SmartTrail License and Services Agreement
This License and Services Agreement (this "Agreement") is made between Boulder Mountainbike Alliance, a Colorado (501(c)4) not-for-profit corporation ("BMA") and you, or, if you represent an entity or other organization, that entity or organization, (in either case, "You"). You are attempting to complete the process to download or install the SmartTrail mobile application ("Software") provided by BMA. BMA is willing to grant You a limited license to download, install, and operate the Software and to access and use certain online services ("Services") and data, information, and content ("Content") through the Software on the condition that You accept and agree to be bound by the terms of this Agreement.
PLEASE CAREFULLY READ THE TERMS OF THIS AGREEMENT. BY CLICKING ON THE LINK TO ACCEPT THIS AGREEMENT (OR BY OTHERWISE DOWNLOADING, INSTALLING, USING, OR ACCESSING THE SOFTWARE, SERVICES, OR CONTENT), YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT AND YOU AGREE (ON YOUR OWN BEHALF AND, IF YOU REPRESENT AN ENTITY OR OTHER ORGANIZATION, ON BEHALF OF THAT ENTITY OR ORGANIZATION AND ANY OTHER INDIVIDUALS WITHIN THAT ENTITY OR ORGANIZATION USING OR ACCESSING THE SOFTWARE OR THE SERVICES OR CONTENT) TO BE BOUND BY THE TERMS OF THIS AGREEMENT AS OF THE DATE ON WHICH YOU FIRST CLICK THE LINK TO ACCEPT THIS AGREEMENT, OR OTHERWISE FIRST DOWNLOAD, INSTALL, USE, OR ACCESS THE SOFTWARE (SUCH DATE, THE "EFFECTIVE DATE"). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, BMA WILL NOT GRANT YOU ACCESS TO THE SOFTWARE OR THE SERVICES OR CONTENT, AND YOU SHOULD DISCONTINUE THE DOWNLOAD OR INSTALLATION PROCESS.
This Agreement consists of the following terms and conditions. Unless otherwise amended as set forth herein, this Agreement will be the complete and exclusive understanding and agreement between the parties governing Your access to and use of the Software, Services, and Content, and will supersede any oral or written proposal, agreement, or other communication between the parties, regarding Your access to and use of the Software, Services, or Content. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties, provided that BMA may modify the Software, Services, or Content at any time with or without notice to You. This Agreement is in the English language only, which language will be controlling in all respects.
1. ELIGIBILITY. You must be at least 13 years old to use the Software and the Services. If You are 13 or older and younger than 18, then You agree to review this Agreement with Your parent or guardian and have Your parent or guardian accept this agreement on Your behalf. If you are a parent or guardian entering this agreement for the benefit of a child age 13 or older, then you agree to accept full responsibility for that child's use of the Software and Services.
2. ACCESS TO THE SOFTWARE. Subject to Your compliance with, and during the term of, this Agreement, BMA grants you a non-exclusive, personal, non-transferable, non-sublicensable, limited license solely to install and operate the Software on a single personal mobile electronic device or smart phone owned or controlled by You (a "PDA") solely for Your own personal, non-commercial purposes to access Services and display Content in accordance with the terms and conditions of this Agreement and any applicable documentation accompanying the Software or otherwise provided to You by BMA. Except as expressly set forth in the previous sentence, You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to the Software, or any intellectual property rights therein or related thereto, and You may not use, modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit or utilize any portion of the Software without the prior written permission of BMA.
3. ACCESS TO THE SERVICES. Subject to Your compliance with, and during the term of, this Agreement, BMA will provide You with the right to access and use the Services through the normal operation of the Software solely for Your own internal, non-commercial purposes in accordance with this Agreement and any applicable documentation accompanying the Software or otherwise provided to You by BMA. Your rights are personal, non-transferable and non-sublicensable and You may access and use the Services only as expressly set forth in the previous sentence.
4. ACCESS TO CONTENT.
4.1 BMA Content. The text, files, images, graphics, illustrations, maps, information, data, audio, video, photographs and other content (collectively, "Content") contained in or available through the Software or Services (such Content, "BMA Content") is protected by applicable intellectual property rights. Unless otherwise noted on the Site, all BMA Content is owned by BMA and its licensors. Subject to and in accordance with the terms of this Agreement, You may access and use the BMA Content, without modification, solely through the normal operation of the Software for Your own internal, non-commercial purposes in accordance with this Agreement. You will use and access all the BMA Content only as expressly set forth in the foregoing sentence. You acknowledge that the BMA Content may require periodic updating through the Services and agree to update all Content prior to use. The BMA Content is provided solely for informational purposes and reliance on the BMA content is purely at your own risk. BMA does not warrant the accuracy or completeness of the BMA Content. You will be solely responsible for YOUR use of and reliance on the BMA Content.
