terms of Service and may, in our sole discretion, result in charges (such charges, “Excessive Use Charges”) and/or termination of the Service with adequate notice. You hereby agree and consent that (a) you maintain sole and full responsibility and liability for such illegitimate or excessive usage, including Excessive Use Charges, and (b) your service may be terminated at our sole discretion in accordance herewith.
ii. Taxes and Surcharges: Service Rates do not include certain taxes and surcharges that may apply to the Service. In addition to Service Rates, you may be charged applicable (a) state and local sales taxes by Apple and the Android Play Store and (b) surcharges, which will be added to your bill. We may not provide advance notice of changes to surcharges. You hereby agree to pay all taxes and surcharges charged to you by the Apple App Store or Google Play Store.
iii. Payment Methods and Your Payment Responsibilities: The Apple App Store or Google Play Store will charge your payment method for your Service Plan, including any applicable taxes and surcharges. You are responsible for paying all amounts due on time and in full. All charges (including all Service Rates, Excessive Use Charges, taxes and surcharges) shall be paid in advance of the initial term (if applicable) and any renewal term. If you fail to timely deliver a cancellation or termination notice at least fifteen (15) days before the end of the then-current initial term or renewal term, then the Service will continue automatically and you will be charged for the next term as set forth in your Service Plan. In the event of an annual subscription, we will provide you with thirty (30) days’ notice prior to such renewal, unless otherwise permitted or required by law, rule or regulation. To the extent a different period is required by law, rule or regulation, we will provide you with notice within such period. Absent termination by you, if you have a valid and current form of payment on file with the Apple App Store or Google Play Store, you will continue to be automatically charged in advance for the next term. If at the time your then-current term ends, the form of payment on file with the Apple App Store or Google Play Store has expired or is otherwise invalid, then you must update your form of payment or else we may discontinue the Service. We reserve the right to terminate or suspend the Service (in whole or in part) if your form of payment is invalid. Notwithstanding such termination by us, you are still responsible for any charges due at the time of such termination or suspension. Please see the Apple Media Services Terms and Conditions and the Google Play Term of Service for additional information regarding your payment responsibilities.
You are responsible for paying directly to third parties, including emergency service providers, all charges for services furnished by them directly to you that are not expressly covered by your Service Plan (e.g., ambulance fees).
iv. Disputed Charges: If you think that there has been an error in any Service charge billed by or through us, you must notify us to request an adjustment within sixty (60) days, or such longer period as required by law, after the charge is posted to your account. If you do not contact us about the disputed charge within this time period, you agree that you have waived your right to dispute the charge and must pay all amounts due in full.
v. Our Refund/Credit Policy: All prepaid charges (including, without limitation, any applicable Service Rates) are non-refundable except as otherwise expressly set forth in these Terms of Service.
5. Our Service Partners
We work with different companies, individuals and government entities to provide you with the Service, which include, for example and without limitation, app stores, telecommunications providers, wireless service providers, call center service providers, roadside assistance service providers, public safety operators, emergency response centers, emergency personnel, towing companies, vehicle manufacturers, distributors and dealers, equipment and software manufacturers, distributors, licensors, content providers, and any other person or entity who provides any service, equipment, content, feature or facilities in connection with the Service (collectively, “Service Partners”). In the event any of our Service Partners impose additional terms and conditions on the services they provide, such terms and conditions shall be conveyed to you by the Service Partner.
6. Limitations of the Service
i. Your Device: Please see the sfara web site for a list of devices that are compatible with the Service. The Service does not function when (i) your device or its operating system is not compatible with the Service, (ii) your device is not in good working order with operating system updates or its hardware or software is not working properly, (iii) [either the location services or fitness tracker] is not enabled on your device, (iv) your device is powered off or does not have battery power, or (v) your device does not have service or reception or is not connected to the Internet, or (f) your device cannot transmit data due to an expired or a non-existing data plan or data manually turned off. Your device may not transmit your accurate geographic location if you are not near a cell tower or do not have both Wi-Fi and cellular service in the “on” position on your device.
