PRODUCTS AND SERVICES AGREEMENT
Last Updated on April 18, 2018
IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE DISPUTE RESOLUTION SECTION.
TERMS OF SERVICE
This website is owned and operated by Market Spectrum, Inc. hereby referred to as MSI and its subsidiaries and affiliates (collectively “MSI”, “Nautic Alert,” “we,” “us,” or “our”). These Terms of Service (“Terms”) and our Privacy Notice govern your legal rights to use or access our services, software, mobile application, and our websites (the “Services”) and Nautic Alert hardware products or devices (“Products”). Please read these Terms and our Privacy Notice carefully before using the Products or Services. By using or accessing our Products or Services, you signify your acknowledgement and assent to the terms and conditions of use set forth below and our Privacy Notice, which is hereby incorporated by reference. These Terms and the Privacy Notice (together with other user agreements, where applicable) constitute a binding legal agreement between you and Market Spectrum, Inc. (this “Agreement”). Please read these Terms closely because they contain important information about automatic renewal , a class action waiver , and an arbitration provision, requiring you to arbitrate any claims you may have against MSI on an individual basis. Please follow the instructions in the Dispute Resolution section below if you wish to opt out of the arbitration provision. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
*If you do not agree with these Terms, please do not use our Products or Services. *
This Agreement represents the entire understanding relating to your use of the Products and Services and prevails over any prior or contemporaneous, conflicting or additional communications between you and MSI. All rights not expressly granted herein are reserved by MSI.
Specific areas or pages of our websites may include additional or different terms relating to the use of our Products or Services. In the event of a conflict between such specific terms and these Terms, the specific terms shall control.
The term “you,” as used in these Terms, includes any person or entity who is the owner of the Product and/or creates an account associated with the Product (“Owner”), as well as any person or entity authorized to access or use the Owner’s Products and Services (“Authorized Users”). Authorized Users are responsible for their own actions in connection with the Products and Services, but Owner hereby agrees to be fully responsible for all actions taken by Authorized Users relating to the Owner’s Products, Services and account. As a result, if you are an Owner, you should authorize only those individuals that you trust to access your account, Products, and Services.
You represent and warrant that you are of legal age in your jurisdiction to form a binding contract (or if not, that you are over the age of 13 and you’ve received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf).
If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
CHANGES TO THIS AGREEMENT AND SERVICES
Except as set forth in the Dispute Resolution section, MSI is free to revise these Terms or any other part of this Agreement at any time by updating this page. If we make changes to these Terms that we consider material, we will make reasonable efforts to notify you by placing a notice on the nauticalert.com website, notifying you through the Services, by sending you an email, and/or by some other means. By continuing to use our Services after such changes, you are expressing your acknowledgement and acceptance of the changes. Please check these Terms periodically for updates.
We’re always trying to improve the Products and Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Products or Services. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason, in our sole discretion, and without notice.
We are also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. We have the sole right to decide whether you are in violation of any of the restrictions set forth in this Agreement.
ACCESS AND USE; GUIDELINES FOR INSTALLATION AND USE
All right, title and interest in the Services and our content provided through the Products and Services (including without limitation information, documents, logos, graphics, designs and images) are owned by MSI, its licensors, or designated third parties. Subject to these Terms, MSI grants you a limited, non-transferable, non-exclusive right to access and use the Services for the sole purpose of monitoring and controlling the Products installed on your vessel.
Privacy and other laws applicable in your jurisdiction may impose certain responsibilities on you and your use of the Products and Services. You agree that it is your responsibility, and not the responsibility of MSI, to ensure that you comply with any applicable laws when you use the Products and Services, including but not limited to:
(1) any laws or regulations relating to text messaging, email notifications, the recording or sharing of video or audio content, and/or (2) any laws or regulations requiring that notice be given to or that consent be obtained from third parties with respect to your use of the Products or Services.
If your use of the Services or any Products is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services or any Products in a way that breaks the law.
You may be required to sign up for an account, and select a password and user name (“User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. Also, you will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.
You represent, warrant, and agree that you will not capture or contribute any Content (as defined below) or otherwise use the Services or Products or interact with the Services or Products in a manner that:
- Infringes or violates the intellectual property rights or any other rights of anyone else (including us);
- Violates any law, ordinance, or regulation, including privacy and other laws referenced above and any applicable export control laws;
- Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- Jeopardizes the security of your Nautic Alert account or anyone else’s (such as allowing someone else to log in to the Services as you);
- Attempts, in any manner, to obtain the password, account, or other security information from any other user;
- Violates the security of any computer network, or cracks any passwords or security encryption codes;
- Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
- “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means); or
- Copies or stores any significant portion of the Content.
TRADEMARKS AND COPYRIGHTS
Nothing on or in the Products or Services shall be construed as conferring any license under any intellectual property right, including any right in the nature of trademark or copyright, of MSI or Nautic Alert or any third party, whether by estoppel, implication or otherwise. All trademarks and trade names are the property of their respective owners.
Except as otherwise noted, MSI is the owner of all trademarks and service marks on or in the Products and Services, whether registered or not, including, without limitation, Nautic Alert®. MSI expressly forbids the unauthorized use of its logos, trademarks or other graphics to create links. All registered trademarks are registered in the United States of America (and/or other applicable jurisdictions).
THE REPORTING SERVICE AND THE GEOS EMERGENCY RESPONSE SERVICE
You may use our Nautic Alert Reporting Service or the GEOS Emergency Response third party service in the following ways:
Paid Subscriptions. When you first set up your Product, or at any time after you begin using your Product, you may use our Nautic Alert Reporting Service and/ or the GEOS Emergency Response third party Service by enrolling in our annual subscription plan, which will continue until you cancel your subscription. These subscription plans entitle you to send and receive messages and to remotely access your Nautic Alert Platform for each payment period until such subscription is cancelled. Your paid subscription will automatically commence on the first day that payment is received on an annual basis and when you first set up your Product. By submitting your payment details, you agree to this charge. To avoid this charge, you must cancel Reporting Service and/ or the GEOS Emergency Response third party Service by either contacting us or discontinuing Services via the Nautic Alert website.
Subscription fees are billed or charged on the first day of the applicable subscription period. If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, MSI reserves the right to cancel your Reporting Service and/ or the GEOS Emergency Response third party Service subscription and to collect any rejection or insufficient funds fee and to process any such payment by the payment method you have submitted to us.
Auto-Renewal for Paid Subscriptions.
Unless you opt out of auto-renewal, which can be done through your account settings by removing your payment information or by contacting us, any paid Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or discontinue your paid Services at any time, go to account settings or contact us. If you terminate a paid Service, you may use your subscription until the end of your then-current term and your subscription will not be renewed after your then-current term expires. However, you won’t be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period, except as set forth in the Refund Policy below. Your non-termination or continued use of a paid Service reaffirms that we are authorized to charge your payment method for that paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, or as otherwise described when you initially selected to use the paid Service.
CANCELLATIONS, REFUNDS, AND PAYMENTS
Cancellation of Subscription Services
You may cancel the Reporting Service and/ or the GEOS Emergency Response third party Service by contacting us or through your Nautic Alert account, at any time, with or without cause. After your cancellation, you will continue to enjoy access to the Service(s) until the last day of your subscription period. After such subscription period ends, your Service(s) will no longer be accessible to you.
Product Refund for Consumer. If, for any reason, you decide to return Product that you purchased from us for a refund, you must notify us and return the Product to us within thirty (30) days from the date the Product was delivered. If you purchased the Product from an authorized dealer, contact your authorized dealer for a refund within thirty (30) days from the date the Product was purchased or delivered. Unless the Product is faulty, you will be responsible for all costs associated with returning the Product (including uninstall and the cost of shipping the Product back). If the Product was purchased directly from us, we will refund the price you paid for the Product excluding original shipping charges, incurred installation charges, and removal charges. If the Product was purchased from an authorized dealer, they will refund the price you paid for the Product excluding original shipping charges, incurred installation charges, and removal charges. If you decide to return Product after thirty (30) days, there will be no refund.
