Terms and conditions
CheckVideo® End User Agreement
(Equipment & Services)
IMPORTANT – PLEASE READ CAREFULLY THE TERMS OF THIS END USER AGREEMENT (“AGREEMENT”). This Agreement is a binding, contractual agreement between You and CheckVideo, LLC (“CheckVideo,” “We, “Us,” “Our”). This Agreement applies solely to Your use of the Equipment (as defined below), the Embedded Software (as defined below) that comes with the Equipment (collectively, the “Product”), Your access to and use of CheckVideo’s CheckVideo website, at http://portal.checkvideo.net or such other URL provided by CheckVideo (the “Website”), and the services offered through the Website and related services intended only for the Intended Use (as defined below) (“Services”). For purposes of this Agreement, the term “Equipment” means the hardware components of the EZ SmartCam, CV400, CV43G, CV120, CV151, CV136, CVNVR, CMS4100, et al. including all hardware components contained in the original packaging with such equipment for use with such products. This Agreement is comprised of (i) Equipment Terms and Conditions, (ii) Services Terms and Conditions and (iii) General Terms, each of which are set forth below.
BY CLICKING THE BUTTON BELOW LABELED “YES, I AGREE,” BY INSTALLING OR USING THE EQUIPMENT, OR BY ACCESSING OR USING THE WEBSITE OR ANY OF THE SERVICES, YOU ARE INDICATING YOUR ACCEPTANCE AND AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT AND AGREE TO ALL OF THE FOLLOWING TERMS AND CONDITIONS, YOU MUST CLICK THE BUTTON LABELED “NO, I DO NOT AGREE,” IN WHICH CASE YOU WILL NOT BE PERMITTED TO USE THE PRODUCT OR TO ACCESS OR USE THE WEBSITE OR ANY OF THE SERVICES. YOUR CLICKING ON THE “YES, I AGREE” BUTTON CONSTITUTES YOUR ELECTRONIC SIGNATURE ON THIS AGREEMENT AND YOUR CONSENT TO EXECUTE THIS AGREEMENT ELECTRONICALLY. BY ACCEPTING THE AGREEMENT AS DESCRIBED ABOVE, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU REPRESENT THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER, AND (3) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, PERSONALLY OR IF YOU HAVE NAMED A COMPANY AS LICENSEE, ON BEHALF OF THAT COMPANY (YOU OR ANY SUCH COMPANY, THE “LICENSEE, YOU”), AND TO BIND THE LICENSEE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT OR ACCESS, USE OR INSTALL THE PRODUCT(S), WEBSITE OR SERVICES.
If You do not agree to the terms and conditions contained in this Agreement and You were not provided an opportunity to review the terms and conditions of this Agreement prior to obtaining the Product, You may return the Product TO CHECKVIDEO OR CHECKVIDEO’S AUTHORIZED DISTRIBUTOR, AS APPLICABLE, for a refund WITHIN FIFTEEN DAYS OF THE ORIGINAL PURCHASE. To obtain a refund you must return the Product unopened and in new condition. Notwithstanding the foregoing, any installation, operation or use of the Product by You shall be deemed to constitute Your agreement and acceptance of this Agreement.
A. EQUIPMENT TERMS AND CONDITIONS
THE SECTIONS BELOW RELATE TO THE TERMS AND CONDITIONS SPECIFICALLY APPLICABLE TO THE EQUIPMENT AND EMBEDDED SOFTWARE. THE TERMS GOVERNING YOUR USE OF THE WEBSITE AND SERVICES ARE SET OUT LATER IN THIS AGREEMENT UNDER THE HEADING “SERVICES TERMS AND CONDITIONS.”
1. License Grant, Authorized Use & Ownership
a. License Grant & Authorized Use. The Equipment may contain certain embedded software (“Embedded Software”). The Equipment contains Embedded Software, and such Embedded Software is licensed, not sold, and Your use of the Embedded Software is granted only subject to Your strict compliance with this Agreement. CheckVideo grants You a nonexclusive, nontransferable, perpetual, paid-up license to use the Embedded Software solely in connection with the use of the accompanying Equipment on which it was first delivered to You, and solely in accordance with any applicable user documentation provided with such Embedded Software and/or Equipment. You acknowledge that, pursuant to Your use of the Equipment with its associated web service, CheckVideo may, from time to time, update or otherwise modify the Embedded Software. You may not, and no right is granted to You to copy, modify, or disassemble, or permit others to copy, modify, or disassemble, the Embedded Software, nor may You modify, adapt, translate, reverse engineer, decompile, or otherwise attempt to derive source code from the Embedded Software. You shall not transfer possession of the Embedded Software except as part of, or with, the Equipment, such transfer being subject to the restrictions contained herein. You may not sublicense, assign or otherwise transfer the Embedded Software, except upon CheckVideo’s prior written consent. You shall not engage in any act or omission that would impair CheckVideo’s and/or its licensors’ Intellectual Property Rights (as defined below) in the Embedded Software or the Equipment. Use of the Embedded Software must comply with all applicable laws, including United States export regulations. You acknowledge and agree that, except as specifically set forth in this Agreement, You do not acquire under this Agreement any rights of use or ownership with respect to any trade names, trade dress, trademarks, service marks, commercial symbols, copyrightable material, designs, logos and/or any other intellectual property of CheckVideo. You further acknowledge that the Embedded Software, although copyrighted, is unpublished and contains proprietary and valuable information of CheckVideo and/or its licensors and is considered to be trade secrets of CheckVideo and/or its licensors. Any attempt to access the source code of the Embedded Software or to modify the Embedded Software will void all warranties provided in this Agreement.
b. Ownership. CheckVideo reserves all rights not expressly granted, and, as between CheckVideo and You, CheckVideo owns all right, title, and interest, including all patent, copyright, trade secret, trademark, moral rights, mask work rights, and other intellectual property rights (“Intellectual Property Rights”) in and to the Equipment and Embedded Software provided or made accessible hereunder, and You acknowledge and agree that such items reflect CheckVideo’s selection, arrangement, coordination, and expression of such information and that the Equipment or Embedded Software may contain confidential information, trade secrets, and/or patented technology.
c. Open Source. The Equipment may contain certain open-source software (the “Open Source Software”). You can redistribute and/or modify the open source software under the terms of the applicable open source software license agreement. You may obtain a copy of the source code corresponding to the binaries for the Open Source Software (the “GPL Source Files”) by sending a request to [email protected], with your name and address, in which case CheckVideo will mail a copy of the GPL Source Files and the applicable open source software licenses to you on a CD or equivalent physical medium. You agree that the Open Source Software licenses do not apply to the Embedded Software, and only apply to the identified open source components with which those licenses are associated. The open source licenses associated with the identified open source components are hereby incorporated by reference as they apply to the identified open source components.
