LINK2 TERMS OF USE

Revised Nov 4, 2013
Version 1.1

IMPORTANT: READ CAREFULLY. These Terms of Use (“Terms”) constitutes a legal agreement between you, the end user (“you”), and Akron Brass Company (“us,” “we,” or “Akron Brass”), for the use of the proprietary Link2 mobile apparatus module (“Module”), the Link2 service (“Service”) and related proprietary software (“Software”) (the Service and Software, collectively, the “Link2 System”), including the transmission of data about the emergency services apparatus in which the Module is installed (the “Apparatus”) to and from the Service. By using the Link2 System, you agree to be bound by these Terms. If you do not agree to these Terms, the Link2 System will not be available to you.

1. LICENSE

The Link2 System is licensed, not sold, to you by Akron Brass for use only in accordance with these Terms. Akron Brass and its licensors retain ownership of the Link2 System, including all proprietary and intellectual property rights therein, and reserve all rights not expressly granted to you. Subject to these Terms, Akron Brass grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license in the United States during the Term to use the Link2 System in connection with your Apparatus solely for your internal business purposes. You may not and you agree not to, or to enable others to, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Link2 System or any part thereof. Subject to Section 2(c), you may not rent, lease, lend, sell, redistribute or sublicense the Link2 System or any part thereof. You acknowledge that the Link2 System and all components thereof constitute the proprietary and confidential information of Akron Brass, and you shall not disclose such information to any third party without our express written consent.

2. YOUR USE OF THE SERVICE

a. Your Apparatus. Your Apparatus must have a properly installed Module for you to receive the Service. In order for the Module to function properly, your Apparatus must have a working electrical system, including adequate battery power. Disruption of electricity to your Apparatus’ systems or to the Module may result in the loss of data. The communications and diagnostic equipment on your Apparatus must function correctly for the Service to provide accurate information. In addition, your Apparatus’ systems may involve software that your Apparatus dealer or manufacturer may need to change or update from time to time.  We are not responsible for inaccurate information or failure of the Module or Service that results from (i) damage to, defects in, or the general condition of your Apparatus, or (ii) any changes or updates to your Apparatus’ systems.

b. Wireless Connectivity. The Module uses wireless local area networking (IEEE 802.11a/b/g) to transmit information from your Apparatus’ systems to the Service. In order to function correctly, the Service requires that your Apparatus be located in proximity to an IEEE 802.11a/b/g/n wireless router that can provide the Module a connection to the internet. In addition, the Module must be properly configured to transmit data over the internet to the Service. If you do not have a wireless router, if the router is not connected to the internet, or if the router and/or the Module are not configured correctly, the Service will not function correctly. WE ARE NOT RESPONSIBLE FOR COMMUNICATIONS FAILURES THAT ARE THE RESULT OF INCORRECT CONFIGURATION OF YOUR MODULE OR WIRELESS ROUTER, NETWORK SECURITY OR FIREWALL SETTINGS, LACK OF INTERNET ACCESS, NETWORK CONGESTION, INTERNET OUTAGES OR ANY OTHER COMMUNICATIONS FAILURES THAT ARE BEYOND OUR CONTROL.

c. Transferring the Module. You may transfer the Module to a third party in conjunction with a bona fide sale of your Apparatus, though your subscription is not assignable and such third party will need to obtain its own subscription in order to receive the Service.  

3. DATA AND PRIVACY

You will be required to provide us with user names and email addresses of your authorized users when setting up your account.  In addition, you acknowledge that we will collect and record certain data regarding your Apparatus in connection with the Service. Such data may include, without limitation, diagnostic information, usage patterns (including driving), maintenance status, fuel usage and economy, and other operational data, but will not include any personally identifiable information of individuals (collectively, “Data”). Note that the Module will continue collecting and sending Data to the Service as long as it has access to a wireless internet connection, even if your subscription lapses. By using the Link2 System, you expressly consent to the collection of such Data, and agree that as between the parties, all right, title and interest in and to such Data will be owned by Akron Brass, and Akron Brass may use such Data for any purposes whatsoever, including commercializing the Data or otherwise using it for the benefit of third parties. We will disclose the Data if we are required to do so by any court order, in response to a discovery request or pursuant to a subpoena issued by any law enforcement agency, provided that we will make reasonable efforts to notify you of such order, request or subpoena if we are legally allowed to do so in order to allow you to contest such disclosure. You agree to reimburse us for any costs that we incur in gathering, analyzing, and reporting Data in response to any court order, discovery request or subpoena. In the event that any employee or officer of Akron Brass is required to appear to give testimony regarding the Service, the Data or these Terms, you agree to reimburse us for the cost of such appearance, including the time of the employee or officer to prepare for and attend such testimony.

