For U.S. User
s: Clause 26.2(a) limits Our liability to the lesser of $1,000.00 or twelve (12) times the monthly services fee if You or anyone else suffers any harm (damage or loss of property, personal injury, or death) because the App, the Services or Our system failed to operate properly or We were careless or acted improperly. Clause 26.2(b) requires You to indemnify Us and Our contractors, vendors and licensors if a claim or a lawsuit arising out of the App or the Services is brought against Us or Our contractors, vendors or licensors. Read these provisions particularly carefully.
1. ACCEPTANCE OF THESE TERMS
1.1 This document sets out the terms and conditions (“Terms”) on which You may access and use:
(a) the Swann Security mobile application (the “App”); and
(b) the Secure+ Plans, including Secure+ Professional Monitoring Services (as hereafter defined) and all other products and services that We or Our vendors or licensors provide to You (collectively, the “Services”).
1.2 These Terms apply in addition to any other terms and conditions to which You are subject in relation to the App or the Services, including:
(c) any relevant third party terms and conditions, including any relevant terms for https://www.apple.com/itunes/, https://play.google.com/store or associated websites and any other third party websites to which the App may be linked
(collectively "Other Terms").
1.3 In the event of any inconsistency between these Terms and the Other Terms, these Terms will prevail to the extent of the inconsistency.
1.4 By accessing or using the App or the Services or both, You accept and agree to these Terms without any limitation or qualification. These Terms constitute a legally binding agreement between You and:
(a) if You are in Australia: Swann Communications Pty Ltd (ABN 86 289 780 584) of Units 5B & 2A, 706 Lorimer Street, Port Melbourne, Victoria, 3207; or
(b) if You are in the United Kingdom: Swann Communications (Europe) Ltd of 2 Canon Harnett Court, Wolverton Mill, Milton Keynes, MK12 5NF; or
(c) if You or the property where Your Devices are installed (that location, Your "Property") are in the United States: Swann Communications USA Inc. of 12636 Clark Street, Santa Fe Springs, CA 90670; or
(d) if none of the foregoing apply to You: [Swann Communications Pty Ltd (ABN 86 289 780 584) of Units 5B & 2A, 706 Lorimer Street, Port Melbourne, Victoria, 3207] (each of such Swann entities, as applicable, “Swann”, “We”, “Us” or “Our”).
1.5 You warrant to Us that You have the authority to enter into these Terms.
2. CHANGES TO THESE TERMS
2.1 We may change these Terms from time to time by posting the changed Terms through updates of the Swann Website and/or the App.
2.2 If We make any:
(a) changes to these Terms that do not change Your rights, those changes will apply from the time that You continue using the App and Services;
(b) reasonable changes to these Terms that change Your rights in an immaterial way, those changes will apply 7 calendar days after You have been notified of those changes in accordance with Clause 2.1; and
(c) any other material changes to these Terms that change Your rights and could cause You material detriment;
Then, in any such event:
(i) You will be entitled to terminate any Secure+ Plan in accordance with Clause 16; and
(ii) those changes will apply on and from the next Billing Date if You are registered for a Secure+ Plan.
3. REQUIREMENTS FOR USING SUBSCRIPTION SERVICES
3.1 In order to access and use the App and the Services, You will need to:
(a) acquire and correctly install Your Devices and ensure that they are functional and operating;
(b) acquire and correctly install all hardware, software, broadband internet connection and bandwidth required to run the App and properly use the Services, and ensure that they are functional and operating;
(c) register with Us by following the prompts within the App. In order to do that, You will need an active account with iTunes (for iOS devices) or Google Play (for Android devices) configured to make payments through that account with Your payment method of choice; and
(d) register Your device(s) through the App with a unique “User ID”, including a username and password.
3.2 For the avoidance of doubt, You acknowledge that:
(a) at all times, You are solely responsible for acquiring and correctly installing Your Devices and ensuring that they are functional and operating;
(b) at all times, You are solely responsible for providing all hardware, software, network connectivity, broadband internet connection and bandwidth required to run the App and properly use the Services; and
(c) You may not be able to access and use the App or the Services unless You have successfully complied with, and continue to comply with, these Terms.
See additional terms and conditions relating to the applicable platforms in Clause 22 (App Platform Terms).
4. ACQUIRING SUBSCRIPTION SERVICES
4.1 In addition to the free services available on the App, the App also offers additional functionalities such as increased alert capabilities, recording and device features, and other matters that We offer as subscription services ("Secure+ Plan").
4.2 Each Secure+ Plan varies in price, functionality and duration. Details of the different Secure+ Plans are available on the Swann Website and within the App.
4.3 To sign up for a Secure+ Plan, complete the subscription procedure as described in Clause 3 and follow the prompts. If You qualify for a free trial period ("Free Trial Period"), You will not be charged until after the end of Your Free Trial Period. After that, You will be charged in accordance with these Terms.
4.4 Each Secure+ Plan commences on the date that You register for that Service (“Contract Effective Date”) and continues in full force and effect for the subscription period set out in the applicable Subscription Service. For the avoidance of doubt, You should understand that if You receive a Free Trial Period, that Free Trial Period will be a part of Your subscription period.
5. ACCESS AND USE; GUIDELINES FOR INSTALLATION AND USE
5.1 All right, title and interest in the App, Our Content provided through Our cameras, digital video recorders and other equipment and products (collectively, “Products”), and the Services (including without limitation information, documents, logos, graphics, designs and images) are owned by Swann, its vendors, licensors, or designated third parties. Swann and its vendors and licensors reserve all rights not expressly granted to You.
5.2 Subject to these Terms, Swann grants You a limited, non-transferable, non-exclusive right to access and use the App and the Services for the sole purpose of monitoring Your Property and controlling Your Products, and solely for Your personal, non-commercial use.
5.3 Privacy and other laws applicable in Your jurisdiction may impose certain responsibilities on You and Your use of the Products, App and Services. You agree that it is Your responsibility, and not the responsibility of Swann, to ensure that You comply with any applicable laws when You use the Products, App and Services, including but not limited to:
(a) any laws or regulations relating to the recording or sharing of video or audio content, and/or
(b) any laws or regulations requiring that notice be given to or that consent be obtained from third parties with respect to Your use of the Products, App or Services.
5.4 You agree:
(a) if required by applicable law, that installation of any Product which takes visual and/or audio recordings will be installed at such an angle that it does not take any recordings beyond the boundary of Your Property (including public pavements or roads);
(b) if required by applicable law, to prominently display appropriate signage advising others that audio/visual recording is taking place; and
(c) if You use Your Property as a workplace, to comply with laws governing the monitoring of employees.
5.5 If Your use of the App, the Services or any Products is prohibited by applicable law, then You are not authorized to use the App or the Services. We cannot and will not be responsible for Your use of the App, the Services or any Products in a way that violates the law.
5.6 You will be required to register with Us in order to be able to use the App and obtain the Services and, as part of that process, you will be required to create an Account with Us (Your “Account”), and choose a password and username (“User ID”). You promise to provide Us with accurate, complete, and updated registration information about Yourself. You may not select as Your User ID a name that You do not have the right to use, or another person’s name with the intent to impersonate that person. You agree not to share Your Account or password with anyone, and You to protect the security of Your Account and Your password. You are responsible for any activity associated with Your Account, whether or not authorized by You.
