TERMS & CONDITIONS | PRIVACY POLICY

Welcome to LightPole!

LightPole, Inc. (“LightPole”) provides location based services (“Services”). This Terms of Use Agreement (“Agreement”) sets forth the terms and conditions of your use of the Services and the LightPole software (“Software”) as a registered LightPole subscriber (“Subscriber” or “You”) and your use of the LightPole website as a visitor. This Agreement incorporates by reference LightPole’s Privacy Policy and any terms and conditions published by LightPole that are applicable to the use of additional features utilized by you.

LightPole may modify this Agreement from time to time and will post modified version of the Agreement on the LightPole website at www.lightpole.net. Modified versions of this Agreement shall be effective upon posting by LightPole. You agree to be bound to any changes to this Agreement by using the Services or accessing the LightPole website after any such modification is posted. Accordingly, you must review this Agreement regularly to ensure you are updated as to the then-current terms and conditions.

Your License to Use the Services and Software

To use the Services, you must set up an account and use the software. Subject to the terms and restrictions set forth in this Agreement, LightPole grants You a non-exclusive, non-transferable license, to: (a) download and install the Software on multiple mobile devices; and (b) use the Software and access the Services for the sole purpose of testing the Software and Service for a limited period of time prior to commercial launch. You may not use, copy, modify, or transfer the Software, in whole or in part, or use the Services except as expressly provided in this Agreement. You may use the Software and Services only for your personal use and may not share your account with a third party. Except for the foregoing license grant, this Agreement does not grant You any rights to patents, copyrights, trade secrets, trademarks, source code, or any other rights in respect to the Software or Services.

You may not reverse engineer, disassemble, decompile, modify or translate the Software, or otherwise attempt to derive the source code of the Software, or authorize any third party to do any of the foregoing (collectively, “Software Limitations”). The Software is licensed, not sold, to You for use only under the terms of this Agreement, and LightPole reserves all rights not expressly granted to You.

If You are located outside the U.S., then You acknowledge and agree that the mobile features of the Service may not be available to You. You are responsible for complying with any local laws in its jurisdiction which might impact Your right to import, export or use the Software and/or Services, and You represents that You have complied with any regulations or registration procedures required by applicable law to make this license enforceable.

YOU AGREE THAT THE LICENSE GRANTED HEREIN MAY BE TERMINATED BY LIGHTPOLE AT ANY TIME WITHOUT LIABILITY OR FURTHER OBLIGATION TO YOU. YOU ACKNOWLEDGE AND AGREE THAT LIGHTPOLE MAY IN ITS SOLE DISCRETION, AND WITHOUT ANY LIABILITY TO YOU, DELETE OR REMOVE SOME OR ALL DATA AND CONTENT STORED BY YOU THROUGH THE SERVICES AND THAT YOU MAY NOT BE ABLE TO PORT SUCH DATA TO ANOTHER VERSION OF THE SERVICES.

Requirements to Use the Services

To take full advantage of the Services, you need to have a computer with Internet access and a mobile phone and wireless services with necessary wireless data features. You are solely responsible for all equipment and services (and related costs and expenses) necessary to use the Services. You acknowledge and agree that by using the Services, You may incur charges from Your wireless carrier, depending upon the Your wireless plan, as use of the Service involves SMS notification of new content and that all associated costs are your responsibility. You represent and agree that You: (a) are of legal age to form a binding contract, that You will comply with all applicable laws and regulations, and that there is no law or restriction barring you from using the Services; and (b) will provide and maintain true, accurate, current, and complete information about yourself when setting up an account and update such information as necessary to keep it current. You also understand and agree that the Services may include certain communications from LightPole, such as service announcements and administrative messages, and that these communications are considered part of Your membership and you will not be able to opt out of receiving them. Further, You and agree that the Services may involve the display of advertisements and that these advertisements are necessary for LightPole to provide the Services. You hereby authorize LightPole to import content designated by you into your account and, to the extent that you import or authorize the importation of any such data from a third party, you represent and warrant that you have the right to provide such data to LightPole without violating any third party rights or agreements and that importation of such data is at your express authorization.

Limitations on Use

You acknowledge and agree that: (a) LightPole may limit the storage capacity for Your account and the size of content; (b) any data, information, text or other communication, etc., which You receive or transmit using the Services may be accessed or intercepted, albeit without authorization from You or LightPole, by another person or entity in transit or by reason of an unauthorized intrusion into any of the computer systems and software that are used as part or associated with the Services and/or Software; (c) You will only use the Service and/or Software for the sending, storing, and receiving content in accordance with the terms hereof, and will not use the same in any manner which may degrade the performance or availability of the Services provided to subscribers generally; (d) You will not use the Software or Services to store, send, create or distribute any images, sounds, messages or other material which are obscene, harassing, racist, malicious, fraudulent or libelous, or violate or infringe the rights (including but not limited to rights privacy or copyrights) of third parties; (e) You will not use the Services for any activity that may be considered unethical or immoral, or to “spam” or send other such unsolicited mass e-mails, voicemails, or SMS messages. LightPole reserves the right, from time to time, to make changes in the configuration of LightPole’s proprietary facilities, type and location of equipment, programming languages, user identification procedures, accessibility periods, allocation and quantity of resources utilized (including but not limited to storage and content limits), rules of operation, its administrative and operational algorithms, and features and availability of the Services.

