U.S. Pat. No. 10,171,980
Last Updated: October 6, 2020
Please read these Terms of Service (the “Agreement”) carefully. Your use of the Beacon Platform (as defined below) constitutes your consent to this Agreement. If you do not agree to be bound by the terms and conditions of this Agreement, you may not use or access the beacon platform.
This Agreement is between you and Trek Medics International, Inc. (“Trek Medics,” “we,” “us” or “our”) governing your use of the Beacon application (“App”), website, and technology platform (collectively, the “Beacon Platform”). This Agreement hereby incorporates by this reference any additional terms and conditions posted by Trek Medics through the Beacon Platform, or otherwise made available to you by Trek Medics. Your continued use of the Beacon Platform after such additional terms and conditions have been posted or made available to you constitutes your consent to such additional terms and conditions.
If you are an individual accessing or using the Beacon Platform on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (an “Organization”), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. References to “you” and “your” in this Agreement will refer to both the individual using the Beacon Platform and to any such Organization.
This Agreement contains a mandatory arbitration provision that, as further set forth below, requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or any other court proceedings, or class actions of any kind. By entering into to this Agreement, you expressly acknowledge that you understand this Agreement and accept all of its terms.
MODIFICATION TO THE AGREEMENT
We may change this Agreement (including information referenced in the hyperlinks from this Agreement) from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Beacon Platform. Any such changes will become effective upon posting but will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes. Continued use of the Beacon Platform or Services after any such changes shall constitute your consent to such changes. The “Last Updated” legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the Beacon Platform (including access to the Beacon Platform via any third-party links); charge, modify or waive any fees required to use the Beacon Platform; or offer opportunities to some or all Beacon Platform users.
THE BEACON PLATFORM
The Beacon Platform provides a platform where persons who seek assistance and/or transportation to certain destinations (“Beneficiaries”) can have their requests for assistance sent to persons offering these services (“Responders”) by persons who create, disseminate and manage the requests for assistance via the Beacon Platform (“Dispatchers”). Responders and Dispatchers, working together or independently as part of medical provider agencies (“Agencies”) are collectively referred to herein as “Agency Users” or “Users”, and each User shall create a user account within respective Agency accounts that enables access to the Beacon Platform. Beneficiaries are not listed as Users, nor do they need to create a user account, as they do not have any direct involvement with the management and operation of the Beacon Platform, and instead are represented by Dispatchers. For purposes of this Agreement, the
medical services provided by Dispatchers and Responders to Beneficiaries that are matched through the Beacon Platform shall be referred to collectively as the “Services”. Any decision by a User to offer or accept Services is a decision made in such User’s sole discretion. Each Service provided by a Dispatcher and Responder to a Beneficiary shall constitute a separate agreement between such persons.
By using the beacon platform, you affirm that you are of legal age to enter into this Agreement.
The Beacon Platform may only be used by individuals who can form legally binding contracts under applicable law. The Beacon Platform is not available to children (persons under the age of 18) or Users and/or Agencies who have had their User and/or Agency account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. You may not allow other persons to use your User and/or Agency account, and you agree that you are the sole authorized user of your account. You agree to be fully responsible for all activities and transactions conducted through your User and/or Agency account.
Subject to your compliance with this Agreement, Trek Medics grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Beacon Platform on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Trek Medics and Trek Medics’ licensors.
By becoming a User and/or Agency, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Trek Medics, its affiliated companies, Agencies and/or Users, may include but are not limited to: operational communications concerning your User account or use of the Beacon Platform or Services, updates concerning new and existing features on the Beacon Platform, communications concerning promotions run by us or our third- party partners, and news concerning Trek Medics and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send and/or receive from you.
The Beacon Platform is controlled or operated (or both) from the United States, and is not intended to subject Company to any non-U.S. jurisdiction or law. The Beacon Platform may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Beacon Platform is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Beacon Platform’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
With respect to your use of the Beacon Platform and your participation in the Services, you agree that you must not:
- Impersonate any person or entity; stalk, threaten, or otherwise harass any person; carry any weapons; or violate any law, statute, rule, permit, ordinance or regulation.
- Interfere with or disrupt the Services or the Beacon Platform or the servers or networks used to make the Beacon Platform available, including by hacking or defacing any portion of the Beacon Platform, or violate any requirement, procedure or policy of such servers or networks.
- Post, transmit or otherwise make available through or in connection with the Beacon Platform or the Services, any Information or materials that are or may be (a) false, inaccurate, misleading (directly or by omission or failure to update information), (b) defamatory, libelous, abusive, obscene, profane, offensive, pornographic or otherwise objectionable, (c) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others, or illegal; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
- Use the Beacon Platform in any way that infringes any third party’s rights, including but not limited to intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy.
