These LogicMark Terms and Conditions (this “Agreement”) constitute a binding legal agreement between you as the user (“you”) and LogicMark, Inc.(“LogicMark”) that governs your access to and use of LogicMark’s personal emergency response systems, services and devices (“LogicMark Devices”), LogicMark’s websites, including https://www.logicmark.com/, LogicMark’s mobile applications (“LogicMark Apps”), third party services bundled with our services (such as, without limitation, third party monitoring services “Partner Services”) and LogicMark’s other products and services (collectively “LogicMark Properties”). 

BY USING OR ACCESSING THE LOGICMARK PROPERTIES, INCLUDING BY DOWNLOADING, INSTALLING OR USING THE LOGICMARK APPS, AND/OR ANY PARTNER SERVICES, YOU: (I) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (II) REPRESENT THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER OR THE AGE OF MAJORITY IN YOUR JURISDICTION AND HAVE THE LEGAL CAPACITY TO ENTER INTO A BINDING AGREEMENT; AND (III) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF YOU ARE NOT EIGHTEEN (18) YEARS OF AGE OR OLDER OR THE AGE OF MAJORITY IN YOUR JURISDICTION OR DO NOT HAVE THE LEGAL CAPACITY TO ENTER INTO A BINDING AGREEMENT, OR YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT ENTITLED TO ACCESS AND USE THE LOGICMARK PROPERTIES AND YOU MUST DISCONTINUE YOUR ACCESS AND USE. 

This Agreement REQUIRES all disputes between you and LogicMark to be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION) TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS AGREEMENT. Please review the Section below titled “Binding Arbitration and Class Action Waiver” for details regarding your agreement to arbitrate any disputes with LogicMark. 

You agree to all terms and pricing on the ordering page where you ordered the products and services, whether online, via an app, or otherwise (the “Ordering Document”, “Order Form”, “Order” or other similar nomenclature), subject to the additional and more detailed terms herein. Unless otherwise expressly stated in your Order, all hardware and equipment is leased and must be well maintained by you and returned, and all services are delivered on a subscription basis, subject to automatic renewal.  

1.              Grant of Limited License.  Subject to your ongoing compliance with this Agreement, LogicMark hereby grants to you during the term of this Agreement a limited, non-exclusive, non-transferable, revocable license to access and use the LogicMark Properties solely for your personal, non-transferrable, non-commercial purposes. LogicMark reserves all rights not expressly granted in this Agreement. 

2.              Restrictions.  Your use of the LogicMark Properties and all features and functionalities therein shall be in accordance with all applicable laws, rules, regulations and restrictions. You shall comply with this Agreement and shall not: (i) copy, distribute, modify, adapt, translate, reverse engineer, decompile, or create derivative works based on any part of the LogicMark Properties; (ii) use or encourage the use of the LogicMark Properties for any unlawful purpose, or in violation of any local, state, national or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy; (iii) delete the copyright or other proprietary rights notices from the LogicMark Properties; (iv) remove, modify, disable, block, impair, or obscure any advertising in connection with the LogicMark Properties; (v) abuse or burden LogicMark’s systems or take any steps which could limit, interrupt or destroy the functionality of the LogicMark Properties or any related software or hardware; (vi) misrepresent your identity; (vii) attempt to harvest or otherwise collect information about other users; (viii) insert any code or product or manipulate the LogicMark Properties in any way, including through malicious code such as viruses, worms, Trojan horses, spyware or other potentially harmful programs or other material or information; (ix) post, upload, publish, submit or transmit any content that infringes, misappropriates, violates or encourages conduct that would violate any applicable law or regulation or that is, in whole or in part, false, misleading, deceptive, fraudulent, harassing, threatening, defamatory, obscene, offensive, discriminatory, exploitative or otherwise harmful, or that promotes or relates to the use or sale of unlawful or regulated products or gambling; (x) access, use, benchmark or study any LogicMark Properties to create or improve any competing product(s) or service(s); or (xi) sublicense or otherwise authorize any third party to access or use the LogicMark Properties. 

