Conditions d'utilisation de MMGuardian
SOFTWARE AND SERVICES AGREEMENT FOR MMGUARDIAN
This Agreement ("Agreement") is an Agreement between you ("You”, “Your”) And Pervasive Group Inc (“Us”, “Our”, “We”) covering Your use of MMGuardian software, mobile device applications and services (“Software and Services”) on a mobile device purchased from us (referred herein as “MMGuardian device”) or from another party. Please read this Agreement carefully. By clicking the “I Agree” button or using the Services or installing the Software, You agree to the terms and conditions of this Agreement. If you do not agree to these terms and conditions, click the “Cancel” button and do not use the Service or install the Software.
MMGuardian Software and Services is a parental control product designed to enable You as a parent to monitor and restrict certain activities that Your child (“Child”) performs on Your child’s mobile phone or tablet device (“Child Device”). The MMGuardian Software and Services consist of a software application (“Child Device Application”) that You will install onto Your child’s mobile device, a server network infrastructure system (the “System”) that is deployed on the Internet and managed by Us and our server hosting service providers, and optionally a software application (“Parent Device Application”) that may be installed onto Your own mobile device ("Parent Device"). In the case of an MMGuardian device, the MMGuardian Software and Services are automatically installed upon your activation of the MMGuardian device.
You create an account (“Account”) by registering to use and access the Software and Services. The Child Device Application that is installed on Your child’s device will send information about the Child Device and certain activities performed on the Child Device, and optionally the location of the Child Device, to the MMGuardian System, and this information can be viewed by You through an online web portal (“Web Portal”) or the Parent Device Application.
You warrant that (a) you are older than 18 years old and (b) either you are the owner of the Child Device(s) on which you wish to install or use the Child Device Application, or that you are the tenant of such Child Device(s) and, if legally required, have the authorization of the owner of such devices.
Pervasive Group Inc expressly disclaims responsibility for Your illegal and unauthorized use of the MMGuardian Software And Services.
Use of the Software and Services
1. Subject to this Agreement, We grant You a personal, limited, revocable, non-exclusive and non-transferable license to access and use the Software and Services for your own private (domestic) use only and as detailed below.
2. You are responsible for all activities undertaken under your Account. You agree to:
(a) Not use the Software and Services for any illegal or unauthorized purpose or any activity that infringes third party rights or breaches this Agreement;
(b) Not use the Software and Services in any manner that may deteriorate the System;
(c) Not violate any laws in your jurisdiction while using the Software and Services, and
(d) Indemnify and hold us harmless to the fullest extent allowed by law regarding all matters related to your unauthorized use of the Software and Services.
3. Our Software and Services are intended for use only by parents to monitor and manage a Child Device used by their child. You acknowledge and agree that:
(a) You are older than 18 years of age;
(b) You will not use the Software and Services to monitor any individual who is at or above the age of 18;
(c) You will not use the Software and Services to monitor any individual if You are uncertain that in your jurisdiction controlling and monitoring the use of the Child Device through the functionalities offered by the Software and Services are permitted by law or regulation.
(d) You will not use the Software and Services to monitor any individual if You are uncertain that in your jurisdiction controlling and monitoring the use of the Child Device through the functionalities offered by the Software and Services does not require express User consent, unless such express consent is obtained and documented by you.
(e) You are the owner of the Child Device on which you wish to install the Child Device Application, or have the legal authorization of the device owner to install the Child Device Application;
(f) You are the parent or legal guardian of the Child on who’s Child Device you wish to install the Child Device Application, or have the legal authorization to install the Child Device Application;
(g) You will not use the Software and Services other than for their intended purposes;
(h) You shall not, and shall not permit any third party to, disassemble, reverse engineer, attempt to find the underlying code of, or decompile the Software and Services or any part thereof.
4. Any breach of the terms of this Agreement by You may result without warning in immediate termination or suspension of your account, and Your exclusion from use of the Software and Services.
Privacy and Data Protection
We believe strongly in user privacy. Please refer to our “Privacy Policy” for information on our privacy practices. Your use of the Software and Service constitutes your acknowledgment of, and agreement to, the Privacy Policy.
