PLEASE READ THE AGREEMENT CAREFULLY BEFORE MAKING A PURCHASE OR USING OUR SERVICES.
REGISTRATION OF THE SERVICE BY CAREGIVER/USER CONSTITUTES ACCEPTANCE BY THE CAREGIVER/USER OF THESE TERMS AND CONDITIONS.
Beta Test Agreement and Confidentiality
This Beta Test Agreement (“Agreement”) governs the disclosure of information by GoFind Inc. (hereinafter referred to as “Company”) to the buyer (hereinafter referred to as “Customer”) of the Company’s Beta product and Application offering and Customer’s use of Company’s Beta product and Application offering. The Beta product and Application offering consist of the NudgeRTM, a Personal Digital Companion, and its associated Application called ProtectR, the App, (hereinafter the combined hardware and App is referred to as “NudgeRTM service”).
1. Subject to the terms and conditions of this Agreement, Company grants Customer a nonexclusive, nontransferable license to use the Company’s “NudgerR service” for a period of 12 months. The Company agrees to provide the “NudgeR service” at a significant discount to its scheduled retail price for said 12-month period. In return, the Customer agrees, for the purpose of testing and evaluating the “NudgeR service”, to provide a monthly review for the first 6-month period.
2. The Customer agrees that they will at all times hold in strict confidence and not disclose Confidential Information (as defined below) to any third party except as approved in writing by the Company and will use the Confidential Information for no purpose other than evaluating the “NudgeR service”. “Confidential Information” means all non-public materials and information provided or made available by Company to Customer, including “NudgeR service” information regarding technology, know-how, processes, software programs, research, development, financial information and information the Company provides regarding third parties.
3. The Customer’s obligations under this Agreement with respect to any portion of the Confidential Information shall terminate when the Customer can document that: (a) it was in the public domain at the time it was communicated to the Customer; (b) it entered the public domain subsequent to the time it was communicated to the Customer through no fault of the Customer; (c) it was in the Customer’s possession free of any obligation of confidence at the time it was communicated to the Customer; (d) the customer is required to disclose confidential information pursuant to the order or the requirement of a court; or (e) it was developed by employees or agents of the Customer who had no access to any information communicated to the Customer. After Customer’s evaluation of the “NudgeR service” is complete, or upon request of the Company, the Customer shall promptly return to the Company all documents, notes and other tangible materials and return or certify the destruction of all electronic documents, notes, software, data, and other materials in electronic form representing the Confidential Information and all copies thereof.
4. The Customer agrees that nothing contained in this Agreement shall be construed as granting any ownership rights to any Confidential Information disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right. The Customer shall not make, have made, use, or sell for any purpose any product or other item using, incorporating, or derived from any Confidential Information or the “NudgeR service”. The Customer will not modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information or the “NudgeR service”.
5. This “NudgeR service” is a beta release offering and is not at the level of performance of a commercially available product offering. The “NudgeR service” may not operate correctly and may be substantially modified prior to first commercial release, or at Company’s option may not be released commercially in the future. THE “NUDGER SERVICE” AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND COMPANY AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN ADVICE OR CONSULTATION GIVEN BY COMPANY, ITS AGENTS OR EMPLOYEES WILL IN ANY WAY GIVE RISE TO A WARRANTY. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE “NUDGER SERVICE” REMAINS WITH CUSTOMER.
6. The Customer’s obligations under this Agreement shall survive any termination of this agreement. This Agreement shall be governed by and construed in accordance with the laws of The State of Texas. The Customer hereby agrees that breach of this Agreement will cause Company irreparable damage for which recovery of damages would be inadequate, and that the Company shall therefore be entitled to obtain timely injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction. The Customer will not assign or transfer any rights or obligations under this Agreement without the prior written consent of the Company.
