Punch
Alert Mobile Application
End User
License Agreement
IMPORTANT Ð READ CAREFULLY. YOUR USE OF THE APPLICATION (AS DEFINED
BELOW) IS CONDITIONED UPON YOUR COMPLIANCE WITH, AND ACCEPTANCE OF, THE
FOLLOWING AGREEMENT.
This End
User License Agreement and Assumption of Risk, Release and Indemnity Agreement
(the ÒAgreementÓ) is a binding agreement between Punch Technologies, Inc., a Delaware
corporation (ÒPunch AlertÓ) and you individually, or the entity for which you
accept this Agreement (ÒyouÓ, and together with Punch Alert, the ÒPartiesÓ and
each a ÒPartyÓ).
BY DOWLOADING, INSTALLING, ACTIVATING OR USING THE APPLICATION YOU (A)
ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT
THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING
AGREEMENT, OR IF YOU ARE NOT OF LEGAL AGE, YOUR PARENT AND/OR LEGAL GUARDIAN IS
ENTERING INTO THIS AGREEMENT ON YOUR BEHALF; AND (C) ACCEPT THIS AGREEMENT AND
AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE
TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE APPLICATION. IF YOU HAVE ANY QUESTIONS OR CONCERNS
ABOUT THE TERMS OF THIS AGREEMENT, PLEASE CONTACT PUNCH ALERT AT contact@stopitsolutions.com.
1.
Definitions. The following terms shall have the following
meanings.
a)
ÒApplicationÓ
means, collectively, the Documentation, Software, and Services.
b)
ÒDocumentationÓ
means all product user guides, installation guides, manuals, release notes,
safety instructions or other end user documentation that Punch Alert provides
to you in whatever form, whether through its website (http://www.punchalert.com) or otherwise, in connection with your use of any Software
or Service.
c)
ÒSoftwareÓ
means any Punch Alert software or application provided to you under this
Agreement, in whatever form, medium or manner, including any updates, upgrades,
amendments and modifications thereto.
d)
ÒServicesÓ
means any services Punch Alert provides to you from time to time in conjunction
with the Software as such services may be modified, changed, revised or deleted
in whole or part from time to time, including without limitation any form of
messaging including e-mail, instant messaging, SMS, phone, video, IP telephony
and any subscription services to which you may subscribe and use in conjunction
with the Software.
2.
License Grant.
a)
Application. Subject
to the terms of this Agreement and payment of any applicable fees, Punch Alert
grants you a limited, non-exclusive and nontransferable license, with no right
to grant sublicenses, to download, install and use the Application in the
Territory (as defined below) for your personal, non-commercial use on a single mobile
device owned or otherwise controlled by you (ÒMobile DeviceÓ)
strictly in accordance with the Documentation.
b)
Third Party Software.
The Software may contain or be provided with open source software and/or
software owned by third parties (ÒThird Party SoftwareÓ). You shall be licensed to use the Third
Party Software only for purposes of using the Application, subject to
applicable restrictions and other terms and conditions set forth in the
Documentation. In no event shall
the Application be deemed to be open source software.
c)
General Rights and Obligations. Punch Alert is solely responsible for the design and function of
the Application in the manner that it determines to be appropriate. Punch Alert reserves the right to
modify, upgrade and fix the Application, and to add or delete features, in the
normal course of its business. The
Application, including but not limited to any updates, upgrades or patches that
are provided by Punch Alert, will be delivered by Punch Alert only by
electronic means. In no event will Punch Alert be required to deliver any
Software, Documentation, or Service, or any updates, upgrades or patches, on
tangible media. Any such updates,
upgrades or patches shall be subject to the terms and conditions of this
Agreement and any other additional terms and conditions (which may include the
payment of fees) which Punch Alert may specify.
3.
