END USER LICENSE AGREEMENT
Last Revised: March 14, 2024 Ver: 4314
PLEASE READ THIS AGREEMENT CAREFULLY.
This End User License Agreement (the “Agreement”) is a contract between you (“You” or “Your” (whether capitalized or not)) and EVERYWHERE Communications, Inc. (“EVERYWHERE”), for Your use of the Products and Services (as defined herein). The term “You” also includes Authorized Users.
PLEASE READ THIS AGREEMENT CAREFULLY. EVERYWHERE PROVIDES THE PRODUCTS AND SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY CLICKING THE "ACCEPT" BUTTON OR BOX OR OTHER MEANS PROVIDED FOR ACCEPTANCE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU ARE A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE PARTY WHO ENTERED INTO THE COMMERCIAL AGREEMENT WITH EVERYWHERE AND BIND SUCH PARTY TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, EVERYWHERE WILL NOT AND DOES NOT LICENSE THE PRODUCTS AND SERVICES TO YOU AND YOU MUST NOT DOWNLOAD OR INSTALL THE PRODUCTS AND SERVICES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY PRODUCTS AND SERVICES THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF EVERYWHERE'S PRODUCTS AND SERVICES.
1. Definitions. Capitalized terms used in this Agreement shall have the meaning set forth in this Section 1:
“Airtime” means the Iridium mobile satellite services powered by Iridium’s constellation of low-earth orbiting (LEO) satellites, the ground network and Iridium communication equipment.
“Authorized User” means any individual person who is licensed to use the Products and Services and who is designated by you as being entitled to use the Products and Services.
"Cellular Network” means, for purposes of this Agreement, a network of wireless carriers that enable the transmission of data including, but not limited to Messages, to and from mobile devices such as Smartphones.
“Charges” means the service fees and other charges paid by Commercial Party to EVERYWHERE for use of the Products and Services under the Commercial Agreement.
“Commercial Agreement” means the agreement (including all ordering documents issued thereunder) entered into between the Commercial Party and the Retailer that covers, among other things, the commercial terms of the use of the Products and Services including, but not limited to, the Charges.
“Commercial Party” means the party that paid or pays the Charges that enables your use of the Products and Services.
“Device” means a mobile device capable of receiving and transmitting satellite signals on the Iridium satellite system.
“Documentation" means user manuals, technical manuals, and any other materials provided by EVERYWHERE, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Products and Services.
“EVERYWHERE App” means an Android or iOS smartphone application, purpose built for enterprise and government entities with employees on-the-go that operates in standalone mode when accessing Wi-Fi, using data from wireless cellular providers, or it may be paired via Bluetooth with an EVERYWHERE Device to provide global connectivity and communications.
“EVERYWHERE Device” means a Device manufactured and sold by you and used in connection with the EVERYWHERE Hub as described in the Commercial Agreement.
“EVERYWHERE Hub” means the online hosting services, owned, operated or controlled by EVERYWHERE consisting of various infrastructure components, including but not limited to servers, website portal, networking components, system software, internet access, and content all as more specifically defined in Exhibit A (Products, Services and Airtime Description).
“Factal” means Factal Inc., a Delaware corporation, with a principal place of business at 600 1st Ave., Seattle, Washington 98104, U.S.A.
“Factal Services” means the services used to provide Factal content through the EVERYWHERE Hub as described in more detail in the Commercial Agreement.
“FCC” means the U.S. Federal Communications Commission.
“Garmin” means Garmin Services, Inc.
“Information” means the information transmitted to you via the Products and Services.
“Message” means a message sent or received from a Device or an EVERYWHERE App through the EVERYWHERE Hub. Messages may be transmitted via Airtime or over the Cellular Network using SMS and other messaging and email systems.
“Privacy Policy” means the EVERYWHERE privacy policy set forth at https://everywherecomms.com/privacy-policy.
“Products” means the EVERYWHERE Device and/or the EVERYWHERE App to the extent they are being licensed to you under the Commercial Agreement.
“Retailer” means the party that receives the Charges from the Commercial Party and entered into the Commercial Agreement with the Commercial Party.
“Services” means the EVERYWHERE Hub and/or Airtime to the extent they are being licensed to You under the Commercial Agreement.
“Smartphone” means an Android or iOS smartphone capable of running the EVERYWHERE App.
“Specifications” means the Specifications for the Products and Services as defined in the Commercial Agreement.
“Subscription Period” means the period of time set forth in the Commercial Agreement during which those Services that are subject to Charges are being provided.
“Twilio SMS Services” means the Twilio Short Message Service (SMS), to the extent they are being licensed to You under the Commercial Agreement, provided through the EVERYWHERE Hub as described in more detail in the Commercial Agreement.
2. License Conditioned Upon Agreement To Terms. EVERYWHERE and its licensors grant to You of the licenses to use the Products and Services is conditioned upon Your agreement to the terms and conditions set forth in this Agreement.
3. Products and Services Not Error-Free. You acknowledge that the Products and Services may be interrupted from time to time. You further acknowledge that the Products and Services are not error-free. EVERYWHERE and its licensors cannot accept any responsibility under this Agreement for the functioning of your Smartphone with respect to the Products and Services.
4. Suspension of Use. EVERYWHERE and its licensors will be entitled, on reasonable grounds, including the reasonable belief of fraud or illegal activity by you, or any individual under your control, in their use of the Products and Services, to suspend access by you to the Products and Services. You understand that EVERYWHERE and its licensors may be required by law enforcement agencies to disclose information regarding your use of the Products and Services and that EVERYWHERE and its licensors will comply with such requests.
5. License Grant. Subject to and conditioned upon payment of the Charges and your strict compliance with all terms and conditions set forth in this Agreement and the Commercial Agreement, EVERYWHERE grants to you during the term specified for use under the Commercial Agreement the following licenses. Your license shall be for your own use and not for resale to third parties. EVERYWHERE reserves all rights not expressly granted under this Agreement.
5.1 EVERYWHERE Hub Access License Grant. EVERYWHERE grants you a limited, revocable, nontransferable, and nonexclusive, without the right to sublicense, right to access and use the EVERYWHERE Hub (but not create derivative works thereof) in accordance with the Specifications (an “Hub Access License”). You shall use the EVERYWHERE Hub only with EVERYWHERE Devices and not use any other Devices in connection with the EVERYWHERE Hub unless expressly approved in writing by EVERYWHERE. No license is granted under the Hub Access License to copy or use the software that supports the EVERYWHERE Hub, except in connection with the EVERYWHERE Hub.
5.2 EVERYWHERE App License Grant. If you have been given a license under the Commercial Agreement to the EVERYWHERE App (an “EVERYWHERE App License”), then EVERYWHERE grants you a limited, revocable, nontransferable, and nonexclusive, without the right to sublicense, license to use, execute, and copy the EVERYWHERE App (but not create derivative works thereof) on Smartphones in accordance with the Specifications. No license is granted under this EVERYWHERE App License to access, copy, or use the source code to the EVERYWHERE App.