3.              Termination.  This Agreement is effective until terminated. Customer may terminate at any time after the first 90 days of service, but may be subject to standard restocking fees and shall not be entitled to any refunds, whether for setup or activation or initiation fees, handling fees, shipping fees, hardware costs, fees for monitoring or other services provided prior to the termination date, or for any prepaid amounts or otherwise.  LogicMark reserves the right to modify, terminate and suspend the operation of the LogicMark Properties, as well as the provision of any or all products, services or content via the LogicMark Properties, without notice or liability, at any time and for any or no reason in its sole and absolute discretion. The rights granted to you herein shall, at LogicMark’s option, terminate immediately upon any violation of law or this Agreement, or upon expiration or termination of your subscription, as applicable, to access and use the LogicMark Properties, without prejudice to any other rights or remedies of LogicMark. LogicMark reserves the right to terminate your access to and use of the LogicMark Properties at any time for any reason without notice or liability to you or any third party. The terms of this Agreement which by their nature survive termination shall so survive termination, including, without limitation, the disclaimer of warranties, limitation of liability, binding arbitration and class action waiver. Upon termination, you must uninstall the LogicMark Apps and destroy all copies of LogicMark software, information or materials in your possession or under your control. 

4.              Data.  You acknowledge and agree that LogicMark shall, without limitation, have the right to collect, extract, compile, analyze, use and commercialize certain technical data, usage data and related information, including, without limitation, information about your use of the LogicMark Properties and your device, system, application software and peripherals, for purposes of facilitating the provision of software updates, support and other products and services related to the LogicMark Properties. LogicMark and its affiliates shall have the right to use this information, in a form that does not personally identify you, to measure the use and performance of the LogicMark Properties and to improve its or their products or to provide services or technologies to you. More information about LogicMark’s data collection and use is available in LogicMark’s Privacy Policy. 

5.              Account Registration; Security.  In order to access certain features of LogicMark Properties, you will have to create an account. You agree that the information you provide to LogicMark upon registration and, at all other times, shall be true, accurate, current, and complete. You acknowledge, consent and agree that LogicMark may access, preserve and disclose your account information if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to your requests for customer service; (iv) protect the rights, property or personal safety of LogicMark, each of its users, and the public; or (v) otherwise in accordance with the Privacy Policy. When you register for the LogicMark Properties, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your device, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you shall immediately notify LogicMark. You may be liable for losses incurred by LogicMark or others due to any unauthorized use of your account. 

6.              Updates and Support.  LogicMark may from time to time in its sole discretion develop and provide updates to the LogicMark Properties, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that LogicMark has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your device settings, when your device is connected to the internet: (i) the LogicMark Apps and Services may automatically download and install any available Updates; or (ii) you may be prompted to download and install an Update. You acknowledge that failing to promptly download and install Updates may result in failure of the LogicMark Properties to properly operate. You further agree that all Updates shall be deemed part of the LogicMark Properties and subject to the terms and conditions of this Agreement. LogicMark may from time to time in its sole discretion provide support services for the LogicMark Properties. In no event shall LogicMark, or Apple or Google, be obligated to furnish any such support services. 

7.              Intellectual Property.  Except as expressly set forth herein, all intellectual property rights in and to the LogicMark Properties and all text, graphics, images, video, audio, software, interfaces, photographs, works of authorship of any kind, user content or Feedback (as defined below), trademarks, service marks, logos and information or other materials that are posted, generated, provided or otherwise made available through the LogicMark Properties, and the selection and arrangement thereof, any enhancements to or derivative works thereto, and the features and functionality of the LogicMark Properties are the exclusive property of LogicMark or its licensors and are protected by U.S. and international laws. You shall take no actions to claim or assert ownership of or seek to register intellectual property rights in or to any of such materials or content. If you submit a comment, suggestion or any other material (excluding any illegal content) to LogicMark related to the LogicMark Properties (“Feedback”), you hereby assign all ownership in and to such Feedback to LogicMark and waive any moral rights you have or may have in the Feedback, and acknowledge that LogicMark shall be entitled to use and implement any such Feedback in any manner without restriction, and without any obligation of confidentiality, attribution or compensation to you, or, to the extent the foregoing is deemed ineffective, you hereby grant LogicMark a license to use such Feedback without any restrictions. LOGICMARK™ is a proprietary service mark of LogicMark, and other marks displayed through the LogicMark Properties may be owned by LogicMark or third parties. LogicMark’s use of third-party marks is not intended and shall not be deemed to constitute an endorsement or recommendation of any third-party product or service. 

