End-User License Agreement (EULA)

NOTICE: THIS END USER EULA AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT TO THE FEDERAL ARBITRATION ACT (9 U.S.C. §1, ET SEQ.), AS AMENDED FROM TIME TO TIME

 

Thank you for choosing to apply for the equipment and services being offered in this End User EULA Agreement (the “EULA”) by Risk Band LLC, a Delaware limited liability company (“RISKBAND”).

This EULA is an agreement between You and RISKBAND and its affiliates (individually and collectively, “RISKBAND”, “we,” and “us”).  When the words “You” and “Your” appear in this EULA they refer to you, an individual, and/or to the company, entity or other form of organization (“Company”) on whose behalf you accept this EULA and by whom You have been designated as an Authorized User (as defined below) of the equipment supplied under this EULA by RISKBAND.

The terms and conditions of this EULA also include the Terms of Use for the RiskBand ARIES Platform (the “ARIES Platform”), and the terms and conditions of any other agreement between You and us related to the equipment and services provided under this EULA.  Furthermore, this EULA may also be subject to the terms and conditions of any Master License and Services Agreement (“MLSA”) between us and the Company or any person or entity for which You are an “Authorized User” under any such MLSA.

The RISKBAND device included among the equipment being provided to You under this EULA (the “Device”) is licensed, not sold, to You by RISKBAND for use strictly in accordance with the terms and conditions of this EULA. By clicking the “accept” button or activating the Device, You are entering into and agreeing to be bound by the terms of this EULA, the Terms of Use for the ARIES Platform, the RISKBAND Privacy Policy  and the GEOS Terms and Conditions, each as it may be amended from time to time, and each of which policy or agreement is incorporated herein by reference.

PLEASE READ THIS EULA CAREFULLY AS IT PERTAINS TO YOUR RISKBAND DEVICE AND RELATED MONITORING SERVICES.  WHEN YOU ACCEPT THIS EULA, EITHER DIRECTLY OR BY YOUR AUTHORIZED REPRESENTATIVE, YOU WILL BE BOUND BY ITS TERMS AND CONDITIONS.  IT APPLIES TO ALL THE EQUIPMENT AND SERVICES TO BE PROVIDED TO YOU RELATED TO YOUR RISKBAND DEVICE AND COVERS VARIOUS IMPORTANT SUBJECTS, INCLUDING OUR ABILITY TO MAKE CHANGES TO THE TERMS AND CONDITIONS OF THIS EULA, THE EXTENT OF OUR LIABILITY IF THINGS DO NOT GO AS PLANNED, AND HOW ANY DISPUTES BETWEEN US MUST BE RESOLVED IN ARBITRATION.  YOU WILL ALSO FIND INFORMATION ABOUT THE EULA TERM AND WHAT HAPPENS IF YOU OR YOUR COMPANY, AS THE CASE MAY BE, DOES NOT MAKE TIMELY PAYMENT, INCLUDING THE POSSIBILITY OF EARLY TERMINATION CHARGES THAT YOU OR YOUR COMPANY MAY OWE RISKBAND.

IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, DO NOT CLICK THE “ACCEPT” BUTTON OR ACTIVATE OR USE THE RISKBAND DEVICE.

If You, directly or by Your authorized representative (“Authorized Representative”), do accept, once the Device is activated, this EULA shall become effective and You shall be bound by all the terms and conditions of this EULA, whether or not you have read this EULA.

THIS EULA, OR ANY APPLICATION THEREFOR, IS NOT INTENDED FOR USE BY PERSONS UNDER THE AGE OF 18, AND BY ACCEPTING THIS EULA YOU RERPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE THE LEGAL CAPACITY TO ACCEPT THIS EULA AND TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS, AND WARRANTIES SET FORTH IN THIS EULA AND IN ANY RELATED AGREEMENTS, AND TO COMPLY WITH THIS EULA AND ANY SUCH RELATED AGREEMENTS. FURTHERMORE, THIS EULA AND ANY APPLICATION THEREFOR ARE NOT INTENDED FOR USE BY ANY PERSON UNDER 13 YEARS OLD.  IF YOU ARE UNDER 13 YEARS OLD, YOU MAY NOT USE THIS EULA OR ANY APPLICATION THEREFOR, NOR MAY YOU PROVIDE RISKBAND WITH ANY PERSONALLY IDENTIFIABLE INFORMATION. IF YOU ARE 13 OR OLDER BUT NOT OF LEGAL AGE TO ENTER INTO A CONTRACT UNDER THE LAWS OF YOUR JURISDICTION OF RESIDENCE, YOU SHOULD REVIEW THE TERMS AND CONDITIONS OF THIS EULA WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND THESE TERMS AND CONDITIONS.

IF YOU ARE ENTERING THIS EULA ON BEHALF OF A FAMILY MEMBER OR OTHER PERSON, YOU ARE NEVERTHELESS BOUND BY THE TERMS OF THIS EULA UNLESS AND UNTIL YOUR FAMILY MEMBER OR SUCH OTHER PERSON SHALL HAVE AGREED TO THE TERMS OF THIS EULA IN FORM AND SUBSTANCE SATISFACTORY TO RISKBAND AND SUCH OTHER PERSON SHALL HAVE BEEN ACCEPTED BY RISKBAND AS AN AUTHORIZED END USER, AND YOU ARE REPRESENTING TO RISKBAND THAT YOU ARE FULLY AND LAWFULLY AUTHORIZED BY SUCH FAMILY MEMBER OR OTHER PERSON TO ENTER INTO THIS EULA ON BEHALF OF SUCH FAMILY MEMBER OR OTHER PERSON, TO BIND SUCH FAMILY MEMBER OR OTHER PERSON TO THE TERMS OF THIS EULA AND OTHER RELATED AGREEMENTS, AND TO PROVIDE THE CONSENTS REQUIRED BY THIS EULA ON BEHALF OF SUCH FAMILY MEMBER OR OTHER PERSON.

IF YOU ARE ENTERING INTO THIS EULA FOR A COMPANY, BY ACCEPTING THIS EULA IN THE NAME OF AND ON BEHALF OF THAT COMPANY YOU SHALL BE DEEMED TO HAVE REPRESENTED THAT YOU ARE AUTHORIZED TO BIND THAT COMPANY TO THE TERMS AND CONDITIONS OF THIS EULA AND ANY RELATED AGREEMENTS, INCLUDING ANY MLSA APPLICABLE TO SUCH COMPANY, AND WHERE THE WORDS “YOU” AND “YOUR” APPEAR HEREIN, SUCH WORDS SHALL BE DEEMED TO MEAN THAT COMPANY.

THIS EULA IS SUBJECT TO THE ARBITRATION PROVISIONS WHICH ARE INCLUDED IN SECTION 10 OF THIS EULA.

If RISKBAND makes available to You any updates or upgrades to the Device, such updates or upgrades shall be subject to the terms and conditions of this EULA and any related MLSA and other agreements unless the Device is expressly provided to You under other or additional terms and conditions, in which case, those other or additional terms and conditions (which may include the payment of additional fees) shall apply.