5.7 You represent, warrant, and agree that You will not capture or contribute any Content (as defined below) or otherwise use the App, Services or Products or interact with the App, Services or Products in a manner that:
(a) infringes or violates the patents, copyrights, trademarks, trade secrets or other intellectual property rights (collectively, “Intellectual Property Rights”) or any other rights of anyone else (including Us);
(b) violates any law, ordinance, or regulation, including privacy and other laws referenced above and any applicable export control laws;
(c) is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) jeopardizes the security of Your account or anyone else’s Account with Us (such as allowing someone else to log into the App as You);
(e) attempts, in any manner, to obtain the password, Account, or other security information from any other user;
(f) violates the security of any computer network, or cracks (or attempts to crack) any passwords or security encryption codes;
(g) runs Maillist, Listserv, any form of auto-responder or “spam” on or through the App or the Services, or any processes that run or are activated while You are not logged into the App or the Services, or that otherwise interfere with the proper working of the App or the Services (including by placing an unreasonable load on the Services’ infrastructure);
(h) “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the App, Services or Content (whether through the use of manual or automated means); or
(i) copies or stores any significant portion of the Content not owned by You.
5.8 A violation of this Clause 5 is grounds for termination of Your right to use or access the Products, App and Services.
6. TRADEMARKS AND COPYRIGHTS
6.1 Nothing on or in the Products, App or Services will be construed as conferring on You any license under any Intellectual Property Right, including any right in the nature of trademark or copyright, of Swann or any third party, whether by estoppel, implication or otherwise. All trademarks and trade names are the property of their respective owners.
6.2 Except as otherwise noted, Swann is the owner of all trademarks and service marks on or in the Products, App and Services, whether registered or not, including, without limitation, the mark “Swann”. Swann expressly forbids the unauthorized use of its trademarks, service marks, trade names, logos or other graphics to create links. All registered trademarks are registered in the United States of America (and/or other applicable jurisdictions).
7. YOUR CONTENT
7.1 You may have the ability to post or upload materials (including, without limitation, video, images, audio, and commentary) (collectively, Your “Content”), including, without limitation, Content captured through or in connection with Your use of the Products, App and Services.
7.2 You are solely responsible for all Content that You upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Products, App or Services. You represent and warrant that:
(a) You own all right, title and interest in and to the Intellectual Property Rights in all Content posted by You or otherwise have the right to post the Content and grant the license set forth below; and
(b) the posting and use of Content on or through the App or the Services does not violate the privacy rights, publicity rights, copyrights, contract rights, Intellectual Property Rights or any other rights of any person.
7.3 You hereby grant to Swann and its vendors and licensees an unlimited, irrevocable, fully paid and royalty-free, sublicensable, perpetual, transferable, worldwide right and license to use, store, access, delete, download, receive, collect, retain, analyze, translate, copy, modify, display, and create derivative works from Your Content in any media formats in any media channels, whether now in existence or hereafter developed, created or discovered, without any compensation to You in connection with Our provision of the App and the Services.
7.4 You will not use, reproduce, modify, upload, publish, transmit, distribute, display, or otherwise exploit for any purposes whatsoever any Content:
(a) that is not owned by You without the express prior written consent of the respective owner(s); and
(b) in any way that violates any third party right. Swann reserves the right, but will not be obligated, to remove any Content from the App and the Services at any time in its sole and absolute discretion.
7.5 You must ensure that Your Devices:
(a) are used only for the purpose of maintaining security at Your Property; and
(b) are not used in a way which unreasonably violates the privacy of any individual (e.g., by placement in restrooms, bathrooms, toilets, or dressing or changing rooms).
8. MAKING INSURANCE AND WARRANTY CLAIMS
8.1 Insurance Claims
(a) If Your Secure+ Plan is the Extra Plan or the Unlimited Plan, and Your Device has been stolen, taken or removed without consent from Your Property, then You will be entitled to a replacement of Your Device on the production of a valid police report and in accordance with the actions required in this Clause 8.1 (each, an “Insurance Claim”).
(b) To make an Insurance Claim, You must complete the insurance claim form on the Swann Website and provide details of Your claim, including, but not necessarily limited to:
(i) Your Account ID;
(ii) proof of purchase of the stolen, taken or removed Device, including model number/item code; and
(iii) a valid police report from Your local jurisdiction documenting details of the theft or removal of Your Device(s) from Your Property.
(c) In order for You to make an Insurance Claim, Your Device must be registered with Us before it is stolen, taken or removed without consent from Your Property.
8.2 Limited Warranty
(a) Your Product comes with a Limited Warranty, the terms of which are available here: https://swann.com/product-returns/.
(b) If Your Secure+ Plan is the Extra Plan or the Unlimited Plan, You are entitled to, amongst other benefits that accompany Your Secure+ Plan, an extension of the Limited Warranty for another 24 months (for 36 months in total) (the “Extended Warranty”), provided that You subscribe Your Device to a Secure+ Plan within 6 months of Your date of purchase. If Your Device is not subscribed to a Secure+ Plan within 6 months of Your date of purchase, then Extended Warranty will not apply and only the standard Limited Warranty will apply to Your Device.
(i) The Limited Warranty and Extended Warranty each begin on the date of purchase, not the date on which your subscription begins.
(c) To make a warranty claim under Your Limited Warranty or Extended Warranty, You must:
(i) complete the warranty claim process on the Swann Website and provide details, including but not necessarily limited to:
(A) Your Account ID;
(B) proof and date of purchase, including model number/item code;
(C) mac ID and/or device registration date; and
(D) detail of Product defect or issue that has caused the warranty claim;
(ii) send the Product in question back to Swann as detailed in the claim form; and
(iii) register Your Device with Us in order for You to make a warranty claim.
(iv) The terms and conditions of Our Limited Warranty and Extended Warranty can be found by clicking here: https://swann.com/product-returns/.
9. SUBSCRIBING VIA THE APP
By subscribing for Our Services via the App using either an Apple iOS phone via iTunes or an Android device via Google Play, the following terms apply:
9.1 Using the App and Your Account
(a) You must first use the App to create Your Account with Us for the Services. You may then subscribe for Subscription Services by following the prompts to become a member and subscribe through the App. In setting up Your Account, the information We will ask for will include but may not be limited to:
(i) Your personal details;
(ii) contact details of the people who You authorize the App or Us to contact in accordance with Your instructions and to act on Your behalf in the event of an Alert (Your "Assigned Contacts”);
(iii) details of Your Devices that You desire to access or control through the App, and the location of Your Property where Your Devices are installed;
(iv) rules in relation to the usage of Your Devices at Your Property; and
(v) rules in relation to the notifications that You would like to receive regarding specified activities that occur at Your Property (“Alerts”) and how You would prefer those Alerts to be communicated to You and Your Assigned Contacts (e.g., by email or push notification).
(b) Together, all information and details that You enter into Your Account, and any data that is not Our Content, including any video recordings that You make from the App or that are stored remotely using the Services (Your "Data”), are Your Content.
9.2 Accessing and recording information through the App
(a) The App allows You to connect to Your Devices in accordance with the rules that You establish using the App, so that You can access or record certain input being captured by Your Devices.
9.3 Communicating Alerts
(a) We will send Alerts to You and Your Assigned Contacts in accordance with the rules that You establish using the App.
(b) You may also view Alerts in the "Alerts" section of the App.
9.4 Controlling Your Devices
(a) You can input instructions into the App which are relayed to Your Devices directly, via the internet.