2. Inspection, Installation and Warranty
a. Inspection. If You are performing your own equipment installation, immediately upon receipt, You should inspect the Equipment. Unless You give CheckVideo notice of defects within ten (10) days of the date You receive the Equipment, it shall be conclusively presumed that You have fully inspected and acknowledged that the Equipment is in good condition and repair and is performing satisfactorily, and that You are satisfied with and have accepted such Equipment in such good condition and repair. You shall not make any alterations, modifications or attachments to the Equipment. Any modifications or adjustments made to the Equipment by You, or a third party, without CheckVideo’s prior approval shall void the warranty provisions set forth below.
b. Installation. Unless otherwise agreed to by the parties in writing, You are solely responsible for the proper installation of the Equipment. You assume any and all liability arising from installation of the Equipment, including without limitation liability arising from personal injury to You and any third parties. You shall strictly abide by any CheckVideo installation procedures provided with the Equipment or otherwise provided to You by CheckVideo. CheckVideo reserves the right to update such procedures from time to time. Since installation of the Equipment is Your sole responsibility, You shall remain solely liable under this Section for any and all liability arising from installation of the Equipment, regardless of whether it follows CheckVideo’s installation procedures. CheckVideo’s obligation shall be limited to replacement or repair for any Equipment that is not performing in accordance with the documentation supplied with the Equipment, provided that the failure was not caused by You, as determined by CheckVideo in its sole discretion. You agree to abide by CheckVideo’s current Equipment return policy, as specified to You by CheckVideo.
c. Limited Warranty. CHECKVIDEO WARRANTS TO YOU, THAT (A) THE EQUIPMENT, EXCLUDING EMBEDDED SOFTWARE, WILL BE MATERIALLY FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE, AND (B) WITH RESPECT TO EMBEDDED SOFTWARE, (I) THE MEDIA ON WHICH THE SOFTWARE IS PROVIDED WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE, AND (II) THE EMBEDDED SOFTWARE WILL PERFORM MATERIALLY AS DESCRIBED IN ITS DOCUMENTATION (THE “LIMITED WARRANTY”). THIS LIMITED WARRANTY TO YOU, EXTENDS ONLY TO THE ORIGINAL PURCHASER OF THE PRODUCT, AND CONTINUES (A) FOR EMBEDDED SOFTWARE AND THE MEDIA UPON WHICH IT IS PROVIDED, FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF PURCHASE FROM CHECKVIDEO OR AN AUTHORIZED CHECKVIDEO RESELLER, AND (B) FOR THE EQUIPMENT (EXCLUDING EMBEDDED SOFTWARE AND ANY MICROSD CARD OR SIMILAR MEMORY/STORAGE COMPONENT), FOR A PERIOD OF TWO (2) YEARS FROM THE DATE OF PURCHASE FROM CHECKVIDEO OR FROM AN AUTHORIZED CHECKVIDEO RESELLER. THIS LIMITED WARRANTY IS CONDITIONED UPON THE PROPER INSTALLATION AND NORMAL USE BY YOU IN ACCORDANCE WITH THE DOCUMENTATION ACCOMPANYING THE EQUIPMENT AND WITH OTHER RELEVANT DOCUMENTATION PROVIDED TO YOU. SUCH LIMITED WARRANTY DOES NOT APPLY WHATSOEVER TO ANY NONCONFORMANCE CAUSED BY MODIFICATION, MISUSE, ABUSE, ACTS OF GOD (SUCH AS HURRICANES OR FLOODS) OR ANY USE BY YOU NOT IN COMPLIANCE WITH ALL THESE TERMS. TO TAKE ADVANTAGE OF THIS LIMITED WARRANTY OR TO OBTAIN TECHNICAL SUPPORT, YOU MUST CALL THE CHECKVIDEO PHONE NUMBER (BELOW) DURING THE APPLICABLE WARRANTY PERIOD AND COMPLY WITH ALL REQUIRED PROCEDURES FOR THE DETERMINATION OF THE PROBLEM AND/OR RETURN AND REPLACEMENT OF THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, CHECKVIDEO’S RETURN POLICY DESCRIBED BELOW. CHECKVIDEO’S SOLE AND EXCLUSIVE OBLIGATION UNDER THIS LIMITED WARRANTY SHALL BE TO REPAIR OR REPLACE ANY EQUIPMENT OR EMBEDDED SOFTWARE THAT DOES NOT MEET THIS LIMITED WARRANTY. ALL WARRANTY CLAIMS MUST BE MADE WITHIN THE APPLICABLE WARRANTY PERIOD.
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
3. Disclaimers, Limitation of Liability & Indemnity
a. Limitation of Liability. IN NO EVENT SHALL CHECKVIDEO BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER TORT, CONTRACT, OR STRICT LIABILITY. FOR ANY LIABILITY RELATED TO THE EQUIPMENT, CHECKVIDEO’S TOTAL CUMULATIVE LIABILITY FOR ANY AND ALL DAMAGES ASSERTED BY YOU OR ANY THIRD PARTY SHALL IN NO EVENT EXCEED THE AMOUNTS PAID BY YOU FOR THE EQUIPMENT.
b. Disclaimer. Because it is impossible for CheckVideo to know the purposes for which You acquired this Equipment or the uses to which You will put this Equipment, You will assume full responsibility for the selection of the Equipment and for its installation and use. While every reasonable effort has been made to insure that You will receive Equipment that You can use and enjoy, CheckVideo does not warrant that the functions of the Equipment will meet Your requirements or that the operation of the Equipment will be uninterrupted or error-free. CHECKVIDEO IS NOT RESPONSIBLE FOR PROBLEMS OR DAMAGE CAUSED BY THE INTERACTION OF THE PRODUCT WITH ANY OTHER SOFTWARE OR HARDWARE OR SERVICES OF THIRD PARTIES. ALL WARRANTIES ARE VOID IF THE EQUIPMENT IS OPENED, ALTERED, AND/OR DAMAGED.
EXCEPT DURING THE TERM OF THE LIMITED WARRANTY, THE EQUIPMENT, EMBEDDED SOFTWARE, AND ANY OTHER MATERIALS, SOFTWARE, DATA AND/OR SERVICES PROVIDED BY CHECKVIDEO ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND CHECKVIDEO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, NONINFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT.
