Effective date: January 7th, 2021
Welcome to SafeMap, Inc. d/b/a Zero, a Delaware non-profit, non-stock corporation (“SafeMap,” “we,” “us,” or “our”). Our application (the “App”) aims to help reduce the spread of disease by providing information about the measures that businesses are implementing to reduce the spread of disease and assigning each business a score based on those measures. Please read on to learn the rules and restrictions that govern your use of the App and our other services and applications (collectively, the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at [email protected]
Please read these Terms carefully. They cover important information about Services provided to you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
YOUR CONTINUED USE OF THE SERVICES CONSTITUTES ASSENT TO ANY SUCH CHANGES TO THE SERVICES AND TO ANY NEW PROVISIONS OF THIS AGREEMENT THAT MAY BE POSTED AND/OR MADE AVAILABLE IN THE FUTURE. YOUR REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
2. Ability to Accept These Terms and Incorporated Policies.
Further, you must be at least thirteen (13) years of age to use the Services. We do not knowingly collect or solicit personally identifiable information from children under thirteen (13); if you are a child under thirteen (13), please do not download or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under thirteen (13), we will delete that information as quickly as possible. If you believe that a child under thirteen (13) may have provided us personal information, please contact us at [email protected]
3. Changes to Terms and Notice of Changes.
We are constantly trying to improve our Services, so they may change over time, and these Terms may need to change along with our Services. We reserve the right to change, revise or modify the Terms at any time, with no notice to you, and at our sole discretion, but if we do make such changes, we will endeavor to provide notice by placing a notice on the application home screen and/or by notifying you by some other means.
YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR RESPONSIBILITY TO REVIEW THESE TERMS PERIODICALLY AND TO BE AWARE OF ANY CHANGES, REVISIONS, OR MODIFICATIONS.
If you do not agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
4. Data Privacy.
5. Requirements for Services Use.
The Services are available only to residents of the United States aged thirteen (13) or older. By downloading or using the Services, you represent and warrant that you are a United States resident of at least 13 years of age. If you are not of legal age to form a binding contract in your place of residence, you represent and warrant that you have received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf.
We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to you, and the right to access the Services is revoked where these Terms or use of the Services is prohibited, or else revoked to the extent that the offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
To use the Services, you will be required to provide us with your mobile telephone number. You promise to provide us with an accurate and up-to-date mobile telephone number, and are solely responsible for the activity that occurs on your account and the device(s) associated with the mobile telephone number you provide. You may not use a mobile telephone number that you do not have the right to use, or with the intent to impersonate another person. You may not transfer your account to anyone else without our prior written permission. You may also be able to access the Services through third-party services or applications; please note that your use of the Services through these third-party services or applications is subject to these Terms. Your use of any third-party service or application will be subject to the terms and conditions applicable to such services and applications.
You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you are not authorized to use the Services. We cannot and will not be responsible for your using the Services in a way that breaks the law. If you reside in or are subject to the laws or regulations of a jurisdiction anywhere in the world whose common, statutory, regulatory, or codified law would void these terms in whole or in any essential part (the essential parts being at least, but not only, the exclusive venue and exclusive remedy provisions, and the warranty disclaimers), or which make accessing the Services illegal, you do so entirely at your own risk.
6. No Guarantees; No Medical Advice; No Reliance on Safety Features.
WHILE THE SERVICES INCLUDE MEDICAL- AND HEALTH-RELATED CONTENT, SAFEMAP DOES NOT OFFER MEDICAL ADVICE OR DIAGNOSES, OR ENGAGE IN THE PRACTICE OF MEDICINE. Our Services are offered for informational, educational, and communicative purposes only. The Services are not intended to be, and must not be taken to be, the practice of medicine, nursing, pharmacy or other healthcare advice by SafeMap, nor are they intended to be, and must not be taken to be, a certification or guarantee of the safety or efficacy of any actions taken or policies implemented by any third parties. SafeMap makes no guarantee and provides no warranty whatsoever as to the accuracy, quality, or medical efficacy of any information provided by, or recommendations made by, the Services. SafeMap does not undertake any obligation whatsoever to ensure or attempt to ensure the accuracy, quality, fitness for use, merchantability, or medical efficacy of any information provided by, or recommendations made by, the Services. RELIANCE ON THESE SERVICES FOR MEDICAL GUIDANCE IS STRICTLY PROHIBITED.
