Last Updated: February 10, 2014
It may be an offense in your jurisdiction to monitor the activities of other individuals. You must review and comply with all Federal, State and local laws. If you are an employer, you represent and warrant that you will only make use of the Service on phones that you own and control and/or that you provide to employees solely for employment related purposes and/or that are owned and/or controlled by employees and/or independent contractors; if the phone which you will make use of the Service on is owned by an independent contractor or employee, you hereby agree to cease use of the Service on those employee and/or independent contractor phones once the employment services are completed. You must ensure you have the express consent of all owners and any users of all cell phones you monitor, unless they are your minor child or you have been appointed a guardian, ward or other legal custodian of the individual being monitored, such as an elderly parent.
ACCEPTING THE TERMS
By accessing the Site or using any of the features, functions, information and/or tools and services located on the Site, whether as a Visitor or registered Customer, you agree to be bound by this Agreement. If you wish to become a Customer and make use of the Service, you must read this Agreement and indicate your acceptance during the registration process. If you are under 18 years of age you may not accept this Agreement or use the Service. If you accept this Agreement, you represent that you have the capacity to be bound by it, and if you are acting on behalf of a company or entity you represent that you have the authority to bind such entity.
By registering any device(s) on the Service, Customer agrees and understands that information concerning the location of the device(s) may be disclosed to others as part of the Service, and Customer agrees to notify any users of the Service regarding this disclosure of location information.
(a) LALL makes available the proprietary LOCK&LOCATE GPS platform application referred to as the Service to consumers and businesses. During the term of this Agreement (as set forth below), and in accordance with the terms hereof, LALL will provide Customer access to and use of the LALL Service.
(b) The Service consists of a hosted Web enabled application, data access and storage, wireless device data network access and a variety of wireless applications used to obtain location information (latitude, longitude and radius) from mobile devices under your ownership and/or control and/or under the ownership or control of employees and/or independent contractors of the Customer.
(c) Customer is responsible for obtaining and maintaining all computer hardware, software, communications equipment needed to access the Service, and paying for all access charges (e.g. ISP, telecommunications) incurred while using the Service.
(d) Upon your acceptance of this Agreement, LALL will provide Customer with login access to the Service for the term of the Agreement.
(e) At the commencement of this Agreement, Customer must register for an account on the Site” and have an active mobile device on one of the following wireless carrier’s networks: AT&T, T-Mobile, Verizon, Sprint, PCS, Rogers or Telus. Messaging and data rates may apply.
(f) Customer must enroll and register each mobile device they intend to use with the Service. Location coordinate data (latitude, longitude and radius) will only be obtained and made available to the Customer when the opt-in registration process has been successfully completed by the Customer.
(g) Device locate requests are controlled by Customer from your secure portal. Location requests will only be performed in conformance with the Customer service package and/or when the Customer makes such requests from the secure portal area.
(h) All location data information gathered by the Customer is for the Customer’s sole use. LALL will NEVER resell or give-away Customer location information data. Location data is stored on our system indefinitely. However, all Location data will be removed when a Customer requests such removal in writing to email@example.com.
Subject to the provisions of this Agreement, LALL hereby grants to Customer a personal, non-exclusive, non-sub-licensable, non-transferable, revocable license (“License”) to use the Service only in accordance with the terms of this Agreement during the term hereof. The license allows Customer and any person authorized by Customer (collectively, “Users”) to access the Site for Customer’s own use only and otherwise in accordance with this Agreement.
Customer will not, and will not allow its Users, or agents, directly or indirectly to:
(a) reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code or underlying ideas or algorithms from the Service or any software or any component thereof;
(b) Copy, reproduce, modify, translate or create derivative works of the Service, or any software or component thereof other than as expressly agreed to in this Agreement;
(c) Sell, resell, lease, sublicense, market, distribute, assign or otherwise transfer rights to or commercially exploit in any way the Service, or any software or any component thereof other than as expressly agreed to in this Agreement.
