MYFOX SERVICES AGREEMENT
Updated April 5th 2016 (See last version as of December 31st 2016 here)
This Services Agreement (the “Services Agreement”) governs your use of the web-based and mobile services and functionality, including this website (the “Services”) provided by Myfox or any of its subsidiaries, parents, and affiliates (“Myfox”).
If you are located in the United States or Canada, the Master Agreement is between you (“Customer” or “You”) and Myfox Inc., located at 351 California St., San Francisco, CA 94104.
If you are located anywhere else in the world, the Master Agreement is between you and Myfox S.A.S, located at Regent Part II, Bat. 1, 2460 l’Occitane, 31679 Labege, France.
The Master Agreement includes the following (each, a “Myfox Agreement” or “Sub-Agreement”):
- Myfox Sales Terms & Conditions Agreement, found here
- Myfox Hardware, Applications, and Embedded Software End User License Agreement, found here
- Myfox Services Agreement, found here
- Myfox Product & Services Warranty and Safety Warnings, found here
- Myfox Additional Terms Applicable to Specific Territories, found here
Any terms used in this Services Agreement but not defined will have the meanings given them in the Master Agreement, including, but not limited to, the Myfox Hardware, Applications, and Embedded Software End User License Agreement.
By establishing an account with Myfox or purchasing or using a Myfox Product or Myfox Services, you agree to be bound by all terms of the Master Agreement or applicable Sub-Agreement that are applicable in the territory where you are located. Myfox retains the right to modify and change the Master Agreement or any of the Sub-Agreements, subject to applicable law, and your continued use of the Myfox Product and/or Myfox Services indicates your continued acceptance of the Master Agreement and/or any applicable Sub-Agreement.
This Services Agreement also includes and incorporates by reference the Requirements for Proper Use of the Myfox Products attached on Schedule 1.
2. Updates to the Services Agreement
Myfox reserves the right, at our discretion, to change, modify, add or remove portions of this Services Agreement at any time by posting the amended agreement on or within the Services. We may, in our sole discretion, provide additional notice, such as an e-mail message or messaging within the Services, of any changes, but it is your responsibility to periodically check the Services Agreement for changes. Unless otherwise stated, all amended terms shall be effective immediately after they are initially posted.
If at any point you do not agree to any portion of the then-current version of our Services Agreement, your sole remedy is to stop using the Services. You will be deemed to have accepted any changes to the Services Agreement by continuing to use the Service.
The optional Services that can be provided upon Client subscription or prepayment (the “Paid Services”) are presented on Myfox websites and mobile applications. We may, in our sole discretion, change, modify, add or delete certain items included in the Paid Services by publishing a modified version of their presentation on our websites or mobile applications. We may, in our sole discretion, notify you of such amendment by email, but it is your responsibility to periodically check if any changes have been made. Unless otherwise stated, all amended provision is effective immediately upon publication.
3. The Service
The Service provided by Myfox may be accessed via an Account (as defined below) on the web at www.getmyfox.com, myfox.me, evology.myfox.me, www.myfox-online.com, www.myfox-evology.com, or on your mobile device via the Myfox mobile app. The Services may contain free features accessible via your Account for no charge, as well as Paid Services which will only be accessible via your Account on a subscription or prepaid basis.
Some conditions and limitations of Paid Services are described in Appendix 2 below.
4. Use of the Service
You may only use the Service if you are over the age of 13 and are not barred from using the Service by law. If you are between 13 and 17 years of age, you must show your parent or guardian this Services Agreement and they must agree before you may use the Service. You may be required to register an account to use certain aspects of the Service (an "Account"), and other aspects of the Service may not be accessible from your Account unless you subscribe or pay certain specified fees. You are responsible for maintaining the confidentiality of your Account login information, and you are solely responsible for anything that happens through your Account. You may cancel any Account registered to you at any time by contacting our support team at email@example.com. You are advised to use passwords that contain a combination of upper and lower case letters, symbols, and words, and you agree to immediately notify Myfox of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. Myfox is not liable for any loss or damage arising from your failure to comply with the above requirements.
Myfox may make the Services available through third party sites, platforms or services, and may provide you the opportunity to interface the Services to one or more third party products or services. Your authorization will be required for any such third party interfacing, and once you give your authorization, Myfox may exchange information and control data regarding you and your products with such third parties. In addition, in order to access the Services through third parties or interface the Services with third party products and services, you may be required to agree to separate terms and conditions provided by the third party. If such consent is required and you choose to withhold it, then you may be denied use of the Services through those third parties or the ability to interface with third party products and services, notwithstanding your agreement to abide by the terms of the Myfox Agreements. Moreover, if we provide the Services solely through such third party sites, platforms or services and you withhold your consent to their terms and conditions, then your right to use the Services under the Myfox Agreements may terminate. Myfox makes no representations or warranties about the safety or effectiveness of any third party products, services, or sites, and Myfox is not responsible for your use of any such products, services, or sites or any harm or other losses relating to such use.