- Post, transmit, or otherwise make available through or in connection with the Beacon Platform or the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or designed to interrupt, damage, destroy or limit the functionality, or to monitor the use of, any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information (each, a “Virus”).
- Use the Beacon Platform for any unauthorized commercial purpose, or for any purpose that is fraudulent or otherwise tortious or unlawful.
- Harvest or collect information about users of the Beacon Platform.
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Beacon Platform.
- “frame” or “mirror” any part of the Beacon Platform, or otherwise incorporate any portion of the Beacon Platform into any product or service, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other web site for any purpose.
- Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Beacon Platform except as expressly authorized herein, without Trek Medics’ express prior written consent.
- Reverse engineer, decompile or disassemble any portion of the Beacon Platform, except where such restriction is expressly prohibited by applicable law.
- Use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Beacon Platform or its contents.
- Link directly or indirectly to any other web sites.
- Systematically download and store Beacon Platform content.
- Remove any copyright, trademark or other proprietary rights notice from the Beacon Platform.
- Transfer or sell your User and/or Agency account, password and/or identification to any other party.
- Discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation.
- Cause any third party to engage in the restricted activities above.
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Beacon Platform.
You may be able to create or log-in to your Beacon User and/or Agency account through online accounts you may have with third party social networking sites (each such account, an “SNS Account”). By connecting to Beacon through an SNS Account, you understand that Trek Medics may access, store, and make available any SNS Account content according to the permission settings of your SNS Account (e.g., friends, mutual friends, contacts or following/followed lists (the “SNS Content”)). You understand that SNS Content may be available on and through the Beacon Platform to other Users. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be your Information.
For clarity, you retain ownership of your Information. You consent to us using your Information to create a User and/or Agency account that will allow you to use the Beacon Platform and participate in the Services, and for any other purpose (including promotional purposes, such as testimonials). To enable Trek Medics to use your Information, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up, transferable, sub-licensable (through multiple tiers) right and license, without additional consideration to you or any third party, to exercise the copyright, publicity, and database rights you have in your Information, and to use, reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify, incorporate into other works and otherwise use, analyze and exploit such Information, in any format or media now known or hereafter developed.
In addition, if you provide to us any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Beacon Platform or otherwise, such Feedback will be deemed Information, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Trek Medics under any fiduciary or other obligation.
You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Information, and your provision thereof through and in connection with the Beacon Platform, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Information that you may have under any applicable law under any legal theory.
THIRD-PARTY MATERIALS; LINKS
Certain site functionality may make available access to information, products, services and other materials made available by third parties, including submissions (“Third Party Materials”), or allow for the routing or transmission of such third party materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable third party materials.
We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Trek Medics with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Beacon Platform at any time. In addition, the availability of any Third Party Materials through the Beacon Platform does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
Your use of Third Party Materials is at your own risk and is subject to any additional terms, conditions and policies applicable to such Third Party Materials (such as terms of service or privacy policies of the providers of such Third Party Materials).
PROMOTIONS AND REFERRAL PROGRAMS
As part of your User account, Trek Medics may provide you with or allow you to create a “Beacon Code,” a unique alphanumeric code for you to distribute to friends, family and other persons (each a “Referred User”) to become new Beacon Responders (“Referred Responders”) or Agencies (“Referred Agencies”). Beacon Codes may only be distributed for promotional purposes and must be given away free of charge. You may not sell, trade, or barter your Beacon Code. You are prohibited from advertising Beacon Codes, including but not limited to: Google, Facebook, Twitter, Bing and Craigslist. Trek Medics reserves the right to deactivate or invalidate any Beacon Code at any time in Trek Medics’ discretion.
From time to time, Trek Medics may offer you with incentives to refer new Users and/or Agencies to the Trek Medics community (the “Referral Program”). These incentives may come in the form of Beacon Credits, and Beacon may set or change the incentive types, amounts, terms, restrictions, and qualification requirements for any incentives in its sole discretion. Your distribution of Beacon Codes and participation in the Referral Program is subject to this Agreement and the additional Referral Program rules.
AGENCY USERS REPRESENTATIONS, WARRANTIES AND AGREEMENTS
By providing Services as a Responder and/or Dispatcher on the Beacon Platform, you represent, warrant, and agree that:
- You possess a valid certification to provide medical assistance and are authorized and medically fit to perform these Services and have all appropriate licenses, approvals and authority to provide Services to Beneficiaries in all jurisdictions in which you provide Services.
