Last Updated: March 11, 2011
1. Acceptance
IMPORTANT, PLEASE READ THESE TERMS OF USE VERY CAREFULLY BEFORE USING THE SERVICES.
By clicking on "Accept" or checking the box corresponding thereto, you will be bound to the following (as applicable) with regard to your use of the Services: (i) this Agreement; and (ii) the Disclaimer and Privacy Policy. IF YOU HAVE SUBSCRIBED TO THE SERVICES FROM AN AUTHORIZED RESELLER OR AUTHORIZED DEALER, THESE TERMS AND CONDITIONS SHALL APPLY SUBJECT TO THE LIMITATIONS OF THE PARAGRAPH ABOVE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THE PREVIOUS POLICIES AND ALL OF THE TERMS AND CONDITIONS BELOW, THEN YOU MAY NOT USE THE SERVICES AND YOU SHOULD DISCONTINUE IMMEDIATELY ANY USE OF THE SERVICES.
2. Member Eligibility
In order to create an account through the Sites, you must be a member (the "Customer") of SecuraChild Services (the "Member") or an authorized user of the Services who has been authorized by a certain Customer to create an account ("Authorized User") linked to such Customer's Account ("Authorized User Account"). Except as otherwise expressly stated herein (e.g., billing), Customers and Authorized Users shall be jointly and severally responsible for and liable for all the terms and conditions of this Agreement with respect to a Customer Account.
You must be over the age of 18 to purchase the Services and/or create or use a Customer Account or Authorized User Account (see below). Under no circumstances may a child under the age of 18 subscribe to the Services or create a Customer Account or Authorized User Account. However nothing contained herein shall prevent a child under the age of 18 (or under the age of 13) from using the Products for the Product's intended purposes, provided that the child has obtained Customer's permission and permission from his or her parent or guardian. Further, nothing contained herein shall prevent a child under the age of 18 (as long as such child is not under the age of 13) from becoming an Authorized User or using an Authorized User Account or the Site, provided that the child has obtained Customer's permission and permission from his or her parent or guardian.
3. Customer Accounts
When a Customer subscribes to Services through the Sites or otherwise from SecuraChild, or have subscribed through an authorized reseller or authorized dealer and have been directed to create a Customer Account by such third party, a Customer provides us with certain information including, without limitation, name, email address, phone number, a credit card, billing address and a password chosen by the Customer (collectively, the "Customer Credentials") that identifies you as a Customer. These Customer Credentials submitted by you will be used in accordance with the SecuraChild Privacy Policy.
By creating a Customer Account, you agree to the following:
You will provide accurate, current, and complete Customer Credentials about you as may be prompted by any registration forms on the Sites, and to keep the Customer Credentials current and complete, including without limitation the emergency contact phone numbers in your Customer Account. You will maintain the security of your Customer Account password and identification and not disclose your password to any third party; You will be fully responsible for all use of your Customer Account and for any actions that take place using your account. Unless expressly permitted by the Company, you may not register for more than one Customer Account, register for or manage a Customer Account on behalf of an individual other than yourself, or register for a Customer Account on behalf of any group or entity. Notwithstanding the foregoing, the Company authorizes you to register for more than one Customer Account if an Authorized User Account for Services in connection therewith is to be used for a family member or any person who you are the legal guardian and caretaker, provided that you shall remain the Customer and you shall be responsible for complying with and assuring that such other person complies with the terms of this Agreement and the other agreements incorporated herein. You understand and acknowledge that you have no ownership rights in your Customer Account, and that if you cancel your Customer Account or if your Customer Account is deactivated for any reason, you (and any person you authorize to use the Services) may lose all your account information as well as any other information linked to such account. Customer must be a legal resident of the United States at the time of purchase to create a Customer Account and to continue to use the Services. In the event Customer changes his or her country of residence, different terms may apply in addition to this Agreement, and Customer agrees to immediately notify the Company of any changes of country of residence (or change the account information associated with the account if such new country of residence is available as a choice).
4. Authorized User Account
An Authorized User Account has limited features. For example, an Authorized User Account provides for no management of the Services. If you have been authorized to create an Authorized User Account by a Customer, your Authorized User Account will be fully accessible by such Customer. Creating an Authorized User Account will not allow you to access the Customer Account to which your Authorized User Account is linked.
