Punch Technologies Terms of Use

 

Thank you for the opportunity to share Punch Technologies, Inc. (“Punch Technologies”, “we,” or “us”) and our Web site at PunchAlert.com (the “Site”), and our related web sites, networks, embeddable widgets, downloadable software, mobile applications (including tablet applications), and other services provided by us and on which a link to these Terms of Use is displayed (together with the Site, our “Platform”). These Terms of Use are a legally binding contract between you (“you”) and Punch Technologies regarding your use of the Platform.

 

PLEASE READ THE FOLLOWING TERMS OF USE CAREFULLY. BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS OF USE, INCLUDING THE PUNCH TECHNOLOGIES PRIVACY POLICY (TOGETHER, THESE “TERMS”). If you are not eligible, or do not agree to these Terms, then you do not have our permission to use the Platform.

 

These Terms provide that all disputes between you and Punch Technologies will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the “Dispute Resolution and Arbitration” section below for the details regarding your agreement to arbitrate any disputes with Punch Technologies.

 

The parties hereby agree as follows:

 

1. Punch Technologies Platform Overview

The Punch Technologies Platform provides an additional avenue for registered individuals to communicate with participating organizations regarding safety, emergency response services, public health, and other services. If you use the Platform to communicate with Emergency Platform Providers (as defined below) or receive communications from Users (as defined below) you are a “Subscriber.” If you are a safety or emergency response provider including, without limitation, 9-1-1 or equivalent fire, police, emergency medical, emergency management, campus safety officials, or public health services and you use the Platform to receive information from Subscribers in order to facilitate the provision of safety or emergency services you are an “Emergency Platform Provider.” If you use the Platform to send emergency and general interest notifications and updates to Subscribers, you are a “User.” The features of the Platform that are made available to you via the Platform may vary depending on if you are registered as a Subscriber, Emergency Platform Provider, or a User.

 

2. Eligibility

You must be at least thirteen (18) years of age to use the Platform. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least thirteen (18) years of age; (b) you have not previously been suspended or removed from the Platform; and (c) your registration and your use of the Platform is in compliance with all applicable laws and regulations. If you are using the Platform on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.

 

3. Accounts and Registration

3.1 To access most features of the Platform, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your e-mail address, phone numbers or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. Your account information will also include any other information (which may include personally identifiable information or health-related information) that you enter into or provide to the Platform. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at contact@punchalert.com.

3.2 You understand and accept full legal responsibility for the content, accuracy, and sufficiency of all information that you include or do not include as part of your account. You should only provide the information you want Emergency Platform Providers to have access to. All information within your account is subject to the Punch Technologies Privacy Policy.

3.3 By creating an account, you agree that Punch Technologies may contact you to validate the phone number(s) you register with your account. You also agree that if another individual registers and validates a phone number that you had previously registered, the phone number will be removed from your account and assigned to the other individual.

3.4 You must confirm, at least once every six (6) months, that the information within your account is accurate. Failure to do so may prevent your ability to use the Platform.

3.5 You agree your account will only include information about adults or children for whom you have appropriate legal responsibility or appropriate prior consent, and that the account does not infringe or invade the privacy of anyone.

3.6 You understand and agree that you are the only person authorized to create or edit your account, unless you have authorized another person to use your username and password to enter or modify your account on your behalf. You authorize Punch Technologies to release any or all of your account information to any person to whom you have provided the username and password associated with your account or phone number.

3.7 You understand and agree that once the content of your account is made available to Emergency Platform Providers, it may be transmitted over unsecured Emergency Platform Provider radios or may otherwise be made accessible through unsecured communications as part of the information disseminated to or by Emergency Platform Providers responding to a 9-1-1 call or to an emergency. You further understand that the content of your account may be stored as part of a public record associated with an emergency call if required by local statutes.

3.8 If you are a Subscriber, you understand and agree and hereby authorize Punch Technologies to release and disclose your account information to Emergency Platform Providers and Users in connection with the Platform. If you are an Emergency Platform Provider or User, you understand and agree and hereby authorize Punch Technologies to release and disclose your account information to Subscribers in connection with the Platform.