The following rules shall apply to your use of the Services:
- You will not use the Services for any commercial purpose unless expressly authorized by Myfox in this Services Agreement or elsewhere in the Myfox Agreements.
- You will not abuse, hack, attack, interfere with, gain unauthorized access to, or disrupt the Service or do anything contrary to this Services Agreement.
- You will not access the Services in a way that could violate applicable law, or in any manner not expressly authorized by Myfox under this Services Agreement or in a separate written agreement.
- You will not use the Services to infringe on the intellectual property or privacy rights of others, to obtain personal information or surveillance of others without authorization, or to otherwise violate applicable law.
- You will not use the Services to monitor dangerous equipment.
- You will not use any SIM card supplied by Myfox other than with the Service, and you will notify Myfox immediately if any SIM card is lost, stolen, or used without authorization.
- You will use the Services in a prudent and responsible manner in keeping with the customary operation of a home automation and alarm system.
- You will comply with all technical requirements for use of Myfox products and services attached on Schedule 1, as well as any other requirements contained in the Master Agreement.
5. Limitations of the Services
While we aim for the Services (including any notifications or other alerts provided by the Services) to be highly reliable and available, it is not intended to be reliable or available 100% of the time, and we do not guarantee that you will always receive notifications. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Myfox’s control, including Wi-Fi intermittency, services provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that Myfox is not responsible for any damages or injury allegedly caused by the failure or delay of the Services to reflect current status or notifications.
You further acknowledge that Myfox does not guarantee that the Services will not be compromised or circumvented by third parties, or that the Services will provide adequate warning or protection from the events it is intended to detect and deter, including without limitation burglaries, robberies, fires, floods, or medical problems. The Services is intended to reduce the risk of damage or injury resulting from such events, but cannot eliminate that risk.
You acknowledge and agree that the Services, whether standing alone or when interfaced with third-party products or services, is not certified for emergency response. Myfox makes no warranty or representation that use of the Services in combination with any third-party product or services will affect or increase any level of safety. YOU UNDERSTAND THAT THE HARDWARE AND SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM – MYFOX DOES NOT MONITOR EMERGENCY NOTIFICATIONS AND WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY. In addition, Myfox support contacts cannot be considered a lifesaving solution for people at risk in the home, and they are no substitute for emergency services. All life threatening and emergency events should be directed to the appropriate response services.
YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR MYFOX HARDWARE ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. You acknowledge that it is your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
6. Suspension and Cancellation of Account and Service
Myfox reserves the right to suspend or revoke your Account and/or your access to the Services if you breach the terms of any Myfox Agreement or if Myfox is unable for technical reasons to provide the Services adequately to you, and you may terminate your Account at any time as well either from within your Account page on the Services, if such functionality is offered by Myfox, or by notifying Myfox’s customer support team at firstname.lastname@example.org. Any termination of your Account will automatically terminate your rights under the Myfox Agreements, including without limitation the Myfox End User License Agreement for Myfox Hardware, Applications, and Embedded Software.
Myfox reserves the right to stop offering and/or supporting the Services or a particular part of the Services at any time either permanently or temporarily. In such event, Myfox shall have no liability in connection with such discontinued elements of the Services, and shall not be required to provide refunds, benefits or other compensation to users, except as provided in the Myfox Sales Terms, found here.
If a subscription package including an unlimited text message or voice alert Services is terminated, the balance of your text messages and voice alerts that may have existed when the subscription was taken out will be put back to zero, and any associated SIM card will automatically be deactivated.
If Myfox determines that Your usage misused or abused the purpose of the Paid Services or if an invoice has not been paid in due times, MyFox reserves the right to terminate a Paid Services at any time with a 3 days prior notice as communicated by email.
If you transfer a Product to a new owner, your right to use the Services relating to that Product shall automatically terminate. The new owner will have no right to use the Hardware or Services under your Account and must instead register a new Account with Myfox.
Myfox reserves the right to cancel a Paid Service if, at its sole discretion, use of that service is inappropriate or abusive.
7. Proprietary Rights
The Services, including without limitation all applications, graphics, any patents, trademarks, software including source and object code, and other copyrightable materials incorporated in or displayed on the Services, is owned by Myfox. Myfox reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Services. You agree not to modify, rent, lease, loan, sell, assign, distribute, reverse engineer, or create derivative works based on any element of the Services except as expressly authorized by Myfox.