5.3 EVERYWHERE Device License Grant. If you have been given a license under the Commercial Agreement to an EVERYWHERE Device (an “EVERYWHERE Device License”), then EVERYWHERE grants you a limited, revocable, nontransferable, and nonexclusive, without the right to sublicense, license to use and execute the software embedded within the EVERYWHERE Devices (but not create derivative works thereof) on EVERYWHERE Devices in accordance with the Specifications. FCC regulations prohibit using the EVERYWHERE Device in a civil aircraft unless the EVERYWHERE Device has a direct physical connection to the aircraft cabin or cockpit communications system. No license is granted under this EVERYWHERE Device License to access, copy, or use the source code to the software embedded within the EVERYWHERE Devices.
5.4 Iridium® Access License Grant. If you have been given a subscription under the Commercial Agreement to access the Iridium satellite network (an “Iridium Access License”), then EVERYWHERE shall supply the Iridium airtime (“Airtime”) to you on a limited, revocable, nontransferable, and nonexclusive basis, without the right to sublicense, strictly in connection with your use of your EVERYWHERE Device and/or the EVERYWHERE App, all in accordance with the Specifications. You agrees not to use the Airtime: (i) to abuse or misuse any emergency services; (ii) to send messages that are offensive, defamatory, abusive or obscene or intended to harass; (iii) for any purpose in violation of law; (iv) in any manner that infringes or misappropriates third-party rights; or (i) in any manner which overloads or unreasonably interferes with the EVERYWHERE Hub or the Iridium satellite systems.
5.5 Limitations on Use. No license is given to you to the source code embedded within the Products or underlying the Services. Without the express written authorization from EVERYWHERE, you shall not (nor through any third party): (i) use, copy, duplicate or reproduce all or any portion of the Products or Services (including the Documentation) for any purpose other than as specified in this Agreement or the Commercial Agreement; (ii) decompile, disassemble, re-program, analyze, reverse engineer, decode, or unlock any of the Products or Services (in whole or in part) or otherwise attempt to reconstruct, identify or discover any underlying ideas, underlying user interface techniques or algorithms, or source code, or disclose any of the foregoing (except to the extent such restriction is prohibited by law); (iii) except as expressly authorized herein or the Commercial Agreement, sell, rent, lease, license, sublicense or in any way redistribute any or all of the Products or Services; (iv) use the Products or Services to create a service bureau, timesharing arrangement, or application service provider; (v) modify, enhance, alter, adapt, translate, prepare derivative works of all or any portion of the Products or Services or attempt to do so; (vi) remove, obscure, destroy or alter EVERYWHERE’s or its licensors’ product identification, copyright notices, trademarks, trade secrets or other proprietary rights notices affixed to or contained within the Products, Services or Documentation; (vii) permit the Products or Services to be used, examined, reviewed or inspected by others, other than by Authorized Users, auditors or governmental agencies as required by law; (viii) disclose the results of any benchmark or evaluation of the Products or Services to any third party (whether or not obtained with EVERYWHERE’s assistance) without EVERYWHERE’s prior express written consent; (ix) use the Products, Services, Documentation or any information contained therein or otherwise provided by EVERYWHERE or its licensors for the purposes of developing, or having developed, any products or services competitive with the Products or Services; (x) use, authorize or allow Authorized Users to use the Products or Services while driving any motorized vehicle; (xi) incorporate, link, or distribute the Products or Services with any code or software licensed under the GNU General Public License (“GPL”), Lesser General Public License (“LGPL”), Mozilla, or any other open source license, in any manner that could cause or could be interpreted or asserted to cause the Products or Services (or any modifications thereto) to become subject to the terms of the GPL, LGPL, Mozilla or such other open source license. You shall not authorize, or acquiesce in, any other person engaging in any of the foregoing activities or attempting to do so. Should it become known to you that an Authorized User has attempted to do any of the aforementioned activities, you shall immediately notify EVERYWHERE and direct such Authorized User to cease and desist in the activity.
5.6 Reserved Rights. EVERYWHERE reserves all rights not expressly granted under this Agreement.
6. Other Dependencies and Limitations.
6.1 EVERYWHERE Hub Dependencies. EVERYWHERE does not own or control the cell phone and/or email service providers who receive the email and SMS Messages generated from the EVERYWHERE Hub, and EVERYWHERE is not responsible for any delays by the email and cell phone providers related to these Messages. The EVERYWHERE Hub relies on wireless communication networks and the Global Positioning System ("GPS") satellite network. The EVERYWHERE Hub functionality that uses location Information about your EVERYWHERE Device that only works if GPS satellite signals are unobstructed and available in that place. The routing data EVERYWHERE Hub provides is based on the most current map Information available to EVERYWHERE, but the Information may be inaccurate or incomplete. For example, the route data may not include Information about one-way roads, turn restrictions, construction projects, seasonal roads or new roads. The suggested route may use a road that is closed for construction or a turn that is prohibited by signs at the intersection. Suggested routes also do not consider whether the areas traveled are residential, commercial, or mixed and do not factor in the availability of public or private goods. Therefore, you should use good judgment, obey traffic and roadway laws and instructions, and evaluate whether following the routing data provided through EVERYWHERE Hub is safe and legal based on the current conditions.
6.2 Ownership Rights in Satellite Telephone Numbers. EVERYWHERE and its licensors retain all ownership interest in the assigned satellite telephone number provisioned by EVERYWHERE. You have no ownership rights to any satellite telephone number provisioned by EVERYWHERE and EVERYWHERE reserves the right to assign, designate, or change your satellite telephone numbers at any time with prior notice to you. You will not transfer or attempt to transfer satellite telephone numbers obtained from EVERYWHERE to any third party or another carrier.
6.3 Airtime Availability is Not Unlimited. The Airtime is only available on the Iridium satellite network. The Airtime may become limited or temporarily unavailable without notice from time to time. EVERYWHERE does not own or control the service providers that operate the links between the satellite ground stations, including satellite antennas and supporting equipment, and the satellites, nor does EVERYWHERE own or control the Iridium satellite constellation, and cannot be responsible for any service interruptions that are associated with the Iridium satellite constellation or ground stations and the interconnecting networks. Iridium satellites are wireless and requires a clear line of sight toward the satellite; therefore, the Airtime is inherently subject to transmission and reception limitations caused by: (i) your location, including conditions that obstruct the line of sight between your EVERYWHERE Device and the satellite systems; (ii) the condition of the satellite systems and ground stations; (iii) the condition of the your EVERYWHERE Device; and (iv) weather conditions, atmospheric conditions, magnetic interference, environmental, and other conditions beyond EVERYWHERE’s control. AIRTIME IS NOT AVAILABLE AT ALL GLOBAL LOCATIONS, PARTICULARLY IN REMOTE OR ENCLOSED AREAS, OR AT ALL TIMES. The area you are located in may affect the Airtime that EVERYWHERE can provide to you, including routing services.