1. APPLICATION FOR THIS EULA: This application is intended to enable You to learn about and get support for RISKBAND business products and services.

1.1   RISKBAND will provide You with the equipment, including a Device, as ordered by Your Company in a related agreement, subject to the MLSA and this EULA (the “Equipment”), as well as any monitoring services described below that Your Company shall have ordered (the "Monitoring Services"), and You will be bound by the terms of this EULA. You or Your company also agree to make any payments required to be made by You or Your Company, as the case may be, and to perform the obligations, and be bound by the terms of this EULA and any related agreements to the extent that they pertain to You or to Your use of any Device or Equipment.

1.2   If You desire to accept this EULA, You or Your authorized representative must complete the application and registration processes for the Device and Monitoring Services with RISKBAND in accordance with the processes and procedures set forth on the ARIES Platform.

2. EULA GRANT AND USE RESTRICTIONS.

2.1   EULA Grant. Subject to RISKBAND’s acceptance of Your application and the restrictions set forth in Section 2.2 of this EULA, RISKBAND grants You a personal, revocable, non-exclusive, non-transferable, limited right to register and use a single  Device to be controlled by You, and to access and use the Device solely for Your use in furtherance of the internal business operations of Your Company, and strictly in accordance with the terms and conditions of this EULA, any related EULAs or agreements, including any MLSA under which You are an Authorized User, and all applicable local, national, and international laws and regulations. You represent, warrant, and agree that You are using the Device solely for such permitted uses and not for redistribution or transfer of any kind.

2.2   Restrictions on Use. You shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Device, even for research purposes; (b) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the Device; (c) violate any applicable laws, rules, or regulations in connection with Your access or use of the Device; (d) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) of RISKBAND or its affiliates, partners, or suppliers; (e) use the Device in a manner that derives revenue directly from the Device, or use the Device for any other purpose for which it is not designed or intended; (f) install, use or permit the Device to exist on any other mobile device or computer; (g) distribute the Device to multiple users, except to the extent permitted under any MLSA under which You are an Authorized User; (h) make the Device available over a network or other environment permitting access or use by multiple Devices or users at the same time; (i) use the Device for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product, or software offered by RISKBAND; (j) use any proprietary information or interfaces of RISKBAND or other intellectual property of RISKBAND in the design, development, manufacture, licensing, or distribution of any Devices, accessories or other equipment for use with the Device; (k) circumvent, disable, or tamper with any security-related components or other protective measures applicable to the Device; or  (l) reproduce, archive, retransmit, distribute, disseminate, sell, lease, rent, exchange, modify, broadcast, synchronize, publicly perform, publish, publicly display, make available to third parties, transfer or circulate the Device. You agree to comply with and abide by the rules and policies established from time to time by RISKBAND. Such rules and policies may include, for example, required or automated updates and/or modifications of the Device and obtaining available patches to address security, interoperability, or performance issues. These obligations survive termination of this EULA.

2.3   Affiliates.  For purposes of this EULA, “affiliates” of RISKBAND shall mean any individual, corporation, partnership, joint venture, limited liability entity, unincorporated organization, trust, association, or other entity (“Person”) that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, RISKBAND or any such Person.  The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.

3. INTELLECTUAL PROPERTY RIGHTS.

3.1   Rights to the RISKBAND Device. You acknowledge and agree that the Device, and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith, are and shall remain the property of RISKBAND or its affiliates, partners, licensors, or suppliers. Furthermore, You acknowledge and agree that the source and object codes of the Devices, and the format, directories, queries, algorithms, structure, and organization of the Device, are the intellectual property and proprietary and confidential information of RISKBAND and its affiliates, partners, licensors, and suppliers. Title to the Device shall remain with RISKBAND, and RISKBAND and its affiliates, partners, licensors, and suppliers reserve the right to change, suspend, terminate, remove, impose limits on the use of or access to, disable access to, or require the return of the Device at any time without notice and will have no liability for doing so. Except as expressly stated in this EULA, You are not granted any intellectual property rights in or to the Device by implication, estoppel, or other legal theory, and all rights in and to the Device not expressly granted in this EULA are hereby reserved and retained by RISKBAND. These obligations survive termination of this EULA.

3.2   RISKBAND Marks. You acknowledge and agree that the following RISKBAND names, and their related logos and all related product and service names, design marks and slogans are among the trademarks and service marks owned by and used under this EULA from RISKBAND: “RISKBAND”; “RISK WATCH”; AND “RISK WATCHES”; “BY YOURSELF BUT NEVER ALONE;” “WHEREABLE PEACE OF MIND;” “WHEREABLES;” “ARIES;” “ACTIVATION COORDINATION RESPONSE”, and “WHEREABLE TECHNOLOGIES.”  You are not authorized to use RISKBAND Marks, including those identified in this Section 3.2, in any advertising, publicity or in any other commercial manner without the prior written consent of RISKBAND, which may be withheld for any or no reason in RISKBAND’s sole and absolute discretion.  These obligations survive termination of this EULA.

3.3   Open Source Software. The Device may utilize or include third party software that is subject to open source EULA terms (“Open Source Software”). You acknowledge and agree that Your right to use such Open Source Software as part of the Device is subject to and governed by the terms and conditions of any applicable open source license, including, without limitation, any applicable acknowledgments, license terms and disclaimers contained therein (collectively, the “Open Source License Terms”). In the event of a conflict between the terms of this EULA and the Open Source License Terms, the Open Source License Terms shall control.

4. MONITORING SERVICES

4.1   When You use the Device to issue an alert in accordance with the instructions for the use of the Device provided by RISKBAND, a monitoring service will be alerted.  We have contracted with a third-party provider, GEOS Safety Solutions, Inc. d/b/a GEOS (“GEOS”), to provide emergency tracking and monitoring services utilizing their GEOS International Emergency Response Coordination Center(s) (“IERCC”).  GEOS will provide such monitoring services to You under this EULA unless, with the prior written approval of RISKBAND, Your Company shall have made arrangements for qualified security personnel regularly employed or engaged by Your Company for security matters, to provide monitoring services to You.  In certain cases, monitoring services may be provided by both GEOS and an approved security team designated by Your Company.  If Your Company shall, with RISKBAND’s prior approval, determine that it shall rely solely upon its own designated security team, rather than GEOS, then all descriptions in this EULA (and in any MLSA under which You are an Authorized User) shall be inapplicable to You and to Your Device, and neither RISKBAND nor GEOS shall have any responsibility or obligation, whatsoever, to provide any monitoring services to You.

4.2    When the Device is alerted, the user of the Device will know that the monitor has been alerted by a haptic vibration on the Device and, if the user or Your Company desires, the Device will be illuminated and will pulsate.  The monitoring personnel will not speak until the user of the Device initiates the conversation or the monitoring service has determined that it is safe to do so.

4.3   The monitor will promptly determine whether the appropriate authorities should be notified of the details relating to the user’s situation, including the user’s location supplied by the Device’s GPS tracking capabilities.