4.2 Provided Content. The Services may provide You with access to forums, bulletin boards, chat rooms, or other opportunities through which You may post, upload, or otherwise provide Content through the Software or Services (such Content, "Provided Content"). You agree not to provide any Provided Content that is: (a) libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (b) an infringement or misappropriation of the intellectual property or other rights of any third party; (c) illegal in any way or that advocates illegal activity; (d) intended to damage, surreptitiously intercept or expropriate the Software, Services, or any other Content; (e) is false, misleading, or inaccurate; or (f) an advertisement or solicitation of funds, goods, or services. BMA will not be responsible or liable for any deletion, correction, destruction, damage, or loss of or to any Provided Content. BMA is under no obligation to review any Provided Content for accuracy or potential liability. You represent and warrant that You own all right, title, and interest in and to any Provided Content, or that You have sufficient rights to grant BMA the rights included in this Agreement. By providing any Provided Content, You grant BMA a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, copy, store, reproduce, modify, display, adapt, publish, translate, create derivative works from, distribute, and display such Provided Content throughout the world in any form, format, media, software, or technology of any kind for any reason. In addition, you waive all moral rights in the Provided Content (or warrant that all moral rights applicable to such content have been waived). You also grant BMA the right to use Your name and Account ID in connection with the reproduction or distribution of any Provided Content.
5. YOUR ACCOUNT. As applicable, You may be permitted to establish an account to access the Services (an "Account"). Each Account and the user identification and password for each Account (the "Account ID") is personal in nature. If You are an individual, each Account ID may be used only by You alone. If You are acting on behalf of an entity or organization, each Account ID may be used only by a single designated individual within Your organization. You will be solely responsible for all use of the Services through Your Account. You will ensure the security and confidentiality of Your Account ID and will notify BMA immediately if any Account ID is lost, stolen or otherwise compromised. You acknowledge that You will be fully responsible for all liabilities and damages incurred through the use of Your Account or under any Account ID (whether lawful or unlawful) and that any transactions completed through any Account or under any Account ID will be deemed to have been lawfully completed by You. In no event will BMA be liable for the foregoing obligations or the failure by You to fulfill such obligations.
6. LIMITATIONS AND RESTRICTIONS ON ACCESS. The Software (and its structure, organization, and source code), all Content, and the structure, selection, coordination and arrangement of the Software, Content, Services, and the software, hardware and other technology used by or on behalf of BMA to provide the Services (the "Technology") are the property of BMA (or its licensors) and are protected by applicable intellectual property laws. Access to the Software, Services, and Content is licensed, not sold, to You for use only under the terms of this Agreement. You may utilize the Software, Services, and Content only as expressly set forth in this Agreement. BMA reserves all rights not expressly granted to You under this Agreement. In particular, You may not, and will not permit any other third party to: (1) modify, adapt, alter, translate, or create derivative works from the Software, Services, or BMA Content; (2) use or merge the Software, Services, or BMA Content, or any component or element thereof, with other software, databases, services or Content not provided by BMA; (3) sublicense, distribute, sell, or otherwise transfer the Software, Services, or Content (or the use thereof) to any third party; (4) use the Software, Services, or Content for service bureau use, or lease, rent or loan the Software or Services (or the use thereof) to any third party; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or structure of the Software or Services; (6) interfere in any manner with the operation of the Software or Services or attempt to gain unauthorized access to the Software, Services, or Content; (7) use the Software or Services to provide false information regarding to any third party; (8) use the Software, Services, or Content for any commercial purposes; (8) use the Software or Services to harass, threaten, or stalk other users (9) use the Software or Services for any purpose that is illegal in any way or that advocates illegal activity; or (10) circumvent, or attempt to circumvent, any electronic protection measures in place to regulate or control access to the Software, Services, or Content. You may not remove, alter or obscure any copyright notice or any other proprietary notice that appears on or in the Software, Services, or Content or on any copies thereof.
7. TERM AND TERMINATION. This Agreement will begin on the Effective Date and will continue until terminated. This Agreement will terminate immediately with or without notice to You if You breach any term of this Agreement. In addition, BMA may terminate this Agreement immediately, for any reason or no reason, with or without notice to You. You may terminate this Agreement by providing written notice of termination to BMA and deleting all copies of the Software and Content in Your possession or control and ceasing all access to the Services. BMA may also suspend Your use of or access to the Services and direct You to cease using the Services or Software at any time with or without notice and with or without cause. Upon any termination of this Agreement, all rights granted to You under this Agreement will cease, any Account You have established will be closed, and You must promptly discontinue all access to and use of the Software, Services, and any Content downloaded or otherwise obtained through the Services. Sections 7, 11, 13, 14, 15, 20, 21 and all disclaimers and limitations of liability will survive termination or expiration of this Agreement for any reason as they apply to the rights granted to BMA and the restrictions placed on You.
