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PLEASE READ THE FOLLOWING TERMS OF SERVICE AND LICENSE AGREEMENT CAREFULLY BEFORE DOWNLOADING, USING, ACCESSING, OR PURCHASING ANY PRODUCT OR SERVICE THROUGH ANY PART OF THE SURFACE TRACKS WEBSITE OR SERVICES OR THE SURFACE TRACKS MOBILE APPLICATIONS (IF AVAILABLE).
The following are the terms and conditions for use of www.surfacetracks.com, any affiliated sub-domains, and any affiliated websites on which these Terms are posted, and their related services (the "Website") and any of the Surface Tracks Mobile Applications (as applicable and if available) and their services (the "Applications") (collectively the Website and the Applications are referred to as the "Services"). The Services are owned and operated by Surface Tracks, LLC ("Surface Tracks," or "us," or "we").
By downloading or using any of the Applications, accessing the Services, continuing to access the Services, purchasing any products through the Services, or submitting any information through the Services, and in consideration for the services Surface Tracks provides to you, YOU (the terms "you" or "yours" includes the person or entity that is accessing the Services as well as any third-parties accessing the Services on your behalf) ARE STATING THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS GOVERNING THE USE OF THE SERVICES (the "Terms"). Use of the Services is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices, including the class action waiver, contained herein.
Surface Tracks provides you tools and information designed to assist you in planning your travel, driving, biking, hiking, or other activities. While we strive to provide accurate information, we cannot guarantee that all information contained on the Services is accurate, complete, or up to date. You should not make decisions solely based on the information contained in the Services. Even with the information provided by Surface Tracks, there are inherent risks associated with driving, traveling, biking, hiking, and other activities. It is your responsibility to choose the most appropriate travel route for you and your vehicle. Always be on alert for travel hazards and do not use your mobile device while operating your vehicle. For more information, please read these Terms of Service and contact us at the address below if you have any questions.
II. REGISTRATION, ELIGIBILITY FOR SERVICES, PAYMENT, AND INFORMATION SUBMISSION
Registration. In order to utilize some of the Services' features, you must register and create an account. In order to create an account, you must complete the registration process by providing Surface Tracks with complete and accurate information as prompted by the registration form, including contact information, a username, and password. You shall protect your password and take full responsibility for your own and third-party activities that occur under your account. You agree to notify Surface Tracks immediately of any unauthorized use of your account or any other breach of security. If you create an account on behalf of an entity, these Terms bind both you and the entity.
Refusal of Service. Surface Tracks reserves the right, with or without notice, to terminate the account of, or refuse service to, any persons that violate these Terms, violate any party's intellectual property rights, abuse other users of the Services, misuse the Services, or otherwise engage in inappropriate conduct, as determined by Surface Tracks in its sole discretion.
Payment. If you make any purchases through the Services, you agree to pay all applicable charges and fees for those purchases and to comply with the terms of the applicable payment processor. Unless otherwise stated, all prices are stated in U.S. Dollars.
Information Submission and Age Restriction. By submitting any information, including any User Content as defined below, through the Services, you represent and warrant that you are 18 years of age or older, and, if under the age of majority in your state, you are either an emancipated minor, or have obtained the legal consent of your parent or legal guardian to enter into these Terms and use the Services. Surface Tracks does not intend to use the Services to collect any information from children under age 18. Pursuant to 47 U.S.C. § 230(d), you are notified that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. For information on providers of such services, contact your information technology professional.
Data Importation. The Services may allow you to import data from a source created by other another program not affiliated with Surface Tracks. If you choose to import content into the Services from any other source, you represent that you have the authority to import that content and that your importation of that content does not violate the rights or terms of any third-parties.
III. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES
Surface Tracks reserves the right to change or modify any of the terms and conditions contained in these Terms or any policy governing the use of the Services, at any time, by posting the new terms on the Website or Applications. The most current version of these Terms will be located on, or available through, the Applications and Website. You understand and agree that your access to or use of the Services is governed by the then-current Terms that are effective at the time of your access to or use of the Services. If we make material changes to these Terms, we will notify you by updating the "Updated" date indicated at the top of this page with the date that revisions to these Terms were last made. We will not notify you of any such changes by email or other personal contact. You should revisit these Terms on a regular basis as revised versions will be binding upon you. Any such modification will be effective upon our posting of such new Terms. You understand and agree that your continued access to or use of the Services after the effective date of modifications to the Terms indicates your acceptance of the modifications.