You will be solely liable for any transmissions sent using the Services. Accordingly, You agree that: (a) You are, and shall be, fully responsible for, and shall take all reasonable steps necessary in order to, establish and implement any and all measures needed to limit the control and/or access to either Your handheld device, the Service, the Software, any related data or communications transmitted or received by You, as well as any related computer systems with which You use to connect to the Services (including, without limitation, the selection of passwords and the like); (b) LightPole shall have no liability to You or any third party for any unauthorized interception, access, receipt, or use of any messages or other communications or other data sent using the Services or Software (including any claims regarding intrusions of privacy or confidentiality with respect to any communications sent using the Service or Software); (c) You are solely responsible for content sent or received by You and Your use of the Software and Services shall comply with the terms of this Agreement. LightPole reserves the right in its sole discretion to (i) delete, move, or edit messages that it, in its sole discretion, deems to violate this Agreement, or (ii) take any other action that it deems necessary relating to use or misuse of the Service, including the right to suspend or terminate your use of the Services. You hereby grant to LightPole a worldwide, non-exclusive, royalty-free license to use, publish, copy, modify, transmit, display and distribute content and any contact information and/or data You provide to LightPole or authorize LightPole to obtain, in each case for the sole purpose of delivering the Service.

LightPole is under no obligation to provide You with maintenance, technical support or updates for the Software or Services. In no event shall LightPole be obligated to provide You a copy of the commercial release version of the Software or to provide access to a commercial version of the Services. LightPole is not obligated to make the Software or Services commercially available.

Feedback

You agree that any input or feedback you provide to LightPole, including but not limited to usability, bug reports and test results, with respect to the Software and/or Services shall be the property and confidential information of LightPole and may be used by LightPole for any purpose and you hereby assign all right, title and interest therein, including all intellectual property rights therein, to LightPole. LightPole provides no assurance that any specific errors or discrepancies in the Software or Service will be corrected.

Ownership

All right, title, and interest, including all intellectual property rights, in and to the Software and Services are owned by LightPole or its suppliers. The Software is protected by copyright and other intellectual property laws and by international treaties. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with LightPole’s or its suppliers’ ownership of or rights with respect to the Software or provision of Service. Title and related rights in the content accessed through the Software are the property of the applicable content owner and are protected by applicable law. The licenses granted under this Agreement gives You are granted no rights in or to such content other than as expressly set forth in this Agreement.

Confidentiality

Subject to the limitations set forth in Paragraph 2, all information disclosed to the other party shall be deemed to be “Proprietary Information”. In particular, Proprietary Information shall be deemed to include any trade secret, information, process, technique, training manual, workbook, algorithm, computer program (source and object code), design, drawing, formula, business plan or test data relating to any research project, work in process, future development, engineering, manufacturing, marketing, servicing, financing, strategic partnership or personnel matter relating to the disclosing party, its present or future products, services, sales, suppliers, clients, customers, employees, investors or business, whether in oral, written, graphic or electronic form. If Proprietary Information is disclosed in oral form, the disclosing party shall thereafter summarize it in writing and transmit it to the other party within thirty (30) days of the oral disclosure.

1. The term “Proprietary Information” shall not be deemed to include information which: (a) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available; (b) is known by the receiving party at the time of receiving such information as evidenced by its records; (c) is hereafter furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure; (d) is independently developed by the receiving party without any breach of this Agreement; or (e) is the subject of a written permission to disclose provided by the disclosing party.

2. Each party shall maintain all Proprietary Information in trust and confidence and shall not disclose to any third party or use any Proprietary Information for any unauthorized purpose. Each party may use such Proprietary Information only to the extent required to accomplish the purposes of this software test. Proprietary Information shall not be used for any purpose or in any manner that would constitute a violation of any laws or regulations, including without limitation, the export control laws of the United States. No rights or licenses to trademarks, inventions, copyrights or patents are implied or granted under this Agreement.

3. Proprietary Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement.

4. Each party under this Agreement shall advise its employees who might have access to Proprietary Information of the confidential nature thereof and agrees that its employees shall be bound by the terms of this Agreement. No Proprietary Information shall be disclosed to any employee who does not have a need for such information. The receiving party shall not disclose any Proprietary Information to any third party without the disclosing party’s express, written consent.

5. All Proprietary Information (including all copies thereof) shall remain the property of the disclosing party and shall be returned to the disclosing party after the receiving party’s need for it has expired, or upon request of the disclosing party, and in any event, upon completion or termination of this Agreement.

