Terms and Conditions

1. SCOPE OF TERMS & CONDITIONS

Unless otherwise indicated, these Terms and Conditions of Service (“Terms & Conditions”) apply to your use of and/or access to the mobile phone applications which Free Radical Software, LLC (“Free Radical”), whose website is www.freeradicalsoft.com (“Website”), may own or operate currently or in the future (collectively, the “App”). The term “App” shall refer to both the Basic Service and Premium Services (hereinafter defined).

We are committed to protecting your privacy and security. For more information, you should review our Privacy Policy, which is incorporated into these Terms & Conditions by this reference.

If you are not willing to be or cannot be bound by all of these terms and conditions, including without limitation the following agreement and acknowledgement, then do not access or use the App. Moreover, Free Radical does not and will not grant you any right or license to access the App without your willingness and ability to be bound by all of the terms and conditions of this agreement.

You must exercise caution, good sense and sound judgment in using the App. You are prohibited from violating, or attempting to violate, the security of the App. Any such violations may result in criminal and/or civil penalties against you. Free Radical will investigate any alleged or suspected violations and if a criminal violation is suspected, we may contact and/or cooperate with law enforcement agencies in their investigations.

2. AGREEMENT AND ACKNOWLEDGEMENT

a. User Agreement. By using the Services, you accept these Terms & Conditions and agree to be legally bound and to abide by the terms, conditions, and notices contained or referenced herein, just as if you had signed them.

b. Changes to Terms & Conditions. From time to time, we may, in our sole discretion, change, modify, supplement or remove portions of these Terms & Conditions (“Additional Terms”). Such Additional Terms shall become effective upon posting by the Company on the Website, the App, via the Service or sending you an email or other notification. You will be deemed to have agreed to such Additional Terms by your decision to continue accessing the App or otherwise using any of the Services following the date in which such Additional Terms become effective.

c. Modification of Services. In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of the Services provided to you, including, but not limited to, (i) restricting or terminating any user’s right to use the Services and (ii) changing any feature or functionality provided by the Services. You agree that any termination or cancellation of your access to, or use of, the Services may be effected without prior notice. Further, you agree that we shall not be liable to you or any third-party for any termination or cancellation of your access to, or use of, our Services.

d. Downloading App. You may access the App which can be downloaded from an applications store or applications distribution platform, such as the Apple App Store or Google Play, (the “App Provider”). You acknowledge and agree that: (i) these Terms & Conditions are entered into between us, and not with the App Provider, and that we are solely responsible for the App (not the App Provider); (ii) the App Provider has no obligation to furnish any maintenance and support services with respect to the App; (iii) the App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; (iv) in the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, we will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms & Conditions; (v) the App Provider and its subsidiaries are third party beneficiaries of these Terms & Conditions as it relates to your license of the App, and that, upon your acceptance of these Terms & Conditions, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms & Conditions as related to your license of the App against you as a third party beneficiary thereof; and (vi) you must also comply with all applicable third party terms of service when using the Services.

3. SUBSCRIPTIONS; BECOMING A PREMIUM SERVICE USER

Our Services consist of a free, limited version App (“Basic Service”) and a premium product (“Premium Service”). Premium Service typically requires a fee which is either paid by the user. You do not have to become a Premium Service user to use the Services. However, if you are not a Premium Service user, you may be precluded from using certain portions, components, content, features, or resources of our Services. We reserve the right to eliminate or modify any or all of the functionality of the Basic Service at any time without any prior notice to you.

Whether or not you use the Basic Service or the Premium Service, you are responsible for all charges and fees associated with connecting to and using the App, including without limitation all telephone access lines (including mobile data and data roaming charges, when applicable), telephone and/or internet service provider fees, telephone and computer equipment, sales taxes and any other fees and charges necessary to access our Website and/or App.

4. FEES, RENEWAL, CANCELLATIONS & REFUND POLICIES

If you are a subscriber to our Premium Service, you further agree as follows:

a. Agreement to Pay.

Premium Service. If you are a Premium Service User, you will be responsible for the fixed and periodic charges and fees (including prepayment plan fees for multiple periods or recurring monthly fees) you selected at the time of subscription. Applicable taxes, and other charges and fees incurred in order to access the Premium Services may also apply.