8.              Third-Party Services, Material and Applications.  Use of the LogicMark Properties does not include the provision of a mobile device or other necessary equipment to access it. To use the LogicMark Properties, you will require, at your sole cost and expense, internet connectivity and appropriate telecommunications links. LogicMark does not have any responsibility or liability for the connectivity or functionality of any telephone, internet, device or other product or service necessary to use or access the LogicMark Properties or any costs you may incur or be charged by third parties. LogicMark may provide through the LogicMark Properties materials, information or links to websites that are owned and operated by third parties. In addition, certain third-party applications, including, without limitation, websites, widgets, software or software utilities, may interact with the LogicMark Properties. You acknowledge and agree that LogicMark is not responsible for the availability of, or the materials or information located on or through, any third-party website or application. Any use of or access to any third-party websites or applications linked to or made available through the LogicMark Properties is at your sole risk. You acknowledge and agree that you should contact the website administrator or webmaster for any such third-party websites or applications if you have any concerns regarding such links or the materials or information located on such websites or within such application. Any use of third-party websites and applications may be subject to third-party terms of use, privacy policies and license terms, which you are encouraged to review. 

9.              Disclaimer of Warranties.  CONSUMER PROTECTION LAWS IN SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATIONS OR EXCLUSIONS OF LEGAL WARRANTIES. IF THESE LAWS APPLY TO YOU, THE FOLLOWING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. EXCEPT FOR LOGICMARK’S STANDARD LIMITED WARRANTY FOR MATERIALS AND WORKMANSHIP, WHICH MAY BE AVAILABLE IN CONNECTION WITH CERTAIN LOGICMARK DEVICES, LOGICMARK MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE LOGICMARK PROPERTIES OR ANY OTHER CONTENT, INFORMATION OR MATERIALS PROVIDED BY LOGICMARK, ALL OF WHICH IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LOGICMARK EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. 

SPECIFICALLY, BUT WITHOUT LIMITATION, LOGICMARK DOES NOT REPRESENT OR WARRANT THAT: (I) THE LOGICMARK PROPERTIES OR THE CONTENT, INFORMATION OR RESULTS ON OR PROVIDED THROUGH THE LOGICMARK PROPERTIES ARE CORRECT, ACCURATE, RELIABLE, UP-TO-DATE OR SUITABLE FOR ANY WELLNESS, HEALTHCARE OR MEDICAL PURPOSE; (II) ACCESS TO AND USE OF THE LOGICMARK PROPERTIES SHALL BE UNINTERRUPTED OR ERROR-FREE; (III) THE LOGICMARK PROPERTIES OR, IN THE CASE OF THE LOGICMARK APPS AND LOGICMARK’S ONLINE AND ELECTRONIC OFFERINGS, THE SERVERS THAT MAKES THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR DEFECTS OR THAT DEFECTS SHALL BE CORRECTED; OR (IV) THE LOGICMARK PROPERTIES WILL MEET YOUR NEEDS OR ACHIEVE ANY INTENDED RESULTS. WE ARE NOT RESPONSIBLE FOR FACTORS OUTSIDE OUR COMPLETE AND DIRECT CONTROL, INCLUDING WITHOUT LIMITAITON, CONNECTIVITY UNDER THE CONTROL OF THIRD PARTIES, NEWORK ISSUES, YOUR LOCAL WI-FI ISSUES,  USER ERROR, LOCATION NOT HAVING SERVICE, 911 NOT RESPONDING, NATURAL DISASTERS, INACCURATE LOCATION DATA OR EMERGENCY SERVICES SENT TO WRONG LOCATION, EQUIPMENT NOT CHARGED (DEAD BATTERIES), TECHNOLOGY OUTSIDE OUR DIRECT CONTROL, ETC. DUE TO THE POSSIBILITY OF HUMAN AND MECHANICAL ERROR, WE ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS.  