License Restrictions. You shall not:
a)
copy the
Application;
b)
modify,
translate, adapt or otherwise create derivative works or improvements, whether
or not patentable, of the Application or any part thereof;
c)
reverse engineer,
disassemble, decompile, decode or otherwise attempt to derive or gain access to
the source code of the Application or any part thereof;
d)
remove, delete,
alter or obscure any trademarks or any copyright, trademark, patent or other
intellectual property or proprietary rights notices from the Application,
including any copy thereof;
e)
rent, lease,
lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make
available the Application or any features or functionality of the Application,
to any third party for any reason, including by making the Application
available on a network where it is capable of being accessed by more than one
device at any time;
f)
remove, disable,
circumvent or otherwise create or implement any workaround to any copy
protection, rights management or security features in or protecting the
Application; or
g)
take any action
or upload, download, post, submit or otherwise distribute or facilitate distribution
of any content on or through the Application that: (i)
infringes any patent, trademark, trade secret, right in confidential
information, copyright, right of publicity or other right of any other person
or entity, (ii) violates any international, federal, state or local law,
statute, rule, regulation, ordinance or code or any contractual duty, or that
you know is false, misleading, untruthful or inaccurate; (iii) is unlawful,
threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent,
invasive of anotherÕs privacy, tortious, obscene, vulgar, pornographic,
offensive, profane or otherwise inappropriate as determined by Punch Alert in
its sole discretion; (iv) constitutes unauthorized or unsolicited advertising,
junk or bulk e-mail; (v) involves commercial activities and/or sales without
Punch AlertÕs prior written consent; (vi) contains software viruses or any
other computer codes, files, or programs that are designed or intended to
disrupt, damage, limit or interfere with the proper function of any software,
hardware, or telecommunications equipment or to damage or obtain unauthorized
access to any system, data, password or other information of Punch Alert or any
third party; (vii) impersonates any person or entity, including any employee or
representative of Punch Alert; (viii) imposes or may impose, as determined by
Punch Alert in its sole discretion, an unreasonable or disproportionately large
load on Punch AlertÕs, or its third party providersÕ, infrastructure; (ix)
interferes or attempts to interfere with the proper working of the Application
or any activities conducted on the Application; (x) bypasses any measures Punch
Alert may use to prevent or restrict access to the Application or other
accounts, computer systems or networks connected to the Application; or (xi)
runs any form of auto-responder or spam on the Application.
4. Reservation of Rights. You acknowledge and agree that the
Application is provided under license, and not sold, to you. You do not acquire
any ownership interest in the Application under this Agreement or any other
rights thereto other than to use the Application in accordance with the license
granted to you, and subject to all terms, conditions and restrictions under
this Agreement. Punch Alert reserves and shall retain its entire right, title
and interest in and to the Application, including all patents, trade secrets,
copyrights, trademarks and other intellectual property rights therein or
relating thereto.
5. Privacy. Punch Alert knows that you care about how your
personal information is used and shared. You acknowledge that when you download,
install or use the Application, Punch Alert may use automatic means (including,
for example, cookies and web beacons) to collect information about your Mobile
Device and about your use of the Application. You also may be required to
provide certain information about yourself as a condition to downloading,
installing or using the Application or certain of its features or
functionality, and the Application may provide you with opportunities to share
information about yourself with others. All information we collect through or
in connection with this Application is subject to our privacy policy (ÒPrivacy
PolicyÓ) available at https://www.Punch Alert.com/privacy. By downloading, installing, using and
providing information to or through this Application, you consent to all
actions taken by us with respect to your information in compliance with the
Privacy Policy, and you agree to the terms and conditions of the Privacy Policy,
which is incorporated herein by reference.
6.
Territory. The Application is intended for use only in the United
States of America and Canada (the ÒTerritoryÓ). Punch Alert may change the
Territory by posting such change on its website and such posting shall be
deemed to be notice of the change.
7.