All medical- and health-related Content (as defined below) is based on information made available by or obtained directly from third parties and/or collected from multiple other data sources that may not be confirmed by the relevant third party. Such Content can change frequently and may become out of date, incomplete or inaccurate. SafeMap does not guarantee that such Content is timely, accurate or complete, and is not responsible or liable for any errors or omissions in, or for the results obtained from the use of, such Content.
While we hope the Content is useful in your navigation of infectious disease, reliance on any information provided by SafeMap or in connection with the Services is solely at your own risk. You are solely responsible for any decisions or actions you take based on the information and materials available through the Services. The information provided by SafeMap is not intended as a substitute for, nor does it replace, any laws, orders, guidance, guidelines or policies issued by any federal, state and/or local government (including any agencies of such governments) concerning how to protect yourself from contracting an infectious disease. Do not disregard, and do not rely on any information provided by SafeMap in lieu of, any laws, orders, guidance, guidelines or policies issued by any federal, state and/or local government (including any agencies of such governments) concerning how to protect yourself from contracting an infectious disease.
To the extent the App or any other of the Services permits users to view “scores” or “ratings” for establishments, such information reflects whether a particular establishment is engaged in certain interventions, that our public health team, with the input of several outside public health officials, has identified as impactful for reducing the spread of infectious disease. In particular, such a “score” or “rating” reflects the extent to which, based solely on third-party representations provided to us, that business or other entities assert that the business is implementing some or all the interventions we identified. As outlined above, we do not make any representation as to the accuracy of any such information, including but not limited to third-party representations as to whether a given entity is or is not in compliance with all, some, or none of the interventions identified by us. More detail on our scoring or rating system can be foundhere.
The methodology implemented to derive a score for our business was developed by our public health team with the input of several outside public health officials. Our public health team identified impactful interventions for reducing the spread of infectious disease, with each intervention then weighted by the outside public health professionals. A business’ score reflects the extent to which it is implementing the interventions we identified. More detail on our scoring methodology can be foundhere.
7. SMS/Text Message Policy.
When you sign up for the Services through the App you will enter your phone number and we will text you a single-use code. By submitting your phone number you consent to receiving recurring text messages. Your mobile service provider may charge you for sending and/or receiving text messages and air-time, as well as any other standard applicable rates charged by your mobile service provider.
To opt-out of SMS messages you can reply by texting STOP in which you will receive a message that “You will receive no further messages.” For further assistance please text HELP or contact us at [email protected]
8. Acceptable Use Policy.
You represent, warrant, and agree that you will NOT interact with the Services in a manner that:
- infringes or violates the intellectual property rights or any other rights of anyone else (including SafeMap);
- provides, or attempts to provide, knowingly misleading, false, or inaccurate information, representations, or data, whether as to the existence or non-existence of any particular medical intervention or as to any other matter;
- posts, submits, or transmits any content that is libelous, defamatory, or slanderous, that incites, encourages, or threatens immediate physical harm against another, that presents an immediate and genuine danger to another person or entity, or that does not directly relate to the particular area of the Services, if any, where this content will be posted;
- violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by SafeMap;
- is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, invasive of another’s privacy, tortious, or otherwise objectionable;
- jeopardizes the security of your SafeMap 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 account or other security information from any other user;
- attempts to impersonate another person or entity; misrepresents affiliation with another person or entity, including (without limitation) SafeMap, any federal, state, or municipal government entity or representative, and/or a political candidate; or creates or uses a false identity;
- attempts to obtain unauthorized access to the Services or portions of the Services that are restricted from the access granted to you;
- collects, manually or through an automatic process, information about other users (including, but not limited to, e-mail addresses, medical information, or any form of contact information) without their express consent;
- advertises, offers to sell, or sells any goods or services, engages in any commercial activity, or solicits donations of any kind;
- engages in any activity that interferes with any third party’s ability to use Services;
- attempts to reverse engineer, decompile, translate, or affect in any way any computer code or item on or related in any way to the Services;
- attempts to gain unauthorized access to another network or server;
- violates the security of any computer network, or cracks any security encryption codes;
- disrupts, interferes with, damages, limits the function of, or suspends the use of, the Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology that could disable, overburden, or impair the proper working or appearance of the services;
- 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,” “spiders,” or engages in any comparable process as to any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
- copies or stores, for any reason and through any capability, any significant portion of the Content;
- decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services; or
- assists any third party in engaging in any activity set out in this list or otherwise prohibited by these Terms.
