TERMS OF SERVICE
GPS Tour Guide Inc.
LAST UPDATED: October 20th, 2020
BY ACCESSING OR USING OUR SERVICES, OR BY CLICKING A BUTTON INDICATING YOUR CONSENT TO THIS AGREEMENT, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE, ACCESS OR DOWNLOAD ANY OF THE SERVICES.
1.2. Age. Users of our Services must be eighteen (18) or the age of majority as that is defined in the applicable jurisdiction to form a binding contract with Gypsy Guide. If you do not meet this requirement you must not use the Services.
1.3. NOTICE OF BINDING ARBITRATION; WAIVER OF CLASS ACTION. THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION IN SECTION 15.10 WHICH PROVIDES THAT YOU WILL RESOLVE ALL DISPUTES THROUGH MANDATORY AND BINDING ARBITRATION, UNLESS YOU OPT OUT THROUGH THE MECHANISM PROVIDED IN THIS SECTION 15.11 OF THIS AGREEMENT OR ARE IN AN PROVINCE, STATE, OR COUNTRY IN WHICH THE COURTS WILL NOT PERMIT YOU TO CONSENT TO BINDING ARBITRATION. THIS MEANS THAT, IN THE EVENT OF A DISPUTE WITH GYPSY GUIDE, YOU WILL NOT BE ABLE TO HAVE THAT DISPUTE RESOLVED BY A JUDGE OR A JURY. ADDITIONALLY, IN SECTION 15.12 OF THIS AGREEMENT YOU WAIVE YOUR RIGHT TO A JURY TRIAL AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS AGAINST GYPSY GUIDE. PLEASE CAREFULLY READ SECTION 15.10, 15.11 AND 15.12.
1.4. Additional Terms. We may supplement this Agreement with additional written terms (“Additional Terms”) relating to specific content, goods, opportunities, or services made available or supplied by us. You will have the opportunity to review these Additional Terms before accepting them. If you reject Additional Terms, certain content, goods, or services may not be available to you. Any Additional Terms will govern to the extent of any conflict or inconsistency with this Agreement.
1.5. Modifications to the Services. The Services, including its functionalities, features, pricing, information, and materials, may be changed, withdrawn or terminated by Gypsy Guide at any time in Gypsy Guide’s sole discretion without notice. We will not be liable if for any reason all or any part of the Services is restricted to users or unavailable at any time or for any period.
1.6. Geographic Limitations. Gypsy Guide does not represent, warrant, covenant, or guarantee that the Services will be available or suitable in any particular jurisdiction.
2. OVERVIEW OF SERVICES
2.1. Services. Through use of your devices’ GPS location information, the Services provide narrated audio tours with stories, local tips, and directions along the route. The Services are made available to you for your personal, non-commercial use only. The Services depend on accurate GPS location positioning to active commentary triggers. If your device lacks GPS quality location positioning, certain features of the Services may not work properly.
2.2. Paid Services. Access to certain services may require a one-time purchase or a recurring payment subscription.
2.3. Access Restrictions. We reserve the right to prevent or suspend your access to the Services if you do not comply with any part of these terms and conditions or any applicable law.
3. REGISTRATION OBLIGATIONS
3.1. Account Registration. To use certain functionalities and features of the Services, you must first complete the registration process to create an account (“Account”) and select and register a unique username and password (collectively, “Credentials”).
3.2. Registration Data. During the registration process, you will provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (such information being the “Registration Data”). You will also maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or complete, or if Gypsy Guide has reasonable grounds to suspect that such information is untrue, inaccurate, not current or complete, Gypsy Guide has the right to suspend or delete your account and refuse any and all current or future use of the Services (or any portion thereof) by you.
3.3. Responsibility for Account. Gypsy Guide may act upon any communication that is given through your Account or by using your Credentials. Gypsy Guide is not required to verify the actual identity or authority of a person using your Account or Credentials, but Gypsy Guide may in its discretion at any time require verification of the identity of a person seeking to access your Account and may deny access to and use of your Account if Gypsy Guide is not satisfied with the verification. If Gypsy Guide, in its discretion, considers your Account or Credentials to be unsecure or to have been used inappropriately, then Gypsy Guide may immediately cancel the Account or Credentials without any notice to you. You may be required to change your Credentials from time to time.