SOME SERVICES ARE ONLY AVAILABLE IN THE UNITED STATES. MONITORING SERVICES ARE NOT A SUBSTITUTE FOR 911, AND IF OUR PARTNER SERVICES CALL 911 OR EMERGENCY SERVICES ON YOUR BEHALF, THERE COULD BE A DELAY IN REACHING 911 OR EMERGENCY SERVICES. THE SERVICE WILL NOT WORK IF YOUR ACCOUNT IS NOT CURRENT ON PAYMENT, IF YOUR DEVICE IS NOT CHARGED, TURNED ON, AND HAS NETWORK ACCESS, AND MONITORING SERVICES ENABLED. MONITORING MAY NOT BE AVAILABLE IN REMOTE OR ENCLOSED AREAS. IF YOU OPT IN TO ENABLE LOCATION TRACKING, WE WILL USE COMMERCIALLY REASONABLE EFFORTS TO TRACK YOUR APPROXIMATE LOCATION WHENEVER YOUR DEVICE IS PAIRED AND CONNECTED BY BLUETOOTH TO YOUR NEARBY COMPATIBLE, POWERED-ON SMARTPHONE. YOU AGREE THAT WE CAN PROVIDE THIS INFORMATION TO THIRD-PARTY SERVICE PROVIDERS AND AUTHORIZED US TO ACCESS YOUR CONTACTS IN CASE OF AN EMERGENCY OR SERVICE INCIDENT. HOWEVER, WE CANNOT GUARANTEE THAT WE CAN TRACK YOUR EXACT LOCATION, AND, IN SOME CASES, WE MAY ONLY BE ABLE TO PROVIDE THE INFORMATION PROVIDED IN YOUR PERSONAL EMERGENCY PROFILE. 

FALL DETECTION WORKS ONLY WHEN WEARING YOUR DEVICE. YOU WILL HAVE AN OPPORTUNITY TO CANCEL THE CALL IF YOU DO NOT NEED ASSISTANCE. WE CANNOT GUARANTEE THAT THE SERVICE WILL ALWAYS ACCURATELY DETERMINE A FALL. YOU SHOULD ALWAYS PUSH THEIR BUTTON WHEN YOU NEED HELP. 

YOU UNDERSTAND AND AGREE THAT LOGICMARK IS NOT A MEDICAL CARE OR EMERGENCY SERVICES PROVIDER. THE LOGICMARK PROPERTIES ARE INFORMATION AND COMMUNICATIONS TOOLS ONLY AND ARE NOT SUBSTITUTES FOR THE PROFESSIONAL JUDGMENT OF HEALTHCARE OR EMERGENCY SERVICES PROVIDERS IN DIAGNOSING AND TREATING PATIENTS. 

THERE ARE IMPORTANT DIFFERENCES BETWEEN THE LOGICMARK PROPERTIES AND YOUR MOBILE PHONE AND A FIXED-LINE TELEPHONE AND SMS SERVICES. CERTAIN OF THE LOGICMARK PROPERTIES MAY NOT PROVIDE ACCESS TO EMERGENCY SERVICES OR EMERGENCY SERVICES PROVIDERS, INCLUDING THE POLICE, FIRE DEPARTMENTS, OR HOSPITALS, OR OTHERWISE CONNECT TO PUBLIC SAFETY ANSWERING POINTS. YOU SHOULD ENSURE YOU CAN CONTACT YOUR RELEVANT EMERGENCY SERVICES PROVIDERS THROUGH A MOBILE PHONE, A FIXED-LINE TELEPHONE, OR OTHER SERVICE. 

