These EXCURZO Terms of Service (the "Agreement") are agreed to between Summit Seven Corp. ("Excurzo") and you, or, if you represent an entity or other organization, that entity or organization (in either case "You").
Excurzo offers an online photo sharing and location information platform known as Excurzo (the "Platform"). You may access the Platform through the website located at www.excurzo.com and through various other websites operated by Excurzo and third parties (each a "Site") or using mobile and online applications provided by and on behalf of Excurzo (each, an "Application," and each Site and Application treated as a part of the "Platform" for purposes of this Agreement).
The Platform provides end users ("Users") with the ability to access photos, videos, information, data, maps, and other content ("Content") on a variety of topics, as well as additional services, functionality and resources described on the Platform ("Services").
This Agreement applies to the Platform and the Content and Services available through the Platform, regardless of the Site or Application through which You access or use the Platform, Content, or Services.
PLEASE CAREFULLY READ THIS AGREEMENT. BY ACCESSING OR USING THE PLATFORM, CONTENT OR SERVICES, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THESE TERMS, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT.
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, EXCURZO IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM, CONTENT OR SERVICES AND YOU MUST NOT ACCESS OR USE THE PLATFORM, CONTENT OR SERVICES. IF YOU ACCESS OR USE THE PLATFORM, CONTENT OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.
Unless You later enter into any other agreements with Excurzo regarding the Platform, Content or Services, this Agreement is the complete and exclusive agreement between You and Excurzo regarding Your access to and use of the Platform, Content, and Services. This Agreement supersedes any prior agreement or proposal, oral or written, and any other communications between You and Excurzo relating to Your use of the Platform, Content or Services as a User of the Platform.
- DEFINITIONS. Terms used in this Agreement have the definitions given in this Agreement or, if not defined in this Agreement, have their plain English meaning as commonly interpreted in the United States.
- TERM. This Agreement is entered into as of the earlier of the date You first download or install any Application or first access or use the Platform, Content or Services (the "Effective Date") and will continue until terminated as set forth herein.
- MODIFICATIONS. Excurzo reserves the right, at any time, to modify the Platform, Content or Services, with or without notice to You, by making those modifications available on the Platform. Excurzo also reserves the right, at any time, to modify the terms of this Agreement. Excurzo will inform You of the presence of any changes to this Agreement by posting those changes on the Platform or by providing You with notice through the Platform. Any modifications will be effective 30 days following posting on the Platform or delivery of such notice through the Platform, except in the case of a legally required modification which will be effective upon posting. You may terminate this Agreement as set forth below if you object to any such modifications. However, You will be deemed to have agreed to any and all modifications through Your continued use of the Platform, Content or Services following such notice period.
- ELIGIBILITY. The Platform, Content and Services are intended for use by individuals 13 years of age and older. If You are 13 or older but younger than 18, then You may establish Your own Account and access and use the Platform, Content and Services only if Your parent or guardian accepts this Agreement on Your behalf. If you are a parent or guardian entering this Agreement for the benefit of a child age 13 or older but under 18, then You agree You will be solely responsible for all access to and use of the Platform, Content or Services.
5.1 - Users. You are permitted to access certain Content and Services without establishing a user account on the Platform (a "User Account"), provided that You have agreed to this Agreement. However, access to certain Content and Services requires that You establish a User Account on the Platform. Approval of Your request to establish a User Account will be at the sole discretion of Excurzo. Each User Account and the user identification and password for each User Account (the "User Account ID") is personal in nature. Each User Account is for Your personal use and each User Account ID may be used only by You alone. You may not distribute or transfer Your User Account or User Account ID or provide a third party with the right to access your User Account or User Account ID. You are solely responsible for all use of the Platform, Content and Services through Your User Account. You will ensure the security and confidentiality of Your User Account ID and will notify Excurzo immediately if Your User Account ID is lost, stolen or otherwise compromised. You are fully responsible for all liabilities and damages incurred through the use of Your User Account or under Your User Account ID (whether lawful or unlawful) and any transactions completed through Your User Account or under Your User Account ID will be deemed to have been lawfully completed by You.
