Last Modified on May 5, 2016 PLEASE
READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING AGREEMENT.
Welcome to the GoPocketGuardian.com
your access and use of the Site and the PocketGuardian.com website software, PC
software, software plugins and extensions (the
"Software") made available through or in connection with the Site
(collectively, the "Service"). This ToU
sets forth the terms and conditions under which PocketGuardian,
LLC. provides you access to the Site and the Service.
In this ToU,
"us" and "our" means PocketGuardian,
LLC., a Maryland corporation.
PocketGuardian may amend this ToU at any time by
bound by any changes to this ToU. For your
convenience, the date of last revision is included at the top of this page. PocketGuardian may make changes to the Site and/or the
Service at any time. You understand that PocketGuardian
may discontinue or restrict your use of the Site and/or Service for any reason
or no reason with or without notice.
YOUR USE OF THE SITE AND/OR THE
SERVICE, OR BY CLICKING "I ACCEPT" IF PRESENTED WITH THIS TOU IN A
CLICK-THROUGH FORMAT, SIGNIFIES THAT YOU AGREE TO THIS TOU AND CONSTITUTES YOUR
BINDING ACCEPTANCE OF THIS TOU, INCLUDING ANY MODIFICATIONS THAT POCKETGUARDIAN
MAKES FROM TIME TO TIME.
- Representations and Warranties. PocketGuardian provides you,
as a legal guardian of a child or children under the age of 18, with the
ability to monitor certain information of your children. The Site and
Service provide you alert notifications to certain cell phone and computer
activities (including, but not limited to, text messages, image messages,
and the activities on messaging applications, such as Kik
and WhatsApp) of your children using computers
and/ or mobile devices on which the Software is installed (the “Accessed
Activities”). By using the Site and Service or clicking the "I
Accept" button, you hereby warrant, represent, covenant and certify
- All information that you provide to PocketGuardian is true and accurate, including,
without limitation, the ages of your children that will be using mobile
devices or computers with the Service;
- You will only use the Site and Service as an aid to
your efforts to protect and enhance the welfare of children for whom you
are the legal guardian (as more thoroughly described in Section 8.1,
- You will not use the Site, Service or the Accessed
Activities in violation of any Federal, State or local law, rule,
ordinance or governmental regulation you are subject to. Notwithstanding
the foregoing, PocketGuardian is not
responsible for your access or use of the Accessed Activities;
- You consent to PocketGuardian
granting you access to the Accessed Activities of each of your children
that you have registered with PocketGuardian
for your exclusive password restricted access through the Site or
- You will not use the Site or Service to monitor the
activities of any person that is 18 years of age or older or any other
person for whom you are not the legal guardian;
- You agree that PocketGuardian
is not responsible or liable in any manner for any content you encounter
through the Accessed Activities. PocketGuardian
is not responsible for any offensive, inappropriate, obscene, unlawful or
otherwise objectionable content you may encounter through the Accessed
is not responsible or liable for misidentification of the Accessed
- You will only use the Site and Service to monitor the
mobile device and computer activities of children for whom you are the
- You will properly follow all instructions and
documentation provided by PocketGuardian to you
- You will not allow any other person to access the
- You will only install the Software on computers and
mobile devices for which you are the owner; and
- You have advised all users of the computers and/or
mobile devices on which the Software is installed that you own those
computers and/or devices and may re-possess and inspect those computers
and/or devices and inspect the data they contain.
By clicking "I ACCEPT" or by simply using our Site or the
Service, you represent that you have read and consent to our Privacy
Policy and Disclosure and End
User License Agreement in
addition to this ToU. PocketGuardian
without notice, and the new versions will be available on the Site. If at
User License Agreement, you must immediately stop using the Site and/or
You acknowledge and agree that PocketGuardian
may during the installation process send notifications to the devices you
have registered stating that the device belongs to its authorized owner,
may be used only for safe and legal activities, and has security software
that maintains a record of the use of the device that may be accessed by
the owner of the device. Additionally, you acknowledge and agree that
Apple Corporation (“Apple”) may send notifications to the Apple iOS mobile operating system ("iOS")
device being monitored and any associated email addresses as a direct
result of using the Service. These requirements may change as the Service
evolves. You are responsible for any internet connection fees that you
incur when accessing the Service.