4.4   The situation will continue to be monitored and the personnel of the monitoring service will communicate with the user and the relevant authorities until the situation has been resolved.

4.5   All data, including GPS location, audio communications and photographic and video recordings, regarding the alert and response shall be captured and stored by the monitoring service and RISKBAND.  Enhanced levels of response, including Search and Rescue and Medevac services, are also available to users of Devices for additional monthly fees.

4.6   Pursuant to our contract with GEOS, we will transmit emergency signals and/or telephone calls to and from Your Device, together with Your registration data information and available location coordinates, to the IERCC if You or Your Company elect to use GEOS to provide any monitoring services. The IERCC maintains a database of emergency responders in regions throughout the world (the “IERCC Database”), and provides emergency signal monitoring 24 hours a day, 7 days a week and 365 days a year. We have instructed GEOS that upon receipt of an emergency signal, IERCC personnel: (i) shall immediately connect with Your Device to attempt to validate the emergency signal and signal that You are now being tracked and monitored; (ii) use the IERCC database to identify appropriate emergency responder(s) according to available location coordinates; (iii) contact the appropriate emergency responder(s) and inform them of the relevant facts in GEOS’s possession (including available registration data information and/or location coordinates); (iv) if You are traveling overseas, GEOS may contact an appropriate Embassy according to your registration data and/or location information, either in the country identified by your location information or the appropriate Washington-based Embassy, and provide them all relevant facts in GEOS’ possession; and (v) provide updates of location coordinates and other information as available to the identified emergency responder.  Upon contacting the emergency responder(s) and/or, as appropriate, the Embassy, and informing them of all relevant facts, we and GEOS are released from all further legal responsibility and/or obligation to take any further action whatsoever.  If Your Company decides to utilize a monitoring service or other capabilities other than GEOS or the services offered by GEOS, the manner in which such monitoring services are to be provided will be determined by Your Company, NOT by RISKBAND or GEOS, and the information and communications related to any alert from Your Device, and Your personal information that You or Your Company shall have entered on the ARIES Platform, shall be available to Your Company and to its designated providers of monitoring services for the purpose of responding to the incident that occasioned the alert by Your Device.

4.7   The staff at the IERCC are trained first responders and are in a position to assist the users of a Device with regard to contacting emergency personnel, but neither we nor IERCC personnel are in a position or under any obligation to provide any medical advice or assistance to You.

4.8   Both we and GEOS believe that the security of users of Devices will be enhanced if first responders can be provided with timely situational awareness or, simply put, information about: what the incident type is; where it is; who is involved; and whether the incident scene is active or even hostile. The IERCC personnel are capable of assisting in the collection and analysis of such valuable information and passing this information along in a concise and professional manner. The IERCC staff is trained and certified in incident command and response for critical situations and the IERCC team speaks the same language as the responders.

4.9    The team at the IERCC is able to collect information from a wide range of sources and handle multiple alerts and two-way communications with those involved in an incident, or witness to it, and correlate and condense it for immediate use by those responding. They are also able in some cases to access nearby CCTV systems, building floor plans, as well as in the case of corporate customers, schools, and hospitals, know the Emergency Response Plan (ERP) and who is on the crisis response team.

4.10   Should GEOS have reasonable cause to believe that an emergency condition does not exist, GEOS and us reserve the right, if GEOS or us deem it appropriate to do so under the particular circumstances, in our sole discretion, to solely contact the primary or secondary contacts identified by You or Your Company.

4.11   Provision of emergency services is subject to the terms of this EULA, any MLSA with Your Company, the ARIES Platform, the Device and GEOS’s service obligations (if applicable).  GEOS and us intend, subject to the applicable provisions of the MLSA, that the IERCC will be available at all times in all locations where your Device can function and establish connectivity to cellular services; however, it is possible that at some times and some locations, the IERCC will not receive your transmission or that your transmission will be delayed.

4.12   You or Your Company, as the case may be, shall be solely responsible for any charges that may be assessed by emergency responders for either false emergency signals and/or in relation to search and rescue activities resulting from You or Your authorized users’ transmission of an emergency signal. In addition, GEOS and us each reserve the right to assess a fee, payable by You or Your Company, as the case may be, in the case of deliberate or negligent misuse of Your Device.

4.13   LIMITATION OF LIABILITY.  BY ACCEPTING AND ENTERING INTO THIS EULA, OR BY ACTIVATING OR USING YOUR DEVICE,YOU AGREE, ON BEHALF OF YOURSELF AND ANY AUTHORIZED USER OF YOUR DEVICE THAT,TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND GEOS ARE EXPRESSLY RELIEVED OF AND/EXEMPT FROM LIABILITY FOR ANY DAMAGES OR CLAIMS, INCLUDING INJURY OR DEATH, AND ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL LOSS, DAMAGE, COSTS, OR EXPENSES WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THE PROVISION OF  MONITORING SERVICES UNDER THIS EULA (INCLUDING ANY DELAY IN PROVIDING OR FAILURE TO PROVIDE SUCH SERVICES),WHETHER RESULTING FROM CONTRACT, TORT (INCLUDING LIABILITY FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), OR OTHERWISE IN RESPECT OF ANY LOSS, DAMAGE, COSTS, EXPENSES, OR OTHER CLAIMS RESULTING FROM THE ACTS OF OMISSIONS OF THIRD PARTY PROVIDERS, INCLUDING GEOS, FOR ANY FAULTS, FAILURES, OR INADEQUACIES OF THE GPS SATELLITE SYSTEM, THE MOBILE COMMUNICATIONS INFRASTRUCTURE, THE DEVICE, THIS SERVICE, OR THE EMERGENCY MONITORING AND RESPONSE PROVIDED BY GEOS.  IN ADDITION, NEITHER WE NOR GEOS, SHALL BE LIABLE TO YOU OR BE DEEMED TO BE IN BREACH OF THIS EULA IN RESPECT TO ANY FAILURE OR DELAY IN THE PROVISION OF SERVICES CAUSED BY:MATTERS OUTSIDE OF OUR OR GEOS’S SERVICE PROVIDERS’ REASONABLE CONTROL, WHICH SHALL INCLUDE, BUT IS NOT LIMITED TO, OUTBREAK OF HOSTILITIES, RIOT, CIVIL DISTURBANCE, ACTS OF TERRORISM, FIRE, EXPLOSION, FLOOD, SNOW, FOG, OR OTHER INCLEMENT WEATHER CONDITIONS, FAILURE OF TELECOMMUNICATIONS OR SATELLITE SYSTEMS, ELECTRICAL POWER FAILURES OR FLUCTUATIONS, SURGES IN THE ELECTRICAL MAINS OR CURRENTS INDUCED, DAMAGE CAUSED BY ELECTROMAGNETIC INTERFERENCE, THEFT, MALICIOUS DAMAGE, STRIKE, LOCK OUT,  OR INDUSTRIAL ACTION OF ANY KIND

5. TERM AND TERMINATION. This EULA shall be effective upon the execution of this EULA by You or Your Authorized Representative, or by Your activation or use of Your Device, and shall continue for a twenty-four (24) months thereafter unless and until earlier terminated in accordance with this EULA. RISKBAND may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this EULA and the rights afforded to You hereunder with or without prior notice. Furthermore, if You fail to comply with any terms and conditions of this EULA, or if we terminate the MLSA under which You are an Authorized User, then this EULA and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by RISKBAND. Upon the termination of this EULA, You shall cease all use of the Device, and RISKBAND may, without notice to You, disable the Device. RISKBAND will not be liable to You or any third party for compensation, indemnity, or damages of any sort as a result of terminating this EULA in accordance with its terms, and termination of this EULA will be without prejudice to any other right or remedy RISKBAND may have, now or in the future. These obligations survive termination of this EULA.

