Last Updated June 5, 2018
BY ACCESSING OR OTHERWISE USING THE LOCATIONSMART APPLICATIONS, YOU ARE (1) REPRESENTING THAT YOU ARE OVER THE AGE OF 18, (2) REPRESENTING THAT YOU HAVE THE RIGHT AND AUTHORITY TO LEGALLY BIND YOURSELF OR YOUR COMPANY, AS APPLICABLE, AND (3) CONSENTING TO BE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU DO NOT AGREE TO ALL THESE TERMS OR CANNOT MAKE SUCH REPRESENTATIONS, YOU MAY NOT ACCESS OR OTHERWISE USE THE LOCATIONSMART APPLICATIONS.
1.1 The LocationSmart Applications allow you, your employer or the entity that has requested LocationSmart to provide you access to the LocationSmart Applications to obtain your location via web pages, voice-based interaction with IVR systems, API interactions and other means and conduct location-sensitive searches for business listings, maps and driving directions and receive real-time voice-based, SMS-based and browser-based responses, depending on your cellular carrier, wireless device and LocationSmart access means. Subject to your compliance with these Terms, you will be allowed to access and use the LocationSmart Applications and any upgrades, modifications, or additions thereto. The LocationSmart Applications use location data. By using the LocationSmart Applications, you consent and permit your wireless carrier to share your location with others. There is no representation, warranty or guarantee of accuracy, completeness or timeliness of any location data, product or service. By agreeing to these Terms, you expressly consent to your location being obtained through the LocationSmart Applications.
You remain solely responsible to obtain any hardware, firmware, third-party software and any broadband, telephone, wireless, or internet services required to access the LocationSmart Applications. A complete description of the LocationSmart Applications is available at https://portal.locationsmart.net/.
1.2 In addition, the LocationSmart Applications utilize, and makes available to you, data licensed from a number of third-party content providers (collectively the "Content"). This Agreement may include end-user terms required by these companies (set forth at the end of this Agreement, if any), and thus your use of the LocationSmart Applications is limited by and subject to such terms. In particular, if you have downloaded the LocationSmart Device Agent, your use of this application is subject to the following terms http://www.sixgill.com/mobile/termsofuse.html
1.3 LocationSmart reserves the right to make any changes to the LocationSmart Applications including without limitation by adding or removing any features. LocationSmart may modify this Agreement at any time by posting an updated version to the above web page. You should visit https://www.locationsmart.com/terms/locationsmartterms from time to time to review the then current terms for the LocationSmart Applications because they are binding on you. By continuing to use the LocationSmart Applications, following any modification of this Agreement, you accept and agree to be bound by such modification. If any modification is not acceptable to you, your sole remedy and recourse is to discontinue use of the LocationSmart Applications.
2.1 Subject to your compliance with the terms of this Agreement, LocationSmart hereby grants to you a limited, non-exclusive, non-transferable and non-sublicensable license to access and use the LocationSmart Applications as expressly allowed under this Agreement.
2.2 The LocationSmart Applications and Content are not sold but licensed to you under the terms and conditions hereunder. Except for the limited license expressly granted herein, you acknowledge and agree that, LocationSmart and its licensors (collectively "LocationSmart Entities") shall own all right, title and interest in and to the LocationSmart Applications and Content, including without limitation all intellectual property rights therein.
2.3 The LocationSmart Application and Content are for your personal use and/or internal business operations and are not for resale or other transfer or disposition to any other person or entity. In addition, you specifically agree not to:
a. reverse engineer, decompile, disassemble, translate, modify, alter or otherwise change the LocationSmart Applications or Content, or any part thereof;
b. attempt to derive the source code, design or structure of the LocationSmart Applications;
c. sell, rent, lease, distribute, assign, sublicense, convey, transfer, pledge as security or otherwise encumber or transfer (including by loan or gift) the rights and licenses granted hereunder;
d. remove or alter any of LocationSmart's or its licensors' trademarks, trade names, logos, patent or copyright notices, or other notices or markings used on or in relation to the LocationSmart Applications and Content;
e. copy or reproduce any part of the LocationSmart Applications and Content other than as allowed under this Agreement;
f. use the LocationSmart Applications or Content in any manner that violates any statute, law, rule, regulation, directive, guideline, bylaw whether presently in force or may be implemented by federal, state or local authorities.
You (or your employer/account owner) are responsible for paying any fees charged by your wireless telephone carrier or other service providers for allowing you to access the LocationSmart Applications, including any data plan charges, toll, out-of-area, roaming, or other telephone connection charges. Also, depending on your specific voice, messaging or data plan and your wireless telephone carrier or service provider, you may be charged for the amount of voice minutes, data, SMS, MMS and other air time charges you may consume via your mobile phone when you access the LocationSmart Applications.
4.1 You agree to provide LocationSmart with true, accurate, current, and complete information about yourself (the "User Information") if requested, and maintain and update such information to keep it true, accurate, current, and complete at all times. If you provide LocationSmart with any information that is untrue, inaccurate, not current or incomplete, or LocationSmart has reasonable grounds to suspect so, LocationSmart has the right to suspend or terminate your access and use of the LocationSmart Applications.
5.1 Certain LocationSmart Applications utilize text messaging services. Applications use text messaging for privacy consent and notification as well as delivery of service alerts and content. Before you receive any text messages from such applications, you will be notified about the use of text messaging and asked for your consent. When you use these services, you may be subject to messaging and data charges from your wireless carrier, depending on your wireless data plan and rates. Each message you receive will include the words "Msg&Data Rates May Apply" to remind you of these potential charges.