Term and Termination
1. Subject to receipt of Your applicable payment, Your Account shall be activated and remain active for the term indicated below, unless terminated by You or Us under the provisions of this Agreement:
(a) Free Trial: Access to and use of all features of the Software and Services is possible for a period of 14 calendar days from the registration of the Child Device. At the end of the Free Trial period, depending on the type of Child Device Application, either all product features will become non-functional, or Premium Features will become non-functional. If the Child Deice has been previously registered under a different Account and has already received a Free Trial, that Child Device will be ineligible to receive another Free Trial. Should a purchase be made prior to the end of the Free Trial period, the remaining days of Free Trial period are forfeited.
(b) Paid Usage: subject to payment, access to and use of features of the Software and Services will be for the relevant duration and in accordance with the plan you have selected.
2. Cancellation of subscriptions: Subscriptions are automatically renewed unless cancelled within 7 calendar days of the renewal date. For assistance with subscription cancellation please contact support@test2.mmguardian.com
3. Account Deletion by You: If you no longer wish to use MMGuardian, you may delete your account using the account delete option at https://family.mmguardian.com. When deleting your Account, You are responsible to ensure that still active subscriptions are cancelled, to prevent auto-renewal at a future date.
4. Account Termination by Us: We reserve the right to cancel or suspend your Account immediately and without warning if you breach the terms of this Agreement.
Your Responsibilities
A. Access to the Service:
1. In order to use the Software and Services you must create an Account by registering and agreeing to this Agreement (including the Privacy Policy). The email address provided during registration will be used to send You important information about your Account, certain alerts and optionally marketing related information. You warrant that the email address provided is and will remain current, valid, true, accurate and complete. Should you need to change Your Account email address, please contact us at support@test2.mmguardian.com.
2. Account password:
When registering to use the Software and Services you will have created a password for which you are responsible for keeping confidential. Do not share it with any other person, including us. If you believe your password has been misused or otherwise compromised, please advise us immediately.
B. Activation of the MMGuardian device:
1. You will contract with your phone carrier and activate your MMGuardian device in accordance with the carrier’s required procedures.
2. Once activated, you will register your Account with us in order to access the Software and Services.
Disclaimer
1. You expressly acknowledge and agree that the Software and Services do not constitute a medical, psychiatric or psychological advice and that Pervasive Group Inc. does not practice medicine, psychiatry or psychology. The alerts and any related information or materials (“Alerts”) You receive via the Software and Services are for informational purposes only. Please promptly seek the advice and/or treatment from a health care provider including a psychiatrist or psychologist if You believe the information contained in the Alerts indicates a need for such advice and/or treatment.
2. ASSUMPTION OF RISK. YOU AGREE THAT YOU UNDERSTAND AND ASSUME THE RISK OF YOUR USE OF THE INFORMATION CONTAINED IN THE ALERTS, AND THAT PERVASIVE GROUP INC. SHALL NOT BE HELD RESPONSIBLE FOR ANY DAMAGES (DIRECT OR CONSEQUENTIAL) ARISING FROM YOUR USE OF SUCH INFORMATION.
3. You expressly acknowledge and agree that the MMGuardian Software and Services is a tool intended to help parents monitor a child's mobile device. We can not guarantee that (i) the app installed on the child's mobile device will remain operational under all circumstances, (ii) that the app will report all messages, (iii) that the app will alert any particular type of risk accurately. We are not responsible for your child's actions and safety. MMGuardian is not a substitute for active parenting, and We strongly recommend that you manually inspect the child device from time to time to ensure your child's safety.
4. You agree that the MMGuardian device is manufactured by a third party and thus its fitness, safety and operation are covered by a warranty provided to you by the third party. Accordingly, you agree that we are not liable to you for any issues relating to its fitness, safety and operation of the MMGuardian Device.
Device and Usage Information
1. The Child Device Application installed on a Child Device will send information about certain activities performed on that device, which may include usage of applications, SMS text messages, phone call information, web browsing history (collectively "Usage Information") and also details about the device and details of Your Child's address book contacts. Additional details about what, how and the purpose for collection of this information and data are contained in the Privacy Policy. You and on behalf of your Child represent that You and your Child are the rightful owners of this information and data. You, on your own behalf and on behalf of your Child, grant us a worldwide, irrevocable, royalty-free, nonexclusive, sub-licensable license to store and use this information and data on our System for purposes set forth in this Agreement.
