July 29, 2015
PATHVU APP LICENSE AND SERVICES
TERMS AND CONDITIONS OF USE
Thank you for your interest in PathVu and for downloading the PathVu mobile device application (the "Application") providing access to PathVu content and services, including without limitation, sidewalk hazard flagging, the photo upload, geotagging, pedestrian navigation, and hosting services (collectively, such content and services, together with the Application, are referred to herein as the "PathVu Services"), and all provided by Pathway Accessibility Solutions, Inc. ("Licensor"). Download, installation and use of the Application, and access to PathVu Services, however accessed, are all offered to you, the individual user, by Licensor subject strictly to the terms and conditions set forth below.
ARBITRATION NOTICE: UNLESS YOU OPT-OUT AND/OR EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND PATHVU WILL BE RESOLVED BY MANDATORY, BINDING ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1. GENERAL TERMS
1.1 Licenses. Subject to the terms and conditions of this Agreement, Licensor hereby grants to you a personal, fully revocable, non-transferable and non-exclusive license to (a) download, install and use the Application on a mobile device that you own or control for the sole purpose of accessing the PathVu Services, any upgrades, updates or corrections thereto provided by Licensor to you, if any, and related user documentation offered by Licensor to you; and (b) access and use the PathVu Services exclusively through the Application within the United States. No access to PathVu Services through any means other than the Application is granted hereunder. Licensor reserves the right to refuse access to the PathVu Services to anyone for any reason at any time.
1.2 Not Intended for Children Age of 13 or Under. Licensor offers the PathVu Services exclusively for the use of individuals who are over the age of 13. Content made available through PathVu Services will be geotagged. We do not solicit or knowingly collect personal information from persons under the age of thirteen, and we do not knowingly market our products or services to persons under such age. Accounts of Users under the age of 13 years will be cancelled and deleted by Licensor, upon receiving notice at firstname.lastname@example.org.
1.4 PathVu Brand Materials. The PathVu name and logo are trademarks and/or service marks of Licensor and may not be copied, imitated or used, in whole or in part, without the prior written permission of Licensor, except to the extent Licensor publishes brand use guidelines on Licensor’s web site from time to time.
1.5 Disclaimer; Nature of Services. THE PATHVU SERVICES, INCLUDING, WITHOUT LIMITATION, THE APPLICATION AND PATHVU CONTENT, IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER PATHVU NOR ITS EMPLOYEES, MANAGERS, OFFICERS, AGENTS, LICENSORS, OR SUPPLIERS (COLLECTIVELY, THE "PATHVU PARTIES") MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE APPLICATION; (B) THE PATHVU SERVICES; (C) THE PATHVU CONTENT; (D) USER CONTENT; OR (E) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO, OR FROM, PATHVU OR VIA THE PATHVU SERVICES. IN ADDITION, THE PATHVU PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. NOTHING HEREIN SHALL BE CONSTRUED AS A WARRANTY OF COMPATIBILITY WITH ANY PARTICULAR MOBILE/COMPUTING DEVICE, OPERATING SYSTEM, OR OTHER SOFTWARE RESIDENT ON YOUR DEVICE.
THE PATHVU PARTIES DO NOT REPRESENT OR WARRANT THAT THE PATHVU SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PATHVU SERVICES OR THE SERVER(S) THAT MAKES THE PATHVU SERVICES AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE PATHVU PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE PATHVU SERVICES IS TRUE, VALID, ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE PATHVU SERVICES IS AT YOUR SOLE RISK AND YOU EXPRESSLY ASSUME AND HEREBY EXPRESSLY RELEASE THE PATHVU PARTIES FROM ALL LIABILITY, IN TORT, CONTRACT OR OTHERWISE, INCURRED IN CONNECTION WITH THE USE OF THE APPLICATION AND THE OTHER PATHVU SERVICES. THE PATHVU PARTIES DO NOT WARRANT THAT YOUR USE OF THE PATHVU SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE PATHVU PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES.
BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PATHVU SERVICES OR WITH THE DELAY OR INABILITY TO USE THE PATHVU SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. Licensor makes no warranties, express or implied, that the use of the PathVu Services does not infringe any patent or copyright of any third party.
1.6 Account; Location-Based Service. You may access or use the Application and PathVu Services without setting up a username and password. Licensor will link all of your information with a unique identifier generated by Licensor that is not tied to personally identifiable information. Take note that PathVu Services makes use of detailed location information, for example in the form of GPS signals and other information sent by your mobile device on which the Application is installed and activated. PathVu Services cannot be provided without utilizing this technology.
