EVERYTRAIL
TERMS OF SERVICE


Last Revised: May 27, 2010

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING THIS WEB SITE OR THE SERVICE OR DOWNLOADING AN EVERYTRAIL APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THIS WEB SITE OR ANY CONTENT OR SERVICES RELATED THERETO.

I. WEB SITE TERMS OF SERVICE

Welcome to EveryTrail, an online community and collection of online services that enables users to visualize and share outdoor and travel activities using innovative GPS technology, digital images and text, and communicate with other users and that includes downloadable programs that allow users to connect their GPS devices and mobile devices ("EveryTrail" or the "Service"). The Service is operated by GlobalMotion Media, Inc., dba EveryTrail ("Company,” "we," or "us") and is accessed through the company web sites located at everytrail.com and everytrail.net (the "Web Sites") or through mobile devices. Company provides the Web Sites and the Service to you subject to the following Terms of Service ("TOS").


You can review the most current version of the TOS at any time at: http://www.everytrail.com/tos.php. We reserve the right, at our discretion, to update or revise these TOS. Please check the TOS periodically for changes. Any changes or modification will be effective immediately upon posting of the revisions on the Web Sites, and you waive any right you may have to receive specific notice of such changes or modifications. Your continued use of this site following the posting of any changes to the TOS constitutes acceptance of those changes. Therefore, you should frequently review the TOS and applicable policies from time-to-time to understand the terms and conditions that apply to your use of the Web Sites. If you do not agree to the amended terms, you must stop using the Site.


In addition, when using particular Company owned or operated services or Company software, you shall be subject to any license terms, posted guidelines or rules applicable to such software or services, which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS.


Eligibility

You must be thirteen years of age or older to register as a member of EveryTrail or use the Web Sites, and by registering you represent and warrant that you are at least 13 years of age. Membership in EveryTrail is void where prohibited. Company reserves the right to terminate your membership for any reason, or no reason, at any time


EveryTrail Applications

Your use of the Service may involve the download, installation and use of certain software applications (the "Applications"). Your download, installation and use of any Applications is subject, and you hereby agree to, the terms and conditions of the End User License Agreement ("EULA") set forth below. see EULA


User Content and Conduct

The Service includes GPS data, pictures, video,graphics, text, data, information, guides, messages, and other content and materials that is posted by its users (the "User Content"). Company does not claim ownership of User Content you submit or make available for inclusion on the Service, except as specifically provided otherwise on the Web Sites. However, you grant Company a worldwide, perpetual, irrevocable and fully sub-licensable, royalty-free and non-exclusive license(s) to distribute, reproduce, sell, modify, adapt, publicly perform, publicly display and otherwise use and exploit in any manner or media such User Content (in whole or in part) and to incorporate such User Content into other works in any format or medium now known or later developed.


You are solely responsible for any User Content you post. By using the Web Sites, you acknowledge and agree that Company does not select, approve, endorse, or otherwise sanction any User Content posted by you or other users and that Company will not be responsible nor liable for such User Content or for any loss or damage that you have incurred as a result of the use of such User Content. In addition, Company is not liable for any mistakes, omissions, falsehoods, defamation, slander, libel, obscenity, pornography or profanity you may encounter. Your use of any User Content is at your own risk. Although Company does not control and has no obligation to review, screen, edit or monitor any of the User Content posted on the Web Sites, Company reserves the right, in its sole discretion and without any notice to you or other users, to remove, screen, edit, delete, disable access to or refuse any User Content posted on the Web Sites for any reason whatsoever or for no reason.


You acknowledge and agree that EveryTrail and the Web Sites are available for your personal, non-commercial use only. You represent and warrant that you have the full right and authority to post the User Content you post to the Web Sites and that such User Content is accurate and not misleading, will not infringe or violate the rights of any third party, including, but not limited to, copyright, trademark, or intellectual property or rights of privacy or publicity, and will not violate the TOS or cause injury to any person or entity. You acknowledge and agree not to collect personal information from other users, by manual or automated means, for any purpose, including sending unsolicited communication. Your use of the Web Sites is limited to uses that will not damage, impair, or overburden the Web Sites. You acknowledge and agree not to use or attempt to use another member's account without authorization from Company. You also acknowledge and agree not to post User Content that:


  • promotes racism, bigotry, or hatred towards groups or individuals, or that Company deems to be inappropriate;
  • is unlawful, libelous, defamatory, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable
  • harasses or advocates harassment of another person;
  • contains or implies personal identifying information of a third party, including, but not limited to, name, email address, phone number, or home address;
  • displays obscene, pornographic or sexually explicit material of any kind;
  • contains any form of solicitation, including, but not limited to, unsolicited mass mailings or 'spamming';
  • contains software viruses or any computer code designed to interfere with the functionality of the Web Sites or other users' communications equipment;
  • solicits passwords or personal identifying information for commercial or unlawful purposes from other users or members;
  • contains any private or personal information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
  • is intended to deceive users or members into dangerous or unlawful activity or that would constitute, encourage or provide instructions for a criminal offense, violate any third party rights, or otherwise create liability or violate any local, state, national or international law;
  • impersonates any person or entity, misrepresents your affiliation with a person or entity or creates or attempts to create a false identity on the Web Sites;
  • contains or displays copyright or trademark materials, or other proprietary materials owned by others.

The information you post to the Web Sites, including but not limited to trips, guides, tracks, locations, waypoints, route comments, message boards, and chat rooms is displayed to the public in general. Users must exercise care and due diligence in disclosing personal information.


Any use of the Web Sites or the Service in violation of the foregoing violates the TOS and may result in, among other things, termination or suspension of your rights to use the Web Sites and the Service. Enforcement of the user content or conduct rules set forth in this TOS is solely at Company's discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Web Sites will not contain any content that is prohibited by such rules.


Indemnity

You agree to indemnify and hold Company and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of User Content you submit, post, transmit or otherwise make available through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.


Member Interaction and Disputes

You acknowledge and agree that your interaction with persons, individuals, other users, organizations, and other entities found on or through EveryTrail are solely between you and other persons, individuals, other members, organizations, and other entities. You acknowledge and agree that Company will not be liable, responsible, or otherwise legally accountable to you or to any third party for any loss or damage of any sort that you or any third party have incurred from your interaction with such persons, individuals, other users, organizations, and other entities found on or through the Web Sites. In case of a dispute between users of EveryTrail or other participants of the Web Sites, or between users and any third party, you acknowledge and agree that Company is not liable, responsible, or otherwise legally accountable for such dispute nor is Company under any obligation to become involved in such disputes. You are solely responsible for your interactions with other EveryTrail users. Company reserves the right, but has no obligation, to monitor disputes between you and other users.


Privacy Policy

Please refer to our Privacy Policy, which can be viewed at http://www.everytrail.com/privacy.php, for information on how Company collects, uses and discloses personally identifiable information from its users.


External Links

By using EveryTrail, you acknowledge and agree that the Web Sites may contain links to other websites ("Linked Sites"), which may change from time to time. You also acknowledge and agree that such Linked Sites are independently owned and operated, and that their content is not controlled by Company. You also acknowledge and agree that Company is neither responsible nor liable for the content, accuracy, or opinions expressed and contained within Linked Sites nor for any loss or damage that you may incur by any materials contained within Linked Sites. Company does not monitor, investigate, nor check these Linked Sites for accuracy. Company makes no claims nor warrants the truthfulness, legitimacy, completeness, or validity of the materials contained in such Linked Sites. Inclusion of the Linked Sites does not imply approval or endorsement of the materials contained in Linked Sites by Company. Your use of these Linked Sites will always be at your own risk and responsibility.


Proprietary Rights; License to Use Web Sites

Unless otherwise indicated in the Web Sites, the Web Sites and all content and other materials on the Web Sites, including, without limitation, the Company logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the "Site Materials") are the proprietary property of Company or its licensors or users and are protected by U.S. and international copyright laws.