5.2 - Account Registration. In connection with establishing a User Account, You will be asked to submit certain information about Yourself ("Registration Information"). You agree that: (a) all Registration Information You provide will be accurate, complete and current; and (b) You will maintain and promptly update Your Registration Information to keep it accurate, complete and current. You may not: (i) select or use an Account ID of another person with the intent to impersonate that person; and (ii) use an Account ID that Excurzo, in its sole discretion, deems offensive.
6.1 - To the Platform. Subject to Your compliance with this Agreement, Excurzo will permit You to access and use the Platform, Content and Services solely for lawful purposes and only in accordance with the terms of this Agreement and any other agreement You agree to with Excurzo before being given access to any specific aspects of the Platform. Any additional agreement is in addition to this Agreement and will govern your use of the portions of the Platform to which the additional agreement applies in the event of a conflict between the terms of this Agreement and the additional agreement.
6.2 - To Applications. Subject to Your compliance with this Agreement and any other terms and conditions accompanying each Application, Excurzo will permit You to download and install Applications and operate those Applications solely for the purpose of using and accessing the Platform, Content, and Services as intended. You may install each Application only on computers, mobile devices or smart phones owned or controlled by You and used only for Your own personal and non-commercial purposes in accordance with this Agreement and any applicable terms and conditions accompanying the Application or otherwise provided to You by Excurzo. Except as expressly set forth in the previous sentence, You are granted no licenses or other rights in or to any Application. You agree not to use, modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit or utilize any Application other than as expressly permitted in this Agreement or any other agreement You are required to agree to before being given access to any Application.
6.4 - To Content. Unless otherwise noted on the Platform, all Content available through the Platform ("Platform Content"), including all text, audio, video, photographs, illustrations, graphics and other media, is owned by Excurzo, the Users providing that Platform Content, and Excurzo's other third party providers. All Platform Content is provided for informational purposes only and You are solely responsible for verifying the accuracy, completeness and applicability of all Platform Content and for Your use of any Platform Content. Subject to Your compliance with this Agreement, You may access the Platform Content solely for Your own personal and noncommercial purposes in connection with Your own use of the Platform and Services. You will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any Platform Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any Platform Content; or (c) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any Platform Content. Excurzo has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Platform Content. Without limiting the foregoing, Excurzo will not be held liable to You or any other third party for any Content (including Your Content) under a Federal Law called the Communications Decency Act or CDA, 47 U.S.C. 230. Except as set forth in this Agreement, You are granted no licenses or other rights in or to any Platform Content, or any IPR (as defined below) therein or related thereto. If You would like to use any Platform Content in a manner not permitted by this Agreement, please contact Excurzo.
6.5 - To Third-Party Services. The Platform may provide You with the choice to access certain Services developed, provided or maintained other third-party service providers ("Third Party Services"). In addition to the terms of this Agreement, Your access to and use of any Third Party Services is also subject to any other agreement You may agree to before being given access to the Third Party Services (each, a "Third Party Service Agreement"). The terms of any Third Party Service Agreement (which may include payment of additional fees) will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement but will not apply to any other Services You may access through Excurzo. Except as set forth in this Agreement, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Service Agreement.
7. YOUR CONTENT.
In addition to the Content and Services available for no charge through the Platform, You may be offered the opportunity to purchase, subscribe to, or otherwise obtain access to Content, Services, or other products or services through the Platform for an additional fee. Any purchase or subscription will be subject to any terms and conditions displayed on or through the Platform in connection with the purchase or subscription in addition to the terms of this Agreement. Unless otherwise indicated on the Platform, purchases or subscriptions made by You through the Platform cannot be exchanged and any fees or charges in connection with those purchases or subscriptions are non-refundable. All information that You provide in connection with a purchase or other transaction through the Platform will be accurate, complete and current. You authorize Excurzo (or a company chosen to act on behalf of Excurzo) to charge the credit card, debit card, mobile services account, or other payment method provided in connection with any transaction made through Your Account on the Platform and agree to honor all charges incurred in connection with any such transaction.
In connection with Your Content, You may also be provided with the opportunity to participate in contests provided by Excurzo ("Contests") and receive prizes ("Prizes") based on Your Content submitted to the Contest. A description of each Contest and the terms and conditions applicable to the Contest (the "Contest Terms") will be provided through the Platform. By submitting Your Content to the Contest, You agree to participate in such Contest and accept the Contest Terms applicable to that Contest.
