Terms of Service

Last updated February 1, 2012

THIS LOCATION SERVICES AGREEMENT ("AGREEMENT") GOVERNS YOUR FREE TRIAL OF THE LOCAID SERVICES.

IF YOU PURCHASE OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY (i) CLICKING A BOX INDICATING YOUR ACCEPTANCE; (ii) SIGNING THIS AGREEMENT; OR (iii) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring Us and / or Wireless Service Provider availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on February 1, 2012. It is effective between You and Us as of the date You accept this Agreement.

TABLE OF CONTENTS

1. Definitions
2. Description of Services
3. Free Trial and Purchased Services
4. Use of the Services
5. Third-Party Providers
6. Proprietary Rights
7. Confidentiality
8. Warranties and Disclaimers
9. Mutual Indemnification
10. Term and Termination
11. Governing Law and Jurisdiction
12. General Provisions

1. DEFINITIONS

Following are definitions for certain capitalized terms used in this Agreement. Other capitalized terms are defined in the body of this Agreement.

1.1. "API" or "Locaid API" means the programmatic web API, proprietary location code and associated tools and documentation that allow You to enable Your Application to electronically retrieve the Location Information through Locaid’s location-enabling Services.

1.2. "Application" means one or more software application(s) that depend upon or utilize Location Information delivered by Locaid.

1.3. "App End User" means a person or entity that purchases or uses Your Application, either on a subscription basis or an ad hoc basis.

1.4. "Class ID" means a unique identifier assigned by Locaid to an approved Application.

1.5. "End User Data" means an App End User’s or End User’s identity, phone number, email address, wireless carrier account information, billing or credit information, the type of wireless device, Location Information, and any other personally identifying information captured by and used within Locaid’s platform to operate Your Application. End User Data does not mean data provided directly to You by End Users or data gathered by You as a result of use of Your Application by the End User.

1.6. "Location Information" means the approximate location of a WSP End User’s mobile device as provided by a WSP network platform in response to a Location Query.

1.7."Services" include but are not limited to "Location Queries" which are electronic requests for Location Information made by You via the LocaidAPI. Services also include geo-fencing, geo-address, and other services offered by Locaid to You.

1.8. "Site" means Locaid’swebsite at http://www.loc-aid.com, including the Locaidapplication developer website at http://developer.loc-aid.com.

1.9. "Wireless Service Provider" or "WSP" means a wireless telecommunications service provider with whom Locaid has contracted to obtain Location Information about its WSP End Users in order to provide Location Information to You.

1.10. "WSP End User" means a person or entity that purchases wireless services from a wireless service provider, such as a carrier.

2. DESCRIPTION OF SERVICES

Locaid provides a cross-carrier gateway API and application service that allows authorized third-parties to access network location and other mobile data from wireless service providers. Locaid provides access via the Internet. Users design and build their own mobile device applications and services that make use of the data provided via the Locaid API. Before You gain access to Locaid location data, You must agree to the terms in this LOCATION SERVICES TERMS OF USE ("Agreement"). By using the Site and the API, You (the "User" or alternatively "You") agree to these terms of use, to the Locaid Privacy Policy, and to the Privacy Policiesand content standards dictated by the wireless carriers from which You request subscriber location data.

3. FREE TRIAL AND PURCHASED SERVICES

We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered or are registering to use the applicable Service or (b) the start date of any Services purchased by You, as designated by Your signature on an Order Form. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

NOTWITHSTANDING SECTION 8 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY.

Please review the Locaid API Manual and other information provided during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase. We shall make the Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

4. USE OF THE SERVICES

4.1. Our Responsibilities. We shall: (i) provide to You support for the Services included in monthly access fees , and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 24 hours notice and which We shall schedule to the extent practicable during the hours from 11:00 p.m. Pacific time to 3:00 a.m. Pacific time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or WSP network or Internet service provider failures or delays, and (iii) provide the Services only in accordance with applicable laws and government regulations.

4.2. Your Responsibilities. You shall (i) be responsible for your compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Application, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the Locaid Privacy Policy, Privacy Compliance rules set out in Section 4.5, and applicable laws and government regulations. You shall not (a) sell, resell, rent or lease the Services, (b) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) use the Services to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of the Services, or (e) attempt to gain unauthorized access to the Services or their related systems or networks.

4.3. API Usage. Locaid reserves the right to release subsequent versions of the API and to require You to obtain and use the most recent version. Locaid will provide the API and the Services to You solely for Your use to enable one or more Applications directly to App End Users and not for the benefit of any other person or entity.

4.4. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on the number of location queries during a time period, over-usage exceeding contractual terms, and the number of calls You are permitted to make against Our API. Locaid will provide You with advance notice of any usage limitations.