9.5 Storage of Your Data
(a) You acknowledge and agree that a third party service provider engaged by Us will store Your Data in accordance with applicable local laws pertaining to data storage, privacy and GDPR concerns. Also see Clause 22 (App Platform Terms) for detailed terms and conditions relating to the use of the App and the applicable platforms.
(b) We only commit to storing Your Data for the limited time described in Your Secure+ Plan, and may permanently delete Your Data after expiry of the relevant time.
(c) You may access, download or delete Your Data via the App.
(d) We acknowledge that You own the rights to Your Data and nothing in these Terms is intended to give Us any ownership rights in respect of Your Data.
(e) You authorize Us to access and use Your Data for purposes related to providing the Services to You under these Terms.
(f) You acknowledge that:
(i) Your Data is only intended to be a resource to assist You with the personal monitoring of Your Property. Your Data may not capture every incident or security breach or related occurrence at Your Property, and should therefore be used in conjunction with other appropriate measures for the personal monitoring of and protection of Your Property security and safety; and
(ii) there are many things outside Our control that may affect the recording, live streaming and storage of Your Data, and Your ability to access Your Data using the App, the Services, and Your ability to receive and access mobile Alerts and notifications. Subject to Clause 26, We do not guarantee that Your access to the App, the Services, Alerts and notifications will be uninterrupted or error free. In the unlikely event that any of Your Data is lost or corrupted such that it is not accessible, We will take reasonable steps to repair or recover Your Data at no cost to You. Subject to Clause 26, it is Your responsibility to take all appropriate measures to minimize any loss or damage that may flow from any interruption, breakdown or failure of the App or the Services, including ensuring that Your Devices, which are required to record and transmit Your Data to the App, are operating and functional at all times.
10. FEES AND PAYMENT
10.1 You may enroll in a Secure+ Plan on a monthly or annual subscription, which will continue until You or We cancel Your Secure+ Plan.
10.2 Your Secure+ Plan will automatically commence on the first day you register, but you will not be charged until the end of any Free Trial Period that You receive. The frequency of payment, either monthly or annual, is determined by You when you first set up Your Secure+ Plan.
10.3 If You qualify for a Free Trial Period, You will be charged a subscription fee in accordance with Your Secure+ Plan at the end of that Free Trial Period. To avoid being charged the subscription fee, You must cancel Your Secure+ Plan before the end of Your Free Trial Period by cancelling the Secure+ Plan via the App. If you do not cancel Your Secure+ Plan by the required deadline, You Secure+ Plan will continue in effect and You will be charged a subscription fee.
10.4 Fees are billed or charged on the first day of the applicable subscription period (the "Billing Date"). If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, We reserve the right to cancel Your Secure+ Plan and to collect any rejection or insufficient funds fee and to process any such payment by the payment method You have submitted to Us.
10.5 You acknowledge that, if Your credit card expires or becomes invalid, and You do not update Your payment method via iTunes or Google Play, or cancel Your Secure+ Plan in a timely manner, then You authorize Us to continue charging Your Account via iTunes or Google Play with any Fees or charges that continue to apply in accordance with Your Secure+ Plan and that You remain responsible for any outstanding debts owed to Us. We reserve the right to terminate Your Secure+ Plan if We are unable to process Our fees via iTunes or Google Play. Our inability to charge your chosen payment method does not waive Our right to seek payment directly from You.
11.1 Subject to Clauses 11.3, 11.4 and 12.1(a), Your Secure+ Plan will automatically renew.
11.2 Your Secure+ Plan will renew for the same duration as the subscription term originally selected (monthly or annual), at the then current non-promotional rate.
11.3 Monthly subscriptions
If you sign up for a monthly subscription, then Your Secure+ Plan will automatically renew each month unless, at least 2 calendar days prior to the expiry of Your then-current term, You log in to the App and cancel the service.
11.4 Annual subscriptions
If You sign up for an annual subscription, then Your Secure+ Plan will automatically renew for an additional year unless You log into the App and cancel the Service at least 2 calendar days prior to the expiry of Your then-current term.
11.5 If You terminate a Secure+ Plan, You may use Your subscription until the end of the month in which You cancelled Your Secure+ Plan and Your subscription will cease thereafter. You will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period, except as set forth in the Refund Policy in Clause 12 below.
11.6 Your non-termination or continued use of a Secure+ Plan reaffirms that We are authorized to charge Your payment method for that Secure+ Plan. We may submit those charges for payment and You will be responsible for those charges. This does not waive Our right to seek payment directly from You.
12. REFUND POLICY
It’s your responsibility to maintain and manage your subscription. This includes altering your choice of plan and/or cancelling a subscription in a timely manner. Refunds are only available in limited circumstances as laid out below:
12.1 Cancellation during the Free Trial Period
Subject to Clause 26, You may cancel Your Secure+ Plan at any time during any applicable Free Trial Period (without incurring any fees for the Subscription Service) and Your Subscription will not continue beyond the Free Trial Period. This applies to both Monthly and Annual subscriptions.
12.2 Monthly subscriptions
Subject to Clause 26, at the end of any applicable Free Trial Period, if Your Secure+ Plan is a monthly subscription, You will not be entitled to a refund, and billing will continue automatically each month for the duration of the term You selected.
12.3 Annual subscriptions
At the end of any applicable Free Trial Period, if Your Secure+ Plan is an annual subscription and:
(a) You cancel Your annual subscription at any time within the first eleven (11) months of Your subscription period, then You will be charged for each month of Your annual subscription period prior to, and including the current month of, Your cancellation (but excluding the month in which You receive any applicable Free Trial Period), and You will be eligible for a refund for the remaining full months of Your annual subscription period (minus any credits applied or partial refunds issued); or
(b) You cancel Your annual subscription at any time after the first eleven (11) months of Your subscription period, You will not be entitled to a refund.
12.4 Management of Refunds via IOS or Android
If you have subscribed via the App using an Apple iOS phone via iTunes or an Android device via Google Play, and are entitled to a refund under Clause 12.3, the following shall apply:
(a) Your refund payment will be managed by Apple iTunes or Google Play, in line with their refund policies and procedures;
(b) once Your subscription plan has been cancelled, You should contact your respective platform to arrange for Your refund; and
(c) Swann is unable to assist with this process, nor manage payment on behalf of either party.
13. PRIVACY AND USE OF DATA
13.1 We may collect, use and disclose Your personal information, including Your Account information and Your Content, to provide, administer, improve and personalize Our products and services (including the App), identify You, correspond with You, protect Our lawful interests and deal with Your concerns. We may not be able to do these things without Your personal information. For example, some functionality of the App may be limited without Our use of Your personal information.
14. YOUR USE OF OUR MATERIALS
14.1 All rights in the App, and content on the App, including without limitation copyright in the software and data comprising the App and Our trademarks, are owned or licensed by Us (“Our Materials”). As between You and Us, We own all rights in and to Our Materials and in the App. You must not remove, change, alter or conceal any copyright, trade mark or other proprietary rights notice incorporated in or accompanying Our Materials and You must not reproduce, modify, adapt, perform, display or otherwise exploit Our Materials other than as expressly permitted under these Terms.
14.2 We grant You a limited, non-exclusive, personal, royalty free license to use Our Materials for the purposes of using the App and the Services for which You have paid, and that You are otherwise entitled to use under these Terms.