(d) Use, or permit the use of the Service or any component thereof to perform information processing or any other function whatsoever for any other person, entity or business including providing information processing for a third party in any service bureau, time sharing, lease, distribution, resale, rental, service provider agreement or any other arrangement;
(e) Remove any proprietary, copyright, patent, trademark, design right, trade secret, or any other proprietary rights legends from the LALL Materials (as defined below);
(f) Disclose or grant access to any User Access Code (as defined below), the Service or any component thereof to any third party other than one to whom LALL has consented in writing;
(g) Use the Service (i) for any unlawful, unsafe, malicious or abusive purpose, (ii) for interfering with others’ use of the Service (iii) in such a way as to defraud LALL or any third party or (iv) to create damage or risk to LALL or any third party’s business, network or facilities.
(h) It is the responsibility of the Customer to ascertain and comply with all applicable Local, State, and Federal laws in regard to use of the Service. Customer should consult with an Attorney regarding such laws if clarification is required.
USER ACCOUNT, PASSWORD & SECURITY
To open an account to use the Service, Customer must complete the registration process by providing LALL with current, complete and accurate information as requested. Inaccurate details may result in suspension or termination of access to the Service without refund. LALL will assign an account name to Customer and Customer will choose a password. Customer is entirely responsible for maintaining confidentiality with regard to its password and account information. Customer is also entirely responsible for any and all activities that occur under its account.LALL is not liable for any third party claims and/or actions taken with respect to services offered, all of which liability shall be solely borne by Customer.
ACCESS TO THE SERVICE
Customer shall access the Service by means of the browser that is recommended by LALL and using equipment obtained by Customer as further described below. Customer shall access the Service through the Site and by entering Customer’s account name and password (the “User Access Code”). LALL will not be responsible for the use or misuse of any User Access Code.
Customer understands and agrees that the Service provides an approximate location of the mobile device(s) and that accuracy of results are not guaranteed. In order for the Service to work, the device(s) must be registered, turned on, charged and located in an area with network coverage by a carrier with whom the Service is integrated, amongst other factors. Accuracy of the location results is subject to network capabilities, environmental conditions, and other factors associated with use of wireless networks, satellites and satellite data. Customer agrees that results obtained from the Service may not be timely or reliable. The service currently works on devices located in the United States and Canada.
In consideration for providing the Service and the License, Customer shall purchase a credit package from LALL. Said credit package is nonrefundable and nontransferable. The credit packages sold by LALL expire after 60 days and do not transfer to new or existing accounts and/or credit packages. Customer has the option to terminate the Service by sending a request in writing to firstname.lastname@example.org with the subject line “CANCEL SERVICE”. Alternatively, Customers may cancel the Service by sending a request in writing to Steve Aaronoff, General Counsel, LOCK&LOCATE LLC, 9461 Charleville Boulevard, #240, Beverly Hills, CA 90212. All Customer requests to cancel the Service will be applied immediately; however, any unused credits are nonrefundable, thereby transferring back to LALL upon cancellation. Customer is responsible for paying any governmental taxes imposed on Customer’s purchases and use of the Service, including sales, use or value-added taxes. All sales of the Service are final and all charges from those sales are nonrefundable. Service Fees entitle Customer to a number of locates per month based upon the service plan selected. Unused locates for any month are not refundable and do not rollover to future months. Current standard service fees are as follows:
METHOD OF PAYMENT
All payments must be made by VISA, MasterCard, Discover, or AMEX , AUTO ACH DEBIT (any of which may be removed by LALL at any time in its sole discretion). Unless expressly agreed in writing, LALL does not accept any other payment form. By submitting Customer’s application for the Service to LALL, Customer authorizes LALL to charge Customer’s card as required for Customer to pay LALL any and all amounts due from Customer under this Agreement. Customer’s card issuer agreement governs Customer’s use of Customer’s designated card, and Customer should refer to that agreement to determine Customer’s rights and liabilities as a cardholder. CUSTOMER, AND NOT LALL, IS RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO CUSTOMER’S CARD BY A THIRD PARTY. CUSTOMER HEREBY WAIVES ANY RIGHT TO CLAWBACK FUNDS FROM LALL FOR ANY UNATHORIZED THIRD PARTY CHARGES. Customer agrees to pay all Fees and charges incurred in connection with Customer’s purchases and use of the Services (including any applicable taxes) at the rates in effect when the charges were incurred. Unless Customer notifies LALL of any discrepancies within thirty (30) days after they first appear on Customer’s credit card statement, Customer agrees that such charges shall be deemed accepted by Customer for all purposes. If LALL does not receive payment from Customer’s credit card issuer or its agent, Customer agrees to pay all amounts due upon demand by LALL.