Term and
Termination. This Agreement is
effective until terminated. This Agreement, including without limitation
your right to use the Application, terminates immediately if you fail to comply
with any of this AgreementÕs provisions or otherwise breach any representation
or warranty herein. In addition,
Punch Alert may terminate this Agreement with or without cause immediately and
without notice. Sections 3, 4, 5, 8, 9, 11, 12, 13, 14, 15, 17, 18 and 21 shall survive the termination of this Agreement. Upon the termination of this Agreement, (i) Punch Alert may immediately terminate and block your
access and use of the Application, and (ii) you shall cease all use of the
Application and uninstall the Application from your Mobile Device. Without limiting the foregoing, in the
event of a breach that gives rise to the right by Punch Alert to terminate this
Agreement, Punch Alert may elect, as an interim measure, to suspend its
performance hereunder (including, without limitation, your right to access and
use the Applications) until the breach is cured and all fees shall continue to
accrue during the period of such suspension. Punch AlertÕs exercise of its right to
suspend performance shall be without prejudice to Punch AlertÕs right to
terminate this Agreement upon written notice to you.
8. Content. By transmitting any message, communication,
information or data including without limitation photos, location information,
emergency alerts or responses (ÒContentÓ), you grant Punch Alert and its
affiliates a perpetual, non-exclusive, worldwide, royalty-free, sub-licensable
and irrevocable license to collect, use, store, handle, reproduce, display,
perform, and transmit such Content for any purpose in connection with the
Application, including without limitation, any marketing or development efforts.
You represent and warrant, and can demonstrate to Punch AlertÕs full
satisfaction upon request, that you (a) own or otherwise control all rights to
all Content, or that the Content is in the public domain, (b) you have the permission
to use the name and likeness of each identifiable individual person in such
Content and to use such individualÕs identifying or personal information as
contemplated by this Agreement, and (c) you are authorized to grant all of the
aforementioned rights to the Content to Punch Alert.
9. Ideas and Suggestions. Punch Alert
wishes to continually improve its Application. Punch Alert welcomes any ideas,
suggestions or feedback related to the Application or for upgrades, updates,
improvements, new features or functions thereto (ÒIdeasÓ). If you provide Punch
Alert with any Ideas, whether orally, in writing, or in any other way, you
hereby irrevocably assign all rights to modify, enhance or otherwise create
derivative works of the Application using such Ideas, together with all
copyrights, trade secrets, trademarks, patents, patent rights and other
intellectual property rights related thereto. No rights to the Applications are
granted to Client hereunder other than as expressly set forth herein. You represent and warrant, and can
demonstrate to Punch AlertÕs full satisfaction upon request that you (a) own or
otherwise control all rights to all Ideas, or that the Ideas are in the public
domain, and (b) you are authorized to grant all of the aforementioned rights to
the Ideas to Punch Alert.
10. Third Party Content and Services. The Application may permit you to link to other
websites, services or resources on the Internet (ÒThird Party ServicesÓ). When
you access such Third Party Services, you do so at your own risk. The Third Party Services are not under
Punch AlertÕs control, and you acknowledge that Punch Alert is not responsible and
will not be liable for the content, functions, accuracy, legality,
appropriateness or any other aspect of such Third Party Services.
11. Export Restrictions. The
Application may be subject to US export control laws, including the US Export
Administration Act and its associated regulations. You shall not, directly or
indirectly, export, re-export or release the Application to, or make the
Application accessible from, any jurisdiction or country to which export,
re-export or release is prohibited by law, rule or regulation. You shall comply
with all applicable federal laws, regulations and rules, and complete all
required undertakings (including obtaining any necessary export license or
other governmental approval), prior to exporting, re-exporting, releasing or
otherwise making the Application available outside the country in which you
downloaded the Application.
12. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO YOU "AS IS"
AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM
EXTENT PERMITTED UNDER APPLICABLE LAW, PUNCH ALERT, ON ITS OWN BEHALF AND ON
BEHALF OF ITS AFFILIATES AND ITS AND ITS AFFILIATESÕ RESPECTIVE LICENSORS AND
SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE
AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING,
COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, PUNCH ALERT PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO
REPRESENTATION OR GUARANTY OF ANY KIND THAT THE APPLICATION WILL MEET YOUR
REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY
OTHER SOFTWARE, APPLICATIONS, SYSTEMS, DEVICES, HARDWARE, SOFTWARE OR SERVICES,
OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR
BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, OR THAT ANY
MESSAGES, CONTENT OR INFORMATION SENT BY OR TO YOU WILL BE ACCURATE,
TRANSMITTED SUCCESSFULLY OR IN AN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD
OF TIME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS
ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF
A CONSUMER, SO SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO
YOU. TO THE EXTENT ANY WARRANTY WHATSOEVER CANNOT BE EXCLUDED AS SET OUT ABOVE
BUT CAN BE LIMITED IN DURATION, SUCH WARRANTIES ARE HEREBY LIMITED TO THIRTY
(30) DAYS FROM THE DATE YOU FIRST INSTALLED THE SOFTWARE ON ANY DEVICE OR
COMMENCED TO USE THE APPLICATION. THE
APPLICATION MAY BE USED IN CONJUNCTION WITH EXISTING EMERGENCY SERVICES BUT IT
SHOULD NOT BE CONSIDERED A REPLACEMENT FOR CURRENT SECURITY SERVICES USED OR A
REPLACEMENT FOR OFFICIAL EMERGENCY RESPONDERS, SUCH AS 911.
13. Limitation of Liability. TO THE
EXTENT ANY CLAIM IS NOT BARRED UNDER SECTION 17, IN NO EVENT
SHALL PUNCH ALERT OR ITS AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS,
SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL, PUNITIVE, AGGRAVATED OR EXEMPLARY DAMAGES, DAMAGES RELATED TO OR
ARISING FROM PERSONAL INJURIES OR DEATH, MEDICAL OR HEALTH COSTS OR EXPENSES,
OR MENTAL DISTRESS, DAMAGES FOR LOSS OF PROFITS OR REVENUES, LOSS OF
INFORMATION, CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE ANY
DATA, OR OTHER SIMILAR PECUNIARY LOSSES ARISING OUT OF OR IN CONNECTION WITH
YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE APPLICATION, WHETHER OR
NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PUNCH ALERT WAS ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PUNCH ALERTÕS AGGREGATE
LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT
EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). IF YOU ARE A CALIFORNIA RESIDENT, YOU
WAIVE CALIFORNIA CIVIL CODE ¤1542, WHICH SAYS: ÒA GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.Ó
14.
Limitation of Time to File Claims. ANY CAUSE OF
ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION
ACCRUES. OTHERWISE, SUCH CAUSE OF
ACTION OR CLAIM IS PERMANENTLY BARRED.
15.
Assumption of Risk. IN ANY USE OF THE APPLICATION, ESPECIALLY WHEN RESPONDING TO
ALERTS OR REPORTS GENERATED BY THIRD PARTIES, RISK OF SERIOUS PHYSICAL INJURY
IS POSSIBLE. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE FULLY AWARE AND
UNDERSTAND THAT: (I) THERE ARE INHERENT RISKS IN USING THE
APPLICATION; (II) THE INHERENT RISKS OF INJURY RESULTING FROM THE APPLICATIONÕS
USE ARE POTENTIALLY SIGNIFICANT,
INCLUDING RISKS AND DANGERS OF GRAVE OR MINOR BODILY INJURY, INCLUDING
WITHOUT LIMITATION PERMANENT DISABILITY, PARALYSIS, DEATH, AND OTHER RISKS;
(III) THAT THESE RISKS AND DANGERS MAY BE CAUSED BY, ARISE OUT OF, OR BE IN
CONNECTION WITH YOUR OWN ACTIONS OR INACTIONS, THE ACTIONS OR INACTIONS OF
OTHERS USING THE APPLICATION, OR THE CONDITION OR OPERATION OF THE APPLICATION,
