1. General. Nimb requires purchasers and users (“you”, “user” or a “Customer”) of Nimb devices, including Nimb applications or apps (“Products”), to subscribe for monitoring services to alert public emergency services through Nimb's third party operators of monitoring stations when an emergency arises, including emergency dispatching services, false alarm filtering, emergency information gathering, and notifying a third party Public Safety Answering Point/PSAP, Emergency Response Providers/ERPs or other first responders of a Customer's alarm event or other emergency or safety situation (the “Monitoring Services”). Monthly subscription to the Monitoring Services is mandatory, and you may be precluded from purchasing and using the Products including the Nimb ring or the Nimb Apps without subscribing to the Monitoring Services. Initially, the Monitoring Services may only be available in the 50 States of the United States of America and the District of Columbia.
2. Agreement to Terms & Conditions; Charges for Monitoring Services: By subscribing for Monitoring Services, you agree to all of the terms and conditions of the Monitoring Services and you agree to pay the monthly service charges for the Plan you chose, plus any applicable taxes (collectively, the "Service Charges") for the recurring Monitoring Services selected, such Service Charges to be paid in advance. You can review pertinent information about the various Plans offered by Nimb, including price levels based on minimum lengths of monthly service, by going to Nimb's web site or clicking on https://www.nimb.com/.
By subscribing to the Monitoring Services, you agree that your subscription will automatically renew at the end of the applicable subscription period, and thereafter will renew for the same subscription period for which you initially subscribed, or if you choose to renew after the initial period on a month to month basis then your subscription will automatically renew on the same day each month (i.e., the day you initially subscribed). Unless you notify Nimb before your subscription charge is incurred that you want to cancel or do not want to auto renew, your subscription will automatically renew for the applicable period and you authorize Nimb (without notice to you, unless required by applicable law) to collect the then-applicable subscription charge (and any applicable taxes), using the credit card Nimb has on record for you. You can turn off the auto-renew feature for your subscription by reaching out to Nimb at firstname.lastname@example.org.
You may cancel your subscription effective as of the end of the then applicable subscription period, or if you renewed your subscription after the initial period on a month to month basis then you may cancel your subscription effective as of last day of the applicable subscription period ending after you contact Nimb to indicate that you are electing to terminate your monitoring services subscription.
As indicated above, at the end of your initial subscription commitment period, and then again at the end of any subsequent subscription period, your subscription will automatically continue for an additional period equal to your immediately preceding subscription period. If you do not wish your subscription to renew automatically, or if you want to change or terminate your subscription, you will need to contact Nimb at email@example.com and follow the instructions to cancel or change your subscription period. And, you must contact Nimb at firstname.lastname@example.org and follow the instructions to cancel your subscription, even if you have otherwise deleted your Nimb account or if you have deleted the Nimb application from your device. Deleting your Nimb account or deleting the Nimb application from your device does not cancel your subscription; Nimb will retain all funds charged to you until you cancel your subscription by contacting Nimb at email@example.com and following the cancellation instructions.
Nimb does not provide refunds or credits for any partially unused subscription periods.
Nimb reserves the right in its sole discretion to change the monthly pricing under any or all of its Plans by providing notice to Customers of any such change which may become effective once the notice is provided by Nimb to Customers.
Nimb may impose a one-time late charge on each payment that is more than 10 days past due, which will be $5.00 or the highest amount permitted by law, whichever is less. Nimb may impose returned check charges of up to $25.00 on each returned check. By subscribing for Monitoring Services you authorize and consent to Nimb: (i) reporting Customer's payment performance to credit reporting agencies; (ii) obtaining and transmitting Customer's Taxpayer ID Number to our affiliates and credit reporting agencies for purposes of verifying Customer's credit history and rating; and (iii) record telephone conversations with you and third party operators of monitoring stations for verification and quality control purposes.
3. Additional Charges. In addition, you agree to pay, or to reimburse Nimb if Nimb is required to pay, any false alarm fines and assessments, and all taxes, fees or other charges of any local governmental authority that are imposed on or relate to the Monitoring Services, other than taxes assessed on Nimb's net income. In addition, you shall be responsible for modifications to the Products due to changes in standards and regulations of governmental or regulatory authorities, including but not limited to, the Federal Communications Commission (“FCC”), Underwriters Laboratories, or any fire or police department. You also agree to be responsible for and will pay all charges incurred for services provided to you or on your behalf by first responders or any other emergency personnel and you will defend and hold harmless Nimb from such charges.