This Agreement may be terminated by either party at any time, in that party's sole discretion, upon notice to the other party as permitted under this Agreement. Upon termination or expiration of this Agreement for any reason: (1) all rights and subscriptions granted to You under this Agreement will terminate; (2) You will immediately cease all use of and access to the Platform and all Content and Services (including, without limitation, all Content You obtained prior to termination); (3) You will immediately delete any Applications You have downloaded or installed prior to termination; and (4) Excurzo may, in its sole discretion, delete Your Account and any of Your Content held by Excurzo at any time. Sections 1 (Definitions), 8 (Purchases), 10 (Termination), 13 (Ownership), 14 (Representations and Warranties), 15 (No Warranties; Disclaimers), 16 (Indemnity), 17 (Limitation on Liability), 18 (Data Privacy), 20 (Disputes), 21 (Governing Law and Venue), 22 (Notices) and 24 (Additional Terms) will survive any expiration or termination of this Agreement.
Without limiting Excurzo's right to terminate this Agreement, Excurzo may also suspend Your access to Your Account and the Platform or any Content or Services (including Your Content), with or without notice to You, upon any actual, threatened or suspected breach of this Agreement or applicable Law or upon any other conduct deemed by Excurzo, in its sole discretion, to be inappropriate or detrimental to the Platform, Services, Excurzo, or any other User or third party.
12. PLATFORM TECHNOLOGY.
The Platform, and the databases, software, hardware and other technology used by or on behalf of Excurzo to operate the Platform, and the structure, organization, and underlying data, information and software code thereof (collectively, the "Technology"), constitute valuable trade secrets of Excurzo. You will not, and will not permit any third party to: (1) access or attempt to access the Technology except as expressly provided in this Agreement; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Technology or otherwise make the Technology available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) monitor the availability, performance or functionality of the Technology; or (9) interfere with the operation or hosting of the Technology.
Excurzo retains all right, title and interest, including, without limitation, all IPR (as defined below), in and to the Technology and any additions, improvements, updates and modifications thereto. You receive no ownership interest in or to the Technology and You are not granted any right or license to use the Technology itself, apart from Your ability to access the Platform, Content and Services under this Agreement. The Excurzo name, logo and all product and service names associated with the Platform, Content and Services are trademarks of Excurzo and its licensors and providers and You are granted no right or license to use them. For purposes of this Agreement, "IPR" means all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
14. REPRESENTATIONS AND WARRANTIES.
14.1 - Mutual. Each party hereby represents and warrants to the other party that: (a) it has the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on behalf of such party; and (c) it has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement.
14.2 - Compliance With Laws. You acknowledge that the Platform is a general purpose online service and is not specifically designed to facilitate compliance with any specific Law. You acknowledge that You will access and use the Platform in compliance with all Laws applicable to You, Your Content and any other Platform Content You may access through the Platform. Excurzo is not responsible for notifying You of any such Law, enabling Your compliance with any such Law, or for Your failure to comply. You represent and warrant to Excurzo that Your Content and Your use of and access to the Platform, including any Platform Content, will comply with all applicable Laws and will not cause Excurzo itself or any other User to violate any applicable Laws.
15. NO WARRANTIES; DISCLAIMERS.
THE PLATFORM, CONTENT AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." EXCURZO AND ITS PROVIDERS DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY OR CURRENCY OF THE PLATFORM OR ANY CONTENT OR SERVICES AND DO NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED IN THE PLATFORM CONTENT OR OTHER DATA, INFORMATION OR CONTENT THAT MAY BE PROVIDED THROUGH THE PLATFORM. EXCURZO AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE PLATFORM, CONTENT, SERVICES AND OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EXCURZO, ITS EMPLOYEES, PROVIDERS OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION.
You hereby agree to indemnify, defend, and hold harmless Excurzo and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, users, customers, providers, licensees, and successors in interest ("Indemnified Parties") from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising in any manner from: (1) Your access to or use of the Platform or any Content, or Services; (2) Your Content or any access to or use thereof; (3) any access to or use of Your Content by any Users; (4) Your collection, use and disclosure of any User Information, and (5) Your breach of any representation, warranty, or other provision of this Agreement. Excurzo will provide You with notice of any such claim or allegation, and Excurzo will have the right to participate in the defense of any such claim at its expense.
