Terms of Service

Updated as of November 22, 2024

Terms of Service

Introduction

Helpany, Inc. (“Helpany” or “Company”) and its parent company, Sedimentum AG, provide a motion detection and analysis system and in-App notifications to designated user-contacts when action/assistance as may be needed through products called “Paul” and “Paul Junior” (each a “Product” and collectively, the “Products”). This system is operated through the Company’s website located at https://www.helpany.com (“Website”) and/or mobile application (“App” or “Application”). Collectively, the Products, App, and Website are referred to herein as the Company’s “Services.”

Annexes 1-2

The Website, Products, and App are developed by Sedimentum AG and licensed to Helpany so it may directly contract with consumers and entities in the United States and sub-license the rights to use the Company’s Services. These Terms of Service (“Agreement,” or “Terms of Service”) apply to any use of and access to our Services by individuals and/or entities located in the United States (collectively, “you”).

When you use our Services, you are agreeing to the foregoing Terms of Service, Annexes 1-2 attached hereto, and our Privacy Policy, as amended from time to time. All the aforementioned documents are fully incorporated by reference herein. Please carefully read these documents and terms carefully as they contain important information regarding your legal rights and obligations.

If you are a user of our Products (“User”) or someone authorized by a User to access the App (collectively “App Users”), whether you purchased directly from us or received our Products and Services via one of our Customers, as that term is defined below, then you herein agree to Annex 1, our End User License Agreement, by installing and using our Products and Services.

If you are a senior care facility or any other business (“Customer”) hiring us to deploy our Products and Services to Users at your facility or business, you herein agree to Annex 2, our Enterprise Agreement, as a “Customer”, as that term is defined therein.

Agreement

THIS DOCUMENT, THE TERMS OF SERVICE AND THE ANNEXES 1 AND 2 ATTACHED HERETO, IS A LEGAL AGREEMENT BETWEEN THE COMPANY AND YOU WHICH GOVERNS YOUR USE OF THE SERVICES AND THE WEBSITE. YOUR USE OF THE SERVICES AND THE WEBSITE CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO ALL OF THE TERMS AND CONDITIONS IN THESE TERMS OF SERVICE, ANNEXES 1 AND 2 ATTACHED HERETO, AND THE PRIVACY POLICY INCORPORATED HEREIN; AND YOUR REPRESENTATION THAT YOU ARE AT LEAST 16 YEARS OF AGE OR OLDER. IF YOU OBJECT TO ANYTHING IN THESE TERMS OF SERVICE AND THE ANNEXES 1 AND 2 ATTACHED HERETO, YOU ARE NOT PERMITTED TO USE THE SERVICES. If you accept these Terms of Service and use the Services on behalf of a company, organization, or other legal entity, you represent and warrant to the Company that you have full power and authority to do so.

Effective Date. This Agreement is effective (“Effective Date”) on the date you first access or use the Products, Services and/or the Website, whichever is earlier.

Specific Terms for Users

The following section of this Terms of Service apply to Users of the Company’s Services, including the App, Website, and/or Products. Users agree to the terms herein and attached to Annex 1 as well.

Helpany is a radar-based motion monitoring technology system that provides motion related information from one or more Products, which are installed in rooms (e.g., bedroom, living room etc.). The provided motion-based data, such as night-time restlessness, gait speeds, sedentary behavior, etc., can be used by its Users to learn something about their individual motion behaviors and motion patterns. The motion-related information might indirectly unveil information about the overall health condition of an individual and as well behavioral risk-factors. Helpany is determining these risk-factors, mainly, but not limited to, risk-factors relating to the individual risk of falling, through showing publicly available information in combination with the measured motion-based data from one or more Products to its Users. Helpany does not guarantee that these shown public information are valid, accurate or correct. Furthermore, as it is not possible with Helpany’s radar-based technology to associate the measured motion data in a room to any specific individual with certainty, all its provided information is solely intended for educational purposes, anecdotal and has no medical or diagnostic purpose.

Users place Paul in living areas throughout their home in an elevated location (e.g., a side table) or at the ceiling so the Product’s motion detectors have an unobstructed view of the room. Paul contains radar technology that allows the detection of motion, the location of the source of motion relative to the Product (distance and angle), and the analysis of motion patterns over time (short-term and long-term motion pattern analysis). Specifically, its main purpose is to inform its Users about measured motion patterns in a room, analysis and possible interpretations of these motion patterns, and the detection or absence of expected motion patterns. The Company offers a variety of features bundled into distinct and separate modules, accessible to Users who have purchased and paid the subscription fee for the corresponding module (each a “Software Module”). The availability of each Software Module may be requested by a Customer or User; however, the Company reserves the right to determine, at its sole discretion and without obligation to provide an explanation, whether to grant access to any requested module. The Software Module options are as follows:

Automated Well-Being Check: Our technology can detect prolonged periods of motion in rooms (e.g., not leaving the bedroom in the morning) and prolonged periods of absence of motion (e.g., empty bedroom at night) in rooms where Paul is installed. The detection of these motion patterns are used as a simplified automated well-being check (“Automated Well-being Check”). Automated Well-being Checks do not necessarily indicate that a health-threatening situation occurred, rather that a deterioration in the expected motion patterns is present. If enabled, connected to the internet and logged-in, Users will be asked through a User notification and an in-App prompt, if they need assistance. If the User does not respond to the in-App prompt within a predetermined amount of time (e.g., 20 minute), their designated emergency contact(s) receive an automatic App notification alerting them that the User has not responded to the Automated Well-Being Check. By default, the Automated Well-Being Check is not activated, as it must be configured by the User according to its needs and the individual setup of its Products (amount of devices) and as further set forth in the User Guidelines and Installation Manual.
Well-Being Indicators: Based on the measured motion data by Paul, multiple indicators of well-being are calculated, such as the average speeds of motions measured (e.g., gait speed), amount of total hours in a stationary position in the room (e.g., sedentary hours per day) and the duration of the longest non-interrupted session of stationarity within the room, daytime activity determined by the estimated steps walked, and night-time restlessness determined by the estimated steps walked during the night (collectively, “Well-Being Indicators”). Helpany is providing these Well-Being Indicators to the authorized Users in different forms and formats. The interpretation of these Well-Being Indicators relating to their relevance and correctness can solely be done by the User as these Well-Being Indicators are solely anecdotal. Furthermore, any automatic interpretation of these Well-Being Indicators offered by Helpany is based on publicly available information and therefore serves only as an educational purpose at best and is not intended for medical or diagnostic purposes or as a substitute for seeking advice by licensed medical professionals.
Health Overview: The “Health Overview” module provides a summarized view of Well-Being Indicators calculated for one or more Users, accessible only to Customers,Users, and Authorized Users. This overview displays the most recent Well-Being Indicators in a comparative format. Authorized Users can use filters to identify Users who show notable historical changes in Well-Being Indicators or elevated nighttime activity levels.