Your Account and Credentials are specific to you and may not be shared with or transferred to any other person. You are solely responsible and liable for maintaining the confidentiality of your Credentials and you will be held responsible and liable for any harm caused by disclosing or resulting from any unauthorized use of your Credentials. You will not permit any other person to use your Account or Credentials, and you will immediately notify Gypsy Guide if you know or suspect that your Account or Credentials have been used by any other person. You shall not use an Account which is not your own. You shall not access your Account from a public or shared computer. You shall logout from your Account at the end of each session.
3.4. Phone Number. By providing Gypsy Guide with your phone number, your consent to receive calls and text-messages (SMS) from Gypsy Guide and regarding the Services. Standard rates apply. Subject to reasonable processing times, you may opt-out of these communications by using the unsubscribe mechanism provided to you.
3.5. Responsibility for Expenses. You are solely responsible and liable for all costs, expenses, and liabilities related to your access, use, and receipt of the Services, including internet costs.
3.6. Device Limitations. Gypsy Guide does not warrant that the Services will work on all devices. You are solely responsible and liable for obtaining and maintaining compatible devices necessary to access and use the Services, as updated from time to time.
3.7. Suspension or Deletion of Account. Gypsy Guide may at any time and from time to time, suspend or delete your Account, and any user name, password, or other identifier used by you, for any or no reason, including for any violation of any provision of this Agreement.
4. USE OF CONTENT AND SOFTWARE
4.1. Reservation of Rights. The Services and Content and all intellectual property rights in the Services and Content are owned by us or our licensors. We and our licensors reserve all our intellectual property rights (which include without limitation all copyright, trademarks, domain names, design rights, database rights, patents and all other intellectual property rights of any kind) whether registered or unregistered anywhere in the world.
4.2. Use of Content and Software. The content contained on the Services, such as text, graphics, images, audio, video and other material (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.
4.3. The App. Subject to and conditional on your compliance with all terms and conditions set forth in this Agreement, Gypsy Guide hereby grants you a revocable, nonexclusive, non-transferable, non-sublicensable, limited license to use, the App on your mobile device for your personal, non-commercial purposes in the manner permitted by this Agreement. The license in the preceding sentence does not include use by any third-party and you shall not permit any such use.
4.4. Third-Party Materials Contained in the App. The App may include software, content, data or other materials, including related documentation, that are owned by persons other than Gypsy Guide (“Third-party Materials”) and that are provided to you on license terms that are in addition to and/or different from those contained in this Agreement (“Thirdparty Licenses”). You are bound by and shall comply with all Thirdparty Licenses. Any breach by you of any Thirdparty License is also a breach of this Agreement.
4.5. Open Source Components. Notwithstanding Section 4.3, you acknowledge that certain components of the App may contain components licensed under “open source” software licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including without limitation, any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format (such component, “Open Source Components”). A list of the Open Source Components and their corresponding open source licenses will be available through the App under the “About Us & Legal” section of our App. To the extent required by the applicable open source licenses covering the Open Source Components, your use of the Open Source Components will be subject and governed by the terms and conditions of the applicable open source licenses. To the extent the terms of licenses applicable to Open Source Components prohibits any of the restrictions in this Agreement with respect to such Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of the license applicable to the Open Source Components require Gypsy Guide to provide you with source code for such Open Source Components, such offer is hereby made, and you may exercise such offer by contacting Gypsy Guide at firstname.lastname@example.org. You hereby confirm that you have received all required license notices for Open Source Components included in your initial download of the App.
4.6. Updates. The App and software made available through the Services may automatically download and install updates from Gypsy Guide or the licensors of the software, from time to time. These updates may include bug fixes, patches, new or improved functions and features, or new versions of the App or software. You consent to receiving such updates and authorize Gypsy Guide or our licensors to deliver these updates to you without any additional notice. Gypsy Guide and its third-party licensors are under no obligation to provide updates. Any updates provided by Gypsy Guide in respect of the App are deemed to be part of the App.