When you create an Authorized User Account, you provide us with certain information including, without limitation, name, email address, phone number, and a password chosen by the Authorized User (collectively, the "Authorized User Data"). This Authorized User Data submitted by you will be used in accordance with the SecuraChild Privacy Policy. By creating an Authorized User Account, you agree to the following: You will provide accurate, current, and complete Authorized User Data about you as may be prompted by any registration forms on the Sites, and to keep the Authorized User Data current and complete. You will maintain the security of your Authorized User Account password and identification and not disclose your password to any third party; You will be fully responsible for all use of your Authorized User Account and for any actions that take place using your Authorized User Account. You understand and acknowledge that you have no ownership rights in your Authorized User Account, and that SecuraChild or the Customer linked to your Authorized User Account may cancel your Authorized User Account at any time for any reason. If you cancel your Authorized User Account or if your Authorized User Account is deactivated for any reason, you may lose all your account information. Authorized User must be a legal resident of the United States at all times during access and use of the Authorized User Account. In the event Authorized User changes his or her country of residence, different terms may apply in addition to this Agreement (to both Authorized User and Customer), and Customer and Authorized User each agrees to immediately notify the Company of any changes of country of residence (or change the account information associated with the account if such new country of residence is available as a choice).
5. Member Conduct
You must use the Sites and the Services only in a manner that is consistent with the intended purpose of the Sites and the Services and in accordance with this Agreement. You agree that you will not use the Sites or the Services for any illegal purpose. You are prohibited from facilitating the violation of any part of this Agreement or from utilizing the Sites or the Services to violate another provider's terms of use.
a. Inappropriate Content. You shall not use the Sites or the Services in order to transmit, distribute or store material: (i) that would constitute, encourage, promote, facilitate or instruct others to engage in illegal activity, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law; (ii) that may adversely affect the Sites or the Services, the Company, or any SecuraChild users; or (iii) that may expose the Company, or its licensors to criminal or civil liability.
b. Intellectual Property. You shall not use the Sites or the Services in any manner that would infringe, dilute, misappropriate, or otherwise violate any publicity, or other personal rights and intellectual property rights, including but not limited to, copyrights and rights derived from laws protecting patents, trademarks, trade secrets or other proprietary information. You further agree that you shall not use automated scripts to collect information from, or to otherwise interact with, the Sites or the Services.
c. Harmful Actions and Content. You shall not restrict, inhibit, or otherwise interfere with the ability of any other person to use or enjoy the Sites or the Services, regardless of intent, purpose or knowledge. You shall not use the Sites or the Services to transmit, distribute or store material that may be harmful to or interfere with the Sites or any third party's networks, systems, services, or websites. Such prohibited harmful content includes, but is not limited to, viruses, worms, or Trojan horses, or any other computer code, files, or programs designed to interrupt, destroy, overburden, or limit the functionality of any computer software or hardware or telecommunications equipment. You shall not use the Sites to impersonate any person or entity, forge anyone else's digital or manual signature, or perform any other similar fraudulent activity (for example, "phishing"). You shall not use the Sites to falsely state or otherwise misrepresent yourself, your age, or your affiliation with any person or entity, nor shall you express or imply that any statements you make are endorsed by the Company.
d. Unsolicited Communications. You shall not use the Sites to transmit unsolicited e-mail messages, including, without limitation, unsolicited bulk email, where such emails could reasonably be expected to provoke complaints ("Spam"). Further, you shall not use the service of another provider to send Spam to promote the Sites, or any portion thereof. In addition, you shall not use the Sites in order to send e-mail with forged TCP/IP packet header information or send malicious e-mail, including, without limitation, "mail-bombing".
e. False Communications. You shall not intentionally or for any reason report a missing child report that is false or otherwise inaccurate. Further, you shall not use the service to trigger missing child actions or alerts or related activities that may reasonably be known to occur in such situations.
6. Cancellation and Termination by Customer
If Customer would like to cancel or terminate a membership through any of the policies in this Section 6, Customer should first call SecuraChild Customer Care at 888-267-6147, extension 4 or send us an email at support@securachild.com. The following policies and additional procedures shall apply to cancellation or terminations of membership. Only Customers may follow the procedures set forth in this Section 6, and Authorized Users are not permitted to take any of the actions contemplated under this Section 6. You may cancel your membership at any time. SecuraChild will permanently delete all images, video and other "attached" or "uploaded" content related to your member account at the time of cancellation. Your entered content will be removed from the active files and all personally identifiable information removed upon cancellation.