15. USE OF THE APP AND THE SERVICES
15.1 You must not, will not attempt to, and do not have any right to:
(a) use the App or the Services to send any unauthorized commercial communications (such as spam);
(b) access the App or the Services using automated means;
(c) use any software, script, code, device, crawler, robot, or other means not provided by Us or our vendors or licensors to access the App or the Services;
(d) violate or attempt to violate the security of the App or the Services;
(e) circumvent, disable, or otherwise interfere with security-related features of the App or the Services;
(f) upload viruses or other malicious code to the App or the Services;
(g) interfere or attempt to interfere with the App or the Services, including, without limitation, via means of submitting a virus to the Services, spamming, crashing, or otherwise;
(h) bypass any measure that We may use to prevent or restrict access to the App or the Services, any part of the App, the Services or any other software, systems; or networks connected to the App or the Services;
(i) modify, adapt, translate, decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying algorithms of any part of the App or the Services;
(j) create derivative works of any part of the App or the Services;
(k) rent, lease, lend, sell, transfer, redistribute, or sublicense the App or the Services;
(l) engage in commercial use or distribution of the Services;
(m) do anything that could disable, overburden, or impair the proper working of the App or the Services, such as a denial of service attack;
(n) damage, disable, unduly burden, disrupt, impair or interfere with the App or any Services, servers or networks connected to or accessible through the App;
(o) let anyone else access Your Account;
(p) post information or interact with the App or the Services in in a manner that is fraudulent, libelous, abusive, obscene, profane, harassing, or illegal;
(q) use the App or the Services in any way that infringes or misappropriates any third party’s rights, including copyright, patent, trademark, trade secret, or other intellectual property or proprietary rights, or rights of publicity or privacy;
(r) use the App, the Services or Your Devices in any manner or for any purpose that it is unlawful or illegal or in violation of any law, statute, rule, permit, ordinance or regulation;
(s) gain or attempt to gain unauthorized access to the App or the Services;
(t) fail to take reasonable actions to limit an excessive number of alarm events generated through the App or the Services; or
(u) use the App or the Services for the benefit of any third party.
15.2 You acknowledge that:
(a) Unless you have subscribed to Our Secure+ Professional Monitoring Services, the App and the Services will not provide You with any emergency authority response services;
(b) We do not certify that the App or the Services have been designed or programmed to comply with any laws relating to security systems; and
(c) You may opt out of the receipt of any messages and Alerts from the App or the Service, but We do not recommend that You do so.
16. TERMINATION AND SUSPENSION
16.1 You may terminate:
(a) any of Your Secure+ Plans by deleting them from within the App or by contacting Us.
16.2 We may terminate, disable, block or suspend Your access to the App:
(a) immediately, if You breach, or We suspect on reasonable grounds that You have breached, a material term of these Terms and that such breach, being capable of cure, remains uncured for ten (10) calendar days or more after We notified You in writing of such breach; or
(b) on not less than 7 days’ prior notice to You, at any other time, acting reasonably.
16.3 If We terminate Your Secure+ Plan in accordance with Clause 16.2(b), then You will be entitled to the following:
(a) monthly subscribers will not be entitled to a refund;
(b) annual subscribers will be entitled to a refund for any full month portions of Your Secure+ Plan that have not been used as of the date of termination.
16.4 If You have any outstanding debts to Us at the time of the termination or cancellation of Your Account, We reserve the right to pursue You for them in accordance with Our rights under these Terms and at law.
16.5 All provisions which by their nature survive termination, including Clauses 7, 12, 13, 21, 26 and 28, will survive the termination of these Terms.
17. YOUR RESPONSIBILITIES
17.1 You are responsible for:
(a) all of the activity conducted using Your Account, whether or not that activity is conducted or authorized by You, and in connection with the App (including Your use of any Tools, as defined below);
(b) keeping Your password to Your Account safe, secure and confidential, and notifying Us if You become aware that access to Your Account has been compromised;
(c) ensuring that all of the information and details that You submit into the App are complete and correct at all times, including Your contact details and those of any Assigned Contacts;
(d) ensuring that Your Devices are connected to the internet so that they can receive all firmware and other updates and upgrades via the App as they become available from time to time;
(e) monitoring Your Content, including Your Alerts, and deciding how often You monitor Your Content;
(f) how You interpret or use the App and Your Content;
(g) any actions (including making phone calls, sending text messages and emails, and contacting emergency services and law enforcement) that You take or do not take as a result of the App or Your Content;
(h) obtaining and maintaining all appropriate insurance as is reasonably prudent to protect against risks at Your Property, including burglary, theft, robbery and fire and consequential loss and damage; and
(i) providing such other assistance or permitting such other access to Your Property as We may reasonably require for the proper provision of the Services.
(j) You remain responsible for any breach of contract or infringement of any Intellectual Property Rights or any other rights of any third party in connection with Your Content.
17.2 We reserve the right to access, read, preserve and disclose any of Your Content (including Your Data and personal information) as We reasonably believe is necessary to:
(a) satisfy any law or regulation;
(b) enforce these Terms, including investigation of potential violations of these Terms;
(c) detect, prevent or otherwise address fraud, security or technical issues; or
(d) respond to Alerts.
17.3 Since electronic services are subject to interruption, breakdown and failure, access to the App and the Services (including Your ability to receive Alerts, Notifications (as defined below) and obtain remote access to and control of Your Devices) is offered on an ‘AS IS’ and ‘AS AVAILABLE’ basis only. There are many things outside Our control which might mean that the App and the Services cannot or will not function under all circumstances. You acknowledge that it is Your responsibility to take appropriate measures to minimize any loss or damage that may flow from any interruption, breakdown or failure of the App or the Services.
18. THIRD PARTY TOOLS
18.1 Certain hardware, tools, devices, software programs or other features (“Tools”) that can be used with the App may be provided by third parties. These Tools are not operated by Us or any agent of Ours, and We are not responsible for examining or evaluating the suitability or compatibility of their use with the App or their performance, reliability, content, availability, accuracy, adequacy, timeliness, validity, copyright compliance, legality, decency, quality, completeness or any other aspect of these Tools. You should only use such Tools after You have done Your own investigation. Use of any such Tools is at Your sole risk.
19. SOFTWARE UPDATES
19.1 From time to time, Swann may develop updates, upgrades, patches and other modifications to improve the performance of the Products, the App and/or the Services or for other reasons in Our sole discretion (“Updates”). You agree that Swann may automatically install such Updates without providing any additional notice to You or receiving any additional consent from You.
20. PRODUCTS AND SOFTWARE
20.1 Downloading or using Our software (including the App) does not give You title to or ownership of that software, including any files, data and images incorporated in or associated with the software. Your use of any such software will be only in accordance with these Terms. The copyright in Our software is owned by Swann or its vendor(s) or licensor(s), and such software may be protected by one or more patents owned by Swann or its vendor(s) or licensor(s). Our Software may not be copied, redistributed or placed on any server for further distribution. You may not sell, modify, decompile, disassemble or otherwise reverse engineer the software. Products and Services offered through the Swann Website will be warranted, if at all, through the written license or warranty provided in connection with such Product or Service. These Terms apply to Your use of the Products, the App and the Services, including any other software downloaded to Your smartphone or tablet to access the Services. The App and Our software are licensed to You on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Products and Services for Your private, personal, non-commercial use, subject to all of the terms and conditions set forth in these Terms as they are applicable to the Products and Services. You will only use the App on a device that You own or are otherwise authorized to use. You represent and warrant that You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that You are not listed on any U.S. Government list of prohibited or restricted parties.
