EmergencyMessageSystem™ Terms and Conditions
Thank you for visiting EmergencyMessageSystem.com, a Phoneticom™ website located at www.emergencymessagesystem.com (the "Site"). The Site is an Internet property of Phoneticom, LLC ("Phoneticom™", "EMS," "we" or "us").
BY VISITING THE SITE, CLICKING ON THE "CLICK HERE TO ACCEPT" BUTTON TO BECOME A MEMBER ("MEMBER") AND/OR REGISTERING FOR AND/OR USING THE PHONETICOM™ SERVICE, EMAIL SERVICE AND/OR THE EMERGENCY MESSAGE SYSTEM SERVICE (THE "EMS SERVICE") (COLLECTIVELY, THE "SERVICES"), YOU AGREE TO COMPLY WITH AND BE BOUND BY THESE EMERGENCYMESSAGESYSTEM™ OR PHONETICOM™ TERMS AND CONDITIONS, AS APPLICABLE (THE "TERMS AND CONDITIONS"), THE EMERGENCYMESSAGESYSTEM™ PRIVACY STATEMENT ("PRIVACY STATEMENT") AND ANY AND ALL OTHER APPLICABLE EMS OPERATING RULES, POLICIES, PRICE SCHEDULES AND OTHER SUPPLEMENTAL TERMS AND CONDITIONS OR DOCUMENTS THAT MAY BE PUBLISHED FROM TIME TO TIME, ARE EXPRESSLY INCORPORATED HEREIN BY REFERENCE (WHICH ARE REFERRED TO COLLECTIVELY HEREIN AS, THE "RULES").
IF YOU DO NOT AGREE TO COMPLY WITH AND BE BOUND BY THE RULES, YOU SHOULD DISCONTINUE REGISTRATION FOR, OR YOUR USE OF, THE SERVICES. IN SUCH AN EVENT, YOUR EMERGENCYMESSAGESYSTEM™ ACCOUNT WILL NOT BE ACTIVATED, OR YOUR EMERGENCYMESSAGESYSTEM™ ACCOUNT WILL BE TERMINATED, AS APPLICABLE.
1. Billing Provisions. By using the Services, you agree to accept the fees described above, as they may be amended from time to time. By providing your mobile or landline telephone number and/or billing information, you agree that you are the mobile or landline telephone account owner, or eighteen (18) years of age or older and authorized to incur charges on the mobile or landline telephone account, as applicable. You agree that all such fees may be automatically applied to your local telephone bill or mobile phone number and that you have the authority to authorize such billing. In consideration for your use of the Services as a Member, you agree to pay the Fees (as defined below and further described in this Section 1). You shall have the choice to pay the Fees via the credit card or debit card that you provided during registration or updated at a later date ("Active Credit Card"), via your Mobile Carrier bill ("Mobile Bill") or via your local telephone bill ("LEC Bill"). Where you opt for the Active Credit Card billing option, and upon submitting your Application, your Active Credit Card will be charged Fourteen Dollars and Ninety-Five Cents ($14.95) on a monthly basis for your ongoing Membership until cancelled ("CC Fees"). The CC Fees will appear on your Active Credit Card bill through the identifier "EmergencyMessageSystem" or "Phoneticom." Where you opt for the LEC Bill billing option, and upon submitting your Application, a charge of Fourteen Dollars and Ninety-Five Cents ($14.95) will be added to your local telephone bill each month until cancelled ("LEC Fees"). The LEC Fees will appear on your local telephone bill through the identifier "EmergencyMessageSystem" or "Phoneticom." Where you opt for the Mobile Bill billing option, and upon entering the confirmation PIN number on the PIN submit page on the Site, a charge of Eight Dollars and Ninety-Nine Cents ($8.99) will be added to your Mobile Carrier bill, or deducted from your prepaid Mobile Carrier account, as applicable, each month until cancelled ("Mobile Fees" and, together with the CC Fees and LEC Fees, the "Fees"). The Mobile Fees will appear on your Mobile Carrier bill through the identifier "EmergencyMessageSystem" or "Phoneticom." However, please be advised that EmergencyMessageSystem and your local telephone carrier and/or Mobile Carrier, as applicable, are not affiliated. You agree that all such Fees may be automatically deducted from your prepaid account, applied to your Mobile Bill, LEC Bill or Active Credit Card account, as applicable, and that you have the authority to authorize such billing.