4.7. Restrictions on Software Rights. Copies of the App or other software created or transferred pursuant to this Agreement are licensed, not sold, and you receive no title to or ownership of any copy or of the App or other software itself. Furthermore, you receive no rights to the App or software other than those specifically granted in Section 4.3 to 4.5 above. Without limiting the generality of the foregoing, you shall not use the App in a manner contrary to Section Error! Reference source not found.. Gypsy Guide and its third-party licensors reserve and will retain their respective entire right, title, and interest in and to the App and all intellectual property rights arising out of or relating to the App, except as expressly granted to you under this Agreement.
4.8. Disclaimer of Warranties. Software made available through the Services is warranted only to the extent expressly provided in the terms of this Agreement or, if an end-user license agreement is included with the software, the software’s applicable end user license agreement. We hereby disclaim all other warranties, conditions and other terms (whether express or implied) with regard to such software, including all implied warranties and conditions of satisfactory quality, freedom from defects, merchantability, non-infringement, and fitness for a particular purpose. In no event shall our aggregate liability in respect of any such software exceed the limitations of liability in the applicable end user license agreement, or in all other cases the amount you paid us for the relevant software.
4.9. Export Restrictions. The App and other products licensed or sold under this Agreement may be subject to the export control laws of Canada, United States, and other jurisdictions. You are responsible for ensuring your compliance with such laws. You shall not, and shall not permit any other person to, download, export, re-export, or release, directly or indirectly, the App into any country, jurisdiction, or person to which the download, export, re-export, or release of the App: is prohibited by applicable law. By downloading or using the App, you represent and warrant that you are: (a) not located in, under the control of, or a national or resident of any such country or jurisdiction; and (b) not any such person.
4.10. App Stores. When you download or access the App from a source that is not directly Gypsy Guide (such as the Apple App Store or Google Play Store) (such source, the “App Distributor”), you acknowledge and agree that:
(a) the App Distributor is not a party to this Agreement;
(b) the App Distributor has no responsibility to provide you with any maintenance, support, or updates to the App, except as otherwise agreed in writing by the App Distributor;
(c) the App Distributor has no liability to you for any liabilities, losses, damages, costs, or expenses caused by the App, except as otherwise agreed in writing by the App Distributor; and
4.11. Marks. 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.
5. USE OF THE SERVICES
5.1. Prohibited Conduct. You shall not, and shall not permit any other person to, use the Services, your Account, or any Content except as expressly permitted by this Agreement and, in the case of Third-party Materials, the applicable third-party license agreement governing use of such Third-party Materials (if any). Without limiting the generality of the foregoing, you shall not, except as this Agreement expressly permits:
(a) copy, modify, redistribute, “rip”, record, transfer, rent out, stream, lease, transmit, resell, perform, publicly display, broadcast, make available to the public, or create derivative works or improvements of, or otherwise exploit or commercialize the Services or Content except as expressly permitted by Gypsy Guide;
(b) transfer cached copied of the Content from the device in which the App is installed on to any other device;
(c) access or use the Content through any software or means other than the Services;
(d) use the Services with other persons, products or services, or in connection with any real-time navigation, autonomous vehicle control systems or guided tour
(e) make available any service of the Services or Content to any person, freely or for a fee, except as expressly provided for in this Agreement;
(f) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Content, or any part thereof;
(g) bypass or breach any security device or protection used by the Services or Content;
(h) use the Services for the purposes of competitive analysis of the Services;
(i) use the Services to develop a competing product or service, to build a product or service using similar ideas, features, functions or graphics of the Services, or to copy any ideas, information, features, functions or graphics of the Services;
(j) use the Services to create or augment any other tour-guide service or any other service that is a substitute for or substantially similar with the Services;
(k) introduce or otherwise provide to or through the Services any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
(l) damage or otherwise impede or harm in any manner the Services or Gypsy Guide’s provision of services to any third party, in whole or in part;
(m) remove, delete, alter or obscure any intellectual property or proprietary rights notices from the Services or Content, including copies of them;
(n) access or use the Services or Content in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right, privacy right, or other right of any third party, or that violates any applicable Law;
(o) otherwise access or use the Services or Content beyond the scope of the authorization granted under this Agreement;
(p) use the Services in violation of any Law or to facilitate violation of a Law;
(q) use the Services for a tortious purpose, to facilitate any tortious activity, or to obtain any unlawful property or services, under applicable Law;
(r) use the Services to harass, inconvenience, annoy, cause nuisance, occasion violence on any person, or cause property damage;
(s) threaten, defraud, stalk, or harm any person when using the Services;
(t) use the Services unless doing so is lawful in your jurisdiction;
(u) use or access, or attempt to use or access, any account on the Services which is not your Account;
(v) impersonate any person or entity or falsely state or misrepresent your affiliation with a person or entity;
(w) submit misleading, false, inaccurate, or fraudulent information to the Services;
(x) make any unproven medical or health related claims on or through the Services;
(y) seek medication, supplements, or psychoactive substances through the Services;
(z) take any action that would damage, harm, or diminish Gypsy Guide’s or the Services’ reputation, goodwill, or public image;
(aa) represent or suggest that Gypsy Guide endorses any person, business, product, or service unless Gypsy Guide has separately agreed to do so in writing;
(bb) use scrappers, indexing tools, or other automated tools for the purposes of data mining or surveying on the Services;
(cc) use bots or automated processes on the Services;
(dd) mirror, frame, or link to any part of the Services;
(ee) harvest or otherwise collect, use or disclose personal information about Users, including email addresses, without their prior consent;
(ff) collect, use, or disclose personal information of other users contravention of applicable data protection and privacy laws.