1.6.1 Username/Password. You may be asked to create a username and password (combined, the “User Identity”). You shall hold and secure any such User Identity as strictly confidential. Third parties with knowledge of your User Identity can gain access to your account information and take other actions for which you will be held accountable and liable. Licensor is entitled to, and will, assume that any person using the PathVu Services under your User Identity is you and will hold you liable and responsible for all actions and/or statements made under your User Identity. Licensor shall not be responsible whatsoever in the event that your User Identity is used by an unauthorized entity or misappropriated by a third party. We reserve the right to refuse or reject any username for any reason and/or force forfeiture of any username at any time for any reason.
If you provide any information that is untrue, inaccurate, not current or incomplete, Licensor has the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).
1.7.2 You acknowledge and agree that you elect to share or publish your User Content through the PathVu Services at your own risk. You acknowledge and agree that, once you have posted your User Content, PathVu cannot thereafter guarantee that such posted User Content can be deleted from the PathVu Services. You agree that PathVu is not responsible or liable for the conduct of any User. Please take note that no security measures are perfect or impenetrable. We cannot control the actions of other users. Therefore, we cannot and do not guarantee that your account information or User Content that you may share or publish through PathVu Services, will not be accessible to the general public or otherwise viewed by unauthorized persons. We are not responsible for circumvention of any security measures we provide. You understand and acknowledge that, even after removal, User Content may remain viewable in cached and archived pages or if other users have copied or stored all, or parts of, such information.
1.7.3 From time to time, Licensor may elect to display promotions and advertisements, and you hereby agree that Licensor may place such promotions and advertising on the PathVu Services or on, about, or in conjunction with your User Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you. You acknowledge that Licensor may not always identify aid services, sponsored content, or commercial communications as such.
1.8 Objectionable Material. You understand that through your use of the PathVu Services you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as such. Pursuant to Section 1.7.1, Licensor does not have any obligation to monitor or remove any User Content. However, Licensor requests that you report content which you deem objectionable to email@example.com. You agree to use the PathVu Services at your sole risk and that Licensor shall have no liability to you for the type of content that you may access, including without limitation content that you may find offensive, indecent, or objectionable.
1.9 Links to Other Sites. PathVu Services may provide access and/or hyperlinks to other third party sites and content on the Internet. Such third party sites and content so linked have not necessarily been reviewed by Licensor and are maintained by third parties over which Licensor exercises no control. Licensor expressly disclaims any responsibility for the i) content or accuracy of information contained on such linked content; ii) quality of any product or service provided by or advertised in or by any such third party content. Licensor neither endorses nor makes any representation regarding any linked site, product, service and/or content, and we advise you to assess for yourself the adequacy and appropriateness of any linked site, product, service and/or content for your own purposes. Licensor expressly disclaims any responsibility for the quality, adequacy, or appropriateness of any product or service provided by or advertised by any linked site.
1.10 No Right To Continued Service. Licensor reserves the right to amend the Application, PathVu Services and/or the interface, functionality and/or operation of the Application or the PathVu Services at any time and without prior notice. At any time without notice, Licensor may add, delete or disable content, and/or add, delete, disable or modify some or all of the PathVu Services, at its sole election, and you acknowledge: (1) that you may no longer be able to use the Application, and/or other aspects of the PathVu Services to the same extent - or at all - as prior to such change or discontinuation, and (2) that Licensor shall have no liability to you in such case. In no event will Licensor be liable for the removal of or disabling of access to any content, materials or functionality. Licensor may also impose limits on the use of or access to certain features or portions of the content, other aspects or components of the PathVu Service, in any case and without notice or liability.
1.11 Google Maps. The Application and PathVu Services rely on the Google Maps service provided by Google, Inc. ("Google"). By using the Application and PathVu Services, you agree and acknowledge that use of Google Maps functionality integrated into the Application is subject to the Google Maps/Earth Terms of Service (https://developers.google.com/maps/terms#section_9_1).
2. PAIDVU DATA COLLECTORS
2.1 Becoming a paidVu data collector. You can only become a paidVu data collector by signing up online at pay.pathvu.com. The paidVu data collection program is available for a limited time and participation is offered based on availability. PathVu has the right to refuse data collectors for any reason. PathVu has the right to stop the program at any time without prior notice to participants.