2. You authorize us to (i) store the Usage Information in our System for about 30 calendar days, (ii) analyze the Usage Information, (iii) generate alerts, notices, and/or reports to You based our analysis of the Usage Information, and (iii) transmit such alerts, notices, and/or reports to You or Your authorized agent.
3. Upon account deletion, data about and collected from the Child Device including Usage Information, and data about the Parent Device will be promptly deleted from the System (except as may be retained for a period of about 90 calendar days in data retrieval backups, or held for legal purposes).
Refund Policy
Software and Services
We encourage You to take advantage of the 14-day Free Trial period, to establish that the Software and Services meets your expectations.
If you have made a purchase and find that the Software and Services does not perform as advertised, please notify us of the defect within 72 hours of purchase. If you have provided such notification and we fail to resolve the issue within 7 calendar days, a full refund will be issued on request. If we believe that the defect cannot realistically be rectified within 7 calendar days, we will offer and provide an immediate refund.
If you have made a purchase and find that the Software and Services does not perform as advertised within 72 hours of purchase, please notify us of the defect as soon as possible. At our discretion we may offer a full or partial pro-rata refund or an extension of service duration to cover the period between notification and rectification of the issue.
No refunds or partial refunds will be provided for:
• Account Deletion prior to the end of an already paid for period of usage, unless we are in material breach of this Agreement.
• Your failure to cancel an active subscription that You no longer wanted.
• Incorrect Child Device Application configuration.
• Your failure to accept technical support assistance.
• Your failure to verify that the advertised Software and Service features offer the functionality that you are seeking, prior to making a purchase.
• Delayed reporting or command processing due to lack of an active or reliable internet connection over WiFi or mobile data connection on the Child Device.
• Change of Child Device Application device type such as from an Android phone to iPhone or vice-versa. We may however at our sole discretion provide a refund against a new purchase for the newly required device type. (Note that subscriptions and licenses are transferrable from one device to a different device when the device type is the same, and that a subscription for an Android phone can be transferred to an iPhone).
Device and Accessory
After contacting the MMGuardian Team and obtained return authorization for a refund, you must return your Device and all included accessories within 30 calendar days of the date you received your order. If you return the Device in an already opened retail box (i.e., manufacturer seal broken), you will be charged a $50 restock fee. Upon receipt of your returned Device by our warehouse, your refund will be processed within 14 calendar days of said date of receipt, together with a refund for cancelling your service subscription.
During this period, you may return your device for any reason if you:
Email support@mmguardian.com requesting a return and:
• Return your Device and all included accessories, along with proof of purchase and a completed Return Form; and
• You post-mark your Device in its original package with all original contents, all undamaged, and in good working condition with no material alterations to the Device’s hardware or software; and
All refunds and exchanges will be reduced by any rebates, restocking fees, and shipping costs, if applicable in your case.
If you do not return your Device or if you return your Device in a damaged or altered condition, we may take one or more of the following actions:
• Elect not to process your service cancellation;
• Charge you the cost to repair a damaged or altered Device; or
• Charge you the suggested retail price of a destroyed or altered Device, plus any shipping and handling charges.
Presently, the MMGuardian device is manufactured by Samsung and has a one-year Manufacturer Limited Warranty provided by SamSung.
To notify us of a defect please contact our customer support team by email: support@mmguardian.com
To request a refund please contact our customer support team by email: support@mmguardian.com.
We acknowledge that based on your country or state of residence, you may have additional applicable legal rights related to obtaining a refund and to which we shall comply.
Charges, Payments and Fees
Phone Payments Plan:
If you purchased the MMGuardian Phone on a payments plan instead of paying for the full amount, your balance for the phone becomes due immediately if you cancel the MMGuardian subscription.
Automatic Subscription Renewal:
By starting a monthly or annual subscription you agree and authorize us to automatically charge You at the then published rate each month or year via the payment method and service used to set up the subscription. Your payment method will be automatically billed each month or year, as applicable. (Note: Annual plans purchased via Apple will not be automatically renewed).
You may cancel your automatically renewing subscription to prevent automatic renewal. Subscriptions must be cancelled at least 7 calendar days before the account renewal date to avoid automatic renewal. Subscriptions set up via Apple must be cancelled from your Apple iTunes account. Other types of subscriptions can be cancelled by You at the Web Portal. For assistance with subscription cancellation, please contact us by email on support@mmguardian.com.