5.2. Responsible Use. WITHOUT LIMITING SECTION 5.1, YOU ARE PROHIBITED FROM USING THE SERVICES WHILE UNDER THE INFLUENCE OF ALCOHOL, CANNABIS, CONTROLLED SUBSTANCES, PSYCHOACTIVE SUBSTANCES, OR IN ANY MANNER THAT MAY DISTRACT YOU FROM THE ROAD OR THAT IS DANGEROUS. 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, AMONG OTHER THINGS, PROHIBIT HOLDING ELECTRONIC DEVICES OR OPERATING ITS FUNCTIONS WHILE DRIVING OR OPERATING A MOTOR VEHICLE. YOU SHALL FAMILIARIZE YOURSELF WITH THE LOCAL LAWS OF THE JURISDICTION IN WHICH YOU USE THE SERVICES.
6. ACCURACY OF INFORMATION AND AVAILABILITY OF THE SERVICES
6.1. Reliance on Content. While we use reasonable efforts to include accurate and up-to-date content and materials on the Services, we and our licensors do not represent, warrant or promise (whether expressly or by implication) that any content or materials are or remain available, accurate, complete and up to date, free from bugs, errors or omissions or fit or suitable for any purpose. We urge you to check the correctness of content and materials available on the Services against primary materials or a second source. Any reliance you may place on the content or materials made available on the Services is at your own risk and we may suspend or terminate operation of the Services at any time at our sole discretion. Content and materials on the Services are provided for your general informational purposes only. Information made available on our Services does not constitute professional advice and should not be relied on for any purposes.
6.2. Availability of Services. We do not represent, warrant or guarantee in any way the Services’ continued availability at all times or uninterrupted use by you of the Services.
7. HYPERLINKS AND THIRD-PARTY SITES
7.2. Third Party Content. The Services may include content provided by third parties, including from other users and third-party licensors. All statements and/or opinions expressed in any such third-party content are solely the opinions and the responsibility and liability of the person providing those materials. Such materials do not necessarily reflect the opinion of Gypsy Guide. Gypsy Guide is not responsible or liable to you or any third party for the content, information, opinions, or accuracy of any third party materials.
8. FEES & PAYMENT
8.1. Prices. All prices, discounts, and promotions posted on the Services or in any promotional materials are subject to change without notice. The price charged for a product or service will be clearly stated on the Services and in any order confirmation email sent to you. Posted prices do not include taxes. All such taxes will be added to your total price. We strive to display accurate price information, however, we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
8.2. 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. You shall promptly pay the price for all Content and Services you purchase through the Services, plus applicable taxes.
8.3. In-App Purchases. Certain purchases you make through the App may be processed through the Google Play, Apple App Store, or other app distribution platform (“Distribution Platform”) from which you initially downloaded the App. The processing of such purchases may be subject to the terms and conditions and privacy policies of the Distribution Platform, as applicable. If you have a payment issue in respect of such purchases, you must contact the Distribution Platform directly to seek resolution.