All information displayed within the Health Overview module, including data provided by the filters, is intended solely for informational purposes and does not imply any medical condition, diagnosis, or conclusion. Users accessing the Health Overview module are strictly advised to interpret this information alongside additional context and external sources to gain a comprehensive understanding of an individual’s well-being.

Movement Notifications: Users with specific rights can also manually engage movement alert notifications when a movement occurs within the field of view of a Paul. This feature enables these Users to receive in-App alerts for detected movements in the Paul-installed living spaces, and can be used for a variety of purposes such as knowing when a User starts to move around in their apartment.
Night Guard: The Night Guard feature may be enabled based on Well-Being Indicators, allowing automated activation of movement alerts during a user-defined nighttime period (night shift schedule configured by the User) (“Movement Notifications”). When Night Guard is enabled and Well-Being Indicators fall below a certain threshold, the system may suggest automated Movement Notifications for designated times. Users and Authorized Users can add or remove other Users for Night Guard access.

The automated selections generated by the Product based on Well-Being Indicators are intended solely as convenient, proactive suggestions and must be reviewed and validated by qualified Users. Due to the inherent limitations of Well-Being Indicator data, the automated Night Guard may occasionally activate notifications for fewer or more Users than may be necessary. To support transparency, the Product displays, at all times, the status of each User’s inclusion in Night Guard, whether automated or manually configured.

Motion Monitoring: Any sensed motion by the Products in a room is algorithmically optimized and visualized to its Users through the App. The visible motion data in the App is not real-time and always shown slightly time-delayed as external factors such as the User’s WiFi can influence the speed of data transmission. Company is not liable for any damages resulting from delay in data transmission due to User WiFi speed. With the motion-monitoring functionality, Users can determine if motion is present in the field of view of a specific Product without having to be physically present in that room (remote monitoring). It is not possible to tell what the source of the visible motion is, as radar-based technologies are privacy-preserving and do not allow a direct identification (e.g., identity of the person) of the cause of the visible motion.
Motion Profile: Through showing the measured motion data by all Products in a historical mode, it is possible for Users and other Authorized Users (collectively, “App Users”) to analyze motion patterns over time (“Motion Profile”). With this Motion Profile, the measured motion data from one or more Products (e.g., grouped Products for a User’s apartment with two rooms) is visible in a chronological order with the corresponding timestamp information (e.g., visualized as a graph or text-based log over time). App Users may be able to infer, given the Motion Profile, that under specific circumstances and specific setups of the Products, the arrival and departure times of additional persons.

By purchasing and utilizing the optional accessory, Paul Junior, Users may achieve a more accurate estimation of arrival and departure times for individuals carrying the device. The use of Paul Junior is optional and requires a purchase request from the User. Approval for such a request is granted at the sole discretion of the Company on a voluntary, case-by-case basis, and only after the User has demonstrated compliance with applicable regulations in their jurisdiction.

Audit: The Product aggregates various data sources, such as Motion Profiles and Movement Notifications, within the “Audit” module. This module consolidates historical data in a summarized format, viewable by App Users. By combining multiple data points, the Audit module can estimate specific chronological events associated with a User and their living area. These estimates include metrics such as the frequency of visits, number of movement notifications per User, and the duration of time between significant motion detections in distinct areas of a User’s living space.

The aggregated data in the Audit module provides App Users the opportunity to derive general insights into motion patterns within a living area. Users can analyze these metrics across multiple devices and perform comparisons. However, due to the inherent limitations of motion-based data, the Audit module offers only anecdotal insights. Users with access to this module acknowledge that additional external information, beyond that provided by the Products, is required to fully assess the accuracy and context of the insights presented.

Insights Dashboard: The “Insights Dashboard” module provides a summary of various quantitative metrics. These metrics are derived either from manual entries made by the User within the Product or through automatic calculations based on data from the Product’s available modules. The Insights Dashboard consolidates and displays this information to provide an overview of the data sourced from the Products and its various Software Modules.

In order to operate properly, Products need a secure power source and connection to a WiFi network. To avoid risk of shock, Users should take precaution not to install their Product above a water source, such as a bathtub.

Products should always be installed in accordance with our User Guidelines and Installation Manual and used only for the purposes stated therein and in these Terms of Service.

DISCLAIMERS:

Company does not provide diagnostic, health care, or emergency services to its Users. No Company personnel will be dispatched to Users in response to a Product alert.

Company’s Automated Well-Being Checks are an automated feature. User activities are not actively monitored by Company personnel.

Company’s Automated Well-Being Check facilitates an automated in-App notification to Users and App Users who have been designated by Users as emergency points of contact only. Company does not field or direct emergency calls from its Users, nor does its Product automatically contact 911, police, or ambulance/hospital services, unless such entities or persons are designated as emergency contacts by the User.

Company does not warrant that its Services can prevent death, bodily injury, property damage, theft, or any other harm or damage to its Users or others.

