IF YOU ACCESS AND/OR USE A FULL RECOVERY EDUCATIONAL ENTERPRISES (“FREE”) SOFTWARE, MOBILE- OR WEB-BASED APPLICATIONS ON WHICH IT RUNS OR ANY INCLUDED DOCUMENTATION (together the “Software”), YOU ACKNOWLEDGE THAT (a) YOU HAVE READ THESE TERMS OF USE; (b) YOU UNDERSTAND THESE TERMS; and (c) THESE TERMS GOVERN YOUR ACCESS TO, AND USE OF, THE SOFTWARE AND CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND FR.
IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR DO NOT WISH TO ENTER INTO A BINDING AGREEMENT WITH FREE ACCORDING TO THESE TERMS, YOU SHOULD REJECT THEM BY NOT INSTALLING AND NOT USING THE SOFTWARE.
References in this Agreement to “you” or “your” refer to both you and any and all persons or entities on whose behalf you act or who act on your behalf (if any).
This document is legally binding, so you should read it in its entirety. Essentially, by using the Software or any electronically accessed or accessible product, system, or application of or provided by FREE, you agree to the following:
- FREE provides educational services. Neither FREE nor the Software provides medical advice, nor does FREE or the Service diagnose or identify or treat any condition, symptom, disease, illness or medical condition.
- We can summarize and de-identify the data we collect from you, so we can build a better and more helpful product. You own your identifiable personal data, but we own any data derived therefrom or incorporating same to the extent that your personally identifiable data cannot be discerned or readily associated with you.
- FREE can collect data from you. This includes answers to health-related questions and summarized information, such as texting, that your phone provides.
- We can share the information we get from you with your healthcare provider (to the extent they are granted access to your information) or anyone else you’ve chosen to receive this information.
- You understand and confirm that FREE is not a licensed medical provider and does not provide medical care or emergency services.
- FREE owns this app and you have a license to use it in accord (and only in accord) with these Terms of Use.
YOU AGREE THAT THE SOFTWARE IS NOT INTENDED TO BE USED FOR MEDICAL EMERGENCIES, SELF-DIAGNOSIS OR MEDICAL ADVICE. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER REGARDING A MEDICAL CONDITION OR TREATMENT.
1. Grant of License. Subject to these Terms of Use, FREE hereby grants to you a personal, non-transferable, non-exclusive, revocable, limited license to install and use the Software on your mobile device for the following purposes: (a) the inputting of responses to inquiries and questions relating to your feelings and state of mind, and/or participating in a study or program from or with a designated third-party (the “Institutional Client”), (b) and/or tracking and analyzing your mobile interactions and responses to questions and inquiries for purposes of monitoring, predicting, and/or reporting certain data, information and responses to such Institutional Client and/or to you and/or your doctor/healthcare provider/counselor, and directing your attention to certain other features or aspects of the Software which may be responsive to your inputs. FREE may change or discontinue, temporarily or permanently, any feature or component of the Software at any time without notice.
