Terms and Conditions
Last Updated: July 29, 2015
This Beta Development Services and End User License Agreement (“Agreement”) is by and between Proboscis, Inc., a Delaware corporation (“Proboscis”) and the individual or entity entering into this Agreement (“User”). Proboscis and User are each referred to herein as a “Party,” and, collectively, as the “Parties.”
1. Vamonde Platform.
1.1 Description. Proboscis has created, and is in the process of further developing and beta testing, a multi-channel digital platform tentatively branded “Vamonde” (together with all text, graphics, photographs, narration, audio, images, videos and other materials and information provided by Proboscis in connection therewith, the “Vamonde Platform”) that allows persons to use locational markers, including geo-fences and beacons, to connect, and create various experiences (each, an “Adventure“) using such markers, to share such Adventures with others, and to access Adventures made available via the platform by others. THE VAMONDE PLATFORM IS IN A BETA TESTING PHASE AND, AS NOTED FURTHER BELOW, IS PROVIDED SOLELY ON AN AS IS, AS AVAILABLE BASIS. SOME OR ALL OF THE FUNCTIONALITY OF THE VAMONDE PLATFORM MAY NOT BE AVAILABLE AT TIMES AND THE VAMONDE PLATFORM, AND THERE IS NO GUARANTEE THAT ANY FEATURES THEREOF WILL FUNCTION AS INTENDED OR DESIRED AT ANY TIME.
1.2 License. Proboscis hereby grants to User a limited, revocable, non-exclusive, non-transferable, non-sublicenseable license to access and use the object code of the Vamonde Platform (to the extent reasonably feasible given the then current stage of development of the Vamonde Platform) for purposes of creating, testing, maintaining, accessing and using Adventures, solely for personal, non-commercial purposes.
1.3 Registration and Login. To access the Vamonde Platform, User must register to establish an account with Proboscis and User's user ID and password. User is solely responsible for maintaining as confidential all User IDs and passwords it uses to access the Vamonde Platform and all activities under such User IDs and passwords. User shall notify Proboscis immediately in the event of any loss or unauthorized use of any of User's User IDs or passwords.
1.4 Use of the Vamonde Platform. User agrees to access and use the Vamonde Platform solely in compliance with (i) all applicable laws, rules and regulations and (ii) any guidelines, rules or policies of Proboscis of which Proboscis may notify User from time to time (collectively, “Guidelines”). User shall not: (a) transfer, rent, sell, distribute, lease, loan, lend or sublicense the Vamonde Platform; (b) copy the Vamonde Platform; (c) as applicable, modify, create derivative works based on, reverse engineer, decompile, translate or disassemble the Vamonde Platform; (d) attempt to discover the source code of the Vamonde Platform; (e) attempt to circumvent, disable or interfere with any security features or functionality of the Vamonde Platform; or (f) use the Vamonde Platform for any illegal purpose, in violation of any applicable laws or regulations, or in violation of any Guidelines. In addition, User may not use the Vamonde Platform in any manner that may impair, overburden, damage, disable or otherwise compromise the Vamonde Platform or any other person's use or enjoyment of the Vamonde Platform.
1.5 Inherent Risks. Using the Vamonde Platform while moving may distract User from paying full attention to User's surroundings. Failing to be aware of risks and hazards in the environment may result in death, bodily injury and/or property damage. Accordingly, User should utilize the Vamonde Platform only in safe locations, and when creating any Adventures or otherwise using the Vamonde Platform, User should at all times be mindful of User's surroundings, including (but not limited to) traffic signals, road signs, guardrails, train crossing signals, weather conditions and the condition of walkways.
1.6 Modification of the Vamonde Platform. At any time, with or without notice to User, and for any or no reason, Proboscis may modify or discontinue the Vamonde Platform. Proboscis shall in no way be held liable for any consequence which results from its decision to modify or discontinue providing the Vamonde Platform.
