1.1 All contracts, agreements, arrangements and dealings between Akwyar, Inc. (FEIN: 38- 4070129) (and each of its subsidiaries, affiliates, associated companies and related entities) (Akwyar) and any person using the Application ("User" or "You") are subject to the terms and conditions of use set out in these terms (Terms).
1.2 These Terms shall be deemed to be incorporated into all agreements for the use of the Application (Umbra) by the User. These Terms supersede all prior understandings, arrangements and agreements relating to such use. If there is any inconsistency between these Terms and any other communication from Akwyar, these Terms shall prevail unless specified otherwise in writing by Akwyar.
1.3 By using the Application, You agree to be bound by these Terms. If You do not agree to any provisions of these Terms, You must not access or use the Application.
1.4 Akwyar may amend these Terms at any time at its sole discretion. By continuing to use the Application, the User will be deemed to have accepted any revised terms published from time to time on the Application.
2.1 In order to access the Application, You must register as a User of Umbra.
2.2 Umbra will require Users to provide a profile first and last name, their mobile device phone number or other identification or authentication information that are required to use and access the Application (Access Information).
2.3 You are solely responsible for the activity that occurs on Your account, and You must keep Your Access Information secure and protect it from unauthorized access or use. If You suspect or become aware of any unauthorized use of Your account or that Your Access Information is no longer secure, You agree to notify Akwyar immediately.
3.1 Akwyar provides the Application as an interface into the System (Angelus), through which Users can send and receive real time emergency relevant information and data to/from appropriate entities that may include as appropriate (a) personal contacts You nominate and/or accept, (b) first responders / emergency services, (c) other Government / public sector entities, (d) entities responsible for public places including places of mass gathering / similar, (e) private companies relevant to and authorized by You such as employer(s). (Services).
3.2 The information that We collect in providing the Services is based on the information that You provide to Us by Your use of the Application and by certain mobile device permissions with Your consent. By accessing the Application, You consent to Us:
3.3 Alert Mode Information is generally de-identified and will only be capable of identifying You personally to recipients that You have chosen or choose to identify Yourself to.
3.4 You consent to Us collecting the Alert Mode Information at routine intervals during the period within which the Alert Mode remains active.
3.5 At all times, You have control over the type of information that You provide and that We and Alert Mode Information Recipients receive.
4.1 Akwyar grants You a worldwide, non-exclusive, non-transferable, non-sublicensable right to access and use the Application in accordance with these Terms.
4.2 Akwyar warrants and represents that it is the owner or licensee of the System and the Application and that in accessing the Application in accordance with this agreement, You will not infringe the Intellectual Property Rights of Akwyar or any third party.
4.3 You may not access or use another User's account and may not cause or allow another person to use Your account, other than as expressly allowed under these Terms.
4.4 Akwyar may in its sole discretion terminate a User's account or restrict a User's access to the Application for any reason, including but not limited to a breach of clause 7.1 of these Terms. If this occurs in respect of Your account, You may be prevented from accessing all or parts of the Application, including Your account details or other content contained in Your account. Akwyar will not be liable to You or any third party for terminating a User's account or restricting User's access to the Application.
4.5 If Your account is restricted or terminated by Akwyar three or more times, Akwyar may, in its sole discretion permanently bar You from accessing and using the Application.
5.1 You are solely responsible for the legality, reliability, integrity, accuracy and quality of Your Information, including all data, recordings and locations that You report using the Application.
5.2 You continually warrant that You are the owner or licensee of all of Your Information; that You have all rights and consents required to provide Your Information to Akwyar; and that Akwyar's use of Your Information in accordance with this these Terms will not infringe the Intellectual Property Rights or any other rights of any third party.
5.3 While You remain a User, Akwyar may analyze the way in which You use the Application for the purposes of developing the System and the Application. You acknowledge that any insights created by Akwyar in doing this is the sole and exclusive property of Akwyar. Akwyar will not use any information that personally identifies You in the process of these analytics.
5.4 You grant to Akwyar a worldwide, non-exclusive, fully transferable, sub-licensable right to access and use Your Information for the purpose of providing access to the Application and undertaking an analysis of the use of the Application.
5.5 Akwyar continually warrants that it will never disclose Your Information without Your consent. Your consent is given by You uploading Your Information to the Application.
6.1 You agree that Akwyar may conduct maintenance of the System and/or Application from time to time.
6.2 Akwyar may provide You with updates to the Application from time to time to enhance or improve the quality, functionality or operation of the Application (Update). Akwyar may or may not require You to accept the Update. You acknowledge that if You fail to accept an Update, Your ability to access or use the Application may be adversely impacted.
6.3 You agree and acknowledge that:
7.1 You must not:
8.1 You acknowledge and agree that services supplied to You by Akwyar come with guarantees that cannot be excluded under United States Consumer Law. Nothing in these Terms purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights which cannot be modified or excluded.
8.2 Where any law implies a warranty into this agreement which may not be lawfully excluded then to the extent allowed by law (Warranty), any liability imposed upon Akwyar in respect of a breach of Warranty will at its option be limited to:
8.3 To the extent permitted by law, the following are not covered by Warranty:
8.4 To the extent permitted by law, Akwyar shall not be liable for any indirect or consequential damage, losses or expenses suffered or incurred by You, howsoever caused.