8. THIRD PARTY SOFTWARE. The Software may contain or include software code owned or provided by third-party licensors of BMA ("Third-Party Software"). For any Third-Party Software clearly indicated to be subject to the terms of a third party software license (a "Third-Party License"), the terms of the applicable Third-Party License will apply to the Third-Party Software independent of the terms of this Agreement. All other Third-Party Software distributed to You by BMA may be used only under the terms of this Agreement. Nothing in this Agreement limits Your rights under, or grants rights to You that supersede, the terms of any applicable Third-Party License.
9. TRANSACTIONS AND PURCHASES. You may be presented with the opportunity to purchase products and services through the Services. In addition to this Agreement, any purchase made through the Services will be subject to any terms and conditions provided in connection with that purchase. Unless otherwise indicated in connection with the purchase, purchases made by You through the Services cannot be exchanged and are non-refundable. Purchases made through the Services may be subject to service fees or charges which are also non-refundable. All information that You provide in connection with a purchase or other transaction through the Services will be accurate, complete and current. You authorize BMA (or a company chosen to act on behalf of BMA) to charge the credit card, debit card or other payment method provided in connection with any transaction through the Services and will pay all charges incurred in connection with any transaction You initiate (or initiated through Your Account) through the Services.
10. OWNERSHIP. BMA retains all right, title and interest, including, without limitation, all intellectual property rights, in and to the Software, Services, Content, Technology, and any additions, improvements, updates, and modifications thereto. You acknowledge that You are not receiving any ownership interest in or to any of the foregoing. The BMA name, logo, and the product and service names associated with the Software and Services are trademarks of BMA or third parties, and no right or license is granted to You to use them separate from Your right to access the Software and Services.
11. REPRESENTATIONS AND WARRANTIES. You represent and warrant that: (1) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (2) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with any of the Services; and (3) all information You provide to BMA in connection with this Agreement and Your use of and access to the Services is accurate, complete, and current.
12. DISCLAIMER. THE SOFTWARE, SERVICES, CONTENT, AND ALL USE OF AND ACCESS THERETO, ARE PROVIDED BY BMA "AS IS" AND "AS AVAILABLE" WITH NO WARRANTIES WHATSOEVER. BMA DOES NOT REPRESENT OR ENDORSE THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT, OR OTHER CONTENT DISPLAYED, DOWNLOADED FROM, OR DISTRIBUTED THROUGH THE SOFTWARE OR SERVICES. BMA WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERROR, DELAY, OR INTERRUPTION IN THE SOFTWARE, SERVICES, OR CONTENT. BMA MAKES NO GUARANTEE, REPRESENTATION, OR WARRANTY REGARDING THE TIMELINESS, RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS OR USEFULNESS OF ANY PORTION OF THE SOFTWARE, SERVICES, OR CONTENT, OR THE APPROPRIATENESS, FITNESS, OR SUITABILITY THEREOF. YOU AGREE THAT YOUR ACCESS TO THE SOFTWARE, SERVICES, AND CONTENT IS AT YOUR OWN RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY OR DAMAGE YOU INCUR THROUGH ACCESS TO OR USE OF THE SOFTWARE, SERVICES, OR CONTENT. EXCEPT WHERE THE LAWS AND REGULATIONS OF A PARTICULAR JURISDICTION CONCERNING WARRANTIES CANNOT BE WAIVED OR EXCLUDED BY AGREEMENT, BMA EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, SERVICES, AND CONTENT, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. YOU RECOGNIZE THAT THE CURRENT STATE OF TECHNOLOGY DOES NOT ALLOW FOR ERROR-FREE ACCESS TO THE SOFTWARE, SERVICES, OR CONTENT, AND INTERRUPTIONS, CRASHES, AND DOWNTIME MAY OCCUR FROM TIME TO TIME.
13. INDEMNIFICATION. To the fullest extent permitted under law, You agree to indemnify, defend, and hold harmless BMA and its officers, directions, employees, agents, volunteers, and licensors from and against all claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorney's fees) that may at any time be incurred by any of them in whole or in part by reason of any allegations, claims, suits, or proceedings arising from: (1) Your use of or access to the Software, Services, or Content (or any use of or access to the Software, Services, or Content on Your PDA, through Your Account, or using Your Account ID); or (2) any breach of any representation, warranty or other term or condition of this Agreement.