THIS PRODUCT IS INTENDED FOR USE ONLY TO FACILITATE MONITORING AND IS NOT INTENDED TO BE A SUBSTITUTE FOR A SECURITY SYSTEM. CHECKVIDEO HEREBY DISCLAIMS ANY LIABILITY WHATSOEVER THAT MAY ARISE FROM THE USE OR INABILITY TO USE THIS PRODUCT AS A SECURITY SYSTEM. IN NO EVENT SHALL CHECKVIDEO BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DIRECT, INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE EQUIPMENT AS A SECURITY SYSTEM (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR INJURY, LOSS OF PROPERTY, BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR ANY OTHER PECUNIARY LOSS), OR FROM ANY BREACH OF WARRANTY, EVEN IF CHECKVIDEO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS EQUIPMENT MAY EMPLOY WIRELESS TECHNOLOGY AND, IN SOME CASES, MAY FACILITATE TRANSMISSION OF DATA OR VIDEO OVER THE INTERNET OR OTHER COMMUNICATION NETWORKS IN CONNECTION WITH ITS USE. IN THE EVENT THE INTERNET OR OTHER COMMUNICATION NETWORKS AND/OR WIRELESS CONNECTIVITY IS UNAVAILABLE, YOU MAY NOT BE ABLE TO USE CERTAIN FEATURES OR FUNCTIONS OF THE EQUIPMENT. SUCH CONNECTIVITY AND/OR FUNCTIONS OR FEATURES MAY REQUIRE THE PROVISION OF SERVICES BY A THIRD PARTY, AND CHECKVIDEO IS NOT RESPONSIBLE FOR SUCH AGREEMENTS, CONNECTIVITY OR PROVIDING THOSE FUNCTIONS OR FEATURES. YOU ACKNOWLEDGE AND AGREE THAT CHECKVIDEO HAS NO CONTROL OVER THE AVAILABILITY OR PERFORMANCE OF THE INTERNET, OTHER COMMUNICATION EQUIPMENT NOT PROVIDED BY CHECKVIDEO OR WIRELESS SERVICES, AND THAT CHECKVIDEO IS NOT RESPONSIBLE FOR THE UNAVAILABILITY OF THE INTERNET, OTHER EQUIPMENT, WIRELESS SERVICES OR ANY INTERRUPTIONS OF WIRELESS CONNECTIVITY. YOU SHOULD FURTHER UNDERSTAND THAT ALL WIRELESS TRANSMISSIONS MAY BE SUBJECT TO INTERCEPTION AND THAT DATA TRANSMISSIONS OVER THE INTERNET CANNOT BE GUARANTEED TO BE 100% SECURE. AS A RESULT, CHECKVIDEO CANNOT ENSURE OR WARRANT THE SECURITY OF ANY VIDEO OR DATA TRANSMITTED BY OR THROUGH THIS EQUIPMENT, WHETHER OR NOT TRANSMITTED VIA THE INTERNET, AND YOU USE SUCH EQUIPMENT AT YOUR OWN RISK.
c. Essential Basis.
YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY FORM AN ESSENTIAL BASIS OF THE TERMS AND CONDITIONS PURSUANT TO WHICH CHECKVIDEO HAS SOLD YOU THE EQUIPMENT AND LICENSED THE EMBEDDED SOFTWARE FOR USE IN ACCORDANCE WITH THIS AGREEMENT, AND, ABSENT ANY OF SUCH DISCLAIMERS OR LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS GOVERNING SUCH USE (INCLUDING, WITHOUT LIMITATION, THE ECONOMIC PROVISIONS) WOULD BE SUBSTANTIALLY DIFFERENT. IN THE EVENT AND TO THE EXTENT THAT ANY TERM OF CONDITION SET FORTH ABOVE IS FOUND TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY SHALL BE CONSTRUED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TO GIVE EFFECT TO SUCH PROVISIONS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTION SUCH OBLIGATIONS AND LIABILITY OF CHECKVIDEO SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
d. Indemnity. You agree to indemnify, defend, and hold harmless CheckVideo from any suits, losses, claims, demands, liabilities, costs and expenses (including reasonable attorney fees) that CheckVideo may sustain or incur from Your use of the Equipment or from Your breach of any of Your obligations or any restrictions set forth in this Agreement.
For technical support or warranty service on the Equipment or Embedded Software, please contact CheckVideo at 888-992-8433 or [email protected].
Register your product at: portal.checkvideo.net
6. Return Policy
All Products to be returned to CheckVideo for any reason permitted under this Agreement, including without limitation returns under Section 2(c), must be returned in accordance with CheckVideo’s return policy for the applicable Product (the “Return Policy”). To return an item, contact CheckVideo Support at (888) 992-8433 FREE or [email protected] for a Return Merchandise Authorization (RMA) number and shipping instructions. Returns cannot be processed without an RMA. CheckVideo reserves the right to refuse to accept any attempted return of a Product that is not made in accordance with the Return Policy. Please note that if You purchased a Product from an authorized retailer or other third party, You must return the Product to that retailer in accordance with their return policy.
If you have purchased the CheckVideo Gateway for Mobile Broadband Networks, the CheckVideo Ruggedized Outdoor Mobile Sentry, this return policy is not applicable to Your Sprint Services Contract. You will need to contact Sprint directly to terminate any services provided by Sprint, and a return of the Equipment to CheckVideo may subject you to cancellation fees and penalties with Sprint.
B. SERVICES TERMS AND CONDITIONS
The Sections below relate to the terms and conditions specifically applicable to the Website and Services. The terms governing your use of the Equipment and Embedded Software are set out above under the heading “Equipment Terms and Conditions.” This Agreement applies to the Services currently offered by CheckVideo and any Services that CheckVideo may choose to offer in the future (unless stated otherwise). In addition, use of particular Services will be subject to any posted guidelines and/or rules that may be posted in connection with those Services from time to time and are hereby incorporated by reference into this Agreement.
1. CheckVideo’s Use of Independent Contractor to Provide Application Services. The term “Provider,” when used in this Agreement, shall refer to CheckVideo as well as any independent contractor(s) engaged by CheckVideo to perform some or all of the Services. CheckVideo has contracted with an independent contractor to provide some or all of the Services, including without limitation the storage of images that You may record using the Services. You acknowledge and consent to the provision of some or all of the Services by any independent contractor(s) engaged by CheckVideo for such purposes. You also acknowledge and consent to the use of a reputable third-party payment processing service in connection with the receipt and processing of payments for the Services.
2. Description of Services.
a. The Services include an Internet protocol-based facility for viewing and/or recording images (“Images”) and receiving data (“Data”) generated by, or as a result of using, video cameras and other related products that are purchased and installed by You, or on Your behalf by a third party. The Images may be a “live” or recorded video stream, or one or more “still” video images. The Data may consist of data produced as a result of analysis of the Images, or from contact, temperature, water, or other sensors, to the extent such sensors are available and supported by the system.
b. In order to use this Website or the Services, You must register and create an account. You agree to provide only accurate and complete registration information, including Your real name and email address. The Services include the ability to designate Authorized Individuals (“Authorized Individuals”) to access Your Images and Data. You agree to provide only accurate and complete information for Authorized Individuals, including real name and email address. Authorized Individuals may include a Monitoring Services Provider (MSP) with whom you have contracted. You are solely responsible for obtaining the necessary permission and rights to designate such individuals as Authorized Individuals under Your account and to authorize CheckVideo to provide the Images and Data to such Authorized Individuals, and you represent and warrant that you have the foregoing rights. Certain Services are only available to premium users, which are those registered users who have submitted payment of all applicable services fees to us in order to access and/or view certain premium Services. As a premium user, prior to receiving the Services, You must submit an order for the Services by selecting the Services You wish to access and submitting all applicable fees, which are due and payable at the time of Your order for the Services in accordance with Section B(12) below.
c. In some cases, You (or an Authorized Individual) may set controls through Your account to provide for automatic or manual operation of Image recording. The Images and Data (both of which may only be obtained or stored consistent with the Intended Use set forth below in Section B(13) may be recorded, stored, backed-up and archived by Provider. You may use up to 50 megabytes of storage per device for such purposes at any given time, or such additional storage as CheckVideo may permit in its sole discretion from time to time. Any storage that exceeds the limit set forth above may be deleted without notice and will be unrecoverable, and You acknowledge and agree that Provider will not be liable for the removal or deletion of such excess information, including, without limitation, Images and Data.
d. You are responsible for establishing, configuring, and using the Services and Your video camera(s) and related products in a lawful manner and for obtaining any transmission or Internet access service and related facilities. You are responsible for maintaining the confidentiality of all passwords that may be issued to You in connection with the use of the Services.
