Locacious

Website Terms of Service & Software Use Agreement

Revised: March 15, 2011

 

These Website Terms of Service and Software Use Agreement (collectively, this "Agreement") set forth the terms and conditions for your access and use of the mobile application software (the "Software") created by Locacious, Inc. ("Locacious") and the website currently located at www.locacious.net (the "Site") and related services that may be provided by Locacious. The software, site and such related services are referred to as the "Service".

 

Please read this Agreement carefully. You may not use any part of the Service unless you agree to the terms of this Agreement. Your use of the Service will constitute your acceptance of this Agreement.

 

1.      Authorized Users.

 

The Software may only be installed or used by (a) the owner of the device on which the Software is installed (the "Authorized Device"), and (b) any persons authorized by the owner of the Authorized Device to use the Authorized Device and to install the Software in accordance with the terms of this Agreement, provided that the individuals referred to in (a) and (b) above have read this Agreement and agree to abide by it (collectively, the "Authorized Users," and each an "Authorized User"). Any references to the pronouns "you" and "your" anywhere in this Agreement are intended to refer to any one or to all of the Authorized Users of the Software. You represent and warrant that you are of legal age to form a binding contract.

 

2.      Privacy and Children Under 13.

 

Protecting the privacy of young children is especially important. For that reason, Locacious does not knowingly collect or solicit personal information from anyone under the age of 13 or knowingly allow such persons to register as Users. If you are under 13, please do not send any information about yourself to us, including your name, address, telephone number, or email address. No one under age 13 is allowed to provide any personal information to or on Locacious. In the event that we learn that we have collected personal information from a child under age 13 without verification of parental consent, we will delete that information as quickly as possible. If you believe that we might have any information from or about a child under 13, please contact us at info@locacious.net.  

 

3.      Registration.

 

You may browse the Site and view content without registering, but as a condition to using certain aspects of the Service, you may be required to register with Locacious and select a username ("User ID"), provide an email address and describe your interests and tours. You shall provide Locacious with accurate, complete and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You shall not (a) select or use as a User ID of another person with the intent to impersonate that person; (b) use as a User ID a name subject to any rights of a person other than you without appropriate authorization; or (c) use as a User ID a name that is otherwise offensive, vulgar or obscene. Locacious reserves the right to refuse registration of, or cancel a User ID in its sole discretion. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your password. You shall never use another User's account without such other user's express permission. You will immediately notify Locacious in writing of any unauthorized use of your account, or other account related security breach of which you are aware.

 

4.      Proprietary Materials.

 

All the text, images, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content on this website, other than User Content as defined below ("Site Content"), and all software embodied in this website or otherwise used by Locacious to deliver the Services ("Software") is proprietary to us or to third parties, and except as otherwise expressly permitted by this Agreement, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or other reduction of such software to human-readable form is prohibited.

 

The mark "Locacious" is a registered trademark of Locacious and may not be used in connection with any service or products other than those provided by Locacious, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Locacious. Any use of such mark, or any others displayed on the Service, will inure solely to the benefit of their respective owners.

 

5.      User Content.

 

As part of creating tours with Locacious, you may upload, post or submit to Locacious, or distribute using Locacious, photographs, text, graphics, video, audio and other materials and information (collectively, "User Content"). The User Content remains your property, and Locacious does not claim any ownership of the copyright or other proprietary rights in such information and User Content. Notwithstanding the foregoing, you agree that:

 

  1. You are publishing and making your User Content available for viewing by third parties, that your User Content may be associated with your Locacious User ID, and that accordingly your User Content will be attributable to you, that third parties will gain access to your User Content through the Service and Locacious shall in no event be liable to you for any use or misuse of your User Content by any third party;

 

  1. You grant Locacious and its current and future Partners a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, transferable license, with right to sublicense, to copy, modify, use, publish, distribute, prepare derivative works, publicly perform, publicly display and otherwise exploit the User Content in connection with operation of the Service, promotion of the Service, and any other purposes reasonably related to playing Locacious and for the purposes of promotions and advertising of Locacious and its Partners; and