For so long as your Membership remains active, the Fees will accrue on the monthly anniversary date of your sign-up, and such Fees will be charged in advance. You acknowledge and agree that Phoneticom™ will not obtain additional authorization from you for each monthly installment of the Fees charged to your Active Credit Card, Mobile Bill or LEC Bill, as applicable. Every time that you use the Services, you re-affirm that Phoneticom™ is authorized to charge your Active Credit Card, Mobile Bill or LEC Bill, as applicable.
You shall be responsible for paying any and all applicable sales tax (if any) due to all taxing authorities arising from, or in connection with, your use of the Services. All Fees are payable in United States currency. Failure to use the Services does not constitute a basis for refusing to pay any of the associated Fees. You agree to be bound by the pricing and billing practices of Phoneticom™ in effect at any given time. Upon prior written notice to you (with e-mail sufficing), Phoneticom™ reserves the right to change its pricing and/or billing practices whenever necessary, in its sole discretion. Continued use of the Services after receipt of such notice shall constitute consent to any and all such changes. If you do not agree with these changes, or for any other reason, you may cancel your Account at any time as set forth below; however, you will not be entitled to receive a refund for the charges you have already incurred and you are responsible for timely payment of such amounts (including any applicable late fees. If you have any billing-related questions or want to cancel your subscription to the Services, please call our billing support number (888-280-5444).
Phoneticom™'s authorization to provide and bill its services is obtained by way of your electronic signature on our registration forms and/or voice affirmation. Once an electronic signature is submitted, this electronic order constitutes an electronic letter of agency authorized by your electronic signature. Phoneticom™'s reliance upon your electronic signature, was specifically sanctioned and written into law when the Uniform Electronic Transactions Act ("UETA") and the Electronic Signatures in Global and National Transactions Act ("E-Sign") were enacted in 1999 and 2000, respectively. Both laws specifically preempt all state laws that recognize only paper and handwritten signatures.
- You are responsible for all charges incurred; including applicable taxes and purchases made by you or anyone you allow to incur charges to your telephone account, including your children, other members of your family, and those living in the same household. This means that, unless your account information is obtained unlawfully or fraudulently by someone other than those authorized to incur charges to your telephone account, you will be responsible for all usage and purchases billed to your account.
2. Entire Agreement/Modification. The Rules constitute the entire and only agreement between you and EmergencyMessageSystem™ with respect to your use of the Services and/or Site and supersede all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to your use of the Services, Site, the content contained therein and/or other information provided by or through same. EmergencyMessageSystem ™ may change the Rules, and the scope and functionality of the Services, in whole or in part, at any time without specific notice to you; provided, however, that: (a) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, "Dispute Resolution Provisions") shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions ("Billing Provisions") shall not apply to any charges incurred prior to the applicable amendment or modification. The most current version of the Rules will be posted on the Site. Your continued use the Services and/or Site following posted notice constitutes your acceptance of all of the terms and conditions contained within the Rules in effect at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable). Therefore, you should regularly check this page for updates and/or changes. Unless explicitly stated otherwise, any future offer(s) made available to you on the Site that augment(s) or otherwise enhance(s) the current features of the Site shall be subject to the Rules. You understand and agree that EmergencyMessageSystem™ or Phoneticom™ is not responsible or liable in any manner whatsoever for your inability to use the Site and/or the Services.
3. Requirements. The Sites and the Services are available only to individuals that are at least eighteen (18) years of age and that can enter into legally binding contracts under applicable law. In order to use the register for the Services via your mobile device (a "Mobile Device"), you must have a Mobile Device with text messaging capabilities and a plan with your Mobile Device carrier ("Mobile Carrier") that enables you to send and receive premium text messages in connection with purchases made by and through your Mobile Device. We reserve the right to not accept prepaid mobile phone accounts.
