ALERTCalifornia Command and Control Interface
ARBITRATION NOTICE: THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND DIGITALPATH SERVICES, INC., DIGITIALPATH, INC., ALL SUBSIDIARIES OR ALERTCALIFORNIA AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. YOU HAVE THE RIGHT TO OPT OUT OF ARBITRATION AS EXPLAINED IN THE ARBITRATION CLAUSE.
2. User Access Restrictions:
ALERTCalifornia Command and Control software should only be accessed by those with an immediate involvement in the prevention, monitoring, and suppression of fires and other natural disasters. Any user who has not been approved for access by an ALERTCalifornia administrator will be removed from the system. Any user who is no longer associated with an organization approved by an ALERTCalifornia administrator should not access the system and will be automatically removed from the system upon discovery. User access is a privilege and may be revoked at any time under the discretion of an ALERTCalifornia administrator. If you do not qualify or do not agree to these terms, you may not use The Sites.
3. Right of Modification:
By using The Sites, you understand the ALERTCalifornia – Camera System website exists to provide users with information to confirm a fire exists only, and that The Sites are not intended to and should not be relied upon as a way to detect fires or make decisions regarding yours or other’s safety. By using ALERTCalifornia, you waive any claims or causes of action arising from or relating to the use The Sites.
DIGITALPATH SERVICES, INC. RETAINS THE EXPLICIT RIGHTS TO OUR SOFTWARE AND USE OF OUR SOFTWARE. THIS INCLUDES SOFTWARE AS A SERVICE, SOFTWARE INCLUDED ON HARDWARE, AND ALL OTHER SOFTWARE DEVELOPED BY, LICENSED OR USED BY DIGITALPATH SERVICES, INC. FOR THE SERVICES PROVIDED. YOUR USE OF THE SITES DOES NOT GIVE YOU RIGHTS TO THE SOFTWARE. SHOULD YOU DISCONTINUE SERIVCES WITH DIGITALPATH SERVICES, INC., DIGITIALPATH, INC. OR ALERTCALIFORNIA YOU AGREEE TO STOP USING ALL SOFTWARE AND WILL NOT ACCESS SUCH SOFTWARE ANY LONGER.
6. Limitation of Liability:
YOU ACKNOWLEDGE, BY YOUR USE OF THE SITES: (1) THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK; (2) IN NO EVENT SHALL DIGITALPATH SERVICES, INC., DIGITIALPATH, INC. ALERTCALIFORNIA, THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR ANY OF THE CAMERA SPONSORS BE LIABLE UNDER ANY SECTION OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OF DATA OR INFORMATION OF ANY KIND OR LOSS OF PROPERTY OR LIFE WHETHER OR NOT DIGITALPATH SERVICES, INC., DIGITIALPATH, INC. OR ALERTCALIFORNIA HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. DIGITALPATH SERVICES, INC., DIGITIALPATH, INC. OR ALERTCALIFORNIA SHALL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY AND IN NO EVENT SHALL DIGITALPATH SERVICES, INC. DIGITIALPATH, INC. OR ALERTCALIFORNIA’S LIABILITY TO YOU EXCEED THE GREATER OF ONE DOLLAR ($1.00) OR ANY AMOUNTS PAID BY YOU TO ANY OTHER COMPANY OR SERVICES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT OR OUT OF YOUR USE OF THE SITES MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION HAS OCCURRED. Some jurisdictions do not allow the exclusion or limitation on liability for negligence that causes death or personal injury and, in such jurisdictions; DIGITALPATH SERVICES, DIGITIALPATH, INC. OR ALERTCalifornia’s liability shall be limited to the greatest extent permitted by law.
7. Use of Personal Information:
Certain specific personal information provided by you to us, which may include personal contact information, personal identifying information or any other information provided by you or your agency may be posted on The Sites. By posting such information you agree that DigitalPath Services, Inc., DigitalPath Inc., ALERTCalifornia and all affiliates are not responsible or liable for any repercussions involved with posting personal contact information.
ALERTCalifornia reserves the right to remove any user or system posted content from any of The Sites in its discretion.
