This End User License Agreement (“License”) is an agreement between you and Point Inside, Inc. and its affiliates (“PI”). This License governs your use of software provided by PI and any and all related documentation, and updates and upgrades that replace or supplement the software in any respect and which are not distributed with a separate license (collectively, the “Application”). The Application is licensed to you, not sold.
A. Grant. Through this purchase or use, you are acquiring and PI grants you a personal, limited, non-exclusive and non-transferable license to install and use the Application for your personal, non-commercial use as permitted by and subject to the Usage Rules set forth in Apple’s App Store Terms of Service. Your acquired rights are subject to your compliance with this License. Any commercial use is prohibited. You are expressly prohibited from sub-licensing, renting, leasing, transferring or otherwise distributing the Application or rights to use the Application. The terms of your License shall commence on the date you install or otherwise use the Application and shall end on the earlier of the date you dispose of the Application or PI’s termination of this License.
B. Content. The Application allows you to access and view a variety of content, including but not limited to map images and data, business, promotional and event listings, and other related information provided by PI, its licensors, customers, and users (the “Content”). Additionally, you may choose to access other third party content made available in the Products. You understand and agree to the following: a) Map data and related Content are provided for planning purposes only. You may find that certain conditions, such as construction projects, closures, or other events may cause map display data or directions to differ from actual circumstances. You should exercise judgment in your use of this Content. b) By using the Application, you do not receive any, and PI retains all ownership rights in the Content. You may not use, access or allow others to use or access the Content in any manner not permitted under the Terms, unless you have been specifically permitted to do so by PI or by the owner of that Content, in a separate agreement. (c) Certain Content may be provided under license from third parties, and is subject to copyright and other intellectual property rights owned by or licensed to those third parties. You may be held liable for any unauthorized copying or disclosure of this Content.
C. Restrictions on Use. Unless you have received prior written authorization from PI (or, as applicable, from the provider of particular Content), you must not: (a) access or use the Application or any Content through any technology or means other than those provided in the Application, or through other explicitly authorized means Point Inside may designate (such as through Point Inside Application Programming Interfaces (APIs); (b) make a copy of the Application available on a network where it could be used by multiple users; (c) copy, translate, modify, or make derivative works of the Content or any part thereof; (d) redistribute, sublicense, rent, publish, sell, assign, lease, market, transfer, or otherwise make the Application or Content available to third parties; (e) reverse engineer, decompile or otherwise attempt to extract the source code of the Application or any part thereof, unless this is expressly permitted or required by applicable law; (f) use the Application in a manner that gives you or any other person access to mass downloads or bulk feeds of any Content, including but not limited to numerical latitude or longitude coordinates, imagery, and visible map data; (g) delete, obscure, or in any manner alter any warning, notice (including but not limited to any copyright or other proprietary rights notice), or link that appears in the Application or Content; or (h) use the Application or Content with any products, systems, or applications for or in connection with real time navigation or route guidance; (i) remove or alter PI’s trademarks or logos or legal notices included in the Application or related assets.
D. Reservation of Rights. You have obtained a license to the Application and your rights are subject to this License. Except as expressly licensed to you herein, PI reserves all right, title and interest in the Application (including all images). This license is limited to the intellectual property rights of PI and does not include any rights to other patents or intellectual property. All rights not expressly granted herein are reserved by PI.
E. Your Contributions. In exchange for use of the Application, and to the extent that your contributions through the use of the Application give rise to any copyright interest, you hereby grant PI an exclusive, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to use your contributions in any way and for any purpose in connection with the Application and related goods and services including the rights to reproduce, copy adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your contributions without any further notice or compensation to you of any kind for the whole duration of protection granted by intellectual property rights by applicable laws and international conventions. You hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to PI’s and others’ use and enjoyment of such assets in connection with the Application and related goods and services under applicable law. The license grant to PI, and the above waiver of any applicable moral rights, survives any termination of this License.
F. Access. You must provide at your own expense the equipment, Internet connections or mobile devices and/or service plans to access and use this Application. PI does not guarantee that this Application is available in all geographic locations. You acknowledge that when you use this Application, your wireless carrier may charge you fees for data, messaging, and/or other wireless access. Check with your carrier to see if there are any such fees that apply to you. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS THIS APPLICATION FROM YOUR MOBILE DEVICE.
2. Consent to Use of Data
3. Termination. This license is effective until terminated. Your rights under this License will terminate immediately and automatically without any notice from PI if you fail to comply with any terms and conditions of this License. Termination will not limit any of PI’s other rights or remedies at law or in equity. Sections 1(E) and 3 through 8 of this License shall survive termination or expiration of this License for any reason.
