Terms of Service
September 24, 2021
eDispatches, a division of Penguin Management, Inc. User Agreement
By using eDispatches services, including but not limited to, Voice Notification, Text Notification, App Notification, Priority Messaging, CAD Relay, Streaming Audio and/or others (the “Service”), you (the “Subscriber”) and the persons you add to the Service (“Recipients”) are accepting the terms and entering an agreement subject to the following terms with Penguin Management, Inc., whose principal place of business is 2 Kiel Ave, #303, Kinnelon, NJ 07405 (“Licensor”). Licensor retains all rights and ownership of this Service not specifically granted herein.
1. Subscriber may use this Service only provided that Subscriber does not use or allow the use of this Service in a manner which will (a) reverse engineer the Service; or (b) distribute this Service, any part of this Service, or any derivative work based on this Service to any person or machine not specifically licensed by Licensor for its use; or (c) use this Service for any use not authorized in this document.
2. SUBSCRIBER AGREES THAT THE SERVICE IS DESIGNED AS A SECONDARY
NOTIFICATION SYSTEM. SUBSCRIBER MAY NOT USE THIS SERVICE AS A PRIMARY OR CRITICAL MEANS OF NOTIFICATION OR RESPONSE TO ANY INCIDENT OR IN ANY OTHER SITUATION IN WHICH FAILURE OF THIS SERVICE TO PERFORM AS EXPECTED MAY RESULT IN INJURY, LOSS OF LIFE, LOSS OR DAMAGE TO PROPERTY, LOSS OF REVENUE, LOSS OF BUSINESS, OR OTHER HARDSHIP OF ANY KIND.
3. SUBSCRIBER AGREES THAT ALL RECIPIENTS WILL BE NOTIFIED OF THESE TERMS AND THAT THE RECIPIENT WILL AGREE TO THESE TERMS PRIOR TO RECIPIENT’S USE OF THE SERVICE.
4. Subscriber agrees that recordings of the alert phone calls to the recipients may be made for troubleshooting, quality control and quality assurance purposes.
5. GIS data is obtained from a number of sources. Every effort has been made to ensure accuracy of the provided GIS data. Penguin Management, Inc makes no guarantee, warranty or fitness for a particular purpose of GIS data. Penguin Management, Inc accepts no liability for any inconvenience, loss, damage or death as a result of reliance on the provided GIS data.
6. Indemnification. To the fullest extent permitted by law both parties hereby agree to defend, indemnify and hold harmless each other, including their principals, agents, employees and officers, from and against any and all claims, demands, costs or expenses (including reasonable attorneys’ fees) arising out of or relating to the equipment provided or performance of Licensor’s Services under this Agreement unless such claims, demands, costs or expenses are finally adjudicated to be a result of Licensor’s gross negligence or willful misconduct.
7. No Representations/Limitation of Liability.
(a) UNLESS EXPRESSLY DETAILED IN THE DESCRIPTION OF A SPECIFIC DELIVERABLE, LICENSOR MAKES NO WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE SERVICES TO BE PERFORMED OR DELIVERABLES TO BE PROVIDED HEREUNDER OR THE FUNCTIONALITY, PERFORMANCE, SUITABILITY OR CAPABILITY OF ANY COMPUTER SOFTWARE AND/OR HARDWARE OWNED, LEASED OR USED BY SUBSCRIBER AND/OR PROVIDED OR SUGGESTED BY LICENSOR.
(b) IN NO EVENT WILL LICENSOR OR ANY PRINCIPAL, OFFICER, DIRECTOR, AGENT, EMPLOYEE OR CONTRACTOR THEREOF BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR LICENSOR’S SERVICES OR DELIVERABLES HEREUNDER, OR ANY ERRORS OR OMISSIONS THEREIN OR RELATING THERETO, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) ANY LIABILITY OF LICENSOR, ITS AFFILIATES, LICENSORS, EMPLOYEES, AGENTS OR CONTRACTORS. INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OF, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORDS OR DATA, OR FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO THE LESSER OF (i) THE AMOUNT PAID TO LICENSOR BY SUBSCRIBER IN CONNECTION WITH THE SPECIFIC SERVICES OR DELIVERABLE FROM WHICH THE LIABILITY DERIVES OR (ii) THE AMOUNT PAID TO LICENSOR IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE.
8. Severability. The provisions of this Agreement are deemed by the parties to be severable, and the invalidity or unenforceability of any one or more of the provisions of this Agreement shall not affect the validity or enforceability of any other provision.
9. Waiver of Breach. The waiver by either party of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of any provision of this Agreement.
10. Arbitration. Any controversy or claim arising out of or relating to this Agreement or a breach thereof shall be settled by arbitration in accordance with the governing rules of the American Arbitration Association in Newark, NJ. Judgment upon the award rendered may be rendered in any court of the State of New Jersey. Subscriber and Licensor agree in the event of arbitration that the breaching party will pay and be responsible for all of the non-breaching party’s arbitration fees and costs, including reasonable attorneys’ fees, relating to any breach or violation of this Agreement (the “Cost”); provided that if both parties are held to be in breach of this Agreement, each party shall pay its or his own costs.
11. Entire Agreement. This Agreement sets forth the entire understanding between the parties relating to the subject matter of Licensor’s Services and Deliverables supersedes any previous understandings or agreements written or oral, between Licensor and Subscriber. This Agreement may be modified only by an agreement in writing, signed by both parties.
12. Successors, Heirs and Assigns. This Agreement shall inure to the benefit of and binding upon the parties hereto and their respective successors, heirs and assigns; provided, that neither party may assign this Agreement or any rights or duties hereunder without the prior written consent of the other party.
13. Governing Law. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New Jersey, without regard to principles of conflicts of law thereunder.
14. Counterparts. More than one counterpart of this Agreement may be executed by the parties hereto, and each fully executed counterpart shall be deemed an original. By using this Service, Subscriber is accepting and agreeing to the terms of this license.