Prorated Subscription Refund. If you cancel your annual Reporting Service and/ or GEOS Emergency Response Service subscription at any time within the first ten (10) months of your subscription period, you will be charged the monthly subscription fee (i.e., for the monthly subscription plan) for each month of your annual subscription period prior to your cancellation, and you will be eligible for a refund for the remainder of your annual subscription fee. We will not issue a refund for any unused portion of your monthly subscription after the first ten (10) months of your subscription.
Purchase Order Refunds. Once an order is accepted by MSI, it can be cancelled within five (5) days, unless the order has shipped. If the order has shipped or the order is cancelled after five (5) days of acceptance by MSI, a restocking fee of twenty (20) percent of the total order sale amount will be charged and deducted from the refund. If a Product is found to be faulty, the warranty policy will apply.
If we charge less than the correct or advertised amount on a transaction, we have the right for thirty (30) days after the original transaction date, to complete subsequent transaction attempts in order to rectify the incorrect payment or to cancel the order. Should this occur, you have the right to reject such charge and cancel your original transaction for a full refund in accordance with our Refund Policy.
THIRD PARTY SERVICES
You may be allowed to access or acquire products, websites, applications, content or services from third parties (“Third Party Services”) through our Services such as the GEOS Emergency Response Service. A description or reference to any Third Party Service by or through our Services (including any description or reference via hyperlink) does not imply endorsement by MSI of such Third Party Service. These Third Party Services are the sole responsibility of such independent third parties, and your use thereof is solely at your own risk. MSI has no control over the content or policies of such Third Party Services, and we are not responsible for (and under no circumstances shall we be liable for) the contents, accuracy, reliability, quality or security of any such Third Party Service. Those who choose to access information provided by third parties (including any information obtained through our Services) are solely responsible for the compliance of such information with any applicable law.
From time to time, MSI may develop updates, upgrades, patches and other modifications to improve the performance of the Services and/or the Products or for other reasons in our sole discretion (“Updates”). You agree that MSI may automatically install such Updates without providing any additional notice to you or receiving any additional consent from you.
MSI is pleased to hear from its customers. However, we do not accept or consider any unsolicited creative ideas, suggestions or other materials related to products, services or marketing. Anything you disclose or offer to us by or through our websites or our Services (“communications”), including e-mails to MSI or postings on interactive portions of our websites, shall be deemed and shall remain the property of MSI. If you send us such communications, you do so on a NON-CONFIDENTIAL BASIS, and we will have no obligation to keep such information secret, to refrain from using such information, or to compensate you for the receipt or use of such communications. MSI is free to use, for any purpose whatsoever, any communications, including but not limited to publishing, developing, manufacturing, and marketing our Products or Services using such communications. By submitting communications to us through our websites, via e-mail, or by any means, you hereby RELEASE MSI from any liability under any legal theory in connection with the use, modification, sale, or disclosure of any such communications. By uploading or otherwise providing any communications to our websites or to MSI, you hereby grant MSI, to the extent you retain any rights, the unlimited, perpetual right to reuse, redistribute, modify, and create derivative works from such communications for any purpose and in any media without compensation to you.
PRODUCTS AND SOFTWARE
Downloading or using our software (including our mobile application) does not give you title to such software, including any files, data and images incorporated in or associated with the software. Your use of any such software shall be only in accordance with these Terms. Our software is copyrighted by MSI or its licensor(s), and may be protected by one or more patents owned by MSI or its licensor(s). Software may not be copied, redistributed or placed on any server for further distribution. You may not sell, modify, decompile, disassemble or otherwise reverse engineer the software. Products and Services offered through this website shall be warranted, if at all, through the written license or warranty provided in connection with such product or software. These Terms apply to your use of all the Products and Services, including software that may be downloaded to your smartphone or tablet to access the Services (the “Application”). The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Products and Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Products and Services. You will only use the Application in connection with a device that you own or control. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties.
LIFE AND SAFETY OR CRITICAL USES
You acknowledge that MSI does not monitor emergency notifications and will not dispatch emergency authorities to an event of an emergency. The dispatching of emergency services is handled by the GEOS Emergency Response third party Service under their terms and conditions. MSI makes no warranty or representation that use of the Products or Services will affect or increase any level of safety. You acknowledge that the Products and Services are not intended to be 100% reliable. We cannot and do not guarantee that you will receive notifications in any given timeframe or at all.
To the fullest extent permitted by law, you acknowledge and agree that you will defend, indemnify and hold MSI harmless against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with any claim brought against us by any third party as a result of your or your Authorized Users’ use of the Services and Products, notwithstanding the foregoing this indemnification shall not apply to claims based on MSI’s own willful, wanton, or intentional misconduct by MSI.
NO REPRESENTATIONS OR WARRANTIES
MSI makes no representations or warranties that our Products or Services are free of defects, viruses or other harmful components. We shall not be responsible for any damages or loss that may result from the hacking or infiltration of our websites or MSI’s computer systems.
EXCEPT FOR THE LIMITED WARRANTY PROVIDED ON OUR WEBSITE, OUR PRODUCTS AND SERVICES ARE PROVIDED ‘AS IS,’ AND MSI DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, NOR DO WE IN ANY WAY GUARANTEE THE QUALITY, DATA CONTENT, ARTISTIC WORTH OR LEGALITY OF INFORMATION, CONTENT, GOODS OR SERVICES THAT ARE TRANSFERRED, RECEIVED, PURCHASED OR OTHERWISE MADE AVAILABLE OR OBTAINED BY WAY OF THIS WEBSITE OR THE SERVICES. WE DO NOT WARRANT THAT OUR PRODUCTS OR SERVICES WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
EXCLUSION OF LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL MSI BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS THAT RESULT FROM THE DISTRIBUTION OR USE OF, OR THE INABILITY TO USE, THE CONTENT OR MATERIALS ON THIS WEBSITE, THE PRODUCTS, OR THE SERVICES EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
LIMITATIONS OF LIABILITY
IN NO EVENT SHALL MSI’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR THE PRODUCTS OR SERVICES AT ISSUE WITHIN THE PRIOR TWELVE (12) MONTHS. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. MSI DISCLAIMS ALL LIABILITY OF ANY KIND OF MSI’S LICENSORS AND SUPPLIERS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL MSI BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
YOU USE THE PRODUCTS AND SERVICES AT YOUR OWN RISK. YOU HAVE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND/OR EQUIPMENT USED IN CONNECTION WITH YOUR USE OF THE SERVICE, AND YOU AGREE TO HOLD MSI HARMLESS FROM, AND YOU COVENANT NOT TO SUE US FOR, ANY CLAIMS BASED ON YOUR USE OF THE SERVICE, INCLUDING CLAIMS FOR LOST DATA OR CONTENT, WORK DELAYS OR LOST PROFITS RESULTING FROM YOUR USE OF THE SERVICES.
THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
JURISDICTION AND CHOICE OF LAW
MSI controls and manages the Services from facilities in the United States of America. Unless otherwise stated, materials and content on the Services are presented solely for promoting Products and Services in the United States of America. Information published on the Products and Services may contain references to products, programs and services that are not announced or available in your country or region. We make no representation that such information, products, programs or services referenced on the Products or Services are legal, available or appropriate in your country or region.
These Terms shall be governed by and construed in accordance with the laws of the State of North Carolina and the United States of America, without giving effect to any principles of conflicts of law.
Mandatory, Bilateral Arbitration and Waiver of Class Actions
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
YOU AND MSI AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO YOUR USE OF THE SERVICES AND OR PRODUCTS, TO THIS AGREEMENT, OR TO THE CONTENT, ANY RELATIONSHIP BETWEEN US AND/OR ANY RECORDING ON THE SERVICES AND/OR PRODUCTS SHALL BE RESOLVED ONLY BY FINAL AND BINDING, BILATERAL ARBITRATION, except that (1) you may assert claims in small claims court in your county of residence within the United States if your claims qualify; and (2) this agreement to arbitrate does not include your or MSI’s right to seek injunctive or other equitable relief in state or federal court in Charlotte, North Carolina to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. The Federal Arbitration Act (the “FAA”), 9 U.S.C. § 1, et seq., and federal arbitration law apply to this Agreement and govern all questions as to whether a dispute is subject to arbitration.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms.