8. Video Content
You may be able to record, view, and store video content from the Hardware (“Video Content”) on the Services. You acknowledge and accept that the camera image refresh rate and quality of your Video Content may fluctuate according to internet traffic levels, quality of your connection to your telecommunications operators, or other factors.
Myfox claims no ownership over your Video Content. By using the Services, you grant Myfox a worldwide, non-exclusive, royalty-free, sublicensable license to record and use the Video Content as necessary to provide the Services as determined by Myfox in Myfox’s sole discretion.
The foregoing license to your Video Content ends when you delete it or you close your Account. You understand and accept that removed content may persist in back-up copies for a reasonable period of time, and that Myfox has no obligation to retain or store your Video Content after deletion of your Account except as required by applicable law.
If you submit feedback, suggestions, proposals, comments or other materials within the Services, including but not limited to all correspondence and communication with Myfox personnel and third party support personnel contracted by the Myfox (collectively “Submissions”), you understand and agree that Myfox (1) shall have no obligation to keep your Submissions confidential; (2) shall have no obligation to return your Submissions or respond in any way; and (3) may record and use your Submissions for any purpose in any way without notice or compensation to you.
10. Disclosure of Information
Your Video Content, and the contents of all of your online communications (including without limitation chat text, voice communications, IP addresses and your personal information) are not confidential. Such information may be accessed, monitored, and used as necessary to provide the Services and may be disclosed: (i) when we have a good faith belief that we are required to disclose the information in response to legal process (for example, a court order, search warrant or subpoena); (ii) to satisfy any applicable laws or regulations (iii) where we believe that the Services is being used in the commission of a crime, including to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (iv) when we have a good faith belief that there is an emergency that poses a threat to the health and/or safety of you, another person or the public generally; and (v) in order to protect the rights or property of Myfox, including to enforce this Services Agreement. By entering into this Services Agreement, you hereby provide your irrevocable consent to such monitoring, access and disclosure.
11. Third Party Advertising and Links
Myfox may provide links on the Services to third party websites or vendors who may invite you to participate in a promotional offer in return for receiving an optional component of the Services and/or upgrades. Any charges or obligations you incur in your dealings with these third parties are your responsibility. Myfox makes no representation or warranty regarding any content, goods and/or services provided by any third party even if linked to from our Services, and will not be liable for any claim relating to any third party content, goods and/or services. The linked sites are not under the control of Myfox and may collect data or solicit personal information from you. Myfox is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by Myfox of these linked sites.
12. Updates to the Services
You understand that the Services is an evolving one. Myfox may require that you accept updates to the Services, and may automatically update the Services at any time with or without notifying you. By using the Services, you consent to these automatic updates. You may need to update third party software from time to time in order to receive the Services and use Myfox’s software and hardware.
You agree to indemnify and hold Myfox, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners (the “Myfox Parties”) harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Services, any violation by you of this Services Agreement or any other Myfox Agreement, or any breach of the representations, warranties, and covenants made by you herein. Myfox reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Myfox Parties, and you agree to cooperate with Myfox’s defense of these claims. Myfox will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your Account(s) or of the Services.
14. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. EXCEPT TO THE EXTENT SPECIFICALLY PROVIDED IN THIS SERVICES AGREEMENT OR IN THE PRODUCT WARRANTY, USE OF THE SERVICES IS AT YOUR SOLE RISK AND IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD).
b. MYFOX DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE, OR SECURE, NOR THAT THE SERVICE WILL PREVENT FORCIBLE ENTRY, FIRE, BURGLARY, OR OTHER DAMAGE OR LOSS TO YOU, PEOPLE, OR PROPERTY, OR PROVIDE ADEQUATE WARNING OF THE SAME. MYFOX DOES NOT WARRANT THAT THE HARDWARE OR SERVICES CANNOT BE BYPASSED OR OTHERWISE COMPROMISED.
c. YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIALS THROUGH THE SERVICES AT YOUR OWN RISK, AND MYFOX IS NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS.
d. NO ADVICE OR INFORMATION OBTAINED FROM MYFOX OTHER THAN THE DOCUMENTATION PROVIDED WITH THE HARDWARE SHALL CREATE ANY WARRANTY NOT STATED IN THESE TERMS.