6.4 Causes of Airtime Failure. Airtime may not work properly if:
a) You have not maintained your EVERYWHERE Device in good working order;
b) You do not comply with all applicable laws;
c) You try to add, connect or modify any equipment or software in the EVERYWHERE Device (such as plugging devices into the EVERYWHERE Device’s electrical system or diagnostic port);
d) The Device is not compatible with the Airtime; or
e) Other problems arise that EVERYWHERE cannot control that interfere with the delivery or quality of the Airtime, such as hills, tall buildings, tunnels, weather, damage to EVERYWHERE Device, or network congestion or jamming.
6.5 Delays or Failed Performance. EVERYWHERE and its licensors are not responsible for any delay or failure in performance that (a) may have been prevented by taking reasonable precautions or (b) is caused by events of Force Majeure.
6.6 Data Transmission Use and Dropped Calls. Due to the technical nature of data setups and the inherent sophistication of data transmission through a variety of satellite and other operating systems, EVERYWHERE makes no representation as to the success of voice or data calls made using Airtime. You agree that all data call attempts regardless of ultimate successful transmission and termination will be paid for and no credits will be given in the event of dispute of this nature. Along with potential incorrect use (i.e.: next to a building/obstruction), all satellite systems (including low earth orbiting satellite constellations) have inherent flaws and anomalies that can create dropped calls of either voice or data nature. Dropped calls will not be credited.
6.7 Access and Passwords. After the EVERYWHERE Hub is ready for use by you, EVERYWHERE shall issue (a) a link to you that will enable you to access the EVERYWHERE Hub; and (b) a password to access the EVERYWHERE Hub. You are responsible for accessing the EVERYWHERE Hub in accordance with the terms of this Agreement and maintaining the confidentiality of all passwords at all times and for ensuring that issued passwords are used only by you and any Authorized Users. You are entirely responsible for all activities that occur under your account and all charges incurred in connection with use of the EVERYWHERE Hub using your passwords. You shall immediately notify EVERYWHERE of any unauthorized use of your account, including, without limitation, each password of an Authorized User accessing the EVERYWHERE Hub by means of your account, or any other breach of this Agreement or any security breach known to you. EVERYWHERE shall have no liability for any loss or damage arising from your failure to comply with these requirements.
7. Third Party Services. If You use any services provided by third parties in connection with the EVERYWHERE Hub (“Third Party Services”), then You acknowledge the applicable terms and conditions of the Third Party Services made available by that third party is a binding agreement solely between You and that third party, and not between You and EVERYWHERE, and that EVERYWHERE is acting solely as an intermediary between You and that third party. EVERYWHERE is not responsible for the terms of service made available by such third party for the Third Party Services, and EVERYWHERE has no obligations or liabilities under those terms of service. Third Party Services may be protected by intellectual property rights which are owned by such third party. Any reference or links to any third-party content does not constitute endorsement, sponsorship, or recommendation by EVERYWHERE or its Licensors. Third party products and service information are the sole responsibility of each individual third-party vendor. It is possible that some third-party content with the Third Party Services may be offensive, indecent or objectionable, and You acknowledge that use of the Third Party Services is at Your own risk. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties are those of the respective authors and not of EVERYWHERE or its licensors. EVERYWHERE and its licensors do not endorse nor are they responsible for the accuracy or reliability of any opinion, advice, information, or statement by anyone other than authorized EVERYWHERE employees acting in their official capacities. You understand and acknowledge that EVERYWHERE and its licensors are not responsible for and does not monitor third party content for accuracy or reliability.
8. SOS Monitoring Services. IN NO EVENT DOES THIS AGREEMENT CREATE A DUTY TO RESCUE YOU OR ANY THIRD PARTY AS A RESULT OF ANY SOS EMERGENCY SIGNAL RECEIVED BY EVERYWHERE.
8.1 Customer Monitored SOS. If the Commercial Agreement indicates that the Commercial Party has contracted to notify a call center designated by the Commercial Party (the “Customer Emergency Call Center”) when a Device has generated an emergency signal (a “SOS Emergency Signal”), then all of the provisions of this Section 8.1 apply:
8.1.1 Customer Emergency Call Center. When You generate an SOS Emergency Signal on Your Device or EVERYWHERE App, the Services shall commence the process of notifying the Customer Emergency Call Center that an SOS Emergency Signal has been generated. The Commercial Party is solely responsible for providing EVERYWHERE with all necessary and correct contact information, including updates to such information, to enable the EVERYWHERE Hub to communicate with the Customer Emergency Call Center. EVERYWHERE shall make the applicable registration data information and available location coordinates available to the Customer Emergency Call Center.
8.2.1 EVERYWHERE SOS Response Center. When You generate an SOS Emergency Signal on your Device or EVERYWHERE App, the Services shall commence the process of notifying the EVERYWHERE’s response center (the “EVERYWHERE SOS Response Center”). The EVERYWHERE SOS Response Center may be outsourced to a third-party SOS provider (the “Third Party SOS Provider”). The provision of SOS emergency monitoring services is subject to the terms of this Agreement. EVERYWHERE reserves the right to disclose personal and location data to the Third Party SOS Provider, and\or to competent legal authorities in order to assist in the effectuation of a rescue (if You reside in New Zealand, where necessary to prevent or lessen a serious threat (as defined in the Privacy Act 1993) to public health or public safety, or to the life or health of the individual concerned or another individual). EVERYWHERE or its Third Party SOS Provider may remotely activate SOS features when notified by competent legal authorities that a distress situation exists for You. EVERYWHERE intends that the EVERYWHERE SOS Response Center will be available at all times in all locations where a Device works; however, it is possible that at some times and some locations, the EVERYWHERE SOS Response Center will not receive SOS Emergency Signals or that SOS Emergency Signals will be delayed. The emergency responders (and not EVERYWHERE or the Third Party SOS Provider) shall determine when, how, and even if, to conduct a search and rescue in accordance with their standard policies and procedures, subject to such constraints as operational limitations, available resources, technical feasibility, meteorological conditions, medical and\or safety concerns whether for You or the emergency responders.
8.2.2 SOS Monitoring. When the Services transmit the SOS Emergency Signals to the EVERYWHERE SOS Response Center, it also includes the applicable registration data information and available location coordinates. The EVERYWHERE SOS Response Center maintains a database of emergency responders in regions throughout the world (the “SOS Database”) and provides SOS Emergency Signal monitoring twenty-four (24) hours a day, seven (7) days a week and 365 days a year. Upon receipt of an SOS Emergency Signal, EVERYWHERE SOS Response Center personnel will: (i) contact, if available, the primary and secondary contacts identified by Commercial Party in its registration data to attempt to validate the SOS Emergency Signal, (ii) use the SOS Database to identify appropriate emergency responder(s) according to available location coordinates; (iii) contact the appropriate emergency responder(s) and inform them of the relevant facts in the Third Party SOS Provider’s possession (including the registration data information and\or location coordinates); (iv) if You are traveling outside of the Your home territory, and it is consistent with the Third Party SOS Provider’s procedures, contact the Embassy of Your government consistent with the registration data, either in the location identified by the Location Information or Your Washington, D.C. based Embassy, and provide them all relevant facts in the Third Party SOS Provider’s possession; and, (v) provide updates of location coordinates as available to the identified emergency responder. Upon contacting the emergency responder(s) and\or, as appropriate, the applicable embassy, and informing them of all relevant facts. EVERYWHERE, its Licensors, and the Third Party SOS Provider are released from all further responsibility and\or obligation to take any further action whatsoever. Should EVERYWHERE or the Third Party SOS Provider have reasonable cause to believe that an emergency condition does not exist, then EVERYWHERE and the Third Party SOS Provider reserve the right to solely contact the primary and secondary contacts identified by You.