6. DISCLAIMER OF WARRANTIES.

6.1 Limited Warranty.  If the Equipment becomes inoperable due to a defect in materials or workmanship within twelve (12) months of Your Company’s receipt of the Equipment, RISKBAND shall replace or repair the Equipment at RISKBAND's election and expense. This limited warranty is not assignable and extends only to the original licensee under the MLSA between Your Company and RISKBAND under which You are an Authorized User. It does not extend to You or to any subsequent user or transferee or other beneficiary of the Equipment or services provided under this EULA.  You must either deliver the Equipment to RISKBAND's designated location (at the Your or Your Company’s sole cost) or notify RISKBAND of any defect so that warranty service may be rendered. This warranty does not cover damage caused by accident, vandalism, negligence or mistake, violation of the installation and use requirements, flood, water, lightning, fire, intrusion, abuse, misuse, acts of God, casualty (including electricity), attempted unauthorized repair service, modification or installation by anyone other than the RISKBAND or its authorized subcontractors, or any other cause (excluding ordinary wear and tear). You acknowledge that, except as expressly set forth in this Section 6.1: (i) any affirmation of fact or promise made by RISKBAND shall not create an express warranty; (ii) RISKBAND does not make any representation or warranty, including without limitation any implied warranty of merchantability or fitness for a particular purpose, that the Equipment or Monitoring Services may not be compromised or  circumvented; (iii) the Equipment or Monitoring Services will in all cases be used by the Customer solely for the signaling, monitoring and response for which it was intended; (iv) there are no express warranties that extend beyond those stated in this EULA; and (v) all implied warranties, if any, coincide with the duration of the warranty set forth in the first sentence of this Section 6.1.  

6.2 Suspension or Interruption of Service. All RISKBAND's obligations are automatically suspended without notice to You, and You hereby waive all claims and release RISKBAND for any and all liability, loss, damage and expense: (i) in the event of a breach of this EULA by You, or (ii) if any Equipment or Monitoring Service is destroyed, damaged, inoperable, or malfunction for any reason whatsoever. In each such event, the duration of such suspension shall be until the reason for such suspension is cured. Except for any suspension of service due to a breach of this EULA by You, RISKBAND shall reimburse You or Your Company, as the case may be, for any charge previously paid by You or on Your behalf attributable to the period of an interruption or suspension in service exceeding three (3) days upon the Your timely request and this shall be the limit of RISKBAND's liability. A request for reimbursement of unearned charges is timely if it is made within forty-five (45) days following the interruption of service.

6.3  DISCLAIMER OF WARRANTIES.  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE DEVICE AND ANY RELATED SERVICES IS AT YOUR SOLE RISK.  EXCEPT TO THE EXTENT SET FORTH IN SECTION 6.1 OF THIS EULA, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DEVICE AND RELATED EQUIPMENT AND SERVICES ARE PROVIDED ON AN “AS IS’ AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE DEVICE OR ANY THIRD- PARTY SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. RISKBAND AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES REGARDING THE DEVICE AND THIRD- PARTY SERVICES, WHETHER ORAL, EXPRESS, IMPLIED OR STATUTORY, AND WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING, OR PERFORMANCE OF THE PARTIES, OR THE NATURE OR CONTEXT OF THIS EULA, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THAT THE DEVICE AND RELATED SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE DEVICE WILL BE WITHOUT INTERRUPTION OR ERROR-FREE, OF SATISFACTORY QUALITY, OF QUIET ENJOYMENT, THAT ANY DEFECTS IN THE DEVICE WILL BE CORRECTED, OR OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. FURTHERMORE, RISKBAND MAKES NO WARRANTIES RESPECTING ANY HARM THAT MAY BE CAUSED BY TRANSMISSION OF A COMPUTER VIRUS, HACKING BY A THIRD PARTY WORM, TIME BOMB, LOGIC BOMB, OR OTHER SUCH COMPUTER PROGRAM, AND YOU ACKNOWLEDGE THAT COMPATIBILITY AND INTEROPERABILITY PROBLEMS CAN CAUSE THE PERFORMANCE OF YOUR DEVICE TO DIMINISH OR FAIL COMPLETELY, AND MAY RESULT IN PERMANENT DAMAGE TO YOUR DEVICE, LOSS OF THE DATA LOCATED ON YOUR DEVICE, AND CORRUPTION OF THE SOFTWARE AND FILES LOCATED ON OR USED IN CONNECTION WITH YOUR DEVICE. YOU ACKNOWLEDGE AND AGREE THAT RISKBAND AND ITS AFFILIATES, PARTNERS, SUPPLIERS, AND LICENSORS, AND THEIR RESPECTIVE OFFICERS, MANAGERS, DIRECTORS, EMPLOYEES, AND AGENTS, SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSSES SUFFERED RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS.

6.4 Limitations on RISKBAND’s Liability and Responsibilities.

6.4(a) No Liability for Communication Outages. The Monitoring Services are dependent on communication systems (including without limitation phone lines, internet service, mobile phone systems, and other communications systems) provided by third parties (the “Communication Systems”).  The reliability and availability of the Communication Systems are not within  RISKBAND’s or the IERCC’s control.  If there is a service interruption, whether an outage, a failure to function or otherwise in the Communication Systems, the Monitoring Services may be unavailable or may not function properly.  Due to the potential for service interruptions in the Communication Systems, neither RISKBAND nor the IERCC warrants or guarantees that the Monitoring Services OR any of the Equipment supplied to You will be continuous or uninterrupted.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RISKBAND SHALL NOT BE RESPONSIBLE FOR ANY FAILURES CAUSED BY SERVER ERRORS, MISDIRECTED OR REDIRECTED TRANSMISSIONS, FAILED INTERNET CONNECTIONS, INTERRUPTIONS, OR FAILURES IN THE TRANSMISSION OF DATA, ANY COMPUTER VIRUS, ACTS OR OMISSIONS OF THE CUSTOMER OR ANY THIRD PARTIES THAT DAMAGE THE EQUIPMENT OR INTERFERE WITH THE MONITORING SERVICES, INCLUDING RELATED SOFTWARE.

