BEHOLDER TECHNOLOGY, LLC

TERMS OF USE

Last Modified: 5/24/2018

Welcome to beholderhq.com, a website of Beholder Technology, LLC (“Beholder,” “we,” “our,” or “us”). This page explains the terms by which you may use our website and any of our online and/or mobile services (collectively the “Service”). By accessing or using the Service, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and that you agree to be bound by this Terms of Use Agreement (“Agreement”) and to the collection and use of your information as set forth in the Beholder Privacy Policy (https://www.beholderhq.com/privacy- policy/), whether or not you are a registered user of our Service. Beholder reserves the right to make unilateral modifications to these terms and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access the Service (“Users”). 

PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. ALSO, PLEASE BE AWARE THAT, AS DESCRIBED BELOW IN GREATER DETAIL, WE ARE NOT AN EMERGENCY OR LIFE-SAVING SERVICE AND SHOULD NOT BE USED IN PLACE OF EMERGENCY SERVICES. 

1. Beholder Service

As part of the Service, Beholder owns and operates a platform that uses and displays footage and video feeds collected by Users (“User Footage”) through their own cameras (“User Hardware”) to create interactive maps with information about areas subject to potential environmental hazards. 

  1. Use of Our Service
  2. Eligibility

This is a contract between you and Beholder. You must read and agree to these terms before using the Service. If you do not agree, you do not have our permission to use the Service. You may use the Service only if you can form a binding contract with Beholder, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under thirteen (13) years of age is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Beholder. 

2. Access to the Service

Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service as permitted by the features of the Service. Beholder reserves all rights not expressly granted herein in the Service and the Beholder Content (as defined below). Beholder may terminate this license at any time for any reason or no reason. 

3. Beholder Accounts

Your account on the Service (“Beholder Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open a Beholder Account on behalf of a company, organization, or other entity, then: (a) “you” includes you and that entity; and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. 

You may never use another User’s Beholder Account without permission. When creating your Beholder Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs (including, without limitation, any charges you may incur) on your Beholder Account, and you must keep your password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and 

    

symbols) with your Beholder Account. You must notify Beholder immediately of any breach of security or unauthorized use of your Beholder Account. Beholder will not be liable for any losses caused by any unauthorized use of your Beholder Account. 

You may control your User profile and how you interact with the Service by changing the settings in your settings page. By providing Beholder your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers. 

6. Service Rules

You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non- automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Beholder servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein. 

We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create paid or unpaid usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement. 

You are solely responsible for your interactions with other Beholder Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Beholder shall have no liability for your interactions with other Users, or for any User’s action or inaction (including, without limitation, the disabling of your Beholder Account by another User). 

7. User Content

Some areas of the Service allow Users to create, submit or provide content such as User Footage, map and road updates, alerts, warnings, videos, images, comments, questions, and other content or information (any such materials a User submits, posts, displays, or otherwise makes available on the Service is referred to as “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours; however, by providing or sharing User Content through the Service, you agree to allow others to view, edit, and/or share your User Content in accordance with your settings and this Agreement. Beholder has the right (but not the obligation) in its sole discretion to remove any User Content from the Service. 

You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) 

 

seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. Beholder reserves the right, but is not obligated, to reject and/or remove any User Content that Beholder believes, in its sole discretion, violates any of these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization. 

For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction. 

In connection with your User Content, you affirm, represent and warrant the following: 

  1. You own or have the necessary rights, licenses and authorizations to: (i) use any User Hardware; and (ii) to use such User Hardware to record User Footage in the locations where you choose to record.
  2. You have any and all necessary rights, licenses and authorizations to collect or record any User Footage.
  3. You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
  4. You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
  5. Your User Content and Beholder’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
  6. Beholder may exercise the rights to your User Content you grant to Beholder under this Agreement.
  7. Beholder may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
  8. To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.

16. User Content License Grant

By making available any User Content on or through the Service, you hereby grant, and you represent and warrant that you have all rights necessary to grant, to Beholder a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Beholder’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels and for commercialization of your User Content for the benefit of Beholder (and its successors and affiliates). You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement. 

17. User Content Liability

Beholder takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Beholder shall not be liable for any damages you allege to incur as a result of or relating to any User Content. Without limiting the foregoing in this Section 5, Beholder will not be liable for any damages incurred as a result of any warnings, alerts or updates provided on the Service, as they are the original content of the User providing them and we are under no obligation to monitor such content or evaluate it for its accuracy or validity. 

