READ THESE TERMS AND CONDITIONS CAREFULLY, AS THEY LIMIT COMPANY’S LIABILITY. DO NOT USE THE EXPAT911 APP IF YOU OBJECT TO ANY OF THE FOLLOWING PROVISIONS. IF YOU USE THE EXPAT911 APP, YOU ARE AGREEING TO ACCEPT EACH OF THE FOLLOWING PROVISIONS.
This Service Agreement (the “Agreement”) is effective as of the date (the “Effective Date”) indicated on the order confirmation (“Order Confirmation”) and is by and between EXPAT911.mx (the “Company”), and the person(s) whose name(s) appear(s) under the words “Member” on the Order Confirmation on the Expat911.mx site. “EXPAT911 APP” refers to the Company’s Smart Phone Application for Android, Iphone (s) and any other operating system provided to Member by the Company. Member’s smart phone or device where EXPAT911 APP is to be installed is herein known as “Member’s Device”.
READ THESE TERMS AND CONDITIONS CAREFULLY. THIS AGREEMENT CONTAINS IMPORTANT TERMS GOVERNING THE SERVICES PROVIDED BY THE COMPANY, YOUR RESPONSIBILITIES AND OUR OBLIGATIONS, AND INCLUDES LIMITS ON OUR LIABILITY, INDEMNITY AND OTHER IMPORTANT CLAUSES.
Section 1. Agreement to Provide Services and EXPAT911 APP. Company agrees to provide Member the EXPAT911 APP and monitoring services (the “Monitoring Services”) as described below, and Member agrees to make the payments, and perform the obligations, and be bound by the terms of this Agreement, as described below.
Section 2 Services to be Provided; Related Terms.
2.1 Installation of EXPAT911 APP. The Company will provide member with the EXPAT911 APP for Member’s Device via download which shall be in good operating condition. Member agrees to test the EXPAT911 APP and confirm that, upon registration and activation, the EXPAT911 APP works and contacts Company’s monitoring facility.
2.2 Description of Monitoring Services. The Monitoring Services provided by the Company consist solely of alerting the persons, entities or agencies (“Responders”) identified by Member upon receipt by a Company monitoring facility of data or other communication from the EXPAT911 APP reporting an event at the location (“Premises”) presented to the Company via the Global Positions System (GPS) that requires assistance (a “Response Condition”).
Following receipt of notice of a Response Condition, the Company will contact the Responders; provided, however, before alerting any Responders, Company may, in its sole and absolute discretion and without any liability, contact or attempt to contact the Member as frequently as the Company deems appropriate to verify the need to alert Responders to the Response Condition. After receiving oral advice from anyone at the Premises to disregard the Response Condition, the Company may, in its sole and absolute discretion and without any liability, call the Responders, or refrain from alerting the Responders or advise the Responders of the receipt of oral advice to disregard the Response Condition.
2.3 Ownership of EXPAT911 APP. The Company will at all times own the EXPAT911 APP.
2.4 Start of Service. Company makes no promise of commencement of Monitoring Services by any particular date. Monitoring Services will commence only after:
(i) all required information to be provided by Member is entered into the computer system for Company’s monitoring facility;
(ii) an acceptable test of the EXPAT911 APP is received by Company’s monitoring facility; and
(iii) Member has made the initial payment required by Section 4.1.
2.5 Use of Subcontractors. Company may, in its sole and absolute discretion, subcontract for the provision of any services to be provided under this Agreement.
2.6 Downtime and Repair. Following Company’s receipt of notice from Member that EXPAT911 APP is NOT working or NOT functioning properly, Company agrees, at its election, to provide support to help Member resolve the issue. Company makes no representation, promise, warranty or guarantee that there will be no interruptions of service or delay in providing support. All support and/or fixes of the EXPAT911 APP shall be performed only by the Company or its designated subcontractors. Company is NOT liable for downtime due to fixes or any other event causing EXPAT 911 APP to cease working.
2.7 Termination of Monitoring Services. The Company’s obligation to provide Monitoring Services shall terminate automatically as of the date the EXPAT911 APP is uninstalled from Member’s Device.