 

  1. All users of Locacious have the right to access your User Content; and

 

  1. You represent and warrant that you own all proprietary rights in your User Content or, with respect to any User Content you do not own, you have the full authority and right to post the User Content and to grant the licenses granted hereunder, and that your posting of the User Content, and the exercise by Locacious, its current and future Partners and Users of the license rights granted by you shall not infringe any third party intellectual property rights, nor violate any rights of privacy or publicity, nor be defamatory, libelous or obscene, nor violate any other right, privilege or interest of any third party; and

 

  1. If any royalties are payable to any third party for exploitation of User Content posted by you in accordance with the licenses granted by you in this Agreement, you shall be responsible for and pay such royalties.

 

Locacious is under no obligation to edit or control User Content that you and other users post to or distribute, and will not be in any way responsible or liable for User Content. Locacious does not vet or control the users or other individuals that use the Service. You post, access and use User Content at your own risk, and Locacious and its current and future Partners shall not be liable for any loss or damage that any person may suffer as a result of using the Service or using or relying on the User Content. Users should exercise caution in interacting with unknown persons that they may meet or otherwise interact with using Locacious in the same way that they would exercise caution in the physical world.

 

No User of the Services shall:

 

  1. Use, upload, post, distribute or transmit, any User Content in violation of, or in connection with any violation of, any local, state, national or international laws;

 

  1. Impersonate any person or entity, or forge or manipulate headers to disguise the origin of any User Content;

 

  1. Except as otherwise permitted by this Agreement, harvest or otherwise collect information about others, including email addresses, without their consent;

 

  1. Post any User Content more than once or "spam";

 

  1. Post any User Content that contains advertising or promotional material or constitutes commercial activity of any sort, however, legitimate walking tour guides may include a phone number or link to their own website in their description of their own tour stops, subject to the discretion of Locacious; or

 

  1. Engage in any other conduct that interferes with the Services or that restricts or inhibits any other person from using or enjoying any User Content, or the Services, or which, in Locacious’ sole judgment, exposes Locacious, its current and future Partners, or any of their officers, directors, employees or agents to any liability or detriment of any type.

 

6.      Services Restrictions.

 

No User of the Service shall submit, post, upload to, distribute through or otherwise use in connection with the Service any User Content that:

 

  1. Is libelous, defamatory, threatening, abusive, scandalous, obscene, pornographic or unlawful or that encourages a criminal offense;

 

  1. Contains material from other copyrighted works without the written consent of the owner of such copyrighted material, other than reasonable excerpts permitted under the copyright doctrine of fair use;

 

  1. Infringes any copyright or violates any property rights, rights of privacy or publicity, or any other rights of any third party;

 

  1. Contains any statement, formula, direction, recipe, prescription or other matter that involves a reasonably foreseeable risk of injury or damage to the material’s readers or others; or

 

  1. Contains any software viruses or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.

 

Locacious reserves the right (but is not obligated) to do any or all of the following:

 

  1. Record User Content;

 

  1. Investigate any allegation that User Content or User registration information does not conform to the terms and conditions of this Agreement;

 

  1. Remove User Content or User registration information that is abusive, illegal or disruptive, or that otherwise fails to conform with the terms and conditions of this Agreement;

 

  1. Monitor, edit or disclose any User Content or User registration information; or

 

  1. Edit or delete any User Content or User registration information, regardless of whether such content violates any terms and conditions of this Agreement.

 

Locacious has no liability or responsibility to Users of the Service or any other person or entity for performance or nonperformance of the aforementioned activities.