2. Software Use Restrictions. You shall not sublicense, distribute, hypothecate, lease, loan or otherwise convey or transfer the Software or any portion or use thereof to anyone, and under no circumstance may you use or allow the use of the Software in any manner other than as expressly set forth above. You shall not modify the Software, incorporate the Software in whole or in part in any other product or create derivative works based on all or part of the Software. You shall not remove any copyright, trademark, proprietary rights, disclaimer or warning notice(s) included on or embedded in any part of the Software. Except to the extent permitted by applicable local law, you shall not reverse assemble, decompile or disassemble or otherwise reverse engineer any portion of the Software. If you dispose of any media embodying Software, you will ensure that you have completely erased or otherwise destroyed any Software stored on such media. YOU ARE SOLELY RESPONSIBLE FOR USING THE SOFTWARE IN ACCORDANCE WITH ALL APPLICABLE INTERNATIONAL, FEDERAL, STATE AND LOCAL LAWS. The Software is available for individuals of legal majority in the applicable jurisdiction of such individual. Each user is solely responsible for ensuring that he/she has attained legal majority in each jurisdiction in which use is made or proposed to be made of the Software. You represent that you are using the Software solely for the purposes set forth herein. If you are registering or using the Software on behalf of a company, healthcare institution or provider, or other organization, you represent that you have authority to enter into this Terms of Use and may bind such company, healthcare institution or provider or other organization hereunder by your actions. In order to access certain areas of the Software, you will create a user account and login (a “User Account”). You may never use another party’s User Account without such party’s express written authorization. You agree that all information which you provide through the Software in connection with creating your User Account or otherwise is current, accurate and complete. You are solely responsible for all activity that occurs with respect to your User Account. You are solely responsible for maintaining the confidentiality of your User Account and keeping the username and password to your User Account secure. You agree to notify us immediately of any security breach or unauthorized use of your User Account. We will not be liable for any costs, losses, claims or damages that you or any third party incur which are directly or indirectly caused by any unauthorized use of your User Account. For more information about your User Account and the Account Data (as defined below) contained therein, please see paragraph 8 below, titled “Login Information and Access”.
3. Copying Restrictions; Use of Content. You may install the Software onto your mobile device (a “Copy”), and you may make one Copy of the Software for use consistent with these Terms of Use. You agree that (i) your use and possession of such copies shall be solely under the terms and conditions of this Agreement, and (ii) you shall place the same proprietary and copyright notices and legends on all such copies as included by FREE on any media embodying an authorized copy of the Software originally provided by FREE. Except as expressly described in this paragraph, you may not copy the Software. Except as otherwise expressly stated herein, the text, images, data, illustrations, files, audio and video clips, designs, documents, and other materials and content (collectively, the “Content”) on the Software is our property and may be protected by copyright and other restrictions. Copyrights and other proprietary rights in the Content may also be owned by parties other than us. You may not copy, modify, distribute or otherwise use any of the Content, except for your personal and non-commercial use in accord with these Terms of Use. Please note that we may withdraw any Content from the Software at any time in our sole discretion. By downloading, printing, or otherwise using any of the Content, you agree that you will (i) restrict your use of such Content to personal and non-commercial use, (ii) comply with all of this Agreement, and (iii) refrain from violating FREE’s rights or the rights of any other person or entity. We do not warrant that use of any of the Content will not infringe the rights of third parties. Unauthorized commercial publication or exploitation of text, images, documents, materials or any other Content is prohibited without our express written consent.
4. Disclosure Restrictions; Disclosure. You acknowledge that the Software, including the source code for the Software and any information derived therefrom, is proprietary to, and constitutes the intellectual property (including without limitation a valuable trade secret) of, FREE. If you should gain access to such materials, you shall not disclose them to anyone and shall immediately disclose to us the information, materials and/or access that you received and the circumstances around such receipt.
5. Ownership of Software. You agree and acknowledge that (i) the Software is licensed to you, not sold, and FREE transfers no ownership interest in the Software, in the intellectual property in any Software or in any Software copy, to you under this Agreement or otherwise, (ii) that FREE and its licensors reserve all rights not expressly granted to you hereunder, (iii) FREE or its licensors own the Software (including, but not by way of limitation, any code, images, algorithms, photographs, animations, video, audio, music and text incorporated in the Software), (iv) subject to your privacy rights in any personally identifying information and applicable law, FREE owns the data collected via the Software and has the right to use such data in accordance with these Terms of Use, and (v) the Software is protected by law, including without limitation the United States copyright law and international treaties relating to protection of copyright. The Software includes, and this Agreement will cover, any versions, updates, upgrades or bug fixes for the Software provided to you.