21. NO LIFE AND SAFETY OR CRITICAL USES; BACKUPS
21.1 You acknowledge that, unless you have subscribed to Our Secure+ Professional Monitoring Services, Our Products and Services are not a third-party monitored emergency notification system, that We do not monitor emergency notifications, and that We will not dispatch emergency authorities to Your home or business in the event of an emergency. Even if you decide to subscribe to Our Secure+ Professional Monitoring Services, We make no warranty or representation that use of the Products or Services will affect or increase any level of safety. You acknowledge that, unless you have subscribed to Our Secure+ Professional Monitoring Services, the Products and Services are not a substitute for a third-party monitored emergency notification system. We cannot and do not guarantee that You will receive Notifications in any given timeframe or at all. All life threatening, safety and emergency events should be directed to the appropriate emergency response services.
21.2 We strongly suggest that You backup any important Content (for example, by downloading and locally saving any such Content). You are solely responsible for backing up Your Content on Your own computers or storage devices to avoid loss of Your Content.
21.3 Our Products and Services are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products or Services could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If You use any Products or Services in any such applications: (a) You acknowledge that such use or sale is at Your sole risk; (b) You agree that Swann and its providers are not liable, in whole or in part, for any claim or damage based on or arising from any such use; and (c) You agree to indemnify, defend and hold Swann and its providers harmless from and against any and all claims, damages, losses, costs, expenses and liabilities based on or arising out of or in connection with any such use.
22. APP PLATFORM TERMS
22.1 The following Clause applies to the Android version of the App available through Google Play.
(a) We grant You a non-exclusive, worldwide license to perform, display and use the App on Your device that is capable of accessing Google Play.
22.2 The following Clauses apply to the Apple version of the App available through the App Store.
(a) You acknowledge that these Terms are between Us and You, and that Apple Inc. (“Apple”) is not a party to these Terms.
(b) We grant You a non-exclusive, revocable, royalty free, non-transferable license to use the App in accordance with these Terms on an iOS Product (that is, any Apple-branded product that runs the iOS operating system software provided by Apple) or any other product permitted by Apple from time to time that You use or control and as permitted by the “Usage Rules” set out in the “App Store Terms of Service”.
(c) Both You and We acknowledge that, in the event of any third party claim that the App or Your possession and use of the App infringes that third party’s intellectual property rights, as between Us and Apple, We (not Apple) will be solely responsible for the investigation, defense, settlement and discharge of such claim.
(d) You acknowledge that Apple has (to the maximum extent permitted by law) no warranty obligations with respect to the App and that any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the App to conform to any warranty implied or imposed by law will be Our responsibility (not Apple’s). Without limiting any other provisions of these Terms, both You and We also acknowledge that We (not Apple) are responsible for addressing any claims that You or a third party has relating to the App or Your possession or use of the App, including, without limitation, any product liability claims, any claim that the App fails to conform to any applicable legal or regulatory requirement, and claims arising under consumer protection or similar legislation.
(e) Where permitted under applicable laws, both You and We acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, on Your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against You as a third party beneficiary of these Terms.
23. EXPORT CONTROL
23.1 Certain Products, Services and related technology and documentation sold by Swann are subject to export control laws, regulations and orders of the United States, the European Union, and/or other countries ("Export Laws"). You will comply with all such Export Laws and obtain any license, permit or authorization that may be required to transfer, sell, export, re-export or import any Products, Services and/or any related technology and documentation.
23.2 You will not export or re-export any Products, Services and/or any related technology and documentation to any country or entity to which such export or re-export is prohibited, including, without limitation, any country or entity under sanction or embargoes administered by the United Nations, U.S. Department of Treasury, U.S. Department of Commerce or U.S. Department of State. You will not use any Products, Services and/or any related technology and documentation in connection with any nuclear, biological or chemical weapons or missile systems capable of delivering same, or in the development of any weapons of mass destruction.
24. ELECTRONIC COMMUNICATIONS
24.1 By accepting these Terms or using the App or the Services, You agree to receive communications from Us, including emails, SMS/text messages, Alerts, Notifications, and other electronic communications. Standard message and data rates apply to all messages sent to or received from Us. Any notices, agreements, disclosures, or other communications that We send to You electronically will satisfy any legal communication requirements, including any requirement that the communication be in writing.
25.1 If any provision of these Terms is found to be invalid, illegal or unenforceable under the law of any jurisdiction, that provision will be enforceable in that jurisdiction to the extent that it is not invalid, illegal or unenforceable, whether it is in severable terms or not. The invalidity, illegality or unenforceability of any one provision will not affect any other provision of these Terms or any action in any other jurisdiction, but these Terms will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had not been contained in these Terms,
25.2 Subject to Clause 25.3, these Terms are governed by the laws of Victoria, Australia, and the courts of Victoria, Australia (and the courts of appeal from them) have exclusive jurisdiction to resolve any disputes arising under or in connection with these Terms.
25.3 Notwithstanding Clause 25.2, if You are in:
(a) the United States, these Terms are governed by the laws of the State of California, and the courts of the State of California (and the courts of appeal from them) have exclusive jurisdiction to resolve any disputes arising under or in connection with these Terms; or
(b) the United Kingdom, these Terms are governed by United Kingdom law, and the courts of the United Kingdom have exclusive jurisdiction to resolve any disputes arising under or in connection with these Terms.
25.4 If We fail to enforce any of Our rights under these Terms, that does not mean that We waive those rights. If You fail to enforce any of Your rights under these Terms, that does not mean that You waive those rights.
25.5 These Terms are personal to You and You may not assign or otherwise transfer any rights or obligations under these Terms without Our prior written consent. We may assign or otherwise transfer Our rights and obligations under these Terms as We require.
25.6 We may sub-contract or delegate the performance of all or some of Our duties, obligations and powers under these Terms (including the provision of any Service) without Your prior approval. However, We will remain liable for the acts or omissions of any sub-contractor or delegate in the performance of any of Our duties, obligations and powers as if they were Our acts or omissions.
25.7 Except as expressly provided in these Terms, there are no third-party beneficiaries to these Terms or the Services provided to You.
25.8 These Terms govern any upgrades provided by Us that replace and/or supplement the App, unless such upgrade is accompanied by separate terms, in which case those terms will govern the upgrade.
26. COUNTRY-SPECIFIC TERMS
26.1 For Users in Australia: Your Consumer Rights and Our Liability
(a) Nothing in these Terms is intended to exclude, restrict or modify rights which You may have under any law (including the Australian Consumer Law) which may not be excluded, restricted or modified by agreement (“Consumer Rights”). Your Consumer Rights include, but are not limited to, the right for the Services to be fit for their specified purpose, to be provided with due care and skill and for the Services to be delivered within a reasonable time when there is no agreed end date. You can find out more about Your Consumer Rights from consumer organizations and bodies such as the Australian Competition and Consumer Commission and State/Territory fair trading authorities.
(b) These Terms, and in particular the limitations of liability set out in these Terms, are therefore subject to, and will not apply to the extent that they limit or exclude, such protections and Consumer Guarantees applicable to consumers under the Australian Consumer Law.
(c) Where You suffer any loss in connection with the use of Our Products, the App or the Services, You must take all reasonable steps to minimize Your loss, including notifying Us without delay if there are steps that We can take to help minimize Your loss.