LOGICMARK MAY OFFER WIRELESS EMERGENCY ALERTS WITHIN PORTIONS OF ITS SERVICE AREA ON WIRELESS EMERGENCY ALERT CAPABLE DEVICES WHEN AVAILABLE. THERE MAY BE AN ADDITIONAL CHARGE FOR THESE WIRELESS EMERGENCY ALERTS. WIRELESS EMERGENCY ALERTS MAY NOT BE AVAILABLE ON ALL DEVICES OR IN THE ENTIRE SERVICE AREA, OR IF A SUBSCRIBER IS OUTSIDE OF LOGICMARK’S SERVICE AREA. FOR DETAILS ON WHEN THE AVAILABILITY OF THIS SERVICE AND WHEN WIRELESS EMERGENCY ALERT CAPABLE DEVICES WILL BE AVAILABLE, PLEASE GO TO WWW.LOGICMARK.COM. NOTICE REQUIRED BY FCC RULE 47 CFR 10.240 (COMMERCIAL MOBILE ALERT SERVICE). 

YOU HEREBY RELEASE LOGICMARK AND ITS PREDECESSORS (INCLUDING, WITHOUT LIMITATION, NXT-ID INC.), SUCCESSORS, PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, INVESTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, ATTORNEYS AND THEIR RESPECTIVE HEIRS, SUCCESSORS AND ASSIGNS (THE “LOGICMARK PARTIES”) FROM ANY AND ALL CLAIMS, COMPLAINTS, CAUSES OF ACTION, CONTROVERSIES, DISPUTES, AND DAMAGES (COLLECTIVELY, “CLAIMS”), KNOWN AND UNKNOWN, RELATING TO, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH ANY SUCH CLAIMS YOU HAVE AGAINST ANY THIRD PARTIES. YOUR RIGHTS WITH RESPECT TO THE LOGICMARK PARTIES ARE NOT MODIFIED BY THE FOREGOING DISCLAIMER IF THE LAWS OF YOUR COUNTRY OR TERRITORY OF RESIDENCE, APPLICABLE AS A RESULT OF YOUR USE OF THE LOGICMARK PROPERTIES, DO NOT PERMIT IT. IF YOU ARE A UNITED STATES RESIDENT, YOU WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE §1542, OR ANY OTHER SIMILAR APPLICABLE STATUTE OR LAW OF ANY OTHER JURISDICTION, WHICH SAYS THAT: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. 

10.           Limitation of Liability. CONSUMER PROTECTION LAWS IN SOME JURISDICTIONS DO NOT ALLOW A MERCHANT TO LIMIT THE CONSEQUENCES OF ITS PERSONAL ACTION OR THAT OF ITS REPRESENTATIVES.  IF THESE LAWS APPLY TO YOU, THE FOLLOWING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LOGICMARK PARTIES BE LIABLE FOR: (I) ANY LOST PROFITS OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE ACCESS TO OR USE OF THE LOGICMARK PROPERTIES, ANY DELAY IN OR INABILITY TO USE THE LOGICMARK PROPERTIES, ANY CONTENT, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES ADVERTISED IN OR OBTAINED THROUGH THE LOGICMARK PROPERTIES, OR OTHERWISE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF THE LOGICMARK PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY RECORD; OR (II) ANY DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE GREATER OF THREE HUNDRED DOLLARS ($300) OR THE AMOUNT ACTUALLY PAID BY YOU TO LOGICMARK OVER THE THREE (3) MONTH PERIOD PRECEDING THE DATE THAT SUCH CLAIMS AROSE. 

THE FOREGOING EXCLUSIONS AND LIMITATIONS ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND LOGICMARK. 

11.           Indemnification.  You shall indemnify and hold harmless the LogicMark Parties from and against any and all Claims, actions, suits, losses, liabilities, expenses, damages, and costs, including reasonable attorney fees and costs, arising from or relating to: (i) your breach of this Agreement; (ii) your violation of any laws, regulations or third party rights; (iii) your acts, omissions or willful misconduct; and (iv) any use of the LogicMark Properties except as expressly provided in this Agreement, including, without limitation, use of the LogicMark Properties for purposes of diagnosis or treatment. 

