1. General Use of Services.
a. The Website is generally available to users in the general public without registration, and you may visit and browse the Website without charge or obligation; provided, however, PMIC reserves the right in its sole discretion to make changes, limit, discontinue, or restrict any portion of the Website at any time and from time to time, without notice to you. Further, PMIC reserves the right to withdraw or amend any service, product or material we provide on or through the Website, in its sole discretion without notice.
b. To access and use the Portal and Application and the resources they offer, you are required to be a PMIC customer and register to use the Portal and the Application, as applicable.
d. If you choose or are provided with a user name, password, or any other piece of information as part of a security procedure for use of the Services, you are solely responsible for maintaining the confidentiality of your password and account and for any and all statements made and acts or omissions that occur through the use of your password and account, including any mail sent and any charges incurred. Therefore, you must take steps to ensure that others do not gain access to your password, account or devices used to access your account. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Services using your user name, password or other security information. You agree to notify PMIC immediately of any unauthorized access to or use of your user name or password or any other breach of security.
2. Conduct Regarding Use of Services.
Your use of the Services is subject to all applicable laws and regulations, and you are solely responsible for the contents of your communications through and using the Services. By posting information in or otherwise using any communications or interactive services that may be available to you on or through the Services, you agree that you will not upload, share, post, or otherwise distribute or facilitate distribution of any content, including text, communications, software, images, sounds, data, or other information that: (a) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, contains explicit or graphic descriptions or accounts of sexual acts, or otherwise violates PMIC’s rules or policies; (b) victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; (c) infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party; (d) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail, chain letters, any other form of unauthorized solicitation; (e) contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or (f) impersonates any person or entity, including any of PMIC’s employees or representatives. In addition, you may not use your access or account, as applicable, to breach security of another account or attempt to gain unauthorized access to another network, server or account. You shall not interfere with anyone else’s use and enjoyment of the Services. Users who violate systems or network security may incur criminal or civil liability. Without limiting any of PMIC’s other rights or remedies, you agree that PMIC may at any time in its sole discretion terminate or limit your access to the Services and any of its features without prior notice to you for violating any of the above provisions. In addition, you acknowledge that PMIC will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations. You will not access or use the Services through manual, voice or other physical manipulation, not including application functionality you have authorized to function in background mode, while you are operating a motor vehicle.
3. Ownership and Proprietary Rights.
The Services and their contents, features and functionality (including but not limited to all information, documentation, software, text, displays, photographs, functional aspects, images, video and audio, and the design, selection, arrangement and organization thereof) (collectively, “Content”), are owned by PMIC, its licensors or other providers of such material and are legally protected, without limitation, under United States federal and state, as well as copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, regulations and treaties. PMIC authorizes you to access Content and grants you the non-exclusive, non-assignable, non-transferable revocable right to use the Services solely for your non-commercial and limited personal use. Any copying, redistribution, use or publication by you of any such Content or any part of the Services is prohibited without prior written permission from us or the specific content provider. Any such unauthorized use of the Content could result in criminal or civil penalties. Under no circumstances will you acquire any ownership rights or other interest in any Content by or through your use of the Services. You shall not remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Services, including any copy thereof. All rights not expressly granted herein are reserved. Among other things, you agree not to use the Services or any Content in violation of any law or regulation, to engage in any acts that may interfere with the proper working of the Services, to gain unauthorized access to PMIC’s computer systems, or to remove, circumvent, damage, disable, or otherwise compromise any security feature(s) related to the Services or Content. The brands, names, logos, trade names, trademarks, service marks and other distinctive identifications (collectively “Marks”) on or of the Services are the intellectual property of and proprietary to PMIC, its advertisers, suppliers, and others with whom PMIC may do business. You have no right to use any of these Marks or any confusingly similar marks for any purpose without the express prior written consent of PMIC or of the specific mark owner.
4. Application-Specific Terms.
This Section 4 applies to you only if you download, install or use the Application:
a. License Grant. Subject to the terms of this Agreement, PMIC grants you a limited, non-exclusive and non-transferable license to download, install and use the Application for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you strictly in accordance with the Application’s documentation. The Application is licensed, not sold, to you.
b. License Restrictions. You shall not:
i. copy the Application, except as expressly permitted by this Agreement;
ii. modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application;
iii. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
iv. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
v. remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application.
c. Reservation of Rights. You acknowledge and agree you do not acquire any ownership interest in the Application under this Agreement, nor do any acquire any rights other than to use the Application in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. PMIC reserves and shall retain its entire right, title and interest in and to the Application, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
d. Apple, Inc. Terms. By downloading the Application using the Apple, Inc. ("Apple") App Store and/or otherwise accessing the Application through or using a mobile device made by Apple, you and PMIC agree that the following provisions shall apply:
i. You and PMIC acknowledge and agree that this Agreement is concluded between you and PMIC only, and not with Apple. PMIC, not Apple, is solely responsible for the Application and the content thereof.
ii. The license granted under this Agreement is a non-transferable license to use the Application on any Apple-branded products that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that the Application may be accessed and used by other accounts associated with you via Family Sharing or volume purchasing.
iii. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
iv. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and Apple will not be responsible for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.
v. PMIC, not Apple, is responsible for addressing any claims by you or any third party relating to the Application or your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including, as applicable, in connection with the Application's use of the HealthKit and HomeKit frameworks.
vi. Notwithstanding anything to the contrary herein, this Agreement shall not limit PMIC's liability to you beyond what is permitted by applicable law.
vii. In the event of any third party claim that the Application or your possession and use of the Application infringes that third party's intellectual property rights, as between PMIC and Apple, PMIC, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
viii. You and PMIC acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereof.