ii. Our Coverage Area: The Service is currently only available in the continental United States (including the District of Columbia), Alaska and Hawaii. The Service (or a portion thereof) may not be available in all areas and may only be available if you are in a geographic area covered by the service network footprint (and within operating range) of your wireless service provider. The location of your smart device, particularly in remote or enclosed areas, may affect the availability and quality of the Service that we can provide to you. The Service generally works using any wireless communication network in these territories and the Global Positioning System (“GPS”) satellite network. Your smart device (customer owned or employer provided) receives GPS signals and communicates with our response centers and those of our Service Partners through use of wireless and landline communications networks.
iii. Force Majeure Events: Various conditions beyond our control may prevent or delay us or our Service Partners from providing the Service to you or impair the quality of Service you may receive, which include without limitation: (i) atmospheric, geographic or topographic conditions (such as buildings, hills or tunnels), (ii) damage to or failure to maintain your device in good working order with operating system updates and in compliance with these Terms of Service, and (iii) government regulations, failure, congestion or outages of utility or wireless networks (including interruption of cellular service), war, acts of god, natural disaster, inclement weather, labor strikes or other acts, forces or causes beyond our and our Service Partners’ control. In the event of any of the foregoing, we may, in our discretion, suspend or terminate the Service (in whole or in part) or terminate your Service Plan, without notice to you and without any liability. Further, we and our Service Partners are not responsible for any Service or device failures, interruptions, delays or impairments due to these causes, and you are not eligible for any Service or Service Rate credit or refund (whole or partial) for the foregoing. In the event of any regulatory, governmental or other legally-compelled changes, or discontinuation or change of necessary telecommunications systems and services (e.g., if your wireless carrier terminates or restricts wireless services of the type used by our service), you are solely responsible for replacing, as well as the cost of replacing, any device that is necessitated as a result of such change.
iv. Certain Other Limitations of the Service including Emergency Services and Our Need for Your Cooperation: You hereby agree and consent that we may provide assistance to anyone who utilizes the sfara App on your device, and that we have no responsibility or liability for anything that may arise from our provision of assistance to any such individual who is not, in fact, authorized by you to use your account. Our (or, as applicable, our Service Partners’) customer service representatives will use reasonable efforts to contact appropriate emergency personnel, such as police, fire department or emergency responders, for assistance when you request it or when the sfara App signals for assistance. However, neither we nor our Service Partners promise, nor can we or our Service Partners guarantee, that any such service providers will respond in a timely manner, or at all. We will assume an emergency exists [if we, or our Service Partners’, call center(s) receive(s) a crash notification signal from your device, unless (a) the sfara App detects movement after such crash notification signal or (b) you decline for us to contact emergency personnel (including, when on SOS mode, by providing the correct verification information upon being prompted to do so).] If applicable law requires an emergency to be confirmed before emergency personnel provide service, we will not contact emergency personnel in these areas until we [hear your request for assistance or otherwise confirm that an emergency exists] YOU EXPRESSLY RELEASE US AND OUR SERVICE PARTNERS FROM ALL LIABILITIES AND LOSSES (INCLUDING PHYSICAL INJURY AND DEATH) THAT YOU OR OTHERS MAY SUFFER IN AN EMERGENCY SITUATION. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF OR ANY RELIANCE ON ANY INFORMATION OR CONTENT AVAILABLE THROUGH THE SERVICE IS SOLELY AND COMPLETELY AT YOUR OWN RISK AND RESPONSIBILITY. IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT YOU (AND/OR ANY OTHER USERS OF YOUR SERVICE) EXERCISE GOOD JUDGMENT AND OBEY TRAFFIC LAWS AND INSTRUCTIONS, AS WELL AS OTHER APPLICABLE LAWS, WHEN OPERATING YOUR VEHICLE, AND USING THE SERVICE.
Voice recognition software may be used in connection with the Service. Neither we nor our Service Partners guarantee that such software will recognize all, or that it will work with, your voice or speech patterns some or all of the time.