Exclusions: / Disclaimers:
1) No Medical Advice:
a. The NudgeR Personal Digital Companion is a Personal Emergency Response System platform (PERS), also called a medical alert device, to enhance the safety and comfort of an elderly or impaired user. The “NudgeR service” is not a medical device. The Company is not a “911” emergency medical response service and does not provide medical advice. Medical advice should be obtained from qualified medical personnel. While the Company provides medical alerts, it does not and cannot provide medical advice, an opinion or other information other than what is provided in the monitoring service to the customer.
b. The “NudgeR service” is not a substitute for in-person or telemedicine medical monitoring or care and any deviation from current healthcare routines or practices should be approved by a qualified medical professional.
c. The Caregiver and / or user is responsible for the use of the “NudgeR service”. The Company is not liable or legally responsible for any misuse of the product or any misunderstanding of or deviation from the instructions provided. The application services are not intended to replace, substitute, or otherwise alter the use of a caregiver.
d. Any resources, user guides or other information provided, including through the company website, are not meant to be a substitute for medical advice. If you have health related questions, please reach out to your trusted medical professional.
e. The contents of the website (such as text, graphics, images, information obtained by us from third-party licensors and other material contained on the website, including information related to medical and/or health conditions) are made available to you for informational purposes only.
f. Always seek the advice of your medical provider with any questions you may have regarding any medical condition or treatment. Neither the website nor your use of the website creates a doctor/patient relationship. In no event will the Company be liable for any decision made or action taken in reliance upon the information provided through the website.
2) Cellular Network Coverage: Digital cellular service may not be available everywhere or at all times. The “NudgeR service” relies on the availability of cellular network coverage and the availability of global positioning system (GPS) data to operate properly. The GPS is not operated by the Company. Not all functionality of the “NudgeR service”, including the ability to send an alert or request emergency assistance, is available at all times, particularly when your connectivity cannot or does not provide an adequate signal or service or is not active or activated or your “NudgeR service” is not active or activated. The Company is not liable for any harm in the event that adequate cell signal or GPS service is not available.
3) Fall Detection: Customer acknowledges that the automatic fall detection service does not detect one hundred percent (100%) of falls. If able, users should always push their help button or call for help at the NudgeR when they need assistance. Automatic fall detection services are not intended to replace a caregiver for users dealing with serious health issues.
4) Language Limitations: Company services are only available in English.
5) Location Services: Our ability to identify and transmit your location to emergency personnel is based on the most current location data available through the “NudgeR service”. That data is dependent on the ability of “NudgeR service” to accurately transmit your location and the accuracy of the location services provided by our third party service provider. The Company cannot guarantee the performance, reliability, or accuracy of the location services available through the “NudgeR service” and are not responsible for any losses or damages, including death or injury, arising from or relating to any failures in the accuracy of the location services provided by our third-party service provider.
1) Customer hereby waives, releases and discharges Company of any liability associated with the Customer’s use of the “NudgeR service” and our failure, or the failure of our affiliates or service providers, to receive and/or transmit your alert or request for emergency assistance, including your physical location, to emergency personnel.
2) Company is not responsible for the promptness, sufficiency, or adequacy of any action of the “NudgeR service”. The “NudgeR service” cannot prevent death, bodily or personal injury, or any other harm or damage to you or others who use the “NudgeR service”.
Warranty; Disclaimer; Limitation of Liability
Company makes no guarantees or warranties of any kind relating to the “NudgeR service” and expressly disclaims all warranties whether express or implied, written or oral, with respect to the “NudgeR service,” including without limitation any warranty of merchantability or fitness for a particular purpose. If, notwithstanding any other provision of this Agreement, there should arise any liability with regard to the “NudgeR service” or third-party accessories and/or services, whether based upon warranty, contract, tort, or otherwise, including any liability alleged to arise from the negligence or intentional actions of the Company, the Company’s maximum liability for any claim and for all damages of any kind related to any claim whether before, during or after the event giving rise to the claim or damages, shall not exceed One Thousand Dollars ($1,000.00) under this Agreement. Claims for liability must be made on or before the first anniversary of the event allegedly giving rise to the liability. Claims or actions brought more than one (1) year after the date of the event giving rise to the alleged liability are barred by agreement between the Company and the Customer regardless of any Statute of Limitations and are waived forever. Since it is impractical and extremely difficult to fix actual damages which may arise due to a failure of the “NudgeR service”, this sum shall be complete and exclusive and shall be paid and received as liquidated damages and not as a penalty. In no event shall Company be liable for punitive, special, incidental, or consequential damages.