OR LACK OR INSUFFICIENCY THEREOF, OR THE NEGLIGENCE OF A RELEASED PARTY (AS
DEFINED BELOW) OR ITS AFFILIATES; (IV) THERE ARE PHYSICAL RISKS INVOLVED WITH CERTAIN
USES OF THE APPLICATION; (V) YOU UNDERSTAND YOUR EXPERIENCE AND CAPABILITIES,
AND YOU BELIEVE YOU ARE QUALIFIED TO USE THE APPLICATION. YOU DO
KNOWINGLY AND FREELY ASSUME ALL RISKS (BOTH KNOWN AND UNKNOWN, FORESEEABLE AND
UNFORESEEABLE) AND TAKE FULL RESPONSIBILITY FOR YOUR USE OF THE APPLICATION OR
ACTIONS YOU TAKE OR DO NOT TAKE RELATED TO YOUR USE OF THE APPLICATION. YOU REPRESENT TO THE RELEASED PARTIES
THAT YOU ACCEPT AND ASSUME RESPONSIBILITY FOR ANY LOSS, DAMAGE, OR INJURY YOU
MAY SUSTAIN OR CAUSE AS A RESULT OF YOUR USE OF THE APPLICATION. YOU UNDERSTAND THERE MAY BE OTHER RISKS
NOT KNOWN TO YOU OR THAT ARE NOT READILY FORESEEABLE AT THIS TIME. THE RISKS OUTLINED IN THIS AGREEMENT ARE
NOT EXHAUSTIVE, AND YOU ACKNOWLEDGE THAT THERE MAY BE OTHER RISKS, HAZARDS, AND
DANGERS THAT, BASED ON THE CIRCUMSTANCES, ARE INHERENT IN THE USE OF THE
APPLICATION. YOU UNDERSTAND
AND ACCEPT THE INHERENT RISKS OF RECEIVING ALERTS OF CRIMINAL ACTIVITY OR
EMERGENCIES REPORTED BY THIRD PARTIES (ÒALERTSÓ), RESPONDING OR NOT RESPONDING
TO SUCH ALERTS, AND THE INHERENT RISKS IN RELYING ON OR OTHERWISE BELIEVING
SUCH ALERTS, INCLUDING WITHOUT LIMITATION:
a)
the possibility that an Alert is
false, inaccurate, or produced by a third party by mistake, in bad faith or in
error;
b)
the possibility that you will be
held liable for your actions or inactions in responding to an Alert, including
without limitation the possibility that you may negligently contribute to your
own injury or that of others;
c)
the possibility that you will
suffer property damage, physical injury, kidnapping or death as a result of
responding to an Alert;
You understand that injuries, death, property damage and
other losses may result from the accepted risks of using the Application and
receiving Alerts, that such use has the potential to be dangerous, and that the
risks listed in this Agreement are just a sampling and you are not relying on
the Released Parties to list all possible risks related to the use of the
Application. For purposes of this
Agreement, ÒReleased PartiesÓ means, collectively, Punch Alert, its owners,
agents, employees, trustees, independent contractors, managers, members, and
any affiliate, successor, or assign of any of the foregoing.
16. Conduct.
You
will comply with all rules of Punch Alert. If you observe any hazards, either
subjective or objective, to yourself, you will immediately leave the unsafe
area. Without limiting the generality of the
foregoing, you therefore agree that: (a) you will follow Punch AlertÕs rules
and abide by this Agreement at all times; (b) you will at all times be
responsible for your personal safety; and (c) you will be financially
responsible for any medical expenses you may incur.
17.
Release and Covenant Not to Sue. IN
CONSIDERATION OF THE LICENSE GRANTED TO YOU UNDER THIS AGREEMENT, THE RECEIPT
AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, YOU HEREBY RELEASE, DISCHARGE
AND COVENANT NOT TO SUE THE RELEASED PARTIES, AND ALL OTHERS ACTING ON THEIR BEHALF,
AND ANY SUCCESSORS AND ASSIGNS OF ANY OF
THE AFOREMENTIONED ENTITIES OR INDIVIDUALS FROM ANY AND ALL INJURIES, LOSSES,
LIABILITIES, CAUSES OF ACTION, SUITS, CLAIMS, AND DAMAGES (INCLUDING
ATTORNEYÕS FEES AND COSTS) RELATED TO YOUR USE OF THE APPLICATION, INCLUDING,
WITHOUT LIMITATION, ALL LIABILITY AND CLAIMS FOR PROPERTY DAMAGE, PERSONAL
INJURIES OR WRONGFUL DEATH, EVEN THOUGH SUCH INJURY, LOSS OR DAMAGE
RESULTS FROM THE NEGLIGENCE OF A RELEASED PARTY. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING AND FOR THE AVOIDANCE OF DOUBT, PUNCH ALERT WILL NOT BE LIABLE FOR
ITS NEGLIGENT ACTS OR OMISSIONS.