7. Termination of Services by SecuraChild
SecuraChild may terminate this Agreement at its sole discretion, at any time, for any reason or no reason, without prior notice to you, whether you purchased the Services directly from SecuraChild or though and authorized reseller or authorized dealer. SecuraChild reserves the right to report members to local law enforcement for any actions generally understood to be illegal.
8. Network Service Coverage and Interruption of Network Service Coverage
SecuraChild Services are provided with the aid of the Internet. SecuraChild cannot and will not take any responsibility for member Internet connectivity speed, quality or stability. Further, SecuraChild cannot and will not be responsible for any Internet connectivity issues that may arise between SecuraChild data centers and those that support our members or other information distribution and social networks such as Facebook, Twitter and others upon which our information may be disseminated. Notwithstanding the foregoing, if the Network Service Coverage is interrupted for twenty-four (24) or more continuous hours SecuraChild may, at its sole discretion, issue an SMS or email based alert advising you of the interruption and any information as to the restoration of services.
9. Customer Credentials Stolen
If your Customer Credentials are lost, stolen, or otherwise compromised you must contact us immediately at 888-267-6147, extension 4 or by email at support@securachild.com to report the loss or theft. After you report the theft or loss to us, you remain responsible for complying with all obligations under this Agreement including, but not limited to, false missing child reports and other such contradictions of this Agreement.
10. Changes to Terms
We may change any terms, conditions, rates, fees, expenses, or charges regarding the Services at any time, including without limitation any terms, conditions, rates, fees, expenses or charges in connection with the authorized form of customer agreement by and between you and an authorized reseller or authorized dealer. We will provide Customer with notice of such changes (other than changes to governmental fees, proportional charges for governmental mandates, roamer rates or administrative charges) by whichever form of notice under Section 19 of this Agreement which SecuraChild determines to be most practicable. Customer understands and agrees that State, Federal, and other governmentally imposed fees, whether or not assessed directly upon Customer, may be increased based upon the government's or our calculations. IF WE INCREASE THE PRICE OF ANY OF THE SERVICES TO WHICH CUSTOMER HAS PURCHASED, AS SUCH PRICES ARE SET FORTH ON THE SITES, AT THE TIME OF PURCHASE OR BY AN AUTHORIZED RESELLER OR AUTHORIZED DEALER, OR IF WE MATERIALLY DECREASE THE GEOGRAPHICAL AREA IN WHICH CUSTOMER'S NETWORK SERVICE COVERAGE APPLIES, WE WILL NOTIFY YOU OF THE CHANGE IN ADVANCE. This Section 10 is not applicable to those solely acting as Authorized Users.
11. License Grant
Subject to the terms and provisions of this Agreement, and so long as you fully comply at all times with this Agreement, SecuraChild grants you a non-exclusive and limited license to use the Services for the personal purpose for which the Products were intended for. In exercising your limited rights hereunder, your use of the Services shall comply at all times with all applicable laws, regulations, ordinances, and statutes. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Products and all rights not expressly granted are reserved by SecuraChild and its licensors.
12. No Support or Upgrade Obligations
The Company is not obligated to create or provide any support, corrections, updates, upgrades, bug fixes and/or enhancements of the Services.
13. Customer Obligations
By subscribing to or using Services, you consent and agree to the following: (i) you will notify SecuraChild of any defect in the Services within five (5) days of a malfunction; (ii) you will test the Services every month in accordance with instructions provided to the you by SecuraChild; and (iii) you will provide SecuraChild with current emergency contact Information or any other information necessary for the Company to provide the Services. You further consent and agree that any medical personnel or law enforcement notified to enter any premises as a result of your use of the Services may enter with force if necessary, and that you have authority to grant such access. IF YOU FAIL TO COMPLY WITH THESE OBLIGATIONS, SECURACHILD WILL NOT BE RESPONSIBLE FOR ANY WARRANTIES OR SERVICES PROVIDED UNDER THIS AGREEMENT.