IV. WEBSITE LICENSE; PROPRIETARY RIGHTS
License. Subject to, and in accordance with, these Terms, and conditioned upon any required payment, Surface Tracks grants to You, and You accept from Surface Tracks, a limited, revocable, non-exclusive, and non-transferable license to access and make personal use of the Website. Surface Tracks reserves all rights not expressly granted to You hereunder. This license is automatically revoked if you violate any of these Terms. Surface Tracks reserves the right to revoke your license and authorization to access or use the Website or Services at any time for any reason.
Proprietary Rights. Except as expressly provided for in the non-exclusive licenses contained in this Section IV and Section X below, Surface Tracks expressly reserves all right, title, and interest in and to the Services and the Services' content, including any copyright, patent, or trademark or other intellectual property right, or federal or state right, pertaining thereto.
V. PURCHASES, SUBSCRIPTIONS, AND REFUNDS
Payment Terms. Surface Tracks may make some of the Website or the Applications and the Applications' services available for free (the "Free Services"). Surface Tracks does not guarantee that any portion of the Services will always be available for free and reserves the right to begin charging for any portion of the Services at any time. The Free Services may have reduced functionality or may include additional advertisements. Surface Tracks may allow users to increase the functionality of the Application and Services by making certain purchases, including in-app purchases. Please review the specific terms for your applicable purchase. Prices are subject to change.
Purchases. Your purchase of any goods or products through the Services is subject to the terms and conditions stated on the applicable order form(s) and the applicable terms stated in these Terms. All prices are subject to change. If you purchase any product through the Services, you agree to comply with the terms of the applicable payment processor.
Free Trials. Surface Tracks may offer its products or services through free trial offers from time to time. The failure to cancel your free trial during the stated period will result in you being charged for the associated purchases beginning at the end of the trial period. For more details, please review the specific terms of the free trial offer, if applicable. Surface Tracks does not guarantee that any portion of the Services will always be available for free.
Subscriptions. Surface Tracks may offer certain products or services on a subscription basis. Under such a subscription, you will be charged for the subscription products or services every period until you cancel your subscription. Please review the specific terms of your subscription for more information. If you purchase a subscription but choose not to include a renewal option, your access to the applicable paid portion of the Services will terminate when your subscription period has ended.
Refund Policy. Please see the complete terms of your particular order regarding refunds. Unless otherwise stated, Surface Tracks does not guarantee any refunds and reserves the right to decline any refund requests; however, if you are unsatisfied with any purchase from Surface Tracks, you may request a refund by contacting us at firstname.lastname@example.org.
Personal Use. You may only use the Applications and the Services for your own personal use and not for any commercial use.
VI. THIRD-PARTY SERVICES
The Services may use or provide access to one or more third-parties to provide maps, process payments, process account or user registrations, or provide other services. Your interactions with any of these third-parties is controlled by the terms and conditions imposed by those third-parties. Any disputes arising regarding a third-party's services must be resolved directly between user and the third-party. Surface Tracks disclaims all warranties or representations regarding any third-party services.
The Services may provide as a convenience links to third-parties that provide information regarding weather, maps, or other information. Those third-parties are beyond Surface Tracks' control and Surface Tracks does not guarantee that those third-parties or the information they provide, will be accessible or accurate.
Surface Tracks, in its sole discretion, and without notice to you or any user, may subcontract any Services to be performed by a third-party.
VII. USER-GENERATED/THIRD-PARTY CONTENT
Overview. The Services may, from time to time, allow users and third-parties to upload, post, or otherwise transmit user-generated content, including, but not limited to, comments, feedback, photos, videos, reviews, and other forms of data or communications ("User Content").
User Obligations and License; Intellectual Property. You alone own and are solely responsible for all User Content you post, upload, or otherwise transmit (collectively "Post") through the Services and once Posted, it cannot always be withdrawn. You agree not to Post through the Services any User Content which is false, defamatory, infringes upon another party's intellectual property, or is otherwise illegal. By Posting User Content on the Services, you warrant and represent that you have the right to post such information and that such information is truthful and accurate.
By Posting User Content, you automatically grant, and warrant and represent that you have the right to grant, Surface Tracks a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, assignable, sublicensable, transferable license to use, store, copy, perform, display, and distribute such User Content for any purpose and to prepare derivative works of, or incorporate into other works, such User Content.