e. The Services do not include monitoring of Your Images or Data by Provider for any reason other than as set forth in Section B(13) below, and the Services, including the Images and Data, are not intended to be used as a security system or a component of a security system. You have the right, but not the obligation, to contract with a Monitoring Service Provider (MSP). The Monitoring Service Provider may use the Services as a tool to assist in the monitoring of Your premise(s), house, office or property but not as a security system by itself, a substitute for appropriate, in-person adult supervision of children, the elderly, or others in need of such supervision, or as a replacement for any safety or security devices.
f. Your CheckVideo product may be enabled (either automatically or manually) to port forward data via a UPNP enabled router on your behalf, which will require CheckVideo to auto-configure the router each time the internal IP address of the particular CheckVideo device is changed. In the event this feature is enabled, You acknowledge and agree that such auto-configuration will occur without reauthorization unless and until you disable this feature through your account settings. Please note that if this feature is disabled, remote viewing of live video via a mobile device and use of DVR features will not be available until You manually configure port forwarding between Your router and the CheckVideo device.
g. CheckVideo may enable Services such as DVR recording which requires the CheckVideo device to reformat your media storage devices (i.e. USB drive or internal microSD card). In the event You elect to use and/or enable this type of Service, You hereby acknowledge and agree that Provider shall have the right to reformat such device and that any data or information previously written to the device will be lost, and that Provider shall not be held liable for any loss or removal of such information.
3. Provider’s Control Over Website; Your Control Over Data and Images
b. Provider reserves the right, in its sole discretion, to correct any errors or omissions in any portion of the Website or any related software that may be used to provide the Services.
c. You agree that Provider may, without notice to You, (i) report to the appropriate authorities any conduct that Provider believes violates applicable law, and (ii) provide any data or information, including Your stored Images and any other Data and Your confidential or identity information, in response to a lawful request from a law enforcement or government agency. Provider may provide any data or information, including Your stored Images and any other Data and Your confidential or identity information, in response to a formal request in a civil action that on its face meets the requirements for such a request.
d. Provider does not control any information, images or material posted (collectively, the “Postings”) on the Website by other users and, therefore, Provider does not guarantee the accuracy, integrity or quality of such Postings. Provider reserves the right, in its sole discretion, to refuse to post, or to remove any Posting of You or any other user, for any reason.
e. Provider may, without notice, remove any Data that has been stored using the Website that Provider discovers violates any terms of this Agreement or that is otherwise objectionable to Provider, in Provider’s sole discretion.
f. You, not CheckVideo, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Data and Images and CheckVideo shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data and Images. Prior to storing any Data and Images using the Services, You shall, at Your own expense, obtain all third party consents and/or permissions that may be necessary and appropriate with respect to such Data and Images, including, without limitation, all such consents and permissions necessary to permit CheckVideo to exercise its rights and perform its obligations under this Agreement. CheckVideo reserves the right to withhold, remove and/or discard Images or Data without notice for any breach by You of this Agreement. Certain features and functions of the Services may enable You to share your Images and Data with third parties or post images to various third party sites. In the event that You choose to use such features and/or share your Images or Data with others through the Website or Services, You do so at your own risk, and You are solely responsible for compliance with all rules, regulations, policies and third party agreements with respect to such sharing and third party sites.
g. You acknowledge and agree that any storage of Images and Data is subject to the storage capacity limit of the Services as set forth in Section B(2)(c) and as may be modified by CheckVideo, in its sole discretion, upon written notice to You of such modification (“Data Limit”), and that any storage of Images and Data that exceeds the then-current Data Limit may be deleted without notice and will be unrecoverable. CheckVideo reserves the right to establish or modify its general practices relating to storage of Data and Images. If this Agreement is terminated, You will no longer be authorized to access any areas of the Website or use the Services, and any of Your Images or Data being stored by Provider will be subject to deletion (without backup) at any time. CheckVideo shall have no obligation to retain any of Your Images or Data upon termination of this Agreement for any reason.
4. CheckVideo’s Right to Amend Agreement or Limit Services.
a. CheckVideo reserves the right, in its sole discretion, to change, modify, add or remove any portion of this Agreement, in whole or in part, at any time, without notice. Amendments to the Agreement will take effect immediately upon being posted to the Website, and Your continued use of the Website or Services constitutes Your acceptance thereof.
b. CheckVideo may change, suspend or discontinue any aspect of the Website or Services at any time, for any reason, including, but not limited to, content, services offered, products offered, service levels, features and functionality, database, hours of availability, promotional and trial offers, and equipment or software needed for access or use. Additionally, CheckVideo cannot control the content, services offered, products offered, service levels, features and functionality, database, hours of availability, promotional and trial offers, and equipment or software needed for access or use offered by its partners like Sprint or any MSP with whom you contract.
c. CheckVideo may also impose limits on certain features and Services or restrict Your access to parts or all of the Website, Your Images and Data without notice or liability. Restrictions may be imposed due to inaccurate Data including email address.
5. Intellectual Property & Ownership Rights.
a. Subject to the terms and conditions in this Agreement, You are granted a non-exclusive, non-transferable, right to access the Services solely for use in conjunction with CheckVideo’s other products, services and software that You have purchased or licensed, as applicable, from CheckVideo or one of its authorized dealers, unless and until this Agreement is terminated.
b. As between You and Provider, the Services and all components thereof, including but not limited to all software components, are the property of Provider, and Provider retains all right, title and interest to the foregoing, including any intellectual property rights such as trademarks, service marks and trade secrets, as well as any rights in copyrighted and/or patented materials provided to You as part of the Services. Except for the limited rights granted to You in this Agreement, You obtain no rights to the Services, and Provider reserves all rights not expressly granted to You. You hereby grant to CheckVideo a non-exclusive, non-transferable right and license to use the Images and Data during the term of this Agreement for the limited purposes of performing CheckVideo’s obligations hereunder.
c. All materials contained on the Website (the “Content”), excluding Your Images and other Data, are or may be protected by copyright and are owned or controlled by Provider or the party credited as the provider thereof. You will abide by any and all additional copyright or other intellectual property notices, information, or restrictions contained in any Content on the Website.
d. YOU ACKNOWLEDGE AND AGREE THAT ACCESS TO OR USE OF CERTAIN FEATURES AND FUNCTIONS OF THE WEBSITE OR SERVICES MAY REQUIRE YOU TO DOWNLOAD CERTAIN SOFTWARE OR THIRD PARTY SOFTWARE, INCLUDING, WITHOUT LIMITATION, THE WIFI TOOL. USE OF ANY SUCH DOWNLOADED SOFTWARE BY YOU MAY ALSO BE SUBJECT TO THE TERMS OF A SEPARATE LICENSE AGREEMENT THAT WILL, IF APPLICABLE, BE MADE AVAILABLE TO YOU AT THE TIME OF OR PRIOR TO SUCH DOWNLOAD(S). YOU ACKNOWLEDGE AND AGREE THAT YOUR ABILITY TO USE THE WEBSITE AND/OR SERVICES MAY BE AFFECTED BY OR CONDITIONED UPON YOUR AGREEMENT TO ONE OR MORE OF SUCH LICENSE AGREEMENTS.