- Updates to this ToU. PocketGuardian may revise
this ToU as the Site and/or Service evolves. The
next time you use the Service after such an update, you may be prompted to
agree to or decline an update of this ToU. You
must agree to all revisions if you choose to continue using the Site and/or
Service. By using the Site and/or Service, you agree to the then-current
version of this ToU as posted on the Site. If at
any point you do not agree to any portion of the then-current version of
this ToU, you must immediately stop using the
Site and/or Service and uninstall the Software.
- Software Updates.
In an effort to improve the Service, PocketGuardian
may require that you download and install updates to the Software from
time to time. You acknowledge and agree that PocketGuardian
may update the Software with or without notifying you.
- Membership and Billing.
- Free Trials and Automatic Billed Renewals. Depending on our promotions and requirements at any
given time, PocketGuardian membership may start
with a free trial. Any free trial period shall be specified during
sign-up, if at all. Free trials may not be combined with any other
offers. You must have Internet access and a current valid accepted
payment method as indicated during sign-up ("Payment Method"),
to use the Service. If you are already a PocketGuardian
customer and/ or your email address has been associated with a PocketGuardian membership, you are not eligible to
receive a free trial.
you cancel your service at least twenty-four (24) hours before the end of the
free trial period, you will be automatically renewed at the then-published
monthly rate for our Service at the end of the trial period. You must cancel at
least twenty-four (24) hours prior to the end of your free trial period to
avoid charges to your selected Payment Method.
will continue to bill your Payment Method on a monthly basis for the Service,
until you cancel. To cancel, please contact PocketGuardian
Customer Support at firstname.lastname@example.org. You may cancel your membership at any time; however, there
are no refunds or credits for partially used periods.
SHALL NOT BE RESPONSIBLE FOR FAILURE TO CANCEL YOUR SUBSCRIPTION AT LEAST
TWENTY-FOUR (24) HOURS PRIOR TO THE END OF THE FREE TRIAL PERIOD.
offer a number of membership plans, including special promotional plans or
memberships with different limitations. We may also offer promotional
memberships offered by third parties in conjunction with the provision of their
own products and services. We are not responsible nor
liable for the products and services provided by such third parties. We reserve
the right to modify, terminate or otherwise amend our offered membership plans.
We will provide you with reasonable notice upon the modification or termination
of any of our offered membership plans. Unless otherwise stated differently,
month, year, monthly, or annual refers to your billing cycle (See
- Billing. NO REFUNDS. By starting your PocketGuardian
membership, you are expressly agreeing that we are authorized to charge
you a monthly or annual membership fee at the then published rate, and
any other charges you may incur in connection with your use of the
Service to the Payment Method you provided during registration (or to a
different Payment Method if you change your account information). As used
in this ToU, "billing" shall indicate
either a charge or debit, as applicable, against your Payment Method. The
membership fee will be billed at the commencement of your paying
membership (after any free trial period, if applicable, has ended) and
each month or year (as applicable) thereafter throughout the duration of
automatically bill your Payment Method each month or year (as applicable) on
the anniversary of the commencement of your paying membership. In the event
your paying membership began on a day not contained in a given month, we will
bill your Payment Method on the last day of such month. For example, if you
started your PocketGuardian membership or became a
paying member on January 31st, your next payment date is February 28th and your
Payment Method would be billed on that date. You acknowledge that the amount
billed each month or year may vary for reasons that may include differing
amounts due to promotional offers, and you authorize us to charge your Payment
Method for such varying amounts. For certain Payment Methods, the issuer of
your Payment Method may charge you a foreign transaction fee or related
periodically authorize your card in anticipation of membership or related
charges and do so without notifying you.