7. Rules of Conduct
You agree that you shall use our emergency and roadside Service only for actual emergencies and legitimate roadside assistance. You agree not to:
- Use the Service, any other service we may offer, the sfara Web site or the sfara App (i) in any way that is illegal, fraudulent or abusive, including to harass, threaten, abuse, defame, or slander any individual or entity, or (ii) in a manner that interferes with any other customer’s use of our Service or our provision of our Service to our other customers
- Abuse or do anything to damage our or any of our Service Partner’s respective business, operations, services, reputation, employees, equipment, property or facilities
- Harass, threaten or use vulgar and/or inappropriate language towards any customer service representatives
- “Flood” the sfara Web site with requests or otherwise overburden, disrupt or harm the sfara Web site or its systems
- Obtain, or attempt to obtain, access to areas of the sfara Web Site, sfara App or our systems that are not intended for access by you
- Circumvent or reverse engineer the sfara Web site, sfara App or its systems
- “Harvest” (or collect) information from the sfara Web site using an automated software tool or manually on a mass basis (unless we have given you separate written permission to do so). This includes, for example, information about other users of the sfara Web site and information about the offerings or services available on the sfara Web site.
- Use automated means to access, or gain unauthorized access to, the sfara Web site, the sfara App or any account or computer system connected to the sfara Web site or the sfara App. This prohibition does not apply to search engines accessing the sfara Web site solely for web indexing purposes.
You must comply with all applicable laws (including trade regulations and export control laws, both domestic and foreign) and contractual obligations when you use the Service, any other service we may offer, the sfara Web site or the sfara App. You represent and warrant that: (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; (ii) you are not listed on any U.S. government list of prohibited or restricted parties; (iii) you will not export or re-export the sfara App except as authorized by U.S. law, and (iv) you will not use the sfara App for any purposes prohibited by U.S. law.
We (and/or our Service Partners) provide the Service, the sfara Web site and the sfara App, including the messages, data, information, content, or other material provided therein, for your non-commercial use only. Certain information you receive through the Service, the sfara Web site or the sfara App is the property of us or our Service Partners (or other third parties) and may be subject to one or more copyrights, trademarks, service marks, patents, or other legal protections. You are prohibited from selling, reselling or otherwise using such information for commercial purposes; reproducing, copying, modifying, making derivative works from or otherwise displaying or distributing it; or and permitting or causing any other party to do the foregoing.
8. Your Responsibilities for Those Who Use Your Service or Your Personal Identification Number
Without limitation of anything set forth herein, you are solely responsible for those who use the Service on your device or use your Service verification number (“Personal Identification Number”), including to request services or change, modify or terminate your account or the Service, even if you later claim the use was not authorized. You will be responsible for any damages or other amounts owed by us or any of our Service Partners resulting from such use. Neither we nor any Service Partner has any obligation to inquire about the authority of anyone using your device or Personal Identification Number or other information that can be used to identify your account to request the Service. You are responsible for keeping your Personal Identification Number and any passwords you use to access the Service confidential. We are not liable for any loss or damage arising from your failure to protect such information. We will make any changes to your account or charge you for any amounts authorized by a person who provides your Personal Identification Number or other authentication information that can be used to access your account.
9. No Ownership Rights in any Numbers or Addresses
You have no property right in any number or other address that may be assigned to you or your device in connection with the Service, and you understand and agree that any such number can be changed from time to time.
10. Suspending, Terminating, Changing, Transferring and Reactivating the Service
Without limitation of any other suspension or termination (or other) rights expressly set forth in these Terms of Service:
i. Suspension of the Service, sfara Web Site and sfara App: We reserve the right to suspend or terminate the Service at any time for any reason in our discretion. If suspension or termination of the Service occurs for any reason, you acknowledge and agree that you may not be able to access the Service, including the emergency services. We reserve the right to make changes to, deny access to and suspend or discontinue (temporarily or permanently) your access to the sfara Web site or the sfara App (or any portion thereof). You agree that we will not be liable to you or to any third party for any such modification, suspension or discontinuance.