“Disputes” shall include, but are not limited to, any claims or controversies between you and MSI against each other related in any way to or arising out of in any way from this Agreement, the Services, the Products, and the Content, including but not limited to sales, returns, refunds, cancellations, defects, policies, privacy, advertising, or any communications between you and MSI, even if the claim arises after you or MSI has terminated Services or a user account. Disputes also include, but are not limited to, claims that: (a) you bring against our employees, agents, affiliates, or other representatives; or (b) MSI brings against you. Disputes also include, but are not limited to, (i) claims in any way related to or arising out of any aspect of the relationship between you and MSI, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (ii) claims that arose before these Terms or out of a prior set of Terms with MSI; (iii) claims that are subject to on-going litigation where you are not a party or a class member; and/or (iv) claims that arise after the termination of these Terms.
Before initiating an arbitration, you and MSI each agree to first provide the other a written notice (“Notice of Dispute”), which shall contain: (a) a written description of the problem and relevant documents and supporting information; and (b) a statement of the specific relief sought. A Notice of Dispute should be sent to: 7422 Carmel Executive Park, Suite 200, Charlotte, NC 28226, Attention: Legal Department, or emailed to firstname.lastname@example.org . We will provide a Notice of Dispute to you via the email address associated with your Nautic Alert account. You and MSI agree to attempt in good faith to resolve the Dispute prior to commencing an arbitration and not to commence an arbitration proceeding until a forty-five (45) day post-notice resolution period expires.
*Arbitration Process and Procedure *
If the parties do not reach an agreed upon solution within forty-five (45) days from the original Dispute Notice, then either party may initiate binding arbitration as the sole means to resolve claims, subject to these terms. Arbitration shall (1) be administered by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures then in effect (the “JAMS Rules”) and as modified by this agreement to arbitrate, including the rules regarding filing, administration, discovery, and arbitrator fees; (2) be conducted by a single, neutral arbitrator; and (3) take place in the county where you reside or any reasonable location within the United States convenient for you. To the extent that this agreement to arbitrate conflicts with the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards for Procedural Fairness (the “Minimum Standards”), the Minimum Standards in that regard will apply.
WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION. Further, unless both you and MSI expressly agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
If, for any reason, a claim proceeds in court rather than in arbitration, we each waive our right to a jury trial.
YOU THEREFORE UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND MSI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION FOR ANY CLAIMS COVERED BY THIS AGREEMENT.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
The JAMS Rules are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration/. Notwithstanding any JAMS Rules to the contrary or any other provision in the arbitration rules chosen, by agreement, to govern, you and MSI each agree that all issues regarding the Dispute are delegated to the arbitrator to decide. Further, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
If your claim does not exceed $10,000 (USD), you and MSI agree to waive an oral hearing by the arbitrator and the arbitration will be conducted solely on the basis of documents you and MSI submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. To the extent an oral hearing is requested by you or MSI, or deemed necessary by the arbitrator, you and MSI agree that the hearing will be conducted telephonically or videographically.
An arbitrator’s award will be a written statement of the disposition of each claim and will also provide a concise written statement of the essential findings and conclusions which form the basis of the award. The arbitrator’s decision and award is final and binding, with some limited court review under the FAA, and judgment on the award may be entered in any court of competent jurisdiction.
It is each parties’ responsibility to pay any JAMS filing, case management/administrative, and arbitrator fees as set forth in the JAMS Rules. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, MSI will pay the additional cost. If your claim for damages does not exceed $25,000 (USD) and you follow the dispute notice procedure set forth above, MSI will pay all such fees unless the arbitrator finds that either the substance of your Dispute or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in the Federal Rule of Civil Procedure 11(b)).
*Small Claims & Government Actions *
As an alternative to arbitration, you or MSI may resolve Disputes in a small claims court that has jurisdiction over your claim. These Terms and this arbitration agreement do not prevent you from bringing your Dispute to the attention of any federal, state, or local government agency. Such agencies can, if the law allows, seek relief against MSI on your behalf.
Opt Out Procedure
If you do not wish to be bound by the arbitration and class-action waiver provisions in these Terms, you must notify us in writing within thirty (30) days (or such longer period, if required by applicable law) of the date that you first accept these Terms. To opt out, please mail a notification including your name, the email address for your customer account, your mailing address, and a statement that you do not wish to resolve disputes with MSI by arbitration to Market Spectrum, Inc., 7422 Carmel Executive Park, Suite 200, Charlotte, NC 28226, Attention: Legal Department – Opt Out. Any opt out sent in accordance with this paragraph affects only these Terms, and shall not affect the other arbitration agreements between you and MSI (whether entered into before or after these Terms). If you do not opt out in writing in accordance with this paragraph, you agree to be bound by the arbitration and class-action waiver provisions of these Terms. If you opt-out of these arbitration provisions, MSI also will not be bound by them.
Changes to this Section
MSI will provide you with sixty (60)-days’ notice of any changes to this section. Changes will become effective on the sixtieth (60th) day, and will apply prospectively only to any claims arising after the sixtieth (60th) day. You may opt out of changes to this section after receiving notice of the changes by mailing a notice to Market Spectrum, Inc., 7422 Carmel Executive Park, Suite 200, Charlotte, NC 28226, Attention: Legal Department – Opt Out.
SEVERABILITY AND SURVIVAL
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership of intellectual property rights, and terms regarding disputes between us.
Please see our Privacy Notice for information regarding the collection and use of personal information collected through our Products and Services.
Despite any representations concerning privacy, MSI reserves the right to disclose without notice to you any information in its possession if required to do so by law or upon a good-faith belief that such action is necessary to comply with the law, to protect or defend our rights or property, or to respond to an emergency situation. Specific areas or pages of this website may include additional or different terms relating to the use of personal information collected from such areas or pages.
Questions concerning these Terms, requests for cancellation or refund of your Reporting Service or GEOS Emergency Response Service, or other requests or questions should be directed to the contact point specified at the end of these Terms.
Market Spectrum, Inc., 7422 Carmel Executive Park, Suite 200, Charlotte, NC 28226 or 800.385-1674.
NAUTIC ALERT PRODUCT AND SERVICES TERMS AND CONDITIONS
- DEFINITION OF “MSI” AND “NAUTIC ALERT PLATFORM” AND “SERVICES”
Market Spectrum, Inc. known herein as “MSI”, as used in these Customer Terms and Conditions (the “Customer Terms and Conditions”) is defined to include Market Spectrum, Inc., and their respective shareholders, directors, officers, employees, agents, parent companies, affiliates, subsidiaries, and subcontractors which include, without limitation, Nautic Alert (defined herein) and the Services (defined herein). FOR CLARITY, IT IS THE INTENTION OF THIS AGREEMENT THAT THE DISPUTE RESOLUTION, LIMITATION OF LIABILITY OF MSI AND SERVICES, THIRD PARTY INDEMNIFICATION FOR MSI AND SERVICES, WAIVER OF SUBROGATION FOR MSI AND SERVICES, WAIVER OF JURY TRIAL AND CLASS ACTION WAIVER CONTAINED IN THIS AGREEMENT (DEFINED HEREIN) INURE TO THE BENEFIT OF THE NAUTIC ALERT PLATFORM. FURTHER, YOU UNDERSTAND AND AGREE THAT THE NAUTIC ALERT PLATFORM AND SERVICES IS ENTITLED TO THE BENEFIT OF, RELY UPON, AND ENFORCE, THOSE CLAUSES, ALONG WITH ANY OTHER CLAUSE IN THIS AGREEMENT, IN THE EVENT OF ANY DEMAND, CLAIM, LAWSUIT, DISPUTE RESOLUTION OR OTHER LEGAL ACTION BY YOU OR ANY THIRD PARTY AGAINST THE NAUTIC ALERT PLATFORM.
