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TERMS OF SERVICE

 

GYPSY GUIDE

by

GPS Tour Guide Inc.

 

LAST UPDATED: 20 April 2017

 

  1. Your Acceptance

 

Welcome to the Gypsy Guide Terms of Service (the “Agreement”). This Agreement is between GPS Tour Guide Inc. (“Gypsy Guide”, “us”, “we” or “our”), the owner and operator of www.gypsyguide.com (the “Site”) and the Gypsy Guide mobile applications (“Apps”), and you (“you” or “your” or “user(s)”), a user of the Site and/or Apps (together, the “Services”). This Agreement governs your use of the Services. This Agreement incorporates by reference the Privacy Policy found at www.gypsyguide.com/privacy-policy/ (the “Policy”).

 

PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN YOU AND GYSPSY GUIDE, AND IS DEEMED ACCEPTED BY YOU EACH TIME THAT YOU USE, ACCESS OR DOWNLOAD ANY OF THE SERVICES. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT USE, ACCESS OR DOWNLOAD ANY OF THE SERVICES.

 

Users of our Services must be fourteen (14) years of age or older, and if under the age of eighteen (18) or the age of majority as that is defined in the applicable jurisdiction, you must use the Services under the supervision, and with the express consent, of your parent or legal guardian. Use of our Services by anyone under the age of fourteen (14) is expressly prohibited.

 

  1. Overview of Services

 

Gypsy Guide offers Apps that allow motor vehicle passengers to experience audio tours while driving through various travel destinations. The Apps are available for download via Google Play and the Apple App Store. Once downloaded, the Apps operate offline and without the use of data.

 

The Site provides informational and promotional resources in connection with the Apps.

 

  1. Use of Content and Software

 

The content contained on the Services, such as text, graphics, images, audio, video and other material, as well as the domain names, taglines, and look-and-feel (collectively, the “Content”), is protected by copyright, trademark and other such intellectual property laws in Canada, the United States and foreign countries, and is owned or controlled by Gypsy Guide or by third parties that have licensed their Content to Gypsy Guide. Unauthorized use of the Content by you may violate copyright, trademark, and other intellectual property laws. Where the Services are configured to enable the download of Content, Gypsy Guide grants you a limited, revocable, non-exclusive license to download one copy of such Content to a single device for your personal, noncommercial use only, provided that you: (a) maintain all copyright and other proprietary notices contained in the original Content; (b) without prior written permission from Gypsy Guide in each instance, not sell, manipulate, modify, reproduce, display, publicly perform, distribute, decompile, reverse engineer, disassemble or otherwise use the Content in any way for any public or commercial purpose, or any purpose outside of the ordinary intended purpose for which such Content was provided to you; (c) do not use the Content in a manner that suggests an association with any of our products, services or brands; and (d) do not otherwise use the Content in a manner that is contrary to this Agreement.

 

The trademarks, logos and service marks (the “Marks”) displayed on the Services, and which may be included with the Content, are owned by Gypsy Guide or third party licensors. Except as expressly contemplated herein, you are prohibited from using such Marks without prior written permission from Gypsy Guide or such applicable third party in each instance.

 

For certainty, Gypsy Guide retains all right, title and interest in and to the Content and the Marks. Your use under limited license of the Content and Marks must strictly comply with the terms of this Agreement.

 

  1. Responsible Use

 

The Services are provided to you at your sole risk and liability.

 

YOU MUST NOT OPERATE THE SERVICES WHILE DRIVING OR OPERATING A MOTOR VEHICLE. YOU MUST NOT USE THE SERVICES IN ANY WAY CONTRARY TO OR INCONSISTENT WITH ANY APPLICABLE LAW, WHICH INCLUDES WITHOUT LIMITATION, DISTRACTED DRIVING LAWS WHICH PROHIBIT THE OPERATION OF ELECTRONIC DEVICES WHILE DRIVING OR OPERATING A MOTOR VEHICLE.