17. LIMITATION ON LIABILITY.
EXCURZO WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE PLATFORM, CONTENT OR SERVICES, EVEN IF EXCURZO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF YOUR CONTENT, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT, GOODS OR SERVICES. EXCURZO'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL CONTENT AND SERVICES PROVIDED UNDER THIS AGREEMENT OR THROUGH THE PLATFORM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $10 OR, IN THE CASE OF ANY PURCHASES YOU MAKE THROUGH THE PLATFORM, THE AMOUNTS PAID BY YOU TO EXCURZO FOR THOSE PURCHASES. YOU AGREE THAT EXCURZO WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, EXCURZO'S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
18. DATA PRIVACY.
19. CLAIMS OF INFRINGEMENT.
Excurzo respects Your copyrights and other intellectual property rights and those of other third parties. If You believe in good faith that Your copyrighted work has been reproduced on the Platform without Your authorization in a way that constitutes copyright infringement, You may notify our designated copyright agent by mail to:
Summit Seven Corp.
Attn: Excurzo Copyright Agent
374 Parkview Drive
Steamboat Springs, CO 80487
Please provide the following information to Excurzo's Copyright Infringement Agent: (1) the identity of the infringed work, and of the allegedly infringing work; (2) Your name, address, daytime phone number, and email address, if available; (3) a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) a statement that the information in the notification is accurate and, under penalty of perjury, that You are authorized to act on behalf of the owner; and (5) Your electronic or physical signature.
Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a "Dispute"), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the American Arbitration Association ("AAA") then in effect (the "Rules"). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the "Initial Period") after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Excurzo in Denver County, Colorado U.S.A. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
21. GOVERNING LAW AND VENUE.
The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A. as such laws apply to contracts between Colorado residents performed entirely within Colorado without regard to the conflict of laws provisions thereof. Subject to Section 19 (Disputes), each party will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal court in the District of Colorado, U.S.A. or in state court in Denver County, Colorado U.S.A., and You irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts by Excurzo.
Unless otherwise specified in this Agreement, any notices required or allowed under this Agreement will be provided to Excurzo by postal mail to the address for Excurzo listed on the Platform. Excurzo may provide You with any notices required or allowed under this Agreement by sending You an email to any email address You provide to Excurzo in connection with Your Account, provided that in the case of any notice applicable both to You and other Users of the Platform, Excurzo may instead provide such notice by posting on the Platform. Notices provided to Excurzo will be deemed given when actually received by Excurzo. Notice provided to You will be deemed given 24 hours after posting to the Platform or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
23. LINKED SITES.
The Platform and Services may contain links to third-party sites or Content that are not under the control of Excurzo. If you access a third-party site or Content from the Platform or Services, then you do so at your own risk and Excurzo is not responsible for any content on any linked site or content. You may establish a link to the Site, provided that the link does not state or imply any sponsorship or endorsement of Your site by Excurzo or any group or individual affiliated with Excurzo. You may not use on your site any Platform Content or marks appearing on the Site or Platform in establishing the link. You may not frame or otherwise incorporate into another site the content or other materials on the Platform without prior written consent.
24. ADDITIONAL TERMS.
Unless otherwise amended as provided herein, this Agreement will exclusively govern Your access to and use of the Platform, Content and Services, and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Platform, Content and Services. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers by Excurzo under this Agreement must be in writing or later acknowledged by Excurzo in writing. Any waiver or failure by Excurzo to enforce any provision of this Agreement on one occasion will not be deemed a waiver by Excurzo of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys' fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of Excurzo. Any assignment in violation of the foregoing will be null and void. Excurzo may assign this Agreement to any party that assumes Excurzo's obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. The Platform, Content or Services may contain links to third-party sites that are not under the control of Excurzo. Excurzo is not responsible for any content on any linked site and You access any third-party site from the Platform, Content or Services at Your own risk. Any reference herein to "including" will mean "including, without limitation." Upon request from Excurzo, You agree to provide Excurzo with such documentation or records with respect to Your activities under this Agreement as may be reasonably requested for Excurzo to verify Your compliance with the terms of this Agreement and all applicable Laws.