8.4. Purchases Final. Except as expressly provided in this Agreement, all purchases and payments are final and no returns, replacements, or refunds are permitted. If we accept a return, make a replacement, or process are refund in respect of Content, you may lose access to the Content you received through your initial purchase.
YOU AGREE THAT YOUR USE OF THE SERVICES AND ITS CONTENT IS 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 FOREGOING, 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.
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.
10. LIMITATION OF LIABILITY
10.1. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GYPSY GUIDE OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, AFFILIATES, OR ASSIGNS (GYPSY GUIDE AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, AFFILIATES, AND ASSIGNS, Collectively, the “Company Parties”) BE LIABLE UNDER OR IN RELATION TO THIS AGREEMENT, THE SERVICES, CONTENT, OR THIS AGREEMENT’S OTHER SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE, OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA, OR SYSTEM SECURITY; OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER THE COMPANY PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
APPLICABLE LAW IN SOME JURISDICTIONS MIGHT NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION OF LIABILITY MIGHT NOT APPLY TO YOU IF YOU LIVE IN SUCH A JURISDICTION AND APPLICABLE LAW IN YOUR JURISDICTION DOES NOT ALLOW GYPSY GUIDE TO LIMIT OR EXCLUDE ITS LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH JURISDICTIONS, GYPSY GUIDE’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10.2. DOLLAR CAP. WITHOUT LIMITING SECTION 10.1, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE COMPANY PARTIES UNDER OR IN RELATION TO THIS AGREEMENT, THE SERVICES, CONTENT, OR THIS AGREEMENT’S OTHER SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AGGREGATE OF ANY FEES PAID BY YOU TO GYPSY GUIDE IN THE TWO MONTH PERIOD PRECEDING THE CLAIM (OR IF YOU USED THE SERVICES ON A FREE BASIS, THEN OUR LIABILITY WILL NOT EXCEED $10.00 CAD).
11. ASSUMPTION OF RISK; WARNINGS
11.1. Assumption of Risk. YOU ASSUME ALL RESPONISBILITES FOR: (A) OPERATING A MOTOR VEHICLE WHICH IS AN INHERENTLY RISKY ACTIVITY; AND (B) FOR ANY RISKS ASSOCIATED OR RELATED WITH THE OPERATION OF A MOTOR VEHICLE. YOU ALSO ASSUME RESPONSIBILITY FOR: (C) YOUR OPERATION AND USE OF THE APP WHILE DRIVING A MOTOR VEHICLE. THE APP SHOULD BE PROGRAMMED OR REPROGRAMMED ONLY WHILE YOUR MOTOR VEHICLE IS PARKED AND STATIONARY; (D) EXCERISE YOUR OWN JUDGEMENT, THE APP CONTENT MAY DIFFER FROM ACTUAL CONDITIONS. YOU ARE RESPONSIBLE FOR YOUR OWN CONDUCT AND THE CONSEQUENCES THAT FLOW FROM IT.
11.2. Caution. THE SERVICES MAY PROVIDE INFORMATION RELATING TO, RECOMMENDATIONS IN CONNECTION WITH, AND REFERENCES TO, TOURIST ATTRACTIONS, REST STOPS, LANDMARKS, EXPERIENCES, 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, REPRESENTATION, 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, EXPERIENCES, 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.
12.1. Indemnity by You. 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 losses, damages, cost, expenses (including without limitation reasonable legal and accounting fees), claims, complaints, demands, actions, suits, proceedings, obligations and liabilities (including settlement payments) arising from any third-party claim or action, resulting from, connected with, or relating to: (a) your use of the Services, its materials, Content, or other related products and services, (b) your negligence, misconduct, or breach of this Agreement or (c) injury to or death of any individual, or any loss of or damage to real or tangible personal property caused by your acts or omissions. Notwithstanding the foregoing, Gypsy Guide retains the right to participate in the defense of and settlement negotiations relation to any third party claim, complaint, demand, action, suit or proceeding with counsel of its own selection at its cost and expense. This indemnification obligation will indefinitely survive termination of this Agreement.
13.1. 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.
14. U.S. GOVERNMENT RESTRICTED RIGHTS
14.1. Restricted Rights. The App and any related documentation are deemed to be “Commercial computer Software” and “commercial computer Software documentation” respectively pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display, or disclosure of the App and/or any related documentation by the USE Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.