9.1 You acknowledge and agree that Akwyar provides a data transmission service only and makes no warranties or representations of any kind in respect of its capability to respond to emergency and/or life-threatening situations. You are always responsible for Your safety and response to emergency or catastrophic events.
9.2 You acknowledge and agree that any information provided by Akwyar in this Application is general in nature and is not advice, analysis, assessment or recommendation for Your safety.
9.3 You acknowledge that:
9.4 Akwyar will endeavor to provide the Application and any services to You with due care and skill but does not warrant that any services will be provided without fault or disruption. To the extent allowed by law, Akwyar excludes all liability to You or anyone else for loss or damage of any kind (however caused or arising) relating in any way to the System or the Application including, but not limited to, loss or damage You might suffer as a result of:
10.1 Akwyar is not responsible for any typographical, technical, or descriptive errors contained in the Application. If Akwyar becomes aware of the existence of such an error, it will do all things reasonably necessary to rectify such an error.
11.1 In granting You access to the Application, Akwyar does not confer on You any assignment of any Intellectual Property Rights that subsists in the System or the Application, or any other materials owned or supplied by Akwyar. You agree that You will not assert any rights in, or challenge Akwyar's title to, those Intellectual Property Rights.
11.2 The User acknowledges that Akwyar retains ownership of all rights, title, interest and goodwill in the Intellectual Property Rights that subsists in the System or the Application, or any other materials supplied by Akwyar.
11.3 You are not permitted to assign, transfer or sub-license any of the rights granted to You by Akwyar to any related party or any unrelated third party without the express consent in writing of Akwyar. Akwyar may withhold such consent in its absolute discretion or may grant consent on such terms as it considers fit.
11.4 You shall not re-publish, transfer, copy, reproduce or post any of Akwyar's materials without Akwyar's prior written consent.
11.5 If You correspond or otherwise communicate with Akwyar, You grant to Akwyar an irrevocable, perpetual, non-exclusive, royalty-free, world-wide license to use, copy, display and distribute the content of Your correspondence or communication and to prepare derivative works of the content or incorporate the content into other works in order to publish and promote such content. This may include, but is not limited to, testimonials, ratings and review on the App, in the Apple App Store or Google Play, or on Google or any search engine, and developing Your ideas and suggestions for improved products or services Akwyar provides.
12.1 In the event that Akwyar merges, sells or otherwise undergoes a change in control of its business or the System and/or the Application to a third-party, it reserves the right, without giving notice or seeking consent, to transfer or assign this agreement between You and Akwyar.
13.1 In registering as a User, You may provide Akwyar with Personal Information. When Akwyar does collect Personal Information for the purposes of generating a User account, such information will be provided by that User and may include the User's personal name and mobile device phone number.
13.2 You must have all necessary consents to disclose and/or provide any Personal Information, and You warrant that You have procured those consents.
13.4 Akwyar will not provide Your Personal Information to government agencies, organizations or anyone else unless:
14.1 You will at all times indemnify, and agree to keep indemnified, Akwyar and its directors, officers, employees and agents from and against any loss (including reasonable legal costs and expenses on a full indemnity basis) or liability incurred or suffered by You or by Akwyar arising from any claim, demand, suit, action or proceeding by any person against You or against Akwyar where such loss or liability arose out of, in connection with or in respect of Your use of the Application, or breach of these Terms, including any costs of enforcement.
15.1 If Akwyar does not exercise or enforce any right or provision under this agreement, it will not constitute a waiver of such right or provision. Any waiver of any provision under this agreement will only be effective if it is in writing and signed by Akwyar.
16.1 These Terms and any agreement between Akwyar and a User will be governed by, interpreted under and construed in accordance with the internal laws of the State of Delaware, USA. You irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Delaware, USA.
16.2 If any part of this agreement is found to be void, unlawful or unenforceable, then that part will be deemed to be severable from the balance of these Terms or any agreement between Akwyar and its Users, the severed part will not affect the validity and enforceability of any remaining provisions.
Application means the mobile software providing an interface into the System.
Intellectual Property Rights means all intellectual property rights (whether created before, on or after the date of this Agreement and whether registered or unregistered) in respect of copyright, any patents, trademarks, logos, designs, software, domain names, business or trade name, together with marketing concepts and designs, product knowledge, training systems and materials, protection of confidential information, circuit layouts, inventions, know-how, product or business concepts, details of product development, and any other identifiable result of intellectual endeavor, whether arising under statute or otherwise or any similar industrial property right or any right to, or application for registration of, any of them.
Force Majeure means any act or event caused by any factor that is not within the reasonable control of Akwyar, including without limitation, act of God; war; national emergency; cyber-attack; explosion; damage to telecommunications infrastructure or internet services or Akwyar's failure or delay.
Insights means the derived results from insights and analytics of the System and the Application including Your use of the Application as compiled by Akwyar or its agents or contractors.
Personal Information is any information that can be used to personally identify you. If the information we collect personally identifies you, or you are reasonably identifiable from it, the information will be considered Personal Information.
System means the software known as Angelus and all its associated services and/or functionality and which is accessible through the Application together with all Akwyar's Intellectual Property Rights attaching to or in respect of it.
Virus means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Your Information means all data, records and information relating to You provided by You to Akwyar in connection with the Application, including without limitation images and audio recordings collected from Your device.
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