12.           Binding Arbitration and Class Action Waiver.  Consumer protection laws in some jurisdictions do not allow binding arbitration clauses or class action waivers. Should these laws apply to you, the following Section may not apply to you. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. 

i.               Application. You and LogicMark agree that this Agreement affects interstate commerce and that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section entitled “Binding Arbitration and Class Action Waiver” is intended to be interpreted broadly and governs any and all disputes between you and LogicMark.  Any and all disputes may include, but are not limited to: (i) claims arising out of or relating to any aspect of the relationship between you and LogicMark, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) claims that arose before this Agreement or any prior agreement; and (iii) claims that may arise after the termination of this Agreement. 

ii.             Initial Dispute Resolution. Most disputes can be resolved without resorting to arbitration. If you have any dispute with LogicMark, you agree that you will try to resolve your dispute before taking any formal action by contacting LogicMark using the information in the Notice Section below. When you contact LogicMark, you must provide a brief, written description of the dispute and your contact information. Except for intellectual property claims (see the subsection entitled “Exception” below), you and LogicMark agree to use good faith efforts to resolve any dispute, claim, question, or disagreement directly through consultation with each other. You and LogicMark agree to engage in good faith discussions before initiating a lawsuit or arbitration and understand that good faith discussions are a precondition of initiating a lawsuit or arbitration. 

iii.            Binding Arbitration. If you and LogicMark do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the subsection entitled Initial Dispute Resolution above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided in the subsection entitled “Exception” below). Specifically, all claims arising out of or relating to this Agreement, the parties’ relationship with each other, and/or your use of the LogicMark Properties shall be finally settled by binding arbitration administered by JAMS in accordance with either (i) the JAMS Streamlined Arbitration Procedure Rules, for claims that do not exceed $250,000; or (ii) the JAMS Comprehensive Arbitration Rules and Procedures, for claims exceeding $250,000. The JAMS rules and procedures just identified shall be those in effect at the time the arbitration is initiated (not the “Updated” date of this Agreement), excluding any rules or procedures governing or permitting class actions. Contact information for JAMS, as well as copies of the JAMS rules and applicable forms, are available at www.jamsadr.com. 

iv.            Arbitrator’s Powers. The arbitrator (and not any federal, state, or local court or agency) shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement. Such disputes may include, but are not limited to, any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. 

v.              Filing a Demand. To start an arbitration, you must do all three of the following: (i) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration form at www.jamsadr.com); (ii) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS; and (iii) send one copy of the Demand for Arbitration to us at: LogicMark, Inc., 2801 Diode Lane, Louisville, KY 40299. If you initiate arbitration, you are required to pay the filing fee to initiate arbitration. If the arbitrator finds the arbitration to be non-frivolous, LogicMark will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. 

vi.            The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. Arbitration shall be initiated in New York, and you and LogicMark agree to submit to the personal jurisdiction of any federal or state court in New York, New York in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. 

vii.          Class Action Waiver. YOU AND LOGICMARK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR LOGICMARK’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. This means that you and LogicMark expressly waive any rights to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this subsection entitled “Class Action Waiver” is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes. 

viii.         Exception: Litigation of Intellectual Property Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights. “Intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets—but does not include privacy or publicity rights. 

ix.            30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to: LogicMark, Inc., 2801 Diode Lane, Louisville, KY 40299, [email protected]. Your written notice must have the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of (i) the “Last Updated” date of this Agreement; or (ii) the first date that you used the LogicMark Properties, whichever is later. Otherwise, you shall be bound to arbitrate disputes in accordance with this section entitled “Binding Arbitration and Class Action Waiver.” If you opt out of these arbitration provisions, LogicMark also will not be bound by them. 