6.4(b) Not Insurance.  RISKBAND is not an insurer. The fees and other charges for this EULA and Your Equipment and Monitoring Services are based solely upon the Equipment and services that RISKBAND and the IERCC provide under this EULA and is premised and conditioned upon RISKBAND's and GEOS’s limitations of liability and other rights arising under the risk allocation clauses contained in this EULA and in any relevant MLSA entered into by Your Company.  Neither RISKBAND, nor the Equipment, nor the Monitoring Service, ensures or insures (i) any action or inaction by You, any Device user, or any third party, or (ii) Your safety or the safety of any Device user or any third party. Accordingly, You should maintain insurance in an amount and with coverages sufficient to provide full and complete coverage for any loss, damage or expense that may be sustained by You or Your family members, agents and representatives.

6.5   LIMITATION OF LIABILITY. IF ANY CLAIM IS MADE OR LIABILITY IS ASSESSED AGAINST RISKBAND, ANY OF ITS PRESENT OR FORMER DIRECT OR INDIRECT MEMBERS OR PARTNERS, OR ANY PRESENT OR FORMER OFFICER, MEMBER, EQUITY OWNER, MANAGER, REPRESENTATIVE, AGENT, AFFILIATE, SUBSIDIARY, PREDECESSOR, SUCCESSOR, ASSIGNEE, BENEFICIARY, HEIR, EXECUTOR, INSURER, ATTORNEY, OR EMPLOYEE OR ANY OF THEM (COLLECTIVELY, "REPRESENTATIVES") FOR ANY LOSS, DAMAGE, COST, OR EXPENSE FOR PERSONAL INJURY OR DEATH, PROPERTY DAMAGE, FINE, ASSESSMENT, OR ANY OTHER LOSS, DAMAGE, COST. OR EXPENSE, INCLUDING ANY ECONOMIC LOSSES OR OTHER LIABILITY, ARISING OUT OF OR FROM, IN CONNECTION WITH, RELATED TO, AS A CONSEQUENCE OF, OR RESULTING FROM THIS EULA OR THE PERFORMANCE BY RISKBAND OR ITS REPRESENTATIVES OF ITS OBLIGATIONS HEREUNDER, INCLUDING WITHOUT LIMITATION THE (a) ACTIVE OR PASSIVE, SOLE, JOINT, OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF RISKBAND OR ANY OF ITS REPRESENTATIVES, WHETHER BEFORE OR AFTER THE EFFECTIVE DATE OF THIS EULA, (b) IMPROPER OPERATION OF THE EQUIPMENT, INCLUDING A DEVICE OR  THE FAILURE OF THE EQUIPMENT, A DEVICE OR RISKBAND'S SYSTEM TO OPERATE, (c) BREACH OF CONTRACT, OR (d) ANY CLAIMS FOR SUBROGATION, CONTRIBUTION, OR INDEMNIFICATION, ANY AND ALL SUCH LIABILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF ONE THOUSAND AND NO/100 DOLLARS ($1,000.00), COLLECTIVELY FOR RISKBAND, GEOS, AND THEIR RESPECTIVE REPRESENTATIVES. NEITHER RISKBAND NOR GEOS, NOR ANY OF THEIR RESPECTIVE REPRESENTATIVES SHALL BE LIABLE FOR ANY GENERAL, DIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, RISKBAND’S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE GREATER OF THE AMOUNTS PAID TO RISKBAND UNDER THIS EULA (INCLUDING ANY DEVICE-RELATED SERVICES) OVER THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT OR OCCURRENCE THAT SHALL HAVE GIVEN RISE TO ANY CLAIM, OR ONE THOUSAND AND NO/100 DOLLARS ($1,000.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THESE OBLIGATIONS SURVIVE TERMINATION OF THIS EULA.

6.6   Commencement of Service. RISKBAND makes no promise to commence Monitoring Services by any particular date. Monitoring Services will commence only after: (i) all required information to be provided by You or Your Authorized Representative is entered into the ARIES Platform; (ii) a test of the Equipment is performed and indicates that the Equipment is performing properly; (iii) You have  properly agreed to be bound by this EULA and have provided, either directly or through Your Authorized Representative, the consents required by Section 9.2 of this EULA; (iv) You or Your Company, as the case may be, have made, and RISKBAND shall have received, any and all the initial payments, including any applicable activation fees or deposits required by the terms and conditions of this EULA, any applicable MLSA and any other related agreement pertaining to Your Device; (v) any MLSA under which you may have been designated an Authorized User shall be in full force and effect; and (iv) RISKBAND shall have accepted Your application for this EULA, and You or Your Authorized Representative has successfully completed the registration process for Your Device to the satisfaction of RISKBAND, in its sole discretion, including the submission of all requisite information on the ARIES Platform.

6.7   Use of Subcontractors.  RISKBAND may, in its sole and absolute discretion, subcontract for the provision of any Equipment or services (including but not limited to Monitoring Services) to be provided under this EULA.

6.8   Support Services.  Following RISKBAND's receipt of notice from You that any Equipment has been damaged or otherwise is not functioning properly within the twelve (12) month period following Your Company’s receipt of Your Device, RISKBAND agrees, at its election, to replace or repair the Equipment, at the RISKBAND’s expense if the failure to function is a result of a manufacturing defect or workmanship; provided, however, that if the damage or inoperability of any Equipment shall occur at a later time period, or if such damage or inoperability is the result of a cause other than a manufacturer’s defect or workmanship,  such as, but not limited to, abuse or other action or inaction of You or any third party, RISKBAND shall be entitled to charge a fee for the repair or replacement of the Equipment.  RISKBAND makes no representation, promise, warranty or guarantee that there will be not be any interruptions of service or delays in performing repair or replacement of any Equipment.  All repairs or replacements of Equipment shall be performed only by RISKBAND or its designated subcontractors.  You shall not repair or replace or hire any third party to repair or replace any of the Equipment.

6.9   Termination of Monitoring Services.  RISKBAND's obligation to provide Monitoring Services shall terminate automatically: (i) at the expiration or earlier termination of the Term; (ii) at such time as You or a third party modifies, repairs, or replaces any Equipment; (iii) at such time as the Equipment supplied by RISKBAND has been deactivated.; and (iv) or as otherwise provided in this Agreement, including Section 6.2.

7 Term of this EULA

7.1   Term. The term of this EULA shall commence upon Your acceptance of this EULA or Your activation or use of the Device, whichever shall first occur, and shall extend for a period of twenty-four (24) months from such date (the “Initial Term”), unless otherwise terminated in accordance with the terms and conditions of this EULA. At the expiration of the Initial Term, or of any extension thereof, the term of this EULA shall be automatically extended for an additional twenty-four (24) month period unless, no less than sixty (60) days prior to the last day of the Initial Term, or of any such extended period (i)  we  terminate this EULA, or the MLSA under which You are an Authorized User, by written notice to You without any further cost, penalty, or obligation, in which case You  shall return to the Device within thirty (30) days of the delivery of such notice  to You, or (ii)  You or Your Company elect to terminate this EULA, or the MLSA under which You are an Authorized User, by written notice to us without any further cost, penalty, or obligation; provided, however, that (x) all payments applicable through the Initial Term, or any extended period, if applicable, shall have been paid in full, and (y) the Device is returned to us within fifteen (15) business days of the last day of the Initial Term or of any extended period, as the case may be.  The Initial Term and any extensions thereof shall be referred to herein as the “Term.”  