ii. Termination of Service/Service Plan: You may cancel the Service at any time by following the instructions provided by the Apple App Store or Google Play Store. Unless your Service Plan specifies otherwise or as otherwise expressly set forth in these Terms of Service or terms applicable to the Apple App Store or Google Play Store, we will not refund any other amounts that you have paid in advance. Such fees are non-refundable. If we elect to terminate your Service as a result of your breach of these Terms of Service or unauthorized use of the Service, you will not be entitled to any refunds or credits.
iii. Reactivation of Service: You do not have any right to have your Service reactivated and we are under no obligation to do so, even if you cure any of the issues that resulted in the termination of your Service. It is solely in our discretion whether to allow you to have Service again. You may be assessed a fee for reactivating the Service.
iv. Transfer of Service: Transfer of service is supported when both of the following conditions are met: (a) a customer is retiring a sfara-enabled device and replacing it with a new device, and (b) the same Apple or Google Play ID is used.
11. Binding Individual Arbitration
The term “Dispute” means any dispute, claim, or controversy between you and us or any of our affiliates regarding the Service, the sfara Web site or the sfara App, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section 11 (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced. If you have a Dispute with us or any affiliate of ours or any of our or their officers, directors, employees or agents that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, other than those matters listed in the Exclusions from Arbitration clause, you and the entity that you have a Dispute with agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section 11, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury. Service Partners are not sfara’s affiliates.
Exclusions from Arbitration. YOU AND WE AND OUR AFFILIATES AGREE THAT ANY CLAIM FILED BY YOU OR BY US OR OUR AFFILIATE IN SMALL CLAIMS COURT ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 11.
RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN THIRTY (30) DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 11, YOU MUST NOTIFY US IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU ACCEPT THESE TERMS OF SERVICE. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO SFARA, INC., 33-41 NEWARK ST., SUITE 5B, HOBOKEN, NJ 07030 AND MUST INCLUDE: (A) YOUR NAME, (B) YOUR ADDRESS, (C) YOUR ACCOUNT NUMBER, IF YOU HAVE ONE, AND (D) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US OR OUR AFFILIATES THROUGH ARBITRATION.
Notice of Dispute. IF YOU HAVE A DISPUTE WITH US OR ANY OF OUR AFFILIATES, YOU MUST SEND WRITTEN NOTICE TO SFARA, INC., 33-41 NEWARK ST., SUITE 5B, HOBOKEN, NJ 07030 TO GIVE US OR OUR AFFILIATE YOU HAVE A DISPUTE WITH THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no less than sixty (60) days after you provide notice of the Dispute. If we or our affiliate you have a Dispute with does not resolve your Dispute within sixty (60) days from receipt of notice of the Dispute, you, us or our affiliate you have a Dispute with may pursue your claim in arbitration pursuant to the terms in this Section 11.
Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGALACTION, UNLESS BOTH YOU AND THE ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
Initiation of Arbitration Proceeding/Selection of Arbitrator. The party initiating the arbitration proceeding may initiate it with the American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com. The terms of this Section 11 govern in the event they conflict with the rules of the arbitration organization selected by the parties.
Arbitration Procedures. Because the software and/or service provided to you by the entity you have a Dispute with concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”) shall apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to and negotiated in good faith with the entity you had a Dispute with as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to the entity you have a Dispute with or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or the entity you have a Dispute with may initiate arbitration in either Hoboken County, New Jersey or the county in which you reside. In the event that you select the county of your residence, the entity you have a Dispute with may transfer the arbitration to Hoboken County, New Jersey in the event that it agrees to pay any additional fees or costs you incur as a result of the change in location as determined by the arbitrator.
Severability. If any clause within this Section 11 is found to be illegal or unenforceable, that clause will be severed from this Section 11, and the remainder of this Section 11 will be given full force and effect.
Continuation. This Section 11 shall survive any termination of these Terms of Service or the provision of the Service, sfara Web site, sfara App or associated services to you.