Company’s Services rely on the availability of a consistent power source, the WiFI and internet service provider, an updated version of Company’s App, unobstructed monitoring access to the room, and the availability of GPS data to operate properly. These systems are provided and/or installed by third parties and cannot be controlled by Company, and as such, Company cannot control or warrant the operations of those related third party systems needed to provide Company’s Services effectively.

Though Company employs safeguards to ensure the accuracy of its monitoring technology, Company does not warrant that its Product is able to detect all (100%) sources of motion present in a room and that the sensed motion data is correct. Therefore, neither the detection of all activated motion-based alerts can be guaranteed nor that any interpretation based on the measured motion data can be assumed to be correct.

In the event of a Service failure or malfunction, Users should immediately contact 911 emergency services or other similar safety personnel.

Company does not monitor, control, or take responsibility for any action or inaction taken by a User’s designated emergency contact in response to a Product alert. Company is not responsible for the promptness, sufficiency, or adequacy of any response taken by a User’s emergency contact.

Company is not an insurer and does not in any way warrant the User’s health or safety.

Fees

Company Fees. After downloading the App, Users will be prompted to review and accept an in-App service contract, which includes provisions regarding subscription service fees, billing practices, payment processing, and automatic renewal payments, which will be due each monthly billing cycle unless and until this Agreement is terminated. You hereby authorize the Company to automatically withdraw the renewal payment and any past due amounts using the default payment method on file at the time the subscription is scheduled to renew.

User fees are paid in-App via third-party payment processors, including Stripe, Google Pay, and Apple Pay. You agree not to file a credit or debit card chargeback with regard to any amount of fees charged in connection with the Services. Instead, you agree to abide by the dispute resolution procedures outlined below.

You herein agree to abide by Company’s in-App fee and payment processing terms, which are incorporated into these Terms of Service by reference, and also agree you have read, understood, and agreed to the Privacy Policies and Terms of Service of any third party payment processors specified in those our in-App payment terms.

Account

Account. By creating an online account with the Company on its Website and or App (“Account”), you are granted a right to use the Services provided by the Company subject to the restrictions set forth in these Terms of Service, Annexes 1-2 attached hereto, and the Privacy Policy, incorporated by reference herein.

Our Account registration process will ask you for information including your name, email and or physical address, phone number, etc. (hereinafter, collectively referred to as “Personal Information,” as previously defined in our Privacy Policy). By registering for an Account, you warrant you are over the age of 16, and further agree to provide true, accurate, current and complete information about yourself as prompted by the registration process. You further agree that you will not knowingly omit or misrepresent any material facts or information, and that you will promptly enter corrected or updated information in your Account, or notify us in writing regarding your corrected or updated information.

We may verify your provided information, as required for your use of and access to the Services. You agree to maintain your Account solely for your own use. You agree that you will not allow another person to use your Account. We reserve the right to suspend or terminate the Account of any User who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.

You are solely and entirely responsible for maintaining the confidentiality of your Account, and for any charges, damages, liabilities or losses incurred or suffered as a result of your failure to do so. Furthermore, you are solely and entirely responsible for any and all activities that occur under your Account, including any charges incurred relating to the Services.

The Company is not liable for any harm caused by or related to the theft of your Account, your disclosure of your Account, or your authorization to allow another person to access or use the Services using your Account. You agree to immediately notify us of any unauthorized use of your Account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Services and/or the Website cannot be guaranteed in the event of breach.

Personal Information. As outlined in the Company’s Privacy Policy, incorporated herein, we will protect your Personal Information and disclose it only in a limited number of circumstances. We have implemented measures designed to secure your Personal Information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to thwart those measures, or use your Personal Information for improper purposes. You acknowledge that you provide your Personal Information at your own risk.

Prohibited Uses. You may use the Services and/or Website only for lawful purposes and in accordance with these Terms of Services, including any documents incorporated herein by reference, e.g., our Privacy Policy. You acknowledge that certain information available to you is copyrighted and more generally, contains proprietary information belonging exclusively to the Company. You acknowledge and agree that the Company nor its licensors, sub-licensors, or affiliates grant title to any of the Services under these Terms of Service.

You agree not to use the Services and/or Website:

Access or use the content in order to build a copy, similar, or competitive service or product.
Access or use the content in order to modify, decompile, disassemble, decrypt, extract, or otherwise reverse engineer any aspect of the Services, or create derivative works based upon all or part of the Services.
Transfer, lease, assign, make available for timesharing, or sublicense, in whole or in part, any aspects of the Services, including, but not limited to, allowing third parties to sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form all or any part of the Services.
In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries, such as the U.S. Export Administration Act and its associated regulations. You agree to comply strictly with all those regulations and acknowledge your responsibility to obtain all necessary and appropriate licenses to export, re-export or import the Services).
To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services and/or Website, or which, as determined by us, may harm the Company or Users of the Services and/or Website, or expose them to liability.
Use the Services and/or Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
Use any robot, spider, or other automatic device, process, or means to access the Services and/or Website for any purpose, including monitoring or copying any of the material on the Website.
Use any manual process to monitor or copy any of the material on the Services and/or Website, or for any other purpose not expressly authorized in these Terms of Services, without our prior written consent.
Use any device, software, or routine that interferes with the proper working of the Services and/or Website.
Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Services and/or Website.
Attack the Services and/or Website via a denial-of-service attack or a distributed denial-of-service attack.
Otherwise attempt to interfere with the proper working of the Website.

Termination. The Company reserves the right, in its sole discretion, to terminate your Account if you violate these Terms of Service, 1-2 attached hereto, and/or Privacy Policy, or for any reason or no reason at any time. We may also suspend your access to the Services and/or Website, and your Account if you: (a) have violated the terms of these Terms of Service, any other agreement you have with the Company; (b) pose an unacceptable credit or fraud risk to us or other Users; (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct; or (d) for any other reason in the Company’s sole discretion.