9. Intellectual Property and Usage Rights.
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, images, illustrations and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you will not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including SafeMap’s) rights.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable, and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that SafeMap owns the Services. You will not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
10. No Responsibility for Third-Party Content.
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk. SafeMap is not liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it, whether under theories of tortious injury, of contract damages, or on any other basis. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We cannot guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services. The Services may contain links or connections to third-party websites or services that are not owned or controlled by SafeMap, and other websites or services may contain links to the Services. When you access or use third-party websites or services, you accept that there are risks in doing so, and that SafeMap is not responsible for such risks. The inclusion of any such link does not imply any endorsement or association between us and the operators of such third-party websites and services.
Your interactions with organizations and/or individuals found on or through the Services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that SafeMap shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on the Services and any third party, you agree that SafeMap is under no obligation to become involved. In the event that you have a dispute with any such third party, including any other user of the Services, you release SafeMap, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
11. Reporting Inappropriate Content.
12. Changes to Services.
We are always trying to improve our Services, so they may change over time. We may, at our sole discretion, suspend or discontinue any part of the Services. We may also, at our sole discretion, introduce new features, impose limits on certain features, or restrict access to parts or all of the Services. We shall not be liable to you or to any third party in the event we exercise such rights. Any new features added to the then-current Services shall also be subject to these Terms. We will try to give you notice when we make a material change to the Services that would adversely affect you, but this may not always be practical, and we make no guarantee whatsoever that such notice will be provided.
We reserve the right to remove any Content from the Services at any time, for any reason, in our sole discretion, and without notice.
13. Cost of Services.
The Services are free of charge to our users. However, note that data and messaging rates may apply in connection with your use of the Services, and that any and all charges, fees or costs assessed by third parties as a result of your use of the Services are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees or costs may apply to your use of the Services.
14. Termination of Services.
SafeMap is 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. SafeMap has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
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 indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including, without limitation, the arbitration agreement.
15. No Responsibility for Service Disruption
You understand and agree that temporary interruptions of the App or of any other Services may occur as normal events. You further understand and agree that we have no control over third-party networks you may access in the course of your use of the Services, and therefore, delays and disruption of other network transmissions are completely beyond our control.
SafeMap assumes no liability for or relating to the delay, failure, interruption or corruption of any data or other information transmitted in connection with use of these Services.
16. Mobile Application Terms.
You acknowledge and agree that the availability of the App and/or other Services may be dependent on the third-party stores from which you download the application, e.g., the App Store from Apple or Google Play from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms , the more restrictive or conflicting terms and conditions in these Terms apply.
These Terms apply in full to your use of all the Services, including our iOS application (the “iOS App”) available via the Apple, Inc. (“Apple”) App Store. The following additional terms also apply to the iOS App:
- Both you and SafeMap acknowledge that the Terms are concluded between you and SafeMap only, and not with Apple, and that Apple is not responsible for the iOS App or the Content;
- The iOS App is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
- You will only use the iOS App in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS App;
- In the event of any failure of the iOS App to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the iOS App;
- You acknowledge and agree that SafeMap, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the iOS App;
- You acknowledge and agree that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringes that third party’s intellectual property rights, SafeMap, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- 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;
- Both you and SafeMap acknowledge and agree that, in your use of the iOS App, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