4. The Services. EmergencyMessageSystem™ provides subscribers with four (4) email accounts, national emergency announcements sent to your Phoneticom™ email accounts, as well as access via a unique PIN to a toll-free telephone number that enables subscribers to leave a voicemail message to be sent to up to ten (10) personal emergency contacts. In the event of an emergency, a subscriber may access his or her emergency voicemail account by calling the toll free number and entering his or her PIN. The subscriber can then leave up to five (5) voicemail messages per month regarding his or her emergencies. EmergencyMessageSystem™ will contact, via email and telephone, each of the emergency contacts identified by the subscriber in his or her registration information or via the link provided in his or her welcome email. EmergencyMessageSystem™ will notify such individual that the subscriber has left him or her an emergency message, and provide him or her access to the emergency voicemail message via a .wav file in an email or via telephone by following the instructions contained in the email or telephone call. Any recorded emergency message will remain available for seventy two (72) hours. Please read the following information carefully which outlines your obligations for accessing the Services:
Registration. In order to subscribe to the Services and/or to become a subscriber (member), you must first complete the applicable online registration forms (Application) to Phoneticom™ for review and initial approval. Phoneticom™ reserves the right, in its sole discretion, to deny the Application of anyone at any time and for any reason, whatsoever. You must provide your correct and verifiable: 1) full name; 2) street address, including city, state and zip code; 3) email address; 4) landline or mobile telephone number (if applicable); 5) date of birth; and 6) the name, email address and telephone number of at least one (1) emergency contact; and/or 7) any other information requested by us on the Application (collectively, "Registration Data"). You agree to provide true, accurate, current and complete Registration Data, as necessary, in order to maintain it in up to date and accurate fashion. Phoneticom™ will verify and approve all Applications in accordance with its standard verification procedures.
If Phoneticom™ approves your Application, Phoneticom™ will set up your specific account ("Account") and either send a confirmation: (i) e-mail to the e-mail address that you provided at the time of registration where you register on the Site; or (ii) a unique, four (4) digit personal identification number ("PIN Number") and/or user name to the mobile phone number that you provided with your Application where you register via your Mobile Device. Alternatively, where you register via your Mobile Device, you can access your Account by entering the confirmation PIN Number and user name on the PIN Number submit page on the Site. You are responsible for maintaining the confidentiality of your Account, user name and password and for restricting access to your computer. You agree to accept responsibility for all activities that occur through use of your Account, user name, PIN Number and password, as applicable, including, without limitation, any and all charges incurred through use of same.
Following submission of your complete registration form, you will receive a confirmation and welcome email from EmergencyMessageSystem™ containing information on how to set up your Phoneticom™ email Account, access your emergency voicemail box via toll-free number and PIN and a link to add up to ten (10) personal emergency contacts. The confirmation e-mail will contain the following information: (A) your user name; and (B) your password or PIN. You can access your Account at the Site using your user name and password. At a minimum, you must provide the name, email address and telephone number for each of your personal emergency contacts. You are responsible for updating this information as necessary to keep it accurate and current.
By registering for the Service via your Mobile Device, you expressly consent to receive a sign-up text message. In most circumstances, the text message that you receive in connection with the sign-up process will contain a PIN Number which is used to set up your Account. Standard text message rates will apply to all text messages sent and received.
- Cancellation. You may cancel your subscription at any time by contacting customer service at 1-888-280-5444, by email at firstname.lastname@example.org or by mail at Phoneticom™ Email and Emergency Message System, 24 West Railroad Avenue, #139, Tenafly, New Jersey 07670. By canceling your account, you are relinquishing your rights to the Services.
- Content. As a subscriber, you agree that you are solely responsible for the content of the voicemail message(s) that you transmit by and through the Services. In connection with any voicemail that you transmit by and through the Services, you agree not to: (a) disclose any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third party; (b) transmit any audio files that may be deemed indecent or obscene in your community, as defined under applicable law; (c) impersonate any person or entity; (d) "stalk" or otherwise harass any person; (e) engage in unauthorized advertising to, or solicitation of, any individuals in an effort to buy or sell any products or services; (f) express or imply that any statements that you make are endorsed by Phoneticom™, without our specific prior written consent; or (g) post, distribute or reproduce in any way any copyrighted material or other proprietary information without obtaining the prior consent of the owner of such proprietary rights.
