Terms of Use

Masimo SafetyNet Opioid™

IMPORTANT – PLEASE READ CAREFULLY

These Terms of Use are a legally enforceable contract between you and Masimo Americas, Inc. (“Masimo”). They govern your use of the Masimo SafetyNet Opioid™ system (the “System”). It is important that you read these Terms of Use. They will help you understand how the System works, its limitations, and the risks you assume by using it. They also affect your privacy rights. You must be at least 18 years old to use the System. This applies whether you are using the System for yourself or others.

When you click the “I ACCEPT” button below or when you download, install, or use the Masimo SafetyNet Opioid mobile application (the “App”), or when you use the System, or any part of the System or service, you are agreeing to be legally bound by these terms and conditions. You will also be legally bound to any third party terms and conditions that apply to your use of the System, including any applicable third party licenses.

How the System Works

The System can detect if your oxygen saturation (“O₂”) levels drop below certain limits. Low O₂ levels for too long a period are a serious risk for anyone taking opioids. They may reflect a more serious condition of opioid-induced respiratory depression. The System can be set up to notify you and people that you designate when your levels drop below these limits (“Emergency Contacts”). Emergency Contacts might include your family members, friends, or caregivers. The System can also be set up to contact emergency medical services first responders, such as police, ambulances and paramedics (“EMS”) to come to your aid in more extreme cases when your O₂ levels drop below certain limits.

The System consists of a wrist-strapped Bluetooth^® chip (“Chip”) , a fingertip sensor (“Sensor”), and a base station that captures O₂ levels from the sensor (the “Bedside Station”) (the Chip, the Sensor and the Bedside Station, collectively the “Device”) and the App which displays O₂ levels . The System is used in conjunction with your supported mobile device to communicate with a network of servers that stores and analyzes your data, and triggers notifications based on how you set up the System. Please read all the information that comes with the Device packaging and inside the App. This includes the user manual and all product inserts. These materials contain instructions on how to use the System, its limitations, and important safety information.

CAUTION

The System is a medical device and monitoring system. It is meant to be used in addition to, and not as a replacement for, other steps and safety measures to consider while taking opioids. These include following the directions of your health care professional. Not using the System correctly could result in the System not providing an accurate O₂ measurement or any measurement at all. It could also mean you, your Emergency Contacts, and EMS may not be notified as to your condition. This could result in severe bodily injury or death.

Masimo does not guarantee that 1) the System will operate error-free; 2) you are able to use it properly; (3) Wi-Fi and Internet connections are always available and working; or (4) the System is fail-safe or foolproof. It is important to understand there are limitations with using any medical device. You must take reasonable precautions in addition to using the System.

Before using the System, you must read and agree to all of the following:

• Privacy As detailed in Section 4 below (Privacy Notice), the System will store your personal information. This includes your name, phone number, email address, password, physical address, contact information of your Emergency Contacts, and monitoring data measured by the System. This information will be stored on a cloud-based storage and computing system hosted by Masimo, or a company we choose. Masimo will not have access to this information, except as detailed in these Terms of Use. If you choose to allow it, the System will send your information to a third party (Emergency Contacts and/or EMS) when it detects certain events. Your information will be encrypted and protected by a set of controls for protecting this kind of information, but there is no guarantee that your information won’t be “hacked” or otherwise breached. By using the System, you agree to assume these risks.
  
  
• Risk of System Failure. The System requires the Sensor and Chip to be connected wirelessly to the Bedside Station using Bluetooth^®. The Bedside Station needs to be connected to a power outlet and be actively connected to Wi-Fi with working Internet access. If there is a loss of power to the Bedside Station, or if the wireless connection between the Sensor/Chip to the Bedside Station or Bedside Station to the Internet is lost, the System will not operate properly. These possible failures (among others) are why you should not rely solely on the System and have other ways of monitoring and reacting to changes in your O₂ levels. As further detailed in Section 6 below (Disclaimer of Warranties), you agree not to rely solely on the System. You also assume the risk that the System may fail.
  
  
• Emergency Contact Permission and Failure to Designate Emergency Contacts and Set Up EMS Notifications. You have the option in the App to provide contact information for Emergency Contacts to be sent notifications if your O₂ levels fall too low for too long. As further detailed in Section 2 below (User Requirements), you agree that, (i) you have permission from the Emergency Contact to use this information, (ii) the Emergency Contact has agreed to receive the notifications and to respond to them, (iii) the contact information for the Emergency Contact is accurate and up to date, and (iv) you trust the Emergency Contact with the information contained in the notifications. Masimo does not assume responsibility for any action or failure to act by any Emergency Contact you choose to notify. Masimo expressly disclaims this responsibility. Further, the System features that send notifications to your Emergency Contacts and/or EMS require you to actively opt in to these features and take steps to set them up in the App. If you do not opt in to these features and take these steps, no one will be contacted to come to your aid if your O₂ levels drop too low for too long and only you will be responsible for seeking help.
  
  
• Emergency Response Costs. If you set up the System to send an notification to EMS, you are solely responsible for any costs involved with their aid. These costs may be significant and may not be covered by your health insurance plan (if any). You assume these costs even if the emergency situation has been resolved by the time they arrive or if the notification is a false alarm.
  