“Nautic Alert Product(s)” as used in these Customer Terms and Conditions is defined as the Nautic Alert Platform, which includes Nautic Alert Insight X2, Nautic Alert Nevata, Nautic Alert XPulse, Nautic Alert XPulse Plus, and all other parts, components, devices and sensors manufactured by MSI at any time for use with Services.
“Services” as used in these Customer Terms and Conditions is defined to include Nautic Alert software, Nautic Alert application, Nautic Alert websites, My Insight website, Reporting Service and GEOS Emergency Response Service (as defined in Section VIII, below) available for use by the Customer.
- ENTIRE AGREEMENT
These Customer Terms and Conditions, along with Nautic Alert Terms of Service (the “Terms of Service”) FOUND HERE, are collectively referred to herein as the “Agreement.” The Nautic Alert Terms of Service contain additional terms and conditions that apply to you, including (except where prohibited by law) a DISPUTE RESOLUTION WITH AN ARBITRATION AGREEMENT, WAIVER OF JURY TRIAL AND WAIVER OF CLASS ACTIONS AND A CHOICE OF NORTH CAROLINA STATE LAW. Please thoroughly read and understand these Customer Terms and Conditions and the Nautic Alert Terms of Service before you electronically sign.
The Agreement contains the entire understanding between you and MSI relating to the subject matter hereof and replaces and supersedes any other representations, advertisements, marketing, literature, brochures, proposals, documents or discussions you had with MSI. The Agreement cannot be changed except in accordance with this Agreement, or a writing signed by both you and MSI. If any provision of this Agreement is found to be invalid, the remaining provisions are still effective. In the event of any irreconcilable conflict between the Customer Terms and Conditions and the Nautic Alert Terms of Service, the Customer Terms and Conditions shall control. YOU UNDERSTAND AND AGREE THAT THE AGREEMENT APPLIES TO YOUR CURRENT PURCHASE AND USE OF THE NAUTIC ALERT PLATFORM, AND YOUR PURCHASE AND USE OF ANY ADDITIONAL PRODUCTS AND SERVICES AT ANY TIME IN THE FUTURE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU WILL BE UNABLE TO USE THE NAUTIC ALERT PRODUCTS AND SERVICES AND YOU MAY RETURN THE NAUTIC ALERT PRODUCTS FOR A FULL REFUND.
III. CONSENT TO ELECTRONIC CONTACT
You consent to receive emails at the email address you provide MSI for any purpose relating to the Agreement including, without limitation, information relating to the Nautic Alert Platform, Nautic Alert Products, Services and any notifications from MSI as provided for, or permitted within, this Agreement (“Notification Purpose(s)”). You also consent to receive such information on your enabled wireless device (such as a smart phone or tablet) through the Nautic Alert application, or through a personal computer. Further, you agree that MSI may contact you at the telephone number you provided for any Notification Purpose, and that contact may be made using any method, including telephone calls, automatic telephone dialing systems, or text or email messages sent to your enabled wireless device. You also represent that when you provide us with a telephone number or an email address for yourself, your emergency contacts or any other third party, that you and any individuals for whom you have provided MSI with a telephone number or an email address consent to receive service-related text messages, telephone calls, and emails for any Notification Purpose. You will be responsible for any message and data rates that may apply. You agree to notify MSI immediately in the event of any change to any of the email addresses or telephone numbers you provided. You agree to regularly check your voice messages, text and e-mail messages for communications from MSI.
- LIMITATION OF LIABILITY OF MSI AND THE NAUTIC ALERT PLATFORM
YOU UNDERSTAND AND AGREE THAT THE NAUTIC ALERT PLATFORM AND SERVICES ARE DETECTION AND NOTIFICATION PRODUCTS AND SERVICES. THE NAUTIC ALERT PLATFORM AND SERVICES DO NOT ELIMINATE OCCURRENCES OF EVENTS, SUCH AS FIRES, FLOODS, BURGLARIES, ROBBERIES, AND MEDICAL ISSUES, AND YOU AGREE NOT TO PURCHASE OR RELY ON THE NAUTIC ALERT PLATFORM OR SERVICES TO SO ELIMINATE SUCH OCCURRENCES OF EVENTS. FURTHER, YOU UNDERSTAND AND AGREE THAT THE NAUTIC ALERT PLATFORM AND SERVICES MAY NOT AVERT OR MINIMIZE SUCH OCCURRENCES OF EVENTS, OR THEIR CONSEQUENCES, AND, THEREFORE, MSI MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) THAT THE NAUTIC ALERT PLATFORM AND SERVICES WILL SO AVERT OR MINIMIZE SUCH OCCURRENCES OF EVENTS, OR THEIR CONSEQUENCES.
YOU FURTHER AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF MSI OR THE NAUTIC ALERT PLATFORM IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF THE LIMITED WARRANTY HEREIN, NEGLIGENCE OF ANY KIND OR DEGREE OF MSI OR THE NAUTIC ALERT PLATFORM, STRICT PRODUCT LIABILITY, SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, OR ANY OTHER THEORY OF LIABILITY (EXCEPT WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OR GROSS NEGLIGENCE OF MSI OR THE NAUTIC ALERT PLATFORM IN THOSE STATES/PROVINCES THAT DO NOT PERMIT LIMITATION OF LIABILITY FOR GROSS NEGLIGENCE) ARISING FROM, OR RELATING TO, THIS AGREEMENT, THE NAUTIC ALERT PLATFORM AND SERVICES, THE MAXIMUM LIABILITY OF MSI AND THE NAUTIC ALERT PLATFORM WILL BE LIMITED TO THE GREATER OF (I) TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) USD; OR (II) FIVE (5) TIMES THE TOTAL CHARGES (EXCLUSIVE OF TAXES AND SHIPMENT) FOR THE NAUTIC ALERT PRODUCTS ONLY PURCHASED BY YOU, AND THIS LIABILITY SHALL BE SOLE AND EXCLUSIVE. THIS LIMITATION OF LIABILITY SPECIFICALLY COVERS LIABILITY FOR, AMONG OTHER THINGS, DIRECT DAMAGES, CONSEQUENTIAL DAMAGES, PERSONAL INJURY, LOSS OF LIFE, PROPERTY DAMAGE, ECONOMIC LOSSES, CROSS-CLAIMS AND OTHER CLAIMS FOR INDEMNITY AND CONTRIBUTION, AND THE CLAIMS OF THIRD PARTIES. NOTHING CONTAINED HEREIN SHALL BE CONSTRUED OR INTERPRETED IN A MANNER WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE.
- WAIVER OF SUBROGATION FOR MSI, THE NAUTIC ALERT PLATFORM AND SERVICES
You should protect against any risk of loss with the appropriate insurance coverage, and you are responsible for obtaining all insurance coverage you believe is necessary. To the fullest extent permitted by applicable law and the applicable policy or policies of insurance you obtain and maintain, you release MSI, the Nautic Alert Platform and Services from all liability for any loss, occurrence, event or condition covered by your insurance.