7.2   Authority. You shall have the right to modify any information provided to us by or for Your benefit.  RISKBAND has the right, without further inquiry, to rely upon information provided by You or any of Your Authorized Representatives.

7.3   Privacy Policy. In accordance with applicable federal and state laws and regulations on data privacy and security, we shall take reasonable measures to protect any confidential information regarding You that may come into RISKBAND’s possession.  In order to comply with such laws and regulations, RISKBAND may implement procedures with which You must comply prior to RISKBAND releasing confidential data.  You agree to the terms of our Privacy Policy, which are set forth on our ARIES Platform.  Our policy may change from time to time, so please review the policy with regularity and care. If you do not agree with the terms of our Privacy Policy, do not accept this EULA and do not activate or use Your Device.

8 Your Obligations and Acknowledgements

8.1   Payment of Licensing Fees. By accepting this EULA, You or Your Company, as the case may be, shall pay to RISKBAND an activation fee, as well as monthly license fees, in amounts agreed upon between the Company for whom You are an Authorized User and RISKBAND in a separate written agreement entered into prior to the date of this EULA, for RISKBAND’s basic Equipment package. In exchange for payment of such agreed upon amounts, You shall be entitled to use the Device and be eligible to receive the Monitoring Services in accordance with the terms and conditions of this EULA for the Term.  In addition, at the time that you submit Your application, payment shall be required for any additional costs or charges applicable to the decision of You or Your Company to license or purchase any optional Equipment or accessories that are not provided with the Device as part of the basic RISKBAND Equipment package, and to pay (on a monthly basis) the charges applicable to any enhanced levels of response for which You or Your Company may elect to subscribe. Any license or other fees for any extended Term of this EULA beyond the Initial Term must be approved by us, and all fees payable during any such extension period shall be in the amounts that we provide to You or to Your Company no less than sixty (60) days prior to the expiration of the then existing Term of this EULA, which may be at prices that are different than (either higher or lower) than the licensing fees that You or Your Company are paying at such time.

8.2    Order Acceptance. You agree that Your application for this EULA is an offer to obtain a EULA, under the terms and conditions of this EULA, for the use of all Equipment and services listed in Your application or as requested by Your Company. Unless and until an application has been accepted by us, we will not be obligated to provide You with any Equipment or services. We may choose not to accept any applications in our sole and absolute discretion. After having received Your application, we will send You or Your Company a confirmation e-mail with Your subscription number and details of the Equipment and services covered by this EULA. Acceptance of your application and the formation of this EULA between us will not take place unless and until You or Your Company have received Your order confirmation e-mail.

8.3   All prices provided to You or to Your Company are subject to change without notice prior to the effectiveness of this EULA or any applicable MLSA. The prices charged for   any item of Equipment or services will be the prices agreed upon between us and Your Company at the time Your application is accepted by us and will be set out in your order confirmation e-mail. Price increases will only apply to applications submitted, or for any extended Term. Prices and fees do not include taxes or charges for shipping and handling. All such taxes and charges will be added to the total amount payable by You or Your Company, as the case may be, and will be itemized in Your order confirmation e-mail. We are not responsible for pricing, typographical, or other errors in any offer by us and we reserve the right to cancel any applications that are submitted that arise from such errors.

8.4   Terms of payment are within our sole discretion.  Payment of the activation fee for Your Device and license fees for the initial month of Your Initial Term must be received by us before we will accept Your application.  

8.5   We will arrange for shipment of the Equipment to you or to Your Company as directed by Your Company. Please check our ARIES Platform for specific delivery options. You or Your Company will pay all shipping and handling charges specified during the application process. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.

8.6    Representations, Warranties and Covenants.  You covenant and agree that: (i) upon receipt of Equipment from RISKBAND You will contact us with any questions or concerns and will immediately notify us of any perceived malfunction of any Equipment; (ii) throughout the Term,  You or Your Authorized Representatives will be solely responsible for providing all information necessary to enable RISKBAND to continue to provide the Monitoring Services for each registered Device; (iii) You will care for the Device, including all requisite charging, in accordance with the instructions provided by RISKBAND; and (iv) You will notify  RISKBAND immediately if any  Equipment provided to You is damaged or destroyed or if You become aware that any Device registered, at Your request, for use by any third party, including any family member or employee, shall have been damaged or destroyed.

8.7   Returns and Refunds. Your entitlement to return any Equipment or obtain any refund is governed by the terms and conditions of this EULA. If You are seeking to return any Equipment, a return will not be accepted unless the Equipment is returned in its original condition.  If we accept a return of Equipment for a refund, the amount of such refund will be equal to Your original payment price, less the original shipping and handling costs. To return Equipment, You must call 843.501.0905 or e-mail our Returns Department at returns@riskband.com to obtain a Return Merchandise Authorization ("RMA") number before shipping Your Equipment. No returns of any type will be accepted without an RMA number. You are responsible for all shipping and handling charges on returned items. You bear the risk of loss during shipment. We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection.

8.8   Requests for refunds will be processed as promptly as practicable after our receipt of Your Equipment.

8.9   Return of Equipment. At the expiration of the Term or the earlier termination of this EULA, You shall return to RISKBAND, at Your sole cost and expense, postage prepaid, any Devices that RISKBAND supplied to You, undamaged and in good operating condition, other than ordinary wear and tear from the authorized and appropriate use of the Devices.  If (i) You do not return the Devices or any portion thereof in accordance with this EULA, or (ii) any returned Device is damaged or not in good operating condition, then You or Your Company, as the case may be, shall pay to RISKBAND the sum of three hundred and No/100 Dollars (US$300).

9 Covenants.

9.1   Credit Reports. You or Your Company, as the case may be, authorize and consent to (i) credit investigations of You or Your Company by us or our representatives, (ii) our obtaining of credit reports on Your or Your Company’s credit history, and (iii) our providing information concerning You or Your Company to credit reporting agencies. You agree to execute such documentation as we request to authorize us to obtain such credit reports and history.

9.2   Consent to Recording Communications and Use of Personal Information. You, for Yourself and as the authorized agent of Your agents, servants, representatives and employees (individually and collectively, “Any Customer Person"), hereby consent (and authorize Your Authorized Representatives to consent on Your behalf) to  RISKBAND and the IERCC recording,  reviewing, copying, using, and, subject to RISKBAND's and the IERCC’s privacy policies, disclosing the contents of all telephone, video, wire, oral, electronic, and other forms of transmission or communication (including information supplied by You or Any Customer Person, including personal information relating to any such person, and entered onto the ARIES Platform) which relate to or arise from (i) the Equipment or (ii) the issuances of any alerts or other notifications pertaining to the Monitoring Services or are relevant to the ability to provide  Monitoring Services.  You will obtain the consent of Any Customer Person who may be subject to any such recording, or the subject of any such information, who may use a Device supplied under this EULA.  It is expressly understood and agreed that in the absence of RISKBAND’s receipt of such consents, RISKBAND shall not accept any such person as an Authorized User of any Devices.

