Terms of Service

Locaid Terms of Service

Last updated May 17, 2013

 

THESE LOCAID TERMS OF SERVICE (THESE “TERMS”) GOVERN YOUR USE OF THE LOCAID (“LOCAID,” “WE,” “US or “OUR”, WHICH INCLUDES ANY SUCCESSORS OR ASSIGNS OF LOCAID) SERVICES AND/OR LOCAID API (EACH AS DEFINED BELOW).

 

THE TERMS “YOU”, “YOUR”, “USER”, OR “USERS” REFER TO ANYONE USING THE SERVICES AND/OR API FOR ANY REASON. BY ACCEPTING THIS AGREEMENT, EITHER BY (i) CLICKING A BOX INDICATING YOUR ACCEPTANCE; (ii) SIGNING THIS AGREEMENT; (iii) USING THE API; OR (iv) EXECUTING AN ORDER FORM (“ORDER FORM”) OR THIRD PARTY AGREEMENT THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND THE TERMS OF THE LOCAID PRIVACY POLICY AVAILABLE AT http://www.loc-aid.com/privacy-policy (the “PRIVACY POLICY”). 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.

 

These Terms were last updated on May 7, 2012. Locaid may amend or modify these Terms at any time and will post the updated Terms and a notice of the changes on the Locaid website http://www.loc-aid.com. Your continued use of the Service or API after any such changes have been posted constitutes your agreement to the terms and conditions of the updated Terms, even if you have not reviewed the changes.

TABLE OF CONTENTS

  1. Definitions
  2. Description of Services
  3. Free Trial and Purchased Services/Fees
  4. Use of the Services
  5. Locaider™ App Terms and Conditions
  6. Third-Party Providers
  7. Proprietary Rights
  8. Confidentiality
  9. Warranties, Disclaimers and Limitations on Liability
  10. Indemnification
  11. Term and Termination
  12. Governing Law and Jurisdiction
  13. General Provisions

1. DEFINITIONS

Following are definitions for certain capitalized terms used in these Terms. Other capitalized terms are defined in the body of these Terms.

 

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 Location Information through the Services. For the avoidance of doubt, the definition of API or Locaid API shall not include Third Party Products.

 

1.2. “Application” means a software application(s) that depend upon or utilize Location Information delivered by Locaid. Also referred to as “App.”

 

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 Application. A Class IS also identifies that an Application has been approved for use by an applicable Wireless Service Provider..

 

1.5. “End User Data” means an App 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 Locaid and used within the Services in connection with App End Users’ use of Your Application. End User Data does not include data provided directly to You by App End Users or data gathered by You through an App End Users’ use of Your Application(s).

 

1.6. "Location Information" means the approximate location of a device as provided by one or several sources including a WSP network platform, a third-party database, an application loaded on the device, and others, in response to a Location Query, including the latitude/longitude, address, zip code, or position relative to a defined boundary or geo-fence.

 

1.7. “Location Query” means electronic requests for Location Information made by You or Your Application via the Locaid API.

 

1.8. “Services” means the location-enabling services provided by Locaid, which include but are not limited to Location Queries. Services may also include geo-fencing, location compliance, geo-address and other services offered by Locaid to You as specified in an Order Form that you submit to Locaid that Locaid accepts.

 

1.9. “Site” means, collectively, Locaid’s website at http://www.loc-aid.com, and Locaid’s application developer website at http://developer.loc-aid.com and Locaid product websites (such as Locaid Instant Locate and Locaid Mobile Monitor)...

 

1.10. “Third Party Products” means those various additional products or services which may be sold or licensed by Locaid to You from time to time as mutually agreed in order to enhance the functionality of the API or Services.

 

1.11. “Wireless Service Provider” or "WSP" means a wireless telecommunications service provider with whom Locaid has contracted directly or indirectly and which has agreed to provide WSP Customer Location Information to Locaid for use in connection with the Services.

 

1.12. "WSP Customer" means a person or entity that purchases wireless services from a wireless service provider, such as a carrier.

 

1.13 – Locaider™ is the services application provided by Locaid and made available from third-party sites such as the Apple App Store, which provides aggregate location information collected from a variety of sources as a service.