6. User Data. (a) After installation, personal information and health and state of mind and other information provided by you either in response to specific queries or otherwise, and data related to your mobile interactions which is collected by, or by your use of, the Software (either in response to your specific action or otherwise) (the “User Interaction Data”) will be uploaded to FREE’s servers (collectively “Unprocessed User Data”). Such Unprocessed User Data includes, but is not limited to your responses to specific queries or prompts, your communications by means of the Software, your responses to questionnaires or queries, distributions and variations in communication, mobility, interactions with others, phone usage, inferred health status for specific conditions, and alerts, call information, SMS information, location information, accelerometer information, smartphone actions, and smartphone screen-time related to, or resulting from, your use of the Software. (b) Subject to your privacy rights in such information and applicable law, you transfer ownership of all Unprocessed User Data to FREE. (c) You agree that User Survey Data may be provided to Institutional Client. (d) Subject to these Terms of Use you agree that FREE may use Unprocessed User Data for the purposes of carrying out FREE’s obligations and rights hereunder, including without limitation the use of Unprocessed User Data for analyzing, monitoring, predicting, and/or reporting certain health-related factors, and generating statistical information, summaries and/or reports thereof, and for its own purposes, including its business purposes, and, without limitation, for purposes of aggregating information and data for sale or license to third parties. (e) Subject to applicable law, you agree not to assert any claim, whether based on tort, contract, or other legal theory, against FREE or its sub licensees relating to FREE’s or its sub licensees’ use of the Unprocessed User Data in accordance with these Terms of Use, and you hereby release FREE and its sub licensees from any such claims.
7. Privacy Policies. (a) FREE’s policy is to respect and protect your privacy. FREE uses any personally identifiable information solely for the business purposes for which it was collected, in accordance with these Terms of Use. (b) You acknowledge and agree that FREE and/or the Institutional Client may use your personally identifying information for the applicable study or program deployment, surveys and/or your care by the FREE and/or healthcare provider. Subject to applicable law, FREE will use commercially reasonable efforts to remove your personally identifying information and Unprocessed User Data from FREE’s servers upon your written request; provided however, we only have the ability to remove such data from our own servers and not those of the Institutional Client or your healthcare provider; and provided further that we have no ability to delist, remove, delete or block access if and to the extent that such Unprocessed User Data has been sold to a third-party. (c) In accordance with these Terms of Use, FREE has the right to maintain, use and share the data/information collected by the Software in anonymized or de-identified form at any time (including following such request, or following the termination of this Agreement).
8. Login Information and Access. FREE may issue to you, or prompt you to provide, a username/password for login to download, access and use the Software by way of a User Account, which may require you to provide personally identifying information to complete the applicable online forms to establish your username/password or account with FREE (“Account Data”). You agree to provide, maintain and update true, accurate, current and complete Account Data, and represent that you will not misrepresent your identity or your affiliation with any person or entity. FREE reserves the right to authenticate any information you provide. You shall be responsible for all use and access of the Software by means of usernames/passwords issued to you. You will notify FREE promptly of any unauthorized use of your username/password or account or any other known or suspected breach of security, or other occurrence requiring username/password or account cancellations or changes. FREE cannot and does not assume any responsibility or liability for any information submitted by someone who has fraudulently accessed your account or for any third party’s fraudulent use or misuse of information submitted by you. You acknowledge and agree that you will not provide any information or material to us or the Site that is defamatory, threatening, obscene, harassing, purposefully inaccurate, incorrect, misleading, or otherwise unlawful, or that incorporates the proprietary material of another person or entity.
9. Feedback. FREE may ask for your feedback regarding your use and evaluation of the Software, including, without limitation, any problems encountered in the Software (the “Evaluation Data”). If such Evaluation Data is provided to FREE, it will be deemed and remain the sole property of FREE, and will not be subject to any obligation of confidence on the part of FREE. Additionally, FREE shall have all ownership, right, title and interest in and to the Evaluation Data and any and all intellectual property and proprietary rights thereto and therein. You hereby transfer and assign to FREE any and all intellectual property rights you may have in and to the Evaluation Data and agree to cooperate with FREE to perfect FREE’s sole and exclusive ownership in and title to the Evaluation Data.