e. You hereby waive all rights to any claim against Provider for any alleged or actual infringements of any intellectual property rights, proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution in connection with any Images or other Data that may be transmitted by or for You in connection with the Services.
f. You may not use, copy, modify, download or transfer the Services or any component of the foregoing, in whole or in part, except as expressly provided in this Agreement or in a fully executed Application Services Distribution Agreement between You and CheckVideo. You may not reverse engineer, disassemble, decompile, or translate any software components of the Services, attempt to derive the source code of any software components of the Services, create any derivative work from any software components of the Services, or authorize or assist any third party to do any of the foregoing. You may not rent, lease, loan, resell for profit, or distribute the Services, or any part thereof, except as expressly provided in a fully executed Application Services Distribution Agreement between You and CheckVideo. You may not use the Services except in accordance with applicable laws and regulations, nor may You export the Services from and outside the United States of America except as permitted under the applicable laws and regulations of the United States of America.
g. We respect the intellectual property of others, and we ask You to do the same. If You believe that your work has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent the following information:
· An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
· a description of the copyrighted work that you claim has been infringed;
· a description of where the material that you claim is infringing is located on the Site or Services;
· your address, telephone number, and email address;
· a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
· a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our copyright agent for notice of claims of copyright infringement on the Website or the Services can be reached by directing an e-mail to Copyright Agent at [email protected], by calling (571) 418-7230 or by writing to: CheckVideo, LLC, 6402 Arlington Blvd., Suite 200, Falls Church, VA 22042, Attn: Copyright Agent.
6. Your Covenants.
You represent, warrant and covenant:
a. that You will not use the Services or permit the Services to be used by any other person (including an Authorized Individual) in a manner inconsistent with the Intended Use set forth below in Section B(13) of this Agreement;
b. You will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Website or any business being conducted on the Website or any Services offered. You may not take any action that imposes an unreasonable or disproportionately large load on the Website’s infrastructure (e.g., the sending of mass e-mail or junk mail, known as “Spamming”). You may not disclose to or share Your account number or password with any third parties or use the password for any unauthorized purposes.
c. You will use the Services, the Website and all related products and software (i) for legal purposes only, and (ii) consistent with the Intended Use set forth in Section B(13) below, and any failure of You to abide by such promise shall give CheckVideo the immediate right to terminate this Agreement and shall immediately and automatically render void all rights of You and obligations of Provider under this Agreement to the fullest extent permissible by law.
d. You shall safeguard, protect, respect, and maintain as confidential any software components of the Services, and the underlying computer code to which You may obtain or receive access, and the functional or technical design, logic, or other internal routines or workings of any software components of the Services, which are considered confidential and proprietary to CheckVideo.
e. that in the event You choose to participate in any promotional offer or trial offer for CheckVideo products or services made available by Provider, You will provide only complete and accurate information and will not violate or attempt to violate any rules or restrictions with respect to such offers, including, by way of example, by re-registering or attempting to re-register a single device for the same offer during such offer period. You acknowledge and agree that Provider shall have the right, without liability to you or any third party, to cancel and/or deny your participation in any offer(s), at any time, in the event Provider believes, in its sole discretion, that any violation or attempted violation of any such rules or restrictions has occurred.
7. Your Acknowledgments.
a. You acknowledge that Provider may encrypt any Images or Data that are sent or stored in connection with Your use of the Services. Furthermore, while Provider generally maintains commercially reasonable Internet security devices, You acknowledge there is no way to achieve a predictable level of security over the Internet. Accordingly, You further acknowledge that any transmissions to and from the Website or via XML, including to your MSP, could potentially be read or intercepted by third parties not affiliated with Provider.
b. You are responsible for any and all fees, taxes, and expenses which may be incurred through the use of the Website or as the result of the purchase of Services.
c. You acknowledge that by using the Website or the Services, You may be exposed to information or material that may be offensive, indecent, objectionable or otherwise inappropriate and that in no way will Provider be liable or held responsible for any such material.
d. You acknowledge that You are solely responsible for maintaining the confidentiality of Your password and account information and that You are fully liable for all activities that occur under Your password or account. Additionally, You acknowledge that You will notify CheckVideo immediately if there has been any unauthorized use of Your password or account.
a. By using the Website and Services, You may have access to Third Party Sites, as well as resources and sponsors of the Website. Access and links to and from any Third Party Site do not constitute an endorsement by Provider or any of its subsidiaries or affiliates of any Third Party Site, or the resources or content available on those sites. Provider makes no guarantees as to Third Party Sites and information found on the Internet which You may access through use of the Website.
b. Provider does not represent or endorse the accuracy or reliability of any advice, opinion, or other information displayed or distributed through the Website.
c. Provider is not an author or editor of materials posted to the Website by users, and Provider is not responsible for any such materials posted thereby.
d. Provider disclaims any and all responsibility for content contained in any third party materials provided through links on the Website.
e. You understand that all of Your Images and Data (“Your Content”) is Your sole responsibility, as the person from whom Your Content originated. This means that You, and not Provider, its affiliates, partners or suppliers, are entirely responsible for all Your Content that You upload, download, post, transmit, or otherwise back-up or store via the Services. You also agree to take responsibility for any acts or omissions of your MSP, and you acknowledge and agree that we have no liability for any actions of your MSP. You expressly agree that Provider does not control Your Content that You post via the Services, and Provider and its affiliates, partners and suppliers do not guarantee the accuracy, integrity, quality, or completeness of Your Content. There is a risk that others may attempt to access Your computer or Your Content through the Internet or connected networks. You acknowledge this risk as inherent to the nature of the Services and the related products and software, and You agree to take full responsibility for any unauthorized access to or loss of Your Content. Under no circumstances will Provider nor its affiliates, partners or suppliers be liable in any way for any loss or damage of any kind incurred as a result of the use, loss, or damage of any of Your Content uploaded, downloaded, posted, transmitted or otherwise backed-up or stored via the Services.
f. Provider is not responsible for any Sprint equipment or Sprint connectivity services. Both Sprint equipment and Sprint connectivity services are governed by a separate agreement between you and Sprint.
g. While the Website may provide links to retailers and other vendors (collectively, “Merchants”) who sell their products online, Provider does not endorse or control these independent Merchants. Accordingly, Provider does not provide any warranty or guarantee of any kind that You will be satisfied with the products or services offered by Merchants and Provider disclaims any and all responsibility for any such products or services purchased or otherwise used or obtained by You.