You assume all risks associated with your Posted User Content on the Services, including anyone's reliance on its quality or reliability. By Posting User Content you may expose yourself to liability if, for example, your Posted User Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
Testimonials and Photographs. If you Post or otherwise transmit to Surface Tracks a testimonial statement or photograph or video depicting your results using any service or product, you grant, and warrant and represent that you have the right to grant, Surface Tracks a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, assignable, sublicensable, transferable license to use, copy, perform, display, and distribute the testimonial statement and/or photograph for any purpose, including posting on the Services or using in any Surface Tracks advertising materials.
By Posting or sending any testimonials of your results, you represent that the testimonial statement is true, that you used the service or product as directed, and that the testimonial accurately depicts your experience using the service or product.
If you no longer wish Surface Tracks to use your written testimonial statement or photograph or video, please contact us. If we do not hear from you, we will assume you still stand behind your testimonial statement.
If you received any kind of compensation, whether monetary, in the form of a free service or product, or otherwise, you must notify us of this fact when posting or sending your testimonial.
Reviews. If you submit a review of any business, location, or other establishment, you represent and warrant that your review is accurate and constitutes your opinion and not the opinion of Surface Tracks or any other person. You are solely responsible for the content of your reviews. Do not submit false or defamatory reviews or rating.
Rules of Conduct. In addition to all other obligations and terms stated in these Terms, you agree to abide by any rules of conduct or community guidelines posted on the Website or Applications. Surface Tracks reserves the right to exclude or suspend any user who violates these rules of conduct, and reserves the right, but does not undertake an affirmative obligation, to remove, screen, or edit any content which is contrary to these rules without prior notice. User Content does not necessarily reflect the opinion of Surface Tracks.
Communications Decency Act. As provided in 47 U.S.C. § 230(c)(1), Surface Tracks is only a distributer, and not the publisher or speaker, of any User Content. As such, Surface Tracks cannot be held liable for making available any User Content which may be false or inaccurate. Any information or opinions contained in the User Content made available through the services are those of their respective authors alone. Surface Tracks does not guarantee the accuracy, completeness, or truthfulness of any User Content. Under no circumstances will Surface Tracks be responsible for any loss or damage resulting from any person's reliance on any User Content.
Reservation of Rights. Subject to Section VIII below regarding the DMCA, Surface Tracks reserves the right to remove or not remove any User Content from the Services for any reason or no reason at all, in Surface Tracks' sole discretion. This reservation includes the exclusive right to decide whether to publish, withdraw, postpone, or alter any User Content. Surface Tracks reserves the right, but does not undertake any affirmative obligation, to screen, monitor, or filter User Content.
Information Storage and Access. Surface Tracks reserves the right, in its sole discretion, to determine whether and how long to store User Content and user data. Surface Tracks will not be responsible for any liability related to the deletion or removal or any data or content maintained on the Services or Surface Tracks' servers.
Submissions, Suggestions, and Feedback. The Services may allow you to submit suggested updates, edits, improvements, photographs, or other information about locations, routes, or other information contained on the Services ("Submissions"). If you submit a Submission to Surface Tracks, you represent and warrant that the information you submit is your own and is true and accurate. While we appreciate your Submissions, you will not receive any compensation in exchange for your Submissions, even if the information contained in your Submissions are subsequently included in the Services. Your Submissions help us provide better information to all users.
By sending us any Submissions, ideas, suggestions, documents or proposals (collectively, "Feedback"), you agree that (i) your Feedback does not contain the confidential or proprietary information of third-parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute, and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against Surface Tracks and its users any claims and assertions of any rights, whether intellectual property rights or otherwise, contained in such Feedback.
VIII. DIGITAL MILLENNIUM COPYRIGHT ACT
Surface Tracks respects the intellectual property rights of others and complies with safe harbor provisions of the Digital Millennium Copyright Act ("DMCA"). Anyone who believes that their work has been reproduced on the Services in a way that constitutes copyright infringement may notify Surface Tracks' designated copyright agent in accordance with Title 17, United States Code, Section 512(c), by providing the following information:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notifications of claimed infringement should be forwarded to Surface Tracks' designated agent as follows:
Alexander D. Boyd
500 Energy Plaza
409 South 17th Street
Omaha, NE 68102-2663
Telephone: (402) 341-6000
The full legal name and physical address of the service provider is as follows:
Surface Tracks, LLC
7 Avenida Vista Grande B-7
Santa Fe, NM 87508
Alternate names the public may be likely to use to search for our designated agent include Surface Tracks, LLC, Surface Tracks, and www.surfacetracks.com.
After receiving a valid DMCA notification of claimed infringement, we will process and investigate the claim and will take appropriate actions under the DMCA, including expeditiously removing or disabling access to any material claimed to be infringing or claimed to be the subject of infringing activity. We will take reasonable steps promptly to notify the user who submitted the material that we have removed or disabled access to such material.