2. DESCRIPTION OF SERVICES

Locaid provides a suite of location data and services, including a cross-carrier gateway API and application service, that allows authorized users to access Location Information and other data from Locaid sources such as Wireless Service Providers and third-party database providers. Users may design and build device applications and services that make use of the data collected by the Services and provided via the Locaid API, and the Locaider™ app.

3. FREE TRIAL AND PURCHASED SERVICES/FEES

3.1. Free Trial. If You are using any of the Services and/or API on a trial basis, We will make the applicable Services and the API available to You free of charge for a period (the “Trial Period”) beginning upon issuance of a trial Class ID, until the earlier of (a) the end of the free trial period for the applicable Service and expiration of the trial Class ID, or (b) the start date indicated on the applicable Order Form for the same Services subsequently purchased by You. Additional trial terms and conditions for the Services may appear on the free trial registration web page. Any such additional terms and conditions are incorporated into these Terms by reference and are legally binding on You if you use the applicable Services.

 

NOTWITHSTANDING SECTION 8 (WARRANTIES, DISCLAIMERS, AND LIMITATIONS ON LIABILITY), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.

 

Please review the Locaid API Manual [located at http://developer.loc-aid.com] 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.

 

3.2. Purchased Services and Fees. If you have purchased Services via an Order Form or other agreement we shall make the Services and the API available to You pursuant to these Terms and the Order Form(s) and/or other agreement, as applicable. You agree to pay, as applicable, the setup, monthly fees and any additional fees specified in the Order Form(s). Locaid will invoice You monthly and You agree to pay all amounts within 30 days of the invoice date. Any amounts due that are not received by the date due will be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. You will pay the amounts due without deducting any taxes. You are responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable, other than taxes based on Locaid’s income.

 

Locaid may change its fees and payment policies for the API and/or Services from time to time for any reason, including but not limited to changes in the amount of fees charged to Locaid by third party vendors and service providers. Locaid shall provide You with 30 days notice before any such fee changes are effective.

 

You agree that Your purchases of any Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public or private comments made by Us regarding future functionality or features.

4. USE OF THE SERVICES

4.1 Our License to You. Subject to Your compliance with these Terms, including, without limitation, Your payment of all applicable fees, Locaid hereby grants You a limited, revocable, non-transferable non-exclusive, non-sublicensable license (a) to use the API to access the Location Information collected by the Services, solely as necessary to use such Location Information in your Applications; and (b) to access and use the Location Information You receive from the API in Your Applications. You will not make the API and/or Services available for timesharing, application service provider or service bureau use.

 

4.2. License from You. By accessing and using the API, You grant to Locaid a limited, irrevocable, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, and distribute the End User Data solely to enable Locaid to provide and improve the Services.

 

4.3. Service Availability. The API and/or any or all of the Services may be unavailable at certain times, including during any unanticipated or unscheduled downtime or unavailability or as a result of system failures or force majeure events. Locaid will use commercially reasonable efforts to provide information regarding any such interruptions and the restoration of access to the API and Services following any such interruption, including by information posted on the Site or sent to Your registered e-mail address.

 

Locaid may temporarily suspend Your access to the API and/or Services if Locaid reasonably determines that: (a) there is a threat or attack on the site hosting the API (including a denial of service attack) or other event that may create a risk to the API, Services, You or any other user of the API or Services; (b) Your use of the API or Services disrupts or poses a security risk to the API, Services or any other user of the API or Services, may harm Locaid’s systems or any other user of the API or Services, or may subject Locaid or any third party to liability; (c) You are using the API and/or Services for fraudulent or illegal activities; (d) subject to applicable law, You have ceased to continue Your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (e) You are using the API and/or Services in breach of these Terms; (f) You are in default of Your payment obligations hereunder; or (g) there is an unusual spike or increase in Your use of the API or Services (collectively, "Service Suspensions"). You understand that many of the reasons for suspension listed above are imposed on us by third party service providers, are subject to change without notice, and may result in Your access to the API and/or Services being suspended as a result of the actions of other users. Locaid will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to You (including notices posted on the Site or sent to Your registered e-mail address) and to provide updates regarding resumption of Your access to the API and/or Services following any Service Suspension. Locaid will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur as a result of any Service Suspension.

 

4.4. Your Responsibilities. You shall (i) be responsible for your compliance with these Terms, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Application, (iii) 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 applicable laws and government regulations, the Locaid Privacy Policy, and the Privacy Compliance rules described in Section 4.8.