You are granted a limited, non-sublicensable license to access and use the Web Sites and electronically copy, (except where prohibited without a license) and print to hard copy portions of the Site Materials for your informational, non-commercial and personal use only Such license is subject to the TOS and does not include: (a) any resale or commercial use of the Site or the Site Materials therein; (b) the collection and use of any product listings, pictures or descriptions; (c) the distribution, public performance or public display of any Site Materials, (d) modifying or otherwise making any derivative uses of the Site and the Site Materials, or any portion thereof; (e) use of any data mining, robots or similar data gathering or extraction methods; (f) downloading (other than the page caching) of any portion of the Site, the Site Materials or any information contained therein, except as expressly permitted on the Site; or (g) any use of the Site or the Site Materials other than for its intended purpose. Any use of the Site or the Site Materials other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will violate the TOS and terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes Unless explicitly stated herein, nothing in the TOS shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.


Repeat Infringer Policy

In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances and at Company's sole discretion, subscribers or account holders who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.


Copyright Complaints

If you believe that anything on the Site infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below.


Name of Agent Designated to Receive Notification of Claimed Infringement: Joost Schreve
Full Address of Designated Agent to Which Notification Should be Sent: 125 University Ave, Suite 260, Palo Alto, CA 94301
Telephone Number of Designated Agent: (650) 733-4636
Facsimile Number of Designated Agent: (650) 472 8962
E-Mail Address of Designated Agent: dmca@globalmotion.com


Trademarks

EveryTrail, GlobalMotion, the Company logo and any other product or service name or slogan contained in the Web Sites are trademarks of Company and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Company or the applicable trademark holder. You may not use any metatags or any other "hidden text" utilizing "Company" or any other name, trademark or product or service name of Company without our prior written permission. In addition, the look and feel of the Web Sites, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Company and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Web Sites are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.

Limitation of Service

You acknowledge and agree that Company may establish limits concerning the use of the Web Sites, including but not limited to the maximum amount of saved User Content. You acknowledge and agree that Company has no responsibility or liability for the deletion or failure to store any User Content that you transmitted to the Web Sites. You acknowledge and agree that Company reserves the right to modify, suspend, or discontinue EveryTrail or the Web Sites at any time for any reason with or without notice and that Company will not be liable, responsible, or otherwise legally accountable to you or to any third party for any modification, suspension, or discontinuance of EveryTrail or the Web Sites.


Termination of Service

You acknowledge and agree that Company, in its sole control and discretion, has the right to edit, delete, or deactivate your account, block your IP address, or otherwise interfere, restrict, or terminate your access to parts or all of the Web Sites immediately and without notice or liability to Company for any reason or for no reason. You also acknowledge and agree that Company may change, suspend, or discontinue any and all aspects of the Web Sites at any time, without notice, including the availability of any feature or User Content. You also acknowledge and agree that Company shall not be liable to you or any third party for any such interference and termination of your access to the Web Sites. Company assumes no responsibility and will not be liable for network hardware or other technical failure that may affect or disable any user's computer system which arises from the use of the Web Sites.


Routes and Measurements

The Web Sites utilizes maps and images from Google, Inc. by permission. All route measurements provided by the Web Sites are approximate and do not represent absolute measurements, either in metric (km) or English (miles) units. You acknowledge and agree that all measurements of routes that you create or view when using the Web Sites are approximate. You also acknowledge and agree that the routes you create or view when using the Web Sites may not be accurate, safe, or free of physical obstacles, that trails might be blocked or otherwise dangerous, or that some areas may not be open to the public or may be hazardous. You acknowledge and agree that Company is not liable or responsible and makes no recommendations or warranties as to your health and safety, or for any mishap or accident you may incur from using EveryTrail or the Web Sites. Company disclaims any express or implied warranties for the security, reliability, timeliness, accuracy, or performance of the Web Sites and its Contents.


Third Party Content

Company may provide third party content on the Web Sites and may provide links to Web pages and content of third parties (collectively the "Third Party Content") as a service to those interested in this information. Company does not monitor or have any control over any Third Party Content or third party Web Sites. Company does not endorse or adopt any Third Party Content and can make no guarantee as to its accuracy or completeness. Company does not represent or warrant the accuracy of any information contained therein and undertakes no responsibility to update or review any Third Party Content. Users use such Third Party Content contained therein at their own risk.


Advertisements and Promotions; Third-Party Products and Services

Company may run advertisements and promotions from third parties on the Web Sites or may otherwise provide information about or links to third-party products or services on the Web Sites. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. Company is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of such non-Company advertisers or third party information on the Web Sites.