Section 3 Rights of Member.
3.1 Termination Within Thirty (30) Days (Full Refund). The Member, as applicable, whose credit card, bank account or other payment method is used for payment under Section 4.1 may terminate this Agreement at any time for any or no reason without penalty or obligation (other than charges for product incentives delivered to Member for subscribing) by deleting the EXPAT911 APP off Members Device within thirty (30) days of the date of this Agreement; provided, however, that such termination and payment of the refund:
(1) does NOT include any amounts designated as shipping, warranty or activation and
(2) will be made if the EXPAT911 APP and any product incentives delivered to Member for subscribing are returned to Company as provided in Section 4.6 within thirty (30) days of purchase. The refund will be reduced if the product incentives are not returned. Refunds will not be paid to Members who have not tested the EXPAT911 APP.
3.2 Termination At Any Time. The Member, as applicable, whose credit card, bank account or other payment method is used for payment under Section 4.1 may terminate this Agreement at any time for any or no reason, by notifying the Company of your intent to terminate the Agreement. Your payment obligation under Section 4.1 continues as provided in Section 4.4.
3.3 Authority. Member has the rights:
(i) to make changes to all information provided by or for the benefit of Member, including without limitation the names, contact data or other information of Responders, and the address and phone number for the Premises; and
(ii) to designate up to two additional persons to make changes to the information described in Section 3.3(i). The Member, as applicable, whose credit card, bank account or other payment method is used for payment under Section 4.1 has the authority to extend this Agreement or change the payment terms. Company has the right to rely on the information provided by Member or such other person without further inquiry.
3.4 Billing Statement. For any renewal period, Member has the right to receive from the Company a written billing statement upon Member’s written request.
3.6 Termination After Thirty (30) Days (No Refund). The Company shall have no obligation to make any refund if a Member terminates pursuant to Section 3.2; provided, however, that the Member remains obligated to delete EXPAT911 APP as provided in Section 4.6.
3.7 Termination Within Thirty (30) Days After One-Year Renewal (Partial Refund). The Member, as applicable, whose credit card, bank account or other payment method is used for payment under Section 4.1 may terminate this Agreement at any time for any or no reason without penalty or obligation (other than any fee designated as an activation fee and charges for product incentives delivered to Member for subscribing) by submitting email notice to the Company at email@example.com within thirty (30) days after the renewal date of this Agreement; provided, however, that such termination and payment of the refund will be made if the EXPAT911 APP is returned to Company as provided in Section 4.6 within ten (10) days of submitting the notice.
Section 4 Obligations and Acknowledgements of Member
4.1 Payment of Monitoring Service Fees and Other Amounts Due. Member authorizes Company to charge Member’s credit card on file or debit Member’s checking account, or other payment method designated by Member and accepted by Company from time to time:
(i) in advance for payment of the Monitoring Service Fee in the amount stated on the Order Confirmation for the initial term and thereafter the amount of such fee then in effect on the date of each renewal period;
(ii) late fees (if any); and
(iii) other amounts due under this Agreement, including without limitation amounts due under Section 4.6.
4.2 Late Fees. If a payment is not made for any reason (including an expired credit card or insufficient funds in a checking account), Member agrees to pay Company a late fee for the administrative costs Company incurs in the amount of $35.00 USD for each late payment, or such lower amount as may be permitted or authorized by law.
4.3 Credit Card Extensions. Member authorizes the Company, if a credit card is used for payment and the credit card company has extended the date, to update the credit card expiration date and continue billing the credit card.
4.4 Payments Due Upon Termination. Your obligation to make payments under Section 4.1 following termination pursuant to Section 3.2 shall continue until the later to occur of:
(i) if the termination occurs within the first two weeks of the month, the end of the current month;
(ii) if the termination occurs within the last two weeks of the month, the end of the succeeding month, and
(iii) the end of the month in which your EXPAT911 APP is deleted off Members Device.