10. Transfer and Export Restrictions; Non-Malicious Use. You may not sublicense, delegate, assign or otherwise transfer this Agreement, the license granted herein, or any other of your rights or obligations under this Agreement, in whole or in part. You may not export or re-export any Software. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Software in a manner that sends more request messages to the Software’s servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, we may grant the operators of public search engines permission to use spiders to copy materials from the Software for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. We reserve the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Software, nor to use the communication systems provided by the Software, for any purposes or any reason or under any condition. You agree not to circumvent, disable or otherwise interfere with security-related features of the Software or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Software or the Content.
11. Information Collected and Stored; Cookies and Web Beacons; Disclosure to Third Parties. We may automatically gather and store the certain information about your visit so that we can monitor the use of the Software in order to make improvements and better serve users and other constituencies. Other than to contact you with follow up information or in order to provide products and services or information regarding our products and services (such as newsletters) to you, this following information may be collected and stored:
- email address, phone number, physical contact information, and (depending on the service used) sometimes financial, insurance and health-related information, such as credit card or bank account numbers and insurance carrier information;
- User Account information, such as user login and password information;
- the location and IP address from which you access the Software;
- the name of the domain from which you access the internet;
- the type of device, browser and operating system used to access the Software;
- the date and time you access the Software, duration and stop time of such access;
- the information about any person or entity from whom you were referred;
- the pages, files, documents and links that you visit; and
- the internet address of a website or mobile application from which you linked to the Software.
We may also collect cookies, which are small pieces of information sent to your browser or device by a website or application that you access. We may use cookies to compile and provide aggregate statistics about the Software’s visitors, traffic patterns, and related information to third parties, but such information may not identify you personally. Cookies may help us adjust the content of the Software and provide better service to users. You may set your settings to refuse cookies from any website or mobile application that you access. If you refuse cookies, you may still gain access to the Software, but you may not be able to conduct certain types of activities. The Software may contain electronic images known as web beacons (sometimes called single-pixel gifs) that may be used to assist in delivering cookies on the Software and allow us to count users who have visited the Software. We may include web beacons in promotional e-mail messages or our newsletters in order to determine whether messages have been opened and acted upon.
At times, in order to provide products and services or market to customers, we may make certain personal information available to strategic partners with whom we work. We may share personal information with parties who provide services such as information processing, extending credit, fulfilling customer orders, delivering products, managing and enhancing customer data, providing customer service, assessing interest in our products and services, and conducting customer research or satisfaction surveys. Except as required pursuant to law, legal process, litigation, or requests from public and governmental authorities, we only share personal information to provide or improve our products, services and advertising; it will not be shared with third parties for their marketing purposes. In the event of a reorganization, merger, or sale, we may transfer any and all personal information we collect to the relevant third party. We may, from time to time, send you e-mail about your User Account, orders or pricing changes. We may also send you e-mail with general information or special offers about products and services that may be of interest to you. In most cases, we will give you an opportunity to accept or decline the receipt of promotional e-mail.
12. Breach and Termination. With or without notice, FREE, in its sole discretion, has the right at any time to suspend or terminate your access to the Software (and terminate this Agreement, other than such terms which specifically survive termination), if you are in breach of these Terms of Use or using the Software in a manner that impairs the operation of the Software, causes or threatens to cause harm to FREE’s systems, servers, other users of the Software, that violates the these Terms of Use, or is otherwise harmful to FREE or FREE’s intellectual property, brand or good-will.
13. Enforcement of Terms; Effect of Termination. If you fail to fulfill any of your obligations under this Agreement, FREE and/or its licensors may pursue all available legal remedies available to them. You agree that FREE’s licensors are third-party beneficiaries of this Agreement, and may enforce this Agreement as it relates to their intellectual property. Upon any termination of this Agreement, your license to use the Software shall terminate and you shall promptly uninstall and remove the Software from the mobile device on which it was installed (and promptly uninstall, delete or destroy your authorized backup or archival copy).