Subscription Price Updates:
Automatically renewed subscription prices may change at any time provided that We give You at least thirty (30) days prior written notice. If you do not reject such a price change in writing by requesting Us to cancel Your subscription, or to cancel the subscription yourself, you will be deemed to have accepted the new prices. In case of any continued use of the Software and Services after the date of renewal, you will be deemed to have accepted the new price.
Prices and Plans:
For current prices and plans, please refer to https://www.mmguardian.com/pricing
Service Provision
You agree that we shall not be liable to the other for any delay or failure to perform hereunder due to circumstances beyond Our reasonable control, including acts of God, acts of government, flood, fire, earthquakes, war, riot, insurrection, epidemic, civil unrest, acts of terror, strikes or other labor problems (excluding those involving our employees), internet or other service disruptions involving hardware, software or power systems not within our possession or reasonable control, any disruption, suspension or failure of any third party hardware, software or services, and denial of service attacks or other events of a magnitude or type for which precautions are not generally taken in the industry (“Force Majeure Event”). You also agree that special System maintenance actions may lead to temporary interruption of services provided by the System. Other than for events due to our gross negligence we shall not be liable for interruptions or down-time of the System.
Intellectual Property
All content and other materials in our Software and Services, including, but not limited to our logo and all designs, text, graphics, logos, icons, images, photographs, audio clips, digital downloads, data compilations, software and the selection and arrangement thereof (collectively, the “Materials”) are Our property or that of our licensors and are protected by United States and/or international copyright laws. You shall not have any ownership interest, license or other rights in the Material or any intellectual property rights therein, whether by license, implication, estoppel or otherwise.
Trademarks
MMGuardian™, mparenting.com, www.mmguardian.com, Our logo and any other service names or slogans contained in Our Software and Services are trademarks of Pervasive Group Inc. and Our suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Pervasive Group Inc. or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “Pervasive Group Inc.” or any other name, trademark or service name of Pervasive Group Inc. without our prior written permission. In addition, the look and feel of our Software and Services, including website pages and application screens, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Pervasive Group Inc. and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, service names and company names or logos mentioned in Our Software and Services are the property of their respective owners. Reference to any services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
Export Regulations
The Software and Services are subject to export controls administered by the United States and other countries. Diversion contrary to U.S. law is strictly prohibited.
You agree to comply with the requirements of the Export Administration Regulations (the "EAR") and all applicable international, national, state, regional and local laws, and regulations, including any applicable import and use restrictions. The Software and Services are currently prohibited for export or re-export to Cuba, North Korea, Iran, Iraq, Libya, Syria and Sudan or to any country subject to applicable trade sanctions, including Afghanistan and Iraq. You agree not to export, or re-export, directly or indirectly, the Software or Services to any country outlined in the EAR, nor to any person or entity on the Department of Commerce Denied Persons, Entities and Unverified Lists, the U.S. Department of State’s Debarred List, or on the U.S. Department of Treasury's lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists, as revised from time to time.
USE OR FACILITATION OF OUR SOFTWARE OR SERVICES IN CONNECTION WITH ANY ACTIVITY INCLUDING, BUT NOT LIMITED TO, THE DESIGN, DEVELOPMENT, FABRICATION, TRAINING, OR TESTING OF CHEMICAL, BIOLOGICAL, OR NUCLEAR MATERIALS, OR MISSILES, DRONES, OR SPACE LAUNCH VEHICLES CAPABLE OF DELIVERING WEAPONS OF MASS DESTRUCTION IS PROHIBITED, IN ACCORDANCE WITH U.S. LAW.
By downloading, installing or using the Software or Services, You are agreeing to the foregoing and all applicable export and import control laws. You are also warranting that You are not under the control of, located in, or a resident or national of any prohibited country or on any lists above. The information on export laws provided herein is not necessarily complete. For more information on export laws, please contact the U.S. Department of Commerce, Bureau of Industry and Security (the "BIS"). More information on the BIS can be found at: http://www.bis.doc.gov/.