4.5 Representations, Warranties and Covenants. Member warrant and covenant as follows:
(i) Upon receipt of the EXPAT911 APP, Member will review the User’s Guide and will contact the Company with any questions or concerns;
(ii) Member will provide information necessary for Company to establish response procedures and notifications and to notify promptly the Company if the names, contact data or other information changes;
(iii) Member will test the EXPAT911 APP monthly;
(iv) Member will notify the Company when the authorized credit card or bank account information for payment of charges under this Agreement changes.
Section 5 Agreements
5.1 False Alarms; Forced Entry Damages. If the Company receives notification of a Response Condition for any reason, Member shall:
(i) pay, without reimbursement from Company, and/or
(ii) reimburse Company, for any fines, fees, costs, expenses or penalties assessed against Member or Company by any court, governmental agency, or other applicable person. Member must provide prompt access to the Premises to Responders. If Member fails to provide access, Responders may use forcible means to enter the Premises, which may result in damage to the Premises, all of which damage, cost and expense shall be borne solely by Member without recourse to Company or Representatives. Company has no control over response times for Responders. Member hereby release Company and the Representatives for and from all claims, losses and damages that may arise from any forced entry or any delayed response by Responders.
Calls may be recorded to ensure there is a record of the emergency situation. Company takes this recording action to protect Members and insure there is a record that Company received call to action and followed through with responsibilities. In addition, recording actions insure Company has a report number for Members should responder’s not fulfill their responsibilities.
5.3 Waiver of Subrogation. Member waives any rights Members insurance company or any other person may have to be reimbursed by Company or Representatives for money paid to Member or on Member’s behalf.
5.4. Response Time. Company is NOT responsible for the amount of time Responders take to show up. Company can only make the report and will have a detailed record of the phone calls and report for the emergency with number. Reponse time by Responders depends on Government agencies to which Company has NO control Therefore, responsiblity for response time falls on said agencies and NOT on Company.
5.5 Indemnification. If anyone other than Member, including Member’s insurance company, asks Company or Representatives to pay for any loss, damage, cost or expense (including economic losses, property damage, personal injury, or death) arising out of or from, in connection with, related to, as a consequence of, or resulting from any reason, including:
(1) the active or passive, sole, joint or several negligence of any kind or degree of Company or any of the Representatives,
(2) the improper operation of the EXPAT911 APP or the failure of the EXPAT911 APP or the Company’s system to operate,
(3) a breach of contract, or
(4) any claims for subrogation, indemnification or contribution, Member agrees to defend, indemnify and hold Company or its Representatives harmless (without any condition that Company or Representatives first pay) from any and all such loss, damage, cost and expense, including attorneys’ fees, which may be asserted against or incurred by Company or any of the Representatives in connection with any and all such claims to the fullest extent permitted by applicable law.
Members duty to indemnify, including the cost and duty to defend and hold Company and its Representatives harmless shall include all of the Company’s personnel-related costs, overhead, experts’ fees, actual attorney’s fees, court costs and all related expenses, including all fees and costs incurred to enforce and establish rights under this indemnification provision.
5.6 Default. If Member breaches this Agreement, without limiting Company’s rights, and without any further notice, Company may retain all prepayments and you shall immediately pay Company:
(a) all payments then due and payable,
(b) eighty percent (80%) of all payments that would become due for the unexpired term as agreed upon damages and not as a penalty, and
(c) if the EXPAT911 APP is not deleted off Members Device, or is damaged or not in good operating condition, Member shall pay the Company for the EXPAT911 APP at the Company’s then-existing rates as the agreed upon cost of replacing the EXPAT911 APP; and Company shall have no further obligation to perform under this Agreement.
5.7 Company Appointed as Member’s Agent. Member appoints Company as Members agent for Company, in Company’s name, to give information and direction to Responder, directly or via any subcontractor of Company, as if done by Member in your Member’s own right, concerning any and all matters arising out of or from the performance of Monitoring Services. In addition, you authorize Company and its subcontractors and Responders to enter onto the Premises to inspect, test, repair, replace or modify the EXPAT911 APP while Member is at home. Member may revoke this authority by terminating this Agreement as provided in Section 3.1 or 3.2. No revocation or termination notice shall affect anything done by:
(a) Company in reliance hereon or
(b) prior to actual receipt by Company of termination of this Agreement or revocation.