 

In using the Services, you must not:

 

  • reproduce, copy, modify, adapt, exploit for commercial purposes, license, sublicense, distribute, transmit, translate, or create derivative works of, the Services or the Content or any part thereof except as expressly permitted by this Agreement;
  • engage in any activity that is competitive with Gypsy Guide, in our sole discretion;
  • engage in any unlawful or tortious purpose or activity contemplated under applicable law or under this Agreement;
  • use any data mining tools, robots, spiders or similar data gathering or extraction methods;
  • take any action that would damage, harm, or diminish Gypsy Guide’s reputation, goodwill, or public image;
  • distribute virus, malware, spyware, works, or other harmful or malicious files;
  • violate or attempt to violate the security or system integrity of any of the Services, including attempting to probe, scan or test the vulnerability of our system or network, or to breach security or authentication measures without proper authorization;
  • remove, circumvent, disable, damage, or otherwise interfere with security-related features of the Services or elements thereof including without limitation software that is intended to prevent or restrict use or copying of any Content available through the Services;
  • represent or suggest that Gypsy Guide endorses any user, business, product, or service;
  • take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our system infrastructure; or
  • access or use the Services through any means or in any manner that is not provided or authorized in this Agreement.

 

  1. Disclaimers

 

YOU AGREE THAT YOU USE THE SERVICES AT YOUR OWN RISK. TO THE MAXIMUM EXTENT ALLOWABLE AT LAW, THE SERVICES AND THE CONTENT ARE PROVIDED WITHOUT ANY WARRANTIES, GUARANTEES, OR REPRESENTATIONS WHATSOEVER, WHETHER EXPRESS OR IMPLIED, AND ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FORGOING, THE SERVICES AND CONTENT ARE PROVIDED WITHOUT IMPLIED OR EXPRESS WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE CANNOT GUARANTEE THAT THE SERVICES OR CONTENT WILL FUNCTION WITHOUT DEFECT, ERRORS, INTERRUPTION, OR DOWNTIME. BY USING OUR SERVICES AND CONTENT, YOU AGREE THAT GYPSY GUIDE AND ITS OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, AFFILIATES, AND ASSIGNS, ARE NOT LIABLE FOR ANY LOSS, HARM, DAMAGE, COST, OR INJURY SUFFERED (INCLUDING WITHOUT LIMITATION ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES) IN CONNECTION WITH YOUR ACCESSING, DOWNLOADING, USING, OR THE INABILITY TO USE, THE SERVICES OR CONTENT. BY ACCESSING, DOWNLOADING OR USING THE SERVICES AND CONTENT YOU AGREE THAT GYPSY GUIDE IS NOT RESPONSIBLE OR LIABLE FOR YOUR ACTIONS OR JUDGMENTS IN CONNECTION WITH SAME. GYPSY GUIDE IS NOT RESPONSIBLE OR LIABLE FOR THE ACTIONS OR CONTENT OF THIRD PARTIES. YOU ASSUME ANY AND ALL LIABILITY FOR ANY HARM, INJURY, LOSS, COSTS, OR DAMAGES SUFFERED AS A RESULT OF USING THE SERVICES AND IRREVOCABLY RELEASE GYPSY GUIDE FROM SAME.

 

FOR CERTAINTY, GYPSY GUIDE MAKES NO WARRANTIES, REPRESENTATIONS, ENDORSEMENTS, OR GUARANTEES IN CONNECTION WITH THE SERVICES AND THE CONTENT. YOU ARE SOLELY RESPONSIBLE FOR: (A) ALL DECISIONS YOU MAKE IN CONNECTION WITH, ARISING FROM, OR IN ANY WAY RELATING TO YOUR USE OF THE SERVICES AND THE CONTENT; (B) ANY ACTS OR OMMISSIONS YOU TAKE IN THE COURSE OF USING THE SERVICES AND THE CONTENT; (C) ANY RELIANCE YOU PLACE ON THE INFORMATION MADE AVAILABLE THROUGH THE SERVICES AND THE CONTENT; (D) ANY SERVICES YOU OBTAIN IN CONNECTION WITH YOUR USE OF THE SERVICES AND THE CONTENT; OR ANY OTHER MATTER RELATING TO OR ARISING FROM YOUR USE OF THE SERVICES AND THE CONTENT.