12. Governing Jurisdiction
ANY DISPUTE NOT SUBJECT TO ARBITRATION AND NOT INITIATED IN SMALL CLAIMS COURT WILL BE LITIGATED BY EITHER PARTY IN A COURT OF COMPETENT JURISDICTION ONLY IN the United States District Court for DISTRICT OF NEW JERSEY or, if such court would not have jurisdiction over the matter, then only in a New jersey State court. Each Party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of THESE TERMS OF SERVICE in any other court or forum. Each Party waives any objection to the laying of the venue of any legal action brought under or in connection with the subject matter of these terms of service in the Federal or state courts sitting in new jersey, and agrees not to plead or claim in such courts that any such action has been brought in an inconvenient forum.
13. Disclaimer of Warranties
NEITHER WE NOR OUR SERVICE PARTNERS WARRANT OR GUARANTEE THAT THE SERVICE WILL BE AVAILABLE AT ANY SPECIFIC TIME OR AT ALL TIMES OR AT OR TO ANY GEOGRAPHIC LOCATION, OR THAT THE SERVICE WILL BE PROVIDED WITHOUT INTERRUPTION, DELAY OR ERROR. NEITHER WE NOR ANY OF OUR SERVICE PARTNERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, ABOUT (1) THE SERVICE, (2) ANY HARDWARE OR SOFTWARE USED WITH THE SERVICE, (3) ANY DATA OR INFORMATION OR OTHER SERVICES PROVIDED THROUGH THE SERVICE, THE SFARA WEBSITE OR THE SFARA APP, (4) THE SFARA WEBSITE, OR (5) THE SFARA APP. WE EXPRESSLY DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, CONTENT, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, CORRECTNESS, RELIABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE).
YOU AGREE THAT USE OF THE SERVICE, SFARA WEB SITE AND SFARA APP IS AT YOUR OWN RISK. WE PROVIDE THE SERVICE, SFARA WEB SITE AND THE SFARA APP ON AN “AS IS” AND “AS AVAILABLE” BASIS. THIS MEANS THAT WE MAKE NO PROMISES THAT:
- THE SERVICE, THE SFARA WEB SITE OR THE SFARA APP WILL BE AVAILABLE AT ANY PARTICULAR TIME,
- THE SERVICE, THE SFARA WEB SITE OR THE SFARA APP WILL MEET ANY PARTICULAR REQUIREMENTS OR PROVIDE ANY PARTICULAR RESULTS,
- THE INFORMATION ON THE SFARA WEB SITE OR THE SFARA APP WILL BE ACCURATE OR UP-TO-DATE,
- THE SFARA WEB SITE OR THE SFARA APP (OR THE INFORMATION TRANSMITTED TO OR FROM IT OR STORED ON IT) WILL BE SECURE FROM UNAUTHORIZED ACCESS,
- INFORMATION AND MATERIALS THAT YOU STORE IN YOUR ACCOUNT OR ON THE SFARA WEB SITE OR THE SFARA APP WILL REMAIN RETREIVABLE AND UNCORRUPTED (UNLESS WE PROMISE THIS IN A SEPARATE AGREEMENT WITH YOU), OR
- THE SFARA WEB SITE OR THE SFARA APP WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED.
NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US, OUR SERVICE PARTNERS OR THROUGH SFARA WEB SITE OR THE SFARA APP SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WE HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCT OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS, SUPPORT DOCUMENTATION, BY OUR OR OUR SERVICE PARTNERS’ CUSTOMER SERVICE AND SUPPORT AGENTS, OR OTHERWISE ON THE SFARA WEB SITE OR THE SFARA APP OR IN CORRESPONDENCE WITH US OR OUR OR OUR SERVICE PARTNERS’ AGENTS.
ALTHOUGH WE TRY TO ENSURE THAT THE INFORMATION POSTED ON THE SFARA WEB SITE OR THE SFARA APP IS ACCURATE AND UP-TO-DATE, WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION (INCLUDING PRICING) AT ANY TIME. WE CANNOT, AND DO NOT, GUARANTEE THE CORRECTNESS, TIMELINESS, PRECISION, THOROUGHNESS OR COMPLETENESS OF ANY OF THE INFORMATION AVAILABLE ON SFARA WEB SITE OR THE SFARA APP, NOR WILL WE BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON SFARA WEB SITE OR THE SFARA APP. IF YOU PURCHASE A PRODUCT OR SERVICE FROM A THIRD PARTY AFTER FOLLOWING AN AD OR LINK ON THE SFARA WEB SITE OR THE SFARA APP, THE TERMS OF SALE FOR YOUR PURCHASE ARE BETWEEN YOU AND THE THIRD PARTY FROM WHOM YOU MADE THE PURCHASE. WE ARE NOT RESPONSIBLE FOR SUCH THIRD PARTY PRODUCTS OR SERVICES OR FOR DISPUTES BETWEEN YOU AND THEIR SELLERS.