e. WHEN YOU INSTALL, SET UP, OR USE SERVICES LIKE THE SERVICES, YOU ARE GIVEN THE OPPORTUNITY TO ALTER DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN LEAD TO NON-RECOMMENDED OPERATION OF YOUR EQUIPMENT AND/OR THE SERVICES. MYFOX HAS NO RESPONSIBILITY TO ENSURE YOU HAVE PROPERLY CONFIGURED THE SERVICES, THAT YOU HAVE FULFILLED ALL REQUIREMENTS FOR THE USE OF THE SERVICES AND THAT ALL NECESSARY EQUIPMENT IS FUNCTIONING AS REQUIRED FOR PROPER OPERATION OF THE SERVICES. YOU ASSUME ALL LIABILITY FOR ANY LOSS OR OTHER DAMAGE OR LIABILITY RELATING TO THE FUNCTIONING OF NECESSARY EQUIPMENT, YOUR FAILURE TO MEET THE REQUIREMENTS FOR PROPER USER OF THE SERVICES, AND YOUR CHOICE OF PARTICULAR SETTINGS AND SELECTION OR ADJUSTMENT DEFAULTS.
f. THESE LIMITATIONS OF LIABILITY EXTEND TO ALL CLAIMS, WHETHER KNOWN OR UNKNOWN, EXCEPT AS PROVIDED IN THESE TERMS. YOU ACKNOWLEDGE THAT YOU HAVE READ THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: "A 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." YOU UNDERSTAND THAT SECTION 1542 GIVES YOU THE RIGHT NOT TO RELEASE EXISTING CLAIMS OF WHICH YOU ARE PRESENTLY UNAWARE, AND HAVING BEEN SO INFORMED, BY USING THE SERVICES YOU HEREBY WAIVE THE APPLICATION OF SECTION 1542 AND EVERY OTHER SIMILAR LAW IN EACH OTHER APPLICABLE JURISDICTION.
YOU ACKNOWLEDGE THAT THE PRODUCTS AND SERVICES PROVIDED FREE OF CHARGE OR IN CONSIDERATION OF PAYMENT ARE NOT INTENDED AS A SUBSTITUTE FOR AN INSURANCE CONTRACT. THE CUSTOMER DECLARES THAT HE HAS SUFFICIENT PERSONAL INSURANCE COVERAGE IN FORCE FOR RISKS OF FIRE, THEFT, WATER DAMAGE, ETC. LIKELY TO AFFECT HIS PROPERTY OR THE PERSONS PRESENT IN THE PREMISES PROTECTED BY THE PRODUCTS.
IN THE EVENT THAT MYFOX IS FOUND CONTRACTUALLY LIABLE, SUCH LIABILITY SHALL BE LIMITED TO THE AMOUNT OF €10,000 PER CLAIM FOR ALL MATERIAL AND/OR INTANGIBLE DAMAGE.
THE CUSTOMER ACKNOWLEDGES ACCEPTANCE OF THIS LIMITATION WHICH, WITHOUT NECESSARILY COVERING ALL DAMAGES HE MAY SUFFER, CONSTITUTES COVERAGE SUITABLY ADAPTED TO THE RISKS PRESENT AND PROPORTIONATE TO THE MARKET-BASED CIRCUMSTANCES COVERED BY THIS CONTRACT.
SHOULD A CLAIM EXCEED THE CAP ON THIS INSURANCE, THE CUSTOMER THEREFORE EXPRESSLY STATES, IN RESPECT OF ANY EXCESS, THAT IT WAIVES ALL RECOURSE AGAINST MYFOX AND ITS INSURER. THE CUSTOMER COVENANTS TO OBTAIN THE SAME WAIVERS FROM ITS OWN INSURERS.
15. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICES UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT MYFOX SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICES.
YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT MYFOX IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD MYFOX LIABLE, FOR ANY LOSS RELATING TO:
- THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICES AND OPERATORS OF EXTERNAL SITES, AND YOU ACKNOWLEDGE THE RISK OF USING THE SERVICES WITH THIRD PARTIES AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU;
- YOUR FAILURE TO MEET ALL APPLICABLE REQUIREMENTS FOR USE OF THE HARDWARE AND/OR SERVICES, AND TO USE THE HARDWARE AND SERVICES IN COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS;
- ACCIDENTS OF ANY SORT AFFECTING THE HARDWARE OR THE TELEPHONE NETWORK, THE INTERNET, OR THE ELECTRICITY GRID, SUCH AS SHOCKS, OVERVOLTAGE, LIGHTNING, FLOODING OR FIRE AND IN GENERAL ANY EVENTS RESULTING FROM ABNORMAL USE OR AN ABNORMAL SITUATION;
- FAILURE OF THE TELEPHONE NETWORK, THE INTERNET OR THE ELECTRICITY GRID FOR REASONS ATTRIBUTABLE TO THEIR OPERATORS OR TO THE CUSTOMER;
- FAILURE OF THE ADSL NETWORK USED BY THE CUSTOMER, WHETHER THIS FAILURE IS ATTRIBUTABLE TO HIS SERVICES PROVIDER, TO FAILURE OF THE MODEM/ROUTER USED BY THE CUSTOMER OR TO ANY ONE OF THE ELEMENTS LOCATED BETWEEN THE CAMERA AND THE ADSL ROUTER (CABLE, SWITCH, ETC.);
- VARIATIONS OF THE CURRENT IN ELECTRICAL OR TELEPHONE LINES RESULTING FROM AND/OR CAUSING ELECTRICAL, RADIOELECTRICAL OR ELECTROMAGNETIC INTERFERENCE OF ANY KIND;
- INTERRUPTIONS OR LOSSES OF QUALITY IN THE SERVICES WHEN THEY ARE USED SIMULTANEOUSLY WITH AN INTERNET, AUDIOVISUAL OR TELEPHONE SERVICES BY THE CUSTOMER BECAUSE THE EFFECTIVE SPEED OF THE INTERNET ACCESS IS REDUCED AS A RESULT;
- UNFORESEEABLE CIRCUMSTANCES AND ACTS OF GOD; OR
- ANY VIOLATIONS BY CUSTOMER OF ANY TERMS OF THE MYFOX AGREEMENTS.