8.2.3 False SOS Emergency Transmissions. The Commercial Party is solely responsible for any charges that may be assessed by emergency responders for either false SOS Emergency Signals and\or in relation to search and rescue activities resulting from Your transmission of a SOS Emergency Signal. Should You deliberately or negligently misuse the SOS Emergency Service, EVERYWHERE reserves the right to assess a fee in order to recoup their costs in relation to responding to such misuse. Negligent and deliberate misuse includes, but is not limited to, pressing the SOS button to “see if it works” or otherwise knowingly pressing the SOS button when no emergency situation exists. Should it be determined by EVERYWHERE that You have deliberately or negligently misused the SOS Emergency Service, EVERYWHERE may provide The Commercial Party’s credit card information on record to the Third Party SOS Provider. EVERYWHERE or the Third Party SOS Provider shall then, without further notice or consent, bill the credit card the appropriate fee, calculated at a rate of $1,000 for each such false SOS Emergency Signal event, and The Commercial Party shall be responsible to pay any such fee.
9. Open Source. Certain Products contain certain Open Source Software listed in Schedule A (Open Source Software). Usage of these Products is subject to certain rights and responsibilities with respect to the Open Source Software and are governed according to the terms of the applicable Open Source License specified in Schedule A. “Open Source Software” means software made available to others under the terms of an Open Source License; “Open Source License” means a software license that includes, but is not limited to, terms that: (a) permit distribution or redistribution of the software, including free of charge and for sale, by others without royalty or fee and allows for such distribution/redistribution to include source code and compiled code; (b) permits modifications, compilations, and derived works be created from the software and be distributed under the same terms as the original software; or (c) attach to the software and applies to all persons, entities, groups, organizations and institutions (the “Recipients”) to whom the software is distributed and/or who redistribute the software without the need for the Recipients to execute or otherwise acquire an additional license.
10. Privacy Policy. Your use of the Products and Services is subject to the terms and conditions of the EVERYWHERE privacy policy as well as Garmin’s inReach privacy policy set forth at https:\\www.garmin.com\en-US\privacy\inreach\policy (the “Garmin Privacy Policy”). EVERYWHERE and Garmin collect, use, and share information from and about your use of the Products and Services, provided that EVERYWHERE does not share information with Garmin collected using Secure InReach Devices. The Privacy Policy and the Garmin Privacy Policy describe what EVERYWHERE and Garmin do with that information. Your use of the Products and Services represents your consent to the collection, use, and sharing of information described in the Privacy Policy and the Garmin Privacy Policy in any revisions thereto, which may be modified as described in those documents.
11. Compliance With Laws. You agree to abide by all local, state, national, and international laws and regulations applicable to your use of the Products and Services including, without limitation, all licensing, intellectual property and privacy laws. If you desire to operate the Products, including but not limited to your EVERYWHERE Device, while in foreign territories, then you shall be required to obtain any and all licensing or approvals that may be required to operate within that foreign territory. Notwithstanding any other provision of this Agreement or the Commercial Agreement, EVERYWHERE does not guarantee or warrant any authority to radiate from foreign territories other than those allowing trans-border operations of satellite equipment and EVERYWHERE does not represent that to do so will be lawful in all cases and you assume all responsibility for complying with the laws of each foreign territory in which you operate the Products and Services.
12. Use By Authorized Users. You will ensure that each Authorized User complies with the terms of this Agreement and the Documentation, as may be amended, and any instruction issued by EVERYWHERE and its licensors with respect to the use of the Products and Services.
13. No Maintenance and Support. This Agreement confers no maintenance or support obligations upon EVERYWHERE. Any maintenance or support that may be available to you, if any, may be provided under the terms of the Commercial Agreement.
14. EVERYWHERE Intellectual Property Rights. You acknowledge that the intellectual property rights underlying the Products, Services, and Documentation (collectively, the “EVERYWHERE IP”) is owned by, and shall remain the sole property of EVERYWHERE and its licensors, that the EVERYWHERE IP contains, embodies and is based upon worldwide patented or patentable inventions, trade secrets, copyrights and other intellectual property rights (collectively, “Intellectual Property Rights”) owned or licensed by EVERYWHERE and its licensors, and that EVERYWHERE and its licensors shall continue to be the sole owner of all Intellectual Property Rights in and to the EVERYWHERE IP worldwide including, without limitation, any derivative works. This Agreement does not convey to you title or ownership of the Intellectual Property Rights underlying the EVERYWHERE IP, but only a right of limited use in accordance with this Agreement. You acknowledge that the EVERYWHERE IP provided by EVERYWHERE pursuant to this Agreement is entitled to protection under applicable copyright and other intellectual property laws and constitute valuable assets, trade secrets and proprietary rights of EVERYWHERE or its licensors.
15.1 GENERAL DISCLAIMER OF WARRANTY. SUBJECT ONLY TO ANY WARRANTY RIGHTS THAT YOU MAY HAVE UNDER THE COMMERCIAL AGREEMENT, EVERYWHERE AND ITS LICENSORS DO NOT MAKE ANY WARRANTIES, TERMS, REPRESENTATIONS OR STATEMENTS WHATSOEVER WHETHER EXPRESSED OR IMPLIED BY STATUTE, CUSTOM, USAGE OR OTHERWISE WITH RESPECT TO THE PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, INTERFERENCE WITH YOUR ENJOYMENT OF THE PRODUCTS AND SERVICES, AND NON-INFRINGEMENT, OF MERCHANTABILITY OR QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY THAT THE PRODUCTS AND SERVICES ARE ACCURATE OR COMPLETE, AND ALL SUCH WARRANTIES ARE DISCLAIMED HEREBY. EVERYWHERE MAKES NO REPRESENTATION OF ANY KIND THAT THE PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS. THE PRODUCTS AND SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. YOU AGREE THAT NO COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE SHALL APPLY TO THIS AGREEMENT. YOU ACKNOWLEDGE THAT YOUR ONLY REMEDIES IN RESPECT OF ANY CLAIM WHATSOEVER THAT YOU MAY WISH TO BRING AGAINST EVERYWHERE AND ITS LICENSORS ARE AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR UNDER THE COMMERCIAL AGREEMENT. EVERYWHERE AND ITS LICENSORS MAKE NO REPRESENTATIONS THAT THE PRODUCTS, SERVICES, AND AIRTIME WILL BE ERROR FREE, FREE FROM DATA LOSS, INTERRUPTION, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND EVERYWHERE AND ITS LICENSORS DISCLAIM ANY LIABILITY RELATING THERETO. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY REPRESENTATIVES OF EVERYWHERE SHALL CREATE A WARRANTY.
