TERMS OF SERVICE
YOUR ACCESS AND USE OF THE FILIP SERVICE IS SUBJECT TO (1) THESE TERMS OF SERVICE, (2) YOUR AGREEMENTS WITH THIRD PARTIES, SUCH AS YOUR WIRELESS CARRIER, APP STORE/PLATFORM OR DEVICE PROVIDER AND (3) ALL APPLICABLE LAWS, RULES AND REGULATIONS. YOU MUST BE AT LEAST 18 YEARS OF AGE, THE AGE OF MAJORITY IN YOUR PLACE OF RESIDENCE TO USE THE FILIP SERVICE. BY ACCESSING OR USING ANY PART OF THE FILIP SERVICE, YOU ACKNOWLEDGE THAT YOU ACCEPT THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, YOU MAY NOT USE ANY PORTION OF THE FILIP SERVICE.
FiLIP Overview: The website, PaaS and mobile application (the “FiLIP App”) and the wearables device (the “Device”, collectively the “FiLIP Service”) are provided by Smartcom SAS (“Smartcom”). The FiLIP Device can be configured, monitored and contacted through the FiLIP App. You may not resell use of, or access to, the FiLIP Service to any third party. You may not use the FiLIP Service for any commercial purpose without the prior written consent of FiLIP.
Location Device / Emergency: The FiLIP Service is intended for use as a location device. However, the FiLIP Service is not a failsafe security system. Therefore, proper safety precautions should always be used with children, despite the use of the FiLIP Service.
Not 911 Compatible: The FiLIP Device is not compatible with 911 or similar emergency telephone number systems. Therefore, emergency calls from the FiLIP Device will go to a designated recipient (such as a parent or guardian), but will not be placed or forwarded to emergency services personnel.
Not Compatible with Accessibility Features: The FiLIP Device is not designed to be compatible with telecommunications accessibility features or services such as TTY, audio prompts or similar features for those with certain disabilities.
Recording Calls: By using the FiLIP Service, you expressly agree that we may record audio conversations between the FiLIP Device and the recipient of such call without further notification. It is your obligation to ensure that the recipient of such emergency calls from the FiLIP Device, such as the preset numbers that you program into the FiLIP Device, consents to such recording.
Who is our customer: Our customer is the individual who has registered the FiLIP Device. We are under no obligation to respond to requests, inquires, demands or communications from any party (such as another family member) other than our customer.
Limited Warranty for the Device: FiLIP provides a limited warranty to you (if you are the initial and original purchaser of the Device) that the Device is free from defects in materials or workmanship under normal use when used in compliance with the User Manual for 1 year from the original date of purchase from an authorized FiLIP reseller, subject to the limitations and terms of the warranty disclosure. You should read FiLIP’s full warranty disclosure here www.myfilip.com/legal/warranty. FiLIP provides no warranty regarding the wireless service provided by AT&T or the FiLIP App.
FiLIP App License: In order to use the FiLIP Service, you will need to download and install the FiLIP App. FiLIP hereby grant you a non-exclusive, non-transferable, revocable, limited license to use the FiLIP App solely on devices and web browser installations that you own or manage. You represent and warrant to us that you have the right to install and operate the FiLIP App on such devices you are using. You may not remove, obscure, modify or disable any proprietary notices from FiLIP on any part of the FiLIP Service. You may not transfer this license to another party unless that party affirmatively accepts these Terms of Service. You may not use the FiLIP Service for any purpose that is illegal or potentially harmful to another party, including FiLIP.
Uninstall FiLIP: You may uninstall the FiLIP App at any time by deleting it from your device in the same manner that you delete similar apps.
FiLIP App Updates: FiLIP may change, update or otherwise modify the FiLIP App or the software on the FiLIP Device at any time. If we do so, you may have to download a patch or new version in order to continue using the FiLIP Service. In addition, you agree that we may, without providing additional notice to you, automatically install updates to the FiLIP App or the FiLIP Device.