18. Our Proprietary Rights

Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Beholder Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Beholder and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Beholder Content. Use of the Beholder Content for any purpose not expressly permitted by this Agreement is strictly prohibited. 

You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Beholder under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Beholder does not waive any rights to use similar or related ideas previously known to Beholder, or developed by its employees, or obtained from sources other than you. 

19. Paid Services; Payment Terms

Certain aspects of the Service may be provided for a fee or other charge (“Paid Services”). If you elect to use the paid aspects of the Service, you agree to our Pricing and Payment Terms (https:// www.beholderhq.com/pricing), as we may update them from time to time. Beholder may add new 

    

services for additional fees and charges and add or amend fees and charges for existing services, at any time in its sole discretion. 

After you place an order for Paid Services we will review the information you provided for validity by verifying your method of payment, billing, and/or shipping address. We may contact you (via email or phone) if additional information is required to accept and process your order. Invalid order information may result in delays processing your order. Without prior notification, Beholder maintains the right to limit your order quantity and the right to refuse to sell any of the Paid Services to any customer for any reason or no reason at all. If your order is canceled, we will attempt to notify you using the email address you have given us with the order. 

All information you provide in connection with a purchase or transaction or other monetary interaction with the Service must be accurate, complete and current. You agree to pay all charges incurred by users of your payment method used in connection with a purchase or transaction or other monetary interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions, Paid Services, or other monetary interactions. 

You may cancel your Beholder Account at any time; however, there are no refunds for cancellation. In the event Beholder suspends or terminates your Beholder Account or this Agreement for your breach of this Agreement, you understand and agree that you will receive no refund or exchange for any unused Paid Services, any license or subscription fees for any portion of the Services, any content or data associated with your Beholder Account, or for anything else. 

20. Actual Conditions; Assumption of Risk

When you use the Service (including, without limitation, reviewing any maps on the Service or subscribing to any alerts), you may find that actual conditions differ from the conditions as reported or made available on the Service. Exercise your independent judgment and use the Service at your own risk. You are responsible at all times for your conduct and its consequences. 

21. Text Messaging and Telephone Calls

By voluntarily providing your cell phone number to Beholder or your employer, who may provide Beholder such information under our agreements with your employer, you agree that Beholder may contact you by telephone, text (SMS), or multimedia (MMS) messages at that phone number, and you hereby consent to receiving such communications for transactional, operational, or informational purposes. You understand that such messages may be sent using an automatic telephone dialing system. You may unsubscribe from receiving text messages from Beholder at any time. To revoke your consent to receiving SMS or MMS messages from Beholder, please follow the unsubscribe procedures: 

Reply with STOP to the beholder SMS alerts or email support@beholderhq.com to request assistance. 

If you unsubscribe from receiving text messages from Beholder through the process described above, you may continue to receive text messages for a short period while Beholder processes your request(s). If you change or deactivate the phone number you provided to Beholder, you must update your account information and the phone number(s) attached to your Beholder Account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you. 

Standard data and message rates may apply for SMS and MMS alerts, whether you send or receive such messages. Please contact your mobile phone carrier for details. Your mobile phone carrier (e.g. T-Mobile, AT&T, Verizon, etc.) is not liable for delayed or undelivered messages. 

   

If, as part of your use of the Service, you provide the cell phone numbers of other individuals, you represent, warrant and covenant to Beholder that you have all necessary rights, licenses, permissions and authorizations to: (i) provide such cell phone number; and (ii) allow us to send the owner of that cell phone number messages as permitted under this Agreement. If the phone numbers you provided to Beholder are changed, deactivated, or you no longer have the rights, licenses, permissions and authorizations necessary to provide us such numbers, you must notify us immediately to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously provided by you or continuing to send communications without the owner’s authorization. 

22. Privacy

We care about the privacy of our Users. You understand that by using the Services you consent to the collection, use and disclosure of your personally identifiable information and aggregate data as set forth in our Privacy Policy (https://www.beholderhq.com/privacy-policy/), and to have your personally identifiable information collected, used, transferred to and processed in the United States. 

23. Security

Beholder uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk. 

24. DMCA Notice
Since we respect artist and content owner rights, it is Beholder’s policy to respond to alleged infringement 

notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). 