15.2 DISCLAIMER OF WARRANTY FOR EVERYWHERE HUB. YOU EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF EVERYWHERE HUB IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVERYWHERE HUB IS PROVIDED “AS IS” AND “AS AVAILABLE” AND EVERYWHERE DOES NOT REPRESENT THAT EVERYWHERE HUB WILL MEET YOUR REQUIREMENTS. EVERYWHERE AND ALL ITS LICENSORS MAKE NO WARRANTY IN RELATION TO THE AVAILABILITY, SUITABILITY OR ACCURACY OF EVERYWHERE HUB, OR IN RELATION TO AVAILABILITY, SUITABILITY OR MAINTENANCE OF EVERYWHERE HUB. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY DEVICES, OR LOSS OF DATA THAT RESULTS FROM USE OF EVERYWHERE HUB. EVERYWHERE HUB IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER ACTIVITIES IN WHICH THE FAILURE OF EVERYWHERE HUB COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
15.3 DISCLAIMER OF WARRANTY FOR AIRTIME. YOU EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF AIRTIME IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AIRTIME IS PROVIDED “AS IS” AND “AS AVAILABLE” AND EVERYWHERE DOES NOT REPRESENT THAT AIRTIME COVERAGE WILL MEET YOUR REQUIREMENTS. EVERYWHERE AND ALL ITS LICENSORS MAKE NO WARRANTY IN RELATION TO THE AVAILABILITY OF AIRTIME, OR IN RELATION TO AVAILABILITY, SUITABILITY OR MAINTENANCE OF THE SATELLITE SYSTEMS USED BY EVERYWHERE TO TRANSMIT DATA TRANSMISSIONS, INCLUDING SOS EMERGENCY SIGNALS AND/OR HELP TRANSMISSIONS FOR ASSISTANCE. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY DEVICES, OR LOSS OF DATA THAT RESULTS FROM USE OF AIRTIME.
15.4 DISCLAIMER FOR EMERGENCY SERVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EVERYWHERE AND ITS LICENSORS ARE NOT RESPONSIBLE FOR ANY FAILURES CAUSED BY THE AIRTIME OR EVERYWHERE HUB’S ERRORS, MISDIRECTED OR REDIRECTED TRANSMISSIONS, FAILED INTERNET CONNECTIONS, INTERRUPTIONS OR FAILURES IN THE TRANSMISSION OF DATA (INCLUDING BUT NOT LIMITED TO SOS EMERGENCY SIGNALS), ANY COMPUTER VIRUS, ACTS OR OMISSIONS OF THIRD PARTIES THAT DAMAGE THE SATELLITE NETWORK OR IMPAIR AIRTIME, DAMAGE OR INJURY CAUSED BY A FAILURE OR DELAY IN CONNECTING A CALL OR SOS EMERGENCY SIGNALS TO ANY ENTITY, INCLUDING ANY CUSTOMER EMERGENCY CALL CENTERS, THE IERCC, OR ANY OTHER EMERGENCY CALL SERVICE, OR OTHER TECHNICAL DEFECT, WHETHER HUMAN OR TECHNICAL IN NATURE.
16.1 LIMITATION ON INDIRECT DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER EVERYWHERE OR EVERYWHERE’S LICENSORS SHALL BE LIABLE TO YOU OR ANY AUTHORIZED USERS FOR ANY INDIRECT, PUNITIVE, CONSEQUENTIAL, ECONOMIC, RELIANCE, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES, LOSS, COSTS OR EXPENSES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, MEDICAL AND OTHER EXPENSES, LOSS OF GUIDANCE, CARE AND COMPANIONSHIP, LOST DATA, LOSS OF OPPORTUNITY, LOSS OF ANTICIPATED SAVINGS, DAMAGES CAUSED BY DELAYS, OR A FAILURE TO REALIZE EXPECTED SAVINGS) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WHETHER RESULTING FROM CONTRACT, TORT (INCLUDING LIABILITY FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE IN RESPECT OF ANY LOSS, DAMAGE, COSTS, EXPENSES OR OTHER CLAIMS RESULTING FROM THE ACTS OR OMISSIONS OF SUCH PARTIES, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS BEEN DISCLOSED TO EVERYWHERE OR ITS LICENSORS.
16.2.1 ANY FORCE MAJEURE EVENT; OR
16.2.2 FAILURE, DELAY, OR INACCURACY OF THE GPS SATELLITES IN PROVIDING LOCATION COORDINATES; OR
16.2.3 FAILURE, DELAY, OR INACCURACY OF THE PRODUCTS TO PROCESS AND/OR TRANSMIT DATA TRANSMISSIONS, INCLUDING SOS EMERGENCY SIGNAL(S), AND/OR LOCATION COORDINATES, TO THE SATELLITE SYSTEMS; OR
16.2.4 FAILURE OF OR DELAY IN THE SATELLITE SYSTEMS AND/OR GROUND STATIONS TO PROCESS DATA TRANSMISSIONS, INCLUDING BUT NOT LIMITED TO SOS EMERGENCY SIGNALS, LOCATION COORDINATES, PREPROGRAMMED MESSAGES AND DISPLAY, AND TRANSMIT TO THE IDENTIFIED POINTS OF CONTACT AND\OR THE APPLICABLE EMERGENCY CALL CENTER; OR
16.2.5 FAILURE OF OR DELAY IN THE EMAIL OR CELLPHONE PROVIDER TO TRANSMIT THE MESSAGE TO AN END USER, OR FAILURE OF OR DELAY IN THE APPLICABLE EMERGENCY CALL CENTER IN RESPONDING TO SOS EMERGENCY SIGNALS; OR
16.2.6 FAILURE OF, OR DELAY IN THE PRODUCTS TO TRANSMIT OR RECEIVE ANY MESSAGES; OR
16.2.7 FAILURE OF, OR DELAY BY, SERVICE PROVIDERS TO PERFORM THE APPLICABLE SERVICE FOR WHICH EACH IS CONTRACTED; OR
16.2.8 FAILURE TO OBTAIN A CLEAR LINE OF SIGHT TOWARD THE SATELLITE SYSTEMS; OR
16.2.9 FAILURE TO PROPERLY INSTALL SOFTWARE OR CONFIGURE THE PRODUCTS; OR
16.2.10 FAILURE OF EVERYWHERE, ITS LICENSORS, AND THEIR SERVICE PROVIDERS TO PROVIDE THE SERVICES, INCLUDING SOS EMERGENCY SERVICES, DUE TO THE SERVICES HAVING BEEN CANCELLED OR TERMINATED PURSUANT TO THIS AGREEMENT; OR
16.2.11 NON-COMPATIBILITY OF PRODUCTS WITH SMARTPHONE OPERATING SYSTEMS AND THIRD-PARTY SOFTWARE; OR
16.2.12 FAILURE OR INADEQUACY OF POWER SUPPLY FOR PRODUCTS AND\OR ASSOCIATED ACCESSORIES.
16.3 LIMITATION ON DIRECT DAMAGES. EVERYWHERE SHALL ONLY BE LIABLE TO YOU FOR PROVEN DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, HOWSOEVER CAUSED AND WHETHER FOR BREACH OF CONTRACT, IN TORT, BY WAY OF NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF EVERYWHERE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE, THE TOTAL AMOUNT PAID BY THE COMMERCIAL PARTY UNDER THE APPLICABLE COMMERCIAL AGREEMENT IN THE MOST RECENT TWELVE (12) MONTH PERIOD FROM WHEN THE CLAIM AROSE.