Registration and Passwords: In order to use the FiLIP Service, you must register and install the FiLIP App. All information about you must be truthful, and you may not use any aliases or other means to mask your true identity. All email accounts must belong to you and not any other person. You are responsible for the security of your password and will be solely liable for any use or unauthorized use under your user name. If you suspect any unauthorized use of your user name, you should change your password and/or contact FiLIP immediately at 1.855.MYFILIP or via email to email@example.com.
Accessories: The purchase of accessories from FiLIP may be subject to addition Terms of Service, in addition to these Terms of Service.
Termination of Access: In addition to any right or remedy that may be available to us under these FiLIP Terms of Service or applicable law, we may suspend, limit or terminate your account, or all or a portion of your access to the FiLIP Service, at any time with or without notice in the event (1) you have breached these Terms of Service, (2) such action is necessary to prevent harm to any party or liability to FiLIP or (3) AT&T is no longer providing you with wireless airtime for the Device.
Proprietary Rights: We are the exclusive owner or authorized licensors of the FiLIP Service, including all copy, software, graphics, designs and all copyrights, trademarks and other intellectual property or proprietary rights contained therein. Without limiting the foregoing, you acknowledge that the FiLIP Service is the exclusive property of FiLIP, and that you will not take any act inconsistent with our ownership rights or that would damage our ownership rights. No part of the FiLIP Service may be reverse engineered, decompiled or modified, nor may derivative works be created based on the FiLIP Service, without the prior written consent of FiLIP. All rights not granted under these Terms of Service are reserved by FiLIP.
Disclaimer of Additional Warranties: EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE SECTION ENTITLED “LIMITED WARRANTY FOR THE DEVICE”, ALL PARTS OF THE FILIP SERVICE ARE PROVIDED “AS IS” AND WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER AND WE DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE FILIP SERVICE OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE COMPLETELY SECURE, UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE SHALL NOT BE LIABLE FOR THE USE OF THE FILIP SERVICE, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN PROVIDED BY THIRD PARTIES.
FILIP DISCLAIMS ALL LIABILITY FOR, OR WARRANTIES FROM, THIRD PARTY SERVICES OR PRODUCTS USED IN CONNECTION WITH THE FILIP SERVICE, SUCH AS YOUR WIRELESS CARRIER, APP STORE/PLATFORM PROVIDER OR DEVICE MANUFACTURER.
IN NO EVENT WILL WE BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR OTHER CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, LOST OPPORTUNITIES, COSTS OF COVER, EXEMPLARY, PUNITIVE, PERSONAL INJURY/WRONGFUL DEATH, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states prohibit the limitation of warranties as set forth herein. If any part of these warranty disclaimers or limitations of liability is found to be invalid or unenforceable for any reason or if we are otherwise found to be liable to you in any manner, then our aggregate liability for all claims under such circumstances for all liabilities, shall not exceed the greater of (1) the amount paid by you to purchase the FiLIP Device from an authorized reseller or (2) one hundred dollars ($100).
Your sole remedies, and FiLIP’s sole obligations, are as set forth under the section entitled “Limited Warranty for the Device”, for you to stop using the FiLIP Service or the dollar limitation set forth above.
Changes: We may change, suspend or terminate the FiLIP Service at any time without notice. In addition, these FiLIP Terms of Service may be changed at any time without prior notice. We will make such changes by posting them on the FiLIP site located at www.myfilip.com/legal/termsofservice or otherwise informing you of such changes. You should check for such changes frequently. Your continued access of the FiLIP Service after such changes conclusively demonstrates your acceptance of those changes.
Indemnification: You agree to indemnify, defend and hold us and our representatives and agents harmless from and against any and all third party claims, demands, liabilities, costs or expenses, including attorney fees and costs, arising from, or related to (1) any breach by you of these Terms of Service, (2) your use of the FiLIP Service or (3) a violation by you of any applicable law, agreement or obligation to a third party.
Governing Law: The laws of the State of New York shall govern these Terms of Service and, subject to the arbitration section below, YOU HEREBY EXPRESSLY CONSENT TO EXCLUSIVE JURISDICTION AND VENUE IN THE COURTS LOCATED IN NEW YORK COUNTY, NEW YORK FOR ALL MATTERS ARISING IN CONNECTION WITH THESE TERMS OF SERVICE OR YOUR ACCESS OR USE OF THE FILIP SERVICE. Any claims asserted by you in connection with the FiLIP Service must be asserted in writing to FiLIP within one (1) year of the date such claim first arose, or such claim is forever waived by you. Notwithstanding the arbitration section below, FiLIP may seek an injunction in a court of competent jurisdiction to the extent necessary to prevent any harm to any party or liability to FiLIP.