IT IS UNDERSTOOD AND AGREED THAT MYFOX AND ITS DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS, SUBCONTRACTORS, DISTRIBUTORS, RETAILERS, AGENTS AND INDEPENDENT CONTRACTORS ARE NOT INSURERS NOR IS THIS AGREEMENT INTENDED TO BE AN INSURANCE POLICY OR A SUBSTITUTE FOR AN INSURANCE POLICY. YOU ACKNOWLEDGE AND AGREE THAT THE PRODUCT DOES NOT OFFER GUARANTEED PROTECTION AGAINST BURGLARY, ROBBERY, THEFT, PROPERTY DAMAGE, FIRE, SMOKE, BODILY INJURY OR ANY OTHER TYPE OF EMERGENCY OR DAMAGE. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING YOUR INSURANCE NEEDS, AND PURCHASING ANY NECESSARY INSURANCE. YOU AGREE TO LOOK SOLELY AND EXCLUSIVELY TO YOUR INSURER TO RECOVER ALL LOSS, DAMAGE, OR EXPENSE DUE TO LOSS AND/OR DAMAGE TO YOUR PERSONAL PROPERTY OR REAL PROPERTY ALLEGEDLY CAUSED BY THE PRODUCT. YOU ALSO AGREE TO LOOK SOLELY AND EXCLUSIVELY TO YOUR INSURER IN RESPONSE TO ANY CLAIM FOR BODILY INJURY, PROPERTY DAMAGE, PERSONAL INJURY, AND/OR INVASION OF PRIVACY ALLEGEDLY CAUSED BY THE PRODUCT, INCLUDING CLAIMS MADE BY OR AGAINST YOU. YOU HEREBY RELEASE MYFOX FROM ANY AND ALL LOSS, DAMAGE, AND/OR EXPENSE WHICH MAY OCCUR AS A RESULT OF YOUR USE, MISUSE, OR ATTEMPTED USE, OF THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, THE FAILURE OF THE PRODUCT TO PERFORM, THE FAILURE OF THE SERVICES TO PERFORM, YOUR ALLEGED FAILURE TO COMPLY WITH ANY RELEVANT RULE, STATUTE, CODE, LAW OR ORDINANCE, AND ANY ACT OR OMISSION OF MYFOX.
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE ABOVE LIMITATIONS IN SECTIONS 15 AND 16 WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Schedule 1Requirements For Proper Use of the Myfox Products and Services
1. Technical Requirements
You will be responsible for obtaining and ensuring proper functioning and compatibility of all equipment, network connections, internet or telephone serviceS, or other equipment or services necessary in order to access and use the hardware products, software, or services provided by Myfox (“Requirements”). Requirements include, but are not limited to, the following:
- Broadband Internet access.
- Router (independent or integrated in a box) with an Ethernet or WiFi connection left permanently on.
- Computer equipped with an up-to-date web browser, if web access to the Services is desired.
- A GSM network of sufficient quality to benefit from GPRS communication services, if such services are desired.
You will be responsible for all charges associated with the Requirements, including without limitation all telephone, internet, and data charges, alarm system use or permit fees, or other expenses.
Customer shall take personal responsibility for the installing and configuring of the Services in accordance with the instructions provided in the Myfox packaging and websites. The Customer bears sole responsibility for the installation, configuration, and use of the Services. Myfox may in no case be held responsible if the Services prove to be incompatible or present malfunctions with third party software, configurations, operating systems, or equipment.
By registering an account on the Services, Customer represents to Myfox that Customer meets all prerequisites and requirements for the proper use of the Services.