 

4.5. Restrictions. You shall not and shall not permit any third party to (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 any viruses, trojan horses, backdoors or similar types of code designed to disrupt or interrupt the Services or use of or access to the Services, (d) interfere with or disrupt the integrity or performance of the Services or any transaction being conducted through the API, or any other person's use of the Services, (e) attempt to gain unauthorized access to the Services or their related systems or networks; (f) interfere with or disrupt the servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (g) attempt to disable or circumvent any security mechanisms used by Locaid or otherwise attempt to gain unauthorized access to any portion or feature of the API, Services, or any other systems or networks connected to the Services, or to any Locaid server, by hacking, password "mining", or any other illegal means; (h) use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Services; (i) track or seek to trace any information on any other person who uses the API or Services; (j) forge headers or otherwise manipulate identifiers in order to disguise Your identity, or the origin of any message or other communication You send to Locaid in connection with Your use of the API and/or Services; (k) pretend that You are or represent someone else, or impersonate any other person; (l) use the API or Services for any illegal purpose, for soliciting the performance of any illegal activity, or as otherwise prohibited by these Terms or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data; or (m) access or use the API or Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

 

4.6. 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.

 

4.7. Usage Limitations. Services may be subject to other limitations, such as, for purposes of example, monthly limits on the number of Location Queries Your Application(s) may make and the number of calls Your Application(s) is/are permitted to make against the API. Locaid will provide You with advance notice of any changes to Your usage limitations.

 

4.8. Privacy Compliance. You agree at all times to comply with 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 Privacy Policy and all privacy guidelines provided to You directly or via the Site; the Privacy Policies and content standards of the Wireless Service Providers from which You request subscriber location data; applicable privacy, marketing, or advertising guidelines issued by the Mobile Marketing Association (MMA); and the CTIA Best Practices and Guidelines for Location-Based Services. The current locations for WSP, CTIA, and MMA guidelines are listed below.
AT&T: http://www.att.com/privacy
Cricket http:///w.cricket.com/privacy
Sprint: http://www.sprint.com/privacy
T-Mobile: http://www.t-mobile.com/privacy
VerizonWireless: http://www.verizon.com/privacy
Bell Mobility: http://bell.ca/privacy
Rogers: http://www.rogers.com/privacy
TELUS: http://www.telus.com/privacy
CTIA: http://www.ctia.org/business_resources/wic/index.cfm/AID/11300
MMA: http://www.mmaglobal.com/bestpractices.pdf

 

4.9. Privacy Notifications. You agree to maintain a clear, comprehensive and easily accessible privacy policy for App End Users with terms at least as protective of End User Data as the Privacy Policy. You must also monitor the use of Your Applications for any activity that violates the laws, policies and guidelines set forth in Section 4.5 above, including any fraudulent, inappropriate or potentially harmful behavior, and promptly restrict any offending App End Users from further use of the Application. You must also provide a resource for users to report abuse of the Application or violation of Your privacy policy.

 

4.10. Opt-in Consent. You agree to obtain affirmative consent from each App End User for the access, collection, use, copying, storage, and disclosure to third parties of Location Information. Each App End User’s consent must be obtained in a manner such that the consent is effective, valid, and specific to the purpose of your Application. Consent must be obtained for each App End User before submitting a Location Query for that user. You will ensure that each App End User may immediately revoke consent, through easy to use privacy settings or other readily available mechanisms, to the access, collection, use, copying, storage, and disclosure to third parties of Location Information. If consent is withdrawn, your Application may not access, collect, use, copy, store or disclose to third parties Location Information or perform any other actions for which App End User consent has been denied or withdrawn.

 

4.11. Record Retention. You agree to maintain records of any notice, consent and revocation for as long as your Application is in use, plus an additional five (5) years. Locaid can request this information at any time and You shall provide it within seven (7) business days of request.

 

4.12. Lawful and Intended Purpose. You agree to use the API and Services only for purposes that are legal and in accordance with these Terms and any applicable Locaid policies or guidelines. 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) use the Services for any illegal or unauthorized purpose; 2) request Location Information for any wireless subscriber other than as authorized by the subscriber or account holder; 3) circumvent or modify any keys or other security mechanisms employed by Locaid or the API; 4) impersonate any person or obtain access to the Location Information without authorization; 5) enable any person to personally identify any App End User of Your Application except with the App End User’s express written consent; or 6) 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.

 

4.13. 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.

 

4.14. 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 any Wireless 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 Your license to use and access to the API and Services upon notice to You.

5. LOCAIDER™ APP TERMS AND CONDITIONS

5.1 The Locaider™ app, available for download from various online app stores (compatible hardware and software required), allows you to share your location with Locaid and authorized Third Party Providers via your devices, upon acceptance of requests from those Third Party Providers. You may set your device to automatically notify Locaid and Third Party Products and Services when you leave or arrive at a location. You may turn off the feature by signing out of or uninstalling the Locaider™ app from your device. Location requests will impact battery life of the located device. THE LOCATION-BASED SERVICES OF THIS FEATURE ARE NOT INTENDED OR SUITABLE FOR USE AS AN EMERGENCY LOCATOR SYSTEM.

 

5.2 By activating the Locaider™ app, You acknowledge and agree that information concerning the location of Your device(s) may be disclosed to others as part of the service, and You further, agree to notify any users of Your device(s) concerning this disclosure of location information. You are responsible for anything that happens through Your account. You may use Locaider™ app to request the best available location for the requested device. When You initialize the Locaider™ app for a device included on your account, the Locaider™ app will notify the user of the device via SMS text message that the device may be located by You. Thereafter, the Locaider™ app may send notices to such device informing the user that the device may be located.

 

5.3 Non-continuous updates. The information provided by the Service originates from other users of the Service. Such information is intrinsically fluctuant and may be inaccurate, incomplete or outdated. Locaid does not provide any warranties to such information's credibility or reliability.

 

5.4 Location-based Service. Some features of the Service utilize GPS technology in order to determine your position. These features cannot be provided without utilizing this technology.

 

5.5 The Internet connection is under your responsibility and at your expense. Transmitting and receiving real-time updates to and from the Service, require an online (Wi-Fi or 3G) connection between your cellular device and the Internet. The expenses of such connection are as prescribed by the agreement between you and your communication service provider (such as your cellular company), and according to its applicable terms of payment.

 

5.6 Free Software. The Service utilizes Software for map displays, updates and road information. With respect to some cellular telephone devices running the Software, the Software is a free-software. In such cases you may redistribute the Software or modify it in accordance with the GNU General Public License as published by the Free Software Foundation, whether it is version 2.0 of the license or any later version of your choice. For further information, see the GNU General Public License. The Service, its database, Locaid's trademarks, the design of the maps of the Service and the voice files integrated in the Software – all are not free-software.

 

5.7 Your age. The Service is intended for use by users who are at the legal age permitting to hold a driving license. In any case, accounts of users under the age of 13 years will be cancelled and deleted by Locaid.

 

5.8 Privacyand Consent To Data Collection. You expressly agree that You have no expectation of privacy when using the Locaider app as it relates to Your location. You authorize Locaid, to collect, use, and disclose geographic location and other personal information (including Your name, address, telephone number, account number, equipment identifiers, and Internet Protocol addresses) necessary to enable delivery of the Locaider app service, which may include relevant advertising functions that are incidental and necessary to such delivery (e.g., invoicing). Your location information will be stored only as long as necessary to provide the Locaider app service. The collection, use and disclosure of personal information under this Agreement is governed by Locaid's privacy policy at http://att.com/privacypolicy.

 

 

  1. We will protect your privacy and keep your personal information safe. We use powerful encryption and other security safeguards to protect customer data.
  2. We will not sell your personal information to anyone, for any purpose. Period.
  3. We will fully disclose our privacy policy in plain language, and make our policy easily accessible to you.
  4. We will notify you of revisions to our privacy policy, in advance. No surprises.
  5. You have choices about how Locaid uses your information for marketing purposes. Customers are in control.
  6. We're listening. You can send us questions or feedback on our privacy policy.

 

5.9 Payment
We currently provide our mobile services for free, but please be aware that your carrier's normal rates and fees, such as text messaging fees, will still apply. You agree to pay all fees charged to your wireless account for the Locaider app. Locaid reserves the right to change the fees for the Locaider app at any time, upon prior notice to you. If you fail to pay the charges for the Locaider app when due, Locaid reserves the right to pursue any and all legal remedies to collect the amounts owed by you.

 

5.10 Ownership
The Locaider app, including any data, materials, technology, software or other materials that comprise it, is protected by copyright, trade secret and other intellectual property laws and treaties and all title and intellectual property rights in and to such are owned by and will remain the exclusive property of Locaid, its licensors and/or suppliers. All rights not expressly granted herein are reserved.

 

5.11Grant of License
Provided You comply with all terms and conditions of this Agreement, You are granted a revocable, limited, non-transferable and non-exclusive license to install and use the software necessary to access and use the Locaider app on Your mobile device, such as mobile phones, personal digital assistants or other digital electronic devices, in the United States. You agree that the Locaider app is made available solely for your personal and non-commercial use. Unless otherwise specified herein or expressly agreed to in writing by Locaid, you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, lease or sell any information, software, products or services obtained from the Locaider app. All rights in the Locaider app not expressly granted under this Agreement are reserved to Locaid.

 

5.12 Termination.
Locaid may terminate your access to all or any part of the Service and/or Add-to Link 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 membership. If you wish to terminate your account, you may do so by following the instructions on the Site. Any fees paid hereunder are non-refundable. All provisions of these Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

 

5.13 Restrictions
You may not: (a) use the Locaider app in a manner inconsistent with or in violation of this Agreement; (b) reverse engineer, decompile, or disassemble any software program underlying the Locaid service ("Program"), in whole or part; except as expressly permitted by mandatory law; (d) remove or alter any copyright notices, proprietary information notices or restricted rights notices on any maps or other information provided as part of the Locaider app; (e) modify, translate, adapt, arrange, or create derivative works based on the Programs, in whole or part, for any purpose; (f) export the technology underlying the Programs in violation of applicable export control laws; (g) attempt to or actually override any security component of or related to the Locaider app; (h) interfere with, overload, "flood," "crash" or disrupt the Locaider app, which may include but is in no way limited to, submitting, in any manner (i.e. manual or automated), an unreasonable number of location requests.

 

5.14 LIMITATION OF LIABILITY
IN NO EVENT SHALL LOCAID/ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS OR REVENUES, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE DATA OR ANY OTHER PECUNIARY LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE LOCAIDER OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IF LOCAID/ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF LOCAID/ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE LOCAIDER APP. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

 

 

5.15 TOS> ALL LIABILITY OF LOCAID, ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS HOWSOEVER ARISING FOR ANY LOSS SUFFERED AS A RESULT OF YOUR USE THE SITE, SERVICE, CONTENT, USER SUBMISSIONS OR ADD-TO LINK IS EXPRESSLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW, SAVE THAT, IF A COURT OF COMPETENT JURISDICTION DETERMINES THAT LIABILITY OF LOCAID, ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS (AS APPLICABLE) HAS ARISEN, THE TOTAL OF SUCH LIABILITY SHALL BE LIMITED IN AGGREGATE TO ONE HUNDRED US DOLLARS ($100).

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LOCAID, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY OR OTHERWISE (AND WHETHER OR NOT FOURSQUARE, ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS HAD PRIOR KNOWLEDGE OF THE CIRCUMSTANCES GIVING RISE TO SUCH LOSS OR DAMAGE) WITH RESPECT TO THE SITE, SERVICE, CONTENT, USER SUBMISSIONS OR ADD-TO LINK FOR:

 

  1. INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES;
  2. LOSS OF ACTUAL OR ANTICIPATED PROFITS;
  3. LOSS OF REVENUE;
  4. LOSS OF GOODWILL;
  5. LOSS OF DATA;
  6. LOSS OF ANTICIPATED SAVINGS;
  7. WASTED EXPENDITURE; OR
  8. COST OF PROCUREMENT OF SUBSTITUE GOODS OR SERVICES.

 

NOTHING IN THESE TERMS OF USE SHALL BE DEEMED TO EXCLUDE OR LIMIT YOUR LIABILITY IN RESPECT OF ANY INDEMNITY GIVEN BY YOU UNDER THESE TERMS OF USE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, LOCAID'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. SOLELY IN RESPECT OF USERS LOCATED IN EUROPEAN ECONOMIC AREA (EEA) AND/OR AUSTRALIA, NOTHING IN THESE TERMS OF USE SHALL BE DEEMED TO EXCLUDE OR LIMIT OUR OR YOUR LIABILITY (AS APPLICABLE) IN RESPECT OF:

 

  • DEATH OR PERSONAL INJURY ARISING AS A RESULT OF OUR OR YOUR NEGLIGENCE (AS APPLICABLE);
  • FRAUD (INCLUDING FRAUDULENT MISREPRESENTATION), THEFT OR OTHER CRIMINAL ACTIVITY; OR

ANY BREACH OF ANY OBLIGATIONS IMPLIED BY SECTION 12 OF THE SALE OF GOODS ACT 1979 OR SECTION 2 OF THE SUPPLY OF GOODS AND SERVICES ACT 1982.

 

 

5.16 Indemnification
As a condition of Your use of the Locaider app and with respect to third-party claims, You agree to indemnify, defend, and hold harmless Locaid, its parent, affiliates, subsidiaries, and its and their respective officers, directors, employees, agents, contractors, suppliers, successors, and assigns from and against any judgments, claims, actions, losses, damages, liabilities, costs, or expenses (including, but not limited to, reasonable attorneys' fees and legal expenses) of any kind arising from Your use of the Locaider app or related software, or from or attributable to any breach by You of Your obligations established herein or any privacy, employee, or consumer protection right that is implicated herein and by the Locaider app. All indemnification duties shall continue in effect even after, and notwithstanding, any subsequent revocation of consent or the expiration or termination of your customer relationship with Locaid. Locaid reserves the right, at your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify us, and You agree to cooperate with our defense of these claims.

 

5.17 Notices
By using the Locaider app, you consent to receive all communications, including notices, agreements, legally required disclosures or other information in connection with the Locaider app (collectively, "Notices") in electronic format. Locaid may provide such Notices by posting them on Locaid's, by sending a free text message to your wireless device, or by downloading such Notices to your wireless device. If you desire to withdraw your consent to receive Notices electronically, you must discontinue your use of the Locaider app.

6. THIRD-PARTY PROVIDERS

6.1. Acquisition of Third-Party Products and Services. We may offer Third Party Products for sale or license as designated on Order Forms. Such Third Party Products, which may include open source software, shall not be: (i) used except in conjunction with the applicable Services; or (ii) modified by You or any of Your designees in any way unless such activities are expressly permitted pursuant to the terms of the relevant agreement governing such Third Party Product(s). Except as expressly set forth in these Terms, Third Party Products are provided on an “as-is” basis at the sole risk of User. Notwithstanding any language to the contrary in these Terms, Locaid makes no express or implied warranties of any kind, including, without limitation, any warranties or conditions of title, non-infringement, merchantability or fitness for a particular purpose, in relation to Third Party Products provided to You pursuant to any Order Form and shall not be liable for any damages regarding the use or operation of the Third Party Products. Any and all express or implied warranties, if any, arising from the license of Third Party Products shall be those warranties running from the third party manufacturer or licensor to You. You are solely responsible for determining the appropriateness of using and distributing any Third Party Products and assume all risks associated therewith, including but not limited to the risks and costs of program errors, compliance with applicable laws, damage to or loss of data, programs or equipment, and unavailability or interruption of operations. You agree to comply with the terms of any license agreements that apply to any Third Party Products and with any instructions for use of the Third Party Products provided by the applicable third party manufacturer or licensor. All shipping and transportation costs for Third Party Products, per the Order Form, shall be Your sole responsibility.

 

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

 

6.3. Google Services. Service features that interoperate with services provided by Google Inc. (“Google”) depend on the continuing availability of those services and the Google application programming interface. You understand and agree that if Google ceases to make Google’s application programming interface or services available or, in Locaid’s reasonable discretion, ceases to make them available on reasonable terms, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.

7. PROPRIETARY RIGHTS

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

 

7.2. Suggestions. If You send or transmit any communications to Us by mail, electronic mail, telephone, other otherwise (“Feedback”) suggesting or recommending changes to the API and/or Services, You hereby assign all right, title and interest in and to that Feedback to Locaid and Locaid will be free to use such Feedback in connection with or incorporate it into the API and/or Services without any compensation to You.

8. CONFIDENTIALITY

8.1. 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. Confidential Information of each party shall include the terms and conditions of 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.

 

8.2. 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 these Terms, 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 these Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

 

8.3. 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.

9. WARRANTIES, DISCLAIMERS AND LIMITATIONS ON LIABILITY

9.1. Our Warranties. We warrant that (i) We have the legal power to enter into these Terms, and (ii) the Services shall perform materially in accordance with the Locaid API Manual. 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. Locaid does not make any representations or guarantees regarding uptime or availability of the API or Services unless specifically identified in the Locaid API Manual.

 

9.2. Your Warranties. You hereby represent and warrant that (i) You have the legal power to enter into these Terms, and (ii) that You are not a competitor of Locaid.

 

9.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, LOCAID MAKES NO WARRANTIES, CLAIMS OR REPRESENTATIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE API, SERVICES OR ANY DOCUMENTATION, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. LOCAID DOES NOT WARRANT THAT THE API OR SERVICES WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE API OR SERVICES WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.

 

9.4. LIMITATION OF LIABILITY. LOCAID WILL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF LOCAID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.

 

Locaid’s total cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to these Terms shall not exceed the lesser of $500,000 or the amount of fees actually paid by You to Locaid during the one year period immediately preceding the date of the event giving rise to Locaid’s liability.

10. INDEMNIFICATION

10.1. 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 solely in the form as delivered by Locaid and solely as used by You in accordance with the terms of this Agreement infringes or misappropriates any third party’s United States patent, copyright or trademark, 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.

 

10.2. Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging or arising out of: (a) Your use of the API or Services; (b) any infringement or alleged infringement by You of a third party’s rights, including claims that the End User Data infringes any third party’s intellectual property, privacy or publicity rights; (c) Your failure to comply with the terms of any license agreement governing the use of any Third Party Product or any instructions for use of a Third Party Product provided by the applicable third party manufacturer or licensor, or (d) Your actual or alleged violation or non-compliance with any applicable law; and You 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 Your expense.

 

10.3. Exclusive Remedy. This Section 9 (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.

11. TERM AND TERMINATION

11.1. Term. These Terms commence on the date You accept them and continue until the end of the Trial Period or, if applicable, the duration of the term (the “Initial Term”) indicated on any Order Form. Except as otherwise specified in an applicable Order Form, the Initial Term shall automatically renew for additional periods (each a “Renewal Term”) equal to the Initial 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 then-current Initial Term or Renewal Term. The pricing during any Renewal Term shall be the same as that during the prior term unless We have given You written notice of a pricing change at least 30 days before the end of such prior term, in which case the pricing change shall be effective upon renewal and thereafter.

 

11.2. Termination for Cause. A party may terminate these Terms for cause: (i) upon 30 days (10 days in the case of a failure to pay amounts due under any Order Form) written notice to the other party of a material breach of these Terms, 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.

 

11.3. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund to You any prepaid fees covering the remainder of the then-current term after the effective date of termination. Upon any termination for cause by Us, You shall pay to Us, before the effective date of termination, any unpaid fees covering the remainder of the then-current term of all Order Forms. 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.

 

11.4. Surviving Provisions. Section 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 8.4 (Limitation of Liability), 9 (Indemnification), 10.3 (Refund or Payment upon Termination), and 12 (General Provisions) shall survive any termination or expiration of these Terms.

12. GOVERNING LAW AND JURISDICTION

12.1. Governance. The laws of the State of Florida will govern these Terms, 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 or 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.

 

12.2. Compliance with Laws. You assume all knowledge of, are responsible for compliance with, and may not use the API or Services in any way that violates applicable state, federal, or international laws, regulations or other government requirements. You further agree 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.

13. GENERAL PROVISIONS

13.1. 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.

 

13.2. Relationship of the Parties. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

 

13.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to these Terms.

 

13.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under these Terms 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.

 

13.5. Severability. If any provision of these Terms 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 these Terms shall remain in effect.

 

13.6. 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 these Terms following Your breach of the Invoicing and Payment terms of any signed Order Form.

 

13.7. 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, Locaid may assign these Terms in their entirety (including all Order Forms), without Your consent, to its affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

 

13.8. Entire Agreement. These Terms, including all exhibits and addenda hereto and all Order Forms, constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter. No modification, amendment, or waiver of any provision of these Terms 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 these Terms 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 any purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of these Terms, and all such terms or conditions shall be null and void.