2.1 Adventures. Each Adventure created by User is required to meet any and all technical requirements and content restrictions provided to User by Proboscis, as such requirements and/or restrictions may be revised from time to time, with or without notice to User. Proboscis shall use commercially reasonable efforts to provide to User any assistance reasonably requested by User to update any Adventures to meet modified technical requirements. Notwithstanding the foregoing, unless otherwise expressly agreed in writing by User and Proboscis pursuant to Section 3, User shall be responsible, at User's own expense, for all design, development and maintenance of any Adventures.
2.2 Testing. Proboscis and User shall cooperate in good faith to assess and test each Adventure to verify that it demonstrates an appropriate level of technical and operational readiness to be made available to other users via the Vamonde Platform. An Adventure will be made generally publicly available to other users only upon the Parties' agreement thereto, provided that Proboscis may, prior to such time, make available an Adventure for demonstration purposes. If any previously approved Adventure is modified during the term of this Agreement, the modified Adventure will, unless otherwise agreed by the Parties, be retested to verify that the modified Adventure demonstrates an appropriate level of technical and operational readiness to be made available to other users via the Vamonde Platform.
2.3 Launch. Proboscis shall make available such Adventure on the Vamonde Platform within a reasonable period of time, as may be reasonably feasible given the then current status of the Vamonde Platform, following the Parties' agreement thereto or as otherwise agreed by the Parties. Such listing shall display any Adventure description submitted to Proboscis by User, which may include the title or name of the Adventure, a brief description of the Adventure and its price, if applicable, together with any item number that may be assigned thereto by User and any other information agreed by the Parties (each, a “Description”).
2.4 Content. Except as otherwise expressly provided herein, as between Proboscis and User, User shall own all rights, title and interest in and to all information, text, graphics, scripts, photos, sounds, videos, trademarks, service marks and other materials of any form comprising any and all Adventures and Descriptions provided by User hereunder (collectively, “Content”). As between Proboscis and User, User shall at all times be solely responsible for all Content, even if Proboscis provides User any Development Services (as defined below) with respect thereto. By submitting such Content for use on the Vamonde Platform, User hereby grants to Proboscis a worldwide, non-exclusive, freely transferable license (i) to test, reproduce, create derivative works based on, distribute, market, advertise, promote, sell, digitally perform, publicly display, publish, broadcast, and otherwise use and distribute such Content in connection with the Vamonde Platform and Proboscis' business, including for purposes of demonstrating, marketing, advertising and promoting the Vamonde Platform and the Adventures made available thereon, in any and all media; and (ii) to permit third party users to access and use, display and perform the Content via the Vamonde Platform (including, if and to the extent expressly agreed by User in writing, to incorporate Content into separate adventures created by other users) under this Agreement and any then current Guidelines.
2.5 Requirements. User hereby represents and warrants that User either owns all rights, title and interest to all Content or otherwise has all licenses, permits, and other authorizations, approvals and consents necessary to grant the licenses from User set forth above. User further represents and warrants that no Content does or will contain any information, data or materials that: (i) infringe or otherwise violate any copyright, patent, trademark, trade secret or other intellectual property, right of publicity, privacy or other proprietary right; (ii) are defamatory, libelous, express hate, graphically or gratuitously violent, or are unlawfully threatening; (iii) are pornographic, sexually explicit, obscene or exploitative of or harmful to any minor; (iv) contain or embody a virus, worm, Trojan horse or other contaminating or destructive feature; or (v) otherwise violate any applicable law or regulation or any Guidelines. Furthermore, User shall not include in any Adventure any markers in respect of any locations reasonably likely to be dangerous, hazardous or harmful to any user of such Adventure, or to any property of any individual or entity, or to promote, facilitate or result in the User engaging in any illegal activity. User further acknowledges that Proboscis is providing no guarantee of confidentiality or security with respect to any Content, and thus User should presume that any and all content may be accessible by others.