Warranties
UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING, THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND. PERVASIVE GROUP INC. AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL CONDITIONS AND WARRANTIES, INCLUDING BUT NOT TO LIMITED WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO LEGAL THEORY SHALL PERVASIVE GROUP INC. OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS LICENSE OR THE MMGUARDIAN DEVICE AND ITS ASSOCIATED ACCESSORIES, EVEN IF PERVASIVE GROUP INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE INTERNET SITE CATEGORIZATION METHODS OF THE MOBILE APPLICATIONS AND THE SERVICE USED FOR THE WEB FILTER FUNCTION SHALL BE CORRECT OR ACCURATE IN ALL SITUATIONS OR INSTANCES, AND THE CATEGORIZATION PROVIDED MAY NOT BE ONE THAT YOU AGREE WITH. WE SHALL NOT HAVE ANY LIABILITY IN RESPECT OF CLAIMS THAT ANY SPECIFIC INTERNET SITE SHOULD BE CATEGORIZED DIFFERENTLY THAN THE CATEGORIZATION APPLIED BY THE MOBILE APPLICATIONS OR THE SERVICE. MOREOVER, THE CATEGORIZATION OF ANY INTERNET WEBSITE IN ONE CATEGORY AND THE LATER CATEGORIZATION OF THE SAME WEBSITE IN A DIFFERENT CATEGORY SHALL IN NO EVENT BE DEEMED EVIDENCE THAT THE INITIAL CATEGORIZATION OF A WEBSITE WAS INCORRECT, AND SHALL IN NO EVENT ACT TO IMPOSE ANY LIABILITY ON US.
WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE FITNESS, SAFETY AND OPERATION OF A DEVICE AND ITS ASSOCIATED ACCESSORIES INCLUDING BATTERIES MANUFACTURED BY THIRD PARTIES EVEN THOUGH YOU PURCHASED THE DEVICE AND ITS ASSOCIATED ACCESSORIES FROM US OR THAT THE DEVICE AND ASSOCIATED ACCESSORIES DISPLAY OUR BRAND(S) (E.G., LOGOS, TRADEMARKS OR SERVICE MARKS). YOUR USE OF THE DEVICE AND ITS ASSOCIATED ACCESSORIES CONSITUTE YOUR AGREEMENT THAT YOUR RIGHTS WITH RESPECT TO THE DEVICE AND ITS ACCESSORIES SHALL BE GOVERNED SOLELY BY ANY WARRANTIES PROVIDED BY SAID THIRD PARTIES.
Limitation of Liability
IN NO EVENT WILL:
(I) PERVASIVE GROUP INC. BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOSS OF REVENUE, LOSS OF PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE MOBILE APPLICATIONS, ANY DEVICE OR ASSOCIATED ACCESSORIES YOU PURCHASED FROM US, ANY DEVICE OR ASSOCIATED ACCESSORIES DISPLAYING OUR BRANDS (E.G. LOGOS, TRADEMARKS OR SERVICES MARKS), THE MATERIALS AND ANY SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE OR THE SERVICE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND
(II) OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE MOBILE APPLICATIONS, ANY DEVICE OR ASSOCIATED ACCESSORIES YOU PURCHASED FROM US, ANY DEVICE OR ASSOCIATED ACCESSORIES DISPLAYING OUR BRANDS (E.G. LOGOS, TRADEMARKS OR SERVICES MARKS), THE MATERIALS AND ANY SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE OR THE SITE EXCEED THE AGGREGATE OF THE NET AMOUNTS RECEIVED BY US FROM YOU, IF ANY, SOLELY FOR YOUR ACCESS TO OR USE OF THE SERVICE (NOT YOUR PAYMENT FOR ANY OTHER SERVICES PROVIDED BY US).
MISCELLANEOUS
THIS SERVICE IS NOT MEANT FOR MINORS. We are committed to protecting the privacy needs of children and we encourage parents and guardians to take an active role in their children’s online activities and interests. The Service is not intended for and may not be used by children under the age of 13. We do not knowingly allow children under the age of 13 to register and use Our Software and Services and we do not target our Software and Services to children under 13.
Legal Effect
This Agreement describes certain legal rights. You may have other rights under the laws of Your state or country. This Agreement does not change Your rights or obligations under the laws of Your state or country if the laws of Your state or country do not permit it to do so.