4.5. Privacy Compliance. At all times, You shall comply with the following, and You are required to stay current regarding all applicable privacy, consumer protection, marketing and data security laws and government guidelines, including (without limitation) all laws that apply to collecting, accessing, using, disclosing and securing End User Data; the Locaid Privacy Policy found at www.loc-aid.com and all privacy guidelines provided to You directly or via the Site; and the CTIA Best Practices and Guidelines for Location-Based Services (currently at http://www.ctia.org/business_resources/wic/index.cfm/AID/11300);

4.6. Privacy Notifications. You must maintain a clear, comprehensive and easily accessible privacy policy for App End Users. You must also monitor the use of Your Applications for any activity that violates the policies in 4.5 above, including any fraudulent, inappropriate or potentially harmful behavior and promptly restrict the offending users from any further use of the application. You must also provide a resource for users to report abuse of the application.

4.7. Lawful and Intended Purpose.  You agree to use the API only for purposes that are legal and in accordance with these Terms and any applicable policies or guidelines provided by Locaid. In addition to the restrictions contained in these Terms, You agree that when using the API, You will not do the following or attempt to do the following: 1) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; 2) use the Services for any illegal or unauthorized purpose; 3) request Location Information for any wireless subscriber other than as authorized by the subscriber or account holder; 4) circumvent or modify any Keys or other security mechanisms employed by Locaid or the API; 5) impersonate any person or obtain access to the Location Information without authorization; 6)enable any person to personally identify any App End User of Your Application except with the App End User’s express consent; 7) imply inaccurate creation, affiliation, sponsorship or endorsement of You or Your application by Locaid or any WSP. You agree that You have no ownership rights as regards any End User Data and agree that You shall not use any such data in any way or for any purpose other than as provided herein.

4.8. Specified Use. You agree to only use a Class ID provided by Locaid for the specific Application approved for that Class ID, and to request a new Class ID for each new Application that will utilize the Locaid gateway.

4.9. Adherence to Content Standards. You represent and warrant that Your Applications do not: (a) facilitate or promote illegal activity, or contain content that is illegal; (b) contain content that is defamatory, obscene, distasteful, racially or ethnically offensive, harassing, or that is discriminatory based upon race, gender, color, creed, age, sexual orientation, or disability; (c) contain sexually suggestive or explicit content; (d) infringe upon or violate any right of any third party; or (e) disparage, defame, or discredit any Wireless Service Provider or their affiliates, or contain content that is derogatory, detrimental, or reflects unfavorably on the name or business reputation of anyWireless Service Provider of their affiliates. Subsections (a) through (e) above are collectively referred to as the "Content Standards." If Locaid determines, in its sole discretion, that You are not complying with or enforcing these Content Standards, Locaid may terminate the Services and Your license to the Locaid Property with notice to You.

5. THIRD-PARTY PROVIDERS

5.1. Acquisition of Third-Party Products and Services. We may offer Third-Party Applications for sale as designated on Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as "certified" or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services.

5.2. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers.

5.3. Google Services. Service features that interoperate with Google services depend on the continuing availability of the Google API and program for use with the Services. If Google Inc. ceases to make the Google API or program available on reasonable terms for the Services, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.

6. PROPRIETARY RIGHTS

6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

6.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

6.3. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

7. CONFIDENTIALITY

7.1. Definition of Confidential Information. As used herein, " Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

7.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

8. WARRANTIES AND DISCLAIMERS

8.1. Our Warranties. We warrant that (i) the Services shall perform materially in accordance with the Locaid API Manual, and (ii) subject to Section 5.3 (Google Services), the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 10.2 (Termination for Cause) and Section 10.3 (Refund or Payment upon Termination) below.

8.2. Mutual Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement.

8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. MUTUAL INDEMNIFICATION

9.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (" Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.

9.2. Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data or Your use of the Services infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.

9.3. Exclusive Remedy. This Section 9 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.

10. TERM AND TERMINATION

10.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all Order Forms signed in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not sign an Order Form before the end of that period, this Agreement will terminate at the end of the free trial period.Except as otherwise specified in the applicable Order Form, the Initial Term shall automatically renew for additional periods equal to the expiring Order Form term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Order Form term. The pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.

10.2. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

10.3. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms before the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

10.4. Surviving Provisions. Section 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10.3 (Refund or Payment upon Termination), and 12 (General Provisions) shall survive any termination or expiration of this Agreement.

11. GOVERNING LAW AND JURISDICTION

11.1. Governance. Our website is operated and provided in the State of Florida. As such, We are subject to the laws of the State of Florida and such laws will govern this Terms of Use, without giving effect to any choice of law rules. Any action relating to or arising out of these terms shall be filed only in state courts located in Palm Beach County, Florida and federal courts located in Palm Beach County, Florida and You hereby submit and consent to the venue and personal and subject matter jurisdiction of such courts for the purpose of litigating any such action. The failure of either party to enforce any rights shall not constitute a waiver of terms or conditions of these Terms and Conditions of Use.

11.2. Compliance with Laws. User assumes all knowledge of applicable law and is responsible for compliance with any such laws. User may not use the Services in any way that violates applicable state, federal, or international laws, regulations or other government requirements. User further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, or international law or regulation.

12. GENERAL PROVISIONS

12.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.

12.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

12.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

12.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

12.5. Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

12.6. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of the Invoicing and Payment terms of any signed Order Form.

12.7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.8. Entire Agreement.  This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.