(i) Subject to Your Consumer Rights, We limit Our liability for any loss or damage arising in connection with the Secure+ Plans, the App, the Services or these Terms to:
(A) supplying the Services again;
(B) refunding the cost of the Services; or
(C) paying the cost of having the Services supplied again.
(d) Subject to Your Consumer Rights, We are not liable:
(i) for any loss that was not reasonably foreseeable to You and Us or any loss of Your Content or Data; and
(ii) to the extent that Your loss was contributed to by You or any other matter outside Our reasonable control.
26.2 If You are in the United States: Our Limited Liability
(a) LIMITATION OF LIABILITY. You understand that: (i) We are not an insurer of Your Property or the personal safety of persons on Your Property; (ii) You should obtain insurance on Your Property and its contents; (iii) the amount that You pay to Us is based only on the value of the Services that We provide and not on the value of Your Property or its contents; (iv) alarm systems and Our Services may not always operate properly for various reasons, including, without limitation, loss of power, cyber security or data breaches; (v) it is difficult to determine in advance the value of the Your Property that might be lost, stolen or destroyed if the Services, the App or any equipment fail to operate properly; (vi) it is difficult to determine in advance how fast the police or fire department or others would respond to an Alert; and (vii) it is difficult to determine in advance what portion, if any, of any property loss, personal injury or death would be proximately caused by Our failure to perform, Our negligence, or failure of Our contractors. Therefore, You agree that, even if a court decides that Our breach of these Terms or other obligations, or Our or Our contractors’ negligence (including sole negligence and gross negligence), or a failure of the App or any equipment, website, installation, monitoring, repair service, or other services caused, contributed to or allowed any harm or damage (whether property damage, personal injury or death) to You or anyone in or about Your Property, THE MAXIMUM AGGREGATE LIABILITY OF SWANN AND ITS PROVIDERS AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS WILL BE LIMITED TO THE LESSER OF $1,000.00 OR TWELVE (12) TIMES THE MONTHLY SERVICES FEE THAT YOU PAY TO US, AND THAT THIS WILL BE YOUR ONLY REMEDY REGARDLESS OF WHAT LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, OR PRODUCT LIABILITY) IS USED TO DETERMINE THAT WE WERE LIABLE FOR THE INJURY OR LOSS. UNDER NO CIRCUMSTANCES WILL SWANN OR ITS VENDORS, LICENSORS OR PROVIDERS OR ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF DATA, LOSS OF GOODWILL, OR LOSS OF ANTICIPATED SAVINGS.
26.3 If You are in the United Kingdom: Our Limited Liability
To the maximum extent permitted by law:
(a) We will not be liable to You for any indirect, incidental or consequential loss or damage or for loss of data, loss of goodwill, loss of profits or revenues or loss of anticipated savings;
(b) The liability of Swann and its providers and its and their officers, directors, employees and agents to You for any loss or damage, including, but not limited to, any and all claims, losses, liabilities, damages, actions, demands or expenses (including, but not limited to, all reasonable attorneys’ fees or costs of suit which We may incur as a result of or in connection with these Terms or in connection with the provision of Services), whether arising from negligence, breach of contract, or otherwise, will in no event exceed a total of the Fees paid by You to Us during the period of one year preceding the occurrence giving rise to the claim or, in case the damage that occurs during the first year of the Services, the amount of the projected Fees for the first year of the Services; and
(c) You will indemnify and hold Us, Our providers and its and their officers, directors, employees and agents harmless from and against any loss or damage (as described in Clause 26.3(b)) that any of them may incur or which may be launched against any of them by any third party as a result of or in connection with the performance of the Services unless such loss or damage arises from any negligent act or omission on the part of Us or Our providers or its or their officers, directors, employees or agents.
(d) The limitations of liability set forth in this Clause 26 do not apply to any liability for fraud, willful default or for death or personal injury arising from Our negligence or that of Our employees, agents or subcontractors.
27. CLOUD RECORDING
To the extent that Your Product has a capacity for longer cloud recording under a Secure+ Plan, You agree to abide to "fair use" terms including:
27.1 Wireless and Powered Wi-Fi Cameras using a Secure+ Plan have access to 60 days of cloud recording according to "fair use" terms.
27.2 "Fair use" is defined as the uploading of fewer than 200 clips of 10-60 seconds duration per Device per day.
27.3 Exceeding the fair use quantity for the upload of clips may mean that You will experience delays in uploading or downloading clips. Furthermore, where Swann deems this use to be excessive, it may, at its option and in its sole discretion, reduce the device sensitivity so that each device is recording fewer false events.
28. PROFESSIONAL MONITORING
In certain jurisdictions, Swann offers two additional tiers of Secure+ membership: “Pro” (Unlimited plan plus professional central monitoring of Alerts) and “Pro Video” (Unlimited plan plus professional central monitoring of Alerts with video verification). (Each of these services is referred to as a “Professional Monitoring Service”)
28.1. Professional Monitoring Services
If You sign up for one of Our Professional Monitoring Services, that Service will be provided in accordance with these Terms and will consist solely of personnel at Our monitoring facilities telephoning emergency authorities, such as the police ("Emergency Authorities") or telephoning or sending SMS/text notifications and Alerts to other persons identified by You ("Your Assigned Contacts" and in accordance with Clause 28.8 below) upon the receipt of signals from Your Devices reporting events on specific conditions ("Monitored Events") at Your Property. We will provide Professional Monitoring Services only for Monitored Events. Our obligation to provide Professional Monitoring Services will be satisfied by personnel at Our monitoring facilities contacting (or attempting to contact) the Emergency Authorities and/or Your Assigned Contacts, or by leaving a voicemail or similar type message with the Emergency Authorities and/or Your Assigned Contacts. Professional Monitoring Services are intended to reduce the risk of a burglary, robbery or other events occurring at Your Property but are not a guarantee that such events will not occur or that there will be no personal injury, property loss or death as a result. Professional Monitoring Services are available only within the U.S. (all 50 states, but not U.S. territories). Swann does not own its own monitoring facilities. Fire, smoke and carbon monoxide monitoring is not included in Our Professional Monitoring Services.
28.2 Emergency Authorities
If You sign up and pay for a Professional Monitoring Service, We will share information with relevant public safety authorities, such as the police (collectively, “Emergency Authorities”). You understand and agree that, once the content of Your Account is made available to Emergency Authorities, it may be transmitted or otherwise made accessible through unsecured communications as part of the information disseminated to or by Emergency Authorities responding 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 law or regulations. You understand and agree and hereby authorize Us to release and disclose Your Account information, including any User Content, to Emergency Authorities in connection with the Professional Monitoring Service. You should only provide Us with information that You want Emergency Authorities to have access to.
28.3 Location Information
The Professional Monitoring Service includes location information features that collect and share location information about You, Your Property and Your Devices. These features may not work for various reasons, such as if Your Device and corresponding settings to allow the collection and sharing of location information are not enabled, or if Your Device is not connected to a wi-fi network. If You use features designed to collect and share location information, the Professional Monitoring Service will periodically access and collect information about Your Device and location (such information will be deemed Our Materials under these Terms). By using the features designed to collect and share information, You represent and warrant that You have consented to use the Professional Monitoring Service and to allow it to access and collect this information.