Electronic Communications
Notwithstanding any terms to the contrary in these Terms, Pervasive Group Inc. may choose to electronically deliver all communications with you, which may include: (i) email to your email address indicated in your communications with Pervasive Group Inc. or upon Your registration of the Software and Services; or (ii) posting messages that are displayed to you when you log in to or access the Software and Services. Pervasive Group Inc.’s electronic communications to you may transmit or convey information about action taken on your request, portions of your request that may be incomplete or require additional explanation, any notices with respect to modifications to this Agreement, any notices required under applicable law and any other notices. You agree to do business electronically with Pervasive Group Inc., and to receive electronically all current and future notices, disclosures, communications and information, and that the aforementioned provided electronically satisfies any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received the day of receipt as evidenced by such email.
Dispute Resolution - Arbitration
If a dispute arises from or relates to this contract or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Claims shall be heard by a single arbitrator. The place of arbitration shall be New York City, New York. The arbitration shall be governed by the laws of the State of New York, without regard to its conflict of law principles.
Each party will, upon written request of the other party, promptly provide the other with copies of all relevant documents. There shall be no other discovery allowed. The arbitration will be based on the submission of documents and there shall be no in-person or oral hearing. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute. The arbitrator shall not award consequential damages in any arbitration initiated under this section. Any award in an arbitration initiated under this clause shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount. Each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration.
Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness. In such event, the other party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above.
Choice of Law and Venue
Any dispute arising from this Agreement shall be governed by the laws of the State of New York, without regard to its conflict of law principles. The parties further submit to and waive any objections to the exclusive jurisdiction of and venue in the courts in New York City in the State of New York, U.S.A.
Force Majeure
We shall not be liable or responsible to You, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by acts of God; flood, fire or explosion; war, terrorism, invasion, riot or other civil unrest; embargoes or blockades in effect on or after the date of this Agreement; or national or regional emergency (each of the foregoing, a “Force Majeure”), in each case, provided that (i) such event is outside Our reasonable control; (ii) We provide prompt notice to You, stating the period of time the occurrence is expected to continue; and (iii) We use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. You may terminate your subscription if a Force Majeure Event affecting us continues substantially uninterrupted for a period of 7 calendar days or more.
Entire Agreement
This Agreement together with the Privacy Policy and any other documents linked to these Terms of Service, are the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof. If any provision of these Terms is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify the Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner.
Software Downloaded from Apple App Store
If the Software is downloaded from the Apple iTunes App Store ("App Store"), You acknowledge and agree to the following additional terms:
(a) This Agreement is between You and Pervasive Group Inc. only, and not with Apple, Inc. ("Apple") and that Apple has no liability for the Software and its content;
(b) Your use of the Software is limited to use on an Apple-branded product running the iOS operating system that You own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service;
(c) Apple has no obligation to provide any maintenance or support services with respect to the Software; such services will be provided by Pervasive Group Inc. in accordance with our Terms of Service or as required under applicable law.
(d) In the event of any failure of the Software to conform to any applicable warranty that has not been disclaimed, (i) You may notify Apple, and Apple will refund the purchase price that You paid through the App Store for the Software and (ii) to the maximum extent permitted by applicable law, Apple will have no other warranty obligation with respect to the Software;
(e) Apple is not responsible for any claims, losses, liabilities, damages, costs or expenses relating to the Software or Your possession and/or use of the Software, including, but not limited to (i) product liability or warranty claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement and (iii) consumer protection or similar claims;
(f) Apple is not responsible for investigating, defending, settling or discharging any third party claims that the Software or Your possession and use of the Software infringes such third party’s intellectual property right;
(g) You represent and warrant that (i) 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 (ii) You are not listed on any U.S. Government list of prohibited or restricted parties;
(h) You are responsible for complying with any applicable third party terms of agreement when using the Software;
(i) Apple and its subsidiaries are third party beneficiaries of this Agreement; as a third party beneficiary, Apple will have the right to enforce this Agreement against You;
(j) Should You have any questions concerning this Agreement, or if You desire to contact us, please write to us at: Pervasive Group Inc, 78 John Miller Way, Suite 326-HD, Kearny, NJ 07032, USA or email to support@mmguardian.com.
Updates to Terms of Service
We may change our Terms of Service and this Agreement from time-to-time. If we make any changes to this Agreement, we will change the “Last modified” date below. If we make significant changes, and where required by applicable law, we will either notify You either by prominently posting a notice of such changes 7 calendar days prior to implementing the changes or by directly sending You a notification.
These Terms of Service were last modified on September 14, 2023