4. Early Termination of Monitoring Services; Default. Nimb may, at its option and discretion at any time upon prior notice to you, terminate the Monitoring Services without liability to you if: (1) the equipment or facilities, or the telephone network, used by Nimb's third party operators of monitoring stations are destroyed, damaged or malfunction so that it is impractical for such operators to continue provide the Monitoring Services; or (2) Nimb's third party operators of monitoring stations cannot acquire or retain the transmission connections or authorization to transmit signals between your Nimb device and such operator's monitoring stations or between such stations and any PSAPs; (3) Nimb determines that it is impractical to continue Monitoring Services due to circumstances beyond Nimb's reasonable control; or (4) you fail to follow Nimb's recommendations to repair or replace any defective Product, or fail to follow operating instructions for, or tamper with, any Product. Additionally, upon 30 days prior notice to you, we may terminate the Monitoring Services for any other reason at Nimb's discretion. If Nimb terminates the Monitoring Services for any of these reasons, then Nimb will refund any remaining advance Service Charges for Monitoring Services to be provided after the termination date, less any other charges due, but Nimb shall not have any other liability or responsibility as a result of any such termination. In addition, you will be in breach, and Nimb may, at its option, terminate the Monitoring Services and exercise Nimb's remedies for the enforcement of this Agreement if: (1) you fail to pay any charges or other amounts due hereunder or under any other agreement you have with Nimb, and such failure continues for 10 days after Nimb provides written notice to you; (2) you fail to comply with any non-monetary obligation or covenant contained herein or in any other agreement you have with us, and such failure continues for 30 days after we provide written notice to you of such failure; or (3) you become a debtor in a bankruptcy or other insolvency proceeding. We may charge you interest at the highest legal rate allowed on past due amounts. You agree to pay us all reasonable costs, fees and expenses incurred by us in connection with the enforcement of this Agreement, including collection expenses, court costs, and reasonable attorneys' fees.
5. Disclaimer of Liability; Nimb is Not an Insurer. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, YOU AGREE THAT: (A) NIMB IS NOT AN INSURER OF YOU OR OF ANY OF YOUR PROPERTY. IT IS YOUR RESPONSIBILITY TO OBTAIN ADEQUATE INSURANCE COVERING YOU AND YOUR PROPERTY AND ANY OTHER AFFECTED PERSONS AND PROPERTY FOR WHOM OR FOR WHICH YOU MAY BE RESPONSIBLE. NIMB'S SERVICE CHARGES ARE BASED ON THE VALUE OF THE SERVICES WE PROVIDE AND OUR LIMITED LIABILITY UNDER THIS AGREEMENT, AND ARE NOT BASED ON THE VALUE OF YOUR PROPERTY, OR THE LIKELIHOOD OR POTENTIAL EXTENT OR SEVERITY OF PERSONAL INJURY (INCLUDING DEATH) TO YOU OR ANY OTHER AFFECTED PERSONS. THE NIMB PRODUCTS AND SERVICES MAY NOT ALWAYS OPERATE AS INTENDED FOR VARIOUS REASONS, INCLUDING NIMB'S NEGLIGENCE OR OTHER FAULT. NIMB CANNOT PREDICT THE POTENTIAL AMOUNT, EXTENT OR SEVERITY OF ANY DAMAGES OR INJURIES THAT MAY BE INCURRED BY YOU AND OTHER PERSONS WHICH COULD BE DUE TO THE FAILURE OF THE NIMB PRODUCTS OR SERVICES TO WORK AS INTENDED. AS SUCH, TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW: (I) YOU AGREE THAT THE LIMITS ON NIMB'S LIABILITY AND THE WAIVERS AND INDEMNITIES SET FORTH IN THIS AGREEMENT ARE A FAIR ALLOCATION OF RISKS AND LIABILITIES BETWEEN YOU, NIMB AND ANY AFFECTED THIRD PARTIES; EXCEPT AS PROVIDED IN PARAGRAPH 6 BELOW OR AS MAY OTHERWISE BE REQUIRED BY APPLICABLE LAW, YOU WAIVE ALL RIGHTS AND REMEDIES AGAINST NIMB, INCLUDING ALL RIGHTS OF SUBROGATION, THAT YOU, ANY INSURER OR ANY OTHER THIRD PARTY MAY HAVE DUE TO ANY LOSSES OR INJURIES YOU OR OTHERS MAY INCUR ARISING OUT OF OR RELATING TO THE MONITORING SERVICES OR ANY FAILURE THEREOF. This Paragraph 5 shall survive the termination of the Monitoring Services by you or Nimb for any reason.