3.9 As part of your account, you may have identified additional contacts or additional persons in your household (”Additional Contacts”). If you are a Subscriber, you understand and agree that Punch Technologies or any Emergency Platform Providers may, for reasons outside their control, be unable to contact or to notify any Additional Contacts in any emergency situation. If you are an Emergency Platform Provider or User, you understand and agree that Punch Technologies may, for reasons outside their control, be unable to contact or notify any Additional Contacts of any information relating to your use of the Platform.

 

4. Payment

Access to the Platform, or to certain features of the Platform, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. Punch Technologies may change the fees for the Platform or any feature of the Platform, including by adding fees, on a going-forward basis at any time. Punch Technologies will charge the payment method you specify at the time of purchase. You authorize Punch Technologies to charge all sums as described in these Terms, for the Platform you select, to that payment method. If you pay any fees with a credit card, Punch Technologies may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. 


 

5. Content

5.1 Your Content Generally. Certain features of the Platform may permit you to upload content to the Platform, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“Your Content ”) and to publish Your Content on the Platform. You retain copyright and any other proprietary rights that you may hold in Your Content that you post to the Platform.

5.2 Limited License Grant to Punch Technologies. By posting or publishing Your Content, you grant Punch Technologies a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Punch Technologies’ use of Your Content may be without any compensation paid to you.

5.3 Representations and Warranties Regarding Your Content. You are solely responsible for Your Content and the consequences of posting or publishing Your Content. By posting or publishing Your Content, you affirm, represent, and warrant that:

a. you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use and to authorize Punch Technologies and users of the Platform to use and distribute Your Content as necessary to exercise the licenses granted by you in this Section 5 and in the manner contemplated by Punch Technologies, the Platform, and these Terms; and

b. your Content, and the use of Your Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Punch Technologies to violate any law or regulation.

 

6. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:

6.1 use the Platform for any illegal purpose or in violation of any local, state, national, or international law;

6.2 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;

6.3 post, upload, or distribute Your Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;

6.4 interfere with security-related features of the Platform, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Platform except to the extent that the activity is expressly permitted by applicable law;

6.5 interfere with the operation of the Platform or any other user’s enjoyment of the Platform, including by: (a) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Platform; (c) attempting to collect, personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Platform, or violating any regulation, policy, or procedure of any network, equipment, or server;

6.6 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Platform account without permission, or falsifying your age or date of birth;

6.7 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 11) or any right or ability to view, access, or use any Material; or

6.8 attempt to do any of the acts described in this Section 6, or assist or permit any person in engaging in any of the acts described in this Section 6.

6.9 copy the Application;
6.10 modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application or any part thereof;
6.11 reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
6.12 remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
6.13 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;
6.14 remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application; or
6.15 take any action or upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Application that: (i) infringes any patent, trademark, trade secret, right in confidential information, copyright, right of publicity or other right of any other person or entity, (ii) violates any international, federal, state or local law, statute, rule, regulation, ordinance or code or any contractual duty, or that you know is false, misleading, untruthful or inaccurate; (iii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane or otherwise inappropriate as determined by Punch Alert in its sole discretion; (iv) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (v) involves commercial activities and/or sales without Punch Alert’s prior written consent; (vi) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Punch Alert or any third party; (vii) impersonates any person or entity, including any employee or representative of Punch Alert; (viii) imposes or may impose, as determined by Punch Alert in its sole discretion, an unreasonable or disproportionately large load on Punch Alert’s, or its third party providers’, infrastructure; (ix) interferes or attempts to interfere with the proper working of the Application or any activities conducted on the Application; (x) bypasses any measures Punch Alert may use to prevent or restrict access to the Application or other accounts, computer systems or networks connected to the Application; or 6.16 runs any form of auto-responder or spam on the Application.

 

7. Third-Party Platforms and Linked Websites

Punch Technologies may provide tools through the Platform that enable you to export information, including Your Content, to third party services. By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Platform may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.

