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Welcome to the Wingman mobile device software application (the "Wingman Software"), Web site, web widgets, feeds and applications for third-party Web sites and services, and any other mobile or web services or applications owned, controlled, or offered by Wingman (collectively, the "Wingman Services"), being offered by SpotCheck LLC (doing business as and referred to herein as Wingman, we or our). Subscribers, customers, users, and others who download, access, use, purchase and/or subscribe to the Wingman Services (collectively or individually "You" or "Users") may do so only subject to the following terms and conditions of use.
BEFORE USING ANY WINGMAN SERVICES, PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF SERVICE. BY ACCESSING, BROWSING AND/OR USING THE WINGMAN SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY ALL CONSENTS AND DISCLOSURES SET FORTH IN THE WINGMAN REGISTRATION PROCESS (AND HEREBY INCORPORATED HEREIN BY THIS REFERENCE), ALL OF THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY FUTURE MODIFICATIONS TO THESE TERMS OF SERVICE, AND ALL GUIDELINES (COLLECTIVELY, THE "AGREEMENT"). IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN PLEASE CEASE USING THE WINGMAN SERVICES IMMEDIATELY.
ALL THE WINGMAN SERVICES ARE AVAILABLE ONLY FOR INDIVIDUALS AGED 18 YEARS OR OLDER. YOU REPRESENT AND WARRANT TO WINGMAN THAT YOU ARE AGE 18 OR OLDER.
THE WINGMAN SERVICES ARE INTENDED ONLY AS PERSONAL, LOCATION-BASED SERVICES FOR INDIVIDUAL USE AND SHOULD NOT BE USED OR RELIED ON AS AN EMERGENCY LOCATOR SYSTEM, USED WHILE DRIVING OR OPERATING VEHICLES, OR USED IN CONNECTION WITH ANY HAZARDOUS ENVIRONMENTS SUCH AS THOSE REQUIRING FAIL-SAFE PERFORMANCE, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OR INACCURACY OF THAT APPLICATION OR THE WINGMAN SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR PHYSICAL OR PROPERTY DAMAGE.
WINGMAN IS NOT SUITED OR INTENDED FOR FAMILY FINDING PURPOSES, FLEET TRACKING, OR ANY OTHER TYPE OF BUSINESS OR ENTERPRISE USE - OTHER PRODUCTS EXIST TODAY THAT MAY BE USED SPECIFICALLY FOR THESE PURPOSES.
YOU ACKNOWLEDGE AND AGREE THAT WINGMAN HAS OFFERED THE WINGMAN SERVICES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH BELOW. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND WINGMAN, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND WINGMAN. WINGMAN WOULD NOT BE ABLE TO PROVIDE THE WINGMAN SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS AND DISCLAIMERS.
Wingman's Privacy Notice is hereby incorporated into this Agreement by reference. Please read this notice carefully for disclosures relating to the collection, use, and disclosure of your personal information and real-time location information.
When using any of the Wingman Services, you will be subject to and you agree to comply with any additional posted guidelines or rules applicable to certain features, which may be posted from time to time or presented to you through the user interfaces of the Wingman Services (the "Guidelines"). For example, the Wingman Services may offer you opportunities to review certain events and venues, post event announcements, send messages to other Users, and to enter contests and sweepstakes. All Guidelines are hereby incorporated by reference into this Agreement.
The Wingman Services are owned and operated by Wingman. The Wingman Software, content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, including, but not limited to, the mobile device applications, and all other elements of the Wingman Services (collectively, the "Materials") contain works of authorship that are protected by United States copyright, trade dress, patent, and trademark laws, international laws and conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained in the Wingman Services are the property of Wingman or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names displayed on the Wingman Services are proprietary to Wingman or its affiliates and/or third-party licensors. Except as expressly authorized by Wingman, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
All the Wingman Services are unavailable to persons under the age of 18 or to any Users suspended or removed from the Wingman Services by Wingman. You agree that the information you provide to Wingman upon registration and at all other times will be true, accurate, current and complete. You also agree that you will ensure that this information is kept accurate and up to date at all times.