15.3. Force Majeure. Any delay, failure, or default in the performance by Gypsy Guide of any duties or obligations hereunder will not be considered a breach of this Agreement if such delay, failure, or default is caused by circumstances beyond our reasonable control, including without limitation: (a) acts of war, acts of terror, civil unrest, terrorism, invasion, riots or other acts of civil unrest; (b) hurricanes, earthquakes, pandemic, epidemic, flood, fire, tsunami, solar flare, electro-magnetic pulse, explosions or other acts of God or nature; (c) strikes or other labour disputes; (d) national or regional emergency; (e) passage of Law or any acts of government or public authority, including imposing an embargo, workplace shutdown or staffing restrictions, health order, export or import restriction, quota or other restriction or prohibition, or any complete or partial governmental shutdown;(f) national or regional shortage of adequate power or telecommunications or transportation facilities; or (g) other causes beyond Gypsy Guide’s control.
15.4. 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.
15.5. 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.
15.6. 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.
15.7. Survival. The provisions set forth and any rights or obligations of the parties in this Agreement that, by its nature, should survive termination of this Agreement, will survive any termination of this Agreement: Sections 3.3, 3.5, 4.1, 4.4, 4.7, 4.8, 4.9, 4.10, 4.11, 6, 7, 8.3, 9, 10, 11, 12, 13, 14, and 15.
15.8. 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”.
15.9. 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.
15.10. Arbitration. If the courts in your province, state, or country will not permit you to consent to binding arbitration, then any legal suit, action, or proceeding arising out of or related to this Agreement will be instituted exclusively in the courts of the Province of British Columbia, Canada, and you irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Otherwise, you agree that in the event of any dispute between you and Gypsy Guide arising out of or relating to this Agreement, the Service, the Content or materials, or the relationship between Gypsy Guide and you, that you and Gypsy Guide shall consult and negotiate with each other and, recognizing your mutual interests, attempt to reach a solution satisfactory to both you and Gypsy Guide. If you and Gypsy Guide do not reach settlement within a period of 60 days, then such dispute will be referred to and finally resolved by mandatory and binding arbitration administered by the Vancouver International Arbitration Centre (“VanIAC”) pursuant to its applicable Rules.
The place of arbitration will be Vancouver, British Columbia, Canada. The number of arbitrators will be set to one unless otherwise required by the Rules. The language of the arbitration will be English. The existence and content of the arbitration proceedings, including documents submitted by the parties, correspondence to and from the VanIAC, correspondence to and from the arbitrator, and orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party (except for professional advisors) without the express written consent from the other party unless: (a) (i) the disclosure to the third party is reasonably required in the context of conducting the arbitration proceedings; and (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein; or (b) such disclosure is required by applicable law.
The parties agree that they will not appeal any arbitration decision to any court.
15.11. Opt Out. You may opt out of the above arbitration clause. If you opt out, then neither you nor we will be able to require the other to participate in arbitration for the purposes of resolving any dispute, claim or controversy between you and Gypsy Guide arising out of or relating to this Agreement, the Services, the Content or materials, or the relationship between Gypsy Guide and you. To opt out, you must, within 30 days of accepting this Agreement, deliver to Gypsy Guide a clear written statement indicating that you wish to opt out of the arbitration provisions in this Agreement. The statement must contain: (a) your name; (b) your mailing address; (c) your telephone number; and (d) your email address. The opt-out statement must be delivered to the following address:
GPS Tour Guide Inc.
41-1146 Pacific Blvd
If you opt out of the arbitration clause in the manner provided above, then you irrevocably agree that the courts of British Columbia will have exclusive jurisdiction to settle any dispute, claim, or controversy arising out of or related to this Agreement, the Services, the Content or materials, or the relationship between Gypsy Guide and you.
15.12. Waiver of Class Action and Jury Trial. You hereby agree to waive any right you may have to commence or participate in any class action against Gypsy Guide related to any claim and, where applicable, you also agree to opt out of any class proceedings against Gypsy Guide. Where applicable, if a dispute arises between us and you, you hereby waive any right you may have to participate in a trial by jury with respect to that dispute.