1. SMS AND VOICE ALERTS
You acknowledge and agree that to prevent potential misuse of the Product, your purchase of the Product provides You twenty (20) SMS alerts per month. If additional SMS alerts for the remaining calendar month are desired, contact Myfox customer Services to discuss your usage. If Myfox, in its full and complete discretion, determines that your use is not an abuse or misuse of the alerts, Myfox may assign additional alerts available for the remaining calendar month. However, if Myfox determines that your usage misused or abused the SMS alerts, your usage will be limited to twenty (20) SMS alerts for that calendar month.
Myfox Paid Services may include notification services via SMS and Voice Alerts.
“Unlimited SMS” service means within the context of normal and reasonable use of an alarm system. For example, “normal and reasonable” does not include uses intended to monitor daily human activity or surveillance of traffic in an area, the critical nature of which does not require sending an SMS or voice alert. As part of the “unlimited SMS” service, if more than 100 alerts have been sent within a given month, the service will be downgraded to a mode in which only alerts generated by a door or motion sensor in fully armed mode will be sent by SMS or voice alert.
“Free SMS” services entitle the customer to sending of 20 SMSs per subscription month to users in the United States and Canada, and 5 SMSs per subscription month to users in other countries.
2. 24/7 PROFESSIONAL MONITORING
Myfox offers 24/7 professional monitoring Services under certain Paid Services where a subcontracted company (the “Subcontractor”) operates a monitoring station(s) (“Monitoring Station”) for the receipt of audio transmissions including, without limitation, voice communication, video images and data transmission (“Signals”) from the Products, mobile devices and personal emergency response equipment and systems (collectively, “the Security Systems””), and communication with police, fire, medical, ambulance, guard, patrol and response Services (collectively, “First Responders”), You and others identified by You (collectively, “Proper Authorities”).
The following terms and conditions apply to You if you have subscribed to Paid Services including 24/7 professional monitoring Services. To the extent any of the below provisions conflict with any provision of the EULA appearing above, the terms of the below provisions will control.
DESCRIPTION OF THE 24/7 PROFESSIONAL MONITORING SERVICES
Monitoring services consists solely of monitoring services personnel (“Operator”) calling by telephone to Proper Authorities at the telephone numbers (“Numbers”) supplied by You (“Emergency Contacts List”) within a reasonable period of time under the circumstances at the Monitoring Station and the priority of the Signals or video images after Signals or video images which, in the Operator’s sole and absolute discretion, clearly and conspicuously reveal the necessity for monitoring services appear on the Operator’s computer screen (“Monitoring Services”).
Signals that will be handled by the Operators include burglary alerts as triggered by a motion sensor or an opening/shock door and window sensor, emergency alerts as triggered from a key fob or the application (collectively the “Listed Codes”). Technical alerts such as low battery, AC failure, Telco Line Fault will only be transferred by email, push and SMS but will not be handled by Operators.
Notwithstanding anything contained in this Agreement to the contrary, (a) upon receipt of a Listed Code or video images which may require Monitoring Services and prior to communicating to the Emergency Contacts List, Subcontractor may, in its sole and absolute discretion and without any liability, contact or attempt to contact the Client or the premises where the Products are installed (the “Premises”) or other designated persons at the Numbers provided by You in the application as frequently as Subcontractor deems appropriate to verify the necessity to Communicate to First Responders, and (b) upon receipt of an abort code or oral or electronic advice from You or a person at the Premises to disregard the receipt of the Listed Code or video images, Subcontractor may, in its sole and absolute discretion and without any liability, refrain from Communicating to First Responders (or other persons) or advise First Responders (or other persons) of receipt of an abort code or oral or electronic advice to disregard the receipt of the Listed Code or the video images.
Subcontractor’s efforts to notify Proper Authorities shall be satisfied by communicating one time with the Numbers by advising a person or entity on the Emergency Contacts List or by leaving a message with a telephone answering services or any mechanical, electrical, electronic or other technology permitting the recordation of voice or data communications.
If a Premises is located in a jurisdiction which requires a personal verified on-site response (“Verified Response”) prior to dispatch of a First Responder, it is Your sole responsibility to provide the Verified Response. All fees, costs and expenses in connection with Verified Response shall be borne by You only.
The Monitoring Services are subject to (i) all applicable laws, rules, regulations and tariffs, and (ii) transmission limitations including, without limitation, the failure, malfunction or interruption of any communication path due to human or natural causes including, without limitation, telephone, internet and broadband problems or provider problems, radio or cellular transmission interference caused by, among other reasons, atmospheric or topographical conditions, and Force Majeure Events. In addition, improper installation of any equipment, System, software, etc. may result in unreasonably frequent and excessive transmissions which may result in the suspension or deactivation of certain methods of transmission to the Monitoring Station, all in the sole and absolute discretion of Myfox and without any duty or liability of Myfox of any kind as a result of any such suspension or deactivation.