16.4 Survival of Limitations. The limitations of liability set forth in this Section 16 shall survive termination or expiration of this Agreement.
17. Indemnification. You undertake to indemnify and hold EVERYWHERE, its licensors, suppliers, successors, and affiliates, and, collectively, their respective partners, directors, officers, employees or agents, or anyone else who has been involved in the creation, production or delivery of the Products and Services (collectively the “Indemnified Parties”) harmless from and against all damages, cost, claims and liabilities (including reasonable attorney’s fees) suffered or incurred by the Indemnified Parties as a consequence of any claims or proceedings made or brought against the Indemnified Parties by any person in connection with your use of the Products and Services.
18. Suspension. Upon EVERYWHERE’s reasonable belief that criminal or otherwise improper activity may be associated with your use of the Products, Services or Airtime, EVERYWHERE may, without incurring any liability, temporarily suspend or discontinue your use of the Services or Airtime.
19. Termination. EVERYWHERE may terminate this Agreement:
a) with immediate effect by written notice given by EVERYWHERE if EVERYWHERE’s agreement with a supplier or licensor of the Products or Services are terminated or restricted for any reason; or
b) with immediate effect by written notice given by EVERYWHERE or its licensors if you commit any material breach of any term of this Agreement that (in the case of a breach capable of being remedied) shall not have been remedied within five (5) business days of a written request to remedy same.
20. Upon Termination. Upon expiration or termination of this Agreement in whole or in part, all right to use the Services and Airtime ceases, any licenses set forth in this Agreement shall terminate, and you must uninstall and delete all components of the Products and Services supplied and, if requested by EVERYWHERE or its licensors, certify to EVERYWHERE or its licensors that such deletion occurred.
21. Assignment. This Agreement and the rights and obligations hereunder may not be assigned, delegated, sublicensed, or transferred by you without the prior written consent of the EVERYWHERE. Any attempted assignment, delegation, sublicense, or transfer by you without such written consent shall be void and of no effect. EVERYWHERE shall be free to assign its rights and obligations hereunder.
22. Export Regulation. The Products, Services, and Documentation are subject to United States export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly, or indirectly, export, re-export, or release the Products, Services or Documentation to, or make the Products, Services or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Products, Services or Documentation available outside the United States.
23. Force Majeure. EVERYWHERE shall not be liable to you or shall not be subject to termination of this Agreement for any delay, nonperformance, loss or damage because of reasons beyond EVERYWHERE’s reasonable control including, but not limited to, acts of God, natural casualties, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, labor or material shortages, strikes, communication systems failures, satellite failures, internet service provider failures or delays, or denial of service attacks, war, riots, power failures, or transportation conditions (each a “Force Majeure Event”).
24. Governing Law and Dispute Resolution. This Agreement shall be governed by the laws of the same state or commonwealth as set forth in the Commercial Agreement. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. Any disputes arising hereunder shall be handled in accordance with the dispute resolution provisions of the Commercial Agreement. Notwithstanding the foregoing, you agree that in the event of any breach of any of the intellectual property rights set forth in this Agreement, EVERYWHERE may not have an adequate remedy in money or damages and shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. EVERYWHERE's right to obtain injunctive relief shall not limit its right to seek further remedies.
25. Miscellaneous Provisions. A failure or delay of EVERYWHERE to enforce any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions. In the event that any provision of this Agreement shall be held to be invalid, the remaining provisions of this Agreement shall be unimpaired, and the invalid provisions shall be replaced by a mutually acceptable provision. This Agreement may be updated from time-to-time by EVERYWHERE by its posting changes thereto on its website, located at https://everywherecomms.com/pages/eula. The parties agree that where the context of any provision indicates an intent that it shall survive the termination of this Agreement, then it shall so survive. Damages may be an inadequate remedy in the event of a breach by either party to this Agreement and that any such breach by either party may cause the other party great and irreparable injury and damage. Accordingly, both parties agree that the party claiming breach shall be entitled, without posting a bond or waiving any additional rights or remedies otherwise available to it at law or in equity or by statute, to injunctive and other equitable relief. This Agreement constitutes the entire understanding between the parties concerning the subject matter hereof and supersedes all prior discussions, agreements, and representations, whether oral or written and whether or not executed by the parties (except for the Commercial Agreement which shall remain in full force). The headings in this Agreement are for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any of its provisions. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, the singular shall include the plural, and vice versa, as the context may require.