Registration Data; Account Security

In consideration of your use of the Web Sites, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security and confidentiality of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to Company, to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information you provide to Company.


Medical Release

By using EveryTrail and the Web Sites in planning physical activity, you attest and verify that you are physically fit and have sufficiently trained for the completion of routes. You also attest and acknowledge that your physical condition has been verified by a licensed medical doctor. You, the user, for yourself, your heirs, executors, administrators, personal representatives, successors and assigns, waive and release any and all rights, claims or courses of action you have or may have against Company, its agents, employees, officers, directors, successors and assigns, and representatives that may arise as a result of your use of EveryTrail and the Web Sites.


General Disclaimer; Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT THE USE OF EVERYTRAIL AND THE WEB SITES IS ENTIRELY AT YOUR OWN RISK AND THAT THE WEB SITES AND THE SERVICE ARE PROVIDED TO YOU "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES COMPANY DOES NOT REPRESENT OR WARRANT THAT MATERIALS IN THE SITE OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.


IN NO EVENT SHALL COMPANY, ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE WEB SITES, THE SERVICES, THE CONTENT OR THE SITE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE WEB SITES, INCLUDING WITHOUT LIMITATION ANY DAMAGES CASED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED THROUGH THE WEB SITES OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COMPANY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO COMPANY FOR ACCESS TO OR USE OF THE WEB SITES.


Governing Law; Jurisdiction

These Terms of Service are governed by the laws of the State of California and the United States of America, without regard to any conflict of law principles to the contrary. You agree that any action at law or in equity arising out of or relating to the Site or the Service shall be filed only in the state and federal courts located in Santa Clara County, California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms of Service.


II. END USER LICENSE AGREEMENT (EULA)

PLEASE READ THIS EULA CAREFULLY. IT CONTAINS IMPORTANT TERMS THAT AFFECT YOU AND YOUR USE OF EVERYTRAIL APPLICATIONS (THE "APPLICATIONS") WHICH ARE LICENSED TO YOU BY GLOBALMOTION MEDIA, INC., DBA EVERYTRAIL ("COMPANY," "WE," OR "US"). BY DOWNLOADING OR OTHERWISE ACCESSING ANY APPLICATION, OR BY USING THE EVERYTRAIL WEB SITE (THE "SITE") OR THE EVERYTRAIL SERVICE (THE "SERVICE"), YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA WITH RESPECT TO SUCH APPLICATION. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONSENTS, DO NOT DOWNLOAD OR USE ANY APPLICATIONS.


License. Subject to the terms and conditions in this EULA, we grant you a non-exclusive, non-transferable license to install and use a copy of the Applications in object code form only, solely for your personal, noncommercial use in connection with the Service. Any Application that updates, supplements or replaces the original Application is governed by this EULA unless separate license terms accompany such update, supplement or replacement, in which case such separate terms will govern in the event of a conflict with this EULA or as otherwise provided in such separate terms.


License Limitations. The preceding states the entirety of your rights with respect to the Applications, and we reserve all rights not expressly granted to you in this EULA. Without limiting the foregoing, you will not do, or authorize or permit any third party to do, any of the following: (a) license or sell the Applications, (b) distribute the Applications except as expressly authorized by Company; (b) use the Applications for any purpose other than your personal, noncommercial use; (c) reverse engineer, decompile, disassemble or attempt to discover the source code for the Applications; (d) modify, alter or create any derivative works of the Applications; or (e) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Applications.


Terms of Service. You agree to be bound by the terms and conditions set forth in the EveryTrail Terms of Service, which can be viewed at http://www.everytrail.com/tos.php, and which governs your use of the EveryTrail Web Site and Service.


Ownership. The Applications is the valuable property of Company and its licensors and is protected by copyright and other intellectual property laws and treaties. We and our licensors own all right, title and interest in and to the Applications, including all copyright and other intellectual property rights in the Software.