- You will not engage in reckless behavior while providing Services, drive unsafely, operate a vehicle that is unsafe or unfit to drive, permit an unauthorized third party to accompany you in the vehicle while providing Services, provide Services as a Responder and/or Agency while under the influence of alcohol or drugs, or take action that harms or threatens to harm the safety of the Trek Medics community or third parties.
- You will only provide Services using the phone that has been reported to, and approved by your Agency and for which an authentication code has been issued, and you will not confirm your availability to provide services in any instance in which it is not true or possible.
- You will not make any misrepresentation regarding Trek Medics, the Beacon Platform, the Services or your status as a Responder and/or Dispatcher.
- You will not attempt to defraud Trek Medics or Beneficiaries referred through the Beacon Platform or in connection with your provision of Services. If we suspect that you have engaged in fraudulent activity, we may withhold applicable access or other benefits for the incidents in question.
- You have a valid policy of liability insurance (in coverage amounts consistent with all applicable legal requirements) that names or schedules you for the provision of the Services which you are entrusted
- You will pay all applicable federal, state and local taxes based on your provision of Services and any payments received by you.
All intellectual property rights in and to the Beacon Platform are owned by Trek Medics. These rights include but are not limited to (a) any patents and patent applications (owned and licensed by, (b) copyrights, mask works and all other rights with respect to works of authorship and industrial designs, (c) information and materials, including trade secrets and other confidential and proprietary data, materials and other information, (d) trademarks, trade names, logos, service marks, symbols, and internet domain names, (e) any rights equivalent or similar to any of the foregoing, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof, now or hereafter existing, made or in force (including any rights in any of the foregoing).
Our trade names, trademarks and service marks include TREK MEDICS, TREK MEDICS INTERNATIONAL, BEACON and any related or associated logos and trade dress (collectively, the “Trek Medics Marks”). All trade names, trademarks, service marks and logos on the Beacon Platform not owned by us are the property of their respective owners. If you provide Services as an Agency, Responder and/or Dispatcher, Trek Medics grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the Trek Medics Marks solely in connection with your provision of Services through the Beacon Platform (the “License”). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without Trek Medics’ prior written permission, which we may withhold in our sole discretion. The Trek Medics Marks may not be used in any manner that is likely to cause confusion.
You acknowledge that Trek Medics is the owner and licensor of the Trek Medics Marks, including all goodwill associated therewith, and that your use of the Trek Medics Marks will inure to the benefit of Trek Medics. You agree to use the Trek Medics Marks strictly in accordance with Trek Medics’ trademark usage guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that Trek Medics determines to nonconforming or otherwise unacceptable.
You agree that you will not: (a) create any materials that incorporate the Trek Medics Marks or any derivatives of the Trek Medics Marks other than as expressly approved by Trek Medics in writing; (b) use the Trek Medics Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Trek Medics Marks other than in accordance with the terms, conditions and restrictions herein; (c) take any other action that would jeopardize or impair Trek Medics’ rights as owner of the Trek Medics Marks or the legality and/or enforceability of the Trek Medics Marks, including, without limitation, challenging or opposing Trek Medics’ ownership in the Trek Medics Marks; (d) apply for trademark registration or renewal of trademark registration of any of the Trek Medics Marks, any derivative of the Trek Medics Marks, any combination of the Trek Medics Marks and any other name, or any trademark, service mark, trade name, symbol or word similar to the Trek Medics Marks; (e) use the Trek Medics Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard. Violation of any provision of this License will result in immediate termination of the License.
To the fullest extent permitted under applicable law: (a) the Beacon Platform and any products and Third Party Materials are made available to you on an “As Is,” “Where Is” and “Where Available” basis, without any warranties of any kind, whether express, implied or statutory; and (b) Trek Medics disclaims all warranties with respect to the Beacon Platform and any products and Third Party Materials, including the warranties of merchantability, fitness for a particular purpose, non-infringement and title. In addition, Trek Medics makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability or availability of the Services or any services requested or provided through the use of the Beacon Platform, or that the services will be accurate, complete, uninterrupted or error-free. Trek Medics does not guarantee the quality, suitability, safety or ability of the Services, or the Agencies, Dispatchers or Responders. you agree that the entire risk arising out of your use of the Beacon Platform, and any Service you provide or request in connection therewith, remains solely with you, to the maximum extent permitted under applicable law. All disclaimers of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both Trek Medics and its affiliates and their respective shareholders, directors, officers, employees, affiliates, agents, representatives, licensors, suppliers and service providers (collectively, the “Affiliated Entities”), and their respective successors and assigns.