CANCELLATION, SUSPENSION & TERMINATION OF SERVICE
LALL reserves the right without prejudice to any other rights to suspend and/or terminate the Service at any time for any or no reason and without notice to Customer. Customer may terminate the Service by following the terms under this Agreement. Customer can also stop service from any registered device by sending a written request to Steve Aaronoff, General Counsel, LOCK&LOCATE, LLC, 9461 Charleville Boulevard, #240, Beverly Hills, CA 90212. Customer will receive a confirmation letter confirming removal from our service. Upon termination of the Service, LALL shall have no liability to Customer or any other further obligations under this Agreement. LALL will retain any unused credits from Customer’s account; all unused credits are nonrefundable.
Mobile User can also Opt-In/Opt-Out as follows: To sign up to LALL, text YES to 84787. To Cancel text STOP to 84787. For support text HELP to 84787 or call 855-415-LOCK or email email@example.com. Message and data rates may apply. Messages will be sent to the Mobile User 2x per shipment/trip. All tracking automatically ceases once the selected tracking period ends; selected tracking will not exceed seven (7) days.
If amounts are not paid when due or if LALL does not receive payment from Customer’s applicable credit card company, such amounts will be subject to a late payment charge at the rate of one and one-half percent (1.5%) per month or the highest charge allowable by law, payable monthly, on the amounts outstanding from the time such amounts become due until payment in full is received by LALL. Any amount received by LALL while late payment charges are outstanding will be applied first to late payment charges. NSF payments will be subject to a $35.00 handling fee for each defaulted payment.
Prices set out herein are exclusive of all taxes and Customer shall pay (and LALL shall have no liability for), any taxes, tariffs, duties and other charges or assessments imposed or levied by any government or governmental agency in connection with this Agreement, including any federal, provincial, state and local sales, use, goods and services, value-added and personal property taxes on any payments due LALL in connection with the Service provided hereunder, except for tax based solely on the net income of LALL.
REMEDIES IN THE EVENT OF FAILURE TO PAY
If Customer defaults in payment of any amount when due or any interest thereon, then LALL may, in addition to any other rights or remedies at law or under this Agreement, and in its sole discretion, (i) suspend or deny Customer’s access to or use of the Service or the performance of any of its obligations under this Agreement until such failure is remedied, subject to such conditions as LALL may require; and/or (ii) terminate this Agreement. Furthermore, delinquent accounts with outstanding balances due past thirty (30) days will be submitted to collections for processing.
OWNERSHIP OF INTELLECTUAL PROPERTY
Customer acknowledges and agrees that LALL shall retain and own all right, title and interest and all intellectual property rights (including copyrights, trade secrets, trademarks and patent rights) in and to the LALL software and the LALL Site (collectively the “LALL Materials”) and all copies thereof, and that nothing herein transfers or conveys to Customer any ownership right, title or interest in or to the LALL Materials or to any copy thereof or any license right with respect to same not expressly granted herein. Customer agrees that it will not, either during or after the Term of this Agreement, contest or challenge the ownership of the intellectual property rights in the LALL Materials by LALL.
OWNERSHIP OF CUSTOMER DATA
LALL acknowledges that all Customer data, including data transmitted by Customer to LALL for processing using the LALL Service (“Customer Data”) and Customer systems used by Customer to access the LALL Service shall be and remain the property of Customer. LALL shall have the right to use and reproduce Customer Data solely to the extent necessary to provide the Service and fulfill its obligations to Customer hereunder.
ACCESS TO LALL SERVICE
Customer is responsible for obtaining all hardware, software and services which are necessary to connect to the LALL Site and access the Service including all computers, Web browsers, and services provided by an Internet service provider. All such facilities and services shall comply with LALL’s specifications for the Service described in the Documentation or as otherwise required by LALL.
It is LALL’s policy to respect Customer’s privacy. LALL will never rent, lease, sell or give away any Customer information to third parties for marketing purposes. LALL will not monitor, edit, or disclose any personal information about Customer or Customer’s LALL account, including its contents, without Customer’s prior permission unless LALL has a good faith belief that such action is necessary to: (a) conform to legal requirements or comply with legal process; (b) protect and defend the rights or property of LALL; (c) enforce this Agreement or protect LALL's business or reputation, including upon termination, cancellation or suspension of this Agreement by LALL; (d) respond to any request for identification in connection with claim of copyright or trademark infringement by Customer; (e) prevent imminent physical injury or harm to any person or prevent any suspected infringing, illegal or improper activity; in either of which event, such information shall be disclosed to any law enforcement agency making such request in regards to criminal activity; or (f) act to protect the interests of Customer or others. Customer agrees that LALL may access its account, including its contents, as stated above or to respond to service or technical issues.