  
• Responder Mistakes. The System only contacts your Emergency Contacts and/or EMS based on how you set up the System. Masimo cannot control and is not responsible for their actions or failures to act. Masimo cannot and does not guarantee that they will respond in a timely manner or at all.
  
  
• No Medical Advice. As further detailed in Section 6 below (Disclaimer of Warranties), Masimo does not offer any medical, clinical or diagnostic information, advice, or opinions as part of the System. The System will not remind you to take any medication, and it is not a substitute for medical care from a health care professional. Before using the System, you should consult with your health care professional. Make sure you understand how the System works, its limitations, and what other procedures and precautions you should take in addition to the System.
  
  
• Geographic Limitations. The System will only work in the United States.
  
  

Masimo reserves the right to change these Terms of Use at any time and for any reason. We will notification you about any changes by updating the “Last Updated” date of these Terms of Use, and you waive any right to receive specific notice of each change. It is your responsibility to periodically review these Terms of Use to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the App after the date the revised Terms are posted. If you don’t agree with any change, your only option is to stop using the System.

Table of Contents

1. The System
2. User Requirements
3. Changes
4. Privacy Notice
5. Limited Warranty
6. Disclaimer of Warranties
7. Limitation of Liability
8. Sole Remedy and Allocation of Risk
9. Limited License
10. Ownership
11. Restrictions
12. Updates
13. No Support
14. Your Indemnification
15. Third Party Licenses
16. Use Restrictions
17. Termination
18. Resolution of Disputes
19. Miscellaneous

TERMS OF USE

1. The System. The System monitors a user’s oxygen saturation (“O₂”) levels. O₂ levels that are too low for too long a period of time may be the result of opioid induced respiratory depression. When O₂ levels reach this point, the System can be used as an escalating notification system to first notification the user, then notify the user’s Emergency Contacts, and then notify EMS for possible intervention. While the O₂ thresholds that trigger an notification cannot be changed, the user decides in advance whether to include Emergency Contacts and/or EMS as part of their notification escalation. A user may choose to include one or both levels of notification escalation. A System user may also choose not to notification anyone other than themselves when an event occurs. When a user has included Emergency Contacts and/or EMS as part of their notification escalation, they will still have the opportunity to resolve the situation on their own and bring their O₂ levels back up to the normal range. If the user is unable to do so or does not turn the alarm off within a set period of time, the System is designed to automatically notify the user’s Emergency Contacts and/or EMS.
   
   All the components are designed to work together as a system. It is your responsibility to only use Masimo-supplied components and software and your supported mobile device with the System. From time to time, Masimo may approve the use of third-party manufactured or supplied components, software, and/or accessories. You should only use the System with Masimo-manufactured or supplied components, software, and/or accessories or other items that are specifically approved by Masimo to be used with the System. Using any unapproved components, software, and/or accessories (including unsupported mobile devices) will void the limited warranty and may cause the System to fail, work improperly, measure O₂ levels inaccurately, or cause serious bodily injury or death. You assume the risk of using the System with unapproved components, software, and/or accessories.
   
   
2. User Requirements. To effectively use and benefit from all of the features of the System, you must (i) obtain the Sensor, Chip and Bedside Station, (ii) download the App to your supported mobile device, (iii) follow the instructions to set up a user account (iv) decide to include and then input the contact information of Emergency Contacts to receive notifications from the System, (v) decide to include and then input your contact information for possible EMS response, and (vi) connect the Bedside Station to a reliable Wi-Fi network with a working Internet connection. You must set up all these things correctly for all of the System features to work. Masimo is not responsible for any data charges you incur through your cellular or Internet service provider. When you input information into the App, it is critical that you (a) provide accurate, current, and complete information; and (b) update information as needed to keep it accurate, current, and complete at all times. You assume any risk for failing to comply with these critical requirements. This includes but is not limited to any bodily harm or death that results from, or any legal claim that may arise out of incorrect setup, providing incorrect contact information or providing it without permission. You are responsible for maintaining the confidentiality of your account user name, email address, and password and agree to immediately notify Masimo of any unauthorized use of your account, or any other breach of security.
   
   Before you enter the contact information of your Emergency Contacts in the App, you agree to obtain their permission to give Masimo access to their name, email address, phone numbers, and any other user-created descriptions for them. You also agree to obtain their permission to receive notifications from the System. This is critical to make sure that (i) they agree to be notified if the System alarm is triggered and they agree to help you as they are able, (ii) they understand you are providing their personal information to Masimo, and (iii) they may be charged by their phone service carrier for any text message notifications sent to them by the System. Masimo is not responsible for these data charges.
   
   
3. Changes. From time to time, Masimo may make changes to the System or to its features and operation. These changes may include adding new features and functions that may include additional fees to use them. Masimo will notify you of any changes, where that notice may be through the App. The use of these new features and functions is subject to these Terms of Use and any additional fees. If any change is not acceptable to you, your options are to stop using the System or not use these new features and functions. Your continued use of the System after the changes are posted means that you accept the changes and any contract terms related to them, including incurring any related charges.
   