When you register for the Wingman Services you may be asked to provide a password. We recommend passwords that use a combination of upper and lower case letters, numbers and symbols. As you will be responsible for all activities that occur under your password, you should keep your password strictly confidential at all times. YOU MUST NOTIFY WINGMAN IMMEDIATELY OF ANY UNAUTHORIZED USE OF YOUR PASSWORD OR IF YOU BELIEVE THAT YOUR PASSWORD IS NO LONGER CONFIDENTIAL AND KNOWN ONLY TO YOU. We may not provide an account to you if we determine that your password is not secure, and we reserve the right to suspend your account and/or require you to alter your password if we believe for any reason that your password is no longer secure. YOU MAY NOT SHARE YOUR WINGMAN ACCOUNT PASSWORD WITH ANY OTHER PERSON FOR ANY REASON. We are not liable for any loss or damage arising from your failure to comply with the above requirements.
You agree to pay any fees due for and incurred by your use of the Wingman Services. Any payments and fees for your purchase and use of the Wingman Services may be managed by your mobile carrier or Wingman. Please refer to your mobile carrier's regular billing statement for charges related to the Wingman Services, and contact your mobile provider directly with any questions or comments related to these fees. If your mobile provider notifies Wingman that your account is past due, then your Wingman Services subscription may be deactivated without notice to you. If you wish to discontinue using the Wingman Services, then you may cancel your Wingman Services subscription.
YOU UNDERSTAND AND HEREBY ACKNOWLEDGE, REPRESENT, WARRANT AND AGREE THAT YOU MAY NOT AND WILL NOT:
a. use the Wingman Services or any location information displayed within the Wingman Services to "stalk", harass, abuse, defame, threaten or defraud other Users, or collect, attempt to collect, or store location or personal information about other users without their consent;
b. use the Wingman Services if you are under the age of 18 years old;
c. use the Wingman Services for any commercial or non-private use, it being understood that the Wingman Services are for personal, non-commercial use only;
d. fail to deliver payment for the Wingman Services;
e. use the Wingman Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy, rights of publicity, and import or export control;
f. make unsolicited offers, advertisements, proposals, or send junk mail, to other Users of the Wingman Services. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
g. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Wingman Services accounts of other Users;
h. share Wingman-issued passwords or access to your mobile device while Wingman is running and accessible with any third party or encourage any other user to do so;
i. misrepresent the source, identity or content of information transmitted via the Wingman Services;
j. remove, circumvent, disable, damage or otherwise interfere with security-related features of the Wingman Services, features that prevent or restrict use or copying of any content accessible through the Wingman Services, or features that enforce limitations on use of the Wingman Services;
k. intentionally interfere with or damage operation of the Wingman Services or any user's use or enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code;
l. include in your Wingman Services personal profile page or otherwise post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be objectionable, libelous or defamatory, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, sexually or racially or ethnically offensive, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
m. post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;
n. use the Wingman Service with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, or otherwise capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management, or similar applications; or
o. use the Wingman Service in connection with hazardous environments such as those requiring fail-safe performance or any application in which the failure or inaccuracy of that application or the Wingman Services could lead directly to death, personal injury, or severe physical or property damage.
p. attempt to gain unauthorized access to the Wingman Services, or any part of it, other accounts, computer systems or networks connected to the Wingman Services, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Wingman Services or any activities conducted on the Wingman Service;
q. use any robot, spider, scraper or other automated means to access the Wingman Services for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Wingman Services or modify the Wingman Services in any manner or form, nor to use modified versions of the Wingman Services, including (without limitation) for the purpose of obtaining unauthorized access to the Wingman Services; or
r. sell or transfer or allow another person to access your account password, profile, or Wingman Services account.
9.1 WINGMAN RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO HAVE OUR SYSTEMS MONITOR ANY USER'S REGISTRATION AS WELL AS ANY USER'S USE OF OR ACCESS TO THE WINGMAN SERVICES, THE LOCATION INFORMATION AND PROFILES OF OTHER USERS. WINGMAN RESERVES THE RIGHT TO DISABLE ANY USER'S USE OF OR ACCESS TO THE WINGMAN SERVICES AND THE LOCATION INFORMATION OR PROFILES OF OTHER USERS, FOR ANY REASON AND WITHOUT ANY NOTICE.