5.2 To cancel receipt of text messages associated with LocationSmart Applications, you may reply STOP, END, QUIT, CANCEL, or UNSUBSCRIBE to any message received from LocationSmart. If opted-in to multiple message alerts, you may reply STOP ALL to no longer receive any alerts. You may also send a message using one of these words to the associated short code or long code at any time. Messages you receive from LocationSmart will include "Text STOP to stop" to remind you how to stop receiving messages. To cancel your use of LocationSmart Applications completely, please follow the instructions in Section 6 - Term & Termination below.
5.3 To obtain help for the text messaging services associated with LocationSmart Applications, you may reply HELP to any messages received from LocationSmart. You may also text HELP to the associated short code or long code at any time. Contact LocationSmart at email@example.com for further assistance.
LocationSmart messaging campaigns are structured in accordance with industry best practices from the CTIA.
6.1 LocationSmart reserves the right to terminate your access to the LocationSmart Applications at any time for any or no reason and without notice to you. Upon any termination of your access to LocationSmart Applications, LocationSmart shall have no liability to you or any further obligations under this Agreement.
6.2 You may terminate this Agreement at any time by notifying LocationSmart via (i) an email addressed to firstname.lastname@example.org. Any termination of this Agreement by you shall become effective upon LocationSmart's receipt of your notice.
6.3 The licenses granted hereunder shall terminate upon any termination of this Agreement, or upon any suspension, termination or cancellation of your access to the LocationSmart Applications. All provisions relating to proprietary rights, warranty disclaimer, limitation of liability, indemnity, and confidentiality shall survive the termination of this Agreement.
7.1 The LocationSmart Applications and Content are provided to you "AS IS" with all faults, and you agree to use them at your own risk. You understand and agree to use the LocationSmart Applications and Content at your own discretion and risk. LocationSmart Entities make no guarantees regarding the content, quality, accuracy, completeness, effectiveness, reliability, or usefulness of the LocationSmart Applications, Content or results obtained from the LocationSmart Applications or that the LocationSmart Applications will be uninterrupted or error-free.
7.2 WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LOCATIONSMART ENTITIES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE LOCATIONSMART APPLICATIONS AND CONTENT. LOCATIONSMART EXPRESSLY DISCLAIMS ANY WARRANTY WITH RESPECT TO THE QUALITY OR CONTINUITY OF THIRD-PARTY TELECOMMUNICATIONS OR INFORMATION SYSTEMS OR SERVICES, SERVER CONNECTION SPEEDS, OR THE FUNCTIONALITY, OPERABILITY, OR RELIABILITY OF LOCATIONSMART'S OR ANY THIRD PARTY'S DATA SECURITY FEATURES OR SYSTEMS. THIS DISCLAIMER OF WARRANTIES IS AN ESSENTIAL CONDITION OF THE AGREEMENT.
You will maintain the confidentiality of and not disclose to any third party (a) all non-public information disclosed or made available by LocationSmart to you in connection with the LocationSmart Applications, and (b) all performance data and other information that you obtain through use of the LocationSmart Applications.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LOCATIONSMART ENTITIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES) ARISING OUT OF THE USE OF OR INABILITY TO USE THE LOCATIONSMART APPLICATIONS OR ANY PART THEREOF, EVEN IF LOCATIONSMART OR LOCATIONSMART ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LOCATIONSMART ENTITIES' JOINT AND SEVERAL LIABILITY TO YOU FOR ALL DAMAGES UNDER THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT THAT YOU PAID FOR THE LOCATIONSMART APPLICATIONS. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF, OR RELIANCE ON, OR FROM INABILITY TO USE, OR FROM THE INTERRUPTION SUSPENSION OR TERMINATION OF, THE LOCATIONSMART APPLICATIONS OR CONTENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to indemnify, defend and hold the LocationSmart Entities harmless from and against any liability, loss, injury (including injuries resulting in death), demand, action, cost, expense, or claim of any kind or character, including but not limited to attorney's fees, arising out of or in connection with your use of the LocationSmart Applications and Content other than as expressly allowed under this Agreement.
You agree not to export from anywhere any part of the LocationSmart Applications or Content provided to you or any direct product thereof except in compliance with, and with all licenses and approvals required under, applicable export laws, rules and regulations.
12.1 You agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach thereof shall be settled by independent arbitration involving a neutral arbitrator and administered by the American Arbitration Association in San Diego, California. The arbitrator shall apply the Commercial Arbitration Rules of the American Arbitration Association, and the judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction. You acknowledge that there is no judge or jury in an arbitration proceeding and the decision of the arbitrator shall be binding upon both parties. This Agreement and performance hereunder will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions.
12.2 Notwithstanding the foregoing, the parties to this Agreement may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this Agreement and without abridgement of the powers of the arbitrator.
This Agreement constitutes the entire understanding and agreement of the parties (except for any separate end-user license agreements required by LocationSmart's third-party data providers, which shall be read in conjunction with this Agreement), and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to its subject matter. LocationSmart's failure to require performance of any provision shall not affect its right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to LocationSmart. Notwithstanding the foregoing, LocationSmart may assign this Agreement at any time without notice. By using the LocationSmart Applications, you consent to receive from LocationSmart all communications, including notices, agreements, legally required disclosures or other information in connection with the LocationSmart Applications (collectively, "Notices") electronically. LocationSmart may provide such Notices by posting them on LocationSmart's website or by downloading such Notices to your wireless device. If you desire to withdraw your consent to receive Notices electronically, you must discontinue your use of the LocationSmart Applications. If you have any questions regarding the terms of this Agreement, please contact LocationSmart by sending an email to email@example.com. LocationSmart shall not be liable to you for a failure to perform any of its obligations under this Agreement during any period in which such performance is delayed due to circumstances or events beyond its reasonable control.