 

8. Termination of Use; Discontinuation and Modification of the Platform

If you violate any provision of these Terms, your permission from us to use the Platform will terminate automatically. In addition, Punch Technologies may in its sole discretion terminate your account on the Platform or suspend or terminate your access to the Platform at any time, with or without notice. We also reserve the right to modify or discontinue the Platform at any time (including by limiting or discontinuing certain features of the Platform) without notice to you. Punch Technologies may decide to charge a fee for the use of all or certain features, Punch Technologies will provide you with prior notice before such fees take effect. We will have no liability whatsoever relating to any change to the Platform or any suspension or termination of your access to or use of the Platform. You may terminate your account at any time by logging into your account and clicking on the "Remove Account" link within the Account Settings menu. If you terminate your account, or if your access to the Platform is terminated for any other reason, then Punch Technologies will no longer provide you with the Platform or provide your account to Emergency Platform Providers. You remain obligated to pay all outstanding fees, if any, relating to your use of the Platform incurred prior to termination. Punch Technologies may retain Your Content or account information after your account is terminated.

 

9. Privacy Policy; Additional Terms

9.1 Privacy Policy. Please read the Punch Technologies Privacy Policy carefully for information relating to our collection, use, storage and disclosure of your personal information. The Punch Technologies Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

9.2 Additional Terms. Your use of the Platform is subject to all additional terms, policies, rules, or guidelines applicable to the Platform or certain features of the Platform that we may post on or link to from the Platform (the "Additional Terms"), such as end-user license agreements for any downloadable software applications, or rules applicable to a particular feature or content on the Platform, subject to Section 10 below. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

 

10. Modification of these Terms

We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be notified of the modified Terms in order to continue to use the Platform. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

 

11. Proprietary Rights

The Platform is owned and operated by Punch Technologies. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Platform (“Materials”) provided by Punch Technologies are protected by intellectual property and other laws. All Materials contained in the Platform are the property of Punch Technologies or our third-party licensors. Except as expressly authorized by Punch Technologies, you may not make use of the Materials. Punch Technologies reserves all rights to the Materials not granted expressly in these Terms. You acknowledge and agree that any feedback, comments or suggestions you may provide regarding the Platform ("Feedback") will be the sole and exclusive property of Punch Technologies and you hereby irrevocably assign to us all of your right, title and interest in and to all Feedback. Any data the we generate from your usage of the Platform will be owned by Punch Technologies and handled subject to the terms of our Privacy Policy, as applicable.

 

12. Indemnity

You agree that you will be responsible for your use of the Platform, and you agree to defend and indemnify Punch Technologies and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the ”Punch Technologies Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Platform; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.

 

13. Disclaimers; No Warranties

BY USING THE SERVICE, YOU AGREE THAT PUNCH TECHNOLOGIES CANNOT CONTROL THE MANNER IN WHICH EMERGENCY SERVICES ARE RENDERED, AND THEREFORE CANNOT AND DOES NOT GUARANTEE THAT EMERGENCY SERVICE PROVIDERS WILL UTILIZE THE INFORMATION PROVIDED. NOT ALL EMERGENCY SERVICE PROVIDERS HAVE ACCESS TO THE SERVICE AND THE SERVICE MAY NOT BE UTILIZED BY EMERGENCY SERVICE PROVIDERS THAT DO HAVE ACCESS. 