8. Warranty Disclaimers:
THE SITES, INCLUDING, WITHOUT LIMITATION, ALL SERVICES, CONTENT, FUNCTIONS AND MATERIALS, ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE SITES, CONTENT, FUNCTIONS OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE SITES WILL MEET CUSTOMERS OR VISITORS’ REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. ALERTCALIFORNIA, DIGITALPATH, INC. AND DIGITALPATH SERVICES, INC. ALSO ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES OR OTHER HARMFUL COMPONENTS THAT MAY INFECT OR HARM, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT FROM YOUR ACCESS TO OR USE OF THE SITES, OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, OR AUDIO THROUGH THE SITES. IF YOU ARE DISSATISFIED WITH THE SITES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITES.
You agree to defend, indemnify and hold DigitalPath Services, Inc., DigitalPath, Inc. ALERTCalifornia and our directors, officers, employees, agents or service providers harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising directly or indirectly out of or from (i) your breach of any provision of this Agreement; (ii) your activities in connection with The Sites or any DigitalPath Services; or (iii) any information you submit, transmit, or make available through The Sites or DigitalPath Services. DigitalPath Services, Inc., and DigitalPath, Inc. reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with DigitalPath’s defense of such claim.
10. Dispute, Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
10.1 Initial Dispute Resolution. We are available by email at email@example.com or by mail at 1065 Marauder Street, Chico, CA 95973 to address any concerns you may have regarding your use of The Sites or any DigitalPath Services. Most concerns may be quickly resolved in this manner. You agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
10.2 Agreement to Binding Arbitration. For Customers of The Sites or DigitalPath Services that reside in North America, if we do not reach an agreed upon solution within a period of sixty (60) days from the time informal dispute resolution is pursued pursuant to Section 10.1 above, then either you or we may initiate binding arbitration. Except for any disputes excluded below in this section 10, all claims arising out of or relating to this Agreement (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Sites or any DigitalPath Services shall be finally settled by binding arbitration administered on a confidential basis by JAMS (Judicial Arbitration and Mediation Services), in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. The arbitration shall be conducted in Sacramento, California, and claims regarding the judgement of the arbitrator (including entry of judgment on the arbitration aware) may be brought and shall be subject to the exclusive jurisdiction of the state and federal court located in Sacramento, California.
Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The interpretation and enforcement of this Agreement shall be subject to the Federal Arbitration Act. The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250) and the claim is found to be non-frivolous, we will pay the additional cost. If we are required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to JAMS. We will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. We will also pay JAMS to reimburse you for any portion of the $250 filing fee that is more than what you would otherwise have to pay to file suit in a court of law. You understand that, absent this mandatory provision, you would have the right to sue in court and have a jury trial. You further understand that the right to discovery may be more limited in arbitration than in court.
10.3 Class Action and Class Arbitration Waiver. You and we each further agree that any arbitration shall be conducted in our respective individual capacities only and not as a class action, and you and we each expressly waive our respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 10.2 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate Disputes.
10.4 Exceptions. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief (i) in a small claims court for disputes or claims within the scope of that court’s jurisdiction, and (ii) any Disputes relating to intellectual property rights, obligations, or any infringement claims.
10.5 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 10.2 and 10.3 by sending written notice of your decision to opt-out by emailing us at firstname.lastname@example.org. The notice must be sent within thirty (30) days of your first use of The Sites or Services, or the effective date of the first set of this Agreement containing an Arbitration and Class Action and Class Arbitration Waiver section otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
10.6 Term for Cause of Action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of The Sites or DigitalPath Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
10.7 Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in Section 10.2 do not apply or if you have opted out of arbitration, you agree that any litigation shall be filed exclusively in state or federal courts located in Sacramento, California (except for small claims court actions which may be brought in the county where you reside). In the event of litigation relating to this Agreement, The Sites or DigitalPath Services, you agree to waive, to the maximum extent permitted by law, any right to a jury trial, except where a jury trial waiver is not permissible under applicable law.
10.8 Governing Law and Rules. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California, exclusive of conflict or choice of law rules. The parties acknowledge that this Agreement evidences a transaction involving interstate and intrastate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). In any arbitration arising out of or related to this Agreement, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect or consequential damages, including damages for lost profits, lost data, loss of life or loss of property. The parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement.
10.9 Exception – California Privacy Attorney Generals Act (PAGA) Action. Notwithstanding the parties’ agreement to resolve all Disputes through arbitration, either party may seek relief in a court of law for a claim arising under California’s Private Attorneys General Act.