5. Collection and Use of Your Information.
PMIC may from time to time in its sole discretion develop and provide updates to the Services, which may include upgrades, bug fixes, patches, 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 PMIC has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. With respect to the Application, based on your device settings, when your device is connected to the Internet either: (a) the Application will automatically download and install available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree the Application or portions thereof may not properly operate should you fail to do so. You further agree all Updates will be deemed part of the Services and be subject to all terms and conditions of this Agreement.
7. Third Party Materials.
The Services may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that PMIC is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. PMIC hereby disclaims all and shall not have any liability or responsibility to you or any other person or entity for any Third Party Materials, and you hereby waive, to the fullest extent permitted by applicable law, any and all claims against PMIC in any way arising out, relating to or caused by any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and your access and use of them is entirely at your own risk and subject to such third parties’ terms and conditions. If any third party obtains or collects personally identifiable information from you, in no event shall PMIC assume or have any responsibility or liability.
8. Compliance with Third Party Terms.
You must comply with all applicable third party terms of agreement when using the Services.
9. Responsibility of Telecommunications.
You acknowledge that the Services require an active connection to the Internet or a mobile telecommunications network to operate fully, and will cause your devices to transmit and receive data. You agree that: (a) PMIC is not responsible for providing you with any telecommunications service, and the relevant telecommunications service provider is responsible for any issues associated with that service; and (b) you must comply with the terms of any agreement with the relevant telecommunications provider when using the Services and are responsible for all data and other charges payable to any telecommunications service provider.
10. Open Source Software.
Certain software code incorporated into or distributed with the Services may be licensed by third parties under various “open-source” or “public-source” software licenses (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in this Agreement, the Open Source Software is not licensed to you under this Agreement and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
11. Term and Termination.
a. The term of Agreement commences when you first register for, use, access, download or install any of the Services, as applicable, and will continue in effect until terminated as set forth in this Section.
b. With respect to the Application only, this Agreement will terminate by you deleting the Application and all copies thereof from your devices.
c. PMIC may terminate this Agreement at any time (in whole or in part) without notice if it ceases to support the Services, or otherwise elects to not permit use of the Services, which PMIC may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of its terms and conditions.
d. Upon termination:
i. all rights granted to you under this Agreement will also terminate; and
ii. if applicable, you must cease all use of the Services and delete all copies of the Application from your device and account.
e. Termination will not limit any of PMIC’s rights or remedies at law or in equity.
12. Disclaimer of Warranties.
THE SERVICES ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PMIC, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, PMIC PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
13. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PMIC OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES OR THE CONTENT THEREOF FOR:
a. PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF OPPORTUNITY, BUSINESS INTERRUPTION, COMPUTER OR MOBILE DEVICE FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES; OR
b. DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR PMIC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
You agree to indemnify, defend and hold harmless PMIC and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Services or your violation or breach of this Agreement. Furthermore, you agree that PMIC assumes no responsibility for the content you submit or make available through the Services.
15. Export Regulation; Legal Compliance.
The Services may be subject to U.S. export control laws, including the U.S. Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Services available outside the U.S. You represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
In connection with your use of the Services, we may send you service announcements, administrative messages and other information. You may opt out of some of these communications.
18. Limitation of Time to File Claims.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
PMIC reserves the right in its sole and absolute discretion to transfer, assign, sublicense or pledge in any manner whatsoever, and of its rights and obligations under this Agreement to a subsidiary, affiliate, successor or to any third party whatsoever, without notifying you or receiving your consent. You shall not transfer, assign, delegate, sublicense or pledge in any manner whatsoever, any of your rights or obligations under this Agreement. Any attempted or purported transfer, assignment, delegation, sublicense or pledge by you shall be void and of no force and effect.
20. Force Majeure.
PMIC shall not be in default by reason of any failure in performance of this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including but not limited to, default by subcontractors or suppliers, acts of God or of the public enemy, terrorist act, United States or foreign governmental acts in either a sovereign or contractual capacity, fire, flood, epidemic, restriction, strikes or freight embargos.
The following Sections shall survive termination of this Agreement: Sections 1, 2, 3, 4(b), 4(c), 4(d), 5 and 13-26.
22. Governing Law.
This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York located in Chenango County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. Notwithstanding the foregoing, all policies for motor vehicle insurance obtained through or with the assistance of the Services are governed by the laws of the jurisdiction in which such policies are written.
23. Entire Agreement.
constitute the entire agreement between you and PMIC with respect to the Services and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Services.
24. Contact Information.
Any questions, complaints or claims with respect to the Services should be made by mail, telephone or e-mail, and shall be directed to the following: Preferred Mutual Insurance Company, One Preferred Way, New Berlin, New York 13411, telephone: 1-800-333-7642; e-mail: Corporate.Communications@preferredmutual.com.
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
PMIC reserves the right, at any time and from time to time, for any reason in its sole discretion, to change this Agreement, with or without notice. These changes become effective immediately, and if you use the Services after the changes become effective it will constitute your agreement to be bound by the changes. You acknowledge and agree that it is your responsibility to review the Services and this Agreement periodically and to be aware of any modifications or revisions. You should check back frequently and review this Agreement regularly so you are aware of the most current rights and obligations that apply to you and the terms and conditions of your agreement with PMIC.