14. Assumption of Risk. The Software and any related data supplied to you by FREE does not provide medical advice or counsel and is not a substitute or source for medical treatment or mental health or substance abuse counseling or recover counseling. It is a tool pursuant to which you may track certain data and be referred to certain materials which may be responsive or relate to data or information you provide. By granting you the right to use the Software, FREE does not assume any obligation or liability with respect to your health or your physical activity or condition. In no event shall FREE be liable for any death or bodily injury that you suffer, or that you cause to any third party, in connection with your use of the Software or any activity you undertake in connection with your use of the Software. As between you and FREE, you are solely responsible for your use of the Software and your health and medical condition and treatment related thereto. FREE shall have no liability for any unauthorized disclosure of your personally identifiable information due to your actions or omissions or that of your healthcare provider.
YOU AGREE THAT: (i) IF YOU ARE IN NEED OF OR ARE SEEKING MEDICAL TREATMENT OR EMERGENCY CARE OR COUNSELING OF ANY KIND, YOU SHOULD CONTACT YOUR HEALTHCARE PROVIDER OR CALL 911 IMMEDIATELY; (ii) FREE DOES NOT PROVIDE MEDICAL TREATMENT OR ADVICE AND IS NOT A HEALTHCARE PROVIDER OR A REFERRAL TO HEALTHCARE PROVIDERS; (iii) YOU WILL NOT LEAVE ANY MESSAGES WITH, OR SEND ANY EMAILS TO, FREE WITH RESPECT TO YOUR MEDICAL CONDITION, AS FREE IS NOT YOUR HEALTHCARE PROVIDER, IS NOT AND DOES NOT PROVIDE 911 OR OTHER EMERGENCY SERVICES, AND CANNOT CONTACT YOU OR ANYONE ON YOUR BEHALF WITH RESPECT TO YOUR MEDICAL CONDITION OR TREATMENT; (iv) DATA PROVIDED BY FR THROUGH THE SOFTWARE IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO REPLACE THE RELATIONSHIP BETWEEN YOU AND YOUR PHYSICIAN, COUNSELOR, MENTAL HEALTH PROFESSIONAL, OR OTHER HEALTHCARE PROVIDER; (v) FREE IS NOT A LICENSED MEDICAL CARE PROVIDER AND HAS NO EXPERTISE IN DIAGNOSING, EXAMINING, OR TREATING MEDICAL CONDITIONS OF ANY KIND, OR IN DETERMINING THE EFFECT OF ANY SPECIFIC TREATMENT ON A MEDICAL CONDITION; (vi) YOU SHOULD ALWAYS CONSULT A PHYSICIAN IF YOU HAVE ANY QUESTIONS REGARDING A MEDICAL CONDITION; (vii) NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ OR RECEIVED USING THE SOFTWARE; (viii) FREE HAS NO LIABILITY WITH RESPECT TO ANY SURVEY OR RESEARCH/MEDICAL PROGRAM OR STUDY WITH WHICH YOU MAY BE USING THE SOFTWARE; AND, (ix) FREE IS NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, EFFECTIVENESS, OR CORRECT USE OF INFORMATION YOU RECEIVE THROUGH OR IS GENERATED BY THE SOFTWARE.
You agree that FREE shall not be liable to you or to any third party for any unavailability, modification, suspension or discontinuance of any feature or component of the Software.
To the extent FREE provides links or references to websites operated by third parties, FREE does not monitor or investigate such websites and we are not responsible for the content, functionality, or practices of such websites. Inclusion of links to third party websites does not imply approval or endorsement of the linked website by us. If you decide to access these third-party websites, you do so at your own risk. You agree that FREE has no liability for any damage or loss of any type that is a result of your use of a third-party website.