FEES AND CHARGES ARE FULLY EARNED UPON PAYMENT. PAYMENTS ARE NONREFUNDABLE AND
THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. YOU ARE FULLY LIABLE
FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES. YOU
ACKNOWLEDGE THAT POCKETGUARDIAN IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY
time, and for any reason, we may provide a refund, discount, or other
consideration to some or all of our members ("credits"). The amount
and form of such credits, and the decision to provide them, are at our sole and
absolute discretion. The provision of credits in one instance does not entitle
you to credits in the future for similar instances, nor does it obligate us to
provide credits in the future, under any circumstance. We may change the fees
and charges in effect, or add new fees and charges from time to time, but we
will give you advance notice of these changes by email.
want to use a different Payment Method or if there is a change in Payment
Method, such as your credit card validity or expiration date, you may edit your
Payment Method information by visiting the Site and clicking on the "Change
Password" link, available at the top of the Account Management page of the
Site. If your Payment Method reaches its expiration date and you do not edit
your Payment Method information or cancel your account (see,
"Cancellation" below), you authorize us to continue billing that
Payment Method and you remain responsible for any uncollected amounts.
- Ongoing Membership. We will bill the monthly or annual membership fee to
the Payment Method you provide to us during registration (or to a
different Payment Method if you change your account information). You may
not assign or transfer your subscription to any other person or entity.
You may cancel your PocketGuardian membership
at any time. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL-MONTH
OR YEAR MEMBERSHIP PERIODS. To cancel, please contact PocketGuardian Customer Support at email@example.com. POCKETGUARDIAN
IS NOT RESPONSIBLE FOR FAILURE TO CANCEL YOUR SUBSCRIPTION IF YOU DO NOT
PROPERLY FOLLOW THE CANCELLATION PROCEDURES SET FORTH HEREIN.
- Apple iOS System issues. PocketGuardian may provide
its Software and Service for use on or with Apple’s iOS.
From time to time Apple may change the requirements of iOS such that our Software and/or Service may become
inoperable for unexpected and undefined periods of time. As a result, PocketGuardian does not guarantee any up-time or
availability with respect to the Software or Service on iOS. In the event that any disruption to your
subscribed Service is caused by any change in iOS
(a “Disruption”) and such Disruption lasts for more than a continuous one
week period, PocketGuardian hereby agrees as
- all account holders with iPhone-only monitoring Service who request a credit
will be credited on a pro rata basis for that period of time in which
they were without the Service as a result of such Disruption
(“Disruption Credit Amount”) and such credit shall be applied against
any amounts owed by the account holder in the next monthly billing cycle
(whereby normal billing shall automatically resume) or if the account
holder decides to cancel their subscription, we will refund the
Disruption Credit Amount less any credit amounts applied to such account
holder’s account; and
- all holders in any Free Trial
period with iPhone only monitoring Service who
make a request to receive a renewed and restarted Free Trial Period
shall receive a renewed and restarted Free Trial period commencing on
the day in which Service is restored.
account holders with multiple device accounts including an iPhone
account shall be billed as usual.
- Data Availability.