14. LIMITATION OF LIABILITY. IN NO EVENT WILL BMA BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES OR LIABILITY, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER LEGAL THEORY, IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, SERVICES, OR CONTENT, INCLUDING, WITHOUT LIMITATION, DAMAGES OR LIABILITY STEMMING FROM YOUR ACCESS TO OR USE OF (OR YOUR FAILURE TO GAIN ACCESS TO OR USE OF) THE SOFTWARE, SERVICES, OR CONTENT, OR ANY OF THE PRODUCT OR SERVICE PROVIDED THROUGH THE SOFTWARE OR SERVICES, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, OR LOSS OF REPUTATION, EVEN IF BMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BMA'S TOTAL CUMULATIVE LIABILITY FOR ANY AND ALL DAMAGES AND LIABILITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE SOFTWARE, SERVICES, OR CONTENT, TO THE EXTENT NOT COVERED BY THE FOREGOING SENTENCE, WILL BE LIMITED TO THE PRICE (IF ANY) YOU PAID FOR THE SOFTWARE. The laws of some jurisdictions do not permit the disclaimer of liability for certain types of damages, so portions of the above may not apply to You.
16. U. S. GOVERNMENT END USERS. The Software is a "commercial item" as that term is defined at FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 and is provided to the U.S. Government only as a commercial end item. Consistent with FAR 12.212 and DFARS 227.7202, all U.S. Government End Users acquire the Software with only those rights set forth herein.
17. EXPORT LAW. The Software may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export the Software under any circumstances whatsoever, and by downloading the Software, You warrant that Your receipt of the Software does not violate the laws or regulations, including applicable sanctions or embargoes, of the U.S. or any other country. You will indemnify and hold BMA harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney's fees) arising from or relating to any breach by You of Your obligations and warranty under this Section.
18. CLAIMS OF INFRINGEMENT. If You believe in good faith that Your copyrighted work has been reproduced on the Services without authorization in a way that constitutes copyright infringement, You may notify our designated copyright agent by mail to:
Attn: Copyright Infringement Agent
PO Box 4954
Boulder, CO 80306
Please provide the following information to BMA's Copyright Infringement Agent:
(1) the identity of the infringed work, and of the allegedly infringing work;
(2) Your name, address, daytime phone number, and E mail address, if available;
(3) a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law;
(4) a statement of the accuracy of the notice and, under penalty of perjury, that You are authorized to act on behalf of the owner; and
(5) Your electronic or physical signature.
19. NOTICES. Except as expressly stated otherwise, any notices required or allowed under this Agreement will be given to BMA by e-mailing BMA at firstname.lastname@example.org. With respect to BMA's notices to You, BMA may provide notices (including notices of amendments to this Agreement) to You by providing them through the Software or Services. You agree to check for notices. In addition, or in lieu thereof, BMA may give notice by sending e-mail to any e-mail address You provide to BMA. Any notice shall be deemed given 24 hours after the notice is actually received by postal mail, provided through the Services, or sent by e-mail, as applicable.
20.1 Governing Language and Law. The governing language of this Agreement is English. This Agreement and the legal relations between the parties arising hereunder shall be governed by and interpreted in accordance with the laws of the State of Colorado exclusively, as such laws apply to contracts between Colorado residents performed entirely within Colorado. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. You hereby irrevocably and unconditionally consent to the exclusive jurisdiction and venue of the state or federal courts for Boulder, Colorado (U.S.A.) for the adjudication of all disputes, controversies, or claims arising under or relating to this Agreement or otherwise between the parties.
20.2 Assignment. Neither this Agreement nor any of Your rights or obligations hereunder may be assigned, transferred, or delegated by You in whole or in part, by operation of law or otherwise, without the prior written approval of BMA. Any assignment, transfer or delegation in derogation of the foregoing shall be null and void. BMA may assign this Agreement to any third party.
20.3 Severability. If any part of this Agreement is for any reason found to be unenforceable, all other parts nevertheless remain enforceable as long as a party's rights under this Agreement are not materially affected. In lieu of the unenforceable provision, the parties will substitute or add as part of this Agreement an enforceable provision that will be as similar as possible in economic and business objectives as was intended by the unenforceable provision.
20.4 Modifications. BMA reserves the right, at any time and without notice, to add to, change, update, or modify this Agreement, by providing notice to You. Any such addition, change, update, or modification will be effective immediately upon such notice.
20.5 Force Majeure. Any failure of BMA to perform or delay in the performance of BMA's obligations under this Agreement due to any cause or event not reasonably within BMA's control, including but not limited to casualty, labor disputes, failure of equipment or carriers or utilities, compliance with governmental authority or Act of God, shall not constitute a breach of this Agreement, and BMA's performance shall be excused during such period of delay.
20.6 Waivers. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.