If your Account is terminated or suspended for any reason or no reason, you agree: (a) to continue to be bound by these Terms of Service, 1-2 attached hereto, and Privacy Policy; (b) to immediately stop using the Services, (c) that any licenses granted to you under these Terms of Service shall end; (d) that we reserve the right (but have no obligation) to hide or delete all of your information and account data stored on our servers, in accordance with the Privacy Policy; and (e) that the Company shall not be liable to you or any third party for termination or suspension of access to the Services or for deletion or hiding of your information or account data. You agree that the Company may retain and use your information and account data as needed to comply with investigations and applicable law, and as indicated in the Company’s Privacy Policy.

However, we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Services, or in connection with any termination or suspension of the Services. Any termination of these Terms of Service does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us, as provided in these Terms of Service and 1-2 attached hereto.

Specific Terms for Website Visitors, Users and Customers

Links, Generally

Links to Other Websites. As described in the Privacy Policy, incorporated herein, the Services may contain links to third-party websites, such as but not limited to Meta/Facebook, Instagram, LinkedIn, Twitter, etc., that are not owned or controlled by the Company. The Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites. In addition, the Company will not and cannot censor or edit the content of any third-party site. By using the Services, you expressly relieve the Company from any and all liability arising from your use of any third-party website that is referenced or linked on our Website.

Links to this Website. We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website and/or Services, so long as: (a) the links only incorporate text, and do not use any trademarks, (b) the links and the content on your website do not suggest any affiliation with the Company or cause any other confusion, and (c) the links and the content on your website do not portray the Company or its products or Services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to the Company. The Company reserves the right to suspend or prohibit linking to the Website and/or Services for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

Intellectual Property of Helpany

Intellectual Property Rights. As discussed in the Company’s Privacy Policy, incorporated herein, Company owns all right, title and interest in and to the Services and any derivative works thereof, Company data and Aggregated Data, including, but not limited to, information in machine readable form and accompanying documentation, and including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement and the Privacy Policy, the Company reserves all rights, title and interest in and to the Services, Company data and Aggregated Data, including, without limitation, all related intellectual property rights, source code, metadata, and aggregated use data contained therein or generated therefrom, including any further developments or enhancements of the Services. Company’s service marks, logos and product and service names are owned by the Company. You agree not to display or use any of the Company marks in any manner without Company’s express prior written permission.

In addition, any trademarks, service marks and logos associated with a third party offering may be the property of the third-party provider, and you should consult with their trademark guidelines before using any of their marks. The works and databases included in the content of the Website and / or provided in or as part of the Services are protected by applicable copyright laws. These Terms of Service are for the use license, and not a contract of sale relating to the Services. If you or any of your employees, affiliates, agents, or subcontractors suggests or recommends changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like, Company is free to use, without any attribution or compensation to you or any other party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in such feedback.

Any information and data that you submit to the Website or in connection with the Services must not violate the intellectual property rights of third parties.

Finally, as specified in the Company’s Privacy Policy, you grant us a license to use your user feedback in connection with providing the Services and for general marketing purposes, unless you notify us otherwise in writing.

All rights not expressly granted to you hereunder are reserved to the Company.

Data Ownership and Usage. As specified in the Company’s Privacy Policy, incorporated herein, we will own all Aggregated Data, and the Privacy Policy will govern how we collect and use Personal Information that is submitted through the Services. By accessing or using the Services, you agree that you have read and accept our Privacy Policy.

As explained in our Privacy Policy, we have controls in place to prevent outside parties from stealing or accessing your data and Personal Information, but they are not foolproof. Please exercise caution when disclosing any Personal Information while using our Website. We will notify one another if either of us becomes aware that your data and/or Personal Information has been compromised.

You are solely responsible for resolving disputes regarding ownership or access to your data, including those involving any current or former owners, co-owners, employees or contractors of your business. You acknowledge and agree that the Company has no obligation whatsoever to resolve or intervene in such disputes.

Your Communications with the Company

No Submission of Unsolicited Ideas and/or Materials. In your communications with Company, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you post on or send to us via the Website are deemed User Content and licensed to us as set forth below. In addition, the Company retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. The Company’s receipt of your Unsolicited Ideas and Materials is not an admission by the Company of their novelty, priority, or originality, and it does not impair the Company’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.

DMCA Notice. The Company will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:

(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;

(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;

(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Website on which the material appears);

(iv) your full name, address, telephone number, and e-mail address;

(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and

(vii) your electronic or physical signature.

The Company will only respond to DMCA Notices that it receives by mail, e-mail, or facsimile at the addresses set forth in the “Notice” section of this Agreement.

It is often difficult to determine if your copyright has been infringed. The Company may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and the Company may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification. Without limiting the Company’s other rights, the Company may, in appropriate circumstances, terminate a repeat infringer’s access to the Services, Website, and/or any other website owned or operated by the Company.

Counter-Notification. If access on the Website to a work that you submitted to the Company is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:

(i) a legend or subject line that says: “DMCA Counter-Notification”;

(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Website from which the material was removed or access to it disabled);

(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;

(iv) your full name, address, telephone number, e-mail address, and the username of your account;

(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and

(vi) your electronic or physical signature.

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.

Disclaimer/No Warranties

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR THIS WEBSITE.

THE COMPANY DOES NOT WARRANT THAT YOUR USE OF THE SERVICES AND/OR THIS WEBSITE WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES AND/OR WEBSITE WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.

THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT.

ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH THE COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “COMPANY PARTIES”).

Indemnification

You agree to indemnify, defend, and hold harmless Company from and against any and all third party claims alleged or asserted against the Company, its subsidiaries, or affiliates, and all related charges, damages, losses, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or and expenses (including, but not limited to, reasonable attorneys’ fees and costs) arising from or relating to: (a) any actual or alleged breach of any provisions of this Agreement, our Privacy Policy, product installation guides and/or user manuals; (b) any actual or alleged violation by you, an affiliate, or end user of the intellectual property, privacy or other rights of the Company or a third party; and (c) any dispute between you and another party regarding ownership of or access to your data or Personal Information submitted to the Company via its Website.