x.              Changes to This Section. LogicMark will provide thirty (30) days’ notice of any material changes to this section entitled “Binding Arbitration and Class Action Waiver” by posting a notice on the LogicMark website, located at https://www.logicmark.com/ or within the LogicMark Apps, and complying with any other applicable legal notice or consent requirements. Amendments will become effective thirty (30) days after they are posted. Changes to this section entitled “Binding Arbitration and Class Action Waiver” will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection entitled “Changes to this Section” is not enforceable or valid, then this subsection will be deemed to be severed from the Section entitled “Binding Arbitration and Class Action Waiver.” If this happens, the court or arbitrator shall apply the first Binding Arbitration and Class Action Waiver section or similar section in existence after you began using the LogicMark Properties. 

13.           Export Regulations. You shall not (i) permit any third party to access or use the LogicMark Properties in violation of any U.S. law or regulation; or (ii) export the LogicMark Properties or otherwise remove them from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, you shall not permit any third party to access or use the LogicMark Properties in, or export the LogicMark Properties to, a country subject to a United States embargo, including Cuba, Iran, North Korea, the Russian Federation, Sudan and Syria. We make no representation that the materials provided in LogicMark Properties are appropriate or available for use in locations outside of the United States, its territories and possessions. If you use the LogicMark Properties from other locations, you are responsible for compliance with applicable local laws. 

14.           U.S. Government Restricted Rights. The LogicMark Properties and associated documentation are “Commercial Items(s)” as defined in 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. §227.7202, as applicable.  Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227-7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. 

15.           Federal Communications Commission (“FCC”) Disclosure. 

i.               FCC Rules, Part 15.  Each LogicMark Device has been tested and found to comply with the limits for a Class B digital device, pursuant to Part 15 of the FCC Rules. These limits are designed to provide reasonable protection against harmful interference in a residential installation. This equipment generates, uses, and can radiate radio frequency energy, and if not installed and used in accordance with the instructions, may cause harmful interference to radio communications. However, there is no guarantee that harmful interference to radio or television reception can be avoided. The user is encouraged to try to correct the interference by one or more of the following measures:  

Re-orient or relocate the receiving antenna.  

Increase the separation between the equipment and the receiver.  

Connect the equipment into an outlet on a circuit different from that to which the receiver is connected.  

Consult the dealer or an experienced radio/TV technician for help.  

ii.             SAR Information Statement. Your LogicMark Device may contain a radio transmitter and receiver. It is designed and manufactured to not exceed the emission limits for exposure to radiofrequency (“RF”) energy set by the FCC. These limits are part of the comprehensive guidelines of the U.S. Government. These limits are part of and establish permitted levels of RF energy for the general population. The guidelines are based on standards that were developed by independent scientific organizations through thorough evaluation of scientific studies. The standards include a substantial safety margin designed to assure the safety of all persons, regardless of age and health. The exposure standard for the LogicMark Devices employs a unit of measurement known as the Specific Absorption Rate, or SAR. The SAR limit set by the FCC is 1.6W/kg for body worn devices and 4.0 W/kg for handheld devices (or as subsequently updated from time to time). Tests for SAR are conducted with the LogicMark Devices transmitting at its highest certified power level in all tested frequency bands. Although the SAR is determined at the highest certified power level, the actual SAR levels of the LogicMark Devices are designed to operate at multiple power levels so as to use only the power required to reach the network. In general, the closer you are to a wireless base station antenna, the lower the power output. Before a LogicMark Device model is available for sale to the public, it must be tested and certified to the FCC that it does not exceed the limit established by the government adopted requirement for safe exposure. The tests and positions are performed in positions and locations (e.g., at the ear and worn on the body) as required by the FCC for each model. The FCC has granted equipment authorizations for the LogicMark Devices. SAR information on the LogicMark Devices is on file with the FCC and can be found under the Display Grant section of http://www.fcc.gov/oet/fccid. FCC ID: TYD-GA40711B (Guardian Alert 911 Plus); TYD-3X911 (FreedomAlert); TYD-3091160 (GuardianAlert); TYD-FA60911 (FreedomAlert Plus) 

iii.            Pacemakers and Your LogicMark Device. Certain LogicMark Devices may include cellular handsets and/or receivers, all of which are approved by the FCC. Based on current FCC and FDA (Food and Drug Administration) research, cell phones do not pose a significant health risk for the vast majority of pacemaker wearers, but if you have any concerns, please consult your physician. 