 

USE OF THE SERVICE DOES NOT CONSTITUTE AN AGREEMENT BETWEEN YOU AND SUBSCRIBERS, EMERGENCY SERVICE PROVIDERS, OR OTHER USERS. YOU WILL NOT RELY ON THE SERVICE AS THE SOLE MEANS BY WHICH YOU WILL COMMUNICATE INFORMATION TO SUBSCRIBERS, EMERGENCY SERVICE PROVIDERS, OR USERS. PUNCH TECHNOLOGIES IS NOT RESPONSIBLE FOR THE ACTIONS OF ANY SUBSCRIBER, EMERGENCY SERVICE PROVIDER, OR OTHER USER. PUNCH TECHNOLOGIES DOES NOT GUARANTEE DELIVERY OF ANY MESSAGE OR INFORMATION AND IS NOT RESPONSIBLE FOR ANY ACTION OR OMISSION BETWEEN OR AMOUNG USERS OF THE SYSTEM. PUNCH TECHNOLOGIES DOES NOT HAVE CONTROL OVER THE VOIP SERVICE, TELEPHONE SERVICE OR INTERNET SERVICE PROVIDERS NECESSARY FOR PROVIDING THE SERVICE AND ANY FAILURE DUE TO A THIRD PARTY SERVICE PROVIDER IS NOT THE RESPONSIBILITY OF PUNCH TECHNOLOGIES.

 

YOU ARE RESPONSIBLE FOR MANAGING YOUR TELEPHONE SERVICE PROVIDER ACCOUNT, ACCOUNT SUBSCRIPTIONS, LOCATION TRACKING, AND OTHER OPT-IN STATUSES AS REQUIRED TO ALLOW THE SERVICES TO LOCATE AND COMMUNICATE WITH YOUR PHONE. DEVICES THAT ARE LOCATION COMPATIBLE MAY NOT BE LOCATABLE BY THE SERVICE OR THE TELEPHONE SERVICE PROVIDER AT ALL TIMES. ANY LOCATION PROVIDED IS APPROXIMATE AND DOES NOT PROVIDE GUARANTEED RESULTS.

 

THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. THE PUNCH TECHNOLOGIES ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE PUNCH TECHNOLOGIES ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

 

SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

 

14. Limitation of Liability

IN NO EVENT WILL THE PUNCH TECHNOLOGIES ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PUNCH TECHNOLOGIES ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

 

YOU AGREE THAT THE AGGREGATE LIABILITY OF THE PUNCH TECHNOLOGIES ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO PUNCH TECHNOLOGIES FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM; OR (B) $100.

 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

 

15. Governing Law

These Terms are governed by the laws of the State of North Carolina without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, you and Punch Technologies agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Mecklenburg County, North Carolina for the purpose of litigating any dispute. We operate the Platform from our offices in North Carolina, and we make no representation that Materials included in the Platform are appropriate or available for use in other locations.

 

16. General

These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Punch Technologies regarding your use of the Platform. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms should survive, will survive, including Sections 2, 4, and 6 through 18.

 

17. Dispute Resolution and Arbitration

17.1 Generally In the interest of resolving disputes between you and Punch Technologies in the most expedient and cost effective manner, you and Punch Technologies agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND PUNCH TECHNOLOGIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

17.2 Exceptions Despite the provisions of Section 17.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

17.3 Arbitrator Any arbitration between you and Punch Technologies will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Punch Technologies.

17.4 Notice; Process A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice"). Punch Technologies’ address for Notice is: 234 West 39th Street, Floor 9, New York, NY 10018. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Punch Technologies may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Punch Technologies must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Punch Technologies will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Punch Technologies in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

17.5 Fees If you commence arbitration in accordance with these Terms, Punch Technologies will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Punch Technologies for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

17.6 No Class Actions YOU AND PUNCH TECHNOLOGIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Punch Technologies agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

17.7 Modifications If Punch Technologies makes any future change to this arbitration provision (other than a change to Punch Technologies’ address for Notice), you may reject the change by sending us written notice within 30 days of the change to Punch Technologies’ address for Notice, in which case your account with Punch Technologies will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.

17.8 Enforceability If Section 17.6 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 15 will govern any action arising out of or related to these Terms.

 

18. Consent to Electronic Communications

By using the Platform, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

 

19. Contact Information

The Platform is offered by Punch Technologies, Inc., located at 806 Tyvola Rd., Ste 102, Charlotte, NC 28217. You may contact us by sending correspondence to that address or by emailing us at contact@punchalert.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the address above with your electronic mail address and a request for these Terms.