Counter-Notification. If you posted or submitted material to Surface Tracks which Surface Tracks removed or disabled access to pursuant to a DMCA notification of claimed infringement, and you believe your material is not infringing and the material was removed or disabled as a result of a mistake or misidentification, you may send a counter-notification containing the following information in writing to Surface Tracks' designated agent listed above:
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement under penalty of perjury that the you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the your address is outside of the United States, for any judicial district in which Surface Tracks may be found, and that you will accept service of process from the person who provided the notification of claimed infringement or an agent of such person.
If a valid counter-notification is received by our designated agent, we will send a copy of the counter-notification to the original complaining party informing that person that we will replace the removed material or cease disabling access to it in ten (10) business days. Unless our designated agent first receives notice from the original complaining party that such party has filed an action seeking a court order to restrain the alleged infringement, we will replace or restore access to the material in ten (10) to fourteen (14) business days after our designated agent's receipt of the counter-notification, at our sole discretion.
Surface Tracks reserves the right, in its sole discretion, to terminate accounts for users that are deemed to be repeat copyright infringers.
IX. DEVICE AND WIRELESS CARRIER LIMITATIONS AND DISCLAIMERS
While Surface Tracks attempts to provide all Services and Application features to all users, use of the Applications and the Services may be limited for some or all users due to conditions outside of Surface Tracks' control. As a result, not all advertised features may be available to you at all times. Some of these conditions include, but are not limited to, the following: Your mobile device or your wireless carrier may limit the features available to you. Your data or messaging plan may limit your use of the Services. Your wireless voice and/or data signal may make access to the Applications or some of its feature intermittent or unavailable. The Applications and their features may not be available in some geographic locations.
Surface Tracks is not liable, and expressly disclaims any representations or warranties, regarding access to the Services or Applications through a particular wireless carrier, network, or plan, on a particular device, or in a particular location. Surface Tracks does not guarantee that the Services will always be accessible or available. You are solely responsible for any costs you incur to access the Services or Applications through your mobile device.
X. SURFACE TRACKS MOBILE APPLICATION LICENSE (IF AVAILABLE)
Surface Tracks may, from time to time, choose to make available for download one or more of the Surface Tracks mobile Applications. If Surface Tracks makes an Application available, the terms of this license apply to your download and use of the Application. Surface Tracks does not guarantee that any Applications will be supported or available for download.
License. Subject to, and in accordance with, these Terms, and conditioned upon any required payment, Surface Tracks grants to You, and You accept from Surface Tracks, a limited, revocable, non-exclusive, and non-transferable license to use the applicable Application, if available. Surface Tracks reserves all rights not expressly granted to You hereunder. This license is automatically revoked if you violate any of these Terms. You only receive a license to use the Application(s) you download and for which you pay any required fees.
Payment. Certain Applications and application features may be offered for free, for a one-time payment, or on a subscription basis. Please review the particular terms for your Application for more details. Surface Tracks does not guarantee that any portion of the Applications will be free at all times.
Source Code. The grant of this license is not, and shall not be construed as, a grant of any right to You to use, receive or view, copies of source code, schematics, master copies, design materials or other information used by You in creating, developing or implementing the Applications, including updates or modifications thereto. Without limiting the foregoing, You shall have no rights to receive any source code for the Applications and shall not reverse engineer, disassemble or decompile, or otherwise attempt to derive source code for the Applications for any purpose.
Prohibitions. You must not do, or permit others to do, any of the following: (a) copy or modify the Applications in any way, except as expressly permitted in these Terms; (b) remove or modify Surface Tracks' copyright notices, trademark, logo, legend or other notice of ownership from any originals or copies of the Applications or Services; (c) attempt to view, read, modify, reverse compile, reverse assemble, disassemble or print the Applications' source code or object code or other runtime objects or files distributed with the Applications; (d) otherwise reverse engineer, modify or copy the look and feel, functionality or user interface of any portion of the Applications or Services; (e) rent, lease, distribute (or redistribute), provide or otherwise make available the Applications or Services, in any form, to any third party (including in any service bureau or similar environment); (f) use the Applications or Services to process the data of third parties; (g) use, install, or make available the Applications, in whole or in part, through a wide area network including but not limited to World Wide Web sites, intranets, or application Service Providers (ASP); or (h) use the Application or Services to infringe on any person's right of privacy. In addition, You will not violate or attempt to violate the security of Surface Tracks' networks or servers, including (x) access data not intended for You or log into a server or account which You are not authorized to access; (y) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper written request and authorization; or (z) attempt to interfere with service to any user, host or network, including by means of submitting a virus, overloading, flooding, spamming, mail bombing or crashing
You are also prohibited from taking any actions in violation of the prohibitions and requirements set forth in Section XIII below.