14. Representations and Warranties
You represent and warrant the following: (i) you have full right and power to enter into and perform this Agreement without the consent of any third party; (ii) you have to the full right and power to use the Services; (iii) the Customer creating a Customer Account provides true and accurate Customer Credentials; (iv) the Authorized User creating an Authorized User Account provides true and accurate Authorized User Data; (v) the Customer purchasing the Services is over the age of 18; (vi) user of the Customer's Product who is under 18 has obtained the Customer's authorization to use the Product; and (vii) an Authorized User has obtained the consent of the Customer to create an Authorized User Account and to use the same.
15. Indemnification
You will indemnify, defend, release, protect and hold harmless SecuraChild and its parent, SecuraTrac, its directors, managers, officers, employees, dealers, resellers, suppliers, distributors, subcontractors, agents, successors, and assigns from and against all claims, actions, liabilities, losses, risks of injury, death or other hazards for which the Services are intended to detect or avert, expenses, damages, and costs, including but not limited to reasonable attorneys' fees and reasonable settlement expenses that may at any time be incurred by reason of any claim, suit, action or other proceeding that is based on or arises from any breach of warranties or restrictions provided under this Agreement, from any claim made by a third party in connection with this Agreement or the Services provided hereunder, including claims arising in whole or in part or related to defects in design, installation, maintenance, monitoring, operation or non-operation of the Services, whether those claims be based upon negligence, gross negligence, warranty, or strict products liability on the part of SecuraChild and its parent, SecuraTrac, its directors, officers, employees, dealers, resellers, subcontractors, or agents. For avoidance of any doubt, you are responsible for payment of any and all costs and expenses of emergency personnel in the event emergency services are dispatched as a result of your use of the Services (or as a result of any other person you allow to use the Services), including but not limited any fine, penalties or other charges for any false alarms or signals.
16. Limitations of Service and Liability
SECURACHILD, SECURATRAC OR ITS DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, SUPPLIERS, DISTRIBUTORS, DEALERS, SUBCONTRACTORS, RESELLERS, AGENTS, SUCCESSORS, AND ASSIGNS SHALL NOT BE LIABLE TO YOU FOR ANY LOSS, RISK, INJURY, DEATH, OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (EVEN IF SECURACHILD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) OR FOR CLAIMS ARISING OUT OF THIS AGREEMENT, RELATING TO THE USE OF THE SERVICES, WHETHER THE DAMAGES ARISE FROM THE USE OR MISUSE OF THE SERVICES, THE DESIGN OR OPERATION OF THE SERVICES, OR ANY INTERRUPTION OF THE SERVICES, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS. IN NO EVENT SHALL SECURACHILD ITS DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, SUPPLIERS, DISTRIBUTORS, DEALERS, SUBCONTRACTORS, RESELLERS, AGENTS, SUCCESSORS, AND ASSIGNS BE LIABLE, WHETHER OR NOT DUE TO ITS OWN NEGLIGENCE OR USER'S NEGLIGENCE, FOR ANY: (I) ACT, ERROR OR OMISSION OF A THIRD PARTY, INCLUDING WITHOUT LIMITATION RESELLERS, DEALERS, OR SUBCONTRACTORS; (II) MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, FAILURES TO TRANSMIT, DELAYS OR DEFECTS IN THE SERVICES PROVIDED BY OR THROUGH US, INCLUDING WITHOUT LIMITATION FAILURE OF THE SERVICES TO FUNCTION AS INTENDED AS A RESULT OF TAMPERING WITH OR DISRUPTION OF TELEPHONE OR BROADBAND SERVICE OR CUTTING OF PHONE OR BROADBAND SERVICE LINES; (III) DAMAGE OR INJURY CAUSED BY THE USE OF SERVICES, INCLUDING ANY USE IN A VEHICLE; (IV) CLAIM AGAINST YOU BY THIRD PARTIES; (V) FAILURE BY CUSTOMER OR ANY OTHER USER TO KEEP CURRENT EMERGENCY CONTACT INFORMATION, INCLUDING WITHOUT LIMITATION INFORMATION INCLUDED IN CUSTOMER ACCOUNT'S LIFETRAC ALERT SPEED CALL SETTINGS; (VI) MISUSE OF THE PRODUCT OR SERVICES BY YOU, INCLUDING WITHOUT LIMITATION USING THE PRODUCT FOR COMMERCIAL PURPOSES OR FAILURE TO ADEQUATELY MAINTAIN THE PRODUCT (OR KEEP THE PRODUCT ADEQUATELY POWERED OR INSTALLED WITH WORKING BATTERIES (AS APPLICABLE) OR SERVICES (E.G., MAINTAINING CURRENT EMERGENCY CONTACT INFORMATION OR BILLING INFORMATION)); (VII) DAMAGE OR INJURY CAUSED BY A SUSPENSION OR TERMINATION OF SERVICES BY ANY THIRD PARTY OR US; (VIII) DAMAGE OR INJURY CAUSED BY FAILURE OR DELAY IN CONNECTING A CALL TO 911 OR ANY OTHER EMERGENCY SERVICE; OR (IX) USE OF THE SERVICES OR THE SITES IN BREACH OF ANY PROVISION OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