18. Indemnification. You agree to indemnify, defend
and hold harmless Punch Alert and its officers, directors, employees, agents,
affiliates, successors and assigns 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 attorneyÕs fees, arising from or relating to your use or
misuse of the Application, your breach of Section 17 above or any
other breach by you of this Agreement or any representation or warranty
herein. Furthermore, you agree that
Punch Alert assumes no responsibility for the Content you submit, make available
or receive through the Application.
19. Assignment.
Punch Alert may assign this Agreement without notice to you. You shall not
assign or otherwise transfer this Agreement or any rights and obligations
hereunder without the prior written consent of Punch Alert and any such
transfer without Punch AlertÕs prior written consent shall be null and void.
Punch Alert may perform all obligations to be performed under this Agreement
directly or may have some or all obligations performed by its contractors or subcontractors
or their affiliates.
20. Force Majeure.
Notwithstanding any other provision of this Agreement, Punch Alert shall not be
in default or breach of this Agreement for failure to fulfill its obligations
when due to an act of Force Majeure. An act of Force Majeure shall include,
without limitation, an act of God such as a fire, flood, earthquake, epidemic,
volcanic eruption, adverse weather conditions, storm, hurricane or other
natural disaster, a strike, lock-out, labor dispute, war, invasion, rebellion,
revolution, insurrection, terrorist attack, act of sabotage, civil disturbance,
blockade, riot, civil commotion, malicious damage, interruption or failure of
electricity, power supply, interruption or failure of the internet or other
telecommunication facility, network or means of telecommunication, computer
virus or bug, third party computer infiltration, attack by a hacker,
governmental restriction, or any other act or circumstance that is beyond the
reasonable control of Punch Alert.
21. Modifications to EULA. Except to the extent that Punch Alert is
expressly precluded by applicable law, Punch Alert reserves the right to amend
this Agreement for any reason whatsoever by providing you with notice of the
change either electronically (as contemplated by the notice provision above) or
by posting notice of the change at https://www.PunchAlert.com/eula. If you
continue to use the Application or any part thereof after notice of the
amendment, you shall be deemed to have accepted the Agreement as amended.
22. General. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
North Carolina without giving effect to any choice or conflict of law provision
or rule. Any legal suit, action or proceeding arising out of or related to this
Agreement or the Application shall be instituted exclusively in the state and
federal courts located in the city of Charlotte, Mecklenburg County, North
Carolina. You waive any and all objections to the exercise of jurisdiction over
you by such courts and to venue in such courts. This Agreement and our Privacy Policy
constitute the entire agreement between you and Punch Alert with respect to the
Application and supersede all prior or contemporaneous understandings and
agreements of whatever kind, whether written or oral, with respect to the
Application. No failure to
exercise, and no delay in exercising, on the part of either Party, any right or
any power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or power hereunder preclude further exercise of
that or any other right hereunder.
Any waiver of the terms herein by Punch Alert must be in a writing
signed by an authorized officer of Punch Alert and expressly reference the
applicable provisions of this Agreement. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provision hereof. If
any provision of this Agreement is held invalid, illegal or unenforceable in
any jurisdiction, then, to the fullest extent permitted by law, all other
provisions hereof will remain in full force and effect in such jurisdiction and
will be liberally construed in order to carry out the intent of the Parties
hereto. Punch Alert may, at its option, give you any notice
under this Agreement electronically. Electronic notice to you shall be deemed
to have been duly given when transmitted to a street address or email address
furnished by you to Punch Alert.