28.4 Monitored Events
A Monitored Event is a reported event based on specific conditions per Device that You establish. This includes, but is not limited to, events triggered by detection of heat, motion and/or person(s) on Your Device(s). The burden is on You to determine what types of activity will trigger an Event per Device, the sensitivity level of that detection, and to ensure that the Devices You wish to be monitored are in an “armed” or ready state in Night or Away mode within the App.
Upon the receipt of signals from Your Devices reporting Monitored Events at Your Property, We will provide Professional Monitoring Services, which may result in Emergency Authorities being alerted and dispatched. If a Monitored Event is detected at Your Property by Our monitoring facilities, there are a number of levels of alarm triggered escalation that may follow, and these may vary depending on the type of Professional Monitoring Service plan you have subscribed to:
- We will attempt to contact You and your Assigned Contacts.
- If We are unable to reach You or your Assigned Contacts, or if You confirm that the Monitored Event is threatening, then We will contact the Emergency Authorities,
(b) Pro Video
- We will validate the video for apparent threats to people and/or Your Property.
- If a perceived threat is present, We will contact You and your Assigned Contacts.
- If We are unable to reach You or your Assigned Contacts, or if You confirm that the Monitored Event is threatening, then We will contact the Emergency Authorities.
28.5 False Alarms & Fair Use
Your use of the Professional Monitoring Service is subject to fair use considerations, including the prevention of an excessive number of false alarms.
28.5.1 False Alarms
Swann encourages the appropriate use of its Services and Devices. False alarms, or the triggering and escalation of a Monitored Event where there is no apparent risk or cause for concern, are to be avoided, and the onus to prevent such false alarms is on You.
(a) Swann will endeavor to "forgive" false alarms in the first instance.
(b) In circumstances where false alarms are deemed problematic or excessive (as explained in Clause 28.5.2 (Fair Use)), You acknowledge that You will be solely liable for excessive false alarms. You will be required to pay (or reimburse Swann) for any fines, fees, costs, expenses and penalties relating to Your Devices or the Professional Monitoring Service that may be assessed against You, Swann or Our monitoring facilities by any person or entity, including any court, governmental agency, Emergency Authority or any person or entity acting on behalf of a court, governmental agency or Emergency Authority. If (i) You default under these Terms, (ii) these Terms or the Professional Monitoring Service is terminated by either You or Us for any reason, (iii) Your Devices excessively signal Our monitoring facilities without apparent reason, or (iv) in the opinion of Our monitoring facility personnel, Your Devices otherwise become a “problem”, then We reserve the right, in Our sole discretion, to suspend Your Professional Monitoring Service and disconnect Your Devices from Our monitoring facilities. The exercise of any of these rights will not be deemed a waiver of Our right to recover damages from You.
28.5.2 Fair Use
As used in these Terms, "fair use" is defined as a reasonable number of Monitored Events per Device per month, and is quantified as fewer than 2 per Device per month. If Your Devices exceed the permitted number of Monitored Events in any given month, that may result in any or all of the following:
- We may change the settings of Your Devices and/or reduce the sensitivity settings for Alerts in an effort to generate fewer false alarms; and/or
- We may deem Your account to be a “problem”, in which event We may suspend the Professional Monitoring Service and disconnect Your Devices from Our monitoring facilities.
28.6 Pro Video Verification
If You sign up for Our "Pro Video" verification service plan, that Service will consist solely of the following: (i) verification of Monitored Events by personnel at Our monitoring facilities in connection with the Professional Monitoring Services provided under Clause 28.1 using audio and video received from Your Devices, (ii) access to video and audio from Your Devices, and (iii) storage and retrieval of recorded video and audio stored on Our servers, in accordance with the terms of the plan that You select. Pro Video verification services are intended to assist You and personnel at Our monitoring facilities in verifying a Monitored Event at Your Property. Pro Video verification services are not designed or intended to reduce or eliminate any risk of loss, nor intended to prevent unauthorized intrusion onto Your Property or any other emergency condition, including fire, smoke, carbon monoxide, medical emergencies or water damage. Pro Video verification services are provided and will be used solely for the verification of Monitored Events at Your Property and for no other purpose. Our monitoring facilities will not have access to recorded video unless (1) You have granted Our monitoring facilities such access through the App, and (2) such video and audio is received at Our monitoring facilities in connection with Professional Monitoring Services that You have signed up for and paid for.
29.1 Personal Safety Monitoring
Swann offers personal safety monitoring through its ActiveResponse plan. ActiveResponse provides subscribers with a personal alarm that uses a ring-pull siren to scare away local threats. Subscribers can also link the ActiveResponse device to their phone or other mobile device via Bluetooth and can press a button on the App to alert others via SMS message that they may be in trouble. The message includes Your exact GPS location coordinates. ActiveResponse is not necessarily available in all jurisdictions.
29.2 The ActiveResponse Plan
If You subscribe to the ActiveResponse plan, You can (for an unlimited number of devices): (a) designate up to five (5) emergency contacts who You can alert via SMS message with Your exact GPS location if You believe that You are in trouble; and (b) trigger an alert to Swann’s professional monitoring center that will escalate to alert Emergency Authorities if You do not respond that You are safe after triggering the alarm.
29.3 Emergency Authorities
If You sign up and pay for ActiveResponse, We will share information with relevant Emergency Authorities if and when You trigger the alarm. You understand and agree that, once the content of Your Account is made available to Emergency Authorities, it may be transmitted or otherwise made accessible through unsecured communications as part of the information disseminated to or by Emergency Authorities responding 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 law or regulations. You understand and agree and hereby authorize Us to release and disclose Your Account information, including any User Content, to Emergency Authorities in connection with the ActiveResponse service. You should only provide Us with information that You want Emergency Authorities to have access to.
29.4 Location Information
ActiveResponse includes location information features that collects and shares location information about You and Your Devices. These features may not work for various reasons, such as if Your Device and corresponding settings to allow the collection and sharing of location information are not enabled, or if Your Device is not connected to a wi-fi network. If You use features designed to collect and share location information, ActiveResponse will periodically access and collect information about Your Device and location (such information will be deemed Our Materials under these Terms). By using the features designed to collect and share information, You represent and warrant that You have consented to use ActiveResponse and to allow it to access and collect this information.
29.5 False Alarms & Fair Use
Your use of ActiveResponse is subject to fair use considerations, including the prevention of an excessive number of false alarms.
29.5.1 False Alarms
Swann encourages the appropriate use of its Services and Devices. Triggering false alarms where there is no apparent risk or cause for concern, are to be avoided, and the onus to prevent such false alarms is on You.
(a) Swann will endeavor to "forgive" false alarms in the first instance.
(b) In circumstances where false alarms are deemed problematic or excessive (as explained in Clause 29.5.2 (Fair Use)), You acknowledge that You will be solely liable for excessive false alarms. You will be required to pay (or reimburse Swann) for any fines, fees, costs, expenses and penalties relating to Your Devices or ActiveResponse that may be assessed against You, Swann or Our monitoring facilities by any person or entity, including any court, governmental agency, Emergency Authority or any person or entity acting on behalf of a court, governmental agency or Emergency Authority. If (i) You default under these Terms, (ii) these Terms or ActiveResponse is terminated by either You or Us for any reason, (iii) Your Devices excessively signal Our monitoring facilities without apparent reason, or (iv) in the opinion of Our monitoring facility personnel, Your Devices otherwise become a “problem”, then We reserve the right, in Our sole discretion, to suspend Your access to ActiveResponse and disconnect Your Devices from Our monitoring facilities. The exercise of any of these rights will not be deemed a waiver of Our right to recover damages from You.