Infringement. If a third party claims that the Applications or the Services infringes its patent, copyright or trade secret, or any similar intellectual property right, Surface Tracks will defend You against that claim at Surface Tracks' expense and pay all damages that a court finally awards, provided that You promptly notify Surface Tracks in writing of the claim, and You allow Surface Tracks to control and You cooperate with Surface Tracks in, the defense or any related settlement negotiations. If such a claim is made or appears possible, You agree to permit Surface Tracks to modify the Applications or Services in order to attempt to avoid such claims. If Surface Tracks determines that this alternative is not reasonably available, You agree to uninstall or return the Applications on the Surface Tracks' request, and without any further liability or obligation of Surface Tracks. Further, Surface Tracks shall have no obligation whatsoever for any claim based on Your modification of the Applications or Your combination, operation, or use with any product, data or apparatus not specified or provided by Surface Tracks. THIS PARAGRAPH STATES SURFACE TRACKS' ENTIRE OBLIGATION TO YOU WITH RESPECT TO ANY CLAIM OF INFRINGEMENT. If no Application is currently available, this provision nonetheless applies to any claim of infringement regarding the Website or Services.
Maintenance or Support. Surface Tracks is not under any obligation to provide maintenance or support for the Applications. Surface Tracks may provide maintenance or support for the Applications in Surface Tracks' sole discretion.
Uninstallation. You may, at any time, uninstall the Applications by utilizing your mobile device's procedures for uninstalling downloaded applications. However, Surface Tracks may retain collected data after the uninstallation.
Third-Party Terms. You must comply with applicable third-party terms of service when using the Applications, including any terms required by your mobile carrier or device manufacturer.
Apple and Google-Specific Terms. The following additional terms and disclosures only apply to you if you use the Applications through the Apple or Google operating systems, if available and as applicable:
1. This is a custom end-user license agreement between you and Surface Tracks, and not with Apple. Surface Tracks, and not Apple, is solely responsible for the Application, the Services, and the related content.
2. Surface Tracks grants you the non-transferable right to use the Application on any Apple-branded products that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
3. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to this Application.
4. In the event of any failure of the Application to conform to any applicable warranty, if any, you may notify Apple, and Apple will refund the purchase price, if applicable, for the Application to you. 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 of to conform to any warranty, if any, will be the sole responsibility of Surface Tracks.
5. Surface Tracks, and not Apple, is responsible for addressing any claims by you or any third party relating to the Application or your possession and/or use of the Application, including but not limited to: (a) product liability claims; (b) any claim the Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation, including in connection with the Application's use of the HealthKit and HomeKit frameworks, if applicable.
6. In the event of any third party claim that the Application or your possession and use of that Application infringes that third party's intellectual property rights, Surface Tracks, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
7. You represent and warrant that (i) you is 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.
8. Any questions, complaints, or claims with respect to the Application should be directed to Surface Tracks, LLC, PMB 466, 7 Avenida Vista Grande B-7, Santa Fe, NM, 87508; email@example.com; Telephone: 505-401-1297.
9. You must comply with applicable third party terms of agreement when using the Application.
10. Apple and Apple's subsidiaries are third party beneficiaries of these Terms, and, upon your acceptance, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
1. This is a separate end user license agreement between you and Surface Tracks, and not with Google.
2. Subject to, and in accordance with, these Terms and any required payments, Surface Tracks grants to You, and You accept from Surface Tracks, a non-exclusive, worldwide, and perpetual license to perform, display, and use the Application on your device that can access Google Play. The user may include, but is not limited to, a family group, with a family manager and family members whose accounts are joined together for the purpose of creating a family group. Family groups on Google Play are subject to reasonable limits designed to prevent abuse of family sharing features. Users in a family group may purchase a single copy of the Services (except in-app and subscription products, which cannot be shared) and share it with other family members in their family group. This license is automatically revoked if you violate any of these Terms.
3. You are allowed unlimited reinstalls of the Application, unless and until Surface Tracks removes the Application from the Google Play or any other Google-branded distribution platform.
4. Surface Tracks, and not Google, will have the sole responsibility to undertake or handle support and maintenance of the Application or any complaints about the Application, subject to these Terms.