   
4. Privacy Notice. By providing your personal information to Masimo or allowing the App to use the location services feature of your phone, you are giving Masimo and its service providers permission to collect and use the information in connection with your use of the System. You are also agreeing that Masimo may collect, store, and share your personal information in accordance with Masimo’s Privacy Notice located at https://www.masimo.com/company/masimo/privacy. Further, you are agreeing that Masimo may provide your Emergency Contacts and EMS, the information contained in the notifications.
   
   
5. Limited Warranty. Masimo warrants to the original purchaser of the Device, for the warranty period, that any new hardware or sensor component (properly identified by Masimo’s trademark and trade dress) included with the Device will be free from defects in material and workmanship, as long as used in accordance with its directions for use and subject to the limitations below. The warranty period begins on the purchase date and continues: (i) for a period of one (1) year for the Chip and the Bedside Station and (ii) for the Sensor, until the end of the specified battery life or the expiration date, both as listed on the packaging, whichever occurs first. To the extent permitted by law, Masimo’s sole obligation under this limited warranty is the repair or replacement, at its option, of the defective component. Any replacement component will be warranted for the remainder of the original warranty period or 30 days from the date of replacement, whichever is longer, or for any additional period of time that may be required by applicable law. To request a replacement under warranty, the original purchaser must contact Masimo and obtain a Return Merchandise Authorization so that Masimo can track the component. Masimo may require an original purchase receipt. If Masimo determines that a component must be replaced under warranty, it will be replaced and the cost of return shipment to the purchaser covered. All other shipping costs must be paid by purchaser unless prohibited by law. This warranty is in addition to any statutory rights provided to the purchaser under applicable laws and regulations of the region in which the product was sold to the extent that those rights cannot be disclaimed or superseded by the above described warranty under applicable laws and regulations of the region in which the product was sold.
   
   The limited warranty above does not apply to any (a) software that is embedded or provided or used with the Device (including without limitation the App) or to any component of the Device that was: (i) not new or in its original packaging when supplied to purchaser; (ii) modified; (iii) used with components, accessories (including unsupported mobile devices), or software not supplied or approved for use by Masimo; (iv) disassembled or repaired by anyone other than a person authorized by Masimo; (b) normal wear and tear; or (c) damage resulting from accident, misuse, abuse, or negligence or failure to use the System in accordance with the instructions; or (d) any non-Masimo product even if included or sold with the System.
   
   
6. Disclaimer of Warranties. Except as expressly provided in these Terms of Use or where prohibited by applicable law , the System is provided “as is” . For the avoidance of doubt, this disclaimer applies to any software embedded, or provided or used with the System (including without limitation the App) and any network on which the user operates the System. There is no other warranty provided for the System of any kind, whether express, implied, or statutory. This includes, without limitation, any implied warranties of non-infringement, merchantability, fitness for a particular purpose, satisfactory quality, or reasonable care. Neither Masimo nor its licensors represent or warrant that the System, (i) will satisfy your requirements, (ii) is without defect or error, or (iii) will operate timely, uninterrupted or error free. Masimo does not warrant the accuracy of any results obtained from the use of the System. You understand and agree that any download of the App for use on your mobile device is at your own discretion and risk and that you will be solely responsible for any damages to your mobile device or loss of data that may result. Under no circumstances will Masimo be liable to any user on account of (a) disruption or delays to the user’s Internet or other network connection; (b) compatibility of the App with the user’s mobile device or (c) that user’s use or misuse or reliance on the System. Some jurisdictions do not allow certain disclaimers or limitations of warranties, so some of these may not apply to you.
   
   You understand that Masimo is only providing a monitoring device and system. Masimo is not a health care professional nor does it provide medical or health care advice or services. The System is not a replacement for proper medical care, and you agree that you are solely responsible for obtaining proper treatment for your conditions. You should not stop any procedures for prevention or monitoring of opioid use or overdose that you were following before using the System. The System is not meant to replace any of these procedures. It is only to be used as an additional tool to monitor your O₂ levels when taking opioids under the direction of your healthcare provider. You specifically acknowledge and agree that you have been informed not to rely on the System as your sole means of protecting yourself from complications arising from the use of opioids. And you acknowledge and agree that you will continue to use any and all monitoring procedures and other precautions you used or would use if the System was not available.
   
   Masimo does not warrant and is not responsible for the actions or inactions of anyone you designate to receive notices from the System. This would include, without limitation, a failure to respond in a timely manner, any medical intervention that the person may or may not provide, or any other malpractice or negligence that may result from their actions or failures to act. This includes the actions or inactions of EMS. Further, Masimo will not be liable for any property damage caused by the person when they respond to a notification from the System.
   
   
7. Limitation of Liability. To the maximum extent permitted by law, even if a remedy fails its essential purpose (i) in no event will Masimo, its licensors, or affiliates be liable for any special, incidental, indirect or consequential damages whatsoever, including without limitation, damages for loss of profits, loss or corruption of data, data breach, business interruption, loss of information, or any other pecuniary loss. This covers whether the claim or damages are based on warranty, contract, tort (including negligence), extra-contractual liability, strict liability or any other legal theory, even if a party has been advised of the possibility of such damages; and (ii) in no event will Masimo’s entire liability to you or any other party for any loss or damage resulting from any claims, demands or actions arising out of these Terms of Use or from your use of or inability to use the System, exceed the amount actually paid or payable by you for the use of the System. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitations may not apply to you. In these states and jurisdictions, the liability of Masimo, its licensors, and affiliates will be limited to the greatest extent permitted by law. This section will survive the termination of these Terms of Use.
   