CUSTOMER HEREBY GRANTS LALL THE RIGHT TO SEND CUSTOMER COMMUNICATIONS VIA SMS, E-MAIL FOR HANDSET REGISTRATION, OR ANY UPDATES, UPGRADES, NOTICES, OR OTHER INFORMATION RELATING TO THE SERVICE THAT LALL DEEMS IMPORTANT FOR CUSTOMER TO KNOW.
CUSTOMER SECURITY RESPONSIBILITIES
To the extent deemed necessary by Customer, Customer shall implement security procedures necessary to limit access to the Service to Customer and any of Customer’s authorized Users. Customer shall notify LALL immediately if there is a security breach or unauthorized use of the Service. Customer shall permit LALL to review/audit Customer’s use of the LALL Site and the LALL Service.
LALL will not be responsible or liable for any loss or damage to Customer’s Data or any inconvenience suffered by Customer or by any third person arising out of the use of the Service by Customer.
LALL shall have no responsibility for the performance, adequacy, accuracy, concurrency or other matters related to Customer systems.
Customer agrees that it shall not export or re-export the LALL Service software or any copies thereof, either directly or indirectly, outside of the jurisdiction in which Customer accesses such materials, except in compliance with all applicable laws, ordinances and regulations. Customer shall have the exclusive obligation to ensure that any such export is in compliance with all applicable export laws and the laws of any foreign country.
PROVISION OF RELEASES
At its sole option, LALL shall be entitled to prepare new versions of any LALL software that LALL generally makes available to Customers (“Update Releases”). LALL exclusively shall determine whether Update Releases shall be included in any LALL software provided pursuant to the Service. At any time, LALL may install any Update Releases and use same to provide the Service.
RIGHT TO MODIFY THE LALL SERVICE
LALL may from time to time, in its sole discretion, change some or all of the functionality or any component of the LALL Service or make any modification for the purpose of improving the performance, service quality, error correction or to maintain the competitiveness of the Service.
AS IS, WITH ALL FAULTS
LALL provides the LALL Site and Service to Customer on an “AS IS” and “WITH ALL FAULTS” basis.
(a) LALL EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING REPRESENTATIONS AND WARRANTIES OF SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LICENSORS AND SUPPLIERS OF LALL MAKE NO DIRECT WARRANTY OF ANY KIND TO CUSTOMER UNDER THIS AGREEMENT.
(b) LALL DOES NOT REPRESENT OR WARRANT THAT: (i) THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS; (ii) THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM THEIR USE WILL BE ACCURATE OR RELIABLE; OR (iii) THAT ALL DEFICIENCIES IN THE SERVICE CAN BE FOUND OR CORRECTED. FURTHER, THE SERVICE MAY BE INTERRUPTED OR UNAVAILABLE FOR THE PURPOSES OF PERFORMING MAINTENANCE OR UPGRADES. LALL WILL NOT BE RESPONSIBLE FOR: (a) SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF CUSTOMER OR ANY USER; (b) INTEROPERABILITY OF SPECIFIC CUSTOMER APPLICATIONS OR EQUIPMENT; (c) INABILITY OF CUSTOMER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET; (d) INTERACTION WITH OTHER SERVICE PROVIDERS, NETWORKS, USERS OR INFORMATIONAL OR COMPUTING RESOURCES THROUGH THE INTERNET; (e) SERVICE PROVIDED BY OTHER SERVICE PROVIDERS; OR (f) PERFORMANCE IMPAIRMENTS CAUSED ELSEWHERE ON THE INTERNET.