 

WITHOUT LIMITING ANY OF THE FOREGOING, IN ANY EVENT, GYPSY GUIDE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM. THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMISSABLE UNDER APPLICABLE LAW.

 

  1. Warnings

 

THE SERVICES MAY PROVIDE INFORMATION RELATING TO, RECOMMENDATIONS IN CONNECTION WITH, AND REFERENCES TO, TOURIST ATTRACTIONS, REST STOPS, HISTORICAL LANDMARKS, COMMERCIAL BUSINESSES OR ANY OTHER POINT OF INTEREST ALONG TRAVEL ROUTES. ALL SUCH CONTENT IS PROVIDED FOR GENERAL INFORMATIONAL PURPOSES ONLY AND IS NOT AN ENDORSEMENT, WARRANTY, VERIFICATION OR GUARANTEE FROM GYPSY GUIDE RELATING TO SAME. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER OR NOT TO PARTICIPATE IN ANY ACTIVITY OR ATTEND OR ENGAGE ANY OF THE LOCATIONS, DESTINATIONS OR ROUTES REFERENCED OR IDENTIFIED THROUGH THE SERVICES. FURTHER, YOU ARE SOLELY RESPONSIBLE FOR DETERMINING HOW TO PARTICIPATE IN ANY SUCH ACTIVITIES IN A SAFE, RESPONSIBLE, APPROPRIATE AND LAWFUL MANNER. YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY OR CONSEQUENCE THAT MAY ARISE AS A RESULT YOUR ENGAGEMENT WITH, PARTICIPATION IN OR ATTENDANCE AT ANY LOCATION, DESTINATION OR ROUTE REFERENCED OR IDENTIFIED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY LIABILITY OR CONSEQUENCE ARISING AS A RESULT OF ANY TRESPASS ON THE PROPERTY OF ANOTHER, BODILY INJURY OR DEATH CAUSED TO YOU OR ANOTHER, PROPERTY DAMAGE EXPERIENCED BY YOU OR ANOTHER OR ANY OTHER HARM OF ANY KIND CAUSED TO YOU OR ANOTHER. THE SERVICES ARE NOT INTENDED TO BE A SUBSTITUTE FOR YOUR OWN REASONED DECISION MAKING. YOU MUST NOT RELY ON THE SERVICES IN ISOLATION FROM YOUR OWN JUDGMENT.

 

GYPSY GUIDE IS UNDER NO OBLIGATION TO REGULARLY UPDATE THE CONTENT, AND AS SUCH, THE CONTENT MAY BE OUT-OF-DATE, INACCURATE OR OBSOLETE. GYPSY GUIDE PROVIDES NO GUARANTEE THAT THE SERVICES WILL PROVIDE YOU WITH YOUR DESIRED RESULTS.

 

YOUR ACCESS, USE AND DOWNLOAD OF THE SERVICES AND THE CONTENT MAY TAKE UP SPACE ON YOUR DEVICE AND MAY INCUR MOBILE DATA CHARGES, AND YOU ARE SOLELY RESPONSIBLE FOR SAME.

 

  1. Indemnity

 

You agree to defend, indemnify, and hold harmless Gypsy Guide and its affiliates, and each of their officers, directors, employees and agents, from and against any and all claims, actions, demands or losses, including without limitation reasonable legal and accounting fees, arising from or in any way relating to your use of the Services or your breach of this Agreement. This indemnification obligation will indefinitely survive termination of this Agreement.

 

  1. Fees

Certain Services may only be accessible or downloadable upon payment of a fee. You understand and agree that Gypsy Guide does not administer the collection and refund of any such fees, and that the applicable third party marketplace governs the terms and conditions applicable to same. Any claim and dispute you may have in connection with such fees must be solely directed to such applicable third party marketplace, and you hereby release Gypsy Guide, and its affiliates, and each of their officers, directors, employees and agents, from any and all claims, actions, demands or losses in connection with same.

 

  1. Reliance

 

You understand and agree that Gypsy Guide is making the Services available to you in reliance upon the limitations and exclusions of liability, indemnities, and the disclaimers set forth herein and that the same form an essential basis of the contract between you and us.  You agree that the limitations and exclusions of liability, indemnities, and the disclaimers set forth herein will survive, and continue to apply in the case of a fundamental breach or breaches of, the failure of essential purpose of contract, the failure of any exclusive remedy or the termination of this Agreement.