THESE DISCLAIMERS APPLY TO, AS APPLICABLE, US, OUR AFFILIATED AND RELATED COMPANIES, OUR SERVICE PARTNERS, AND THIRD PARTIES THAT ARE INVOLVED IN THE CREATION, PRODUCTION OR DISTRIBUTION OF THE SFARA WEB SITE OR THE SFARA APP, AND ANY OF THEIR EMPLOYEES AND AGENTS.
14. Limitation of Liability
BY ENTERING INTO THESE TERMS OF SERVICE OR BY USING THE SERVICE, YOU ARE WAIVING IMPORTANT RIGHTS, AND YOU ARE PROVIDING YOUR EXPRESS CONSENT TO VARIOUS ACTIONS TO BE TAKEN BY US, OUR SERVICE PARTNERS (AS DESCRIBED HEREIN). Neither we nor our Service Partners assume any risk or responsibility for your use of the Service, the sfara Web Site, the sfara App, or any of the information, other content or services provided as part of the foregoing. You hereby acknowledge and agree that neither we, nor any of our Service Partners are liable for dropped calls or interrupted service, or for problems caused by or contributed to by you, by any third party, by buildings, hills, tunnels, network congestion, atmospheric conditions, act of god or natural disaster or by any other conditions or circumstances out of our control (as further described above in Section 5(iii)). In addition, neither we nor our Service Partners are liable for (a) our inability to contact any service provider or other party in any particular situation (including any emergency personnel), (b) any act or omission of any other company furnishing a part of our Service or any equipment provided for such Service, (c) errors or omissions of any vendors, dealers or manufacturers participating in offers made through us, or (d) any damages that result from or arise out of the use, installation, repair or maintenance by you (or by any person you authorize) of your smart device or the Service, or any product or service provided by or manufactured by third parties.
IF WE, AND/OR ANY OF OUR SERVICE PARTNERS ARE FOUND TO BE LIABLE TO YOU FOR ANY REASON, YOU AGREE THAT THE MAXIMUM AGGREGATE LIABILITY OF US, AND OUR SERVICE PARTNERS TO YOU, AND YOUR EXCLUSIVE REMEDY UNDER ANY THEORY OR FOR ANY CAUSE WHATSOEVER (INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF SERVICE PROVIDED HEREUNDER, FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, OR PRODUCTS LIABILITY), SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE PORTION OF THE SERVICE RATES CHARGED TO YOU FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM FOR A ONE-MONTH PERIOD OF SERVICE CALCULATED ON A PRO-RATA BASIS. YOU ACKNOWLEDGE AND AGREE THAT NEITHER WE, NOR ANY SERVICE PARTNER WOULD HAVE AGREED TO PROVIDE THE SERVICE TO YOU WITHOUT YOUR AGREEMENT TO THIS LIMITATION. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE DAMAGES CAP SET FORTH IN THIS PARAGRAPH SHALL BE THE SOLE AND EXCLUSIVE LIABILITY OF US, AND OUR SERVICE PARTNERS TO YOU. IN NO EVENT SHALL WE, OUR SERVICE PARTNERS OR THE AUTHORS OR CONTRIBUTORS OF THE SFARA APP AND ASSOCIATED DOCUMENTATION FILES BE LIABLE TO YOU OR ANY OTHER PARTY FOR, AND YOU CANNOT RECOVER ANY, (A) PUNITIVE, EXEMPLARY, TREBLE, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUE (REGARDLESS OF WHETHER WE OR OUR SERVICE PARTNERS HAVE BEEN NOTIFIED THAT SUCH LOSS MAY OCCUR); OR (B) ATTORNEY’S FEES. YOU AGREE NOT TO MAKE, AND TO WAIVE TO THE FULLEST EXTENT ALLOWED BY LAW, ANY CLAIM FOR DAMAGES OTHER THAN DIRECT, COMPENSATORY DAMAGES AS LIMITED ABOVE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, AND OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS, IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.
YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO USE OF THE SERVICE, THE SFARA WEB SITE, THE SFARA APP OR THESE TERMS OF SERVICE, MUST BE FILED BY YOU WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ACCRUED OR BE PERMANENTLY BARRED.
You understand and agree that our Service Partners, shall have no legal, equitable, or other liability of any kind to you in any event, regardless of the form of the action, whether for breach of contract, warranty, negligence, strict liability in tort or otherwise relating to or arising from the Service and you hereby waive any and all such claims or demands.
These limitations of liability apply to you, anyone who uses your Service account or utilizes the sfara App on your device and anyone making a claim on your behalf.
15. Indemnification and Release
You agree to indemnify, defend and hold harmless sfara, each of our Service Partners, and each of our or their respective affiliates, officers, directors, agents, partners and employees, from and against any and all liabilities, settlements, penalties, claims, causes of action, and demands (including any costs, expenses, or attorneys’ fees on account thereof) (collectively “Claims”) irrespective of the nature of the cause of such Claims, alleging loss, costs, expenses, damages or injuries (including without limitation Claims for property damage, personal injury or death), arising in any way, directly or indirectly, in connection with (a) use of the Service, sfara Web site or the sfara App, (b) any violation of these Terms of Service, or (c) any misuse or failure to use the Service or your sfara-enabled device, in each of (a), (b) and (c), by you or someone using your Service account or utilizing the sfara App on your device. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you agree to cooperate with us in defending such claims. You agree that the limitations of liability and indemnities in these Terms of Service will survive these Terms of Service and after your Service Plan has ended and your Service has terminated.
WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, YOU FURTHER AGREE TO RELEASE US AND EACH SERVICE PARTNER FROM ALL CLAIMS, LIABILITIES AND LOSSES IN CONNECTION WITH THE SERVICE, INCLUDING, BUT NOT LIMITED TO CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM THE TOTAL OR PARTIAL FAILURE OF PERFORMANCE OF THE SERVICE, EVEN IF CAUSED BY THE NEGLIGENCE OF US OR ANY OTHER SERVICE PARTNER, OR THE MALFUNCTION OF THE EQUIPMENT OR SERVICE. YOU AGREE THAT THIS RELEASE EXTENDS TO ANY PARTY CLAIMING UNDER YOU AND THAT NO INSURANCE COMPANY WILL HAVE ANY RIGHT OF SUBROGATION.
16. Third Parties and Linking Policies
Portions of the sfara App include open source software, which is licensed under Apache License, Version 2.0, the BSD License and the MIT License and subject to the following acknowledgements, terms and disclaimers:
- Copyright 2017 sfara, Inc.
- Apache: You may not use the sfara App except in compliance with the Apache License, Version 2.0.
- BSD: Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: (i) redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer; (ii) redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution; and (iii) neither the name of the nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
- MIT: Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
We welcome links to the sfara Web site so long as: (i) the sfara Web site opens in a new browser window which displays the full version of a page of the sfara Web site (e.g., not merely one of its frames, and not an “in-line” link to a particular image or object on this site), (ii) the link to the sfara Web site does not state or imply any sponsorship of your website or service by us or by the sfara Web site; and (iii) the sfara Web site is not display framed within or obfuscated by other content. You may not use on your site any trademarks, service marks or copyrighted materials appearing on the sfara Web site, including but not limited to any logos, without our express written consent. We reserve the right to revoke your right to link to the sfara Web site upon notice. If you receive such a notice from us, you agree to discontinue your link to the sfara Web site.