– End of Agreement –
Schedule A
Open Source Software
|
Open Source |
Ver. |
Download Link |
Open Source License |
|
|
Name |
Full Text Available at |
|||
|
EVERYWHERE Apps (Android version) |
||||
|
Google Protobuff |
3.4.0 |
https://github.com/protocolbuffers/protobuf |
3-Clause BSD License |
https://github.com/protocolbuffers/protobuf/blob/master/LICENSE |
|
Required Notices: |
||||
|
Bouncy Castle |
1.57.0 |
https://rtyley.github.io/spongycastle/ |
Modified MIT X11 |
http://www.bouncycastle.org/licence.html |
|
Required Notices: |
||||
|
MapBox |
5.6.5 |
https://github.com/mapbox/mapbox-gl-native |
3-Clause BSD |
https://github.com/mapbox/mapbox-gl-native/blob/master/LICENSE.md |
|
Required Notices: |
||||
|
Orhanobut Logger |
2.1.1 |
https://github.com/orhanobut/logger |
Apache 2.0 |
http://www.apache.org/licenses/LICENSE-2.0 |
|
Gson |
2.8.1 |
https://github.com/google/gson |
Apache 2.0 |
http://www.apache.org/licenses/LICENSE-2.0 |
|
Realm |
4.1.1 |
https://github.com/realm/realm-java |
Apache 2.0 |
http://www.apache.org/licenses/LICENSE-2.0 |
|
EVERYWHERE Apps (iOS version) |
||||
|
IDZSwiftCommonCrypt |
0.10.0 |
https://github.com/iosdevzone/IDZSwiftCommonCrypto |
The MIT License |
https://opensource.org/licenses/MIT |
|
Required Notices: |
||||
|
MapBox |
5.6.5 |
https://github.com/mapbox/mapbox-gl-native |
3-Clause BSD |
https://github.com/mapbox/mapbox-gl-native/blob/master/LICENSE.md |
|
Required Notices: |
||||
|
RealmSwift |
3.1.1 |
https://github.com/realm/realm-cocoa |
Apache 2.0 |
http://www.apache.org/licenses/LICENSE-2.0 |
|
SwiftMessages |
4.1.0 |
https://github.com/SwiftKickMobile/SwiftMessages |
The MIT License |
https://opensource.org/licenses/MIT |
|
Required Notices: |
||||
|
SwiftProtobuf |
1.0.2 |
https://github.com/apple/swift-protobuf |
Apache 2.0 |
http://www.apache.org/licenses/LICENSE-2.0 |
|
SwityBeaver |
1.5. |
https://github.com/SwiftyBeaver/SwiftyBeaver |
The MIT License |
https://opensource.org/licenses/MIT |
|
Required Notices: |
||||
|
Chatto |
3.2.0 |
https://github.com/badoo/Chatto |
The MIT License |
https://opensource.org/licenses/MIT |
|
Required Notices: |
||||
|
ChattoAdditions |
3.2.0 |
https://github.com/badoo/Chatto |
The MIT License |
https://opensource.org/licenses/MIT |
|
Required Notices: |
||||
Schedule B
Factal Add-On Services
Part I. Factal Services Description
1. EVERYWHERE Safeguard App w/ Factal Part Nos. Vary
The EVERYWHERE Safeguard App w/ Factal is an EVERYWHERE App that operates on either an Android or iOS smartphone, purpose built for enterprise and government entities with employees on-the-go with the added functionality of the Factal data feed. The Factal data feed provides Factal Risk Intelligence in the EVERYWHERE App for incidents within 50 miles of Your current location. The EVERYWHERE Safeguard App operates in standalone mode when accessing Wi-Fi, using data from wireless cellular providers, or it may be paired via Bluetooth with EVERYWHERE Garmin inReach Mini to provide global connectivity and communications. The EVERYWHERE Safeguard App provides Global SOS, secure personnel and team tracking and communications to provide mobile situational awareness.
2. EVERYWHERE Satellite Risk Intelligence Notifications w/ Factal Part Nos. Vary
EVERYWHERE Satellite Risk Intelligence Notifications w/ Factal provides enterprise and government entities with employees on-the-go with the added functionality of Factal alerting. Factal Content delivered over Airtime (Iridium Satellite) provides Authorized Users with Factal alert messages delivered directly to an Authorized User’s Safeguard App or their EVERYWHERE inReach Devices for Severity Five (5) incidents occurring within 50 miles of the Authorized User’s current location.
Part II. Contractual Pass-Through Provisions for Factal Services
As the Factal Services are a component of the overall Services, all of the terms and conditions related to Services as defined in the Agreement also apply to the Factal Services. In addition, the following supplemental terms and conditions also apply to the Factal Services.
1. License to Factal Services.
1.1 Factal Services License Grant. If specified in the Commercial Agreement, and in consideration for Commercial Party’s payment obligations for Charges set forth in the Commercial Agreement, EVERYWHERE grants to You a limited, nontransferable, and nonexclusive right to access and use the Factal Services, including the right to retrieve information, functionality, and/or data (“Factal Content”) from databases provided with the Factal Services, only during the Subscription Period for the Factal Services (“Factal License”) as set forth in the Commercial Agreement and in accordance with the Specifications. No license is granted under any Factal License to access, copy, or use the software that supports the Factal Services, except in connection with the Factal License. The Factal License shall be considered one of the Licenses granted under the Agreement.
1.2 Factal Use Restrictions. Except as may be agreed to in writing by EVERYWHERE, You shall not, and shall not permit or enable any other person or entity to: (i) use the Factal Services beyond the scope of the Factal License; (ii) use the Factal Services in violation of any federal, state or local law, regulation or rule; (iii) use or enable End User to use the Factal Services for the purposes of testing or comparison of Factal Services, machine learning, or for any purpose competitive with Factal Services; (iv) distribute or allow access or linking to the Factal Services other than through the EVERYWHERE Services; (v) use the Factal Services in a way that is false or misleading; (vi) use the Factal Services for surveillance of individuals without their consent; or (vii) use the Factal Services for or on behalf of, or make available to, government entities engaged in military or law enforcement; or to paramilitary organizations.
1.3 Compliance Measures. The Factal Services may contain security features designed to prevent unauthorized use of the Factal Services, such as use of the Factal Services in violation of any restrictions set forth in this Agreement. You shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to any such security features.
1.4 Consent to Collection and Use of Information. You agree: (a) to the terms of Factal’s privacy policy located at https://www.factal.com/privacy (“Factal Privacy Policy”); and (b) that Factal and its affiliates may collect and use information regarding use of the Factal Services by You or through the Factal Services and about equipment through which it is accessed and used consistent with the Factal Privacy Policy and that such information will be used for (i) improving the performance of the Factal Services or developing updates or enhancements thereto; and (ii) verifying Your compliance with the terms of this Agreement and enforcing EVERYWHERE’s and Factal’s rights in the Factal Services. Any such information shall be considered Confidential Information of You and Factal. No Authorized User personally identifiable information is provided by EVERYWHERE to Factal.
2. Warranties.
2.1 Factal Services Warranty. EVERYWHERE warrants during the applicable Subscription Period that the Factal Services set forth in any applicable Commercial Agreement will operate in material accordance with the Specifications. Your sole remedy for any claims under this Section shall be to correct such failures at no charge to You.
2.2 Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE FACTAL SERVICES, FACTAL CONTENT, AND DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EVERYWHERE DOES NOT WARRANT THAT THE FACTAL SERVICES, FACTAL SERVICES, OR DOCUMENTATION WILL MEET YOUR REQUIREMENTS. FURTHER, THE FACTAL SERVICES MAY BE TEMPORARILY UNAVAILABLE FOR UNFORESEEN HARDWARE, SOFTWARE, TELECOMMUNICATIONS, SERVICE PROVIDER FAILURES, AND/OR SCHEDULED MAINTENANCE. IN ANY SUCH CASE, EVERYWHERE CANNOT GUARANTEE THE DURATION OF ANY OUTAGE BUT WILL USE REASONABLE EFFORTS TO RESTORE ACCESS TO THE FACTAL SERVICES WITHIN A REASONABLE TIME.
3. Additional Indemnification Obligations. You (the “Indemnifying Party”) shall defend, indemnify and hold harmless EVERYWHERE, and each of its officers, directors, owners, employees, agents, and Licensors (each, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against all third party Losses arising out of or in connection with: (i) any claims arising out of Your breach of the obligations set forth in Section 1.2 (Factal Use Restriction) of this Exhibit, the section of the Agreement captioned “Limitations on Use”, the Factal Privacy Policy, any confidentiality provisions of this Agreement, or (ii) Your failure to comply with all laws, rules, ordinances, decrees and regulations applicable to its activities under this Agreement.