6. Limitation of Liability. NEITHER NIMB NOR ANY PERSON OR ENTITY AFFILIATED WITH NIMB SHALL BE LIABLE FOR ANY LOSSES ARISING OUT OF, RESULTING FROM, OR IN ANY WAY DUE OR ATTRIBUTABLE TO, EITHER DIRECTLY OR INDIRECTLY THE CONDITION, NONFUNCTIONING, MALFUNCTION, FAULTY DESIGN, OR FAILURE IN ANY RESPECT OF ANY PRODUCT OR MONITORING SERVICES TO OPERATE OR PERFORM AS INTENDED (AN “ALARM FAILURE EVENT”). IF, NOTWITHSTANDING THE PROVISIONS OF THIS PARAGRAPH 6, NIMB OR ANY PERSON OR ENTITY AFFILIATED WITH NIMB IS DETERMINED TO BE RESPONSIBLE FOR ANY LOSSES ARISING FROM ANY ALARM FAILURE EVENT, YOUR CLAIMS AGAINST NIMB AND/OR ANY PERSON OR ENTITY AFFILIATED WITH NIMB SHALL BE LIMITED TO $1,000.00 UNLESS SUCH LIMITATION IS EXPRESSLY PROHIBITED UNDER APPLICABLE LAW. EXCEPT AS MYA BE PROHIBITED UNDER APPLICABLE LAW, THIS AMOUNT IS YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY ALARM FAILURE EVENT, EVEN IF CAUSED BY NIMB'S NEGLIGENCE OR THAT OF NIMB'S AFFILIATES OR ANY NIMB'S OR SUCH AFFILIATES RESPECTIVE EMPLOYEES OR AGENTS, BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, OR OTHER FAULT.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, AND UNLESS PROHIBITED UNDER APPLICABLE LAW, IN NO EVENT SHALL NIMB BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECULATIVE, SPECIAL, EXEMPLARY, OR OTHER INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE, EVEN IF NIMB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The terms of this Paragraph 6 shall survive the termination of the Monitoring Services by you or Nimb for any reason.
7. Hold Harmless. If any third party files any claim or legal action against Nimb, or any other person or entity authorized to act on Nimb's behalf, arising from any Alarm Failure Event as defined above, then you agree to indemnify, defend and hold Nimb completely harmless from any such actions, including all damages, expenses, costs, and attorneys' fees that Nimb may incur. This indemnification shall apply even if such actions arise from Nimb's negligence, breach of contract, breach of warranty, strict liability or other fault (and/or the negligence, breach of contract, breach of warranty, strict liability or other fault of any other person or entity authorized to act on Nimb's behalf), subject to our limited liability set forth above. This indemnification shall not apply if such actions are caused directly by Nimb's gross negligence or intentional misconduct. This provision shall survive the termination of the Monitoring Services by you or Nimb for any reason.
8. Limitations on Monitoring Services. Local governmental regulations and industry standards designed to reduce false alarms may result in conditions or restrictions on the dispatch of ERPs in response to a Customer's alarm event or other emergency or safety situation (an “Alarm Event”), and such conditions or restrictions may result in delays of notification of authorities or require that additional measures be taken to verify the Alarm Event before dispatch. Nimb does not guarantee that such additional measures will be successful or that ERPs will be dispatched should an Alarm Event occur. Nimb may, without notice to you, in response to governmental or insurance requirements, or otherwise in Nimb's sole discretion, alter, amend or discontinue any of Nimb's policies and procedures for a response to an Alarm Event.