6. Notwithstanding any other provision of this Agreement, disclosure of Proprietary Information shall not be precluded if such disclosure:

(a) is in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof; provided, however, that the responding party shall first have given notice to the other party hereto and shall have made a reasonable effort to obtain a protective order requiring that the Proprietary Information so disclosed be used only for the purposes for which the order was issued;

(b) is otherwise required by law; or

(c) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.

Term and Termination

This Agreement is effective until terminated. This Agreement will terminate immediately without notice to You upon the earlier of (i) release of a commercial (non-beta) version of the Software and/or Service; (ii) release of a subsequent beta version of the Software, or (iii) Your breach or failure to comply with any term or condition of this Agreement. LightPole reserves the right to modify or terminate this Agreement, or any of its services and/or product offerings at any time without notice to You. Upon termination, the license granted herein shall cease, Your account and any associated data will be deleted, and You shall promptly destroy the Software or return the Software to LightPole. The following Sections shall survive termination or expiration of this Agreement: the Software Limitations and the provisions under the headings “Limitations on Use,” “Feedback,” “Ownership,” “Term and Termination,” “Disclaimer of Warranties,” “Limitation of Liability,” “Indemnification,” and “General.”

Site Content

All content that is made available to view and/or download in connection with the LightPole website (“Site”) is the copyrighted work of and is owned by LightPole and/or its licensors, as applicable, and is protected by copyright laws and international treaty provisions. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any such content without the express written permission of LightPole and the copyright owner. The Site may contain links to third party web sites (“Linked Sites”). These Linked Sites are not under the control of LightPole and LightPole is not responsible for the availability, contents, or performance of any Linked Sites. LightPole is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by LightPole of the Linked Site or any association with its operators. You are responsible for viewing and abiding by the privacy statements and terms of use posted at the Linked Sites. You should direct any concerns regarding these third-party sites to those sites’ administrators. “LightPole” and the LightPole logo are trademarks of LightPole and are protected by law. All other names of companies and products mentioned may be trademarks of their respective owners and are used with permission. You may not copy, display or use any of these marks without prior written permission of the mark owner.

Disclaimer of Warranties

THE SOFTWARE AND SERVICES CONTAIN PRE-RELEASE FEATURES AND MAY BE CHANGED SUBSTANTIALLY BEFORE COMMERCIAL RELEASE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LIGHTPOLE AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND SERVICES AND SITE “AS IS” AND WITH ALL FAULTS, AND HEREBY DISCLAIM WITH RESPECT TO THE SOFTWARE AND SERVICES ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) WARRANTIES, DUTIES OR CONDITIONS OF OR RELATED TO: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT AND LACK OF NEGLIGENCE. ALSO, THERE IS NO WARRANTY, DUTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LIGHTPOLE OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE AND/OR SERVICES AND/OR SITE OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF LIGHTPOLE OR ANY SUPPLIER, AND EVEN IF LIGHTPOLE OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Indemnification

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD LIGHTPOLE AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS HARMLESS FROM AND AGAINST ALL CLAIMS, LIABILITIES, LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, RESULTING FROM (I) ANY VIOLATION OR BREACH OF THIS AGREEMENT BY YOU, (II) ANY ACTIVITY RELATED TO ACCESS TO OR USE OF YOUR ACCOUNT (INCLUDING NEGLIGENT OR WRONGFUL CONDUCT) BY YOU OR ANY OTHER PERSON ACCESSING OR USING THE SERVICES, OR (III) LIGHTPOLE’S AUTHORIZED USE OF DATA PROVIDED BY YOU OR DATA OBTAINED BY LIGHTPOLE AS AUTHORIZED BY YOU UNDER THIS AGREEMENT.

Licenses to Government Users

The Software is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End-Users acquire the Software with only those rights set forth herein.

General

This Agreement and the legal relations between the parties arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California exclusively, as such laws apply to contracts between California residents performed entirely within California. You agree(s) that conflicts of laws principles of such laws and the United Nations Convention on Contracts for the International Sale of Goods (1980) and its successors are hereby excluded in their entirety from application to this Agreement. The parties hereby consent to the exclusive jurisdiction of and venue in the federal and/or state courts located in San Francisco County, California, for all claims arising out of or relating to this Agreement. Neither this Agreement nor any rights or obligations of You hereunder may be assigned by You in whole or in part without the prior written approval of LightPole. Any assignment in derogation of the foregoing shall be null and void. If any part of this Agreement is for any reason found to be invalid, illegal or unenforceable, all other parts nevertheless remain valid, legal and enforceable as long as a party’s rights under this Agreement are not materially affected. In lieu of the unenforceable provision, the parties will substitute or add as part of this Agreement a valid, legal and enforceable provision that will be as similar as possible in economic and business objectives as was intended by the unenforceable provision. This Agreement sets forth the entire understanding and complete and exclusive statement of the agreement between LightPole and You which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. This Agreement shall not be modified except by a subsequently dated written amendment or exhibit signed by both parties by their duly authorized representatives.

THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.

Copyright © 2007 LightPole, Inc. All Rights Reserved.