You further agree to indemnify, defend, and hold harmless the Company, its subsidiaries, and affiliates from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, arising from or in connection with your use of the Services in a manner inconsistent with these Terms of Service or with any user manuals, installation guides, instructions, and/or operating procedures given to you by the Company or any assertion that your use of the Services results in the infringement of patent, trade secret, trademark, copyright, or other intellectual property rights of third parties.

Your obligations under this Indemnification section shall survive and continue in full force and effect notwithstanding the expiration or earlier termination of these Terms of Service, any agreement you have entered into with the Company, or any supplement thereto.

No Liability

THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY THE COMPANY. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES PAID PRECEDING THE DATE OF THE INCIDENT. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH THE COMPANY AND THE COMPANY PARTIES.

IN NO EVENT WILL THE COMPANY HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE COMPANY, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

THE COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS RELATED TO OR ARISING FROM USE OF THE SERVICES. YOU HEREBY RELEASE AND FOREVER DISCHARGE THE COMPANY AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, WHETHER KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, ARISING FROM OR RELATED TO ANY DISPUTE OR INTERACTIONS WITH ANY OTHER USER, WHETHER ONLINE OR IN PERSON, WHETHER RELATED TO THE PROVISION OF SERVICES OR OTHERWISE.

THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Dispute Resolution

Informal Dispute Resolution. We want to address your concerns without needing a formal legal case. Before filing a claim against Company or any subsidiary, you agree to try to resolve the dispute informally by contacting info@Helpany.com. We’ll try to resolve the dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Company may bring a formal proceeding.

We Both Agree To Arbitrate. You and Company, including its subsidiaries, agree to resolve any disputes through final and binding arbitration, except as set forth under “Exceptions to Agreement” to Arbitrate below.

Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by contacting info@Helpany.com within 30 days of first accepting these Terms of Service and stating that you (including your first and last name) decline this arbitration agreement.

Arbitration Procedures. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in San Francisco, California, or any other location we agree to.

Arbitration Fees. The AAA rules will govern payment of all arbitration fees. The Company will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

Exceptions to Agreement to Arbitrate. Either you or the Company may assert claims, if they qualify, in small claims court in San Francisco (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Company’s products or the Company Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.

No Class Actions. You may only resolve Disputes with the Company on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under this Agreement.

Judicial Forum for Disputes. In the event that the agreement to arbitrate is found not to apply to you or your claim, you and the Company agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County, California. Both you and the Company consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.

Miscellaneous Provisions

Choice of Law. These Terms of Service and the relationship between you and the Company shall be governed by the laws of the State of Delaware without regard to its conflict of law provisions.

Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and the Company.

Entire Agreement. These Terms of Service, Annexes 1-2 hereto, Privacy Policy, including any documents incorporated by reference therein, constitute the entire agreement between you and the Company concerning the subject matter herein and the use of the Services and/or Website. These supersede any and all previous or contemporaneous agreements, proposals, or communications, written or oral, between you and Company, including previous versions of these Terms of Service and/or Privacy Policy, as applicable, with respect to the terms referenced herein and shall prevail over any conflicting or additional terms of any quote, order, acknowledgement, or similar communication between the Parties. If there is a discrepancy between these Terms of Service, Annexes 1-2 hereto, Privacy Policy, and/or any offline agreements you have with the Company, the terms in the Terms of Service and Privacy Policy, as they may be updated from time to time, shall govern unless specifically stated otherwise in such agreement. By continuing to use the Services of the Company, you herein agree to said updates.

Modification. Company reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of these Terms of Service, Annexes 1-2, and/or Privacy Policy, and any and all referenced and/or incorporated exhibits or policies, programs and guidelines. The Company will post the updated terms to this page and endeavor to notify you of any material changes by email, but will not be liable for any failure to do so. If any future changes to these Terms of Service and/or Privacy Policy are unacceptable to you or cause you to no longer be in compliance with these Terms of Service, you must terminate, and immediately stop using, the Services. Your continued use of the Services following any revision to these Terms of Service and Annexes 1-2 constitutes your complete and irrevocable acceptance of any and all such changes.

Assignment. The Company may assign these Terms of Service, Annexes 1-2 hereto, and/or Privacy Policy in whole or part at any time. However, you may not assign, delegate or transfer this Agreement in whole or in part, without the Company’s prior written consent.

No Waiver. Any failure of the Company to enforce or exercise a right provided in these Terms of Service, Annexes, and/or the Privacy Policy is not a waiver of that right.

Severability. Should any provision of these Terms of Service, Annexes 1-2 hereto, and/or Privacy Policy, including any materials incorporated by reference, be found invalid or unenforceable, the remaining terms shall still apply.

Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, force majeure, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving the Company’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

Notices. Any notices provided by the Company under this Agreement, including materials incorporated herein by reference, may be delivered to you to the email address(es) we have on file for your Account. You hereby consent to receive notice from us through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to the Company under this Agreement must be delivered either via email to info@Helpany.com or via first class registered U.S. mail, overnight courier, to: Helpany, Inc., 2261 Market Street #86050, San Francisco, CA 94114.

I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF SERVICE AND ATTACHED ANNEXES 1-2, AND THE COMPANY’S PRIVACY POLICY. I AGREE THAT MY USE OF THE SERVICES IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, AND THE COMPANY’S PRIVACY POLICY, AS INCORPORATED HEREIN.

ANNEX 1

End User License Agreement

For clarity, the following provisions govern the use of the Company’s mobile application by Users and App Users (as that term is defined in the Company’s Terms of Service to which this is attached/incorporated by reference fully herein, and also referred to herein as “you”):

By continuing to use the Application, you agree as follows:

You understand and intend that this End User License Agreement and the Terms of Service to which it is attached is a legally binding agreement and the equivalent of a signed, written contract;
In addition to the Limitation of Liability in the Terms of Service, you herein acknowledge and agree that Company, as that term is defined in the Terms of Service, shall not be liable for any damages resulting from the installation of Company’s Products in your residence and that your sole recourse is with the property owner/lessor;
You will use the Application in a manner consistent with applicable laws and regulations and in accordance with the terms and conditions in this Agreement as it may be amended by the Company from time to time; and
You understand, accept, and have received this Agreement and its terms and conditions, and acknowledge and demonstrate that you can access this Agreement.