 

7.      Digital Millennium Copyright Act.

 

Locacious complies with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material posted on the Services you may contact our Designated Agent at the following address:

 

Gagnier & Margossian, LLP
201 N. Indian Hill Blvd.
Claremont, CA 91711

 

Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:

 

  1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;

 

  1. A description of the copyrighted work or other intellectual property that you claim has been infringed;

 

  1. A description of the material that you claim is infringing and where it is located on the Service;

 

  1. Your address, telephone number and email address;

 

  1. A statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and

 

  1. A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

 

If material that you have posted to the Service has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C. §512 (g). To be effective, the counter notice must be a written communication sent to the designated agent address listed above that includes the following:

 

  1. A physical or electronic signature of the user;

 

  1. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

 

  1. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and

 

  1. Your name, address and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which Locacious may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. §512 (c)(1)(C) or an agent of such person.

 

8.      Third Party Websites.

 

The Locacious website may contain links to third-party websites. The linked sites are not under our control, and we are not responsible for the contents of any linked site. We provide these links as a convenience only, and a link does not imply endorsement of, sponsorship of, or affiliation with the linked site by Locacious. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties.

 

9.      Ideas and Feedback Submitted to LOCACIOUS.

 

Locacious is pleased to hear from you and welcomes your comments about the Service. In the event that you submit ideas or suggestions for the Service ("Services Comments"), the Service Comments will be deemed, and will remain, the sole property of Locacious. None of the Service Comments will be subject to any obligation of confidence on the part of Locacious, and Locacious will not be liable for any use or disclosure of any Service Comments. Without limiting the foregoing, Locacious will be entitled to unrestricted use and other exploitation of the Service Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Service Comments.

 

10.  Warranty Exclusions and Limitations of Liability.

 

Locacious warrants that the Service and Locacious Property will conform substantially to the descriptions set forth on the Locacious website. However, Locacious does not warrant that the Service or Locacious Property will operate error-free or without downtime. Locacious may pause or interrupt the Service at any time, and Users should expect periodic downtime for updates to Locacious. In the event of any breach of this warranty, the User’s sole and exclusive remedy, and Locacious’ sole and exclusive liability, shall be (at Locacious’ option) to remedy the failure or to refund the amount paid by the User, if any. Except as set forth in the foregoing sentence, Locacious make no representations or warranties of any kind regarding the Services or the Locacious Property. LOCACIOUS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING:  ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; THAT THE SERVICES AND LOCACIOUS PROPERTY WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE SERVICES OR LOCACIOUS PROPERTY, AND AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES OR THE LOCACIOUS PROPERTY. No advice or information, whether oral or written, obtained by you from Locacious or through the Service will create any warranty not expressly stated herein.

 

PARTICIPATING IN ANY PHYSICAL ACTIVITY INVOLVES SOME RISK OF PHYSICAL INJURY OR DEATH. LOCACIOUS AND ITS CURRENT AND FUTURE PARTNERS DO NOT ASSUME ANY RESPONSIBILITY FOR THE CONTENT OF LOCACIOUS, FOR THE BEHAVIOR OF USERS, OR FOR ANY OTHER RISK OF BODILY INJURY OR DEATH ARISING IN CONNECTION WITH USING LOCACIOUS. LOCACIOUS AND ITS PARTNERS ARE NOT RESPONSIBLE FOR ENSURING ACCESS TO THE LOCATIONS WHERE LOCACIOUS IS USED. USERS PARTICIPATE IN LOCACIOUS AT THEIR OWN RISK.

 

UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM LOCACIOUS OR ANY CURRENT OR FUTURE PARTNER ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THE SERVICE OR LOCACIOUS PROPERTY, EVEN IF LOCACIOUS OR SUCH PARTNER HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

 

IN ANY EVENT, THE MAXIMUM AGGREGATE LIABILITY OF LOCACIOUS AND ITS CURRENT AND FUTURE PARTNERS FOR ANY AND ALL DAMAGES ARISING FROM THE SERVICES OR THE LOCACIOUS PROPERTY SHALL BE A REFUND OF THE AMOUNT PAID BY YOU TO LOCACIOUS, IF ANY.