9.3   Indemnification. If anyone other than You, including without limitation one or more of the Your insurance companies, makes a claim against  RISKBAND or any of its members, managers, equity owners, officers, agents, representatives, affiliates, or employees (collectively, RISKBAND Indemnitees”) for any loss, damage, cost, or expense (including without limitation economic losses, property damage, personal injury, or death) arising out of or from, in connection with, related to, as a consequence of, or resulting from any reason, including without limitation (i) the  improper operation of any Equipment, or the failure of any Equipment, or  RISKBAND's system to operate, (ii) a breach of contract, or (iii) any claims for subrogation, indemnification, or contribution, You  agree to defend, indemnify and hold  RISKBAND and RISKBAND Indemnitees harmless (without any condition that RISKBAND or any RISKBAND Indemnitees expend any funds) from any and all such loss, damage, cost, and expense, including attorneys' fees, which may be asserted against or incurred by RISKBAND or any RISKBAND Indemnitees in connection with any and all such claims to the fullest extent permitted by applicable law. Your duty to indemnify, including the cost and duty to defend and hold  RISKBAND and RISKBAND Indemnitees   harmless shall include all of  RISKBAND's personnel-related costs, overhead, experts' fees, actual attorneys’ fees, court costs, and all related expenses, including all fees and costs incurred to enforce and establish rights under this indemnification provision; provided, however, that the indemnification obligations set forth in this Section 9.3 shall not apply if it is determined, by a final and non-appealable determination, that any actual loss or expense shall have been caused solely by the intentional misconduct of  RISKBAND or any RISKBAND Indemnitees.

9.4   Waiver of Subrogation.  You hereby waive any right of subrogation that You might otherwise have with respect to any amounts paid pursuant to Section 9.3 or otherwise under this EULA or with respect to any act or occurrence in connection with or related to this EULA or any Equipment or Monitoring Services. You shall require Your insurance companies to provide RISKBAND with standard waiver of subrogation endorsements.

10. DISPUTE RESOLUTION BY BINDING ARBITRATION

PLEASE READ THIS SECTION 10 CAREFULLY. IT AFFECTS YOUR RIGHTS, AS THIS EULA IS SUBJECT TO THE ARBITRATION PROVISIONS WHICH ARE INCLUDED IN THIS SECTION 10.

Summary:

Most customer concerns can be resolved quickly and to the customer's satisfaction by calling our customer service department at 843.501.0905.  In the unlikely event that RISKBAND's customer service department is unable to resolve a complaint You may have to Your satisfaction (or if RISKBAND has not been able to resolve a dispute it has with You after attempting to do so informally), we each agree to resolve our disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this EULA will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed Seventy-Five Thousand and No/100 Dollars (US$75,000.00), RISKBAND will pay all costs of the arbitration other than Your own attorneys’ and witness fees. Moreover, in arbitration You are entitled to seek to recover attorneys' fees from RISKBAND to at least the same extent as You would be in court.

In addition, under certain circumstances (as explained below), RISKBAND will pay You more than the amount of the arbitrator's award and will pay Your attorney (if any) his or her reasonable attorneys' fees if the arbitrator awards You an amount that is greater than what RISKBAND has offered You to settle the dispute.

10.1 Arbitration Agreement.

10.1.1 RISKBAND and You agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this EULA or any prior EULA (including, but not limited to, claims relating to advertising); claims that are currently the subject of purported class action litigation in which You are not a member of a certified class; and claims that may arise after the termination of this EULA.

For purposes of this Section 10.1 only, references to “RISKBAND,” “You,” “Your” and “us” include our respective subsidiaries, affiliates, agents, employers, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of Your Device, or of services or other Equipment under this EULA or prior EULAs between us. Notwithstanding the foregoing, either of us may bring an individual action in small claims court. This arbitration agreement does not preclude You from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on Your behalf. You agree that, by entering into this EULA, You and RISKBAND are each waiving the right to a trial by jury or to participate in a class action. This EULA evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration agreement shall survive termination of this EULA.

10.1.2   A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to RISKBAND should be addressed to: General Counsel, RISKBAND, 1036B eWall Street, Mount Pleasant, SC 29464 ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If RISKBAND and You do not resolve the claim within thirty (30) days after the Notice is received, You or RISKBAND may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by RISKBAND or You shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which You or RISKBAND is entitled.

10.1.3   The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this EULA, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. (You may obtain information that is designed for non-lawyers about the arbitration process at riskband.com/arbitration-information.) The arbitrator is bound by the terms of this EULA. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration agreement are for the court to decide. Unless RISKBAND and You agree otherwise, any arbitration hearings will take place in the county (or parish) of Your billing address. If Your claim is for Ten Thousand Dollars and No/100 (US$10,000) or less, we agree that You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If Your claim exceeds Ten Thousand and No/100 Dollars (US$10,000.00), the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as otherwise provided for herein, the payment of all fees for any arbitration will be governed by the AAA Rules.

10.1.4 If, after finding in Your favor in any respect on the merits of Your claim, the arbitrator issues You an award that is greater than the value of RISKBAND's last written settlement offer made before an arbitrator was selected, then RISKBAND will: pay You the amount of the award or One Thousand and No/100 Dollars (US$1,000.00) ("the alternative payment"), whichever is greater; and pay Your attorney, if any, the amount of attorneys' fees, and reimburse any expenses (including expert witness fees and costs) that Your attorney reasonably accrued for investigating, preparing, and pursuing Your claim in arbitration ("the attorney premium").

If RISKBAND did not make a written offer to settle the dispute before an arbitrator was selected, You and Your attorney will be entitled to receive the alternative payment and the attorney premium, respectively, if the arbitrator awards You any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator's ruling on the merits.

10.1.5   The right to attorneys' fees and expenses discussed in paragraph 10.1.4 supplements any right to attorneys' fees and expenses You may have under applicable law. Thus, if You would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding You that amount. However, You may not recover duplicative awards of attorneys' fees or costs.

10.1.6   The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND RISKBAND 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. Furthermore, unless both You and RISKBAND 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. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.

10.1.7  Notwithstanding any provision in this EULA to the contrary, we agree that if RISKBAND makes any future change to this arbitration agreement (other than a change to the Notice Address) while this EULA is in effect, You may reject any such change by sending us written notice within thirty (30) days of the change to the Arbitration Notice Address provided above. By rejecting any future change, You are agreeing that You will arbitrate any dispute between us in accordance with the language of this provision.

11 Miscellaneous

11.1    Governing Law. This EULA shall be governed by and construed according to the laws of the State of Delaware at the time that You accept and agree to be bound by the terms and conditions of this EULA, without reference to its conflicts of law rules.