   
8. Sole Remedy and Allocation of Risk. Your sole and exclusive remedy and Masimo’s sole and exclusive liability are set forth in these Terms of Use. You acknowledge and agree that these Terms of Use define a mutually agreed-upon assignment and allocation of risk.
   
   
9. Limited License. Subject to your compliance with these Terms of Use, Masimo grants you a non-exclusive, non-transferable, non-sublicensable, and limited license (i) to install and use the App, in object code version, on your supported mobile device for your personal use solely in accordance with its operator’s manual, product inserts, and other documentation included with it and (ii) to use Masimo’s and its affiliates’ intellectual property embodied in the System solely for your personal use in accordance with its user manual, product inserts, and other documentation included with it. Any breach by you of these Terms of Use automatically revokes the limited license granted in this Section.
   
   
10. Ownership. You acknowledge that the System (including, without limitation, the Device and the App) embodies and is the intellectual property of, and is owned by, Masimo and its licensors. The structure, sequence and organization of the App are the valuable trade secrets and confidential information of Masimo and its licensors. The App is protected by copyright, including, without limitation, by United States copyright law, international treaty provisions and applicable laws in the country in which it is used. You acknowledge that Masimo, and its licensors, retain the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the System (including, without limitation, the Device and the App). You will take no actions which adversely affect Masimo’s intellectual property rights in the System. These Terms of Use are a license and not an agreement for sale. No title to, or ownership of, the System (including without limitation the Device and the App), or any intellectual property rights subsisting therein, is transferred to you. Masimo and its licensors reserve all rights not expressly granted to you in these Terms of Use.
    
    
11. Restrictions. The System is licensed solely for your personal use and any other use, including for third parties, is expressly prohibited. Without limiting the generality of the foregoing, you may not nor may you permit any other party to: (i) make copies of any software (including the App) used in or with the System, (ii) disassemble, decompile, reverse engineer, or translate any part of the System, or otherwise attempt to reconstruct or discover the source code of any software used in or with the System, except and only to the extent that such activity is expressly permitted by applicable law, (iii) modify or create derivative works based upon the System or any software used in or with the System, (iv) externally distribute, sublicense, resell, encumber or otherwise transfer any software used in or with the System, (v) rent, lease, lend, or use any software used in or with the System, or any part thereof, for timesharing or bureau use, (vi) allow a third party to copy, access, or use any software used in or with the System (except as expressly provided in these Terms of Use), (vi) alter or remove any copyright, trademark or other proprietary notice which may appear in the App or on the Device, (vii) take any action that would cause any software used in or with the System to be placed in the public domain or become subject to open source license agreements, or (viii) use the System in any manner that violates any statute, law, rule, regulation, directive, guideline, or bylaw whether presently in force or that may be implemented by federal, state or local authorities.
    
    
12. Updates. Masimo may modify or discontinue any feature or content of the System at any time and without notice. Masimo is not liable to you or to any third party for any modification or discontinuance of any feature of content of the System. Except as otherwise expressly provided herein, these Terms of Use will govern any updates and upgrades to the App that Masimo makes available, unless such updates and upgrades are provided under a separate license agreement. You may use the updates or upgrades only in conjunction with your then-existing App licensed under these Terms of Use. The App and all updates and upgrades are licensed as a single product and the updates and upgrades may not be separated from the App to exceed the scope of your original license. Masimo reserves the right to determine the timing and content of any updates to the App.
    
    
13. No Support. Except as expressly required by applicable law, nothing in these Terms of Use entitles you to any support, maintenance or new versions of the System. You may contact Masimo to determine the availability of support, maintenance, and new versions, and the fees, terms and conditions that would apply.
    
    
14. Indemnification. You agree to fully indemnify and completely hold harmless Masimo, its affiliates, licensors, suppliers and other contract relationships, and the officers, directors, employees, consultants, and agents of each, from any and all liabilities, claims, expenses, damages, including reasonable legal fees and disbursements, arising out of or relating to, (i) any information you submit or transmit through the System, (ii) the use of the System or any of its components or parts, (iii) your failure to comply with any applicable laws, (iv) any act or omission which is, or can be determined to be, a breach of any term or condition in these Terms of Use, or (v) your violation of any rights of any other person or entity.
    
    
15. Third Party Licenses. You understand and agree that, although provided to you by Masimo with the App, your use of third-party software will be and is governed by the relevant terms of the third-party licenses set forth on Schedule A. The ownership terms in Section 9 (Limited License) and the restrictions in Section 10 (Ownership) do not apply to third-party software. You understand and acknowledge that under the third-party licenses, third-party software is being provided “as is” without any warranty, including, but not limited to, the implied warranties of non-infringement, merchantability, satisfactory quality, reasonable care, or fitness for a particular purpose. If there is a conflict between these Terms of Use and Schedule A with respect to third-party software, the provisions of Schedule A will prevail.
    