b. Auto-Renewal. Your Premium Service membership will automatically be extended for successive renewal periods of the same duration selected at the time of your purchase, at the then-current non-promotional subscription rate. Until you cancel, we will charge or debit your payment method at the beginning of your subscription. Your non-cancellation of the Premium Services or continued use of the paid subscription features of the Premium Service will reaffirm that we are authorized to charge you. If your credit or debit account has been closed or your payment method is otherwise invalid, your subscription may not renew and your subscription will be automatically downgraded to the Basic Service effective as of the end of your current billing cycle. The renewal charge will generally be the same as the prior period’s charge, unless we notify you in advance at the time of sign up or prior to the beginning of the renewal period as described above. If (i) you purchased a multiple-period prepayment plan or (ii) you were eligible for a promotional rate but are no long eligible for that rate, then your subscription will be offered to renew your subscription at our then-current non-promotional subscription rates at the start of the renewal period. If you wish to renew and we are currently offering promotional rates at such time, you must renew your subscription prior to the termination of your current plan. If you fail to renew your subscription for any Premium Services before its scheduled expiration date, then the then-current non-promotional subscription rate will apply.

c. Cancellation of Premium Service Subscription. You can cancel your subscription for our Premium Services at any time by contacting the App Provider. If you terminate your paid subscription for Premium Service, your subscription will remain active until the end of your then-current subscription period.

d. Modifications. We reserve the right to revise the terms of the fee charge, cancellation and refund policies, upon reasonable advance notice communicated to you through a posting on the Website and/or App or such other means as we may deem appropriate from time to time (including electronic mail or conventional mail). Any changes made will apply to all memberships created or renewed after the date such change was implemented.

5. DATA COLLECTION

As a subscriber to our Premium Services, you further agree as follows:

Subscription Data. For purposes of your use of the Premium Service including identification and billing, you agree to provide us with true, accurate and complete information as required by the subscription to the Premium Service. By installing, accessing, or using the Premium Service, you agree to allow Free Radical to collect (on behalf of itself and its business partners) certain information regarding your use of the Service (including, without limitation, certain data regarding your mobile device (e.g., type of device, unique device ID, etc.), operating software, and feature utilization. This information is used for management and execution of Premium Services.

6. CONSENT TO RECEIVE ELECTRONIC COMMUNICATIONS FROM FREE RADICAL

a. Legal Communications. We may send the following to you by email or posting them on the Website and/or the App: these Terms & Conditions, including legal disclosures; future changes to these Terms & Conditions, Privacy Policy, HIPAA Notice, and other notices, legal communications or disclosures and information related to the Service. Such communications are part of the Services which you cannot opt out of receiving.

b. Service Announcements. In using the Services, you may receive periodic electronic communications from Free Radical regarding the Services, such as new product offers and other information regarding the Website and/or the App, which are part of the Services and which you cannot opt out of receiving.

c. Promotional Communications. You may also receive periodic promotions and other offers or materials Free Radical believes might be of interest to you. You can opt-out of receiving these promotional messages at any time by (a) following the unsubscribe instructions contained in each message; or (b) changing the messaging preferences in your account.

d. Withdrawing Your Consent. If you later decide that you do not want to receive future Communications electronically, please send an email to support@freeradicalsoft.com. Your withdrawal of consent shall be effective within a reasonable time after we receive your withdrawal notice described above. Your withdrawal of consent will not affect the legal validity or enforceability of the Terms provided to, and electronically signed by, you prior to the effective date of your withdrawal. If you withdraw your consent to receive Communications electronically, we may terminate your account and/or access to the Service (or any part thereof).

7. LIMITED LICENSE

Subject to your continued compliance with the Terms & Conditions, including without limitation the timely payment of all applicable fees, we grant you a non-exclusive, non-transferable, non-sublicensable, fully revocable, limited license to access and use our Services. Your use is limited for your personal, noncommercial use only.

The Services, or any portion thereof, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, visited, or otherwise exploited for any commercial purpose without the express written consent of Free Radical. Furthermore, except for the limited rights granted in this Section, you will not (and will not encourage or assist any third party to): (i) modify, alter, tamper with, repair or otherwise create derivative works of the Services or any software or technology included in or used or distributed by Free Radical to provide the Services; or (ii) reverse engineer, disassemble or decompile the Services, or attempt to discover or recreate the source code for the Services.

8. RESTRICTIONS ON USE OF CONTENT

You acknowledge that our Services contain content, information, text, graphics, and other materials (collectively, “Content”) that are protected by copyright under the United States copyright laws (and, if applicable, similar foreign laws), and we own a copyright in the selection, coordination, arrangement and enhancement of such Content.

9. CONTENT DISCLAIMER

AS PART OF THE SERVICES, FREE RADICAL DOES NOT (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE CONTENT; OR (II) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF THE CONTENT. UNDER NO CIRCUMSTANCES WILL FREE RADICAL BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON THE CONTENT.

YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT THE CONTENT IS ACCURATE, COMPLETE AND USEFUL. YOU UNDERSTAND AND AGREE THAT THE SERVICES AND INCLUDED CONTENT ARE NOT INTENDED, DESIGNED, OR IMPLIED TO DIAGNOSE, PREVENT, OR TREAT ANY CONDITION OR DISEASE, TO ASCERTAIN THE STATE OF HEALTH, OR TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL CARE AND JUDGEMENT. FREE RADICAL EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE FROM OR IN CONNECTION WITH YOUR USE OF THE SERVICES.