- Both you and SafeMap acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
17. Warranty Disclaimer.
SafeMap and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, volunteers, team members, representatives and agents, and each of their respective successors and assigns (SafeMap and all such parties together, the “SafeMap Parties”) make no representations or warranties concerning the Services, including without limitation regarding any “scores,” “ratings,” or other Content contained in or accessed through the Services, and the SafeMap Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The SafeMap Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. THE SERVICES AND CONTENT ARE PROVIDED BY SAFEMAP (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
18. Limitation of Liability.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE SAFEMAP PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF ONE-HUNDRED ($100) DOLLARS OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to indemnify and hold the SafeMap Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
20. Force Majeure.
SafeMap will not be liable for failing to perform under these Terms by the occurrence of any event beyond its reasonable control, including, but not limited to, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider to SafeMap to perform, fire, terrorism, natural disaster, epidemic or pandemic, issuance of government order or enactment of laws, rules, or regulations, civil unrest, or war.
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without SafeMap’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
22. Limitation of Actions.
You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of the Services must be filed within one calendar year after such claim or cause of action arises, or forever be barred.
23. Choice of Law.
These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof. Except as provided in these Terms, the Federal Arbitration Act shall govern the interpretation, enforcement and all proceedings pursuant to these Terms. In the event that the Federal Arbitration Act is found to be inapplicable to all or part of any proceeding pursuant to these Terms, New York law pertaining to agreements to arbitrate shall apply.
24. Arbitration Agreement.
Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with SafeMap and limits the manner in which you can seek relief from SafeMap. Both you and SafeMap acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, SafeMap’s officers, directors, employees, volunteers, team members and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration seated in New York, New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. SafeMap will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. SafeMap will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or SafeMap may assert claims, if they qualify, in small claims court in New York, New York or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND SAFEMAP WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and SafeMap are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and SafeMap over whether to vacate or enforce an arbitration award, YOU AND SAFEMAP WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor SafeMap is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following email address, [email protected] within thirty (30) days of first accepting these Terms. You must include (i) your name and residential address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or SafeMap to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and SafeMap agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York, New York, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with SafeMap.
The failure or delay of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and SafeMap agree that these Terms are the complete and exclusive statement of the mutual understanding between you and SafeMap, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. Except as specified in these Terms, SafeMap support staff or other SafeMap employees do not have the authority to amend any of these Terms or to bind SafeMap to any legal or other obligation not already set forth in these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of SafeMap, and you do not have any authority of any kind to bind SafeMap in any respect whatsoever.
Except as expressly set forth in the sections above regarding the Apple Application and the arbitration agreement, you and SafeMap agree there are no third-party beneficiaries intended under these Terms.
26. Business Terms.
In order to use a Business Account, you represent and warrant that you are authorized to agree to these Terms on behalf of the business or businesses associated with or claimed through your Business Account and to bind any such business (including any corresponding business entity) (such business(es), your “Business”) (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to such Business(es)), and bind such Business(es) to these Terms. You understand and agree that these Terms are an agreement between you and SafeMap.
By creating, accessing, or using a Business Account, you are agreeing to be subject to the entirety of the Terms, including these Business Terms. If you do not agree to all of the Terms, you may not create, access, or use a Business Account. In the event of any termination of your Business Account, whether by you or us, these Business Terms in their entirety will continue in full force and effect.
Without limiting anything in the foregoing, in order to access or use a Business Account, you agree that:
- you may only access or use your Business Account in your capacity as an authorized representative of your Business;
- you understand and acknowledge that SafeMap allows users to submit User Content about your Business;
- you will not use the App or any other of our Services for commercial activities, including but not limited to flagging reviews or messaging people who have reviewed your Business;
- you hereby grant SafeMap a non-transferable, non-exclusive, royalty-free limited license to display your Business’s trade name and public website on the Services, or allow for its display through iframes or other framing technology;
- your Business complies with applicable laws, rules, and regulations;
- you agree that we may contact you, including by phone or email, using the contact information you provide us, make publicly available, or that we have on record for your business, and that our communications (including phone calls) with you may be monitored and recorded for quality purposes; and
- you understand that we may display a “score” or “rating” for your Business on the Services; and
- you will not, and will not authorize or induce any other party, to offer incentives of any kind in exchange for the submission of User Content relating to your Business, or to prevent or remove any such User Content, and you understand and acknowledge that SafeMap may publicly notify consumers about such incentives and other attempts to obtain, prevent, or remove such User Content.