TERM AND TERMINATION
Unless specifically agreed otherwise when you subscribe to Monitoring Services, we will provide the services to you on a month-to-month basis, unless either party cancels the services through one of the Sites or through any other mechanism provided by Myfox. Myfox may suspend Monitoring Services or terminate the portion of this Contract pertaining to Monitoring Services at any time upon providing written notice to you (email sufficing) three (3) days before the suspension or termination date, or immediately in the event that we are unable to provide the Monitoring Services because of occurrences outside of our control. If your system becomes a “runaway” system or is excessively communicating with our monitoring station without apparent reason, you authorizes and empowers us to, without limitation, do any one or more of the following: ignore all communications received from the system, disconnect the system, or render the system incapable of communicating locally or with our monitoring station by direct or remote programming the removal or deletion of data necessary to operate the system. The exercise of such rights shall not be deemed a waiver of our right to damages, and we shall have the right to enforce all other remedies or rights.
You acknowledge and agree that the Product is a do-it-yourself product, and You are solely responsible for decisions related to the installation and use of the Product, including, but not limited to, the proper installation of the Product, selection of the location for the Product, confirmation that the Product is properly installed, testing the Product, ensuring that the Product is working, and compliance with all relevant rules, laws, statutes, codes, regulations, and/or ordinances.
You acknowledge and agree that the Monitoring Services will depend on (i) the proper installation and use and operation of the Products, and (ii) the complete, proper and accurate information You will provide while activating the Monitoring Services from the Myfox application, including name and contact details of Proper Authorities and First Responders (the “Information”).
You acknowledge and agree that the system is a non-supervised reporting device. If the transmission medium for delivery of data, video images or voice or other audio communications from your Product to the Monitoring Center is inoperative, circumvented, compromised or interrupted by natural or human causes including, without limitation, the cutting of the telephone line, radio transmission interference, power line surges or outages, internet or broadband problems and internet or broadband provider problems, there is no indication of this fact at the Monitoring Center.
Myfox shall not be required or obligated, and does not assume, the performance of Monitoring Services for any and all Products when the Client has failed to pay the appropriate fee(s) as and when required or for any Security System as to which the Client has failed to provide all of the Information requested in Myfox application.
LIMITATION OF LIABILITY.
YOU AGREE AND UNDERSTAND: THAT NEITHER SUBCONTRACTOR NOR ITS DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS, PRINCIPALS, AGENTS, SERVANTS OR AND THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS AND PERSONAL REPRESENTATIVES, IS AN INSURER; THAT SUBCONTRACTOR AND REPRESENTATIVES, EXCEPT AS SET FORTH HEREIN, MAKE NO GUARANTEE, REPRESENTATION OR WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE; THAT SHOULD THERE ARISE ANY LIABILITY ON THE PART OF SUBCONTRACTOR OR REPRESENTATIVES ARISING OUT OF OR FROM, IN CONNECTION WITH, RELATED TO, RESULTING FROM OR AS A CONSEQUENCE OF THIS AGREEMENT OR THE SERVICES OR EQUIPMENT PROVIDED PURSUANT TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF SUBCONTRACTOR OR REPRESENTATIVES, SUCH LIABILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF $1000.00 PER OCCURRENCE GIVING RISE TO CLAIMS FOR DAMAGES COLLECTIVELY FOR SUBCONTRACTOR AND REPRESENTATIVES, AND THIS LIABILITY SHALL BE EXCLUSIVE.
SUSPENSION OF MYFOX OBLIGATIONS
Myfox obligations hereunder are suspended automatically without notice to You and Myfox and Subcontractor and Representatives are released for and from all expense, loss or damage to You in the event (i) the Monitoring Station, any facilities necessary to operate the Monitoring Station, or any equipment, network or technology used to transmit data or voice or video images to or from the Monitoring Station is destroyed, damaged, malfunctions or is inoperable for any reason whatsoever, or (ii) of any war, declared or undeclared, acts of war, insurrections, riots, civil commotions, terrorism, fire, flood, tornado, hurricane, earthquake or other natural phenomenon, act of God, accident, explosion, governmental orders, laws, rules, regulations, restrictions, priorities or administrative action, embargos, strike, lockout or other labor troubles or disputes, environmental conditions or any other cause beyond the absolute and exclusive control of Subcontractor (collectively for clauses (i) and (ii), “Force Majeure Events”), for the duration of such interruption and Myfox and Subcontractor have no duty, obligation or liability to supply You with alternative or substitute Services during any Force Majeure Event.