29.5.2 Fair Use
As used in these Terms, "fair use" is defined as a reasonable number of alarms per Device per month, and is quantified as fewer than 2 alarms per Device per month. If Your Devices exceed the permitted number of alarms in any given month, that may result in any or all of the following:
- We may deem Your account to be a “problem”, in which event We may suspend Your access to ActiveResponse and disconnect Your Devices from Our monitoring facilities.
30. NOTIFICATIONS, ALERTS AND CONTACTS
30.1 Notifications & Alerts
This Clause applies to all messages, Alerts, and notifications sent via SMS/text message or via the App (collectively, “Notifications”) in connection with any Swann programs, products, and Services. To the extent included in the Services You purchase from Swann, You and Your Assigned Contacts may also be able to send Notifications to confirm that Emergency Authorities have been dispatched to Your Property or location or to cancel the dispatch of Emergency Authorities via SMS/text message.
Swann does not charge any fees for You to send or receive Notifications, other than any fee that You may owe if You are a subscriber for Our Professional Monitoring Services or ActiveResponse. Your wireless service provider may charge a fee for Swann sending and/or You receiving Notifications and/or for air-time or data usage associated therewith.
By accepting these Terms, You indicate and acknowledge Your consent for Swann to sending Notifications to You and Your Assigned Contacts in connection with Our Professional Monitoring Services or ActiveResponse via SMS/text message or via the App (collectively, “Messaging Services”).
Neither Swann nor its providers nor its or their officers, directors, employees or agents will be liable for any delays in the receipt of any such Notifications or any failure of any such Notifications to be sent. Notifications may not be sent from You or delivered to You if Your phone or other device is not in range of a transmission site, or if sufficient network capacity is not available at a particular time. Even within a coverage area, factors beyond the control of Swann or Your wireless carrier may interfere with message delivery, including Your equipment, terrain, proximity to buildings, foliage, and weather. You acknowledge that urgent Notifications may not be timely sent or received at all, and that neither Swann nor Your wireless carrier guarantee that such Notifications will be delivered or sent.
30.2 Your Assigned Contacts
30.2.1 Nominating Your Assigned Contacts
If You use Our Professional Monitoring Services or ActiveResponse, You will be required to nominate at least one (1) but not more than five (5) Assigned Contacts. Those Assigned Contacts may receive Notifications, and You agree and warrant that You have informed each such Assigned Contact about the nature of the Notifications and obtained their consent for Swann to send Notifications to each such Assigned Contact.
Our Professional Monitoring Services and ActiveResponse each require that We communicate with Your Assigned Contacts in certain situations. Our communications may take different forms, including a live operator telephone call, a pre-recorded telephone message using an auto-dialer, an SMS or other form of text message, or some other form of electronic communication. We will communicate with Your Assigned Contact at the phone number that You provide Us. You will (i) inform each of Your Assigned Contacts that We will communicate with them at those numbers; and (ii) obtain permission from Your Assigned Contacts for Us to communicate with them at these phone numbers. You will indemnify, defend and hold Us harmless (without any condition that We first pay) for any loss or damage (as described in Clause 26.2(b) of these Terms), including Our reasonable attorneys’ fees, arising out of or in connection with, due to or caused in whole or in part by, any claims asserted against Us in connection with or as a result of Our communications with any of Your Assigned Contacts, including any claim under any state or federal consumer protection or similar law, including, without limitation, the Telephone Consumer Protection Act, as amended.
30.2.2 Your PIN (Personal Identification Number(s))
You and Your Assigned Contacts will need to be assigned a Personal Identification Number or “PIN”. You will be able to set the PIN for yourself and for Your Assigned Contacts. It is your responsibility to save the PIN and communicate it to each of your Assigned Contacts. Keep the PIN safe and private from outsiders. To disable your alarm, You or Your Assigned Contacts may need to provide the operator at the monitoring facility with the correct PIN. Failure to communicate the PIN accurately or correctly can result in dispatch of the Emergency Authorities to Your Property. We will not be held responsible if You or Your Assigned Contacts fail to provide the correct PIN.
30.3 Alarm Verification
Upon receipt of a Monitored Event and before calling any Emergency Authorities or Your Assigned Contacts, Our monitoring facility personnel may, in their sole discretion, take any one or more of the following steps in an attempt to verify the need to report the Monitored Event to the Emergency Authorities or Your Assigned Contacts (collectively, the "Alarm Verification Steps"): (i) telephone, text or attempt to telephone or text Your Property, (ii) if We have access to recorded video of Your Devices, receive, retrieve and review that video, (iii) intercept or retrieve and listen to oral communications or other audio from Your Devices, or (iv) undertake such other reasonable steps as may be appropriate under the circumstances to verify the need to report the Monitored Event. After taking one or more of the Alarm Verification Steps, Our monitoring facility personnel may, in their sole discretion, decide to report (or not report) a Monitored Event to the Emergency Authorities or Your Assigned Contacts. If Our monitoring facility personnel are unable to verify the need to report a Monitored Event to the Emergency Authorities or Your Assigned Contacts, then Our monitoring facility personnel will not have any obligation to report that Monitored Event. We do not engage in or perform constant or steady monitoring of any audio or video from Your Devices. This Section will not apply to alarms received through ActiveResponse.
30.4 Alarm Cancellation
Upon receipt of any current cancellation PIN code for Your Devices or oral instructions (confirmed by PIN) to disregard the receipt of a Monitored Event or an ActiveResponse alarm, personnel at Our monitoring facilities may, in their sole discretion, determine not to report a Monitored Event or ActiveResponse alarm to the Emergency Authorities or to Your Assigned Contacts.
30.5 Not a Replacement for ‘911’ (or Emergency Service Calls)
Even if the Services show connectivity, neither We nor our vendors or licensors have any control over and do not guarantee that any alerts, messages, notifications, texts, or any other communication sent via the Services, including Our Professional Monitoring Services and ActiveResponse, will be: (a) accurate, timely, or successfully sent, delivered, or received; or (b) delivered to or responded to by any recipient or Emergency Authorities. Neither We nor Our vendors or licensors warrant or represent, expressly or implicitly, that the App, the Products or the Services or their use will result in prevention of crime; apprehension or conviction of any perpetrator of any crime; detection or neutralization of any criminal, combatant or threat; proper, timely, or adequate medical treatment or medical diagnoses; prevention of any loss, death, injury to any person(s) or damage to property due to any particular event or emergency (“Event or Emergency”). Event or Emergency includes, but is not limited to, the following: the discharge of a firearm or other weapon; a crash, fall, collision, or impact; or a health or medical alert. Neither We nor Our vendors or licensors can guarantee, and do not guarantee, that any emergency personnel will respond in a timely manner or at all, which may be due to local laws, policies, or regulations, or that the most appropriate personnel will respond. Neither We nor Our vendors or licensors will be liable for the conduct, actions, or omissions or for the loss, damage, or injury to any person, property, or life caused or partially caused by an interruption, failure, or defect in communications with any independent contractors, central monitoring station agents or employees, 911 (or Emergency Service Call) dispatch center employees, or agents, first responders, law enforcement, medical personnel, governmental entities, emergency personnel, or anyone else.
31. OUR SUPPLIERS
Last Updated: 19 October 2023