10. DISCLAIMERS OF WARRANTIES

Free Radical, on behalf of itself and its affiliates and any of its or their respective third-party service providers, licensors and suppliers, hereby disclaims all warranties. The products, offerings, content and materials provided in the services are provided “as is” and without warranties of any kind, either express or implied. To the fullest extent permitted by law, Free Radical, on behalf of itself, and its affiliates and any of its or their respective third-party service providers, licensors and suppliers, disclaims all warranties, express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, title, compatibility, security, accuracy or non-infringement. Neither Free Radical, any of its affiliates, nor any of its or their respective licensors, licensees, service providers or suppliers warrant that the applications or any function contained in the applications will be uninterrupted or error-free, that defects will be corrected, or that the applications or the servers that make the applications available are free of viruses or other harmful components.

Any product, offering, content and material downloaded or otherwise obtained through the use of the services is done at your sole risk and you will be solely responsible for any damage to your computer system or devices or loss of data that results from the download of any such product, offering, content or material.

Neither Free Radical, any of our affiliates, nor any of our or their respective licensors, licensees, business customers, service providers or suppliers warrant or make any representations regarding the use or the results of the use of the products, offerings, content and materials in the services in terms of their correctness, accuracy, reliability, or otherwise.

No advice or information, obtained by you from our personnel or through the services shall create any warranty not expressly provided for in these terms & conditions.

11. LIMITATION OF LIABILITY

You expressly understand and agree that in no event shall Free Radical, its affiliates or any of its or their respective third-party service providers, licensors and suppliers be liable for any direct, indirect, incidental, special, consequential, exemplary or punitive damages, or any other damages whatsoever, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if we have been advised of the possibility of such damages), arising out of, or resulting from, (a) the use or the inability to use the services; (b) the use of any content or other material on the website, our applications or applications linked to our applications, (c) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the services; (d) unauthorized access to or alteration of your transmissions or data; (e) statements or conduct of any third party on our services; or (f) any other matter relating to the services.

You, on behalf of yourself, your personal representatives and your heirs, hereby voluntarily agree to release, waive, discharge, hold harmless, defend and indemnify Free Radical, its affiliates and any of Free Radical’s and its affiliates’ officers, directors, shareholders, employees, agents, affiliates, representatives, sublicensees, successors and assigns from any and all claims, actions or losses for bodily injury, property damage, wrongful death, emotional distress, loss of services or other damages or harm, whether to you or to third parties, which may result from your use of the services.

You understand and agree that the cancellation or termination of your subscription is your sole right and remedy with respect to any dispute with us including, without limitation, any dispute related to, or arising out of: (i) these terms & conditions or our enforcement or application thereof; (ii) any practice or policy of Free Radical including these terms & conditions and our privacy policy, or our enforcement or application of these policies; (iii) the content available through the website and/or applications or any change in content provided through the website and/or applications through the services; (iv) your ability to access and/or use our website and/or applications; or (v) the amount or types of our fees or charges, surcharges, applicable taxes, or billing methods, or any change to our fees or charges, applicable taxes, or billing methods.

The maximum liability of Free Radical and its affiliates and its or their respective third-party service providers, licensors and suppliers to you under all circumstances for all damages, losses, and causes of action (whether in contract, tort (including, but not limited to, negligence), or otherwise) shall not exceed the amount paid by you, if any, for accessing our services. If any portion of this limitation of liability is found to be invalid, liability is limited to the fullest extent permitted by law. You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between Free Radical and you. The services would not be provided without such limitations.

Any cause of action by you arising out of or relating to the services, or these terms & conditions must be instituted within one (1) year after the cause of action arose or be forever waived and barred. All actions shall be subject to the limitations set forth in these terms & conditions.

12. INTELLECTUAL PROPERTY

a. Software. You acknowledge and agree that the Services and all intellectual property rights associated therewith are, and shall remain, the property of Free Radical (and, where applicable, its licensors). Furthermore, you acknowledge and agree that the source and object code of the Website and/or App and the format, directories, queries, algorithms, structure and organization of the Website and/or App are the intellectual property and proprietary and confidential information of Free Radical and its affiliates, licensors and suppliers. Except as expressly stated in these Terms & Conditions, you are not granted any intellectual property rights in or to the Services by implication, estoppel or other legal theory, and all rights in and to the Services not expressly granted in these Terms & Conditions are hereby reserved and retained by Free Radical.