- Authorization. You expressly permit and authorize Phoneticom™ (and any third party agent as may be authorized by Phoneticom™, subject to the Privacy Statement) to contact, via telephone and email, the individuals identified as your personal emergency contacts in order to notify such contacts of the availability of your emergency voicemail(s).
- You agree that Phoneticom™ is not responsible or liable in any manner in the event that: (a) you are unable to access your emergency voicemail box; (b) Phoneticom™ is unable to contact any or all of your personal emergency contacts; and/or (c) any or all of your personal emergency contacts fail to access and/or respond to your personal emergency voicemail.
- Phoneticom™ retains the right at its discretion to make changes to any or all of the Services that may be available including, but not limited to, fees and billing, or to discontinue some or all of the Services. Phoneticom™ retains the right to limit or restrict the use of any third party software or services that may be used in connection with the Services. Phoneticom™ retains the right to change, suspend or terminate your use of the Services at any time for any reason, without notice, and nothing herein shall be construed to limit that right. Phoneticom™ reserves the right to take or terminate the use of any user name or email address at any time. Phoneticom™ reserves the right to prohibit any conduct or to remove any materials or content in violation of the Rules or which Phoneticom™ believes in its sole discretion to be illegal or potentially harmful to others or that may expose Phoneticom™ to harm or liability.
5. Collection and Use of Personal Information. EmergencyMessageSystem™ will collect, store, compile and utilize information about you, your computer, your telephone number and your use of the Services including, without limitation, information regarding the web sites you visit and information that you provide in response to the registration forms on the Site. Phoneticom™ may provide this information to third parties including advertisers, clients, marketing organizations and others, in accordance with the EmergencyMessageSystem™ Privacy Statement.
6. Minors. You may not obtain an account for the Services unless you are at least 18 years old.
7. Bypassing or Disabling Any Portion of the Services or Site. If you bypass or disable any portion of the Service or Site, including, without limitation, blocking the operation of any EmergencyMessageSystem™ systems, or you attempt to circumvent Phoneticom™’s billing of you in any way, you are in violation of the Rules and we may suspend or terminate your use of the Services without notice. Termination of your subscription to the Services will not excuse you from any criminal or other civil liabilities that may result from your actions. If your subscription to the Services is terminated for any reason, you will be unable to access your Phoneticom™ email account(s), including any undelivered email messages in your Phoneticom™ email account, your EMS Service voicemail box and any voicemail messages transmitted via the Services.
8. Accessing the Service. You are responsible for obtaining and maintaining, at your own expense, all input/output devices or equipment (such as modems, terminal equipment, computer equipment and software) and communications services (including, without limitation, long distance or local telephone services) necessary to access the Services and for ensuring such equipment and services are compatible with EmergencyMessageSystem™'s requirements.
9. Use of your EmergencyMessageSystem™ Account. You are responsible for all use of your EmergencyMessageSystem™ account and for the security of your login identification, your password and PIN that you use to access to your EmergencyMessageSystem™ account, your EmergencyMessageSystem™ personal profile (if any), your EMS personal emergency contact list, and any information you disseminate through use of the Services. You may not transfer or permit any other person to use your EmergencyMessageSystem™ account.
10. Transmission and Receipt of Content. Phoneticom™ exercises no control over the content of information passing through its network or equipment. Disputes may arise between you and others or between you and Phoneticom™ related to such content. Such disputes could involve, among other things, the use or misuse of domain names; the infringement of copyrights, trademarks or other rights in intellectual property; defamation; fraud; and the use or misuse of information. You agree that all claims, disputes or wrongdoing which result from, or which are related in any way to, the content of information that you transmit, re-transmit or receive through Phoneticom™'s network or equipment are your sole and exclusive responsibility. You may find certain content, voicemails and/or other information as posted by EmergencyMessageSystem™ subscribers to be offensive, harmful, inaccurate and/or deceptive. Please use caution, common sense and safety when using the Services. In the event that you have a dispute with one or more subscribers and/or other third parties, you hereby release Phoneticom™ including, but not limited to, its officers, directors, members, agents, subsidiaries and employees, from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of, or in any way connected with, such disputes.
