PLEASE READ THIS END USER LICENSE AGREEMENT (the “Agreement”) CAREFULLY BEFORE DENOTING YOUR ACCEPTANCE BY THE METHOD OFFERED. THE TERMS AND CONDITIONS OF USE, AND THIS AGREEMENT ARE BETWEEN YOU (referred to herein as “YOU” “YOUR” or “LICENSEE”) and Home Wav (“Home Wav”). THIS AGREEMENT AND LICENSE APPLIES TO THE SERVICES MADE AVAILABLE BY HOME WAV VIA WEBSITE, MOBILE APPLICATIONS, OR OTHER PLATFORMS AS MAY BE OFFERED (”SERVICES“ OR “SOFTWARE“.)
UPON DOWNLOADING THIS SOFTWARE APPLICATION, OR OTHERWISE ACCESSING THESE SERVICES, YOU WILL BE REQUIRED TO REVIEW AND ACCEPT THESE TERMS BFORE MAKING FURTHER USE. YOU MAY BE REQUIURED TO CREATE A USER ACCOUNT, DURING THE PROCESS YOU MUST INDICATE YOUR ASSENT TO THIS AGREEMENT BY CLICKING “I AGREE.”
ONCE AN ACCOUNT HAS BEEN REGISTERED, USE OF THE SOFTWARE AND SERVICES, SHALL BE SUBJECT TO A MASTER LICENSING AGREEMENT BETWEEN HOME WAV, AND A NAMED CORRECTIONAL FACILITY (the “Home Wav Master Agreement”). THE HOME WAV MASTER AGREEMENTS ALLOW CONTRACTING ENTITY TO CREATE A FACILITY NETWORK, AND TO AUTHORIZE USER ACCOUNTS TO USE THEIR FACILITY NETWORK ACCORDING TO THE TERMS AND CONDITIONS, WHICH THEY SET FORTH (the “Authorizing Facility“).
USERS MAY USE THE SOFTWARE AND SERVICES TO ACCESS MULTIPLE FACILITIES. PERMISSIONS AND ACCESS TO FACILITY NETWORKS SHALL BE DETERMINED BY INDIVIDUAL FACILITIES.
SUBJECT TO THE HOME WAV MASTER AGREEMENT, AUTHORIZING FACILITIES SHALL PERMIT AND ASSIGN INMATE USER ACCOUNTS SUBJECT TO THEIR INSITUTIONAL RULES AND LOCAL LAWS. NOTWITHSTANDING RULES SET FORTH BY THE AUTHORIZING FACILITY, INMATE USERS SHALL HAVE AN OPPORTUNITY TO REVIEW THESE LICENSING TERMS AND THEIR USE OF THESE SERVICES IS CONDITIONED ON THEIR AGREEMENT TO THE TERMS SET FORTH THEREIN.
THIS AGREEMENT GOVERNS YOUR USE OF THE HOME WAV SOFTWARE AND SERVICES. BY ACCEPTING THIS AGREEMENT YOU REPRESENT THAT YOU ARE CURRENTLY, OR ARE ELIGIBLE TO BECOME AN AUTHORIZED USER SUBJECT TO THE HOME WAV MASTER AGREEMENT. . IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT OR, IF YOU HAVE REASON TO KNOW YOU WILL NOT BE PERMITTED TO MAKE FURTHER USE BY AUTHORIZING FACILITY, OR YOU WILL BE UBNABLE TO COMPLY WITH AUTHORIZING FACILITIES RULES REGARDING USE OF THEIR NETWORK, THEN DO NOT DOWNLOAD THE SOFTWARE OR OTHERWISE MAKE USE OF THESE SERVICES.
a. “Effective Date” means the day that you download the Home Wav Software.
b. “Modifications” means any work based on or incorporating all or any portion of the Home Wav Software, including, without limitation, modifications, updates, enhancements, customizations, supplements and any derivative works made to the Home Wav Software.
c. “Home Wav Software” means the Home Wav application that Home Wav makes available to you for download as part of the installation process.