2.6 Removal. Proboscis shall have no obligation under this Agreement to review or monitor any Adventures or other Content or any uses thereof via the Vamonde Platform. Nonetheless, Proboscis may, in its sole and reasonable discretion, refuse or remove, with or without notice to User, any Adventure and/or other Content for any reason, including in the event Proboscis reasonably believes, or is notified by a third party that, such Content infringes or otherwise violates any intellectual property, privacy or other proprietary right of any individual or entity, or otherwise violates the terms of this Agreement.
3. Adventure Development Services.
Proboscis shall provide to User any such assistance in designing and developing Adventures hereunder as Proboscis and User may agree in writing from time to time (collectively, “Development Services”). All such Adventures shall include Content made available by User. In the event Proboscis additionally incorporates into any such Adventures any Proboscis Tools, Proboscis hereby grants to User a non-exclusive right and license to use such Proboscis Tools solely as incorporated in any Adventures. As used herein, “Proboscis Tools” means any software, methodologies, templates, tools, designs and other technology or works (i) developed or acquired by or on behalf of Proboscis prior to the Effective Date (as defined below) or (ii) developed or acquired by on or behalf of Proboscis outside the scope of any Development Services provided hereunder.
By using the Vamonde Platform, User confirms that (i) User is at least nineteen (19) years of age, is an emancipated minor of at least thirteen (13) years of age, or is at least thirteen (13) years of age and possesses the written consent of a parent or guardian to enter into this Agreement, and (ii) User is otherwise fully able and competent to enter into and perform this Agreement and comply with all terms hereof. In compliance with the Children's Online Privacy Protection Act, 15 U.S.C. §§ 6501-06 and 16 C.F.R. §§312.1-312.12, Proboscis does not permit children under 13 years of age to enter into this Agreement or use the Vamonde Platform.
5.1 Fees for Use of Vamonde Platform. No fees for use of the Vamonde Platform by User under this Agreement will be charged by Proboscis.
5.2 Fees for Development Services. The Parties shall agree in writing upon any and all fees to be paid to Proboscis by Company in respect of Development Services (“Development Services Fees”), and the timing of invoices therefor. Company shall remit payment to Proboscis for all Development Services Fees within thirty (30) days following Company's receipt of an invoice therefor; provided that Proboscis may, in its sole discretion, offset any such Development Services Fees against any Royalties owed by Proboscis to Company hereunder.
5.3 Royalties. In the event User desires to charge any other users of any Adventure any fees for such use, User will notify Proboscis thereof, together with the price to be charged other users therefor, and Proboscis shall charge and collect (whether directly or via a third party payment services User) fees therefor in a manner consistent with any Guidelines, as applicable. Proboscis shall remit to User sixty percent (60%) of all Sales Proceeds in regard to each Adventure (collectively, “Royalties”). Proboscis shall pay to User any and all Royalties due User in respect of sales of User's Adventures each calendar month during the term of this Agreement, within thirty (30) days following such calendar month. For purposes of this Agreement, “Sales Proceeds” means the revenues actually received by Proboscis in regard to sales of any Adventure, less (i) any handling fees or other amounts charged Proboscis by any third party online payment services Users or others for processing payments for Adventures, (ii) any and all taxes or other charges based on the sales, use or ownership of any Adventure, whether designated as a sales or use tax, gross receipts tax, value added tax, personal property tax, or otherwise, including any such tax in existence as of the Effective Date or created thereafter, (iii) any chargebacks with respect to any revenues previously received by Proboscis, and (iv) any refunds with respect to User's Adventures as Proboscis, in its sole discretion, determines to issue to any third party users of such Adventures. In the event Proboscis receives any chargebacks or issues any refunds with respect to User's Adventures that exceed the Royalties then due, Proboscis shall invoice User therefor and User shall promptly reimburse Proboscis for such amounts.