    
16. Use Restrictions. You agree to only use the System in the United States. Your breach of this clause is cause for immediate termination of these Terms of Use and your right to use the System.
    
    
17. Termination. Masimo may terminate these Terms of Use and discontinue the System or any component or part thereof (including the App) at any time at its sole discretion and without notice or liability to you. In addition, the rights granted under these Terms of Use will automatically terminate without notice if you fail to comply with any material provision of these Terms of Use. In such event, you must immediately stop using the System and uninstall the App from your smart phone. You may also choose to terminate your access and use of the System at any time by deleting the App from your mobile device. This will not limit or affect any remedy available to Masimo for your breach of these Terms of Use.
    
    
18. Resolution of Disputes.
    • (a) You agree that all disputes between you and Masimo arising out of or relating to these Terms of Use or the System (“Disputes”) will be governed by the procedure outlined below. Before filing a claim against Masimo, you agree to try to resolve the Dispute informally by contacting Masimo. All negotiations under this Section will be confidential and will be treated as compromise and settlement negotiations under all applicable laws. You further agree that if the Dispute is not resolved within 60 days after submission, you or Masimo may bring a formal arbitration proceeding administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, Masimo may seek injunctive relief in any court of competent jurisdiction to stop the unauthorized use or abuse of the System or the infringement of Masimo’s intellectual property rights without first engaging in arbitration or the informal Dispute-resolution process described above.
    • (b) Claims will be heard by a single arbitrator. The place of arbitration will be Orange County, California. The arbitration will be governed by the laws of the State of California.
    • (c) Except as required by law, neither party nor any arbitrator may disclose the existence, contents, or results of any Dispute or arbitration under these Terms of Use without the prior written consent of both parties. Any documentary or other evidence produced in any arbitration will be treated as confidential and will not be disclosed to any third party (other than a witness or expert used during the arbitration), except as required by law.
    • (d) The arbitrators will award to the prevailing party if any, as determined by the arbitrators, all reasonable Costs and Fees. "Costs and Fees" means all reasonable pre-award expenses of the arbitration, including the arbitrators' fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys' fees. Any award granted by the arbitrators will be final and binding on the parties unless appealed in accordance with the AAA’s Optional Appellate Arbitration Rules within 30 days following the award by filing a Notice of Appeal with any AAA office. Following the appeal process, the decision rendered by the appeal
    • (e) The United States Arbitration Act, as amended to date (the “Federal Arbitration Act”), will govern the interpretation, enforcement and all proceedings of the arbitration. To the extent that the Federal Arbitration Act is inapplicable, or held not to require arbitration of a particular claim or claims, the arbitration law of California will apply.
      
      
19. Miscellaneous.
    • (a) If you are a unit or agency of the United States Government, the following applies: App is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in Subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in Subparagraph 252.227-7013 (c)(1)(ii) of the Rights in Technical Data and Computer Software at DFARS, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Masimo Americas, Inc.
    • (b) You may not assign, sublicense, or transfer these Terms of Use, the App, or any rights or obligations hereunder without prior written consent of Masimo. Any such attempted assignment, sublicense, or transfer without Masimo’s consent will be null and void. Masimo may terminate these Terms of Use in the event of any such attempted assignment, sublicense, or transfer without Masimo’s consent. Masimo may assign or transfer these Terms of Use without restriction.
    • (c) These Terms of Use are in the English language only, and will only be provided in the English language. Any version of these Terms of Use in any other language will not be binding on the parties to these Terms of Use. All communications and notices to be made or given pursuant to these Terms of Use must be in the English language.
    • (d) These Terms of Use constitute the final and complete understanding between you and Masimo with respect to the subject matter.
    • (e) If any provision in these Terms of Use is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law. All other provisions of these Terms of Use shall remain in effect.
    • (f) Failure or delay on the part of Masimo to exercise any right, power, privilege, or remedy will not constitute a waiver of, or bar the later exercise of, that or any other right, power, privilege, or remedy of Masimo.
    • (g) No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of these Terms of Use.

RapidSOS End User License Agreement

Last Updated: December 11, 2019

Welcome, and thank you for your interest in RapidSOS, Inc. (“RapidSOS”, “we,” or “us”) and our emergency response technology and any other services provided by us and on which a link to these Terms of Use is displayed (the “RapidSOS Service”). These Terms of Use are a legally binding contract between you (“you”) and RapidSOS regarding your use of the RapidSOS Service.

PLEASE READ THE FOLLOWING TERMS OF USE CAREFULLY. BY USING THE RAPIDSOS SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS OF USE, INCLUDING THE RAPIDSOS PRIVACY POLICY (TOGETHER, THESE “TERMS”). If you are not eligible, or do not agree to these Terms, then you do not have our permission to use the RapidSOS Service.

These Terms provide that all disputes between you and RapidSOS will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the “Dispute Resolution and Arbitration” section below for the details regarding your agreement to arbitrate any disputes with RapidSOS.