Section 6 Limitations on Company’s Liability and Responsibilities
6.1 No liability for Phone Lines, Net Service, or Other Connectivity. Due to the potential for service interruption or outages on phone lines, internet service or mobile phone systems or other communication systems, none of which are within the control of the Company, Member’s connection to the Company’s monitoring center is not guaranteed. In addition, the Company will have no liability to Members who subscribe for mobile alert emergency devices (“Mobile Devices”):
(1) when Mobile Devices are out of the service area of the network provider;
(2) if the Help / SOS Button on the Mobile Device is reprogrammed so that it does not call 911 or the Company’s monitoring center; or
(3) if emergency responders are unable to locate the Member because mobile devices do not have a GPS or remote tracking device enabled. Members who use cable or Voice over Internet Protocol (VOIP) for their service are subject to additional consistency and reliability issues. The Company is not responsible for, and shall have no liability with respect to, service interruption, outages or failure of customer’s telephone service.
(4) if user has not completed the steps to fully register their account and set up their profile. Once the user has set up the profile, we always ask for a test alert and test chat. The client is not covered until we have completed all of these tests and confirmed by email that the tests were successful. At that time, the member is now placed on the main network. Failure to finalize the set up process and test the service will result in the member not being added to the main network with the emergency operators.
6.2 Not Insurance. Company is not an insurer. The monitoring service fee is based solely upon the services Company provides hereunder and is premised and conditioned upon Company’s limitation of liability and other rights arising under the risk allocation clauses contained in this Agreement. Accordingly, you should maintain insurance in an amount and with coverages sufficient to provide full and complete coverage for any loss, damage or expense that may be sustained by you, your family or others who may be on or adjacent to the Premises, including medical insurance, disability insurance, life insurance and property insurance.
6.3 LIMITATION OF LIABILITY. IF ANY CLAIM IS MADE OR LIABILITY IS ASSESSED AGAINST THE COMPANY, ANY OF ITS PRESENT OR FORMER DIRECT OR INDIRECT SHAREHOLDERS, MEMBERS OR PARTNERS, OR ANY PRESENT OR FORMER OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, TRUSTEE, REPRESENTATIVE, AGENT, AFFILIATE, SUBSIDIARY, PREDECESSOR, SUCCESSOR, ASSIGN, BENEFICIARY, HEIR, EXECUTOR, INSURER, ATTORNEY OR EMPLOYEE OF ANY OF THEM (COLLECTIVELY, “REPRESENTATIVES”) FOR ANY LOSS, DAMAGE, COST OR EXPENSE FOR PERSONAL INJURY OR DEATH, PROPERTY DAMAGE, FINE, ASSESSMENT OR ANY OTHER LOSS, DAMAGE, COST OR EXPENSE, INCLUDING ANY ECONOMIC LOSSES, OR OTHER LIABILITY ARISING OUT OF OR FROM, IN CONNECTION WITH, RELATED TO, AS A CONSEQUENCE OF, OR RESULTING FROM THIS AGREEMENT OR THE PERFORMANCE BY COMPANY OR ITS REPRESENTATIVES OF ITS OBLIGATIONS HEREUNDER, INCLUDING THE:
(1) ACTIVE OR PASSIVE, SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF COMPANY OR ANY OF THE REPRESENTATIVES, WHETHER BEFORE OR AFTER THE SUBSCRIBER’S OR PAYER’S ACCEPTANCE OF THIS AGREEMENT,
(2) IMPROPER OPERATION OF THE EXPAT911 APP OR THE FAILURE OF THE EXPAT911 APP OR THE COMPANY’S SYSTEM TO OPERATE,
(3) BREACH OF CONTRACT, OR
(4) ANY CLAIMS FOR SUBROGATION, CONTRIBUTION OR INDEMNIFICATION, ANY AND ALL SUCH LIABILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF $500.00 USD, COLLECTIVELY FOR COMPANY AND THE REPRESENTATIVES. NEITHER COMPANY NOR THE REPRESENTATIVES SHALL BE LIABLE FOR ANY GENERAL, DIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
6.4 Limited Warranty. If the EXPAT911 APP becomes inoperable due to a defect in materials, workmanship or design, Company will do all it can to provide support to Member to delete EXPAT911 APP off Members Device and re-install newest last known version of EXPAT 911 APP that works.