5.4 Complimentary Uses of Adventures. Notwithstanding the foregoing, even if User has notified Proboscis of User's desire to charge fees for certain Adventures, Proboscis may from time to time, without notice to or approval by User, provide a reasonable number of such Adventures free of charge to third parties (including but not limited to actual or prospective investors of Proboscis, customers of the Vamonde Platform, app reviewers, and prospective users) for purposes of demonstration, review and/or marketing, advertising or promotion of the Vamonde Platform and/or the services of Proboscis.
This Agreement shall become effective on the date entered into by User (the “Effective Date”) and continue in effect until terminated with or without cause by either Party. User may terminate this Agreement immediately upon notice to Proboscis. Proboscis may suspend User's use of the Vamonde Platform, in whole or in part, or terminate this Agreement at any time, for any or no reason, with or without notice to User. Upon termination for any reason, User shall promptly return to Proboscis, or destroy and certify as destroyed, any Confidential Information of Proboscis in tangible form, and any and all other materials provided by or on behalf of Proboscis to User hereunder. In addition, upon termination hereof, unless otherwise agreed by Proboscis and User, Proboscis shall remove from the Vamonde Platform any and all Adventures and associated Descriptions submitted by User hereunder. Sections 1.3, 1.4, 2.7, 2.8, and 4 through 15 of this Agreement will survive termination hereof.
7. Ownership of Vamonde Platform.
As between Proboscis and User, except with respect to the limited licenses expressly granted by Proboscis in this Agreement, all rights, title and interest in and to the Vamonde Platform, including without limitation all information, text, graphics, scripts, photographs, narration, sounds, audio, music, videos, trademarks, service marks, software and other components thereof (other than Content made available by User), any and all modifications, enhancements, updates, improvements and new versions thereto or thereof, all derivative works based thereon, the collection, arrangement, and assembly of the content of the Vamonde Platform, all Proboscis Tools, and all trade secrets, copyrights and other intellectual property rights in any of the foregoing, shall be and remain vested solely in Proboscis. As between Proboscis and User, Proboscis shall also own all data provided by Users or otherwise generated in connection with the development, operation, distribution, maintenance and/or use of the Vamonde Platform (excluding Content), including, without limitation, data relating to demographics of Users, traffic patterns, technical data regarding usage of the Vamonde Platform, and all compilations of such data. User shall not do or cause to be done any act contesting or in any way impairing any such rights, title or interest. Without limiting the foregoing, User may not use, copy, modify or display the mark VAMONDE or any other names or marks of Proboscis without the express written permission of Proboscis. In the event User provides to Proboscis any suggestions, improvements, ideas, concepts, techniques, inventions, comments or other feedback with respect to the Vamonde Platform (collectively, “Feedback”), User hereby irrevocably assigns to Proboscis any and all rights as User may have in and to such Feedback and acknowledges that Proboscis may utilize such Feedback in any manner or media as Proboscis may, in its sole discretion, determine.
User shall treat as confidential all private, proprietary or confidential information of Proboscis which User may receive or have access to during or prior to the performance of this Agreement, including without limitation the Proboscis Tools and the Vamonde Platform (including all information regarding the existing or prospective functionality thereof) and any and all business plans of Proboscis (collectively, “Confidential Information”), and shall not divulge such Confidential Information: (i) to any person other than to the employees, subcontractors, licensors, consultants or advisors of User to whom such disclosure is necessary to facilitate the performance of this Agreement, without Proboscis' prior written consent; or (ii) unless requested pursuant to a judicial or governmental request, requirement, or order under law, in which case, User shall (a) promptly notify Proboscis of such request and related disclosure, (b) assist Proboscis in obtaining a protective order for, and/or other confidential treatment of, the Confidential Information to be disclosed, and (c) only make such disclosure as to content and matter as specifically required. Notwithstanding the foregoing, Confidential Information shall not include information that (x) is lawfully received free of restriction from another source having the right to furnish such information; or (y) has become generally available to the public by acts not attributable to User or its employees, agents or contractors.