15. Disclaimer of Warranty. FR PROVIDES THE SOFTWARE TO YOU “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; AND, FREE HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES. FREE MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE IS ACCURATE, COMPLETE OR UP-TO-DATE. FR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE USE OF THE SOFTWARE, THE RESULTS THEREFROM, OR THE USE OF ANY DATA (INCLUDING WITHOUT LIMITATION DATA PRODUCED BY THE SOFTWARE) OR INTERACTIONS OF ANY USER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY FREE EMPLOYEE, REPRESENTATIVE OR DISTRIBUTOR SHALL CREATE A WARRANTY FOR THE SOFTWARE, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. FREE’s LICENSORS EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE. FREE DOES NOT WARRANT THAT THE SOFTWARE, OR ACCESS THERETO OR USE THEREOF, WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SOFTWARE WILL MEET ANY END USER’S REQUIREMENTS OR ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY STANDARDS. FROM TIME TO TIME, THE SOFTWARE MAY BE INACCESSIBLE OR INOPERABLE FOR ANY REASON, INCLUDING EQUIPMENT MALFUNCTIONS, SOFTWARE UPDATES, MAINTENANCE AND REPAIRS AND CAUSES BEYOND OUR CONTROL OR THOSE THAT ARE NOT REASONABLY FORESEEABLE. WE MAKE NO GUARANTEES WITH RESPECT TO THE AVAILABILITY OR UPTIME OF THE CONTENT OR ACCESS TO THE SOFTWARE. WE MAY CONDUCT MAINTENANCE ON ANY OF THE FOREGOING AT ANY TIME WITH OR WITHOUT NOTICE TO YOU. TRANSMISSIONS OVER THE INTERNET ARE NEVER 100% SECURE OR ERROR-FREE. WE TAKE REASONABLE STEPS TO PROTECT YOUR PERSONAL INFORMATION FROM LOSS, MISUSE, AND UNAUTHORIZED ACCESS, DISCLOSURE, ALTERATION AND DESTRUCTION. FREE MAY USE CERTAIN TRUSTED THIRD PARTIES TO HELP US PROVIDE, IMPROVE, PROTECT, AND PROMOTE OUR SERVICES. THESE THIRD PARTIES WILL ACCESS YOUR INFORMATION ONLY TO PERFORM TASKS ON OUR BEHALF AND IN COMPLIANCE WITH THIS AGREEMENT. FREE DOES NOT WARRANT THAT ANY FUNCTIONALITY, INCLUDING WITHOUT LIMITATION ANY SECURITY MEASURE OR SECURITY FEATURE, PROVIDED HEREUNDER WILL BE ERROR-FREE, UNBREAKABLE, UNBREACHABLE, VIRUS FREE, OR INVIOLATE; AND, END USERS ASSUME THE ENTIRE RISK (AND ARE SOLELY RESPONSIBLE) THAT, NOTWITHSTANDING ANY SECURITY OR OTHER MEASURE THAT MAY BE PROVIDED BY FR OR ITS LICENSORS HEREUNDER, THE SOFTWARE AND/OR THE DATA PROCESSED THEREBY MAY BE CORRUPTED, COMPROMISED, INACCESSIBLE OR LOST. THE SOFTWARE IS NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FR SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
16. Limitation of Liability; Indemnification. IN NO EVENT SHALL FR OR ITS LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION THE DAMAGES ARISING FROM LOSS OF DATA, USE, PROFITS OR GOODWILL), WHETHER OR NOT FREE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ANY THEORY BASED IN TORT, CONTRACT OR OTHERWISE). THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. WITH THE EXCEPTION OF CLAIMS ARISING FROM FREE’S BREACH OF THE PRIVACY POLICY (FOR WHICH DAMAGES ARE LIMITED TO THE COST OF REQUIRED NOTICES UNDER APPLICABLE LAW AND ANY ADDITIONAL COSTS INCURRED BY YOU UP TO A MAXIMUM OF $1,000 IN THE AGGREGATE), FREE’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR YOUR USE OR POSSESSION OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY CLAIMS IN TORT (INCLUDING NEGLIGENCE), CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY OR OTHERWISE, AND FOR ANY AND ALL CLAIMS COMBINED, WILL NOT EXCEED THE AMOUNT YOU PAID TO INSTALL THE SOFTWARE OR US $100, WHICHEVER IS GREATER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON CERTAIN TYPES OF DAMAGES, SO THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.