The parties hereby agree as follows:

1. RapidSOS Service Overview
   The RapidSOS Service provides an additional avenue for registered individuals to communicate with and receive certain information from participating organizations regarding safety, emergency response services, public health, and other services. In general, there are three kinds of end-users of the RapidSOS Service:
   • If you use the RapidSOS Service to communicate with Emergency Service Providers (as defined below) or receive communications from Notification Providers (as defined below) you are a “Subscriber.”
   • If you are a safety or emergency response provider including, without limitation, 9-1-1 or equivalent fire, police, emergency medical, emergency management, campus safety officials, or public health services and you use the RapidSOS Service to receive information from Subscribers in order to facilitate the provision of safety or emergency services you are an “Emergency Service Provider.”
   • If you use the RapidSOS Service to send emergency and general interest notifications and updates to Subscribers, you are a “Notification Provider.”
   
   The features that are made available to you via the RapidSOS Service may vary depending on if you are registered as a Subscriber, Emergency Service Provider, or a Notification Provider. Some of the provisions in these Terms will only apply to certain types of end-users and we have noted where this is the case.
   
   
2. RapidSOS Service Within the Platform
   Access to the RapidSOS Service may have been made available to you as separate feature that is part of a program, platform or device (“Platform”) that you obtained from a third party (“Platform Provider”). Your use of any part of the Platform other than the RapidSOS Service is governed by the agreement between you and the Platform Provider. You agree that RapidSOS is not responsible or liable for any part of the Platform other than the RapidSOS Service.
   
   
3. Eligibility
   You must be at least sixteen (16) years of age to use the RapidSOS Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least thirteen (16) years of age; (b) you have not previously been suspended or removed from the RapidSOS Service; and (c) your registration and your use of the RapidSOS Service is in compliance with all applicable laws and regulations. If you are using the RapidSOS Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
   
   
4. Accounts and Registration
   • 4.1 To access most features of the RapidSOS Service, you must register for an account either directly with RapidSOS or through the Platform. If you register for an account directly with RapidSOS, you may be required to provide us with some information about yourself, such as your e-mail address, phone numbers or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. Your account information will also include any other information (which may include personally identifiable information or health-related information) that you enter into or provide to the RapidSOS Service. If you register for your account directly with RapidSOS, you will be asked to provide RapidSOS with a password. You are solely responsible for maintaining the confidentiality of your account and password. Regardless of whether you registered your account with RapidSOS or through the Platform, you agree to accept responsibility for all activities that occur on the RapidSOS Service under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at support@RapidSOS.com.
     
     
   • 4.2 You understand and accept full legal responsibility for the content, accuracy, and sufficiency of all information that you include or do not include as part of your account. When using the RapidSOS Service, you should only provide the information you want Emergency Service Providers to have access to. All information within your account on the RapidSOS Service is subject to the RapidSOS Privacy Policy as well as the privacy policy of the Platform Provider.
     
     
   • 4.3 By creating an account with RapidSOS or through the Platform, you agree that RapidSOS may contact you to validate the phone number(s) you register with your account. You also agree that if another individual registers and validates a phone number that you had previously registered, the phone number will be removed from your account and assigned to the other individual.
     
     
   • 4.4 You must confirm with the Platform Provider, at least once every six (6) months, that the information within your account is accurate. Failure to do so may prevent your ability to use the RapidSOS Service.
     
     
   • 4.5 You agree your account will only include information about adults or children for whom you have appropriate legal responsibility or appropriate prior consent, and that the account does not infringe upon or invade the privacy of anyone.
     
     
   • 4.6 You understand and agree that you are the only person authorized to create or edit your account, unless you have authorized another person to use your username and password to enter or modify your account on your behalf. You authorize RapidSOS to release any or all of your account information to any person to whom you have provided the username and password associated with your account or phone number.
     
     
   • 4.7 You understand and agree that once the content of your account is made available to Emergency Service Providers, it may be transmitted over unsecured Emergency Service Provider radios or may otherwise be made accessible through unsecured communications as part of the information disseminated to or by Emergency Service Providers responding to a 9-1-1 call or to an emergency. You further understand that the content of your account may be stored as part of a public record associated with an emergency call if required by local statutes.
     
     
   • 4.8 If you are a Subscriber, you understand and agree and hereby authorize RapidSOS to release and disclose your account information to Emergency Service Providers and Notification Providers in connection with the RapidSOS Service. If you are an Emergency Service Provider or Notification Provider, you understand and agree and hereby authorize RapidSOS to release and disclose your account information to Subscribers in connection with the RapidSOS Service.
     
     
   • 4.9 As part of your account, you may have identified additional contacts or additional persons in your household (”Additional Contacts”). If you are a Subscriber, you understand and agree that RapidSOS or any Emergency Service Providers may, for reasons outside their control, be unable to contact or to notify any Additional Contacts in any emergency situation. If you are an Emergency Service Provider or Notification Provider, you understand and agree that RapidSOS may, for reasons outside their control, be unable to contact or notify any Additional Contacts of any information relating to your use of the RapidSOS Service.
     