- You hereby understand and
acknowledge that the iOS monitoring features
of the Service are dependent on the availability of data through Apple’s
iCloud backup service (“iCloud”),
and as a result, (i) the data displayed
through the Site and/or Service (e.g., the Accessed Activities) is not
necessarily real-time data as it reflects the data in the last available
iCloud backup, (ii) you may not be able to
view all text/SMS messages (or other Accessed Activities) transmitted
using the Apple iOS device being monitored and
(iii) you may not be able to view all deleted text/SMS messages on the
Apple iOS device being monitored. Accordingly,
you hereby agree and acknowledge that (i) the
Site and the Service relies on iCloud
software, (ii) PocketGuardian does not have
any control over the operation or functionality of the iCloud software, (iii) PocketGuardian
is not responsible, and shall not be liable, for any downtime in the
Site and/or Service arising from the iCloud
software or any changes to the iCloud software
and (iv) PocketGuardian is not responsible for
your relationship with Apple or any breach thereof, including any breach
by you of any of the terms and conditions governing your relationship
- You hereby understand and
acknowledge that, with respect to any Android based device, PocketGuardian stores alert notification data from
such devices (e.g., the Accessed Activities) for only three (3) months
and any such data that is greater than three (3) months old is deleted
by PocketGuardian, and as a result, will not
be available on the Site and/or the Service.
- For both iOS
and Android based devices, if a subscription is canceled for any reason,
PocketGuardian will store alert notification
data (e.g., the Accessed Activities) for such canceled subscription for
30 days from the date of cancelation. After 30 days from the date of
cancelation, no monitored data will be available on the Site and/or the
Service. However, PocketGuardian will keep
your general account information (such as your name and email address)
- Termination of Service. The Service is a closely-controlled monitoring service
owned and maintained by PocketGuardian, and PocketGuardian reserves the right to deny service to
any person at PocketGuardian's sole and absolute
discretion. The Service is offered with the understanding that PocketGuardian may terminate any account registered to
you and/or your access to the Service at any time, for any reason or no
reason, including without limitation for any violation of this ToU. PocketGuardian may stop
offering and/or supporting the Service at any time.
- Account Security.
You represent that you are an adult over the age of 18 and have the legal
capacity to enter a contract in the jurisdiction where you reside. Any
child that you intend to subject to our Service shall be under the age of
18 years old and unless you are the legal guardian of your child, you may
not monitor such a child or any child in which you are brother/ sister,
step brother or step sister, aunt or uncle, cousin or nephew, grandfather
or grandmother, great grandfather or great grandmother. You cannot use
our Service to monitor anyone who is not a child as defined hereinabove
without their express written consent. If you have any questions on
eligibility of the use of our Service, please contact us at firstname.lastname@example.org.
To access the Service, you must have an account. You can create an
account by completing the registration process.
- Account Security. Maintaining account security is very important. You
are entirely responsible for maintaining the confidentiality of the
account password. You agree to notify PocketGuardian
immediately if you believe that an account password may have been
- Account Sharing or Transfers. You may not share or transfer any account. You may
not disclose your password to anyone else.
- Cancellation by You. You have the right to cancel any account registered
to you at any time. You may cancel any account registered to you by
following the instructions on the Site.
- Effect of Account Termination or Cancellation. If you voluntarily terminate an account or allow that
account to lapse, you may reactivate that account at any time through the
account interface on the Site. Accounts terminated by PocketGuardian
for any type of abuse, including without limitation a violation of these ToU, may not be reactivated for any reason. Upon any
termination or suspension of Service, the monitoring of all computers
and/or mobile devices on which the Software is installed shall cease and
any information you have submitted on the Site or that which is related
to your account may no longer be accessed by you. Furthermore, PocketGuardian will have no obligation to maintain
any information stored in our database related to your account or to
forward any information to you or any third party.
- Use of Software. The Software may only be used in connection with the
Service and in accordance the Disclosure and End User License Agreement
and rules, restrictions or documentation set forth by PocketGuardian
from time to time. You understand that PocketGuardian,
in its sole discretion, may at any time for any reason suspend or
terminate any license thereunder and disable
any Software you may already have accessed or installed without prior
notice. PocketGuardian reserves the right to
add or remove features or functions to the Software at any time in its
sole discretion. When installed with a compatible web browser or mobile
device service, the Software periodically communicates with PocketGuardian servers. You acknowledge and agree
that PocketGuardian has no obligation to make
available to you any subsequent versions of its software applications.