4. Disclaimer of Warranties
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE APPLICATION IS PROVIDED “AS IS” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. PI AND PI’S LICENSORS (COLLECTIVELY “PI” FOR PURPOSES OF THIS SECTION AND SECTION 5) DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PI DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION; THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE APPLICATION WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR THAT ERRORS IN THE APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE PROVIDED BY PI OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF THE CONSUMER, SO SOME OR ALL OR THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
5. Limitation of Liability
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL PI BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS LICENSE OR THE APPLICATION, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT PI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS OR CERTAIN INTENTIONAL OR NEGLIGENT ACTS, OR VIOLATION OF SPECIFIC STATUTES, OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. In no event shall PI’s total liability to you for all damages (except as required by applicable law) exceed the amount actually paid by you for the Application.
6. Limitation of Liability and Disclaimer of Warranties are Material Terms of this License
You agree that the provisions in this License that limit liability are essential terms of this license.
7. Severability and Survival
If any provision of this License is illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this License shall continue in full force and effect.
8. Injunctive Relief
You agree that a breach of this License will cause irreparable injury to PI for which monetary damages would not be an adequate remedy and PI shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security, or proof of damages.
9. Governing Law
You expressly agree that exclusive jurisdiction for any claim or action arising out of or relating to this License and/or your use of the Application shall be the federal or state courts that cover King County, Washington, and you expressly consent to the exercise of personal jurisdiction of such courts.
You agree to abide by U.S. and other applicable export control laws and agree not to transfer the Application to a foreign national, or national destination, which is prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You certify that you are not a person with whom PI is prohibited from transacting business under applicable law.
11. Entire Agreement
This License constitutes the entire agreement between you and PI with respect to the Application and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless made in writing and signed by PI. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder preclude further exercise of any other right hereunder. In the event of a conflict between this License, any applicable purchase, or other terms, the terms of this License shall govern.
Additional Terms Specific to iPhone and iPod Touch Users
Through your use, provided you comply with the terms of this License, you are acquiring, and PI grants you, a personal, limited, non-exclusive and non-transferable license to install and use the PI app on any iPhone or iPod Touch that you own or control, subject to the iTunes App Store terms of service. This license doe NOT entitle you to receive any hardcopy documentation, telephone assistance, support, updates or upgrades in relation to the PI App. You may use the PI App only as long as PI continues to service and make it available. These terms are between you and PI, and not with Apple, Inc. Apple, Inc. will NOT be responsible for any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty disclaimed hereunder. PI (and NOT Apple, Inc.) will be responsible for a) any product warranties, whether express or implied by law (to the extent not effectively disclaimed); b) any claims of you or any third party relating to the PI App or your possession and/or use of the PI App, including without limitation i) product liability claims, ii) any claim that the PI App fails to conform to any applicable legal or regulatory requirement, and iii) claims arising under consumer protection or similar legislation; and c) any third party claim that the PI App or your possession and use of the PI App infringes that third party’s intellectual property rights, as well as the investigation, defense, settlement, and discharge of any such intellectual property infringement claim. Other agreements or terms may govern your use of the iTunes Store or your acquisition or installation of iPhone applications. If these Terms are less restrictive upon you than the terms of those other agreements or terms, the more restrictive provisions shall apply. It is also understood and agreed that Apple, Inc. and PI have no obligation whatever to furnish any maintenance or support services in relation to the PI App. You agree that Apple, Inc., and its subsidiaries are third party beneficiaries hereunder, and that any of them shall have the right to enforce these Terms as a third party beneficiary. You represent and warrant that you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a terrorist supporting country, and that you are not listed on any U.S. government list of prohibited or restricted parties.
Point Inside’s failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches. You understand and agree that, because damages are often difficult to quantify, if it becomes necessary for Point Inside to pursue legal action to enforce these Terms, you will be liable to pay Point Inside the following amounts as liquidated damages, which you accept as reasonable estimates of Point Insides’ damages for the specified breaches of these Terms:
If you aggregate, display, copy, duplicate, reproduce, or otherwise exploit for any purpose any Content, expressly including, but not limited to, reproducing Point Inside map or point of information data, in violation of these Terms, without Point Inside’s express written permission, you agree to pay Point Inside three thousand dollars ($3,000) per violation, per day for each day on which you engage in such conduct.
Otherwise, you agree to pay Point Inside’s actual damages, to the extent such actual damages can be reasonably calculated. Notwithstanding any other provision of these Terms, Point Inside retains the right to seek the remedy of specific performance of any term contained in these Terms, or a preliminary or permanent injunction against the breach of any such term or in aid of the exercise of any power granted in these Terms, or any combination thereof.
In its sole discretion, Point Inside may elect to issue a warning before assessing damages.