Arbitration: You hereby submit to the exclusive jurisdiction of the American Arbitration Association (“AAA”) in connection with any dispute relating to, concerning, or arising out of these Terms of Service or the FiLIP Service. The arbitration will be conducted before a single arbitrator and will be held at the AAA location in New York County, New York. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this paragraph. In the event you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, FiLIP will pay as much of your filing, administrative, and arbitrator fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. The arbitration before the AAA shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator’s authority to resolve and make written awards is limited to claims between you and us alone. Claims may not be joined on consolidated unless agreed to in a writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. If you initiate a litigation or any other proceeding against FiLIP in violation of this paragraph, you agree to pay FiLIP’s reasonable costs and attorneys’ fees incurred in connection with its enforcement of this paragraph.
Severability: If any part of these Terms of Service shall be held or declared to be invalid or unenforceable for any reason by any court of competent jurisdiction, such provision shall be ineffective but shall not affect any other part of these Terms of Service.
Waiver; Remedies: The failure by us to partially or fully exercise any rights or the waiver of any breach of these Terms of Service by you, shall not prevent a subsequent exercise of such right by us or be deemed a waiver by us of any subsequent breach by you of the same or any other term of these Terms of Service. Our rights and remedies under these Terms of Service shall be cumulative, and the exercise of any such right or remedy shall not limit our right to exercise any other right or remedy.
Export: You may not use or otherwise export or re-export the FiLIP Service except as authorized by United States law and the laws of the jurisdiction in which the FiLIP Service was obtained. In particular, but without limitation, the FiLIP Service may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the FiLIP Service, you represent and warrant that you are not located in any such country or on any such list.
FCC: The FiLIP Device complies with part 15 of the FCC Rules. Operation is subject to the following two conditions: (1) The FiLIP Device may not cause harmful interference, and (2) This device must accept any interference received, including interference that may cause undesired operation. This equipment complies with FCC RF radiation exposure limits set forth for an uncontrolled environment. For body-worn operation and use near the head, the FiLIP Device has been tested and meets the FCC RF exposure guidelines when used with the wrist strap supplied with this product. Use of other accessories may not ensure compliance with FCC RF exposure guidelines. The maximum SAR value reported for body worn operation is 1.15 W/kg. The maximum SAR value reported against the head is 0.23 W/kg.
Third Parties: Platform providers, such as AT&T®, Apple®, Google® and other third party carriers, platform or software providers and device manufacturers (“Platform Providers”) are not parties to these Terms of Service. Except as otherwise agreed in writing between you and the applicable Platform Provider, Platform Providers have no obligation whatsoever to furnish any maintenance and support services with respect to the FiLIP Service. To the maximum extent permitted by applicable law, Platform Providers will have no other warranty obligation whatsoever with respect to the FiLIP Service. Except as otherwise agreed in writing between you and the applicable Platform Provider, You acknowledge that Platform Providers are not responsible for addressing any claims relating to the FiLIP Service or your possession and/or use of the FiLIP Service, including but not limited to: (i) product liability claims; (ii) any claim that the FiLIP Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. We, not the Platform Providers, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim by the FiLIP Device. Platform Providers are third party beneficiaries of these Terms of Service, and Platform Providers will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as a third party beneficiary thereof. You represent that you are not located in a 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; and you are not listed on any U.S. Government list of prohibited or restricted parties.
Contact Information: Should you have any questions regarding these Terms of Service, to report a violation of these Terms of Service or abuse of the FiLIP Service, to receive help in uninstalling the FiLIP App or for any other matter, you may contact us at: www.myfilip.com/contact – firstname.lastname@example.org – 1 (404) 907-0009 – FiLIP Technologies Inc., 5755 North Point Pkwy Suite 63, Alpharetta, GA 30022