You understand that all wireless devices, including but not limited to, wireless networks, local area networks or WiFi networks and paths, and other wireless devices are not physically connected by electrical wire and require a radio frequency network or path to operate. THESE WIRELESS DEVICES MAY NOT OPERATE IF THE RADIO FREQUENCY NETWORK OR PATH IS IMPAIRED, INTERRUPTED, OR BECOMES INOPERABLE FOR ANY REASON WHATSOEVER. THESE WIRELESS DEVICES MAY USE FREQUENCIES AND SIGNAL PATHS THAT ARE NOT ENCRYPTED, AND ARE THUS SUBJECT AND VULNERABLE TO, INTERUPTION, INTERCEPTION, INTERFERRENCE, CORRUPTION, ALTERATION, BLOCKAGE, MANIPULATION, AND TAMPERING. Nimb is not responsible in any manner for the operation of any wireless network or paths.
9. Assignment. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise, without Nimb's prior written consent, which may be withheld, conditioned or delayed by Nimb for any reason. Nimb may assign these Monitoring Services Subscription Terms and Conditions (this “Agreement”) or subcontract any or all of Nimb's obligations under this Agreement without your consent and without notice to you. The provisions of this Agreement (i) apply to and inure to the benefit of each of our permitted assignees, subcontractors and/or suppliers, and (ii) bind you to all such persons or entities with the same force and effect as they bind you to Nimb. This includes the protections set forth in Paragraphs 5, 6 and 7. In this Agreement, “Monitoring Services” shall be deemed to include all alarm monitoring-related services, including but not limited to all such services provided, in whole or in part, though or in common with any software that Nimb licenses from its software suppliers.
10. Severability. If any of the provisions of this Agreement shall be determined by a court of competent jurisdiction to be invalid or unenforceable, then the remaining provisions of this Agreement shall remain in full force and effect.
11. Governing Law and Dispute Resolution. You agree that any dispute between you and Nimb arising out of or relating to this Agreement or any aspect of the Monitoring Services (collectively, “Disputes”) will be governed by the arbitration procedure outlined in Nimb's Limited Warranty (available for review on Nimb's web site), which procedure is incorporated herein by reference. As provided in Nimb's Limited Warranty, the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflict of laws principles.
12. Entire Agreement. This Agreement is the entire agreement between you and us, and supersedes all previous contracts or agreements between you and us regarding the Monitoring Services. You agree that we are not bound by any representation, promise, condition, inducement or warranty, express or implied, not included in this Agreement.
This Agreement and your agreement to be bound hereby may be evidenced by a click through procedure or an “I agree” button activation or any or other electronic means including your payment of the Service Charges, and all such mechanisms are to be treated as your original signature for all purposes and given the same legal force and effect as a signed paper contract.
IMPORTANT NOTICE: By subscribing to the Monitoring Services you are representing to Nimb that you are at least 18 years of age, and you have read, understood, and agree to this Agreement.
PLEASE NOTE THAT THE TERMS OF THIS AGREEMENT MAY BE UPDATED, MODIFIED OR OTHERWISE CHANGED FROM TIME TO TIME BY NIMB IN ITS SOLE DISCRETION SO YOU ARE ADVISED TO REVIEW THE TERMS OF THIS AGREEMENT PERIODICALLY. ANY SUCH CHANGES SHALL ONLY APPLY TO ANY MONITORING SERVICES PERFORMED FOR OR RENDERED TO YOU ON OR AFTER THE DATE OF ANY SUCH CHANGE.
DATE OF LAST UPDATE: March 28, 2019 (subject to further changes)
If you are a Customer located in the USA or a Customer located outside the USA but you are using the Monitoring Services while you are present in the USA, then you also agree to the additional following terms and conditions of use of the Monitoring Services made applicable by Nimb's third party operator (“USA Operator”) of monitoring stations in the USA:
Permitted Uses and Restrictions.