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Beholder’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing: 

  1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
  2. Identification of the copyrighted work that you claim has been infringed;
  3. Identification of the material that is claimed to be infringing and where it is located on the

Service; 

4. Information reasonably sufficient to permit Beholder to contact you, such as your address, telephone number, and, e-mail address; 

5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and 

6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner. 

The above information must be submitted to the following DMCA Agent: 

  

Attn: Address: 

Telephone: Email: 

DMCA Notice

Beholder Technology, LLC 

207 San Jacinto Blvd., Suite 301 Austin, TX 78701 +15127665388 info@beholderhq.com 

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES. 

Please note that this procedure is exclusively for notifying Beholder and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Beholder’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws. 

In accordance with the DMCA and other applicable law, Beholder has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Beholder may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. 

25. Third-Party Links and Information

The Service may contain links to third-party materials that are not owned or controlled by Beholder. Beholder does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the Service or share your User Content on or through any third-party website or service, you do so at your own risk, and you understand that this Agreement and Beholder’s Privacy Policy do not apply to your use of such sites. You expressly relieve Beholder from any and all liability arising from your use of any third-party website, service, or content, including without limitation User Content submitted by other Users. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Beholder shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers. 

26. Indemnity
A. User Indemnity

You agree to defend, indemnify and hold harmless Beholder and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your Beholder Account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code. 

B. Government Users

If you are using the Service on behalf of a government entity, that entity accepts these terms. Solely to the extent permitted by applicable law, regulation, or privileges and immunities, that entity will hold harmless and indemnify Beholder and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from any claim, action or proceeding arising from or related to the use of the Service or violation of these terms, including any liability or expense arising from claims, losses, damages, judgments, litigations costs and legal fees. 

27. No Warranty

   

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BEHOLDER OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, BEHOLDER, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE. 

BEHOLDER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SITE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SITE, AND BEHOLDER WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. 

FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. 

28. SPECIFIC DISCLAIMER OF EMERGENCY SERVICES

PLEASE TAKE SPECIAL NOTICE THAT THE SERVICE IS DESIGNED FOR THE LIMITED PURPOSE OF PROVIDING INFORMATION FOR NON-EMERGENCY AND/OR NON-LIFE-THREATENING SITUATIONS. BEHOLDER MAKES NO REPRESENTATIONS, GUARANTEES, OR WARRANTIES AS TO THE ACCURACY, COMPLETENESS, CURRENCY OR SUITABILITY OF THE INFORMATION PROVIDED VIA THE SERVICE. BEHOLDER SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY FOR ANY CLAIMS OR DAMAGES THAT MAY RESULT FROM YOUR RELIANCE ON THE SERVICE FOR LIFE-SAVING OR EMERGENCY PURPOSES OR FROM YOUR FAILURE TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS LIFE-SAVING OR EMERGENCY SERVICES. IN CASE OF AN EMERGENCY, YOU SHOULD ALWAYS CONTACT YOUR LOCAL EMERGENCY SERVICES. 

29. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BEHOLDER, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL BEHOLDER BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR BEHOLDER ACCOUNT OR THE INFORMATION CONTAINED THEREIN. 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BEHOLDER ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SITE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SITE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT 

  

SHALL BEHOLDER, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO BEHOLDER HEREUNDER OR $100.00, WHICHEVER IS GREATER. 

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF BEHOLDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. 

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. 

The Service is controlled and operated from facilities in the United States. Beholder makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States. 

  1. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
  2. Governing Law. You agree that: (i) the Service shall be deemed solely based in Texas; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than . This Agreement shall be governed by the internal substantive laws of the State of , without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Travis County, Texas for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Travis County, Texas is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
  3. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM BEHOLDER. For any dispute with Beholder, you agree to first contact us at info@beholderhq.com and attempt to resolve the dispute with us informally. In the unlikely event that Beholder has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Travis County, Texas, unless you and Beholder agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Beholder from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights. 
  4. Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SITE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND BEHOLDER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
  5. General
  6. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Beholder without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
  7. Notification Procedures and Changes to the Agreement. Beholder may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Beholder in our sole discretion. Beholder reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Beholder is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Beholder may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Use. If you do not agree to any of these terms or any future Terms of Use, do not use or access (or continue to access) the Service.
  8. Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Beholder in connection with the Service, shall constitute the entire agreement between you and Beholder concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
  9. No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Beholder’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
  10. California Residents. The provider of services is Beholder Technology, LLC. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of

 

Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.