(c) LALL DOES NOT WARRANT THAT THE SERVICE OR ITS OPERATION WILL BE ACCURATE, RELIABLE, UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL AGENTS. CUSTOMER ACKNOWLEDGES THAT THE SERVICE IS SUPPORTED BY SATELLITE AND OVER LOCAL EXCHANGE, INTER-EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES AND OTHER DEVICES OWNED, MAINTAINED AND SERVICED BY LOCAL AND LONG DISTANCE CARRIERS, UTILITIES, SATELLITE COMPANIES, COMMUNICATIONS COMPANIES, INTERNET SERVICE PROVIDERS AND OTHER THIRD PARTIES, ALL OF WHICH ARE BEYOND LALL’S CONTROL. CUSTOMER ACCEPTS ALL RISK ARISING OUT OF OR RELATING TO THE DELAY, FAILURE, INTERRUPTION, OR CORRUPTION OF THE SERVICE. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL LALL OR ANYONE ELSE INVOLVED IN ADMINISTERING, MAINTAINING OR PROVIDING THE SERVICE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING PERSONAL INJURY, DEATH, LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, SERVICE INTERRUPTIONS, SERVER DOWNTIME, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR FAILURE OF PERFORMANCE, OF THE SERVICE, EVEN IF LALL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMIT OF LIABILITY
(a) FOR ANY BREACH OR DEFAULT BY LALL OF ANY OF THE PROVISIONS OF THIS AGREEMENT, OR WITH RESPECT TO ANY CLAIM ARISING HEREFROM OR RELATED HERETO, LALL’S ENTIRE LIABILITY SHALL IN NO EVENT EXCEED THE LESSER OF THE FOLLOWING: (i) THE FEES PAID TO LALL BY CUSTOMER PURSUANT TO THIS AGREEMENT IN THE CALENDAR MONTH IMMEDIATELY PRECEDING THE CLAIM, OR (ii) IN THE AGGREGATE WITH RESPECT TO ALL CLAIMS MADE UNDER OR RELATED TO THIS AGREEMENT, THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT.
(b) CUSTOMER AGREES THAT IT WOULD BE EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL AMOUNT OF DAMAGES RESULTING FROM ANY FAILURE OF THE SERVICE, AND THEREFORE, CUSTOMER AGREES THAT DESPITE THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY CONTAINED HEREIN, IN THE EVENT THAT LALL OR ANY THIRD-PARTY PROVIDER IS FOUND LIABLE FOR DAMAGES FOR ANY REASON OR FOR ANY CAUSE OF ACTION, THE AGGREGATE AMOUNT OF ALL DAMAGES PAYABLE BY LALL OR ANY THIRD-PARTY PROVIDER HEREUNDER SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SERVICE DURING THE CALENDAR MONTH IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
(c) IN NO EVENT WILL LALL BE LIABLE FOR DIRECT, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, LOST BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF COVER, DAMAGES FOR DELAY, PUNITIVE OR EXEMPLARY DAMAGES, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR ANY CLAIM AGAINST CUSTOMER BY ANY OTHER PERSON, EVEN IF LALL HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES.
(d) LALL SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF ANY DATA, EQUIPMENT OR SERVICES, INCLUDING THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD.
(e) LALL SHALL BE LIABLE TO CUSTOMER ONLY AS EXPRESSLY PROVIDED IN THIS AGREEMENT BUT SHALL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE TO CUSTOMER. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION BY CUSTOMER, INCLUDING BREACH OF CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE ADDITIONAL RIGHTS NOT STATED IN THIS DOCUMENT.
(f) Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement.
(g) Neither party may bring an action, regardless of form, arising out of or related to this Agreement (other than to recover fees or expenses due to LALL) more than one year after the cause of action has arisen or the date of discovery of such cause, whichever is later.
(h) Customer agrees to indemnify and hold LALL, its affiliates, employees, officers, directors and shareholders harmless from and against any claims, suits, actions or proceedings (“Claims”) brought and damages, costs (including attorneys’ fees) or judgments awarded against LALL that arise from or in connection with: (i) Claims by any person or entity to the extent that such Claims are based upon or arise out of Customer’s use of the Service or Customer’s actions; (ii) breach by Customer of this Agreement; or (iii) Customer’s failure to comply with all applicable laws. LALL shall give Customer prompt written notice of such Claims, permit Customer to defend (with counsel reasonably acceptable to LALL) and/or settle such Claims (upon terms reasonably acceptable to LALL), and give Customer all information and assistance reasonably requested by Customer in connection with such Claims.
CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS LALL AND THE THIRD-PARTY PROVIDERS AND BOTH THEIR RESPECTIVE OFFICERS, EMPLOYEES, AND AGENTS (EACH AN “INDEMNITEE”) AGAINST ANY AND ALL CLAIMS, INCLUDING CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY, DIRECTLY OR INDIRECTLY, IN CONNECTION WITH THIS AGREEMENT OR THE USE, FAILURE TO USE, OR INABILITY TO USE THE SERVICE, EXCEPT WHERE THE CLAIM RESULTS FROM SUCH INDEMNITEE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
The term of this Agreement is governed by the Service Plan associated with the Customer’s account, together with any partial calendar month resulting from the commencement of the Agreement after the first day of the initial calendar month, or as provided by the applicable Plan. The term shall be automatically extended on the first day of each succeeding calendar month, unless terminated by Customer or LALL in accordance with the terms of this Agreement.
(a) This Agreement may be terminated or Service suspended by LALL (i) if Customer fails to make any payment when due or any interest thereon to LALL, or (ii) immediately, without notice or liability to LALL, in the event of a breach by Customer of any of Customer’s obligations under this Agreement.
(b) The Agreement may also be terminated by either party (i) by either party providing the other party by the 25th day of the current month a service termination notice. The effective date of any such termination shall be the last business day of a calendar month. For the purpose of clarity, this means that any notice of termination provided after the 25th day of a calendar month shall be effective on the last business of the next and succeeding calendar month (ii) in the event the other party materially breaches any of its duties, obligations or responsibilities under this Agreement, and fails to cure such breach within thirty (30) days after receipt by the breaching party of written notice specifying the breach; or (iii) in the event: (a) a receiver, trustee, administrator, or administrative receiver is appointed for the other party or its property; (b) the other party makes an assignment for the benefit of creditors; (c) any proceedings are commenced against the other party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within thirty (30) days from the date of commencement thereof; or (d) the other party is liquidated or dissolved.
EFFECT OF TERMINATION
Except to the extent agreed to in writing by the parties, upon the termination of this Agreement:
(a) LALL shall be entitled to immediately cease providing the Service;
(b) LALL shall be entitled to immediately terminate Customer’s access to the LALL Site;
(c) Customer shall immediately pay to LALL all amounts owing under this Agreement as of the effective date of termination;
(d) if this Agreement is terminated by LALL under TERMINATION Section (a), (b)(ii) or (b)(iii), above, all amounts that would have become due under this Agreement shall automatically accelerate and become immediately due and payable by Customer to LALL;
(e) LALL shall have no obligation to refund any amounts to Customer;
(f) Customer shall, and shall cause its Users to, immediately and permanently cease to use, in any manner whatsoever, the LALL Service and the User Access Codes; and
(g) the License granted hereunder will automatically terminate.
The parties agree that the provisions of the Agreement requiring performance or fulfillment after the expiry or earlier termination of this Agreement shall survive such expiry or earlier termination. The provisions of this Agreement that by their nature are intended to survive the expiration or earlier termination, including those provisions relating to ownership, confidential information, warranty disclaimer, and limits of liability shall survive the expiration or earlier termination of this Agreement.
Customer acknowledges and agrees that the LALL Service uses industry standard cellular wireless communications services to provide the Service. Therefore, mobile devices must be on and within cellular coverage to communicate. Customer further acknowledges and agrees that LALL is not the underlying wireless carrier and that LALL may contract with third parties from time to time in connection with the provision of the Service. Accordingly, Customer acknowledges and agrees that LALL AND THE THIRD-PARTY PROVIDERS ARE NOT INSURERS AND THE AMOUNTS PAID TO LALL HEREUNDER ARE FOR THE SERVICE PROVIDED BY LALL AND NOT FOR THE VALUE OF ANY PROPERTY. IN THE EVENT OF ANY LOSS OR INJURY TO ANY PERSON OR PROPERTY BEING MONITORED BY THE SERVICE, CUSTOMER AGREES TO EXCLUSIVELY LOOK TO ITS INSURER TO RECOVER DAMAGES, AND CUSTOMER WAIVES ALL RIGHTS OF SUBROGATION OR ANY OTHER RIGHT OF RECOVERY AGAINST LALL AND THE THIRD-PARTY PROVIDERS THAT ANY INSURER OR OTHER PERSON MAY HAVE AS A RESULT OF PAYING ANY CLAIM FOR LOSS OR INJURY TO ANY OTHER PERSON. IN ADDITION, CUSTOMER AGREES THAT CUSTOMER SHALL NOT BRING ANY CLAIM OR ACTION AGAINST ANY THIRD-PARTY PROVIDER ARISING FROM CUSTOMER’S USE OF THE SERVICE. FOR PURPOSES OF THIS AGREEMENT, “THIRD-PARTY PROVIDER” MEANS ANY PERSON OR COMPANY THAT SUPPORTS OR MAINTAINS THE SERVICE, AND INCLUDES SOFTWARE AND EQUIPMENT OPERATORS AND SUPPLIERS, WIRELESS CARRIERS, MAPPING DATA PROVIDERS AND PSAP DATA VENDORS.