Customers shall not access or use the Monitoring Services for any illegal, unlawful or improper purpose (as determined by the USA Operator from time-to-time, in its sole but reasonable discretion), including (i) to harass or bully anyone; (ii) to falsely accuse or defame anyone; or (iii) to simulate or portray untrue or fictitious scenarios. You agree that the USA Operator is authorized to maintain and use for any and all purposes deemed reasonably appropriate by the USA Operator in compliance with all applicable laws your phone number, name and contact information, email address(es), location, and any other information you may provide in connection with the Monitoring Services (the “Data”). You acknowledgement and accept that there is a risk that unauthorized persons may gain access to the Data through use of the Monitoring Services. You consent to the USA Operator collecting Data through the use of the Monitoring Services. You also agree to keep, confidential all passwords, account information and access codes that permit access to or the use of the Monitoring Services. Upon termination or suspension by the USA Operator of Nimb's agreement with the USA Operator (the” Operator Agreement”), the USA Operator may immediately, and without notice, disable your access to the Monitoring Services and cancel all passwords or other access codes.
The USA Operator shall be the sole and exclusive owner of all right, title and interest in and to all data (except for the personal identifiable information (“PII”) of each Customer), software, hardware, firmware, shareware, codes, information and documentation in connection with, related to, or resulting from the USA Operator's application program interface (the “API”) and Monitoring Services. You will have no rights whatsoever in any of the foregoing except that you shall retain all ownership rights to any PII. For all purposes hereunder, PII shall mean is information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context including any information that can be used to distinguish or trace an individual's identity, such as name, social security number, date and place of birth, mother's maiden name, or biometric records; and any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information.
The USA Operator does not guarantee that the Monitoring Services can be accessed through, or will be compatible with, all devices or communication services. The Monitoring Services may fail due to a variety of circumstances, including circumstances or conditions beyond the USA Operator's reasonable control. Communication services may be interrupted, circumvented or otherwise compromised. Such communication services may be beyond the USA Operator's control, and the USA Operator may not be able to assist in resolution of problems with respect to such communication services. Your use of the Monitoring Services may be limited by your communications service provider or by the capabilities or capacities of third party hardware, software and services. If such third party hardware, software or services are incompatible, inoperative, interrupted or circumvented, requisite Data may not be received by the USA Operator and the Monitoring Services may not be available.
YOU MAY ONLY USE THE MONITORING SERVICES APPLICATION WITHIN THE 50 U.S. STATES AND THE DISTRICT OF COLUMBIA.
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AGREE THAT THE MONITORING SERVICES ARE INTENDED TO REDUCE (BUT NOT ELIMINATE) THE RISK OF LOSS, HARM, OR DANGER; AND THAT THE PRICE OF THE MONITORING SERVICES IS INSUFFICIENT TO GUARANTEE THAT NO LOSS OR DAMAGE WILL OCCUR. EXCEPT AS SPECIFICALLY PROVIDED IN THIS IN THESE ADDITIONAL TERMS AND CONDITIONS OF USE, THE USA OPERATOR HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE MONITORING SERVICES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT OF THIRD PARTY RIGHTS. THE USA OPERATOR DOES NOT WARRANT AGAINST INTERFERENCE WITH ENJOYMENT OF THE MONITORING SERVICES BEYOND ITS CONTROL. EXCEPT AS SPECIFICALLY PROVIDED IN THESE ADDITIONAL TERMS AND CONDITIONS OF USE, THE USA OPERATOR DOES NOT WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE MONITORING SERVICES WILL MEET ANY CUSTOMER'S REQUIREMENTS, (B) THE OPERATION OF THE MONITORING SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR (C) DEFECTS IN THE MONITORING SERVICES WILL BE CORRECTED. THE MONITORING SERVICES ARE NOT GUARANTEED IN ALL SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY THE MONITORING SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE. THERE IS NO GUARANTEE THAT THE MONITORING SERVICES WILL FUNCTION AS INTENDED, THAT ALL OR ANY FUNCTIONALITY WILL BE OPERATIONAL AT ALL TIMES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NIMB, THE USA OPERATOR OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE ANY WARRANTY. SOME JURISDICTIONS DO NOT PERMIT THE WAIVER OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE WAIVERS AND LIMITATIONS MAY NOT APPLY.