- THIRD PARTY INDEMNIFICATION FOR MSI AND THE NAUTIC ALERT PLATFORM
THIS AGREEMENT IS INTENDED ONLY FOR YOUR BENEFIT. THEREFORE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, RELEASE AND HOLD MSI AND THE NAUTIC ALERT PLATFORM HARMLESS FROM AND AGAINST (I) ALL CLAIMS, ACTIONS, LAWSUITS AND ANY OTHER LEGAL ACTION BROUGHT BY ANY THIRD PARTY AGAINST MSI OR THE NAUTIC ALERT PLATFORM ARISING FROM OR RELATING TO THIS AGREEMENT, REPORTING SERVICES, SECURITY SENSOR PRODUCTS, TELECOMMUNICATION, OR GEOS EMERGENCY RESPONSE SERVICE (A “THIRD PARTY ACTION”); AND (II) ANY AND ALL RELATED LOSSES, DAMAGES, SETTLEMENTS AND JUDGMENTS (INCLUDING PAYMENT OF ATTORNEYS’ FEES AND COSTS OF MSI AND THE NAUTIC ALERT PLATFORM) INCURRED BY, ASSESSED OR FOUND AGAINST, OR MADE BY MSI OR THE NAUTIC ALERT PLATFORM RELATING TO OR ARISING FROM ANY SUCH THIRD PARTY ACTION (“THIRD PARTY RELATED LOSSES”), EVEN IF SUCH THIRD PARTY ACTION AND THIRD PARTY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF ANY KIND OR DEGREE OF MSI OR THE NAUTIC ALERT PLATFORM, BREACH OF CONTRACT OR WARRANTY OR CONDITION, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT. NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. THIS INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF MSI OR THE NAUTIC ALERT PLATFORM OR GROSS NEGLIGENCE OF MSI OR THE NAUTIC ALERT PLATFORM IN THOSE STATES/PROVINCES THAT DO NOT PERMIT LIMITATION OF LIABILITY FOR GROSS NEGLIGENCE. “THIRD PARTY” IS DEFINED HEREIN TO INCLUDE ANY PERSON OR ENTITY WHO DID NOT ELECTRONICALLY SIGN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, A SPOUSE, FAMILY MEMBER, GUEST, NEIGHBOR, TENANT, EMPLOYEE OR INSURANCE COMPANY.
VII. LIMITED WARRANTY FOR NAUTIC ALERT PLATFORM
Limited Warranty This is a “Limited Warranty” which gives you specific legal rights to the fullest extent permitted by applicable law. You may also have other rights, which vary from jurisdiction to jurisdiction. Please keep your dated sales receipt; subject to applicable law, it is required for all Limited Warranty requests. Subject to applicable law, any dispute or controversy regarding this Limited Warranty arising from your use of your Nautic Alert Platform will be resolved by final and binding bilateral arbitration in accordance with the DISPUTE RESOLUTION section of MSI’s Terms of Service, FOUND HERE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS LIMITED WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. IF APPLICABLE LAW DOES NOT PERMIT MSI TO LAWFULLY DISCLAIM STATUTORY OR IMPLIED WARRANTIES, THEN TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH STATUTORY OR IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO THE WARRANTY PERIOD OF TWO (2) YEARS FROM THE DATE OF YOUR PURCHASE OF THE NAUTIC ALERT PLATFORM, OR TWO (2) YEARS FROM THE DATE OF RECEIPT OF YOUR REPLACEMENT NAUTIC ALERT PLATFORM COMPONENT(S).
What the Warranty Covers For a period of two (2) years from the date of your purchase of the Nautic Alert Platform, or two (2) years from the date of receipt of your replacement Nautic Alert Platform component(s) (see Purchase Protection Plan in Section iv. below for details), MSI will, at its sole option, repair or replace any part or component of the Nautic Alert Platform that malfunctions due to defective parts at no charge to you. This Limited Warranty is not transferrable or assignable by you and (subject to applicable law) applies only to the original consumer purchaser. MSI may, in its sole discretion, make any repair or replacement with new or refurbished parts or components. If the part or component requiring repair or replacement is no longer available, MSI may, in its sole discretion, replace such part or component with a similar part or component of similar features, functions and quality.
What the Warranty Does Not Cover The Limited Warranty shall not apply to any of the following causes and events: damage due to misuse, abuse, failure to follow instructions and specifications, negligence, casualty (e.g., fire) or acts of God (including but not limited to lightning, flood, tornado, earthquake, or hurricane), and consumable parts (including batteries) are not covered by this Limited Warranty. Unauthorized service or modification of the Nautic Alert Platform or any part or component will void this Limited Warranty in its entirety. This Limited Warranty does not include reimbursement for inconvenience, installation, loss of use, or unauthorized service. In addition, this Limited Warranty does not cover any losses, injuries to persons, loss of property or other monetary damages. This Limited Warranty does not apply if you purchase a pre-owned Nautic Alert Platform, purchase the Nautic Alert Platform from any unauthorized seller, or purchase of the Nautic Alert Platform from third party sellers on Amazon, eBay, or other online marketplaces. MSI strongly suggests that you do not buy the Nautic Alert Platform from any unauthorized sellers, as the Nautic Alert Platform may be used, defective, counterfeit or may not be designed for use in your location. This Limited Warranty covers only MSI Nautic Alert Platform components and is not extended to other equipment, components, or devices that a customer uses in conjunction with the Nautic Alert Platform.
Additional Circumstances that Voids the Warranty
This Limited Warranty shall be null and void in the following circumstances:
- Modification or repair of any covered product by the original owner or any non-authorized MSI service provider; or
- Improper use or installation, failure to conduct regular maintenance or cleaning, or damage by accident or neglect, of any covered product by the original owner or any third party; or
- Connecting product to an improper power source, voltage, or a faulty electrical system; or
- Failure of the original owner or any third party to exercise caution to protect any covered product from chemical substances not suitable for contact with product, or physical abuse; or
- Failure by the original owner to comply with product Instruction Manual enclosed with the product at the time of sale, or found at the nautic alert website; or
- Using the product with other equipment, in which other equipment is not designed or intended to operate with or to operate with other equipment for a purpose not intended by MSI.
How to Obtain Limited Warranty Service/Replacement
To obtain the benefit of the above Limited Warranty, please contact MSI for Nautic Alert support at: email@example.com or +1(800) 385-1674. For Limited Warranty requests: Please be prepared to describe the Nautic Alert Platform component that needs service, the nature of the problem and to provide proof of purchase. You will also be required to return your existing Nautic Alert Platform component in accordance with directions that will be provided by MSI. MSI has no warranty or other obligations with respect to any Product that is excluded from the Limited Warranty pursuant to Section iii, above, of this Limited Warranty, as reasonably determined by MSI, and you agree to arrange and pay for shipping to return the Nautic Alert Platform component(s) to MSI, and the shipping costs for MSI to return the serviced Nautic Alert Platform component(s) or replacement Nautic Alert Platform component(s) back to you. Any claim under this Limited Warranty must be submitted to MSI before the end of the Limited Warranty period described above; time being of the essence. Please allow up to fourteen (14) business days for your Limited Warranty request to be processed.
VIII. REMOTE ACCESS
You may choose to use the optional Reporting Service, My Insight web portal, or text messaging to remotely arm, disarm and check the status of your Nautic Alert Platform, receive real-time alerts, and utilize other features, functionalities and benefits of the Nautic Alert Platform using “Remote Access” through a compatible portable enabled electronic device, like a smart phone or tablet, or through a personal computer (the “Electronic Device”). It is your sole responsibility to assure that your Electronic Device is at all times compatible with Reporting Service, My Insight web portal, and text messaging.
When using Reporting Service, it is your responsibility to monitor your Nautic Alert Platform, or have another person you trust monitor your Nautic Alert Platform, and respond appropriately to all information and events received while using Reporting Service. It is likewise your responsibility to ensure that, while using Reporting Service, notifications from the Nautic Alert Platform (including any alarm event messages) can be relayed to you and your designated contacts. Further, it is your responsibility to determine the appropriate response to all information and events you receive while using Reporting Service, and you accept that you are entirely responsible for your response and that of your designated contacts. If your response to information and events while using Reporting Service incurs costs, you accept full liability for those costs. If you receive notice of any life/safety, property risk, fires, floods, burglaries, robberies, medical issues or other emergency events while using Reporting Service, you should immediately contact the police, fire department, 911 or appropriate emergency response service.