16.           General Terms. 

i.               Governing Law. Consumer protection laws in some jurisdictions might require that the laws of your jurisdiction govern this Agreement. As such, if these laws apply to you, the following clause may not apply to you. Except where expressly prohibited, this Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply. 

ii.             Force Majeure.  LogicMark shall not be liable for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is on account of causes beyond its control, including, but not limited to, “acts of God,” labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, pandemics, casualty, government authority, strikes, or computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility in which event LogicMark shall be excused from its obligations for the period of the delay and for a reasonable time thereafter. 

iii.            Notice.  LogicMark may deliver notice to you under this Agreement by means of e-mail, a general notice on its website or within the LogicMark Apps, terms included in or on the box with your device, or by written communication delivered by first class postage prepaid international mail to your address or contact information on record in LogicMark’s account information. You may give notice to LogicMark at any time via e-mail to [email protected] or by letter delivered by first class postage prepaid mail or overnight carrier to the following address: 2801 Diode Lane, Louisville, KY 40299. 

iv.            Entire Agreement.  This Agreement, together with the LogicMark Privacy Policy, contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous representations, promises, agreements and understandings, whether oral or written, between the parties concerning the subject matter hereof. The LogicMark Privacy Policy, which is available at www.logicmark.com/privacy-policy, governs any information submitted to or collected by LogicMark, including through the LogicMark Apps, and is incorporated by reference into this Agreement. You may from time to time enter into binding legal agreements relating to certain products or services available from LogicMark, which may have terms that are different from those of this Agreement. In the event of any inconsistency, the terms of such other agreement shall control with respect to such products or services. 

v.              Successors; Assignment.  This Agreement is binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You shall not assign or transfer this Agreement or any right or obligation hereunder, in whole or in part, by operation of law or otherwise, without LogicMark’s prior written consent. LogicMark may assign or transfer this Agreement or its rights or obligations hereunder, in whole or in part, by operation of law or otherwise, at any time in its sole discretion without notice to you. 

vi.            Waiver.  Any waiver of any provision of this Agreement shall be effective only if in writing and signed by the Chief Executive Officer of LogicMark. Any failure to enforce any provision of this Agreement shall not constitute a waiver of a future breach of that or any other provision of this Agreement. 

vii.          Severability.  Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, in certain jurisdictions, some of the above limitations of liability may not apply to you. In any such case, or if any terms or conditions of this Agreement are held to be invalid or unenforceable, the remaining provisions of this Agreement shall be valid and binding and of like effect as though such provision were not included. If any term or condition of this Agreement is found by an arbitral tribunal or a court to be invalid or unenforceable, the parties nevertheless agree and request that the arbitrator or court should modify such provision to the minimum extent necessary to render such provision valid and enforceable. 

viii.         Amendment.  LogicMark may, at its sole discretion, revise any provision of this Agreement at any time. Any such changes will be posted on the LogicMark website, located at https://www.logicmark.com/ or within the LogicMark Apps. You understand and agree that your continued access to or use of the LogicMark Properties after the effective date of changes to this Agreement indicates your acceptance of such revisions. 

ix.            Third-Party Beneficiaries.  If you are a user of the LogicMark Apps, you acknowledge and agree that Apple and its subsidiaries (“Apple”) and Google and its subsidiaries (“Google”) are third-party beneficiaries of this Agreement and may be entitled to enforce the terms of this Agreement directly against you. Neither Apple nor Google are responsible for the LogicMark Apps or any information or content provided there in or any warranty, support or other Claim you make related to your use or inability to use the LogicMark Apps.