Pursuant to 17 U.S.C. § 512, as amended by Title II of the Digital Millennium Copyright Act (the "Act"), Phoneticom™ will terminate the account of any subscriber who uses his or her account privileges to unlawfully transmit copyrighted material without a license, valid defense or fair use privilege to do so. After proper notification by the copyright holder or its agent to Phoneticom™ and later confirmation through court order or an admission by the subscriber that an account has been an instrument of unlawful infringement, Phoneticom™ will terminate the infringing subscriber's account. Phoneticom™ may also, in its sole discretion, decide to terminate a subscriber's account privileges prior to that time if it has good faith belief that infringement has occurred. In addition, pursuant to 17 U.S.C. § 512(c), Phoneticom™ has implemented procedures for receiving written notification of claimed infringements and for processing such claims in accordance with the Act. Phoneticom™ respects the intellectual property of others, and we ask our subscribers to do the same
If you would like to register a complaint, notify Phoneticom™ of a dispute or notify us of inaccurate or misleading information appearing on the Site, please feel free to contact us at 1-888-280-5444 or at email@example.com
11. Email. The Phoneticom™ email service and network including, without limitation, email addresses, are owned or controlled by Phoneticom™. Phoneticom™ establishes practices, limits and hourly usage restrictions concerning your email account, which practices and limits may be changed from time to time, in our sole discretion. Limits may include, without limitation, the period of time your email will be retained; the number, size and type of email messages and attachments you may send and receive; and the amount of space allocated to your email storage. Email in inactive or terminated accounts may be deleted in accordance with Phoneticom™'s policies. Phoneticom uses a variety of techniques to eliminate email or attachments that Phoneticom™ believes are unsolicited, inappropriate or harmful. In doing so, Phoneticom™ may block or delete email or attachments sent by you or to you, even though such email or attachments may not be unsolicited, inappropriate or harmful. You agree that Phoneticom™ is not responsible for any email or attachments that are blocked or deleted for any reason and that you have no right, and Phoneticom™ has no obligation, to retrieve or access any such deleted or blocked email or attachments. Phoneticom™ may, from time to time, place a message and or a hypertext link geared to promoting the benefits of the Services or a third party sponsor in the footer location of outgoing email messages transmitted from your account. You agree to permit Phoneticom™ to include such messages or links in email messages you transmit and agree not to alter, obscure or remove such messages or links. You may not incorporate a third party's trademark within your Phoneticom™ email address without permission of the trademark owner.
12. Links to Third Party Sites. The Site may contain links to other sites on the Internet that are owned and operated by third parties. In some instances these sites are co-branded and the third parties are entitled to use the Phoneticom™ and/or EmergencyMessageSystem™ name and/or logo on these sites. Phoneticom™ does not control the information, products, or services on these third party sites. The inclusion of any link does not imply endorsement by Phoneticom™ of the site or any association with their operators. Because Phoneticom™ has no control over such sites and resources, you agree that Phoneticom™ is not responsible or liable for the availability or the operation of such external sites, for any material located on or available from any such sites, or for the protection of your privacy data by third parties. Any dealings with or participation in promotions of advertisers on our service, including the payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings or promotions, are solely between you and the advertiser or other third party. You further agree that Phoneticom™ shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on or through any such site or any such dealings or promotions.