11.2    Relationship. Nothing contained in this EULA may be construed to make either You or RISKBAND a partner, joint venturer, principal, agent, or employee of the other.  Neither party has any right, power or authority, express or implied, to bind the other.

11.3    No Waiver of Breach. Any waiver of any breach of this EULA by You or by RISKBAND shall not be construed as a waiver of any subsequent breach. Your rights and RISKBAND's rights hereunder shall be cumulative, and any rights hereunder may be exercised concurrently or consecutively and shall include all remedies available even though not expressly referred to herein.

11.4    Valid EULA.    If any provision of this EULA shall be held illegal, invalid or unenforceable to any extent, the validity and enforceability of the remainder of this EULA shall not be affected thereby, and shall remain in full force and effect as valid, binding and continuing. Following expiration or termination of this EULA, Sections 3, 4.13, 5, 6, 8.7, 8.9, 9,2, 9.3, 9.4, 10, 11.1, 11.5, 11.8, and 11.12 of this EULA shall survive expiration or termination and continue to apply to the You and RISKBAND.

11.5    Contractual Limitation of Actions. All claims, actions or proceedings by or against RISKBAND or any of its Representatives must be commenced, whether in court or in arbitration, within one (1) year after the cause of action has accrued, without judicial extension of time, or said claim, action or proceeding is barred. The time period in this paragraph must be strictly complied with.

11.6    Headings; Interpretation. The section titles used herein are for convenience of the parties only and shall not be considered in construing or interpreting the provisions of this EULA. In this EULA, the word 'including" is not a word of limitation, but means "including, without limitation or example." The interpretation of this EULA shall not be construed against the drafter.

11.7   Counterparts; Copies as Originals; Execution by Electronic Transmission.  It is the parties’ intent and the parties direct (i) that a copy of this document signed and delivered by hand, US mail or transmitted electronically by facsimile, telecopier, e-mail, accepted on the ARIES Platform, or otherwise shall be treated for all purposes as an original document; (ii) that the signature of a party or such party’s authorized representative, and the signature of any witness, shall be considered an original signature, and the copy of the document delivered or transmitted shall be considered to have the same binding legal effect as an original signature on an original document; and (iii) that no person may raise the fact that any signature was a copy or transmitted through the use of electronic transmission (by facsimile, telecopier, e-mail or otherwise) as a defense to the enforcement of this document.  Further, this document may be executed in any number of counterparts which together shall constitute the EULA of the parties. It shall not be necessary that the signatures of all parties appear on each counterpart hereof. All counterparts hereof shall collectively constitute a single document. A party’s properly executed signature page, or a signature page executed by such party’s authorized representative, is sufficient as the party’s counterpart of this document.

11.8   Integrated EULA; Modifications. This EULA contains the entire EULA between the parties concerning the subject matter hereof, including without limitation the Equipment and Monitoring Services, and supersedes all prior or current negotiations, commitments, contracts, express or implied, warranties, express or implied, and statements and representations, written or oral, pertaining to such matters, all of which are merged into this EULA, except for any written agreement between You or Your Company, as the case may be, and RISKBAND executed prior to the date of this EULA pertaining to the amount of fees and other charges to be paid for the Device, any other Equipment and Monitoring Services and the terms and conditions of payment of any such agreement or any applicable MLSA between RISKBAND and Your Company. NO PERSON ACTING ON RISKBAND'S BEHALF HAS ANY AUTHORITY TO MAKE OR CLAIM ANY REPRESENTATION, TERM, PROMISE, CONDITION, STATEMENT, WARRANTY, OR INDUCEMENT (COLLECTIVELY, "INDUCEMENT") NOT EXPRESSLY STATED IN THIS EULA. BY EXECUTING THIS EULA, AUTHORIZING ANOTHER PERSON TO EXECUTE THIS EULA ON YOUR BEHALF, OR USING THE EQUIPMENT OR MONITORING SERVICES, YOU REPRESENT THAT YOU ARE NOT RELYING ON ANY INDUCEMENT THAT IS NOT EXPRESSED IN THIS EULA.

11.9   The Device was developed and designed for use anywhere in the world where there is a cellular network connection. RISKBAND makes no representation, however, that the Device or any Device-related services are appropriate or available for use outside of the continental United States. If You choose to access or use the Device from other locations, You do so on Your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Device from jurisdictions in which the Device, in whole or in part, is illegal or penalized is prohibited. You may not use or otherwise export or re-export the Device except as authorized by United States law and the laws of the jurisdiction(s) in which the Device was obtained. You represent and warrant that You are not (a) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. You also agree that You will not use the Device for any purposes prohibited by United States law.

11.10   U.S. Government Restricted Rights. The Device was developed at private expense and 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 Software - Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS and in similar clauses in the NASA FAR Supplement, and their successors, and all other Federal laws and regulations that protect licensor rights in privately developed commercial software.

11.11   Amendments. From time to time, upon not less than thirty (30) days’ prior notice to  You or to Your Company, RISKBAND may modify this EULA.  Your continued use of the Equipment, or payment of amounts due under this EULA by You or Your Company, as the case may be, after the date specified in the notice shall constitute Your acceptance of the amendment and shall thereafter be bound by the terms of this EULA as so amended.

11.12   Survival. Any provisions of this EULA which by their express language or by their context are intended to survive the termination of this EULA shall survive such termination.

11.13   Third Party Beneficiaries. Except as explicitly provided in this EULA or in any related EULAs or agreements between us, nothing contained in this EULA is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person.

11.14   No Transfer or Assignment by You. Except as may be permitted by the terms and conditions of any MLSA under which You are an Authorized User, You may not rent, lease, lend, sublicense, assign or transfer (collectively, “transfer”) any Device, this EULA or any of the rights granted hereunder without RISKBAND’S prior written consent (which RISKBAND MAY WITHHOLD IN ITS SOLE DISCRETION ), the completion by Your proposed  transferee of the application process to RISKBAND’S satisfaction, and the transferee’s execution of a new EULA in the form then prescribed by RISKBAND.  If RISKBAND shall consent to any such proposed transfer, You shall still remain responsible for all Your obligations under this EULA to the extent that Your transferee does not satisfy such obligations in full. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect. These obligations survive termination of this EULA. RISKBAND may assign this EULA without restriction.

11.15   Notices.  If at any time after the execution of this EULA it shall become necessary or convenient for one of the parties hereto to serve any notice, demand or communication, such notice, demand or communication shall be in writing signed by the party serving the same and shall be deemed to have been delivered: (i) when delivered to the intended party personally or electronically with acknowledgment of receipt of the electronic delivery; (ii) at 5:00 P.M. on the business day after the date delivered to any nationally recognized private mail or courier service (Federal Express, Airborne or such similar service), postage paid and sent for next day delivery; or  (iii) at 5:00 P.M. on the third business day after the date deposited in the registered or certified United States mail, return receipt requested, postage prepaid and addressed as follows or to such other addresses as each may designate by so advising the parties by the same method of notice:

If to RISKBAND:      RiskBand General Counsel

      1036B eWall Street

      Mt. Pleasant, SC 29464