2.2 Performing data collection. By collecting data, you agree to use your best efforts, skills and abilities to report data in a professional and workmanlike manner as stated in this agreement.
2.3 Evaluation of paidVu data. When you have completed and delivered reported data, PathVu may evaluate the data to determine, in their sole discretion, whether they comply with the requirements of this Agreement. If there are discrepancies with the data reported relative to this agreement, the data collector will not receive the Fee for the data collected, if any.
3. PAYMENT TO PAIDVU DATA COLLECTORS
The Fee to paidVu data collectors, less any payment processing fees, will be remitted by our third party payment processor, PayPal, each Monday provided that the total amount due to you is at least $5 (the "Minimum"). A paidVu data collector may receive a maximum of $50 in one payment week for the data collected. A payment week lasts for seven days and ends at 11:59 p.m. on Sunday, prior to payment. Payment shall be paid to the data collector for the previous week of data collection only. For any week in which the total amount due to you is less than the Minimum, the balance may be carried over to the following week. Unless otherwise stated, all Fees are quoted in U.S. Dollars. You are responsible for paying all applicable taxes and for all expenses incurred by you in connection with performing the data collection or otherwise performing your obligations under this Agreement. We may be obligated by law to obtain tax information from you. If we request tax information from you and you do not provide it, we may (in addition to any other rights or remedies available to us) withhold your Fees until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
4. PAIDVU DATA COLLECTOR INDEPENDENT CONTRACTOR RELATIONSHIP
For paidVu data collectors, it is understood and agreed that your relationship with PathVu is that of an independent contractor. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, employment agency, or employer-employee relationship between PathVu and you. You will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving PathVu that is inconsistent with your being an independent contractor (and not an employee) of PathVu. You are not the agent of PathVu and you are not authorized, and must not represent to any third party that you are authorized, to make any commitment or otherwise act on behalf of PathVu. Without limiting the generality of the foregoing:
4.1 Benefits and Contributions. You are not entitled to or eligible for any benefits that PathVu may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Because you are an independent contractor, PathVu will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers' compensation insurance on your behalf. If, notwithstanding the foregoing, you are reclassified as an employee of PathVu, or any affiliate of PathVu, by the U.S. Internal Revenue Service, the U.S. Department of Labor, or any other federal, state or foreign agency as the result of any administrative or judicial proceeding, you hereby elect not to participate in, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by PathVu.
4.2 Taxes. Since you are an independent contractor and not an employee of PathVu, we do not withhold income or employment taxes or any other amounts from any Fees paid to you under this Agreement. You are solely responsible for filing all tax returns and paying all amounts required by any federal, state, local, or foreign tax authority arising from the payment of Fees to you under this Agreement, and you agree to do so in a timely manner. Because all PathVu Fees are remitted through PayPal, the issuance of a Form 1099-K to you (and the filing of a copy of that Form with the Internal Revenue Service), if any, will be done by PayPal. Please be advised that, in general, all Fees paid to you under this Agreement are considered taxable income, even if you do not receive a Form 1099-K from PayPal, or the amount reported on any such Form 1099-K is less than total Fees paid to you under this Agreement. We recommend that you consult your own tax advisor for information on your personal tax situation.
4.3 Compliance with Law. You will comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions.
5. OWNERSHIP AND INTELLECTUAL PROPERTY
5.2 Copyright. Unauthorized use of any material accessed through or contained on the PathVu Services, may violate copyright laws, trademark laws, trade secret laws, the laws of privacy and publicity, and other regulations and statutes. PathVu Content is owned by Licensor and/or its licensors, and content providers and is protected by applicable domestic and international copyright laws. The compilation of all PathVu Content through the PathVu Services and its presentation through the Application is the exclusive property of Licensor and protected by U.S. and international copyright laws. Text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, presented on or through the PathVu Services is Copyrighted by Pathway Accessibility Solutions, Inc. All rights reserved. Any rights not expressly granted to you herein are reserved. Any violation of copyright laws may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.
5.3 Trademark. “PathVu”, the PathVu logo, and all graphics, logos, page headers, titles, button icons, scripts, service names and other trademarks and service marks on the PathVu Services are trademarks, trade dress and service marks belonging to Licensor or its licensors (the "Licensor Marks"). Licensor Marks may not be used in connection with any product or service that is not related to Licensor or the PathVu Services, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Licensor or the PathVu Services. Licensor Marks may not be copied, imitated or used, in whole or in part, without prior written permission from Licensor. All other trademarks not owned by Licensor that appear via the PathVu Services are the property of their respective owners, who may or may not be affiliated with, connected to, sponsor, or sponsored by Licensor. Any product, service, or trade name other than those owned by Licensor that identify a third party as the source thereof may, even if not so indicated, be the service mark or trademark of that respective entity or individual. Any unauthorized use of the Licensor Marks or any third party trademark is strictly prohibited.