- GEOS EMERGENCY RESPONSE SERVICE
** i. The GEOS Emergency Response Service**
If you choose the Third-Party GEOS Emergency Response Service (“GEOS Emergency Response Service”), the GEOS International Emergency Response Coordination Center (“IERCC”) will, during the Term of the GEOS Emergency Response Service, monitor signals transmitted to it from your Nautic Alert Platform. You understand and agree that GEOS is a subcontractor of MSI, and GEOS and MSI are independent operating companies. There is no partnership, joint venture, employer/employee, master/servant, or other similar relationship between GEOS and MSI.
- Available with Certified and Approved Third Party Devices Only.
YOU UNDERSTAND AND AGREE THAT THE GEOS EMERGENCY RESPONSE SERVICE WILL ONLY WORK WITH THE NAUTIC ALERT PLATFORM. IF YOU HAVE SELECTED THE GEOS EMERGENCY RESPONSE SERVICE, YOU HEREBY RELEASE AND HOLD MSI AND GEOS HARMLESS FROM AND AGAINST ALL LIABILITY AND DAMAGES, INJURIES OR LOSS OF LIFE ARISING FROM, RELATED TO, OR CAUSED BY, YOUR INSTALLATION AND/OR USE OF ANY THIRD-PARTY DEVICES, EVEN IF SOLD BY MSI, THAT ARE NOT EXPRESSLY CERTIFIED AND APPROVED BY MSI TO BE COMPATIBLE WITH THE GEOS EMERGENCY RESPONSE SERVICE.
iii. Single Vessel Use Only
YOU HEREBY UNDERSTAND AND AGREE THAT GEOS EMERGENCY RESPONSE SERVICE IS INTENDED FOR USE ONLY ON A SINGLE VESSEL WHERE THE NAUTIC ALERT PLATFORM IS INSTALLED AND REGISTERED BY THE CUSTOMER THROUGH THE NAUTIC ALERT APP. (THE “REGISTERED VESSEL”). THE GEOS EMERGENCY RESPONSE SERVICE WILL NOT FUNCTION IF ANY OF THE NAUTIC ALERT PLATFORM COMPONENTS ARE INSTALLED OR USED AT ANY LOCATION OTHER THAN THE REGISTERED VESSEL. PLEASE BE WARNED THAT IF YOUR REGISTERED VESSEL IS NOT CORRECT OR CURRENT, EMERGENCY RESPONDERS MAY BE DISPATCHED TO THE INCORRECT VESSEL. IF YOU HAVE SELECTED THE GEOS EMERGENCY RESPONSE SERVICE, YOU HEREBY RELEASE AND HOLD MSI AND THE NAUTIC ALERT PLATFORM HARMLESS FROM AND AGAINST ALL LIABILITY AND DAMAGES, INJURIES OR LOSS OF LIFE ARISING FROM. RELATED TO, OR CAUSED BY, YOUR INSTALLATION AND/OR USE OF THE NAUTIC ALERT PLATFORM ON A VESSEL OTHER THAN YOUR REGISTERED VESSEL.
viii. Changes to the GEOS Emergency Response Service
MSI and GEOS may from time to time, in response to applicable law or otherwise, revise, replace, change, modify, discontinue or rescind certain policies or procedures relating to the GEOS Emergency Response Service and the response to listed signal codes. MSI shall endeavor to provide you with notification pursuant to Section III hereof of any such revisions, replacements, changes, modifications, discontinuance or rescission within a commercially reasonable period of time either before or after they are effective.
- False Alarm
In the event a fine, penalty or fee is assessed against you or MSI or to GEOS by any local government as a result of any false, excessive or other alarm condition or non-compliance with any local ordinance or standard intended to reduce false alarms not caused by the negligence or other wrongdoing of MSI or GEOS, you agree to be solely responsible for payment, and shall reimburse MSI and the GEOS for any such fines, penalty or fees. To the fullest extent permitted by applicable law, you hereby expressly authorize MSI to charge the payment card associated with your GEOS Emergency Response Service account the full amount of any such fine, penalty or fee.
*x. Changes to the System Elements *
PLEASE BE WARNED THAT IF YOU SWITCH OR CHANGE ANY OF YOUR SYSTEM ELEMENTS (AS DEFINED IN SECTION XI, BELOW), THIS MAY LEAVE YOUR NAUTIC ALERT PLATFORM UNABLE TO TRANSMIT SIGNALS TO THE GEOS INTERNATIONAL EMERGENCY RESPONSE COORDINATION CENTER (IERCC) AND, THEREFORE, THE GEOS EMERGENCY RESPONSE SERVICE WILL NOT WORK. It is your sole duty to assure that your System Elements are at all times compatible with your Nautic Alert Platform and properly functioning.
*xi. Use of Communications *
To the fullest extent permitted by applicable law, you hereby consent to the GEOS International Emergency Response Coordination Center (IERCC) intercepting, recording, retrieving, reviewing, copying, disclosing and using, for purposes of providing the GEOS Emergency Response Service, the contents of all telephone, video, wire, oral, electronic and other forms of transmission or communication to which you or your emergency contacts are parties.
xii. Force Majeure
The obligation to provide the GEOS Emergency Response Service shall immediately terminate, without prior notice, in the event of any of the following: (i) the telephone lines, network or equipment, other communications equipment, software, or physical facilities of the GEOS International Emergency Response Coordination Center (IERCC) are destroyed, damaged, or inoperable for any reason whatsoever; or (ii) any war whether declared or undeclared, fire, flood, extreme weather, accident, explosion, act of terrorism, governmental orders, regulations, restrictions or priorities, strike, lockout or other labor troubles, or any other cause beyond the absolute control of GEOS for the duration of the interrupted service. MSI shall provide you with notice pursuant to Section III hereof of such termination as soon as commercially reasonable following any such Force Majeure event.
- GEOS EMERGENCY RESPONSE SERVICE SUBSCRIPTION.
YOU UNDERSTAND AND AGREE THAT IF YOU DO NOT ENTER INTO A PAID SUBSCRIPTION FOR THE GEOS EMERGENCY RESPONSE SERVICE, THEN THE NAUTIC ALERT PLATFORM WILL NOT SEND EMERGENCY MESSAGES AND SIGNALS TO THE GEOS INTERNATIONAL EMERGENCY RESPONSE COORDINATION CENTER (IERCC).
- 4G LTE CELLULAR OR SATELLITE WIRELESS CONNECTIVITY.
The Nautic Alert Platform will not provide remote services including GEOS Emergency Response Service and notifications to you and third parties, and will not be accessible through remote access from Nautic Alert websites including test messaging, to and from your Nautic Alert Platform without:
(i) an active Reporting Service subscription; (ii) an active, current and properly completed Nautic Alert account with MSI; (iii) an enabled and supported wireless device; and (iv) proper installation of communication antenna providing a good signal or better between the Nautic Alert Platform and the 4G LTE network access point (cell tower) or the satellite global network access point. For 4G LTE signal to reach a network access point (cell tower), it is estimated that the maximum operating range is not greater than 10 miles from the vessel to the closest access point (cell tower); otherwise, the Reporting Service and the GEOS Emergency Response Service may not work due to no successful signal to the closest access point or a poor signal to the closest access point.
On occasions, the 4G LTE or Satellite wireless network can experience connectivity interruptions that are not within the control of MSI or the Nautic Alert Platform causing a transmission delivery failure of the notification or disruption to remote accessibility to your Nautic Alert Platform.
It is your responsibility to ensure that you have all required System Elements and that they are compatible and properly configured with your Nautic Alert Platform. You acknowledge that the Nautic Alert Platform may not work as described when the requirements and compatibility have not been met. If you change any of the required System Elements, it is your sole duty and responsibility to be sure they are compatible and properly configured to work with your Nautic Alert Platform and Reporting Service. If MSI receives notice that you failed to maintain the required System Elements, MSI may, in its sole discretion, elect to terminate the Reporting Service in accordance with Section XIII hereof.