If the battery on the transmitting device needs to be replaced or Members Device does NOT work, the respondibility to resolve belongs exclusively with Member
This warranty does not cover damage caused by accident, vandalism, negligence or mistake, violation of the installation and use requirements, flood, water, lightning, fire, intrusion, abuse, misuse, acts of god, casualty (including electricity), attempted unauthorized repair service, modification or improper installation by anyone other than the Company or its authorized subcontractors, or any other cause (excluding ordinary wear and tear). Member acknowledges that, except as expressly set forth in this section 6.4:
(1) any affirmation of fact or promise made by Company shall not be deemed to create an express warranty;
(2) the Company does not make any representation or warranty, including any implied warranty or merchantability or fitness, that the EXPAT911 APP or Monitoring Services may not be compromised or circumvented;
(3) the EXPAT911 APP or Monitoring Services will in all cases be used by Member for the signaling, monitoring and response for which it was intended;
(4) there are no express warranties that extend beyond those stated in this Agreement, and
(5) all implied warranties, if any, coincide with the duration of this warranty. Some states do not allow limitations on how long an implied warranty lasts or the exclusion or the limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This warranty gives you specific legal rights and you may also have other rights that may vary from state to state.
6.5 Suspension or Interruption of Service. All of Company’s obligations are automatically suspended without notice to Member and member hereby waives all claims and release Company for all liability, loss, damage and expense:
(i) in the event of a breach of this Agreement by Member, or
(ii) if the monitoring facility, communications EXPAT911 APP or network or the Monitoring Services are destroyed, damaged, inoperable or malfunctions for any reason whatsoever. In each such event, the duration of such suspension shall be until the reason for the suspension is cured. Except for any suspension of service due to a breach of this Agreement by Member, Member shall be entitled to reimbursement of the unearned charge paid for the period of the suspension on your timely request and this shall be the limit of Company’s liability. A request for reimbursement of unearned charges is timely if it is made within forty-five (45) days following the interruption of service.
Section 7 Disputes, Controversies and Claims
7.1 Mediation; Arbitration; No Class Action Claim. If any controversy or claim arises out of or relates to the Agreement or the breach thereof, the parties agree first to try in good faith to settle the dispute by mediation using any mediator as may be mutually agreed by the parties. If the parties do not resolve the controversy or claim through mediation within 60 days, then either party may, upon notice to the other, submit the controversy or claim, including without limitation any issues arising from any claims under the Agreement or the requirement for arbitration, and all related questions or differences, to binding arbitration using an arbitration company based in Mexico and chosen by Company.
No arbitration under this Agreement may be maintained on behalf of a “class” of plaintiffs or multiple customers. The parties shall mutually accept the arbitrator chosen by Company.
The arbitration may take place by phone or other electronic means and shall be governed by the laws of Mexico. The arbitrator’s order must be consistent with the provisions of this Agreement.
7.2 Waiver of Trial; Venue. Member and Company each waive the right to trial in any suit, action or other legal proceeding in connection with this Agreement. This trial waiver cannot be revoked. Any suit, action or other legal proceeding arising out of or relating to this Agreement shall be brought exclusively in the federal courts of record or the courts of Mexico located in the district or state where the Company’s principal place of business is located. Member and Company each consent to the exclusive jurisdiction and venue of each such court in any such suit and waive any objection Member may have to jurisdiction or venue of any such suit.