5. Surface Tracks, and not Google, is responsible for addressing any claims by you or any third party relating to the Application or your possession and/or use of the Application, including but not limited to: (a) product liability claims; (b) any claim the Application fails to conform to any applicable legal or regulatory requirement; (c) intellectual property claims; and (d) claims arising under consumer protection, privacy, or similar legislation, if applicable.
6. Surface Tracks, and not Google, is solely responsible for Surface Tracks' breach of any agreement with Google, any applicable third-party contract or terms of service, or any applicable law or regulation.
7. Any questions, complaints, claims, or issues regarding defects or performance issues with respect to the Application should be directed to Surface Tracks, LLC, PMB 466, 7 Avenida Vista Grande B-7, Santa Fe, NM, 87508; firstname.lastname@example.org; Telephone: 505-401-1297.
XI. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
ASSUMPTION OF RISK. You assume all risk when using the information provided by the Services, including all of the risks associated with the activities discussed in the Services. For example, you assume all inherent risks associated with driving, biking, hiking, traveling, etc., even if you use the Services to obtain information relevant to your travel.
It shall be the sole and absolute responsibility and decision of the user to determine the user's particular activities and navigation routes. Even if Surface Tracks provides tools and information related to particular activities, locations, or navigation routes, Surface Tracks does not make any decisions for any party and it is the responsibility of the user to make those decisions for themselves. You agree to take all precautions you deem necessary in your sole discretion when traveling or engaging in other activities. Surface Tracks is not a guarantor of any user's safety.
Do not rely solely on Surface Tracks to determine the appropriate navigation route for your and/or your particular vehicle. While Surface Tracks strives to provide updated information about routes and route hazards (e.g., low clearance, bridges, tunnels) you should not rely solely on the information provided by Surface Tracks and you should ensure that your vehicle can safely pass through your chosen route. Surface Tracks is not liable for any damage to you and/or your vehicle caused by the particular route you chose or any other hazards related to that route or location.
Surface Tracks provides you a variety of information, tools, and services about locations, businesses, and other conditions outside of Surface Tracks' control. Information about particular locations, routes, or other conditions may change significantly from moment to moment and may be incomplete. As a result, it is not possible to provide completely accurate and up-to-data information at all times and information may be missing or obsolete. Surface Tracks does not guarantee that the information provided through the Services is accurate or otherwise reliable. Do not rely solely on the information, commentary, or other content available through the Services. We disclaim all liability and responsibility arising from any reliance placed on the data, information, or materials accessible on or through the Services by any visitor to our sites, or by anyone who may be informed of any of its contents.
Surface Tracks relies on maps and other information provided by third-parties. Surface Tracks cannot guarantee that all maps or other information are always up-to-date or otherwise accurate. We cannot guarantee that all location information contained in the Services is compatible with any particular navigation systems. If you use the Services to send a particular destination to your chosen navigation system, we do not control the particular routes chosen by your navigation system and whether those routes are appropriate for you or your particular vehicle.
Surface Tracks does not represent or warrant and expressly disclaims any warranty that (i) any information provided by the Services will be accurate, (ii) the Services will be error-free or accessible at all times, (iii) defects will be corrected, (iv) the Services or the server that makes the Services available, are free of viruses or other harmful component, (v) the use or the results of the use of the Services or the products or services made available through the Services will be correct, accurate, timely, or otherwise reliable, or (vi) that the Services will be supported on all web browsers or mobile operating systems. It is expressly understood by all users that the Applications and the Services may be from time to time be inaccessible, inoperable, or may not provide all features as a result of multiple factors which may or may not be within Surface Tracks' control. These factors may include, but are not limited to, variables in internet, telecommunications, data, cellular or satellite services provided by your wireless carrier to your mobile device, geographic limitations, poor wireless signal strength, periodic maintenance to the Services, malfunctions in the Applications or the Services, limitations due to your particular mobile device, or any other reason which may prevent the Applications and its services from being accessible at all times. Surface Tracks disclaims any liability as a result of any user's inability to access or use the Applications or the Services at a particular time, location, on a particular device, or using a particular wireless provider.
Further, Surface Tracks expressly disclaims any representation or warranty relating to any products or services displayed, described, advertised, sold, offered, reviewed, recommended, linked to, or pictured on or through the Services. Surface Tracks does not endorse any such products or services and does not warrant that any such products or services are available, will meet the user's needs, are appropriate for any particular use, or are of any certain quality. Surface Tracks does not guarantee that any product or service descriptions, reviews, portrayals, specifications, or the like are accurate. Under no circumstances will Surface Tracks be responsible for any loss or damage resulting from any person's reliance on any such product or service descriptions, reviews, or specifications contained on the Services.