While we try to maintain the timeliness, integrity and security of the Beacon Platform, we do not guarantee that the Beacon Platform is or will remain updated, complete, correct or secure, or that access to the Beacon Platform will be uninterrupted. Beacon Platform may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Beacon Platform. If you become aware of any such alteration, contact us at [email protected] with a description of such alteration and its location on the Beacon Platform.
Trek Medics does not provide medical assistance or medical transportation services, and Trek Medics is not a medical assistance or transportation carrier. It is up to the Agency, Dispatcher and/or Responder to decide whether or not to offer medical assistance and/or transport to a Beneficiary contacted through the Beacon Platform, and it is up to the Beneficiary to decide whether or not to accept a ride from any Agency and/or Responder contacted through the Beacon Platform. We cannot ensure that an Agency, Dispatcher, Responder or Beneficiary will complete an arranged medical assistance or transportation service. We have no control over the quality or safety of the medical assistance or transportation that occurs as a result of the Services.
We cannot guarantee that each Beneficiary is who he or she claims to be. Please use common sense when using the Beacon Platform and Services, including looking at the photos or other identification of the Agency, Dispatcher, Responder and/or Beneficiary you have matched with to make sure it is the same entity or individual you see in person. Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication or other use or access of the Beacon Platform by persons under the age of 18 in violation of this Agreement. We encourage you to communicate directly with each potential Agency, Dispatcher, Responder and/or Beneficiary prior to engaging in an arranged medical assistance or transportation service.
Trek Medics is not responsible for the conduct, whether online or offline, of any Agency or User of the Beacon Platform or Services. You are solely responsible for your interactions with other Agencies and/or Users. We do not procure insurance for, nor are we responsible for, personal belongings left in vehicles by Agencies, Dispatchers, Responders and/or Beneficiaries. By using the Beacon Platform and participating in the Services, you agree to accept such risks and agree that Trek Medics is not responsible for the acts or omissions of Users on the Beacon Platform or participating in the Services.
It is possible for others to obtain information about you that you provide, publish or post to or through the Beacon Platform (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the Beacon Platform or through the Services. Please carefully select the type of information that you post on the Beacon Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).
Opinions, advice, statements, offers, or other information or content concerning Trek Medics or made available through the Beacon Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the Beacon Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the Beacon Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
Location data provided by the Beacon Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Trek Medics, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the Beacon Platform. Any of your Information, including geolocational data, you upload, provide, or post on the Beacon Platform may be accessible to Trek Medics and certain Users of the Beacon Platform.
Trek Medics advises you to use the Beacon Platform with a data plan with unlimited or very high data usage and/or SMS limits, and Trek Medics shall not be responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the Beacon Platform.
You will defend, indemnify, and hold Trek Medics including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of the Beacon Platform or participation in or provision of the Services, (b) any violation or alleged violation by you of this Agreement or the documents it incorporates by reference; (c) any violation or alleged violation by you of any law or the rights of a third party, including, without limitation, Agencies, Dispatchers, Responders and/or Beneficiaries, other motorists, and pedestrians, as a result of your own interaction with such third party; (d) any allegation that any Information or materials that you transmit or otherwise makes available through the Beacon Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (e) your ownership, use or operation of a motor vehicle or passenger vehicle, including your provision of Services as an Agency, Dispatcher and/or Responder. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
LIMITATION OF LIABILITY
To the fullest extent permitted under applicable law (a): in no event will Trek Medics, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders (collectively “Trek Medics” for purposes of this section), be liable to you for any incidental, special, exemplary, punitive, consequential, or indirect damages (including, but not limited to, damages for deletion, corruption, loss of data, loss of programs, failure to store any information or other content maintained or transmitted by the beacon platform, service interruptions, or for the cost of procurement of substitute services) arising out of or in connection with the beacon platform, the services, or this agreement, however arising including negligence, even if we or our agents or representatives know or have been advised of the possibility of such damages; (b) without limiting the foregoing, Trek Medics will not be liable for damages of any kind resulting from your use of or inability to use the Beacon Platform or from any products or third party materials, including from any virus that may be transmitted in connection therewith; (c) your sole and exclusive remedy for dissatisfaction with the Beacon Platform or any products or third party materials is to stop using the Beacon Platform; and (d) the maximum aggregate liability of Trek Medics for all damages, losses and causes of action, whether in contract, tort (including negligence) or otherwise, shall be the greater of the total amount, if any, paid by you to Trek Medics to use the Beacon Platform or US$10.00.