9.2 You alone are responsible for your involvement with other Users. Wingman reserves the right, but has no obligation, to monitor communications with, connections to or disagreements between you and other Users.
9.3 Wingman does not control the content of User accounts and profiles and does not have any obligation to monitor such content for any purpose. You acknowledge that you are solely responsible for all content and material that you provide to the Wingman Services or to other Users.
PLEASE NOTE: WINGMAN RESERVES THE RIGHT TO REFUSE ACCESS TO ANY USER, FOR ANY REASON AND WITHOUT ANY NOTICE.
10.1 The Wingman Services allow the submission of content and materials (such as pictures, reviews, ratings, ideas, or notes) by you and other Users ("User Submissions"), and the hosting, sharing and/or publishing of such User Submissions. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use, and license, sublicense or otherwise fully authorize Wingman to use, all intellectual property and any other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Wingman Services and this Agreement; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission for you or Wingman to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Wingman Services and this Agreement. As between you and Wingman, you shall retain all of your ownership rights in your User Submissions.
10.2 By submitting User Submissions to Wingman, you hereby grant Wingman a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicensable, and transferable license to use, reproduce, distribute, prepare derivative works of, display, publicly perform, publicly display, digitally perform, and otherwise exploit, for any purpose whatsoever, without compensation to you or any other provider or other third party, User Submissions in connection with the Wingman Services and Wingman's (and its successor's) business, including without limitation for promoting and redistributing part or all of the Wingman Services (and derivative works thereof) in any media formats now known or hereafter developed, and through any media channels. You also hereby grant each user of the Wingman Services a non-exclusive license to access your User Submissions through the Wingman Services, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Wingman Services and under this Agreement.
10.3 You understand that when using the Wingman Services you will be exposed to User Submissions from a variety of sources, and that Wingman is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable claims, rights or remedies you have or may have against Wingman relating to or arising from User Submissions.
10.4 Wingman assumes no responsibility whatsoever in connection with or arising from User Submissions. You understand that whether or not such User Submissions are published, Wingman does not guarantee any confidentiality with respect to any User Submissions and does not promise or guarantee that Wingman will provide, display, store or maintain User Submissions for any particular time period. Wingman assumes no responsibility for actively monitoring User Submissions for inappropriate content. If at any time Wingman chooses, in its sole discretion, to monitor User Submissions, Wingman nonetheless assumes no responsibility for the content of the User Submissions, no obligation to modify or remove any inappropriate User Submissions, and no responsibility for the conduct of the User submitting User Submissions. Further, Wingman does not endorse and has no control over the content of User Submissions submitted by other Users. Wingman makes no warranties, express or implied, as to the content of User Submissions or the accuracy and reliability of any User Submissions. Nonetheless, Wingman reserves the right to prevent you from submitting User Submissions and to edit, restrict or remove User Submissions for any reason at any time.
11.1 The Wingman Services may include links to other web sites or services solely as a convenience to Users. Wingman does not endorse any such linked sites or the information, material, products or services contained on other linked sites or accessible through other linked sites. Furthermore, Wingman makes no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through linked sites. Access and use of linked sites, including information, material, products and services on linked sites or available through linked sites is solely at your own risk.
11.2 Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Wingman Services are solely between you and such advertiser. You agree that Wingman shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Wingman Services.
11.3 Parties other than Wingman may provide services or sell products via the Wingman Services. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or the content of their product and service offerings. Wingman does not assume any responsibility or liability for the actions, product or service, or content of all these and any other third parties. You should carefully review their privacy statements and other terms and conditions of use.
11.4 In addition, even if Wingman handles the billing, payment processing and/or fulfillment for the third-party service or product, some products and services are provided under direct license from the third-party and therefore the use of such products and services are governed by such third-party license terms. In such case, you will be subject to such license terms and agree that any matters relating to your use of such product or service, including any customer support or maintenance, will be between you and such vendor, and Wingman will have no liability with respect thereto.