 

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

 

11.  Indemnity.

 

User shall defend, indemnify and hold harmless Locacious against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys’ fees arising in connection with User’s use of Locacious, participation in Locacious, or User’s breach of any provision of this Agreement, including, without limitation, any claim by any participant in any Locacious challenge designed by User, or any claim by any non-participant third party who suffers any injury in connection with the playing of Locacious by Locacious participants.

 

Locacious reserves the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to provide indemnification hereunder. You will cooperate with Locacious with respect to such defense and settlement.

 

12.  Privacy.

 

The information that Locacious collects from you through technical means in connection with your download, installation or use of the Service will be collected, stored, used and shared by Locacious in accordance with the Loacious Privacy Policy.. The Locacious Privacy Policy, as may be modified from time to time in Locacious’ sole discretion, is expressly incorporated herein by this reference and made part of this Agreement.

 

13.  Applicable Law and Jurisdiction; Compliance.

 

You and Locacious agree that all matters arising from or relating to the use and operation of the Service will be governed by the substantive laws of the State of New York, Westchester County, without regard to its conflicts of laws principles. You agree that all claims you may have arising from or relating to the operation, use or other exploitation of the Services will be heard and resolved in the federal and state courts located in Pelham, New York. You consent to the personal jurisdiction of such courts over you, stipulate to the fairness and convenience of proceeding in such courts, and covenant not to assert any object to proceeding in such courts. If you choose to gain access to the Service from locations other than New York, you will be responsible for compliance with all local laws of any such other location, and in no event will you use the Service or Site Content in violation of U.S. export laws or regulations.

 

14.  Modifications to the Service; Termination.

Updates, enhancements and upgrades to the Software may be made available to you automatically. Locacious shall have the right at any time to disable, modify, or discontinue, temporarily or permanently, the Service (or any part thereof), with or without notice. Without limiting the foregoing, Locacious may terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your account.

15.  NO SUPPORT.

 

LOCACIOUS HAS NO OBLIGATION TO PROVIDE YOU WITH SUPPORT, MAINTENANCE, UPGRADES, MODIFICATIONS OR NEW RELEASES WITH RESPECT TO THE SOFTWARE.

 

16.  Miscellaneous Provisions.

 

No delay or omission by Locacious in exercising any of its rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by Locacious of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained. As used in this Agreement, "including" means "including but not limited to" and the term "partner" is used solely to denote another entity with whom Locacious has a sponsorship or marketing agreement, not a participant in a legal partnership with a view to conducting a business enterprise in which participants share profits and losses. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between you and Locacious regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. You shall not assign or transfer this Agreement or any right or obligation hereunder to any third party. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a "signing" for all purposes.

 

a.       General Provisions. If any part of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, including, without limitation, any of the warranty disclaimers or liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in full force and effect. If no enforceable provision can be substituted for any such invalid or unenforceable provision, then that provision shall be deemed severable from the Agreement and shall not affect the validity and enforceability of any remaining provisions in this Agreement. You may not assign any rights or obligations under this Agreement. This Agreement will be binding upon and will inure to the benefit of Locacious and its successors and assigns. This Agreement, together with any rules, policies, or additional terms associated with the Service, constitutes the entire understanding and agreement of the parties respecting the subject matter of this Agreement.

 

b.      Changes to this Agreement. From time to time, Locacious may change this Agreement. If Locacious changes this Agreement, Locacious will inform you by posting the revised Agreement on the Site. Those changes will go into effect on the Revision Date shown in the revised Agreement. By continuing to use our Site or Service, you agree to the revised Agreement.

 

BY USING THE SERVICE, YOU ACKNOWLEDGE THAT (a) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (b) YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, AND (c) YOUR OBLIGATIONS UNDER THIS AGREEMENT ARE BINDING AND ENFORCEABLE.