Your Nautic Alert Platform may contain a SIM card. You agree not to use the SIM card except in your Nautic Alert Platform. Any violation of the restrictions on the use of the SIM card may, in MSI’s sole discretion, result in the termination of Reporting Service and GEOS Emergency Response Service in accordance with Section XIII hereof. In addition, if MSI detects unauthorized or excessive use of the Reporting Service or SIM card, you agree to reimburse MSI for all the data usage associated with the unauthorized or excessive use. You hereby expressly authorize MSI to charge the payment card associated with your account for all related unauthorized or excessive data charges. You understand and agree that neither MSI nor the Nautic Alert Platform are responsible for the operation or non-operation of any of your System Elements. You acknowledge and agree that the System Elements and 4G LTE and Satellite wireless connectivity are not error-free and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, poor to no signal to the wireless network, weather conditions, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, unavailability of radio frequency channels, system capacity, upgrades, repairs or relocations, and priority access by emergency responders in the event of a disaster or emergency (“Service Problem(s)”). Service Problems may result in an inability of your Nautic Alert Platform to send and receive notification messages and data to and from remote locations and, in such event, Reporting Service and GEOS Emergency Response Service will be unavailable for the duration of the Service Problem. Further, Service Problems may result in the Nautic Alert Platform being unreliable or unavailable for the duration of the Service Problem. Neither MSI, the Nautic Alert Platform, nor any wireless data carrier is responsible or liable for any such Service Problems.
SPECIFICALLY, REGARDING THE REPORTING SERVICE AND THE GEOS EMERGENCY RESPONSE SERVICE, YOU ACKNOWLEDGE THE WIRELESS DATA SERVICE IS MADE AVAILABLE ONLY WITHIN THE OPERATING RANGE OF THE 4G LTE AND SATELLITE WIRELESS NETWORKS. THE WIRELESS DATA SERVICE MAY BE TEMPORARILY REFUSED, INTERRUPTED, OR LIMITED BECAUSE OF: (A) FACILITIES LIMITATIONS; (B) TRANSMISSION LIMITATIONS CAUSED BY ATMOSPHERIC, TERRAIN, OTHER NATURAL OR ARTIFICIAL CONDITIONS ADVERSELY AFFECTING TRANSMISSION, WEAK BATTERIES, SYSTEM OVERCAPACITY, MOVEMENT OUTSIDE A SERVICE AREA OR GAPS IN COVERAGE IN A SERVICE AREA AND OTHER CAUSES REASONABLY OUTSIDE OF THE WIRELESS DATA CARRIER’S CONTROL SUCH AS, BUT NOT LIMITED TO, INTENTIONAL OR NEGLIGENT ACTS OF THIRD PARTIES THAT DAMAGE OR IMPAIR THE NETWORK OR DISRUPT SERVICE; OR (C) EQUIPMENT MODIFICATIONS, UPGRADES, RELOCATIONS, REPAIRS, AND OTHER SIMILAR ACTIVITIES NECESSARY FOR THE PROPER OR IMPROVED OPERATION OF SERVICE. CARRIER PARTNER NETWORKS ARE MADE AVAILABLE AS-IS. MSI AND THE WIRELESS DATA CARRIER MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE AVAILABILITY OR QUALITY OF ROAMING SERVICE PROVIDED BY CARRIER PARTNERS AND WILL NOT BE LIABLE IN ANY CAPACITY FOR ANY ERRORS, OUTAGES, OR FAILURES OF CARRIER PARTNER NETWORKS.
XII. DUTY TO PROPERLY INSTALL, TEST AND PROVIDE POWER TO YOUR NAUTIC ALERT PLATFORM.
It is your responsibility to install your Nautic Alert Platform in strict accordance with the instructions and specifications in the [User and Installation Manual]. IF YOUR NAUTIC ALERT PLATFORM IS NOT PROPERLY INSTALLED, OR IF YOUR NAUTIC ALERT PLATFORM COMPONENTS OR ANY OF ITS SENSORS ARE OUTSIDE THE DETECTION RANGE OR HINDERED OR OBSTRUCTED BY WALLS, FURNITURE, PERSONAL PROPERTY OR OTHER THINGS, YOU MAY EXPERIENCE FALSE ALARMS OR DETECTION FAILURES. It is your responsibility to test your Nautic Alert Platform once installed, and then regularly test and maintain your Nautic Alert Platform after installation. YOU UNDERSTAND AND AGREE THAT YOUR NAUTIC ALERT PLATFORM MAY NOT FUNCTION OR PROPERLY FUNCTION IF THERE IS INSUFFICIENT POWER OR NO POWER.
XIII. THE CUSTOMER’S DEFAULT
If you fail to perform your obligations under this Agreement (monetary or non-monetary), MSI will have the right, in its sole discretion, to terminate Reporting Service and GEOS Emergency Response Service. If MSI elects to do so, it will first notify you pursuant to Section III hereof, of your obligation failures and MSI’s intention to terminate the Reporting Service and the GEOS Emergency Response Service (the “Notice of Intention to Terminate”). You will have seventy-two (72) hours from the date the Notice of Termination is first sent to you to fully cure your performance failures (the “Cure Period”), time being of the essence. If you fail to timely do so, MSI may then, in its sole discretion, terminate the Reporting Service and the GEOS Emergency Response Service at any time after providing you notification in accordance with Section III hereof (the “Termination Notice”). The termination of the Reporting Service and GEOS Emergency Response Service will take effect within forty-eight (48) hours after the Termination Notice is first sent to you (the “Termination”). In the event of a Termination, and to the fullest extent permitted by applicable law, you agree to pay MSI, (a) all amounts then due, and (b) MSI’s reasonable collection costs, including attorneys’ fees and costs. In the event of a Termination of the Reporting Service and GEOS Emergency Response Service, no remote data and message notifications, or communication will thereafter be provided. If MSI waives any default or performance failures, MSI is not waiving other defaults. Any waiver by MSI must be in writing, and may not be implied by its actions or inactions. To the fullest extent permitted by applicable law, in the event of a Termination, you hereby expressly authorize MSI to charge the payment card associated with your account the full amount then due and MSI’s reasonable collection costs, including attorneys’ fees and costs, if applicable. Further, MSI reserves the right to terminate the Reporting Service and GEOS Emergency Response Service, with no further obligation to you (except payment for all amounts then due) in the event of: (i) excessive runaway and/or false signals, (ii) your failure to maintain or position antennas for a good or better signal, (iii) your wireless data usage being considered harmful or disruptive, or otherwise interfering with the wireless data carrier’s network or the ability to provide quality service to other customers, or (iv) the reasonable policies and procedures of the Nautic Alert Platform (collectively, the “Other Termination Reasons”). If MSI elects to terminate Reporting Service and GEOS Emergency Response Service for Other Termination Reasons, it will provide notice pursuant to Section III hereof (the “Termination Notice”). The termination of the Reporting Service and GEOS Emergency Response Service will take effect for the Other Termination Reasons within forty-eight (48) hours after the Termination Notice is first sent to you.
XIV. SUBCONTRACTING AND ASSIGNMENTS.
You cannot transfer or assign this Agreement without MSI’s consent; however, MSI can assign this Agreement or subcontract its obligations without your consent, including the Reporting Service and GEOS Emergency Response Service. If MSI does so, anyone to whom MSI assigns or subcontracts its obligations will receive the benefit of, and have the right to enforce, all the terms and conditions of the Agreement.
- LIMITATIONS OF THE NAUTIC ALERT PLATFORM
THE NAUTIC ALERT PLATFORM COMPONENTS MAY NOT BE INTENDED OR DESIGNED FOR OUTSIDE USE, UNLESS EXPRESSLY SPECIFIED FOR OUTDOOR USE IN THE SPECIFICATIONS FOR YOUR NAUTIC ALERT PLATFORM. PLEASE BE SURE TO READ THE SPECIFICATIONS FOR YOUR NAUTIC ALERT PLATFORM BEFORE USING YOUR NAUTIC ALERT PLATFORM COMPONENTS OUTDOORS.