Regardless of the previous paragraph, if we are found to be liable, our liability to you or any third party is limited to the greater of (i) the total fees you paid to us in the twelve (12) months prior to the action giving rise to the liability; (ii) the total fees an authorized reseller or authorized dealer (as applicable) paid to us in connection with your purchase from such authorized reseller or authorized dealer in the twelve (12) months prior to the action giving rise to the liability; or (iii) $100.00.
17. Disputes
WITHIN ONE HUNDRED (100) DAYS OF THE DATE OF ANY EVENT GIVING RISE TO A DISPUTE, YOU MUST NOTIFY US OF SUCH DISPUTE, INCLUDING A DISPUTE OVER ANY CHARGES AND ANY SERVICES WE PROVIDED, OR YOU WILL HAVE WAIVED YOUR RIGHT TO DISPUTE THE CHARGE OR SUCH SERVICES AND TO BRING, OR PARTICIPATE IN, ANY LEGAL ACTION RAISING ANY SUCH DISPUTE. Notice must be in the form as described under Section 19 of this Agreement.
18. Assignment and Subcontract
We may assign this Agreement, or subcontract out any of the Services provided under this Agreement, in whole or in part, at any time with or without notice to you. If applicable, your authorized dealer or authorized reseller may assign its rights relating to your purchase of the Services in whole or in part, at any time with or without notice to you, to SecuraChild. You may not assign or transfer this Agreement or any agreement you execute with an authorized reseller or authorized dealer, or any part of it, to any other person. Any attempt by you to do so is void.
19. Notice
All notices by you to the Company under this Agreement must be in writing. You agree that SecuraChild or SecuraTrac may contact you by phone, email, or other means by which SecuraChild determines to be appropriate from time to time, including without limitation playing a recorded message when you attempt to place a call or attempt to add funds to your account, sending written notice to the address provided at the time of activation, sending an SMS message to your Product. Please review the Sites for the current SecuraChild email address.
If notice is mailed, you should send notice to SecuraChild, 703 Pier Avenue, Suite B313, Hermosa Beach, CA 90254, or as such mailing address is listed on the Sites from time to time. Any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by hand, any such notice will be considered to have been given when received by the party to whom notice is given, as evidenced by written and dated receipt of the receiving party.
20. Disputes: Governing Law; Venue and Jurisdiction
The Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to its conflict of law provisions. You agree to submit to the exclusive jurisdiction of the courts located within Los Angeles County, California, to resolve any dispute arising out of the Services or this Agreement.
21. Miscellaneous
This Agreement, and any documents expressly referred to herein, including without limitation the Disclaimer http://www.securachild.com/disclaimer, Privacy Policy http://www.securachild.com/privacy, Rental Agreement (if applicable), or any agreements relating to purchases of the Services from an authorized reseller or authorized dealer (if applicable), constitute the entire agreement and understanding between you and the Company regarding your use of the Sites and the Services. For avoidance of any doubt, for purposes of this Agreement the use of the term "authorized" (e.g. authorized form of agreement, authorized reseller, authorized dealer) refers to written authorization by SecuraChild or its parent, SecuraTrac. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. The original version of this Agreement is in the English language. Any discrepancy or conflicts between the English version and any other language version will be resolved with reference to and by interpreting the English version.