(a) Notice. LALL may give notice by means of a general notice through the Service, electronic mail to Customer’s e-mail address of record, or by written communication sent by first class mail to Customer’s address of record. Customer may give notice to LALL at any time by any of the following: electronic mail to firstname.lastname@example.org; letter delivered by nationally recognized overnight delivery service to LALL at the following address: Steve Aaronoff, General Counsel, LOCK&LOCATE, LLC, 9461 Charleville Boulevard, #240, Beverly Hills, CA 90212.
(b) Force Majeure. If the performance of this Agreement, or any obligation there under except the making of payments hereunder is prevented, restricted, or interfered with by reason of: fire, flood, earthquake, explosion or other casualty or accident or act of God, strikes or labor disputes, inability to procure or obtain delivery of parts, supplies, power, telecommunication services, equipment or software from suppliers, war or other violence, any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental authority, or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take reasonable steps to avoid or remove such cause of non-performance and shall promptly resume performance hereunder whenever such causes are removed.
(c) Severability. To the extent that any provision or portion of this Agreement is deemed to be invalid, illegal or unenforceable, such provision or portion shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and the remainder of this Agreement, as the case may be, shall remain binding upon the parties.
(d) Assignment. Customer may not, without LALL's prior written consent (which may be given or withheld in its sole discretion), assign or transfer this Agreement or any of its rights or obligations under this Agreement to any third person. LALL may assign this Agreement to any person or entity without the consent of Customer. LALL may delegate to affiliates of LALL and to agents, suppliers and contractors of LALL any of the obligations herein imposed upon LALL and LALL may disclose to any such persons any information required by them to perform the duties so delegated to them.
(e) Amendment and Waiver. LALL reserves the right to change the terms and conditions of this Agreement or its policies relating to the Service at any time. Continued use of the Service after any such change shall constitute your consent to such changes. A failure or delay by LALL to enforce any right under this Agreement shall not at any time constitute a waiver of such right or any other right, and shall not modify the rights or obligations of either party under this Agreement.
(f) Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to conflict or choice of law rules or principles. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the court of the State of California located in Los Angeles County or in the United States District Court for the Central District of California for the purposes of any suit, action or other proceeding arising out of this Agreement or the subject matter hereof brought by any party hereto; and (b) hereby waive and agree not to assert as a defense or otherwise, in any such suit action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced by such court.
(g) Forum for Disputes. You also acknowledge and understand that, with respect to any dispute with LALL, its officers, directors, employees, agents or affiliates, relating to or arising from your use of The Service or this Agreement: YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; and YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING SUCH DISPUTE.
(h) Miscellaneous. All covenants, agreements, representations and warranties made in this Agreement shall survive your acceptance of this Agreement and the termination of this Agreement.
(i) Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing any meanings contained in this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) references to one gender include all genders, (iii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iv) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (v) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
(j) Attorneys’ Fees. If any legal action is necessary in order to enforce any of the terms of this Agreement or the relationship between Customer and LALL, the prevailing party in any such action shall be entitled to recover its reasonable attorneys' fees and costs from the non-prevailing party.
(k) Entire Agreement. This Agreement sets forth the entire agreement of the parties, and supersedes prior agreements between the parties, relating to the subject matter contained herein and merges all prior discussions between them, and neither party shall be bound by any definition, condition, provision, representation, warranty, covenant or promise other than as expressly stated in this Agreement or as contemporaneously or subsequently set forth in writing and executed by a duly authorized officer or representative of the party to be bound thereby.