- Uninstalling the Software. If you have installed the Software on a mobile device
and you wish to uninstall the Software, please contact customer
service email@example.com to uninstall extensions or plug-ins.
- Restrictions and Conditions of Use.
- Use of Site and Service. PocketGuardian permits you
to view and use a single copy of the Site solely for your personal,
non-commercial use. You agree not to license, reproduce, publicly
perform, publish, create derivative works from, distribute, transfer,
sell or re-sell any information, content, or services obtained from or
connected to the Site in any way not contemplated by this ToU.
- No Violation of Laws. You agree that you will not, in connection with your
use of the Site, Software or the Service, violate any applicable law or
regulation. Without limiting the foregoing, you agree that you will not
make available through the Software, Site and/or Service any material or
information that infringes any copyright, trademark, patent, trade
secret, or other right of any party (including rights of privacy or
- Software License Restrictions. Notwithstanding anything to the contrary, you may
not: (i) remove any proprietary notices from
the Service or any copy of the Software; (ii) cause, permit or authorize
the modification, creation of derivative works, translation, reverse
engineering, decompiling, disassembling or hacking of the Software or the
Service; (iii) sell, assign, rent, lease, act as a service bureau, or
grant rights in the Software or Service, including, without limitation,
through sublicense, to any other entity without the prior written consent
of PocketGuardian; or (iv) make any false,
misleading or deceptive statement or representation regarding PocketGuardian and/or the Software or Service.
- Misuse of Site and/or Service. Service. You may not connect to or use the Site and/or Service
in any way not expressly permitted by this ToU.
Without limiting the foregoing, you agree that you will not (a)
institute, assist, or become involved in any type of attack, including
without limitation denial of service attacks, upon the Site and/or
Service or otherwise attempt to disrupt the Site and/or Service or any
other person's use of the Site and/or Service; or (b) attempt to gain
unauthorized access to the Site, Service, accounts registered to other
users, or the computer systems or networks connected to the Site and/or
Service. Furthermore, you may not use the Site or Service to develop,
generate, transmit or store information that: (i)
is defamatory, harmful, abusive, obscene or hateful; (ii) in any way
obstructs or otherwise interferes with the normal performance of another
person's use of the Site and/or Service, (iii) performs any unsolicited
commercial communication not permitted by applicable law; (iv)
constitutes harassment or a violation of privacy or threatens other
people or groups of people; (v) is harmful to children in any manner;
(vi) violates any applicable law, regulation or ordinance; (vii) makes
any false, misleading or deceptive statement or representation regarding PocketGuardian and/or the Software or Service or
(viii) constitutes phishing, pharming or
impersonates any other person, or steals or assumes any person's identity
(whether a real identity or online nickname or alias).
- No Commercial Uses. You agree that you will not use any portion of the
Software, the Site or the Service for any commercial purpose or the
commercial benefit of any third party or charge any person, or receive
any compensation for, the use of any portion of the Software, the Site or
- No Data Mining or Harmful Code. You agree that you will not (a) intercept, examine or
otherwise observe any proprietary communications protocol used by the
Software or the Service, whether through the use of a network analyzer,
packet sniffer or other device; or (b) use any type of bot, spider, virus, clock, timer, counter, worm,
software lock, drop dead device, Trojan-horse routing, trap door, time
bomb or any other codes, instructions or third-party software that is
designed to provide a means of surreptitious or unauthorized access to,
or distort, delete, damage or disassemble, the Software, the Site or the
- Links from the Site. The Site may contain links to websites operated by
other parties. PocketGuardian provides these
links to other websites as a convenience, and use of these sites is at
your own risk. The linked sites are not under the control of PocketGuardian, and PocketGuardian
is not responsible for the content available on the other sites. Such
links do not imply PocketGuardian's endorsement
of information or material on any other site and PocketGuardian
disclaims all liability with regard to your access to and use of such
- Links to the Site. Unless otherwise set forth in a written agreement
between you and PocketGuardian, you must adhere
to PocketGuardian's linking policy as follows:
(i) the appearance, position and other aspects
of the link may not be such as to damage or dilute the goodwill
associated with PocketGuardian's and/or its
licensors' names and trademarks, (ii) the appearance, position and other
attributes of the link may not create the false appearance that your
organization or entity is sponsored by, affiliated with, or associated
with PocketGuardian, (iii) when selected by a
user, the link must display the Site on full-screen and not within a
"frame" on the linking Site, and (iv) PocketGuardian
reserves the right to revoke its consent to the link at any time and in
its sole discretion.