If you do not agree with the terms and conditions in this Agreement, please discontinue all further use of the Application.

The Company’s License to You. The Company grants you a single, non-exclusive, non-transferable and limited personal license to access and use the Application. This license is conditioned on your continued compliance with the terms and conditions in this Agreement. You may not rent, lease, lend, sell, transfer, redistribute, or sublicense the Application and, if you sell or otherwise transfer a device on which the application is installed to a third party, you must remove the Application from such device before doing so. You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Application).
Your License to the Company. Any communications or material of any kind that you email, post, or otherwise transmit to the Company using the Application, including data, questions, comments, or suggestions (your “Communications”) will become the property of the Company. You hereby grant a license to the Company to use any ideas, concepts, know-how, or techniques contained in your Communications for any purpose including, but not limited to, developing and marketing products using such information.
Electronic Signatures. You agree to be bound by any affirmance, assent, or agreement you transmit to the Company using the Application, including but not limited to any consent you give to receive communications from the Company solely through electronic transmission. You agree that, when in the future you click on an “I agree,” “I consent” or other similarly worded “button” or entry field in the Application, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
Carrier Charges. Your carrier’s data rates may apply to your use of the App.
Use of the Company Services. In addition to all provisions set forth elsewhere in the Terms of Service, the following requirements apply to your use of the App:

You will not collect or store personal data about other Users of the App.
You will not use the App for any commercial purpose not expressly approved by the Company in writing.
You will not upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment.
You will not use the App when you are driving a motor vehicle, even if doing so is legally permitted in your location.

Security of Data Transmission and Storage. Electronic communications using the App are always encrypted. However, as it is not possible for Company to warrant against all security incidents, you acknowledge that there is a risk that data, including email, electronic communications, and personal data, may be accessed by unauthorized third parties when communicated between you and the Company or between you and other parties. Company and its affiliates, and agents are permitted, but not obligated, to review or retain your Communications through the duration of your use of our Services. The Company may monitor your Communications to evaluate the quality of service you receive, your compliance with the Agreement, the security of the App, or for other reasons. You agree that such monitoring activities will not entitle you to any cause of action or other right with respect to the manner in which the Company or its affiliates or agents monitor your Communications and enforces or fails to enforce the terms of the Agreement. In no event will the Company or any of its affiliates or agents be liable for any costs, damages, expenses, or any other liabilities incurred by you as a result of monitoring activities by the Company or its affiliates or agents.

Additionally, the data collected by Company in the provision of its Services to Users is always encrypted and after a 21 day period anonymized, absent a specific business use to provide user Services or App improvements, as further set forth in our Privacy Policy.

Hyperlinks. Company’s website and App may contain links to other sites. The Company does not control such other sites, and the Company and its affiliates and agents make no representations whatsoever concerning the content, accuracy, security or privacy of those sites. The fact that the Company has provided a link to a site is not an endorsement, authorization, sponsorship, or affiliation with respect to such site, its owners or its providers. There are risks in using any information, software, or products found on the Internet, and the Company cautions you to make sure you understand these risks before retrieving, using, relying upon, or purchasing anything via the Internet. You agree that under no circumstances will you hold the Company or its affiliates or agents liable for any loss or damage caused by use of or reliance on any content, goods, or services available on other sites.
Trademarks and Copyrights. The Company’s technology is owned and/or licensed by the Company or its affiliates or agents, and is protected by United States copyright laws and international treaty provisions. All content, trademarks, services marks, trade names, logos, and icons are proprietary to the Company or its affiliates or agents. Nothing contained in the App should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed in the App without the written permission of the Company or such third party that may own the trademarks displayed in the App. Your use of the trademarks displayed in the App, or any other content in the App, except as provided herein, is strictly prohibited. Images displayed through the App are either the property of, or used with permission by the Company or its affiliates or agents. You are prohibited from using or authorizing the use of these images unless specifically permitted under the Agreement. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, or other regulations and statutes.
Medical Disclaimers. This information is for educational purposes only and is not a substitute for professional medical advice, diagnosis, or treatment. We share general health information but its accuracy is not guaranteed. Always consult your licensed physician or other qualified healthcare provider for medical concerns. Do not rely on this information as a replacement for professional medical care. We cannot provide medical advice or be contacted for emergencies. Reliance on any of this information is solely at your own risk.

ANNEX 2

Enterprise Agreement

This Enterprise Software as a Service Subscription Agreement (“Agreement”) supplements the terms of the Company’s foregoing Terms of Service (“Terms of Service”) to which this is attached and fully incorporated by reference herein. To the extent there is a conflict, the Terms of Service shall govern. You herein agree that as of the first date of use of the Company’s Website, Products, or Services, as those terms are defined in the Terms of Service, you have read and agreed to the Terms of Service and the attached Annexes 1-2.

This Agreement is by and between Helpany, Inc. (the “Company”) and any applicable senior care facility or any other business, including such businesses’ subcontractors, agents, or affiliates, hiring us to deploy our Products and/or Services to Users at your facility or business (“Customer”). For purposes of this Agreement, Helpany and Customer each will be referred to individually as a “Party” and together as the “Parties.”

For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby additionally agree as follows:

Company Services and Deliverable Timeframes

In providing the Service to Customer, Company agrees to make available to Customer all necessary Company property, including the App, the Products, and specific documents and materials provided to Customer regarding the Products and the Services, including but not limited to any product specifications, user instructions, documentation, software, hardware, systems, and/or technologies, that are provided or made available to Customer in connection with this Agreement, but does not include any data or property from Customer (collectively “Company Property”), as set forth herein, within a reasonable amount of time after payment. Helpany shall provide Customer with an estimated timeframe for delivery in writing once payment is rendered. Helpany may from time to time in its discretion engage third party subcontractors to perform portions of the Services.

Customer agrees to act in good faith to facilitate the performance of Helpany’s Services under this Agreement and, upon Helpany’s request, assist in the return of the Product and any other Company Property.

Should Customer elect to engage Helpany (either directly or via its subcontractors, agents, or affiliates) to perform logistical services relating to Customer’s data, including any and all data provided by Users (“Users”) to whom Customer has distributed the Product, Company agrees to adhere to Helpany’s Terms of Service, including Annexes 1-2.

Payment Terms

The Parties agree that any pricing for Services quoted or offered to Customer shall expire within 30 days of Customer’s receipt of such offer.

The effective date of this Agreement begins on the date when both Parties execute this Agreement (“Effective Date”). Customer shall pay in full all fees and reimbursable expenses set forth in a separate scope of work and budget to be agreed upon by the Parties, within 48 hours from the Effective Date of this Agreement. Customer shall make all payments hereunder in US dollars by ACH or wire, with details to be provided by the Company separately, or as otherwise specified by Company in writing.

If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Company may charge interest on the past due amount at the rate of 10% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law. Customer shall reimburse Company for all reasonable costs incurred by Company in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees.

If such a payment failure continues for 15 days and Customer has not returned to Company the leased Product, Company may presume Customer loss or theft of such Product and reserves the right to pursue all legal recourse available at law, including but not limited to criminal penalties and civil damages, such as punitive damages.

Limited License of the App and Products

Subject to the terms and conditions of this Agreement, Company hereby grants Customer a non-exclusive, nontransferable, limited use license (without the right to sublicense) to: (1) use the App and any associated Product, including but not limited to the Product and any associated cables and other accessories as needed to operate the Product (collectively the “Product”), solely to as set forth in this Agreement; and (2) use Company’s App, including its datacenter management platform and API, for the effective period of this Agreement.

Property and Proprietary Rights

a)Company Property. Company shall own and retain all right, title and interest in and to all rights to App and Products, and any derivative works thereof, subject only to the limited license and Customer’s right to use the App as expressly set forth above. Customer does not acquire any other rights, express or implied, in App or Products. As between Company and Customer, Company retains all right and title and all intellectual property rights in and to (i) the App, including without limitation the source code, metadata, and aggregated use data contained therein or generated therefrom, including any further developments or enhancements of the App, and (ii) the Products.

The works and databases included in the content of the Service provided by Company are protected by applicable copyright laws. This Agreement is for the use license, and not a contract of sale relating to the Products or App. If Customer or any of its employees, affiliates, agents, or subcontractors suggests or recommends changes to the Service, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like, Company owns and is free to use, without any attribution or compensation to Customer or any other party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in such Customer feedback, effective as of the date of the Customer first providing Company such feedback.

ALL RIGHTS NOT EXPRESSLY GRANTED TO CUSTOMER HEREUNDER ARE RESERVED TO COMPANY.

b) Customer Property. As between Company and Customer, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all data procured through the Product and use of our Services by Customer to the Paul device (“Customer Data”). Customer Data may include data from Users to whom Customer has distributed the Paul and/or Paul Junior devices, and if that is the case, Customer herein warrants that it has User permission to include that data in any transfer to the Company. Customer hereby grants Company all such rights and permissions in or relating to Customer Data as are necessary or useful for Company to perform its data transfer obligations hereunder.

c) Paul Access & Usage. Customer shall use the App and Products for its own internal uses in the ordinary course of its business. Without limiting the generality of the foregoing: (i) Customer will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form all or any part of the App or Product and (ii) Customer shall not disassemble any Product, in whole or in part, or use any mechanical, electrical or other method to decompile, disassemble or decrypt any Product or App, or permit any third party to do so. Customer shall do nothing inconsistent with Company’s title to the App, including but not limited to transferring, loaning, selling, assigning, pledging or otherwise disposing, encumbering or suffering a lien or encumbrance upon or against any interest in the Product or App.

Confidentiality.

In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including but not limited to information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing, the Customer Data is Confidential Information of Customer. The foregoing notwithstanding, Customer agrees that Company may refer to Customer as a customer in Company’s marketing materials.

Confidential Information does not include information which is: (i) in the public domain through no fault of the party to whom it is disclosed (“Recipient”); (ii) already known to Recipient at the time of such disclosure as documented by records in its possession prior to such disclosure; (iii) subsequently received by Recipient in good faith from a third party having prior right to make such subsequent disclosure; (iv) independently developed by Recipient without use of the information disclosed pursuant to this Agreement; (v) approved in writing for unrestricted release or unrestricted disclosure by the party owning or disclosing the information (hereinafter “Discloser”); or (vi) produced or disclosed pursuant to applicable laws, regulations or court order, provided the Recipient has given the Discloser written notice of such request such that the Discloser has an opportunity to defend, limit or protect such production or disclosure. Except as necessary to perform under this Agreement, each Recipient shall not use or duplicate any Confidential Information, and shall keep confidential and not disclose any Confidential Information unless the Discloser has, in its sole discretion, previously and expressly consented to such use, duplication or disclosure in writing.

Company’s Representations and Warranties; Exclusions and Limitations.

Company represents and warrants to Customer that Company will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

Company, at its sole cost and expense, agrees to promptly replace any nonfunctional Product, provided that Customer shall reimburse Company for Company’s cost of any Product which is rendered inoperable as a result of Customer’s negligence or misuse of such Product.

Company represents and warrants to Customer that all Products and App will be available to Customer through the effective period of this Agreement. However, in the event of any breach of this warranty, Customer’s sole remedy, and Company’s sole obligation, shall be for Company to use commercially reasonable efforts to correct such breach at no additional cost to Customer.

EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6 COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE SYSTEM, ITS MERCHANTABILITY, NON-INFRINGEMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.