13. Indemnification of Phoneticom™. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD PHONETICOM™ AND ITS MEMBERS, EMPLOYEES, DIRECTORS, CONSULTANTS, SUPPLIERS, SPONSORS, VENDORS, BILLING PROVIDERS, SOFTWARE VENDORS, PARTNERS OR OTHER AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES AND COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND COURT COSTS) (COLLECTIVELY, CLAIMS) ARISING OUT OF OR RELATING TO YOUR BREACH OF ANY OF THESE RULES OR USE (BY YOU OR ANY THIRD PARTY) OF THE SERVICES THROUGH THE PHONETICOM™ AND/OR EMS ACCOUNT ASSIGNED TO YOU, EXCEPT TO THE EXTENT SUCH CLAIMS DIRECTLY RESULT FROM PHONETICOM™'S OWN WILLFUL MISCONDUCT. THE FOREGOING INDEMNIFICATION OBLIGATION SHALL SURVIVE ANY TERMINATION OF THE SERVICES PROVIDED TO YOU
14. Termination and Cancellation. Either you or Phoneticom™ may terminate or cancel your subscription to the Services at any time. In addition, in the event of a billing dispute, you may be entitled to a refund depending on the circumstances. You can cancel your subscription to the Services by following the instructions on the Site, calling 1-888-280-5444, emailing firstname.lastname@example.org or by writing to Phoneticom™ Email and Emergency Message System, 24 West Railroad Avenue, #139, Tenafly, New Jersey 07670.
15. WARRANTY DISCALAIMERS. YOU ACKNOWLEDGE THAT THE SERVICES, ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUIET ENJOYMENT, NON-INFRINGEMENT, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND MERCHANTABILITY, QUALITY, ACCURACY AND TIMELINESSOF INFORMATIONAL CONTENT, OR THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS . PHONETICOM™ DOES NOT GUARANTEE THAT USERS WILL BE ABLE TO ACCESS OR USE THE SERVICES AT TIMES OR LOCATIONS OF THEIR CHOOSING, OR THAT THE SERVICE WILL BE AVAILABLE OR HAVE ADEQUATE CAPACITY IN ANY SPECIFIC GEOGRAPHIC AREA. PHONETICOM™ WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET AND/OR TELEPHONE CONNECTION ASSOCIATED WITH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICES OR OTHERWISE THROUGH OR FROM THE SITE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE RULES.
16. LIMITATION OF LIABILITY. IN NO EVENT SHALL PHONETICOM™ BE LIABLE UNDER ANY SECTION OF THESE RULES, OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND OR LOSS OF BUSINESS GOODWILL OR OPPORTUNITY) WHETHER OR NOT PHONETICOM™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. PHONETICOM™ SHALL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. PHONETICOM™ SHALL NOT BE LIABLE IN THE EVENT THAT: A) YOU ARE UNABLE TO ACCESS AND OR USE THE SERVICES; B) THAT THE TELECOMMUNICATIONS SYSTEMS RELATING TO THE SERVICES WILL OPERATE ERROR-FREE; C) YOU FAIL TO RECEIVE AN EMS NATIONAL EMERGENCY EMAIL ANNOUNCEMENT; D) PHONETICOM™ IS UNABLE TO CONTACT ANY OR ALL OF YOUR EMS PERSONAL EMERGENCY CONTACTS; E) ANY OR ALL OF YOUR EMS PERSONAL EMERGENCY CONTACTS ARE UNABLE OR FAIL TO ACCESS AND LISTEN TO YOUR EMS EMERGENCY VOICEMAIL MESSAGE; OR F) SOME OR ALL OF YOUR EMS PERSONAL EMERGENCY CONTACTS FAIL TO ADEQUATELY RESPOND TO YOUR EMS EMERGENCY VOICEMAIL MESSAGE. IN NO EVENT SHALL PHONETICOM™'S LIABILITY TO YOU EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES FOR A PERIOD OF ONE (1) YEAR. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THESE RULES OR OUT OF THE SERVICES MAY BE BROUGHT BY YOU OR PHONETICOM™ MORE THAN ONE (1) YEAR AFTER THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION HAS OCCURRED. Some jurisdictions do not allow such limitations on liability and, in such jurisdictions, Phoneticom™'s liability shall be limited to the maximum extent permitted by law.