Subject to the terms and conditions of this Agreement, Home Wav grants to you a limited term, non-exclusive, non-transferable license to access and use the Home Wav Software solely for use in accordance with the Home Wav Agreements and this Agreement. Home Wav owns all right, title and interest in the Home Wav Software, including all copyrights, trademarks, patents and trade secrets. The terms and conditions of this Agreement apply to any Modifications, unless Home Wav provides you with additional or different terms along with the Modifications. You may not: (a) reproduce, display, download, modify, create derivative works of or distribute the Home Wav Software, in whole or in part, or make any Modifications (b) attempt to reverse engineer, decompile, disassemble or access the source code for the Home Wav Software or any component thereof; (c) permit any other party to access the Home Wav Software; (d) transmit the Home Wav Software, in whole or in part, electronically by any means; or (e) access the Home Wav Software via any means other than over the Internet using authorized login credentials. This Agreement does not grant you any right to use the Home Wav Software, or any part of the Home Wav Software other than as authorized in this Agreement and the Home Wav Agreements. You are responsible for safeguarding your login credentials and all use that occurs arising under any account created using Home Wav Software.
Home Wav charges a fee to use its Service. The fee is an access fee permitting you to take part in video visitation services via the Internet as authorized by the Authorizing Facility. The fee is earned, consistent with Home Wav’s published rate schedule, when authorized communications occur.
3. Ownership and Support
You agree that Home Wav owns all rights, title and interests in the Home Wav Software Application and any and all Modifications thereto; including all intellectual property rights associated therewith or embodied therein and is protected by international intellectual property law on all proprietary works embodied herein.
Limited to Application issues, Home Wav shall offer support services pursuant to the Home Wav Agreements, Authorizing facility shall be responsible for communicating all questions and requests from end user to support services under this Agreement.
4. Third-Party Materials
The Home Wav Software and Services may include features and functionalities, data or other materials that are linked to these services. These are third party materials that are owned by individuals or legal entities other than Home Wav and that are provided to you on terms separate from those contained in this Agreement. You are responsible for your interactions, and agreements you enter into, with third parties. To the extent you use the Home Wav Software to transmit, manage, or create materials or content you represent and warrant that you own or otherwise have the legal rights to use such materials and content and that your use will not infringe, misappropriate or otherwise violate any proprietary, intellectual property, or privacy right of any third party, or violate any applicable law or rules set forth by the Authorizing Facility. You are solely responsible for obtaining the legal rights to make use of such content, materials, and any derivative works used with the Home Wav Software, you further agree to comply with the Acceptable Use Policy set forth below.
5. Acceptable Use Policies.
You may not make use of the Home Wav Software and Services, or the user account created therewith in violation of any law, treaty or regulation of any country, nor may you violate the terms, policies, or rules of the Authorizing Facility to the extent those have been presented to you. Although the HomeWav has no input or enforcement responsibilities on behalf of any particular Authorized facility, Home Wav insists that you not make use of our Software in contravention of any of those rules. Through the Home Wav Agreements with Authorizing Facility, HomeWav has vested in facility the ability to exercise certain administrative controls over the use of our services and the resulting network. Although, HomeWav cannot endeavor to verify or confirm the legal authority by which those administrative guidelines and rules are set forth, if Home Wav is notified that the Software is being used in such a way to circumvent or bypass any administrative settings we reserve the right to take further remedial action under this Agreement.
The following Uses are prohibited, this section is meant to be illustrative and other uses not specifically set forth may also be found to be violations of this Agreement. USES include:
• In any way violating any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
• For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
• To send, knowingly receive, upload, download, use, or re-use any material that is harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another’s privacy, (b) is pornographic or depicts a human being engaged in actual sexual conduct, or harasses, degrades, intimidates or is hateful toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability.
• To transmit, or procure the sending of, any advertising or promotional material for Spamming purposes.
• To impersonate or attempt to impersonate any other person or entity
• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm HomeWav, The Authorizing Facility, or other affiliates, or expose them to liability.
Additionally, you agree not to:
• Use the Application or Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Application or Services, including their ability to engage in real time activities through the Application or Services.
• Use any robot, spider, or other automatic device, process, or means to access the Application or Services for any purpose, including monitoring or copying any of the material on the Application or Services.
• Use any manual process to monitor or copy any of the material on the Application or Services or for any other unauthorized purpose without our prior written consent.
• PUse any device, software, or routine that interferes with the proper working of the Application or Services.
• Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
• Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Application or Services, the server on which the Application or Services is stored, or any server, computer, or database connected to the Application or Services.
• Attack the Application or Services via a denial-of-service attack or a distributed denial-of-service attack.
Otherwise attempt to interfere with the proper working of the Software or Services.
6. Warranty Disclaimer.
THE HOME WAV SOFTWARE AND SERVICES ARE PROVIDED “AS IS” ALL WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, ARE EXPRESSLY DISCLAIMED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Home Wav is not responsible for any interruption in services or unavailability of the Home Wav Software resulting from Internet failures, your inability to access the Internet, or inadequate bandwidth in your Internet connection.