 

  1. Export Control

 

The United States and certain other countries control and regulate the export of certain products and information. You agree to comply with such restrictions and not to export or re-export any Content to countries or persons prohibited under applicable export control laws. By downloading the Content, you are agreeing that you are not in a country where such export is prohibited and that you are not on the U.S. Department of Commerce’s Denied Persons List Orders or the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons. You are solely responsible for compliance with the applicable laws of your jurisdiction regarding the import, export, or re-export of the Content.

 

  1. Copyright Policy

 

Gypsy Guide respects the intellectual property rights of others. To submit a copyright infringement notification to Gypsy Guide, please submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing the below-specified Designated Agent with the following information in writing:

 

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site or application are covered by a single notification, a representative list of such works at that site or application.
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
  • Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
  • A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

You acknowledge that if you fail to comply with all of the requirements of the preceding paragraph, your DMCA notice may not be valid.

 

Our Designated Agent to Receive Notification of Claimed Copyright Infringement can be reached as follows:

 

By Email: info@gypsyguide.com

By Mail:
DMCA Designated Agent
Attn: Legal Department
GPS Tour Guide Inc.
1166 Alberni Street
Suite 1401
Vancouver, BC
Canada, V6E 3Z3

 

 

  1. General

 

  • Entire Agreement. This Agreement, which incorporates the Policy by reference, both of which are subject to any written and duly executed contract you may have with Gypsy Guide, constitute the entire agreement between you and Gypsy Guide with respect to the subject matter contained herein and there are no other terms, conditions, representations, warranties, or collateral agreements, express or implied.

 

  • Amendments. Gypsy Guide may change or amend this Agreement and the Policy from time to time. You can determine when this Agreement and the Policy was last revised by referring to the “LAST UPDATED” reference expressly provided. Any changes or amendments will become effective upon our posting of the revised Agreement and Policy on our Site. If you have provided us with your email address, we will provide notice to you if these changes are material and, where required by applicable law, we will obtain your consent. In any event, your use of the Services after any changes or amendments to this Agreement or the Policy shall signify your, and be conclusively deemed, acceptance of this Agreement and the Policy, as changed or amended.  The most current version of this Agreement and the Policy will govern your use of the Services.

 

  • Force Majeure. Any delay in the performance by Gypsy Guide of any duties or obligations hereunder will not be considered a breach of this Agreement if such delay is caused by circumstances beyond our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, war, acts of terror, strikes or other labor problems (other than those involving our employees), failures of common carriers (including Internet service providers), denial of service attacks.

 

  • Assignment. Gypsy Guide may assign this Agreement, in whole, or in part, at any time, with or without notice to you. You may not assign your rights or delegate your duties under this Agreement, either in whole or in part, without Gypsy Guide’s prior written consent. This Agreement will enure to the benefit of and be binding upon the parties to this Agreement and their respective successors, heirs and permitted assigns.

 

  • Non-Waiver. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. Waivers will not be effective unless in writing and duly authorized by an officer of Gypsy Guide.

 

  • Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

  • Language. This Agreement was written in the English language. If this Agreement is translated into another language, the English language text shall in any event prevail. Unless the context otherwise requires, words importing the singular include the plural and vice versa, and words importing gender include all genders. Where the word “including” or “includes” is used in this Agreement, it means “including (or includes) without limitation”.

 

  • Governing Law. This Agreement is governed and interpreted pursuant to the laws of the Province of British Columbia, Canada and the federal laws of Canada applicable therein, without regard to principles of conflicts of law that would impose the law of another jurisdiction, and you agree to submit to the exclusive jurisdiction of the courts located within the Province of British Columbia, Canada. The foregoing will not limit Gypsy Guide’s right to enforce this Agreement in any other jurisdiction if reasonably necessary or advisable in our sole discretion.

 

  • Trial Waiver. You agree to waive any right you may have to a trial by jury, or commence or participate in any class action against us related to the Services or this Agreement.