The Beacon platform may be used by you to request and schedule assistance and transportation, goods, or other services with third party providers, but you agree that Trek Medics has no responsibility or liability to you related to any transportation, goods or other services provided to you by third party providers other than as expressly set forth in these terms. Certain jurisdictions may not allow the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have additional rights.
TERM AND TERMINATION
This Agreement is effective upon your creation of a User account and until terminated. Trek Medics may terminate or suspend your use of the Beacon Platform at any time and without prior notice, for any or no reason, including if Trek Medics believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Beacon Platform will immediately cease, and Trek Medics may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials.
GOVERNING LAW; ARBITRATION
You and Trek Medics agree that any and all disputes or Claims, except as expressly provided below, arising out of or relating to this Agreement shall be resolved by binding arbitration administered by the American Arbitration Association pursuant to its Consumer Arbitration Rules. The Consumer Arbitration Rules can be obtained at the AAA’s website (https://www.adr.org/sites/default/files/Consumer%20Rules.pdf) or by calling the AAA at 1-800-778-7879. The terms of this Agreement are governed by the laws of the United States (including federal arbitration law) and the State of Connecticut, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. Except for disputes that qualify for small claims court or workers’ compensation claims, all disputes arising out of or related to this Agreement or any aspect of the relationship between you and Company, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury and you agree that Company and you are each waiving the right to trial by a jury. Such disputes include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability or validity of the arbitration provision or any portion of the arbitration provision. All such matters shall be decided by an arbitrator and not by a court or judge.
You agree that any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class action.
The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
Before initiating any arbitration or proceeding, you and Trek Medics may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and Trek Medics. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
RELATIONSHIP WITH TREK MEDICS INTERNATIONAL
As a User on the Beacon Platform, you acknowledge and agree that you and Trek Medics are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and Trek Medics expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and Trek Medics; and (2) no joint venture, franchisor-franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind Trek Medics, and you undertake not to hold yourself out as an employee, agent or authorized representative of Trek Medics.
Trek Medics does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Services, your acts or omissions, or your operation and maintenance of your vehicle. You retain the sole right to determine when, where, and for how long you will utilize the Beacon Platform. You retain the option to accept or to decline or ignore a Beneficiary’s request for Services via the Beacon Platform, or to cancel an accepted request for Services via the Beacon Platform. With the exception of any signage required by law or permit/license rules or requirements, Trek Medics shall have no right to require you to: (a) display Trek Medics’s names, logos or colors on your vehicle(s); or (b) wear a uniform or any other clothing displaying Trek Medics’s names, logos or colors. You acknowledge and agree that you have complete discretion to provide Services or otherwise engage in other business or employment activities.
In addition to connecting Beneficiaries with Agencies, Dispatchers and Responders, the Beacon Platform may enable Users to provide or receive goods or services from other third parties. For example, Users may be able to use the Beacon Platform to order a delivery of goods, purchase a digital item, request a carpool ride from a commuter going in your direction, or when travelling to connect with local transportation platforms and request rides from local drivers (collectively, the “Other Services”). You understand and that the Other Services are subject to the terms and pricing of the third-party provider. If you choose to purchase Other Services through the Beacon Platform, you authorize Trek Medics to charge your payment method on file according to the pricing terms set by the third-party provider. You agree that Trek Medics is not responsible and may not be held liable for the Other Services or the actions or omissions of the third- party provider. Such Other Services may not be investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Other Services accessed through the Beacon Platform.
INFORMATION OR COMPLAINTS
If you have a question or complaint regarding the Beacon Platform, please send an e-mail to [email protected]. You may also contact us by writing to 1726 17th St. NW Suite 404, Washington, DC 20009 USA], or by calling us at 917-803-5411. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
COPYRIGHT INFRINGEMENT CLAIMS
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Beacon Platform infringe your copyright, you (or your agent) may send to Company a written notice by mail or e-mail, requesting that Company remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Company a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See https://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Paul Reilly as follows: By mail to Paul Reilly, Baker Botts L.L.P., 30 Rockefeller Plaza, New York, NY 10112; by e-mail toPaul.Reilly [@] bakerbotts.com; or by phone at (212) 408-2634.
We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Company relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Company relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Beacon Platform or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Company will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
If you have any questions regarding the Beacon Platform or Services, please contact our Customer Support Team through our Help Center.
In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to Company in accordance with the “Information or Complaints” section above. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service, except that the App may also be accessed and used by other accounts associated with you via Apple’s Family Sharing or volume purchasing programs. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, Trek Medics’ right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.
Beacon Platform © 2012-2023 Trek Medics unless otherwise noted. All rights reserved.