12.1 LICENSE GRANT, RESTRICTIONS AND UPGRADES. To use the Wingman Software you must have a mobile device that is compatible with the Wingman Services. Wingman does not warrant that the Wingman Services will be compatible with your mobile device.
a. License Grant. Wingman hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Wingman Software as follows: You may use the Wingman Software for one Wingman Services subscription account (a "Subscription Account" is comprised of the shared resources accessible by a single login ID) on one mobile device owned or leased solely by you, for your personal use.
b. Restrictions. You may not: (i) modify, disassemble, decompile or reverse engineer the Wingman Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Wingman Software to any third party or use the Wingman Software to provide time sharing or similar services for any third party; (iii) make any copies of the Wingman Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Wingman Software, features that prevent or restrict use or copying of any content accessible through the Wingman Software, or features that enforce limitations on use of the Wingman Software; or (v) modify or delete the copyright and other proprietary rights notices on the Wingman Software.
c. Software Upgrades. You acknowledge that Wingman may from time to time issue upgraded versions of the Wingman Software, and may automatically electronically upgrade the version of the Wingman Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades.
d. Open Source. With respect to any open source or third-party code that may be incorporated in the Wingman Software, such open source code is covered by the applicable open source or third-party end user license agreement (EULA), if any, authorizing use of such code.
e. Rights Reserved. The foregoing license grant under this Agreement is not a sale of the Wingman Software or any copy thereof and Wingman or its third party partners or suppliers retain all right, title, and interest in the Wingman Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Wingman reserves all rights not expressly granted under this Agreement.
12.2 GOVERNMENT END USERS. If this Wingman Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Wingman Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.
12.3 EXPORT CONTROL. The Wingman Software originates in the United States, and is subject to United States export laws and regulations. The Wingman Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Wingman Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Wingman Software and the Wingman Services.
You agree that Wingman, in the good faith belief that you have violated any of the terms and conditions of this Agreement, may terminate any account or subscription (or any part thereof) you have with the Wingman Services or use of the Wingman Services and may remove and discard all or any part of your account or any User Submission, at any time. You further agree that Wingman may terminate any part of the Wingman Services if (1) the partner with whom we offered the service to you has terminated its relationship with Wingman or ceased to offer the service to you, (2) in Wingman's opinion, the service is no longer commercially viable, or (3) we are required to do so by law. You agree that any termination of your access to the Wingman Services or any account you may have or portion thereof may be effected without prior notice, and you agree that Wingman will not be liable to you or any third-party for any such termination. Wingman does not permit copyright infringing activities on the Wingman Services, and reserves the right to terminate access to the Wingman Services, and remove all content submitted, by any persons who are found to be repeat infringers. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Wingman Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Wingman may have at law or in equity.
THE WINGMAN SERVICES AND ANY THIRD-PARTY SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WINGMAN SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. WINGMAN, AND ITS SUPPLIERS AND PARTNERS (INCLUDING WITHOUT LIMITATION WINGMAN'S THIRD-PARTY WIRELESS CARRIER PARTNERS), DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
WINGMAN AND ITS SUPPLIERS AND PARTNERS (INCLUDING WITHOUT LIMITATION WINGMAN'S THIRD-PARTY WIRELESS CARRIER PARTNERS) DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE WINGMAN SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WINGMAN SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
WINGMAN, AND ITS SUPPLIERS AND PARTNERS (INCLUDING WITHOUT LIMITATION WINGMAN'S THIRD-PARTY WIRELESS CARRIER PARTNERS) DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY LOCATION INFORMATION OR THE WINGMAN SERVICES IN TERMS OF SECURITY, SAFETY, CORRECTNESS, ACCURACY, RELIABILITY, AVAILABILITY, OR OTHERWISE. YOU (AND NOT WINGMAN OR ITS SUPPLIERS OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION RELATED TO THE WINGMAN SERVICES. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE WINGMAN SERVICES AT YOUR OWN DISCRETION AND RISK.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree to indemnify, defend, and hold Wingman, its affiliated companies, and its suppliers and partners (including, without limitation, Wingman's wireless carrier partners) harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys' fees, arising out of or related to (a) your use or misuse of any location information or the Wingman Services generally, (b) any violation of the rights of any other person or entity by you, (c) any breach or violation by you of this Agreement, or (d) your use of the Wingman Services to meet another User in-person or to locate and attend any offline place or event. Wingman reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with and provide any necessary information for our defense of these claims.
YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, WILL WINGMAN OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS (INCLUDING, WITHOUT LIMITATION, WINGMAN'S WIRELESS CARRIER PARTNERS) OR SUPPLIERS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RELATED TO OR RESULTING FROM: (A) THE USE, DISCLOSURE, DISPLAY, OR MAINTENANCE OF YOUR LOCATION INFORMATION; (B) YOUR USE OR INABILITY TO USE THE WINGMAN SERVICES; (C) THE WINGMAN SERVICES GENERALLY OR THE WINGMAN SOFTWARE OR SYSTEMS THAT MAKE THE WINGMAN SERVICES AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH WINGMAN OR ANY OTHER USER OF THE WINGMAN SERVICES, EVEN IF WINGMAN OR A WINGMAN AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL WINGMAN'S (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR THIRD-PARTY PARTNERS INCLUDING, WITHOUT LIMITATION, WINGMAN'S WIRELESS CARRIER PARTNERS') TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE WINGMAN SERVICES (WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY, OR OTHERWISE EXCEED THE AMOUNTS PAID BY YOU FOR ACCESSING THE WINGMAN SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM OR ONE THOUSAND DOLLARS, WHICHEVER IS GREATER.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY SERVICES SOLD OR PROVIDED BY THIRD PARTIES OTHER THAN WINGMAN AND RECEIVED THROUGH OR ADVERTISED ON THE WINGMAN SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED ON THE WINGMAN SERVICES.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT WINGMAN'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Digital Millennium Copyright Act Compliance. It is Wingman's policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. In addition, Wingman will promptly terminate without notice the accounts of Users that are determined by Wingman to be "repeat infringers." A repeat infringer is a User who has been notified by Wingman of infringing activity violations more than twice and/or who has had a User Submission removed from the Wingman Services more than twice. If you are a copyright owner or an agent thereof, and you believe that any content hosted on any Wingman Services infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Wingman's Designated Copyright Agent with the following information in writing:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the applicable Wingman Services are covered by a single notification, a representative list of such works on the applicable Wingman Services;
iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Wingman to locate the material;
iv. Information reasonably sufficient to permit Wingman to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
v. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (for example, "I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law."); and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, "I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is allegedly infringed by the aforementioned content.").
Wingman's Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows: Attention: Copyright Agent at firstname.lastname@example.org. For clarity, only DMCA notices should go to the Wingman Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Wingman customer service through email@example.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
18.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
18.2 Severability, Waiver. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party's right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
18.3 Notices. You agree that Wingman may provide you with notices, including those regarding changes to this Agreement, by email, regular mail or postings on the Wingman Services. Notice will be deemed given twenty-four hours after email is sent, unless Wingman is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Wingman Services. In such case, notice will be deemed given three days after the date of mailing. Notices posted on the Wingman Services are deemed given and binding 30 days following the initial posting.
18.4 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned or transferred by Wingman without restriction.
18.5 Survival. Any and all provisions related to or regarding limitation of liability, disclaimers, and indemnification and, specifically, Sections 1, 4, 8, 9, 10, and 14 through 18 and the Exhibits of this Agreement hereby survive any termination of this Agreement or any termination of your use of or subscription to the Wingman Services.
18.6 Headings; Entire Agreement. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties, or by a change to this Agreement made by Wingman as set forth in Section 3 above.
18.7 Claims. YOU AND WINGMAN AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WINGMAN SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
18.8 Disclosures. The services hereunder are offered by SpotCheck, LLC, located in West Hollywood, CA 90069.