XVI. NO THIRD-PARTY BENEFICIARIES
EXCEPT FOR THE NAUTIC ALERT PLATFORM, SUBCONTRACTORS AND ASSIGNEES AS PROVIDED FOR OR PERMITTED IN THIS AGREEMENT, THERE ARE NO THIRD-PARTY BENEFICIARIES TO THIS AGREEMENT.
XVII. MALWARE VULNERABILITY NOTICE AND WAIVER
Equipment that relies on wireless or internet connections or are connected to a network of any kind (such as security systems, communications equipment, cameras, wireless radios, access control, cloud storage, NAS storage, DVRs, NVR and other kinds of networkable security and other devices) may not be secure and may be exploited or hacked by malware and spyware variants (“Malware Vulnerabilities”). Malware Vulnerabilities may provide a gateway for a person with malicious intent the capability to arm or disarm your system or related equipment; view, extract, change, destroy, steal, disclose or alter your data, or the data of others; monitor and/or spy on your activities and the activities of others; cause internet and network outages; provide for unintended or unauthorized access by others to your network, or the network of others; and otherwise place people, property or data at risk. MSI MAKES NO WARRANTY OR REPRESENTATION THAT THE NAUTIC ALERT PLATFORM, THE REPORTING SERVICE, THE GEOS EMERGENCY RESPONSE SERVICE, THE NAUTIC ALERT WEBSITES OR TEXT MESSAGING IS SECURE, DOES NOT HAVE, OR IS NOT SUSCEPTIBLE TO, MALWARE VULNERABILITIES. MSI assumes no liability whatsoever for any Malware Vulnerabilities and, to the fullest extent permitted by applicable law, you agree to release and hold MSI harmless from any Malware Vulnerabilities and any related loss or damage of any kind or sort, even if caused by any breach of contract or negligence of any kind or degree of MSI (the “Malware Vulnerability Release”). If the Malware Vulnerability Release is not enforceable under applicable law for any reason, then the LIMITATION OF MSI’S LIABILITY in Section IV hereof shall apply to any losses or damages, of any kind or sort, arising from, or related to, Malware Vulnerabilities.
XVIII. SMART DEVICE STANDARDS/THIRD PARTY DEVICES.
Your Nautic Alert Platform may use various open or commonly available standards or means to communicate and work with smart or connected devices that are also similarly used by other systems or services not manufactured by MSI, including Z-Wave, Zigbee HA, Wi-Fi, Bluetooth, and IP devices. HOWEVER, SMART, CONNECTED OR OTHER THIRD-PARTY DEVICES (“THIRD PARTY DEVICES”) MAY NOT WORK WITH YOUR NAUTIC ALERT PLATFORM OR SERVICES, OR MAY HAVE LIMITED FEATURES OR FUNCTIONALITY, EVEN IF DESIGNED, SPECIFIED OR MARKETED TO OPERATE USING THE SAME OR SIMILAR STANDARDS OR MEANS OF COMMUNICATION.
MSI IS NOT RESPONSIBLE FOR, AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY RELEASE AND HOLD MSI HARMLESS FROM AND AGAINST, ALL LIABILITY AND DAMAGES, INJURIES OR LOSS OF LIFE ARISING FROM, RELATED TO, OR CAUSED BY, ANY ATTEMPT BY YOU TO CONNECT, OR YOUR CONNECTION AND USE OF, THIRD-PARTY DEVICES WITH YOUR NAUTIC ALERT PLATFORM OR SERVICES. FURTHER, MSI MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, RELATING TO ANY THIRD-PARTY DEVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR REPRESENTATION THAT ANY THIRD-PARTY DEVICE WILL PROPERLY AND SAFELY COMMUNICATE AND WORK WITH YOUR NAUTIC ALERT PLATFORM OR THE SERVICES, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE RELATING TO ANY THIRD-PARTY DEVICE. In addition, you agree MSI may terminate the Reporting Service or the GEOS Emergency Response Services pursuant to Section XIII hereof if MSI, in its sole discretion, believes the operation of any Third-Party Device causes or may cause an issue to your Nautic Alert Platform or the Services with MSI’s liability to you or others.
XIX. SMOKE ALARM AND CARBON MONOXIDE DETECTORS.
MSI MAKES NO WARRANTY OR REPRESENTATION THAT ANY SMOKE ALARM OR CARBON MONOXIDE DETECTOR SOLD BY MSI CONSTITUTES A FIRE ALARM SYSTEM OR MEETS THE REQUIREMENTS OF ANY STATE/PROVINCIAL OR LOCAL LAW, CODE, ORDINANCE, AUTHORITY HAVING JURISDICTION OR INDUSTRY STANDARD, SUCH AS NFPA 72. YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH THE REQUIREMENTS OF ANY APPLICABLE STATE/PROVINCIAL OR LOCAL LAW, CODE, ORDINANCE, AUTHORITY HAVING JURISDICTION OR INDUSTRY STANDARD THAT MAY APPLY TO THE INSTALLATION, USE AND SERVICE OF ANY SMOKE ALARM AND CARBON MONOXIDE DETECTOR SOLD BY MSI. SMOKE ALARMS ARE NOT TO REMAIN IN SERVICE LONGER THAN TEN (1O) YEARS FROM THE DATE OF MANUFACTURE AND, THEREFORE, YOU UNDERSTAND AND AGREE THAT YOU MUST REPLACE SMOKE ALARMS EVERY TEN (10) YEARS AT A MINIMUM, AND SOONER AS NEEDED. IF A SMOKE ALARM FAILS TO PROPERLY OPERATE DURING ANY TEST AT ANY TIME, YOU MUST STOP USING THE SMOKE ALARM AND REPLACE IT IMMEDIATELY.
- FOR USE ON REGISTERED VESSEL ONLY.
THE NAUTIC ALERT PLATFORM AND SERVICES ARE INTENDED FOR USE ONLY ONBOARD YOUR REGISTERED VESSEL. THE NAUTIC ALERT PLATFORM AND SERVICES MAY NOT FUNCTION, OR PROPERLY FUNCTION, IF ANY OF THE NAUTIC ALERT PLATFORM COMPONENTS ARE INSTALLED OR ANY OF THE SERVICES ARE USED AT ANY LOCATION OTHER THAN ONBOARD THE REGISTERED VESSEL. YOU HEREBY AGREE NOT TO INSTALL OR USE YOUR NAUTIC ALERT PLATFORM OR SERVICES AT ANY LOCATION OTHER THAN ONBOARD THE REGISTERED VESSEL. YOU HEREBY RELEASE AND HOLD MSI HARMLESS FROM AND AGAINST ALL LIABILITY AND DAMAGES, INJURIES OR LOSS OF LIFE ARISING FROM, RELATED TO, OR CAUSED BY, YOUR INSTALLATION AND/OR USE OF NAUTIC ALERT PLATFORM OR SERVICES AT A LOCATION OTHER THAN ONBOARD YOUR REGISTERED VESSEL.
XXI. MSI CUSTOMER SERVICE AND SUPPORT.
You understand and agree that any customer service and any customer care and support offered or provided by MSI is not a Monitoring Service, a 911 service or dispatch center, or an emergency service provider or dispatch service. PLEASE DO NOT CONTACT MSI CUSTOMER SERVICE OR ANY CUSTOMER CARE AND SUPPORT OFFERED BY MSI WITH ANY LIFE/SAFETY, PROPERTY RISK, FIRES, FLOODS, BURGLARIES, ROBBERIES, MEDICAL ISSUES OR OTHER EMERGENCIES. IF YOU HAVE ANY SUCH EMERGENCY. YOU SHOULD IMMEDIATELY CONTACT THE POLICE, FIRE DEPARTMENT, 911 OR APPROPRIATE EMERGENCY RESPONSE SERVICE.
XXII. BUSINESS ADDRESS, PHONE NUMBER AND EMAIL ADDRESS FOR MSI
MSI’s address and telephone number in the event you need to contact MSI:
Market Spectrum, Inc., 7422 Carmel Executive Park, Suite 200, Charlotte, NC 28226