b. Trademarks. Free Radical Sortware, freeradicalsoft.com, and the Free Radical logo (collectively, the “Free Radical Marks”) are trademarks or registered trademarks of Free Radical, Inc. Other trademarks, service marks, graphics, logos and domain names appearing on the Website, App or in other Content provided to you may be the trademarks of third-parties. Neither your use of the Services, nor these Terms & Conditions, grant you any right, title or interest in or to, or any license to reproduce or otherwise use, the Free Radical Marks or any third-party trademarks, service marks, graphics, logos or domain names. You agree that any goodwill in the Free Radical Marks generated as a result of your use of the Services will inure to the benefit of Free Radical, Inc., and you agree to assign, and hereby do assign, all such goodwill to Free Radical, Inc. You shall not at any time, nor shall you assist others to, challenge Free Radical’s right, title, or interest in or to, or the validity of, the Free Radical Marks.

c. Copyrighted Materials; Copyright Notice. All content and other materials available through the Services, including without limitation the Free Radical logo, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by Free Radical or are the property of Free Radical’s licensors and suppliers. Except as explicitly provided, neither your use of the Services nor these Terms & Conditions grant you any right, title or interest in or to any such content or materials.

d. Copyright Complaints. We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and in our discretion, terminate the rights of any user to use our Services (or any part thereof) who infringes the intellectual property rights of others. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you have evidence, know, or have a good faith belief that your work has been copied in a way that constitutes copyright infringement or are aware of someone doing so, please contact us and include the following information:

(i) a physical or electronic signature of the owner of the copyright or a person authorized to act on behalf of the owner;

(ii) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Website and/or App are covered by a single notification, a representative list of such works);

(iii) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on our Website and/or App;

(iv) your name, mailing address, telephone number and email address;

(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and

(vi) a statement by you that the information in your notification is accurate, and that you attest under penalty of perjury, that you are the copyright owner or that you are authorized to act on the copyright owner’s behalf.

If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices with respect to the Services should be sent to our designated agent for notice of claims of copyright infringement: Free Radical, Inc., 229 W. 28th St., 9th, New York, NY 10001, Attn: Copyright Agent, or via email at support@Free Radical.com.

13. INDEMNIFICATION

Without limiting any indemnification provisions of these Terms & Conditions, you agree to indemnify, hold harmless and, at our option, defend Free Radical and our affiliates, and our and their respective officers, directors, members, employees, stockholders, managers, agents and representatives (collectively, “Free Radical Indemnified Parties”) from any and all third party claims, actions, demands, causes of action, liability, damages and/or costs (including, but not limited to, reasonable attorneys’ fees and expenses) (collectively, “Claims”) arising from (i) your improper use of the Services or our products or offerings, (ii) your violation of these Terms & Conditions, (iii) your provision to Free Radical or any of the Indemnified Parties of information or other data, (iv) your infringement or alleged infringement, or the infringement or use (or alleged infringement or alleged use) by any other user of your account, of any intellectual property or other right of any person or entity, or (v) your violation or alleged violation of any foreign or domestic, federal, state or local law or regulation.

The Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify or hold harmless the Indemnified Parties. You may not settle any Claim without the prior written consent of the concerned Indemnified Parties.

14. GOVERNING LAW AND VENUE

These Terms & Conditions shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to your use of the Services or these Terms & Conditions shall be filed only in the state or federal courts located in New York County in the State of New York and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.

15. TERM AND TERMINATION

a. Termination. These Terms & Conditions will remain in full force and effect while you use our Services (including our Website and Apps). We may terminate your use of, or access to, the Service in accordance with these Terms & Conditions.

b. Effect of Termination; Survival. Termination of these Terms & Conditions automatically terminates all rights and licenses granted to you under these Terms & Conditions, including all rights to use the Services, except that all terms that by their nature may survive termination shall be deemed to survive such termination (including, without limitation, intellectual property, disclaimers, limitations of liability, User Content license, governing law and venue). Subsequent to termination, Free Radical reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Services, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.

c. Legal Action. If we, in our sole discretion, take legal action against you in connection with any actual or suspected breach of these Terms & Conditions, we will be entitled to recover from you as part of such legal action, and you agree to pay, our reasonable costs and attorneys’ fees incurred as a result of such legal action. The Free Radical Parties will have no legal obligation or other liability to you or to any third party arising out of or relating to any termination of these Terms & Conditions.

16. MISCELLANEOUS TERMS

If any provision of these terms shall be found by a court of competent jurisdiction to be unlawful, invalid, void or voidable, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. These Terms & Conditions are the entire agreement between you and us relating to the subject matter herein. We may assign our rights and obligations under these Terms & Conditions. These Terms & Conditions will inure to the benefit of our successors, assigns and licensees. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of these Terms & Conditions, or to exercise any right under the Terms & Conditions, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.

Last Updated: 16 June 2021