RUN-AWAY ALARMS AND EXCESSIVE FALSE ALARMS
Myfox and Subcontractor’s obligations hereunder are suspended automatically without notice to You and Myfox and Subcontractor and Representatives are released for all expense, loss or damage to You, in the event of Your default of this Agreement, or if Your Product becomes a “run-away” alarm or excessively sends video images or Signals to the Monitoring Station. In case of use of the Products that would cause an excessive number of false alarms and related Signals to be handled by the Monitoring Station, Myfox may contact You to discuss the use of the Products. If the use of the Product does not improve, Myfox may interrupt the Monitoring Services.
CONSENT TO INTERCEPT, RECORD, DISCLOSE AND USE CONTENTS OF COMMUNICATIONS
You, for yourself, and as the authorized agent of your family, guests, agents, servants, representatives and employees (individually and collectively, “Any Person”), hereby consent to Subcontractor intercepting, recording, retrieving, reviewing, copying, disclosing and using the contents of all telephone, video, wire, oral, electronic, internet, broadband and other forms of transmission or communication to which Myfox or Any Person and Subcontractor are parties.
In the event You elect to receive automatic email notice of certain System events, You acknowledge, understand and agree that (I) any such notice is conditioned on (a) receipt of the data at Subcontractor’s central station, (b) the proper operation of communication equipment, services, systems and networks including, without limitation, the internet, and (c) any failure, malfunction or delay in processing or transmitting the data by Subcontractor’s equipment or software, and (II) Myfx and Subcontractor is hereby released from any liability arising out of or from, resulting from or in connection with the failure, malfunction or delay of any such notice for any reason, including Subcontractor’s or Representative’s sole, joint or several negligence of any kind of degree.
If the System transmits video images, You shall (i) provide and maintain adequate power and lighting for all cameras or other video-related equipment; (ii) inform all persons on or about the Premises that they may be monitored by video; (iii) not install, use or permit the use of video where any person may have a reasonable expectation of privacy; (iv) use broadband connectivity exclusively to transmit video images; (v) use the video system for security surveillance and management services only; (vi) not use the video system for any criminal, illegal, or otherwise unlawful activity; and (vii) obtain and keep in effect all permits or licenses required for the installation and operation of the video system.
You understand and agree that (i) a video system enables Myfox and Subcontractor to record, store, view and review images of the interior of the Premises and the area outside of the Premises, and (ii) video with audio capability enables Subcontractor to listen to, record, store and review oral communications from the interior of the Premises and the area outside of the Premises.
You hereby agree, authorize and consent to Myfox and Subcontractor recording, storing, viewing and reviewing video images and listening to, recording, storing and reviewing oral communications transmitted from the video system at the Premises.
CONSENT TO CALL MYFOX, CLIENT AND EMERGENCY CONTACTS LIST
You for yourself and as the authorized agent of each person of your Contacts List, consents to Myfox and Subcontractor, in the ordinary course of business, calling each such person’s cell phone or other mobile device.
RIGHT TO SUBCONTRACT
Myfox may, in its sole and absolute discretion, subcontract for the provision of Services under this Contract. You agree that the provisions of this Contract inure to the benefit of and are applicable to any subcontractors engaged by Myfox to provide any Monitoring Services to you, and bind you to said Subcontractor with the same force and effect as they bind you to Myfox. You acknowledge and agree that Myfox has contracted with Lydia Security Monitoring, Inc. D/B/A Central Office Processing Services ("C.O.P.S. Monitoring"). The licensing information included in Schedule A below pertains to C.O.P.S. Monitoring. Subcontractors that we engage to provide any services under this Agreement are independent contractors, and are not partners, affiliates or joint venturers with Myfox. You hereby authorize Myfox to act on your behalf to provide direction to any subcontractor engaged to provide the services to you.
See Schedule A below and made a part hereof.
Texas (Burglary): (512) 424-7293 B11561
Texas (Fire): (512) 305-7900 ACR-2215
Alabama: (334) 264-9388 933
Arizona: (602) 364-4930 18235-0
Arkansas: (501) 618-8600 E 2005 0098
California: (916) 322-4000 ACO 6132, ACQ 5175
Delaware (Burglary): (302) 739-5901 05-85
Delaware (Fire): (302) 739-5665 CSRSL-0004
Florida: (850) 487-1395 EF20000481
Illinois: (217) 785-0820 127-001299, 124-001558
Maryland: (410) 653.4200 107-840
Michigan: (517) 241-9288 3601-205107
Oklahoma: (405) 521-6100 899
Oregon: (503) 378-2100 PSID-1777
Rhode Island (Burglary): (401) 462-8580 8252
Tennessee: (615) 741-9771 00000632, 00001626
Utah: (801) 530-6628 5854940-6501
Virginia: (804) 786-4700 11-1941