THE SERVICES AND ANY PRODUCTS SOLD THROUGH THE SERVICES ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY SURFACE TRACKS EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES OR PRODUCTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. SURFACE TRACKS DOES NOT WARRANT THAT THESE SERVICES OR PRODUCTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, THAT THE OPERATION OF THE WEBSITE OR APPLICATIONS WILL BE UNINTERRUPTED, AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR PRODUCTS, OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION OR PRODUCTS PROVIDED THROUGH THE SERVICES. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU. ALL PRODUCTS OR SERVICES SOLD THROUGH THE SERVICES ARE SOLD BY THE SELLER AND NOT BY SURFACE TRACKS.
SURFACE TRACKS DOES NOT WARRANT, AND YOU SHOULD NOT RELY SOLELY UPON ANY ACTIONS WHICH SURFACE TRACKS MAY TAKE TO VERIFY, THE STATEMENTS, REPRESENTATIONS, AND WARRANTIES MADE BY ANY USERS OF THE SERVICES, IF ANY. RATHER, YOU ARE ENCOURAGED TO, AND EXPECTED TO, PERFORM YOUR OWN DUE DILIGENCE TO OBTAIN INDEPENDENT INFORMATION ABOUT THE INFORMATION DISCUSSED ON THE SERVICES AND DISCUSSED BY USERS, INCLUDING INFORMATION REGARDING NAVIGATION ROUTES, FACILITY LOCATIONS, AND OTHER GUIDANCE.
We do not guarantee that the Services, or any products sold through the Services, will be compatible with all software or with all devices.
When you use the Applications on your mobile device, your wireless service carrier may charge you data rates, message fees, and related fees.
The Services may provide as a convenience links to third-parties that provide information regarding weather, maps, or other information. Those third-parties are beyond Surface Tracks' control and Surface Tracks does not guarantee that those third-parties or the information they provide, will be accessible or accurate.
XIII. COMPLIANCE AND PROHIBITED ACTIONS
You will not use the Services in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third-parties, including without limitation, any law or right regarding any copyright, patent, trademark, trade secret, or other proprietary or property right, false advertising, telemarketing, unfair competition, defamation, invasion of privacy, rights of celebrity, or other federal or state law, rule, or regulation.
You may not use any information obtained from the Service in order to harass, abuse, or harm another person.
You may not purchase any products or services through the Services which are prohibited in your jurisdiction.
In order to protect the integrity of the Services, Surface Tracks reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Services. You may not use any technologies or processes to circumvent any IP blocks or other mechanism put in place by Surface Tracks to limit, restrict, or prevent access to the Services.
You may not reproduce, copy, bulk download, redistribute, or resell any content contained within the Services without the express written consent of Surface Tracks. You may not use any software, devices, scripts, crawlers, robots, or other automated processes to copy, scrape, or systematically acquire any content contained within the Services without the express written consent of Surface Tracks. You may not frame or mirror any Surface Tracks website or content without the express written consent of Surface Tracks.
You agree to indemnify, hold harmless and defend Surface Tracks, its managers, members, directors, employees, agents, or affiliates (collectively the "Indemnified Parties") at your expense, against any and all third-party claims, actions, proceedings, and suits brought against any of the Indemnified Parties, and against all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees) incurred by the Indemnified Parties arising out of or relating to (i) your breach of any term or condition of these Terms, (ii) your Posting of User Content, (iii) your use of the Services, or (iv) your unauthorized use of the Services. In such a case, the Indemnified Party or Parties will provide you with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. The Indemnified Party or Parties will reserve the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
XV. LIMITATIONS OF LIABILITY
SURFACE TRACKS WILL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY (A) INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, (B) LOSS OF PROFITS, (C) LOSS OF DATA OR INFORMATION, (D) BODILY DAMAGE OR EMOTIONAL DISTRESS, (E) PROPERTY DAMAGE, OR (F) REPUTATIONAL HARM, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SURFACE TRACKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT TO THE CONTRARY, SURFACE TRACKS' CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, OR ANY PRODUCTS SOLD THROUGH THE SERVICES SHALL NOT EXCEED THE GREATER OF (1) THE AGGREGATE FEES PAID BY YOU FOR THE SURFACE TRACKS PRODUCTS OR SERVICES DURING THE PREVIOUS SIX (6) MONTHS, OR (2) ONE HUNDRED AND 00/100 DOLLARS ($100.00). YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE WEBSITE, RELATED SERVICES, PRODUCTS, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SERVICES.