17. License Grant. In connection with your use of the Site, you agree not to: (i) harvest or collect personal information of other subscribers, whether or not for commercial purposes, without their express consent; (ii) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, "data mine," or in any way reproduce or circumvent the navigational structure or presentation of the Site or its contents; (iii) remove any copyright, trademark or other proprietary rights notices contained on the Site; (iv) interfere with or disrupt any of the Site’s functions, services and/or the servers or networks connected to the Site; (v) post, offer for download, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (vi) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third party, including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. "spamware"), services that send unsolicited advertisements, programs designed to initiate "denial of service" attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (vii) "frame" or "mirror" any part of the Site, without our prior written authorization; (viii) use metatags or code or other devices containing any reference to Phoneticom™, EmergencyMessageSystem™ and/or the Site in order to direct any person to any other website for any purpose; and/or (ix) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Site or any software used on or for the Site. Engaging in any of the aforementioned prohibited practices shall be deemed a breach of the Rules and may result in the immediate termination of your subscription to the Services without notice, in the sole discretion of Phoneticom™. Phoneticom™ reserves the right to pursue any and all legal and equitable remedies against subscribers that engage in the aforementioned prohibited conduct
18. Proprietary Rights. All content and other material posted or made available by and through the Services including, but not limited to, the design, selection, arrangement and coordination of such content and/or the Services available on the Site is owned or licensed by or to Phoneticom™, and is protected under applicable copyrights, trademarks and other proprietary (including, but not limited to, intellectual property) rights. Except as expressly provided in the Rules, no part of the Site, content or other material posted or made available by and through the Services may be reproduced, recorded, retransmitted, sold, rented, broadcast, distributed, published, uploaded, posted, publicly displayed, altered to make new works, performed, digitized, compiled, translated or transmitted in any way to any other computer, website or other medium or for any commercial purpose, without Phoneticom™’s prior express written consent. Systematic retrieval of material from the Site by automated means or any other form of scraping or data extraction in order to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from Phoneticom™ is prohibited. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets, rights of publicity or trademarks with respect to any of the content, other material posted or made available by and through the Services or any document, software, services or other materials viewed at or through the Site. The posting of information or material at or through the Site by Phoneticom™ does not constitute a waiver of any right in such information and materials. Phoneticom™ reserves all rights not expressly granted hereunder. The "Phoneticom" and "EmergencyMessageSystem" names and logos are trademarks of Phoneticom LLC. All custom graphics, icons and service names are trademarks of Phoneticom™. All other trademarks are the property of their respective owners. The use of any Phoneticom™ trademark without Phoneticom™ express written consent is strictly prohibited. Where provided by, or based on information provided by, a subscriber or other third party, Phoneticom™ exercises no control over the content or other information made available on the Site, through the Services and/or passing through the Phoneticom™ network or equipment.
- Dispute Resolution Provisions. The Rules shall be treated as though it were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). Should a dispute arise concerning the Service, Site, terms and conditions of the Agreement or the breach of same by any party hereto, you may commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found at http://www.emergencymessagesystem.com/web/dispute.aspx. We may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice ("Final Settlement Offer"). If we provide you with a Final Settlement Offer and you do not accept it, or we cannot otherwise satisfactorily resolve your dispute, you can submit your dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties, in your county of residence, by filing a separate Demand for Arbitration, which is also available on the Site at http://www.emergencymessagesystem.com/web/arbitration.aspx. For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions. If the arbitrator awards you relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing contained herein shall be construed to preclude any party from: (a) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (b) pursuing the matter in small claims court rather than arbitration. Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous. To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against Phoneticom™, EMS and/or their respective employees, officers, directors, members, representatives and/or assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney’s fees and court costs that Phoneticom™ and/or EMS incur(s) in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits: (i) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (ii) is an independent agreement.
- Severability. If any provision of these Rules is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to comply with applicable laws, and the remainder shall remain in full force and effect.
- No Waiver. Any failure of Phoneticom™ to enforce any provision of these Rules shall not constitute a waiver of any rights under such provision or any other provision of these Rules.
Last Updated: 08/29/2011