17. Downloading from Apple’s App Store
The following terms apply when you download any sfara App from Apple’s App Store (the “Apple Mobile Application”). These terms are in addition to all other terms contained in these Terms of Service. If you have any questions, complaints or claims with respect to the Apple Mobile Application, please contact us at CustomerSupport@sfara.com. You acknowledge and agree that (i) these Terms of Service are concluded between you and sfara only, and not with Apple; and (ii) sfara, not Apple, is solely responsible for the Apple Mobile Application and content thereof. Your use of the Apple Mobile Application must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple Mobile Application. In the event of any failure of the Apple Mobile Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the Apple Mobile Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple Mobile Application. As between sfara and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of sfara. You acknowledge that, as between sfara and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple Mobile Application or your possession and use of the Apple Mobile Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple Mobile Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You acknowledge that, in the event of any third-party claim that the Apple Mobile Application or your possession and use of Apple Mobile Application infringes that third party’s intellectual property rights, as between sfara and Apple, sfara, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by these Terms of Service. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service as related to your license of the Apple Mobile Application, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service as related to your license of the Apple Mobile Application against you as a third-party beneficiary thereof. Without limiting any other terms of these Terms of Service, you must comply with all applicable third-party terms of agreement when using the Apple Mobile Application.
18. Communications and Notice
The communications between you and us via the sfara Web site or the sfara App use electronic means, whether you visit the sfara Web site or the sfara App or send us an email, or whether we post notices on the sfara Web site or the sfara App or communicate with you via email. For contractual purposes, you consent to receive communications from us in an electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights. Any written notice from us will be considered given when we send it by email to the email address you have provided to us that is then in our records, or two (2) days after we mail it to you at the most current billing address we have on file for you. You may notify us by postal mail (sfara, Inc., 33-41 Newark St., Suite 5B, Hoboken, NJ 07030), phone (201) 942-6929, or electronic means (via the sfara Web site). Such notices will be considered effective after we receive them. In particular, any written notice from you will be considered given when we receive it at our address provided in the preceding sentence.
We control and operate the Service, the sfara Web site and the sfara App from our facilities in the United States, and unless otherwise specified, the materials displayed via the Service, the sfara Web site and the sfara App are presented solely for the purpose of promoting products and services available in the United States, its territories, possessions, and protectorates. We do not represent that materials displayed via the Service, the sfara Web site and the sfara App are appropriate or available for use in other locations. If you choose to access the Service, the sfara Web site and the sfara App from other locations, you are responsible for compliance with local laws, if and to the extent local laws are applicable.
These Terms of Service, and the relationship between you and us, will be governed by and construed in accordance with the laws of the United States and the State of New York, without giving effect to any principles of conflicts of law. Our failure to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, you and we nevertheless agree that the court should endeavor to give effect to intentions as reflected in the provision, and the other provisions of these Terms of Service will remain in full force and effect.
Notwithstanding anything else herein, these Terms of Service do not create any fiduciary relationships between you and us, or between you and any of our other Service Partners. These Terms of Service also do not create any relationship of principal and agent, partnership, or employer and employee between you and us or between you and any of our Service Partners.
With the exception of Apple and Apple’s subsidiaries as related to your license of the Apple Mobile Application: these Terms of Service (i) are not intended to benefit any third party, (ii) do not create any third party beneficiaries, and (iii) do not provide any other person or entity not a party to these Terms of Service with any remedy, claim, liability, reimbursement or cause of action, and accordingly, these Terms of Service may only be invoked or enforced by you or us. You have no contractual relationship whatsoever with any of our Service Partners, and these Terms of Service do not give you any rights against any Service Partner. You are not a third party beneficiary of any agreement between us and any of our Service Partners. None of our Service Partners has any legal, equitable, or other liability of any kind to you under these Terms of Service. You hereby expressly waive any and all claims or demands for such liability.
We can assign these Terms of Service, in whole or in part, to any individual or entity we choose, at any time, without notice to you, in our sole discretion. These Terms of Service are personal to you and you may not assign it to anyone.
Under California Civil Code Section 1789.3, California users receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 1-916-445-1254.
Last Updated: November 25, 2017