XVI. TERMS AND TERMINATION
XVII. PRIVACY, USE, AND DISSEMINATION OF PERSONAL INFORMATION
By providing any personal or non-personal information to Surface Tracks through the Services, or by using the Services, you automatically grant, and warrant and represent that you have the right to grant, Surface Tracks a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, assignable, sublicensable, transferable license to collect, store, use, reproduce, disclose, transfer, and disseminate your collected personal and non-personal information in order to provide the services contemplated under these Terms, to manage your account, to send you communications, or for any other lawful purpose in Surface Tracks' sole discretion.
Surface Tracks, and any third-parties to which Surface Tracks provided your contact information, may contact you via any method of communication you submitted through the services, including, but not limited to, email, cell phone, or text message. By providing Surface Tracks your contact information, you agree to receive communications from Surface Tracks or other third-parties who obtained your contact information from Surface Tracks.
Surface Tracks may support the Services by using advertisements. These advertisements may be targeted to the content or information stored on or submitted through the Services. Advertisements may also be targeted based on information stored in cookies or similar objects on your computer or device, including cookies which track your internet usage across sites and over time. The manner, mode, and extent of advertising on the Services are subject to change without notice. You agree that Surface Tracks may place advertising on the Services and you agree not to block such advertising.
XIX. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside and to comply with any other local laws affecting the transmission or posting of content or affecting the privacy of persons.
The U.S. Department of the Treasury, through the Office of Foreign Assets Control ("OFAC"), prohibits U.S. companies from engaging in all or certain commercial activities with certain sanctioned countries (each a "Sanctioned Country") and certain individuals, organizations or entities, including without limitation, certain "Specially Designated Nationals" ("SDN") listed by OFAC. If you are located in a Sanctioned Country or are listed as an SDN, you are prohibited from registering or signing up with, subscribing to, or using the Services. If Surface Tracks determines that the Services are being used by prohibited persons, Surface Tracks will terminate any impacted accounts. Surface Tracks reserves the right to also provide notification of any such usage to the US DOT/OFAC.
XX. APPLICABLE LAW AND VENUE
These Terms shall be governed by and construed under the laws of the state of New Mexico without reference to its conflicts of law principles. In the event of any conflicts between foreign law, rules, and regulations, and New Mexico law, rules, and regulations, New Mexico law, rules and regulations shall prevail and govern. Subject to the mandatory arbitration provision below, each party agrees to submit to the exclusive and personal jurisdiction of the courts located in New Mexico. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to these Terms. The products and services provided by Surface Tracks hereunder are controlled by U.S. Export Regulations, and they may not be exported to or used by embargoed countries or individuals. Any notices to Surface Tracks must be sent to:
Surface Tracks, LLC
7 Avenida Vista Grande B-7
Santa Fe, NM 87508
via first class or air mail or overnight courier, and are deemed given upon receipt.
XXI. MANDATORY ARBITRATION AND PROHIBITION ON CLASS ACTIONS
The parties hereto agree and understand that any dispute or claim related to your use of the Services, any dispute or claim related to your purchase or use of any products or services sold through the Services, any disputes regarding any alleged breach of these Terms, to the extent such dispute cannot otherwise be resolved, as well as any other action to enforce these Terms or for the breach of these Terms, shall be referred to final and binding arbitration, and not in court. The Federal Arbitration Act and federal arbitration law apply to this agreement.
Any arbitration proceeding will take place in New Mexico, subject to the laws of New Mexico and will otherwise be governed by the then-current commercial arbitration rules of the American Arbitration Association, and the parties hereto expressly waive their rights, if any, to have any such matters heard by a court or jury, or administrative agency whether federal or state. The parties in any arbitration to enforce this agreement or remedy its breach will equally share the costs associated with such arbitration proceedings; provided, that, each party shall pay its own attorney's fees. Within fourteen (14) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association.
All parties agree that any dispute resolution proceedings (including any arbitrations and any court proceedings) will be conducted only on an individual basis and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class actions and class arbitrations are prohibited. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
These Terms (including any amendment agreed upon by the parties in writing) represent the complete agreement between us concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of these Terms are held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of these Terms shall continue in full force and effect. A waiver of any default is not a waiver of any subsequent default. The relationship between Surface Tracks and you is not one of employee/employer or of a legal partnership relationship. These Terms shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.