     
5. Prohibited Conduct. BY USING THE RAPIDSOS SERVICE YOU AGREE NOT TO:
   • 5.1 use the Platform or the RapidSOS Service for any illegal purpose or in violation of any local, state, national, or international law;
     
     
   • 5.2 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
     
     
   • 5.3 post, upload, or distribute content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
     
     
   • 5.4 interfere with security-related features of the Platform or the RapidSOS Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Platform or the RapidSOS Service except to the extent that the activity is expressly permitted by applicable law;
     
     
   • 5.5 interfere with the operation of the Platform or the RapidSOS Service or any other user’s enjoyment of the Platform or the RapidSOS Service, including by: (a) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Platform or the RapidSOS Service; (c) attempting to collect, personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Platform or the RapidSOS Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
     
     
   • 5.6 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other RapidSOS Service or Platform account without permission, or falsifying your age or date of birth;
     
     
   • 5.7 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 10) or any right or ability to view, access, or use any Material; or
     
     
   • 5.8 attempt to do any of the acts described in this Section 5, or assist or permit any person in engaging in any of the acts described in this Section 5.
     
     
6. Third-Party RapidSOS Services and Linked Websites
   RapidSOS may provide tools through the RapidSOS Service that enable you to export information, including your account information, to third party services including, but not limited to, the Platform. By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The RapidSOS Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
   
   
7. Termination of Use; Discontinuation and Modification of the RapidSOS Service
   If you violate any provision of these Terms, your permission from us to use the RapidSOS Service will terminate automatically. In addition, RapidSOS may in its sole discretion terminate your account on the RapidSOS Service or suspend or terminate your access to the RapidSOS Service at any time, with or without notice. We also reserve the right to modify or discontinue the RapidSOS Service at any time (including by limiting or discontinuing certain features of the RapidSOS Service) without notice to you. RapidSOS together with the Platform Provider may decide to charge a fee for the use of all or certain features, and you will be provided with prior notice before such fees take effect. We will have no liability whatsoever relating to any change to the RapidSOS Service or any suspension or termination of your access to or use of the RapidSOS Service. You may terminate your account at any time by terminating your account with the Platform. If you terminate your account, or if your access to the RapidSOS Service is terminated for any other reason, then RapidSOS will no longer provide you with the RapidSOS Service or provide your account to Emergency Service Providers. RapidSOS may retain Your Content or account information after your account is terminated. Termination of your account or your access to the RapidSOS Service may also lead to termination of your account and your access to the Platform.
   
   
8. Privacy Policy; Additional Terms
   • 8.1 Privacy Policy. Please read the RapidSOS Privacy Policy (https://www.rapidsos.com/privacy/) carefully for information relating to our collection, use, storage and disclosure of your personal information. The RapidSOS Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
     
     
   • 8.2 Additional Terms. Your use of the RapidSOS Service is subject to all additional terms, policies, rules, or guidelines applicable to the RapidSOS Service or certain features of the RapidSOS Service that we may post on or link to from the RapidSOS Service (the "Additional Terms"), such as end-user license agreements for any downloadable software applications, or rules applicable to a particular feature or content on the RapidSOS Service, subject to Section 10 below. All Additional Terms are incorporated by this reference into, and made a part of, these Terms. Your use of any part of the Platform other than the RapidSOS Service is governed by the agreement between you and the Platform Provider, including the Platform Provider’s privacy policy.
   
   
   
9. Modification of these Terms We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be notified of the modified Terms in order to continue to use the RapidSOS Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
   
   
10. Ownership; Proprietary Rights
    The RapidSOS Service is owned and operated by RapidSOS. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the RapidSOS Service (“Materials”) provided by RapidSOS are protected by intellectual property and other laws. All Materials contained in the RapidSOS Service are the property of RapidSOS or our third-party licensors. Except as expressly authorized by RapidSOS, you may not make use of the Materials. RapidSOS reserves all rights to the Materials not granted expressly in these Terms. You acknowledge and agree that any feedback, comments or suggestions you may provide regarding the RapidSOS Service ("Feedback") will be the sole and exclusive property of RapidSOS and you hereby irrevocably assign to us all of your right, title and interest in and to all Feedback. Any data that we generate from your usage of the RapidSOS Service will be owned by RapidSOS and handled subject to the terms of our Privacy Policy, as applicable.
    
    
11. Indemnity
    You agree that you will be responsible for your use of the RapidSOS Service, and you agree to defend and indemnify RapidSOS, the Platform Provider and each of their officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the ”Indemnitees”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the RapidSOS Service or the Platform; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party including, but not limited to, the Platform Provider. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
    
    
12. Disclaimers; No Warranties
    BY USING THE RAPIDSOS SERVICE, YOU AGREE THAT RAPIDSOS CANNOT CONTROL THE MANNER IN WHICH EMERGENCY SERVICES ARE RENDERED, AND THEREFORE CANNOT AND DOES NOT GUARANTEE THAT EMERGENCY SERVICE PROVIDERS WILL UTILIZE THE INFORMATION PROVIDED. NOT ALL EMERGENCY SERVICE PROVIDERS HAVE ACCESS TO THE RAPIDSOS SERVICE AND THE RAPIDSOS SERVICE MAY NOT BE UTILIZED BY EMERGENCY SERVICE PROVIDERS THAT DO HAVE ACCESS.
    