Upon request by us, you agree to defend, indemnify and hold FREE and its partners, affiliates, Use providers, licensors, officers, directors, employees and agents harmless from and against any and all losses, liabilities, damages and costs, including but not limited to reasonable legal and accounting fees, arising from any claims, actions or demands related to or alleged to relate to: (a) your violation of this Agreement; or (b) your violation of any intellectual property or other third party rights or any applicable law in connection with your use of the Software. We reserve the right to assume control of the defense of any third party claim that is subject to indemnification by you, in which event you will cooperate with us.
17. Notices. Notices to you hereunder shall be sent to the address provided by you when you registered to download and install the Software. Notices to FR shall be sent to:
Each party may change such address upon written notice to the other party.
18. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, USA without regard to its conflicts of laws provision. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties hereby consent to, and hereby agree that any and all disputes hereunder shall be submitted to binding arbitration using a single arbitrator and the rules promulgated by the American Arbitration Association. The decision of the arbitrator shall be binding on the parties and may be entered into a court of competent jurisdiction. All such arbitration shall be conducted in New Jersey. In the event of a breach, or threatened breach, of this Agreement by you which may harm the intellectual property or proprietary rights of FREE (or its licensors/suppliers), the parties agree that (i) FREE may suffer irreparable harm for which monetary damages may be insufficient as a remedy, (ii) FREE shall be entitled to seek injunctive or other equitable relief, (iii) no bond or surety shall be required to be posted for such relief, and (iv) such relief shall be in addition to any and all other remedies in law or in equity to which FREE may be entitled.
19. Complete Agreement; Waiver; Severability. This Agreement contains the complete and entire agreement and understanding of the parties regarding the subject matter hereof, and supersedes all proposals, oral or written, all negotiations, conversations, discussions and all past course of dealing between you and FREE relating to the Software or the terms of its license to you. In the event, any term of this Agreement is held by a court of competent jurisdiction to be unenforceable, such unenforceability shall not affect the remaining terms of this Agreement in such jurisdiction or render unenforceable or invalidate such terms and provisions of this Agreement in other jurisdictions. Upon such determination that any of the terms or provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they shall be severed from this Agreement and the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect the intent of the parties and the parties agree to replace any invalid or unenforceable provisions in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. FREE’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless such waiver is in writing and signed by FREE.
20. Consent to Electronic Contracting. You agree that execution of this Agreement may occur by your manifesting your acceptance of it when you installed or used the Software, and that no signature on a paper copy of this Agreement is required in order to form a binding contract.
21. Force Majeure. FREE shall not be liable for failure to perform any of its obligations hereunder, or under the these Terms of Use, during any period in which such performance is delayed or impracticable due to circumstances beyond FREE’s reasonable control, including without limitation earthquakes, fire, flood, war, embargo, strike (other than FREE’s employees), riot, civil unrest, inability to secure materials, transportation, or power/utilities, intervention of any governmental authority, or acts of God/nature.
22. No Joint Venture; Independent Contractors. The parties will at all times be independent contractors and will so represent themselves to all third parties. Neither party has granted to the other the right to bind it in any manner whatsoever and nothing herein will be deemed to constitute either party the agent or legal representative of the other nor to constitute the parties as joint ventures.
23. Assignment. Any attempted assignment, sublicense, transfer, encumbrance of this Agreement (or of any of your rights or obligations herein) by you shall be void and shall constitute a material breach of this Agreement. This Agreement shall be binding upon and inure to the benefit of FREE’s successors and assigns.
45. Modifications to this Agreement. We may make changes to these Terms of Use from time to time. A link to the most current Terms of Use that will govern your use of the Software will be available on the FREE website and we will indicate the date of the latest update at the bottom of the posted Agreement. We may also place a special notice on the website or communicate significant changes by email. Your continued use of the Software following the posting of such changes constitutes your acceptance of the amended Agreement.
*** YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. ***