9. Disclaimer of Warranty.
THE SERVICES AND WEBSITE, CONTENT AND ANY RELATED PRODUCTS AND SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE.” YOU UNDERSTAND AND EXPRESSLY AGREE THAT THE USE OF THE SERVICES, WEBSITE AND ALL ITS CONTENTS AND ALL RELATED PRODUCTS AND SOFTWARE IS AT YOUR SOLE RISK, THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE OR SERVICES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR (i) ANY BODILY INJURY OR DEATH TO YOU OR ANY THIRD PARTY THAT RESULTS FROM THE USE, DESIGN, MALFUNCTION, OR FAILURE OF THE WEBSITE OR SERVICES OR ANY RELATED PRODUCTS OR SOFTWARE OR (ii) ANY DAMAGE OR LOSS TO YOUR PROPERTY OR ANY THIRD PARTY’S PROPERTY THAT RESULTS FROM THE USE, DESIGN, MALFUNCTION, OR FAILURE OF THE WEBSITE OR SERVICES OR ANY RELATED PRODUCTS OR SOFTWARE.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PROVIDER DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY OR NON-INFRINGEMENT AND/OR QUIET ENJOYMENT, AND PROVIDER MAKES NO WARRANTY OR REPRESENTATION REGARDING THE WEBSITE, SERVICES OR RELATED PRODUCTS OR SOFTWARE, THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE, SERVICES, OR RELATED PRODUCTS OR SOFTWARE, THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE WEBSITE, ANY GOODS OR SERVICES OFFERED, PURCHASED OR OBTAINED THROUGH THE WEBSITE, ANY TRANSACTIONS ENTERED INTO THROUGH THE WEBSITE, OR THAT THE WEBSITE OR RELATED SOFTWARE WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
YOU ACKNOWLEDGE THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CHECKVIDEO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. YOU ACKNOWLEDGE THAT CERTAIN SERVICES MAY BE PROVIDED TO YOU BY THIRD PARTIES, SUCH AS A WIRELESS CONNECTIVITY PROVIDER OR AN MSP, AND CHECKVIDEO IS NOT RESPONSIBLE FOR THE ACTS, OMISSIONS OR DELAYS OF ANY SUCH THIRD PARTY.
PROVIDER IS NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE, ILLEGAL, TORTIOUS OR INFRINGING CONDUCT OF YOU OR ANY OTHER PERSON. IF YOU ARE DISSATISFIED WITH THE WEBSITE, SERVICES, RELATED PRODUCTS OR SOFTWARE, OR WITH ANY OF THE TERMS OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE AND THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS IN THIS SECTION B(9) MAY NOT APPLY TO YOU. IN SUCH JURISDICTION SUCH OBLIGATIONS AND LIABILITY OF CHECKVIDEO SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. Provider’s Limited Liability.
a. IT IS UNDERSTOOD AND AGREED BY THE PARTIES HERETO THAT THE PAYMENTS PROVIDED FOR THE SERVICES ARE BASED SOLELY ON THE VALUE OF THE SERVICES AS DESCRIBED HEREIN AND ARE UNRELATED TO THE VALUE OF ANY PROPERTY LOCATED ON YOUR PREMISES; THAT PROVIDER IS NOT LIABLE FOR LOSSES WHICH MAY OCCUR IN CASES OF MALFUNCTION OR NONFUNCTION OF ANY SERVICES, THE WEBSITE OR ANY RELATED PRODUCTS OR SERVICES; THAT PROVIDER IS NOT LIABLE FOR BODILY INJURY, DEATH, OR PROPERTY LOSSES WHICH MAY ACTUALLY OR ALLEGEDLY OCCUR AS A RESULT OF THE MONITORING, SIGNAL HANDLING, OR OTHER ASPECTS OF THE WEBSITE OR THE SERVICES OR THE FAILURE OF RELATED PRODUCTS OR SOFTWARE, EVEN IF DUE TO PROVIDER’S SOLE OR PARTIAL NEGLIGENCE; THAT PROVIDER IS NOT AN INSURER; AND, IF YOU DESIRE INSURANCE COVERAGE FOR PERSONAL INJURY, PROPERTY LOSS, DAMAGE TO AND ON YOUR PREMISES, SUCH INSURANCE MUST BE SEPARATELY OBTAINED AND/OR MAINTAINED BY YOU. YOU EXPRESSLY UNDERSTAND AND ACKNOWLEDGE THAT PROVIDER OFFERS SEVERAL DIFFERENT LEVELS OF SERVICES AND THAT BOTH THE SYSTEM AND SERVICES AND RELATED PRODUCTS AND SOFTWARE HAVE BEEN CHOSEN BY YOU AFTER CONSIDERING AND BALANCING PERFORMANCE OF THE VARIOUS SYSTEMS AND THE RELATED COSTS.
b. IN NO EVENT SHALL CHECKVIDEO OR ANY OF ITS AGENTS OR REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL OR LOST PROFITS OR LOST OPPORTUNITIES IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO ACCESS THE SERVICES OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY HARDWARE, THIRD-PARTY SOFTWARE AND/OR SERVICES, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF CHECKVIDEO HAS BEEN NOTIFIED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE. EXCEPT WITH RESPECT TO CLAIMS SUBJECT TO SECTION B(10)(C), CHECKVIDEO’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT FOR ANY AND ALL DAMAGES ASSERTED BY YOU OR ANY THIRD PARTY RELATED TO THE SERVICES SHALL IN NO EVENT EXCEED THE LESSER OF ONE-HUNDRED DOLLARS (US$100.00) OR THE AMOUNTS PAID BY YOU FOR THE SERVICES DURING THE PREVIOUS SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE THE SUCH CLAIM.
c. IT IS AGREED THAT IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES WHICH MAY ARISE IN SITUATIONS WHERE THERE MAY BE A FAILURE OF PROVIDER’S WEBSITE, PRODUCTS, SOFTWARE AND/OR SERVICES, DUE TO THE UNCERTAIN VALUE OF YOUR PROPERTY OR THE PROPERTY OF OTHERS KEPT ON THE PREMISES WHICH MAY BE LOST, STOLEN, DESTROYED, DAMAGED OR OTHERWISE AFFECTED BY OCCURRENCES FOR WHICH PROVIDER’S WEBSITE, PRODUCTS, SOFTWARE OR SERVICES MAY BE USED BY YOU TO MONITOR, THE UNCERTAIN CAUSE OF ANY FAILURE, AND ESTABLISHING A CAUSAL CONNECTION BETWEEN ANY FAILURE AND YOUR POSSIBLE LOSS. THEREFORE IF SECTION B(10)(a) OF THIS AGREEMENT IS JUDICIALLY DETERMINED TO BE INVALID OR UNENFORCEABLE AND ANY LIABILITY IS JUDICIALLY IMPOSED ON PROVIDER, ITS EMPLOYEES, AGENTS, REPRESENTATIVES, OR CONTRACTORS FOR PROPERTY DAMAGE OR PERSONAL INJURY, SUCH LIABILITY SHALL BE LIMITED TO THE AMOUNT PAID BY YOU TO PROVIDER FOR ANY MONTHLY SERVICE CHARGE FOR THE MONTH IN WHICH ANY SUCH DAMAGE OR INJURY OCCURRED OR TWO HUNDRED DOLLARS (US $200.00), WHICHEVER IS LESS. THE PAYMENT OF THIS AMOUNT SHALL BE PROVIDER’S SOLE AND EXCLUSIVE LIABILITY REGARDLESS OF WHETHER LOSS OR DAMAGE IS CAUSED BY THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS UNDER THIS CONTRACT OR BY NEGLIGENCE, ACTIVE OR OTHERWISE, OF PROVIDER, ITS EMPLOYEES, AGENTS OR REPRESENTATIVES. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST PROVIDER MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CAUSE OF ACTION THEREOF.
d. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS IN THIS SECTION B(10) MAY NOT APPLY TO YOU. IN SUCH JURISDICTION SUCH OBLIGATIONS AND LIABILITY OF CHECKVIDEO SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
a. You agree to indemnify, defend and hold harmless Provider, its affiliates, officers, directors, employees, consultants, agents, representatives, and contractors from any and all third party claims, liability, damages, and/or costs (including, but not limited to, attorneys’ fees, costs and expenses) that result from, arise out of or are in any way connected with Your or any of your Authorized Individuals’ use of the Services, the Website or any related products or software, including, but not limited to claims from Authorized Individuals, Your breach of the terms of this Agreement, or Your infringement, or infringement by any other person using Your account, of any intellectual property or other right of any person or entity. The terms of this Agreement will inure to the benefit of the Provider’s successors, assigns and licensees.
b. The Services, the Website and all related products and software are designed for legal uses only. It is Your responsibility to comply with all federal, state and local laws, rules and ordinances when using the Services, the Website and all related products and software. You shall indemnify and hold harmless Provider, its affiliates, officers, directors, employees, consultants, agents, representatives, and contractors from any and all claims, actual or threatened, actions, damages, liabilities, costs and expenses (including reasonable attorneys’ fees, costs and expenses) that result from, arise out of or are in any way connected with Your use of the Services, the Website and all related products and software.
c. SINCE THE PARTIES AGREE THAT YOU RETAIN SOLE RESPONSIBILITY FOR THE LIFE AND SAFETY OF ALL PERSONS ON YOUR PREMISES, AND FOR PROTECTING AGAINST LOSSES TO YOUR OWN PROPERTY OR THE PROPERTY OF OTHERS ON YOUR PREMISES, YOU AGREE TO INDEMNIFY AND HOLD HARMLESS PROVIDER AND ITS EMPLOYEES, ASSIGNS, AGENTS, AND CONTRACTORS FROM AND AGAINST ALL CLAIMS, LAWSUITS AND LOSSES, BY PERSONS NOT A PARTY TO THIS AGREEMENT, ALLEGED TO BE CAUSED BY THE WEBSITE OR THE SERVICES OR RELATED PRODUCTS OR SOFTWARE, WHETHER DUE TO MALFUNCTIONING OR NONFUNCTIONING OF THE WEBSITE, SERVICES, OR RELATED PRODUCTS OR SOFTWARE OR THE NEGLIGENT DESIGN, PERFORMANCE OR NONPERFORMANCE OF THE WEBSITE, SERVICES OR RELATED PRODUCTS OR SOFTWARE BY PROVIDER OR ITS EMPLOYEES, ASSIGNS, AGENTS, OR CONTRACTORS, WHETHER INTENTIONAL, WILLFUL, OR INADVERTENT.
d. You covenant to cooperate fully in the defense of any claim.
e. Provider reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, You shall not in any event settle any matter without the written consent of the Provider.
12. Prices and Payments. Authorized CheckVideo distributors with a fully executed Application Services Distribution Agreement and/or Equipment Distribution Agreement in place with CheckVideo should refer to the applicable distribution agreement for prices and payment terms. The following terms apply to all other end users:
a. Some of the Content and/or Services may be offered to You conditioned on Your purchase of a service. If You agree to extend services beyond the initial term, You further warrant and agree that all information that You submit to Provider (or a third-party payment processing service engaged by Provider) is true and accurate (including without limitation, Your credit card number and expiration date), and You shall pay all charges or fees to Your account, including all applicable taxes, in accordance with the billing terms that were in effect at the time the charges or fees became payable. CheckVideo reserves the right to change the amount of, or the basis for determining, any charges or fees for the use of the Website or Services and to institute new charges or fees upon reasonable notice to You. You must provide CheckVideo with valid credit card information.
b. Unless prior notice is received by Provider, Your service term may be renewed automatically on a monthly basis. The renewal price will be based upon the value of the service at the time of registration, unless You are notified in advance by CheckVideo.
c. If Your credit card provided is not valid, or if Your credit card can not be processed at the time of the renewal charge, CheckVideo reserves the right to immediately terminate or suspend Your access to the Website and Services, in the case of termination thereby terminating this Agreement and all of CheckVideo’s obligations hereunder.
d. Billing for Services commences either upon activation of your Services or on the first day after Provider has activated the Services, depending on Your service plan, subject to any applicable promotions. Activation of the Services by Provider takes place upon Your registration on the Website of the equipment associated with your Services. Upon commencement of billing, You will be billed for the term specified by you based on your expiration date for the Services. If You terminate after Activation of the Services You will be charged for the full term.
e. Fees for the Services that can only be paid by a charge card or other credit card. By authorizing Provider to charge a charge card or other credit card, You are authorizing Provider or a designated representative or agent to automatically continue charging that card (or any replacement credit card account if the original card is renewed, lost, stolen, or changed for any reason by the credit-issuing entity, and such entity informs Provider of such new replacement card account), financial account, or billing account for all fees and charges associated with the Website, Services and any related products and software.
f. Provider reserves the right to stop accepting credit cards from one or more issuers. You hereby authorize Provider (or a third-party payment processing service engaged by Provider) to charge and/or place a hold on Your credit card with respect to any unpaid charges for the Website, Services or any related equipment or software. You authorize the issuer of the credit card to pay any amounts described herein without requiring a signed receipt, and You agree that this Agreement is to be accepted as authorization to the issuer of the credit card to pay all such amounts. You authorize Provider and/or a third-party credit card processing service engaged by Provider to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to Your credit card until such amounts are paid in full. You agree to provide Provider with updated credit card information upon Provider’s request and any time the information You previously provided is no longer valid. You acknowledge and agree that neither Provider nor any third-party payment processing service engaged by Provider will have any liability whatsoever for any non-sufficient funds or other charges incurred by You as a result of such attempts to charge, and/or place holds on, Your credit card. If You mistakenly provide a debit card number, instead of a credit card number, You authorize all charges described herein to be applied to such debit card unless and until You provide a credit card number. In the event You are enrolled, or later enroll, in an automatic payment or electronic funds transfer plan, You agree that all sums described herein may be charged, at Provider’s option, to the account number provided for such automatic payment or electronic funds transfer plan.
g. If You believe You have been billed by CheckVideo in error in connection with the Website, Services or any related products or software, You must notify Provider within thirty (30) days of the billing date by contacting Customer Service about the error. Customer Service can be reached at the phone number provided on the Website. CheckVideo will not issue refunds or credits after the expiration of this 30-day period, except where required by law or regulation.
h. If You participate in the EZ SmartCam Program by installing and adding one or more EZ SmartCam devices to the Website, You agree to allow all CheckVideo LLC or its authorized agents to bill your credit card $25 each month for each EZ SmartCam on your account. The minimum billing term is 24 months, beginning on the date Your camera was added to the Website. You agree to pay an early termination fee (ETF) of $100 per device if You delete your EZ SmartCam device before the 24 month term is complete.