Section 8 Term and Termination of the Agreement
8.1 Term and Renewal. The initial term of this Agreement is from the Effective Date through the end of the time period indicated on the Order Confirmation. After the initial term, this Agreement shall renew automatically for equal, successive time periods, unless terminated pursuant to the terms of this Agreement.
8.2 Termination by Member. This Agreement may be terminated by Member pursuant to Sections 3.1 or 3.2.
8.3 Termination by the Company. The Company may terminate this Agreement at any time for any or no reason upon ten (10) days notice to Member. If the Company terminates this Agreement where Member has not breached Member obligations, the Company will refund any unearned and prepaid service charges.
Section 9 Other Applicable Terms (miscellaneous)
9.1 Governing Law. This Agreement shall be governed by and construed according to the laws of Mexico.
9.2 Assignment. This Agreement is not assignable by Member. This Agreement or any portion thereof is assignable by Company in its sole discretion.
9.3 No Waiver of Breach. Any waiver of any breach of this Agreement, by Member or the Company, shall not be construed as a waiver of any subsequent breach. Member rights and Company’s rights hereunder shall be cumulative, and any rights hereunder may be exercised concurrently or consecutively and shall include all remedies available even though not expressly referred to herein.
9.4 Valid Agreement. If any provision of this Agreement, or its application to any circumstances, be held illegal, invalid or unenforceable to any extent, the validity and enforceability of the remainder of the provision and this Agreement, or of such provisions as applied to any other circumstances, shall not be affected thereby, and shall remain in full force and effect as valid, binding and continuing. Following termination of this Agreement, Sections 4.5, 4.6, 5.4, 5.5, 6, 7 and 9 of this Agreement shall survive termination and continue to apply to Member and the Company.
9.5 Contractual Limitation of Actions. All claims, actions or proceedings by or against Company or Representatives must be commenced in court within one (1) year after the cause of action has accrued, without judicial extension of time, or said claim, action or proceeding is barred. The time period in this paragraph must be strictly complied with.
9.6 Headings; Interpretation. The paragraph titles used herein are for convenience of the parties only and shall not be considered in construing the provisions of this Agreement. In this Agreement, the word “including” is not a word of limitation but means “including, without limitation or example.” The interpretation of this Agreement shall not be construed against the drafter.
9.7 Electronic Media. A copy of this Agreement transmitted and delivered by original, facsimile or e-mail or published on Company web site shall be originals for all purposes. Company may scan or convert this Agreement into an electronic or digital file and a copy of this Agreement printed from such file shall be given the same legal force and effect as the original.
9.8 Integrated Agreement; Modifications. This Agreement contains the entire agreement between Member and Compan concerning the EXPAT911 APP and Monitoring Services to be provided to Member and supersedes all prior or current negotiations, commitments, contracts, express or implied, warranties, express or implied, statements and representations, written or oral, pertaining to such matters, all of which are merged into this Agreement. NO PERSON ACTING ON THE COMPANY’S BEHALF HAS ANY AUTHORITY TO MAKE OR CLAIM ANY REPRESENTATION, TERM, PROMISE, CONDITION, STATEMENT, WARRANTY, OR INDUCEMENT (COLLECTIVELY, “INDUCEMENT”) NOT EXPRESSLY STATED IN THIS AGREEMENT. BY EXECUTING THIS AGREEMENT OR USING THE EXPAT911 APP AND MONITORING SERVICES, MEMBER REPRESENTS THAT MEMBER IS NOT RELYING ON ANY INDUCEMENT THAT IS NOT EXPRESSED IN THIS AGREEMENT.
9.9 Amendments. From time to time, upon not less than thirty (30) days prior notice to you, Company may modify this Agreement. Member continued use of the EXPAT911 APP, or payment of amounts due under this Agreement, after the date specified in the notice shall constitute your acceptance of the amendment and you shall thereafter be bound by the terms of this Agreement as so amended.
9.10 Notices. Any notice under this Agreement may be provided by a party to this Agreement in written format, whether delivered by Mexico Post Office, Fed Ex or other delivery service or by electronic means to the email address or other electronic address or device stated on the Order Confirmation.