7. Limitation of Liability.
IN NO EVENT WILL HOME WAV BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR CONTINGENT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS. THIS NON-LIABILITY FOR DAMAGES APPLIES WHETHER IN AN ACTION BASED ON CONTRACT, TORT OR ANY OTHER SUCH THEORY, EVEN IF HOME WAV HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL HOME WAV’S TOTAL LIABILITY EXCEED THE GREATER OF (a) THE FEES PAID TO HOME WAV FOR YOUR ACCESS IN THE PRIOR 12 MONTH PERIOD OR (b) U.S. $5.00. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
Allocation of Risk: You acknowledge and agree that the foregoing disclaimers and limitations of liability represent bargained for allocations of risk and that the pricing and other terms and conditions of this agreement reflect such allocation of risk
8. Term and Termination.
This Agreement commences on the Effective Date and continues until and unless otherwise terminated in accordance with its terms or the terms of a Home Wav Agreement.
9. Export Restrictions.
You acknowledge that Home Wav Software is of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Home Wav Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
10. Service Levels
The HomeWav Software application and attendant services shall be maintained in a workmanlike manner, with necessary security safeguards. You specifically understand that the quality and speed of services rely on a number of factors beyond our control, such as the speed and operability of users Internet connection. You agree and understand that use of these services may be subject to limitations beyond our control. HomeWav endeavors to provide maximum service levels, however cannot be held responsible for delays, delivery failures or any resulting damages for factors beyond our control.
You will indemnify, defend, and hold harmless Home Wav and its directors, officers, employees, representatives and agents from and against, any and all claims, losses, damages and expenses, including attorney fees, arising from a third party claim to the extent that such third party claim is based on your use of any content or materials, a breach of this Agreement or the Home Wav Agreements, or your negligence or other act or omission in connection with use of the Home Wav Software.
13. Relationship of the Parties; No Third Party Beneficiaries.
The parties are independent contractors, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. There are no third party beneficiaries to this Agreement.
14. Arbitration and Dispute Resolution:
You and Home Wav each agree that any and all disputes, controversies, or claims arising out of or relating to: (a) these Terms and Privacy Policies (ii) your use of, or access to, this Service; or (iii) Home Wav’s services shall be resolved exclusively through final and binding arbitration rather than in court. The Federal Arbitration Act governs the interpretation and enforcement of this agreement to arbitrate. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this agreement to arbitrate, any part of it, or of these Terms including, but not limited to, any claim that all or any part of this agreement to arbitrate or the Terms is void or voidable. The arbitrator will decide the substance of all claims in accordance with the laws of the State of Delaware. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. You can choose to reject this agreement to arbitrate. If you do not wish to be bound by this agreement to arbitrate, you must notify the Company in writing within thirty (30) days of the date that you first access the Website. Your written notification must include your name and address, as well as a clear statement that you do not wish to resolve disputes with the Company through arbitration.
Written notification should be mailed by certified mail to: Home Wav, LLC, 11100 Linpage Place, St. Louis, Mo 63132.
YOU AND THE COMPANY AGREE THAT EACH MAY ONLY BRING CLAIMS AGAINST THE OTHER ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING UNLESS BOTH YOU AND THE COMPANY ACKNOWLEDGE AND AGREE THAT THE WAIVER IS MATERIAL AND ESSENTIAL TO THE ARBITRATION OF ANY DISPUTES BETWEEN THE PARTIES AND IS NON- SEVERABLE FROM THE AGREEMENT TO ARBITRATE CLAIMS. IF THE WAIVER IS LIMITED, VOIDED OR FOUND UNENFORCEABLE, THEN THE PARTIES’ AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH RESPECT TO SUCH PROCEEDING, SUBJECT TO THE RIGHT TO APPEAL THE LIMITATION OR INVALIDATION OF THE WAIVER. UNLESS YOU AND THE COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIMS. ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
Notices regarding this Agreement to Home Wav shall be made in writing to Authorizing Facility who provided Network for your account usage or by electronic mail to the address you have provided during registration or to support@HomeWav.com.
16. Entire Agreement.
The waiver of any breach or default under this Agreement does not constitute the waiver of any subsequent breach or default. If any provision of this Agreement is held to be illegal or unenforceable, it shall be deemed amended to conform to applicable laws or regulations, or, if it cannot be so amended without materially altering the intention of the parties, it shall be stricken and the remainder of this Agreement shall continue in full force and effect.