SCHEDULE C
TWILIO SMS ADD-ON SERVICES
Part I. Twilio SMS Services Description
EVERYWHERE Dedicated SMS Number allows EVERYWHERE Garmin inReach End Users to use a directly-assigned phone number to two-way Message from their inReach Device. End Users can share their Dedicated SMS Number with team members who can initiate Messages and communicate directly to inReach Devices.
Part II. Contractual Pass-Through Provisions for Twilio SMS Services
As the Twilio SMS Services are a component of the overall Services, all of the terms and conditions related to Services as defined in the Agreement also apply to the Twilio SMS Services. In addition, the following supplemental terms and conditions also apply to the Twilio SMS Services.
1. Definitions
“Dedicated SMS Number” means a 10-digit phone number available under the numbering plan for the Public Switched Telephone Network for the United States and Canada (NANP).
“End User Data” means data and other information made available by End Users to Twilio in connection with your use of the Twilio SMS Services under this Agreement.
“Service Usage Data” means any data that is derived from the use of the Twilio SMS Services that does not directly or indirectly identify End Users or any natural person and includes (a) data such as volumes, frequencies, bounce rates, and Twilio SMS Services performance data and (b) subject to any restrictions under applicable law or regulation, data that is anonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify End Users or any natural person.
“SMS Guidelines” mean the guidelines provided by Twilio at https://www.twilio.com/en-us/guidelines/sms.
“Twilio” means, as applicable:
(i) Twilio Inc., a Delaware corporation, with a place of business at 101 Spear Street, 5th Floor, San Francisco, California, 94105, USA, if the entity using the Twilio SMS Services is domiciled in any country outside of the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, Vatican City, or Monaco, other than Japan;
(ii) Twilio Ireland Limited, a company registered in the Republic of Ireland, whose registered address is 3 Dublin Landings, North Wall Quay, Dublin 1, Ireland if the entity using the Twilio SMS Services is domiciled in any country within the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, Vatican City, or Monaco;
(iii) Twilio Japan G.K., a Japanese company with a place of business at Link Square Shinjuku 16F, 5-27-5 Sendagaya, Shibuya-ku, Tokyo 151-0051, Japan if the entity using the Twilio SMS Services is domiciled in Japan.
“Twilio Acceptable Use Policy” means certain terms relating to the use of the Services, including the Twilio SMS Services and Country Specific Requirements set forth therein, the current version of which is available at https://www.twilio.com/legal/aup.
“Twilio Data Protection Addendum” means the personal data processing-related terms for the Twilio SMS Services, the current version of which is available at https://www.twilio.com/legal/data-protection-addendum.
2. License to Twilio SMS Services.
2.1 Twilio SMS Services License Grant. If specified in the Commercial Agreement, and in consideration for Commercial Party’s payment obligations for Charges set forth in the Commercial Agreement, EVERYWHERE grants You a limited, nontransferable, and nonexclusive right to access and use the Twilio SMS Services only during the Subscription Period for the Twilio SMS Services (“Twilio SMS License”) as set forth in the Commercial Agreement and in accordance with the Specifications. No license is granted under any Twilio SMS License to access, copy, or use the software that supports the Twilio SMS Services, except in connection with the Twilio SMS License. The Twilio SMS License shall be considered one of the Licenses granted under the Agreement.
2.2 Authorized User Responsibilities. Each country has its own regulatory framework governing the use of SMS Messages. Regulatory provisions may differ by sender type and use case. They may include additional registration requirements and define prohibited use cases. End Users are responsible for compliance with the applicable country-specific regulations. End Users should review the SMS Guidelines for a country before the End User considers enabling its SMS Geo Permissions. You will: (i) be solely responsible for all use of the Twilio SMS Services and Documentation under its account; (ii) use the Twilio SMS Services only in accordance with this Agreement, the Twilio Acceptable Use Policy, the applicable Documentation, any applicable Commercial Agreement, and applicable law or regulation; (iii) be solely responsible for all acts, omissions, and activities of its End Users, including their compliance with this Agreement, the Twilio Acceptable Use Policy, the SMS Guidelines, the applicable Documentation, any applicable Commercial Agreement, and applicable law or regulation; (iv) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (v) comply with your representations and warranties set forth in Section 3 (Representations, Warranties, and Disclaimer).
2.3 Suspension of Twilio SMS Services. EVERYWHERE or Twilio may suspend the Twilio SMS Services upon written notice to You if EVERYWHERE or Twilio, in good faith, determines: (a) that You materially breached the Twilio Acceptable Use Policy; (b) there is an unusual and material spike or increase in your use of the Twilio SMS Services and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Twilio SMS Services; (c) that its provision of the Twilio SMS Services is prohibited by applicable law or regulation; (d) there is any use of the Services by You that threatens the security, integrity, or availability of the Twilio SMS Services; or (e) that information in Your account is untrue, inaccurate, or incomplete. The Commercial Party remains responsible for the Charges for the Twilio SMS Services.
3.1 Service Usage Data. As between the Parties, Twilio exclusively owns and reserves all right, title, and interest in and to the Twilio SMS Services, the Documentation, Twilio's Confidential Information, and Service Usage Data.
4. Warranties.
4.1 Twilio SMS Services Warranty. EVERYWHERE warrants during the applicable Subscription Period that the Twilio SMS Services set forth in any applicable Commercial Agreement will operate in material accordance with the Specifications. Your sole remedy for any claims under this Section shall be to correct such failures at no charge to You.
4.2 Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE TWILIO SMS SERVICES AND DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. YOU ACKNOWLEDGES THE INTERNET AND TELECOMMUNICATIONS PROVIDERS’ NETWORKS ARE INHERENTLY INSECURE AND THAT EVERYWHERE AND TWILIO WILL HAVE NO LIABILITY FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF END USER DATA WHILE IN TRANSIT VIA THE INTERNET OR A TELECOMMUNICATIONS PROVIDER’S NETWORK.
5. Additional Indemnification Obligations. You (the “Indemnifying Party”) shall defend, indemnify and hold harmless EVERYWHERE, and each of its officers, directors, owners, employees, agents, and Licensors (each, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against all third party Losses arising out of or in connection with any claims arising out of Your breach of the obligations set forth in Section 2.2 (Authorized User Responsibilities) of this Exhibit or the section of the Agreement captioned “Limitations on Use”.
6. EXCEPTIONS TO THE LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE SECTION OF THE AGREEMENT CAPTIONED “LIMITATION OF LIABILITY”, SUCH LIMITATIONS DO NOT APPLY TO ANY BREACH OF THE OBLIGATIONS SET FORTH IN SECTION 2.2 (AUTHORIZED USER RESPONSIBILITIES) OF THIS EXHIBIT BY YOU.
EULA Version History
Previous published versions of the EVERYWHERE EULA can be found by clicking on the link(s) below: