TrailGuide End User License Agreement
IMPORTANT: Please read this agreement carefully. By clicking on the "I ACCEPT" button at the end of this document or by installing the Software (as defined below), you agree to the terms and conditions of this agreement (the "Agreement") with Carry the Day, Inc., a California corporation ("Carry the Day").
Grant of License
Conditioned upon compliance with the terms and conditions of this Agreement and the payment of all applicable fees, Carry the Day grants to you a nonexclusive and nontransferable license to use one copy the Trail Guide software and related documentation (collectively, the "Software") for each user license your subscription level allows. Your right to use the Software on the terms and conditions in this Agreement is conditioned upon the payment by you of all applicable fees for the use of the Software. You may install one copy of the Software on, and permit access to it by, a single smart phone or similar mobile device (any such device, a "mobile device"). This license does not imply any rights to future upgrades or updates of the Software. However, if Carry the Day does provide you with any upgrades or updates to the Software, such updates or upgrades shall be subject to the terms and conditions of this Agreement or such agreement, if any, which accompanies such upgrades or updates, and may be subject to additional payments. You may not distribute, transfer, assign, sublicense or make available copies of the Software to others in any form, electronic or otherwise. You may not modify, adapt, translate or create derivative works based upon the Software, or permit third parties to do the same. You may not reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law. The Software is owned by Carry the Day and its licensors, and is protected by U.S. and international copyright laws. You agree to not remove, obscure, or alter Carry the Day's or any third party's copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software.Automatic Communications
The Software includes technology that periodically, if an internet connection is available, contacts the servers of Carry the Day or its affiliates and sends information regarding your installed copy of the Software and your mobile device. Data collected includes information regarding Trail Guide product specifications, registration status, type and model of mobile device, operating system, and product usage patterns, including how often the Software is used. This information may used to notify you of maintenance upgrades, product entitlements, new version releases and additional personalized services and offers. Carry the Day may also match your registration and/or product information to personally identifiable information in order to present you with product notifications, offers and invitations (surveys, beta programs, etc.) tailored to you. Any other use of information is governed and limited by Carry the Day's privacy policy posted at Privacy Policy.Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT WARRANTY OF ANY KIND BY CARRY THE DAY. ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT AND ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PURPOSE, MERCHANTABLE QUALITY, DURABILITY, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE HEREBY EXCLUDED. CARRY THE DAY DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF ANY SERVICE, OR THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD AND/OR USE THE SOFTWARE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SOFTWARE. Some states or other jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. You may also have other rights that vary from state to state and jurisdiction to jurisdiction. Limitation of Liability IN NO EVENT SHALL CARRY THE DAY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, PROBLEMS ASSOCIATED WITH ANY APPLICATIONS USED IN CONJUNCTION WITH THE SOFTWARE, DOWNTIME COSTS, LOSS OF THE USE OF THE SOFTWARE, OR ANY ASSOCIATED PRODUCTS, COST OF SUBSTITUTE GOODS, FACILITIES, OR SERVICES, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO YOUR USE OF THE SOFTWARE) WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE SOFTWARE OR ANY THIRD PARTY SOFTWARE OR SERVICE, EVEN IF CARRY THE DAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION BY YOU INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN. Some states or other jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitations and exclusions may not apply to you. Indemnification You agree to hold harmless and indemnify Carry the Day and its directors, officers, employees, agents, representatives and affiliates from and against all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature, arising from or in any way related to your breach of this Agreement or your use of the Software, including but not limited any claim for libel, slander, defamation or infringement of copyright or other intellectual property or proprietary right with respect to material transmitted by or to you using the Software. U.S. Government Restricted Rights; Export Controls The Software is "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. The Software may be subject to the export control laws of the United States and applicable export and import control laws of other countries. You agree to comply with and use the Software in a manner consistent with such applicable laws.Miscellaneous Provisions
This Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to the conflict of laws provisions of California or your actual state or country of residence. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect. This Agreement constitutes the entire agreement between you and Carry the Day with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of this Agreement will be effective only if in writing and signed by a duly authorized officer of Carry the Day. Carry the Day may assign this Agreement without notice to you. You may not assign this Agreement without the prior written consent of Carry the Day (such consent may be withheld or conditioned in Carry the Day's sole discretion) and any assignment without Carry the Day's prior written consent shall be null and void and of no effect.Termination
Carry the Day may terminate this Agreement and your authorization to use the Software without notice upon any breach by you of this Agreement or failure by you to timely pay any applicable fees. If you wish to terminate this Agreement, you may simply cease using the Software. Upon termination of this Agreement, you will cease all use of the Software and destroy and/or permanently delete all copies of the Software in your possession. The terms and conditions contained in this Agreement that by their sense and context are intended to survive the performance hereof by you or Carry the Day shall so survive the completion of performance, cancellation or termination of this Agreement.By clicking "I ACCEPT", you acknowledge that you have read, understand and agree to be bound by the terms and conditions of this Agreement.