    USE OF THE RAPIDSOS SERVICE DOES NOT CONSTITUTE AN AGREEMENT BETWEEN YOU AND SUBSCRIBERS, EMERGENCY SERVICE PROVIDERS, THE PLATFORM PROVIDER, OR OTHER USERS. YOU WILL NOT RELY ON THE RAPIDSOS SERVICE AS THE SOLE MEANS BY WHICH YOU WILL COMMUNICATE INFORMATION TO SUBSCRIBERS, EMERGENCY SERVICE PROVIDERS, OR USERS. RAPIDSOS IS NOT RESPONSIBLE FOR THE ACTIONS OF ANY SUBSCRIBER, EMERGENCY SERVICE PROVIDER, THE PLATFORM PROVIDER, OR OTHER USER. RAPIDSOS DOES NOT GUARANTEE DELIVERY OF ANY MESSAGE OR INFORMATION AND IS NOT RESPONSIBLE FOR ANY ACTION OR OMISSION BETWEEN OR AMONG USERS OF THE SYSTEM. RAPIDSOS DOES NOT HAVE CONTROL OVER THE VOIP SERVICE, TELEPHONE SERVICE OR INTERNET SERVICE PROVIDERS NECESSARY FOR PROVIDING THE RAPIDSOS SERVICE AND ANY FAILURE DUE TO A THIRD PARTY SERVICE PROVIDER IS NOT THE RESPONSIBILITY OF RAPIDSOS.
    
    YOU ARE RESPONSIBLE FOR MANAGING YOUR TELEPHONE SERVICE PROVIDER ACCOUNT, ACCOUNT SUBSCRIPTIONS, LOCATION TRACKING, AND OTHER OPT-IN STATUSES AS REQUIRED TO ALLOW THE RAPIDSOS SERVICES TO LOCATE AND COMMUNICATE WITH YOUR PHONE. DEVICES THAT ARE LOCATION COMPATIBLE MAY NOT BE LOCATABLE BY THE RAPIDSOS SERVICE OR THE TELEPHONE RAPIDSOS SERVICE PROVIDER AT ALL TIMES. ANY LOCATION PROVIDED IS APPROXIMATE AND DOES NOT PROVIDE GUARANTEED RESULTS.
    
    THE RAPIDSOS SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE RAPIDSOS SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. THE INDEMNITEES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE RAPIDSOS SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE RAPIDSOS SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE INDEMNITEES DO NOT WARRANT THAT THE RAPIDSOS SERVICE OR ANY PORTION OF THE RAPIDSOS SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE RAPIDSOS SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
    
    SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
    
    
13. Limitation of Liability
    IN NO EVENT WILL THE INDEMNITEES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE RAPIDSOS SERVICE OR ANY MATERIALS OR CONTENT ON THE RAPIDSOS SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT RAPIDSOS OR ANY INDEMNITEE HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
    
    YOU AGREE THAT THE AGGREGATE LIABILITY OF THE INDEMNITEES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE RAPID SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO RAPIDSOS OR THE PLATFORM PROVIDER FOR ACCESS TO AND USE OF THE RAPIDSOS SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM; OR (B) $100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
    
    
14. Governing Law
    These Terms are governed by the laws of the State of New York without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, you and RapidSOS agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York County, New York for the purpose of litigating any dispute. We operate the RapidSOS Service from our offices in New York, and we make no representation that Materials included in the RapidSOS Service are appropriate or available for use in other locations.
    
    
15. General
    These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and RapidSOS regarding your use of the RapidSOS Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms should survive, will survive, including Sections 2, 4 through 17.
    
    
16. Dispute Resolution and Arbitration
    • 16.1 Generally. In the interest of resolving disputes between you and RapidSOS in the most expedient and cost effective manner, you and RapidSOS agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND RAPIDSOS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
      
      
    • 16.2 Exceptions. Despite the provisions of Section 16.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
      
      
    • 16.3 Arbitrator. Any arbitration between you and RapidSOS will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting RapidSOS.
      
      
    • 16.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice"). RapidSOS's address for Notice is: 3 Park Ave., Flr 22, New York, NY 10016. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or RapidSOS may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or RapidSOS must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, RapidSOS will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by RapidSOS in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
      
      
    • 16.5 Fees. If you commence arbitration in accordance with these Terms, RapidSOS will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse RapidSOS for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
      
      
    • 16.6 No Class Actions. YOU AND RAPIDSOS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and RapidSOS agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
      
      
    • 16.7 Modifications. If RapidSOS makes any future change to this arbitration provision (other than a change to RapidSOS's address for Notice), you may reject the change by sending us written notice within 30 days of the change to RapidSOS's address for Notice, in which case your account with RapidSOS will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
      
      
    • 16.8 Enforceability. If Section 16.6 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 16 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 15 will govern any action arising out of or related to these Terms.
    
    
    
17. Consent to Electronic Communications
    By using the RapidSOS Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
    
    
18. Contact Information
    The RapidSOS Service is offered by RapidSOS, Inc., located at 3 Park Ave., Flr 22, New York, NY 10016. You may contact us by sending correspondence to that address or by emailing us at support@rapidsos.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the address above with your electronic mail address and a request for these Terms.