4. TERMINATION

You may cancel your subscription to the Service, deactivate your Module, and terminate these Terms at any time by sending written notice to the dealer or manufacturer from whom you acquired the Module and purchased your subscription and us at Link2 Subscriptions, c/o Akron Brass Company, PO Box 86, Wooster, OH  44691. We may terminate these Terms and your access to the Link2 System effective immediately in the event you breach your obligations under Section 1 (License), Section 4 (Data and Privacy) or Section 7 (Indemnity). Upon the termination or expiration of your subscription and these Terms for any reason, all rights granted to you to use the Link2 System shall immediately cease. The following sections will survive termination or expiration of this Agreement: Section 6 (Warranty Disclaimer), Section 7 (Indemnity), Section 8 (Limitation of Liability), Section 9 (General Provisions).

5. WARRANTY DISCLAIMER

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LINK2 SYSTEM IS PROVIDED “AS-IS” AND “AS-AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND AKRON BRASS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE LINK2 SYSTEM OR ANY DATA OR INFORMATION PROVIDED THROUGH IT, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF ACCURACY, SATISFACTORY QUALITY, PERFORMANCE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, AKRON BRASS DOES NOT GUARANTEE THAT THE LINK2 SYSTEM WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR CONTINUE TO BE MADE AVAILABLE; OR THAT DEFECTS IN THE LINK2 SYSTEM WILL BE CORRECTED. YOU ACKNOWLEDGE THAT THE LINK2 SYSTEM IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR UNAVAILABILITY, ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE LINK2 SYSTEM COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. YOU FURTHER ACKNOWLEDGE THAT THE LINK2 SYSTEM IS NOT A REPLACEMENT FOR REGULAR INSPECTION AND MAINTENANCE OF YOUR APPARATUS AND THAT YOU REMAIN SOLELY RESPONSIBILITY FOR THE INSPECTION, MAINTENANCE, AND PROPER FUNCTIONING OF YOUR APPARATUS.

6. INDEMNITY

You agree to indemnify, defend and hold harmless Akron Brass, our affiliates, and our and their owners, officers, employees, contractors and agents from and against any and all cost, loss, damage, injury, claims, liabilities, or demands (including the cost, expenses and reasonable attorney’s fees on account thereof) (collectively, “Losses”) which may be made against us that are alleged to arise out of or relate to: (i) your negligence or other wrongful acts or omissions (including with respect to the use and maintenance of your Apparatus); (ii) the use, possession or interpretation of data or information provided in connection with the  Service; (iii) the use, failure to use, or inability to use the Service, except where the Losses result from the gross negligence or willful misconduct of Akron Brass or our employees, contractors or agents; (iv) any change you make to the Module, including unauthorized installation, repair and maintenance; and (v) your use of the Link2 System in a manner or application for which it was not designed or intended by us.

7. LIMITATION OF LIABILITY

IN NO EVENT SHALL WE BE LIABLE FOR PERSONAL INJURY, PROPERTY DAMAGE OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE LINK2 SYSTEM, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall our total liability to you under this Agreement exceed, in the aggregate, the amount of fees you paid to us for use of the Service in the twelve (12) months preceding the event that gave rise to liability.

8. GENERAL PROVISIONS

Miscellaneous. These Terms are the entire agreement between the parties and supersede all prior agreements, correspondence and understandings relating to the Link2 System. No failure by either party to take any action or assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right. We reserve the right to change these Terms upon thirty (30) days’ notice (or longer if required by law), and your continued use of the Link2 System following any such changes indicates your consent to the new Terms. The headings herein are for convenience only and shall not affect interpretation. You may not assign your subscription or these Terms to any third party. We may assign your subscription and these Terms to any third party without your consent.
Governing Law; Forum. These Terms shall be governed and construed in all respects in accordance with the laws of the State of Ohio and each party hereby submits to the non-exclusive jurisdiction of the courts of the State of Ohio. The provisions of the United Nations on Contracts for the International Sale of Goods (“CISG”) and the Contracts (Rights of Third Parties) Act of 1999 are expressly excluded from these Terms, if otherwise applicable.
Severability. The provisions of these Terms are severable. Should any court of competent jurisdiction hold any of these clauses to be unlawful, such holding shall not invalidate all of the clauses, but rather, the unlawful clause shall be severed and the remaining provisions shall be fully enforceable.
 Force Majeure. Except for payment obligations hereunder, the consequences, direct or indirect, of labor troubles, fires, accidents, telecommunications disruptions, floods, war, economic factors, government acts or requirements and any and all like or different causes beyond the control of the parties hereto shall excuse performance by either party to the extent by which performance is prevented thereby.
Export. The Link2 System may be subject to export control laws, restrictions, regulations and orders of the United States. You agree to comply with all applicable export laws, restrictions and regulations of the United States or foreign agencies or authorities, and shall not export, or transfer for the purpose of re-export, any part of the Link2 System to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as mentioned in any such United States or foreign law or regulation.