Disclaimers. THE APPLICATIONS ARE PROVIDED TO YOU FREE OF CHARGE. ACCORDINGLY, THE APPLICATIONS, THE SITE AND THE SERVICE ARE PROVIDED "AS IS," WITH ALL FAULTS, DEFECTS AND ERRORS, AND WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, ARISING BY LAW OR OTHERWISE, REGARDING THE APPLICATIONS, THE SITE AND THE SERVICE AND ITS PERFORMANCE OR SUITABILITY FOR YOUR INTENDED USE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT THE APPLICATIONS, THE SITE OR THE SERVICE WILL BE FREE OF BUGS, ERRORS, VIRUSES OR OTHER DEFECTS, AND COMPANY SHALL HAVE NO LIABILITY OF ANY KIND FOR THE USE OF OR INABILITY TO USE THE APPLICATIONS, THE SITE OR THE SERVICE OR ANY OTHER PRODUCT OR SERVICE ASSOCIATED THEREWITH.


Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LIABILITIES WHATSOEVER ARISING FROM OR RELATING TO THE APPLICATIONS, THE SITE, THE SERVICE OR THIS EULA, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


Termination. Company may terminate this EULA and any user accounts opened in connection with your use of the Applications at any time for any reason or for no reason immediately upon notice. Upon such termination, you agree not to download, copy, install or use the Applications (including any subsequent version of the Applications) or register for any new user accounts. Company may also discontinue the Service, in which case this EULA shall terminate automatically without notice. In the event of the termination of this EULA for any reason: (a) the license granted to you in this EULA will terminate; (b) you must immediately upon receiving any notice of termination cease all use of the Applications and destroy or erase all copies of the Applications in your possession or control; and the following sections shall survive any such termination: Terms of Service, Ownership, Disclaimers, Limitation of Liability, Termination, Governing Law; Jurisdiction and General.


Governing Law; Jurisdiction. This EULA is governed by the laws of the State of California and the United States of America, without regard to any conflict of law principles to the contrary. You agree that any action at law or in equity arising out of or relating to this EULA or the Site or the Service shall be filed only in the state and federal courts located in Santa Clara County, California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this EULA.


General. (a) If any provision of this EULA is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this EULA will remain in full force and effect. (b) You may not assign any of your rights under this EULA without the prior written consent of Company, and any attempted assignment without such consent shall be void. (d) This EULA sets forth our entire agreement with respect to the Applications and the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements whether written or oral. No amendment, modification or waiver of any of the provisions of this EULA will be valid unless set forth in a written instrument signed by the party to be bound thereby.


ADDITIONAL EULA TERMS APPLICABLE TO IPHONE OR IPOD TOUCH APPLICATIONS

Notwithstanding anything to the contrary in the EULA set forth above, the following additional terms shall apply to any Applications downloaded for use on the iPhone or iPod Touch:


Acknowledgement: You and Company acknowledge that this EULA is concluded solely between you and Company, and not with Apple, and Company, not Apple, is solely responsible for the Application and the content thereof. You further acknowledge that the usage rules for the Applications are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the Application, and in the event of any conflict, the Usage Rules in the App Store shall govern if they are more restrictive.


Scope of License: The license granted to you is limited to a non-transferable license to use the Applications on any iPhone or iPod touch that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.


Maintenance and Support: The parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Applications.


Warranty: You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the Applications. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application to that end-user; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any applicable warranty is the sole responsibility of Company. However, you understand and agree that in accordance with the EULA, Company has disclaimed all warranties of any kind with respect to the Application, the Site and the Service, and therefore, there are no warranties applicable to the Applications.


Product Claims: The parties acknowledge that to the extent applicable, Company, and not Apple, is responsible for addressing any claims you or any third party may have relating to the Applications or your possession and/or use of the Applications, including, but not limited to: (i) product liability claims; (ii) any claim that the Applications fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Intellectual Property Rights: The parties acknowledge that, in the event of any third party claim that the Application or the end-user’s possession and use of that Application infringes that third party’s intellectual property rights, Company, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.


Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. Developer Name and Address: Any end-user questions, complaints or claims with respect to the Application should be directed to:


EveryTrail
c/o GlobalMotion Media, Inc.
125 University Ave, Suite 260
Palo Alto, CA 94301
Phone: (650) 733-4636
email: team@everytrail.com


Third Party Beneficiary: The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the EULA, and that, upon the end-user’s acceptance of the terms and conditions of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against the end-user as a third party beneficiary thereof.