DISPUTE RESOLUTION; ARBITRATION; WAIVER OF LAWSUITS AND ALL ACTIONS IN A COURT OF LAW; WAIVER OF JURY TRIAL
THIS AGREEMENT INCLUDES AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO YOUR PURCHASE OR OUR SERVICES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT.
THE DISPUTE RESOLUTION PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION.
THIS AGREEMENT ALSO INCLUDES A JURY WAIVER.
Any dispute or claim relating in any way to your use of any Company service, and/or Company equipment or devices, whether purchased from Company or obtained as part of a Service Agreement or otherwise, and all actions or damages of any and every kind that you claim Company is responsible for, will be resolved by binding arbitration, rather than in court. The Federal Arbitration Act and the laws of the State of Texas apply to this Agreement without regard to any conflict of law provisions. To begin an arbitration proceeding, you must send a certified letter describing your claim and requesting arbitration to our Company, at the business address shown on our website. The arbitration will be conducted by a single arbitrator, who must be a member of the American Arbitration Association, in accordance with their latest published Expedited Case rules. The arbitration will be conducted in Dallas County, Texas. You may choose to appear at the arbitration in person, by telephone or video connection or to submit your claim in writing for the arbitrator to consider. The arbitrator shall not award any consequential, punitive, or speculative damages in rendering an award, and only the laws of the State of Texas, the Federal laws of arbitration and this Agreement will be considered in rendering an award. The Parties shall equally split the cost of the arbitrator and the arbitration proceedings and each Party shall bear its own attorney’s fees and costs. We each agree that any dispute resolution proceedings will be conducted only on an individual basis, and not in a class, consolidated or representative action. If, for any reason, a claim proceeds in a Court of law, rather than by arbitration, we each waive any right to a jury trial. No claim for arbitration will be allowed more than one (1) year from the date of the event giving rise to the claim asserted. The scope of this waiver of a trial in a court of law is intended to cover all disputes that may be filed in court, including without limitation contract, tort, breach of duty, and all other common law and statutory claims. This waiver is irrevocable and may not be modified either orally or in writing. This waiver applies to any future amendments, renewals, supplements, or modifications of or to this Agreement. Notwithstanding the above waiver of a trial in a Court of law, if for any reason the waiver of a trial is determined to be invalid and litigation is allowed, this Agreement may be filed in court as a written consent to a waiver of a jury trial and consent to a trial by the Court. In that case, venue shall lie exclusively in the State Courts of the State of Texas, in Dallas County, Texas, and all Parties consent to the personal jurisdiction of these Courts.
THIRD PARTY INDEMNIFICATION AND NO SUBROGATION.
You hereby indemnify Company against any third-party claim (including claims for property damage, personal injury, or death) connected to or resulting from Company’s performance under this Agreement, including failure of the “NudgeR service”. You further agree to pay Company (i) any amount which a court orders Company to pay or which Company reasonably agrees to pay, and (ii) the amount of Company’s reasonable attorneys’ fees and any other losses or costs that Company may pay in connection with the harm or damages.
CONTACT. If you have any questions, complaints, or claims with respect to the Services, you may contact us at GoFind, Inc., PO BOX 833580 Richardson, TX 75083-3580 or email firstname.lastname@example.org, or call ( 1-602-315-1043)
Effective Date: October 10, 2016