5.4 Complaints; DMCA. If you believe that your trademark, service mark, or copyrightable work of authorship has been copied and/or is being displayed via the PathVu Service in such a way that would give rise to a claim for misappropriation or infringement, please follow the procedure regarding Notice and Claims:
(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the intellectual property interest;
(b) A description of the protected mark or copyrighted work that you claim has been infringed upon;
(c) A description of the manner in which the material that you claim is infringing is accessed via the PathVu Services, including any information which would assist Licensor in identifying and locating that material;
(d) Your address, telephone number and e-mail address;
(e) A statement by you that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or permissible by law;
(f) A statement by you under the penalty of perjury that the information in your notice is accurate that you are the mark holder, copyright owner or authorized to act on such party's behalf.
AGENT FOR CLAIMS
Pathway Accessibility Solutions, Inc.
1297 Royal Park Boulevard
South Park, PA 15129
6. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
6.2 LICENSOR DOES NOT ENDORSE ANY PARTICULAR PATHVU CONTENT OR USER CONTENT OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED THEREIN. UNDER NO CIRCUMSTANCES WILL LICENSOR BE LIABLE IN ANY WAY FOR PATHVU CONTENT OR USER CONTENT, INCLUDING BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY PATHVU CONTENT OR USER CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY PATHVU CONTENT OR USER CONTENT ACCESSED, TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE APPLICATION AND/OR PATHVU SERVICES. You agree that any claim you may have arising out of or related to your relationship with PathVu must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
6.5 Indemnity. You (and also any third party for whom you operate an account or activity on the PathVu Services) hereby agree to indemnify, defend and hold harmless Licensor and its affiliates from and against any and all liability and costs incurred by Licensor or the affiliates in connection with any claim arising out of (i) any breach or alleged breach of any of your obligations set forth herein; (ii) your User Content or your access to or use of the PathVu Services; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You shall cooperate as fully as reasonably required in the defense of any claim. Licensor reserves the right, at its own expense, but is not obligated, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of Licensor.
7. ACCEPTABLE USE POLICY
a. You may not post profane, violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos or other similar content via the PathVu Services in contravention of the intended purpose of mapping sidewalks for wheelchair and pedestrian accessibility.
b. You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities and you must not post private or confidential information via the PathVu Services, including, without limitation, your or any other person's credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses.
c. You may not use the PathVu Services for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Service and your Content (defined below), including but not limited to, copyright laws.
d. You are solely responsible for your conduct and all User Content that you submit, post or display on or via the PathVu Services.
e. You must not change, modify, adapt or alter the PathVu Services or change, modify or alter another website so as to falsely imply that it is associated with the PathVu Service or PathVu.
f. You must not access PathVu's private API by means other than those permitted by PathVu. To the extent PathVu permits the use of PathVu's API, such use will be subject to a separate set of terms available from PathVu’s web site ("API Terms").
g. You must not use domain names or web URLs in your username without prior written consent from PathVu.
h. You must not interfere or disrupt the PathVu Services or servers or networks connected to the PathVu Services, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any PathVu page is rendered or displayed in a user's browser or device.
8.9 Events Beyond Licensor's Control. Licensor will use reasonable efforts to keep the Application and PathVu Services available for your use; however, Licensor cannot and will not be responsible for any loss or unavailability of access to PathVu Services that results from any cause including a cause over which it does not have direct control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, wireless data or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, or governmental restrictions.
8.10 Descriptive Headings. The headings of the various sections herein are for convenience of reference only and shall not define, limit or otherwise affect any of the terms or provisions hereof.
8.11 Mandatory Arbitration.
You may opt out of this agreement to arbitrate. If you do so, neither you nor PathVu can require the other to participate in an arbitration proceeding. To opt out, you must notify PathVu in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out:
Pathway Accessibility Solutions, Inc.
6024 Broad Street, Ste. 2R
Pittsburgh, PA 15206
You must include your name and residence address, an email address, and a clear and specific statement that you want to unconditionally opt out of this arbitration agreement.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with PathVu.