- Social Networks.
The Service includes features that operate in conjunction with certain
third party social networking websites that you visit ("Social
Network Features"). While your use of the Social Network Features is
governed by this ToU, your access and use of
third party social networking websites and the services provided through
these websites is governed by the terms of service and other agreements
posted on these websites. It is impossible for PocketGuardian
to determine in each case whether your use of the Social Network Features
would cause you to violate or breach the terms of service and/or other
agreements posted on these third party websites. You understand and
acknowledge that your use of the Social Network Features may cause you to
violate or breach the terms of service and other agreements posted on
these third party websites which could result in the termination of your
account and ability to access these third party websites and, in some
cases, could give rise to liability for damages. YOU AGREE THAT YOU ALONE
ARE RESPONSIBLE FOR YOUR USE OF THE SOCIAL NETWORK FEATURES AND THAT POCKETGUARDIAN
WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR YOUR VIOLATION OR BREACH OF
ANY TERMS OF SERVICE OR OTHER AGREEMENT THAT MAY RESULT FROM YOUR USE OF
THE SOCIAL NETWORK FEATURES.
- Intellectual Property.
PocketGuardian and the PocketGuardian
logo are trademarks/service marks of PocketGuardian.
Unauthorized use of any PocketGuardian
trademark, service mark or logo may be a violation of federal and state
The Site, Service and Software are protected by U.S. and international
copyright laws. Except for your use as authorized in this ToU, you may not modify, reproduce or distribute the
content, design or layout of the Site, Service or Software, or individual
sections of the content, design or layout of the Site without PocketGuardian's express prior written permission.
The Site and the Service are hosted and operated by PocketGuardian
in the United States.
- International Use.
We do not represent that materials on the Site are appropriate or
available for use in other locations. Persons who choose to access the
Site from other locations do so on their own initiative, and are
responsible for compliance with local laws, if and to the extent local
laws are applicable.
- Submitted Content.
PocketGuardian does not claim ownership of any
materials you make available through the Site. At PocketGuardian's
sole discretion, such materials may be included in the Service in whole or
in part or in a modified form. With respect to such materials you submit
or make available for inclusion on the Site, you grant PocketGuardian
a perpetual, irrevocable, non-terminable, worldwide, royalty-free and
non-exclusive license to use, copy, distribute, publicly display, modify,
create derivative works, and sublicense such materials or any part of such
materials. You hereby represent, warrant and covenant that any materials
you provide do not include anything (including but not limited to text,
images, music or video) to which you do not have the full right to grant
the license specified in this Section 15.
You must be at least 18 years old to obtain an account on this site. We do
not knowingly collect any personal information from children or sell any
products to children.
- DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, THE SITE AND SERVICE ARE
PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS FOR
YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM
COURSE OF DEALING OR USAGE OF TRADE. POCKETGUARDIAN MAKES NO WARRANTY AS
TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE
THROUGH, OR THE PERFORMANCE OF, THE SITE OR THE SERVICE. YOU ARE
RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE
SITE AND/OR THE SERVICE IS AT YOUR SOLE RISK. POCKETGUARDIAN DOES NOT
WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR SERVICE AT
THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE OR THE SERVICE WILL
BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT
THE SITE OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
PROVIDES NO WARRANTY OR GUARANTY OF ANY KIND THAT (I) YOU WILL RECEIVE ANY TYPE
OF BENEFIT FROM THE USE OF THE SERVICE; (II) THE SERVICE WILL FIND OR
COMMUNICATE TO YOU EVERY EXAMPLE OR ALL EXAMPLES OF INTERNET OR MOBILE DEVICE
CONTENT ABOUT THE SUBJECT(S) OF THE SEARCHES TO BE UNDERTAKEN BY THE SERVICE;
OR (III) THE SERVICE WILL MEET YOUR EXPECTATIONS.
some states or jurisdictions do not allow the disclaimer of implied warranties,
the foregoing disclaimer may not apply to you.
- LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, POCKETGUARDIAN,
ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE
"RELATED PARTIES") DISCLAIM ALL LIABILITY, WHETHER BASED IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND
FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR
IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, THE SOFTWARE
AND/OR SERVICE, EVEN IF POCKETGUARDIAN AND/ OR RELATED PARTIES HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE
FOREGOING, IN NO CASE SHALL THE LIABILITY OF POCKETGUARDIAN OR ANY OF THE
RELATED PARTIES EXCEED THE GREATER OF $50 OR THE AMOUNT THAT YOU PAID TO
US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME THE CAUSE
OF ACTION GIVING RISE TO LIABILITY AROSE.
some states or jurisdictions do not allow the exclusion or the limitation of
liability for consequential or incidental damages, in such states or
jurisdictions, the liability of PocketGuardian and
its affiliates shall be limited to the fullest extent permitted by law.
You agree to indemnify, defend and hold PocketGuardian
and the Related Parties harmless from any and all claims, demands, damages
or other losses, including reasonable attorneys' fees, resulting from or
arising out of your use of the Site, the Software and/or the Service or
any breach by you of this ToU or any other policies
that PocketGuardian may issue for the Site, the
Software and/or Service from time to time.
- Governing Law; Jurisdiction. Regardless of which jurisdiction you reside, this ToU shall be is governed by, and will be construed
under, the laws of the United States of America and the law of the State
of Maryland, without regard to choice of law principles. The application
of the United Nations Convention on Contracts for the International Sale
of Goods is expressly excluded. If you reside in the United States, except
as provided in Section 22 below (and claims proceeding in any small claims
court), all disputes arising out of or related to your use of the Site,
the Software and/or the Service shall be subject to the exclusive
jurisdiction of the state and federal courts located within Baltimore
County, Maryland and you agree to submit to the personal jurisdiction and
venue of such courts.
- Binding Arbitration.
applies to you only if you reside in the United States.
- Arbitration Procedures. You and PocketGuardian
agree that, except as provided in Section 22.4 below, all disputes,
controversies and claims related to this ToU
(each a "Claim"), shall be finally and exclusively resolved by
binding arbitration, which may be initiated by either party by sending a
written notice requesting arbitration to the other party. Any election to
arbitrate by one party shall be final and binding on the other. The
arbitration will be conducted under the Streamlined Arbitration Rules and
Procedures of JAMS that are in effect at the time the arbitration is
initiated (the "JAMS Rules") and under the terms set forth in
this ToU. In the event of a conflict between
the terms set forth in this Section 22 and the JAMS Rules, the terms in
this Section 22 will control and prevail.
otherwise set forth in Section 22.4, you may seek any remedies available to you
under federal, state or local laws in an arbitration action. As part of the
arbitration, both you and we will have the opportunity for discovery of
non-privileged information that is relevant to the Claim. The arbitrator will
provide a written statement of the arbitrator's decision regarding the Claim,
the award given and the arbitrator's findings and conclusions on which the
arbitrator's decision is based. The determination of whether a Claim is subject
to arbitration shall be governed by the Federal Arbitration Act and determined
by a court rather than an arbitrator. Except as otherwise provided in this ToU, (i) you and PocketGuardian may litigate in court to compel arbitration,
stay proceedings pending arbitration, or confirm, modify, vacate or enter
judgment on the award entered by the arbitrator; and (ii) the arbitrator's
decision shall be final, binding on all parties and enforceable in any court
that has jurisdiction, provided that any award may be challenged if the
arbitrator fails to follow applicable law.
AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND POCKETGUARDIAN
WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration will take place in Rockville, Maryland, unless the
parties agree to video, phone and/or internet connection appearances.
You and PocketGuardian agree that any
arbitration shall be limited to the Claim between PocketGuardian
and you individually. YOU AND POCKETGUARDIAN AGREE THAT (A) THERE IS NO
RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION
BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR
AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE
CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL
BE JOINED WITH ANY OTHER ARBITRATION.
- Exceptions to Arbitration. You and PocketGuardian
agree that any Claim seeking to enforce or protect, or concerning the
validity of, any of your or PocketGuardian's
copyrights, trademarks, or patents and any claim for equitable relief
related to such Claims are not subject to the above provisions concerning
negotiations and binding arbitration. In addition to the foregoing,
either party may assert an individual action in small claims court for
Claims that are within the scope of such court's jurisdiction in lieu of
- ToU Revisions.
This ToU may only be revised in a writing signed by PocketGuardian, or published by PocketGuardian
on the Site.
- No Partnership.
that no joint venture, partnership, employment, or agency relationship exists
between you and PocketGuardian as a result of this ToU or your use of the Service or the Software.
may assign this ToU, in whole or in part, to any
person or entity at any time with or without your consent. You may not assign
the ToU without PocketGuardian's
prior written consent, and any unauthorized assignment by you shall be null and
part of this ToU is determined to be invalid or
unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
- Attorneys' Fees.
event any litigation or arbitration is brought by either party in connection
with this ToU, the prevailing party shall be entitled
to recover from the other party all the reasonable costs, attorneys' fees and
other expenses incurred by such prevailing party in the litigation.
- No Waiver.
failure to enforce any provision of this ToU shall in
no way be construed to be a present or future waiver of such provision, nor in
any way affect the right of any party to enforce each and every such provision
thereafter. The express waiver by us of any provision, condition or requirement
of this ToU shall not constitute a waiver of any
future obligation to comply with such provision, condition or requirement.
notices given by you or required under this ToU shall
be in writing and addressed to: PocketGuardian, LLC., P.O. Box 1412 Randallstown, MD 21133 USA Attention:
- Export Administration.
comply fully with all relevant export laws and regulations applicable to you, including, without limitation, the U.S. Export
Administration Regulations if you are a resident of the United States
(collectively "Export Controls"). Without limiting the generality of
the foregoing, you will not, and you will require your representatives not to,
export, direct or transfer the Software, or any direct product thereof, to any
destination, person or entity restricted or prohibited by the Export Controls.
- U.S. Government Rights.
are, or are entering into this Agreement on behalf of, any agency or
instrumentality of the United States Government, the Software is
"commercial computer software" and "commercial computer software
documentation," and pursuant to FAR 12.212 or DFARS 227.7202, and their
successors, as applicable, use, reproduction, and disclosure of the Software
are governed by the terms of this Agreement.
- Equitable Remedies.
agree that PocketGuardian would be irreparably
damaged if the terms of this ToU were not
specifically enforced, and therefore you agree that we shall be entitled,
without bond, other security, or proof of damages, to appropriate equitable
remedies with respect to breaches of this ToU, in
addition to such other remedies as we may otherwise have available to us under
- Entire Agreement.
This ToU, including the documents expressly incorporated by
reference, constitutes the entire agreement between you and us with respect to
the Site and/or Service and supersedes all prior or contemporaneous
communications, whether electronic, oral or written, between you and us with
respect to the Site, the Software and/or Service.