13. Intended Use.
a. You acknowledge and agree that the Services and the Website, whether used by you alone or through a third party monitoring company, are a tool to assist in the monitoring of an End User’s premise(s), house, office or property, but not as a security system by itself, a substitute for appropriate, in-person adult supervision of children, the elderly, or others in need of such supervision. You understand that Provider does not monitor any Images or other Data generated by Your use of the Website, Services, or any related products or software, except as set forth in Section B(3) of this Agreement to ensure compliance or exercise related rights under this Agreement, and that Provider does not make any representation or guarantee with respect to the availability or reliability of any such Images or Data, the Website, Services or any related products or software.
b. You agree that You will not use the Services and related products as, or to replace, safety or security devices. Instead, You will use professional security services and appropriate devices such as smoke and carbon monoxide detectors and professional security alarms. You have the right to contract with a Monitoring Service Provider. The Monitoring Service Provider shall use the Application Services as a tool to assist in the monitoring of Your property. We make no representations or guarantees about the way in which the Monitoring Service Provider will provide services to you. You agree not to use the Website, Services and related products and software in a manner that infringes upon or contravenes any privacy rights or any international or domestic intellectual property laws or regulations. You understand that the viewing, recording or copying of images from performances, exhibitions, or neighboring properties, or video-taping someone without their consent, may contravene copyright, privacy, or other legal rights even if the images were obtained for personal use. The Website, Services and related products and software are not intended to be used for the unauthorized monitoring of persons who are rightfully present at the premises being viewed or recorded, and You agree not to use the Services or the Website or any related products or software in such a manner.
d. You agree that You will only use the Services and the Website and any related products and software for the purposes as stated herein. Without limiting the foregoing, You will not use the Services or the Website or any related products or software to view or record any images of tenants or visitors at rental properties, or to monitor areas outside of Your premises.
e. You agree that You will not use the Services or the Website or any related products or software in any manner that (i) constitutes, fosters, or promotes child pornography; (ii) violates a person’s privacy; (iii) creates a risk to a person’s safety or health, creates a risk to public safety or health, or interferes with an investigation by law enforcement; (iv) is illegal under laws applicable to You or Provider; (v) may result in retaliation against Provider by offended persons or entities; or (vi) in any manner that violates any of the provisions of this Agreement.
f. By registering to use the Services, You acknowledge that in using the Services, You will be causing images, data, and perhaps communications to be sent through computer networks of Provider and other companies. As a result, use of the Services may result in the transmission of interstate data and/or communications regardless of where You are physically located at the time of transmission. Accordingly, by agreeing to these Services, You acknowledge that use of the Services results in interstate data transmissions.
g. You agree that You will not upload, post, store, view, transmit, distribute or otherwise publish through the Website or Services any materials that:
i. are unlawful, threatening, harassing, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit, invasive of another’s privacy, hateful, tortuous or indecent;
ii. constitute illegal surreptitious monitoring and/or recording of individuals conducting private activities while rightfully present at the premises being monitored or recorded;
iii. constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law;
iv. violate, plagiarize, or infringe the rights of third parties, including, but not limited to, intellectual property rights, rights of privacy or publicity or any other proprietary rights;
v. contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other harmful components that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
vi. contain any information, software or other material of a commercial nature;
vii. contain advertising of any kind;
viii. constitute or contain false or misleading indications of origin or statements of fact; or
ix. would harm minors in any way.
C. GENERAL TERMS
THE SECTIONS BELOW CONCERN TERMS AND CONDITIONS THAT ARE APPLICABLE TO YOUR USE OF AND/OR ACCESS TO THE EQUIPMENT, EMBEDDED SOFTWARE, WEBSITE AND THE SERVICES.
1. Term; Termination.
This Agreement will be in effect (a) with respect to the Equipment and Embedded Software, as of the date You break the outer seal on the Equipment packaging, install or use the Equipment, or click “Yes, I Agree,” whichever occurs first, and (b) with respect to the Website and Services, as of the date you click “Yes, I Agree,” or access or otherwise use the Website or Services, whichever occurs first, and continue until terminated as provided herein. Termination occurs when You delete all of your CheckVideo devices from the CheckVideo Portal.
This Agreement will terminate immediately without notice if You materially breach any term or condition herein. Upon termination, all rights granted to You under this Agreement will immediately cease. The term of this Agreement shall apply to all of Your subsequent visits and uses and the Products, Website and Services. CheckVideo may, with or without cause, immediately terminate this Agreement, and deny You access to the Website and Services. Without limiting the foregoing, CheckVideo has the right to immediately terminate any passwords or accounts created by You in the event that You fail to pay any amounts that you owe CheckVideo in a timely manner or otherwise breach this Agreement or engage in conduct that CheckVideo, in its sole discretion, considers unacceptable. In the event of termination of this Agreement, your restrictions and CheckVideo’s rights under this Agreement shall survive any such termination.
CheckVideo may, in its sole discretion, immediately issue a warning, temporarily suspend, indefinitely suspend, or terminate Your account if You breach this Agreement or if CheckVideo is unable to verify or authenticate any information You have provided. CheckVideo’s failure to act with respect to a breach by You or others does not constitute a waiver of CheckVideo’s right to act with respect to subsequent or similar breaches. Without limiting any other rights CheckVideo has, You understand and acknowledge that CheckVideo, in its sole discretion, may pursue legal and/or equitable relief against You if You breach or threaten to breach this Agreement.
3. GOVERNING LAW.
This Agreement will be governed by the laws of the Commonwealth of Virginia, without regard to, or application of, rules or principles regarding conflicts of law. The state and federal courts located in Fairfax County, Virginia, shall have sole and exclusive jurisdiction over any disputes arising under this Agreement, and You agree to submit to the personal jurisdiction of such courts. You acknowledge that CheckVideo will have the right to seek an injunction if necessary to prevent a breach of Your obligations hereunder. If any provision of this Agreement is held to be unenforceable, that provision will be disregarded for purposes of the dispute or other circumstance giving rise to such finding, and the remaining provisions will remain in full force. In the event that CheckVideo prevails in any proceeding or lawsuit brought by either party in connection with this Agreement, CheckVideo will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. The failure of CheckVideo to require Your performance of any provision in this Agreement shall not affect CheckVideo’s full right to require such performance at any time thereafter; nor shall the waiver by CheckVideo of any breach of any provision of this Agreement be taken or held to be a waiver of the provision itself.
This Agreement, as well as any software licensing agreements entered into between CheckVideo and You, constitutes the entire understanding between the parties with respect to Your use of the Website or Services. Any cause of action You may have with respect to the use of the Products, Website, Services or related products or software must be commenced within one (1) year after the claim or cause of action accrues. The headings contained in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. You may not assign any of Your rights, interests, or obligations under this Agreement. CheckVideo may assign this Agreement without any prior notice to You. The parties agree that a printed version of this Agreement and of any message, notice or any information given in electronic form shall be admissible in judicial or administrative proceedings based on, arising out of or relating to this Agreement to the same extent and subject to the same conditions as any business documents and records originally created and maintained in printed form. Each of the components that constitute the Products and/or Services and its related documentation is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Products and/or Services and any documentation provided with the Products and/or Services with only those rights set forth in this Agreement.
By clicking the “I Agree” button below or accessing or otherwise using the Website or Services, You are acknowledging, just as if You signed a written contract, that (1) You expressly agree to do business with CheckVideo electronically for the Products, Website and Services covered by this Agreement and (2) You have read the above Agreement in its entirety and agree to abide by all of the terms and conditions herein.
Last Updated: 1/1/15