9. Third Party Advertisements and Links to Third Party Sites.
User acknowledges that, at any time, Proboscis may provide links to the websites or other products or services of third parties via the Vamonde Platform. Additionally, the Vamonde Platform may display advertisements from third parties, such as banner advertisements and pop-up texts, and links to the sites of such advertisers. Proboscis has no control over and is not responsible for the privacy policies or practices of any such third parties, the content of such advertisements or any links, or any products, services or other materials relating to such advertisements, any linked site, or any link contained in a linked site. The display of any advertisement or link does not imply endorsement by Proboscis of the advertisement or linked site or any products, services or other content therein. IN NO EVENT WILL PROBOSCIS BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS ARISING FROM OR RELATING TO ANY USE, CONTINUED USE OR RELIANCE ON ANY ADVERTISEMENT DISPLAYED ON THE VAMONDE PLATFORM, OR ANY PRODUCTS, SERVICES OR OTHER MATERIALS RELATING TO ANY SUCH ADVERTISEMENT, ANY LINKED THIRD PARTY SITE, PRODUCT OR SERVICE, OR ANY LINK CONTAINED IN A LINKED SITE.
10. General Disclaimer.
ALL USES OF THE VAMONDE PLATFORM AND ANY ADVENTURES BY USER ARE AT USER'S OWN RISK. USER ACKNOWLEDGES AND AGREES THAT THE VAMONDE PLATFORM AND ANY AND ALL SERVICES PROVIDED HEREUNDER, TOGETHER WITH ALL FUNCTIONALITY OF THE VAMONDE PLATFORM AND THE CURRENTLY PROPOSED USES THEREOF, REMAIN UNDER DEVELOPMENT AND THAT THE VAMONDE PLATFORM, INCLUDING CONTENT THEREON PROVIDED BY PROBOSCIS, AND ANY AND ALL SERVICES HEREUNDER, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, PROBOSCIS MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SECURITY, AVAILABILITY, OPERATION AND USE OF THE VAMONDE PLATFORM, OR ANY INFORMATION, CONTENT, MATERIALS OR SERVICES ON OR ACCESSED VIA THE VAMONDE PLATFORM. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROBOSCIS EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND DOES NOT GUARANTEE THAT THE VAMONDE PLATFORM, OR ANY ADVENTURES OR OTHER CONTENT THEREON, WILL BE SECURE, CONFIDENTIAL, ERROR-FREE, UNINTERRUPTED OR FREE FROM ANY VIRUSES OR OTHER HARMFUL COMPONENTS. USER FURTHERMORE SPECIFICALLY ACKNOWLEDGES THAT, WHEN USING THE VAMONDE PLATFORM, USER MAY HAVE ACCESS TO, AND BE EXPOSED TO, CONTENT FROM THIRD PARTY SOURCES THAT PROBOSCIS DOES NOT CONTROL, AND THAT PROBOSCIS IS NOT RESPONSIBLE FOR THE SAFETY, LEGALITY, USEFULNESS, CURRENCY, COMPLETENESS OR ACCURACY OF ANY SUCH CONTENT, OR ANY SUCH CONTENT USER MAY FIND UNSAFE, HARMFUL, ILLEGAL, UNLAWFUL, INCOMPLETE, INACCURATE, DEFAMATORY, DEFENSIVE, INDECENT OR OTHERWISE OBJECTIONABLE, AND USER HEREBY IRREVOCABLY WAIVES ANY RIGHTS OR REMEDIES UNDER LAW OR EQUITY USER MAY HAVE AGAINST PROBOSCIS WITH RESPECT TO SUCH CONTENT.