IN NO EVENT WILL COMPANY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, DAMAGES FROM LOSS OF USE, LOSS OF CUSTOMER DATA, OR PROFITS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, COST OR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICE, WHETHER IN AN ACTION BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY FOR ANY DAMAGES ON ACCOUNT OF ANY LOSS OF CUSTOMER DATA OR DEFICIENT WORK EXCEED THE AMOUNTS PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT FOR THE PRIOR NINETY (90) DAYS. CUSTOMER ACKNOWLEDGES THAT COMPANY’S PRICING UNDER THIS AGREEMENT IS BASED ON THE FOREGOING EXCLUSIONS AND LIMITATIONS. THESE EXCLUSIONS AND LIMITATIONS WILL NOT APPLY TO COMPANY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT.

Customer’s Representations and Warranties.

Customer represents, warrants, and covenants to Company that:

Customer shall implement a reasonable process to ensure that all Users to whom it has distributed the Product acknowledge and agree to the Terms of Service, Annex 1, the End User License Agreement, and the Privacy Policy, incorporated by reference herein, prior to User’s access and use of the Products and Services. This process requires: (i) presenting the applicable policies to Users in a clear and accessible manner, and (ii) ensuring that the Company obtains click-wrapped signatures from any and all Users to whom Customer distributed the Products.
Customer and the Users to whom it distributed the Products shall use it and the Company’s Services in accordance with this Agreement, the Terms of Service (including Annexes 1-2), and Privacy Policy. In using the Products and Company’s Services, the Customer and the Users to whom it distributed the Products agree herein that they do not and will not infringe, misappropriate or otherwise violate any intellectual property rights of any third party or violate any applicable law;
Customer has received the Products and App as agreed, unless prompt written notification is given to Company;
Customer shall use the Products and App solely as contemplated in this Agreement and for the purpose of facilitating the Service provided by Company;
Customer shall take as reasonable measures to safeguard the physical and logical integrity of the Products and App;

Customer shall not physically relocate the Products to any location other than the facilities agreed upon in writing by the Parties hereto; and
Customer and its subcontractors, agents, or affiliates have received, read, and agreed to the Company’s Terms of Service and Annexes 1-2 attached thereto, the Company’s Privacy Policy, all user manuals, procedures, instructions provided by Company relating to use of the Product and App.

Compliance and Risk Allocation.

Customer shall be solely responsible for evaluating Product suitability, ensuring compliance with applicable laws and regulations, and implementing appropriate use and safeguards. Customer shall assume full risk and liability for consequences arising from Product use, including compliance with data protection and regulatory requirements, and any losses or damages resulting from Product implementation or installation by or at Customer’s properties. Company makes no representations that Products will meet all Customer’s specific requirements or operate without interruption.

Indemnification.

a) Customer Property. Customer agrees to indemnify, defend and hold harmless Company and its officers, directors, employees, agents, affiliates, subcontractors, successors, and assigns (collectively “ Indemnitees”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, arising from any third party claim relating to Customer’s use of Customer Data, including but not limited to any data procured through the Product and use of our Services by Customer to Product or App, infringes the legal rights of such third party, including those relating to data privacy or security.

b) Product and Systems. Customer shall indemnify, defend, and hold harmless Indemnitees from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, arising from or in connection with Customer’s use and/or installation of Company’s Product or App, including its related management platform and API systems, as follows:

(i) In a manner inconsistent with this Agreement, the Company’s Terms of Service, or with any user manuals, instructions, and/or operating procedures given to Customer, Customer’s subcontractors, agents, or affiliates by Company or its subcontractors, agents, or affiliates;

(ii) In relation to the lease, possession, maintenance, use (including but not limited to improper device installation or ejection and negligent device operation), physical misuse, condition, repair, return (including improper Customer packaging), disposition, operation, storage, misplacement, or transportation of any Product, or any modifications thereto (including, without limitation, latent and other defects, whether or not discoverable by Company or Customer) performed by Customer, its agents, subcontractors, or affiliates;

(iii) any inaccuracy in or breach of any of the representations made by Customer in this Agreement, including but not limited to Customer’s warranties regarding the technical sufficiency of Customer’s system for use;

(iv) any assertion of the infringement of patent, trade secret, trademark, copyright, or other intellectual property rights of third parties.

c) End User Compliance. Customer shall indemnify, defend, and hold harmless Indemnitees from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, arising from or in connection with its Users’ (i) failure to acknowledge and agree to this Agreement, Terms of Service and Annex 1 attached thereto, and the Privacy Policy, incorporated by reference herein; (ii) any breach of this Agreement, the Terms of Service and Annexes 1-2 attached thereto, and the Privacy Policy by its Users; (iii) any claim that the Products, when used by Customer’s Users, were negligently installed by Customer and/or infringe or misappropriate any third party’s intellectual property rights; (iv) any violation of applicable laws or regulations by Customer’s Users in connection with the use of the Products or Company’s Services; and/or (v) any unauthorized use of the Products by its Users.

The obligations of Customer under this Indemnification section shall survive and continue in full force and effect notwithstanding the expiration or earlier termination of this Agreement or any supplement thereto.

Term and Termination.

a) This Agreement shall continue from the Effective Date and as set forth herein, unless terminated earlier in accordance with the provisions of this Agreement.

b) Either Party may terminate this Agreement if (i) the other party defaults in its obligations hereunder and fails to cure such default within thirty (30) days (or ten (10) days in the event of payment default) after receiving written notice of the default; (ii) the other Party files any petition or action for relief under any bankruptcy or any other law for the relief of debtors, or makes any assignment for the benefit of creditors or takes any action in furtherance of any of the foregoing; (iii) an involuntary petition is filed against the other Party under any bankruptcy or similar statute now or hereafter in effect, and such petition is not dismissed or discharged within 90 days or (iv) a custodian, receiver, trustee, assignee for the benefit of creditors (or other similar official) is appointed to take possession, custody or control of any property of the other party.

c) Upon expiration or termination of this Agreement for any reason all licenses and rights granted to Customer under this Agreement will also terminate.