THE SERVICES ARE NOT REPLACEMENTS FOR 911 OR ANY OTHER PUBLIC EMERGENCY SERVICES. IF YOU ARE IN IMMEDIATE DANGER, ARE SUFFERING A MEDICAL EMERGENCY OR ARE THE VICTIM OF A CRIME, YOU MUST CALL 911 AND/OR THE APPROPRIATE AUTHORITIES AND DO NOT RELY ON THE MONITORING SERVICES.
Limitation of Liability.
THIS SECTION SIGNIFICANTLY LIMITS THE USA OPERATOR'S LIABILITY TO YOU. READ THIS SECTION CAREFULLY.
THE USA OPERATOR IS NOT AN INSURER AND THE MONITORING SERVICES ARE NOT A SUBSTITUTE FOR INSURANCE. NIMB IS REQUIRED BY THE OPERATOR AGREEMENT TO MAINTAIN COMMERCIAL GENERAL LIABILITY INSURANCE WITH COVERAGE OF NOT LESS THAN $1,000,000 PER OCCURRENCE (COLLECTIVELY, THE “REQUIRED INSURANCE”). TO THE EXTENT THE REQUIRED INSURANCE IS APPLICABLE, YOU AGREE TO LOOK EXCLUSIVELY TO THE REQUIRED INSURANCE IN THE EVENT OF ANY DAMAGES CAUSED BY THE MONITORING SERVICES, AND YOUR RECOVERY (OR THE RECOVERY OF ANY THIRD PARTY) IS LIMITED TO ANY PROCEEDS RECEIVED FROM THE REQUIRED INSURANCE. YOU AGREE TO RELEASE EACH OF THE USA OPERATOR AND ITS DIRECTORS, OFFICERS, MEMBERS, SHAREHOLDERS, PARTNERS, PRINCIPALS, EMPLOYEES, AGENTS, CONTRACTORS AND ANY OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS (COLLECTIVELY, THE “USA OPERATOR PARTIES”) FOR ALL DAMAGES COVERED BY THE REQUIRED INSURANCE, INCLUDING ANY INSURANCE DEDUCTIBLES, SELF- INSURED RETENTIONS OR SIMILAR AMOUNTS.
THE USA OPERATOR PARTIES ARE NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY FORM OF EXEMPLARY, INCIDENTAL, SPECIAL, STATUTORY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR PERSONAL INJURY, DEATH, LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES, INCLUDING DAMAGES ARISING OUT OF OR RELATED TO ANY OF THE COVERED CLAIMS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF THE USA OPERATOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EVEN IF ANY OF THE USA OPERATOR PARTIES ARE LIABLE TO YOU, ANY SUCH LIABILITY WILL NOT EXCEED THE AMOUNT OF FEES PAID BY NIMB TO THE USA OPERATOR UNDER THE OPERATOR AGREEMENT.
IF YOU ARE A CALIFORNIA RESIDENT, YOU SHALL AND HEREBY DO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR EXPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE LIMITATIONS IN THIS SECTION APPLY REGARDLESS OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Time Limit to Bring Claims.
ALL CUSTOMERS AGREE TO COMMENCE ALL CLAIMS AGAINST ANY OF THE USA OPERATOR PARTIES IN COURT OR BY ARBITRATION (AS APPLICABLE) WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED, WITHOUT JUDICIAL EXTENSION OF TIME, OR SUCH CLAIM IS BARRED. THE TIME PERIOD IN THIS PARAGRAPH MUST BE COMPLIED WITH STRICTLY.
The USA Operator's obligations under these additional terms and conditions of use of the Monitoring Services are waived automatically without notice and you agree to release the USA Operator for all damages (i) following any default or breach of such additional terms and conditions by you; (ii) if the monitoring facility or any communications equipment or communications services used to transmit data to the monitoring facility are destroyed, damaged or inoperable for any reason not within the USA Operator's control, (iii) delays or interruption in the Monitoring Services due in whole or in part, directly or indirectly, to riots, strikes, lockouts, terrorism, war (declared or undeclared), weather, natural phenomenon, acts of God, governmental orders, laws, rules or regulations, transportation, environmental conditions or (iv) any other reason beyond the control of the USA Operator (the items in (ii) through (iv) are referred to collectively as the “Force Majeure Events”). The USA Operator s obligations under the Operator Agreement are suspended for the duration of any such Force Majeure Events.