11. Limitation of Liability.
TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER PROBOSCIS NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, INVESTORS, AGENTS OR REPRESENTATIVES (COLLECTIVELY, THE “PROBOSCIS PARTIES”) SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, PHYSICAL HARM OR INJURY TO USER OR OTHERS, PROPERTY DAMAGE, LOST PROFITS AND LOSS OR INACCURACY OF DATA OR OTHER INFORMATION, REGARDLESS OF THE FORM OF CAUSE OF ACTION AND EVEN IF PROBOSCIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES ARISING OUT OF THE USE OF, ACCESS TO, RELANCE ON, INABILITY TO USE, UNAUTHORIZED USE OR IMPROPER USE OF THE VAMONDE PLATFORM OR ANY CONTENT OR OTHER MATERIALS, DATA OR INFORMATION THEREON. NOTWITHSTANDING THE FOREGOING, THE TOTAL LIABILITY, IF ANY, OF THE PROBOSCIS PARTIES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, OR THE VAMONDE PLATFORM OR ANY SERVICES PROVIDED HEREUNDER, SHALL NOT IN ANY EVENT EXCEED PROBOSCIS' SHARE HEREUNDER OF SALES PROCEEDS (IF ANY) FROM ADVENTURES SOLD TO USERS LESS EXPENSES INCURRED BY PROBOSCIS IN CONNECTION WITH THIS AGREEMENT. CERTAIN STATE LAWS DO NOT PERMIT LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, AND THUS SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS ABOVE MAY NOT APPLY TO USER.
User shall defend, indemnify and hold the Proboscis Parties harmless from and against any damages, losses, costs and expenses of any kind (collectively, “Losses”) arising from any allegation, claim or cause of action initiated by a third party and based upon (i) User's breach of this Agreement, (ii) User's willful misconduct or negligence, (iii) access to and/or use by User, or under any of User's User IDs or passwords (whether or not authorized), of the Vamonde Platform, including but not limited to the design, development, marketing, advertising, promotion, distribution, sale or maintenance of any Content, (iv) any allegation that User has violated any rights of any third party, including without limitation any allegation that any Content or any use thereof infringes or otherwise violates any intellectual property, privacy or other proprietary right of any individual or entity, and/or (v) any allegation of personal injury, property damage or other damage related to any Content.
13. Amendment of this Agreement.
Proboscis may amend this Agreement at any time, which modifications will be effective upon posting. User's continued use of the Vamonde Platform following posting of any revised Agreement will constitute User's acceptance of the modified Agreement.
14. Notice and Procedure for Making Claims of Intellectual Property Infringement.
Proboscis respects the intellectual property rights of others. If User believes that any content on the Vamonde Platform may infringe User's copyrights or other intellectual property rights, please provide Proboscis the written information specified below. Please note that this procedure is exclusively for notifying Proboscis that User's intellectual property rights have been infringed.
Proboscis' agent for notice of claims of copyright infringement or other intellectual property infringement on the Vamonde Platform can be reached as follows:
Intellectual Property Agent
17 N. State St., Suite 810
Chicago, IL 60602
Phone: (773) 340-2274
This Agreement shall be governed by the laws of the State of Illinois, without regard to principles of conflicts of law. User irrevocably submits to the jurisdiction of federal and state courts located within Chicago, Illinois. This Agreement supersedes any and all prior oral or written agreements between the Parties, and constitutes the entire agreement between Proboscis and User, with respect to the subject matter hereof. No modification or amendment of this Agreement by User, or any waiver of any right, power, or privilege under this Agreement by User, will be binding upon Proboscis unless set forth in a writing signed by Proboscis and User. If one or more of the provisions of this Agreement is deemed invalid, unlawful, or unenforceable by law, then the remaining provisions will continue in full force and effect. No failure on the part of Proboscis to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. User may not assign this Agreement without the prior written consent of Proboscis. All rights granted to Proboscis under this Agreement shall extend also to Proboscis' assignees and successors in interest. Any and all notices hereunder must be in writing and will be effective upon receipt thereof. Notices to Proboscis must be addressed to Proboscis, Inc., 17 N. State St., Suite 810, Chicago, IL 60602. Notices to Proboscis will be sent to the most recent e-mail address User has provided to Proboscis.