TERMS OF SERVICE

RoadBreakers APP End User License Agreement

Effective Date: August 30, 2014

Thank you for downloading RoadBreakers. We are glad to have you as a part of our service, and we are committed to providing you with the best possible value and convenience.

The RoadBreakers application and its associated servers, data, user input, and content (hereinafter “RoadBreakers App”) is owned by RoadBreakers, LLC, a company organized under the laws of the State of Illinois (hereinafter “Owner”), and is licensed to you in accordance with the terms of this End User License Agreement (hereinafter “Agreement”). The support website for RoadBreakers App is available at roadbreakers.com (hereinafter “Website”).

This Agreement is made by and between you, the downloader and user of the RoadBreakers App, and Owner, and governs your use of the RoadBreakers App. You acknowledge that you have a duty to read, understand, and assent to the terms of this Agreement. If you do not agree to the terms of this Agreement, you are expressly prohibited from using the RoadBreakers App and you must terminate your use of and uninstall the RoadBreakers App immediately.

YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE A DUTY TO READ THIS AGREEMENT BEFORE YOU INSTALL AND RUN THIS APP ON YOUR MOBILE DEVICE. YOUR INSTALLATION, USE, OR OPERATION OF THIS ROADBREAKERS APP CONSTITUTES YOUR MANIFESTATION OF ASSENT TO AND ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. THIS AGREEMENT DOES NOT REPLACE BUT IS IN ADDITION TO ANY ITUNES AGREEMENT REQUIRED BY APPLE IN ORDER TO DOWNLOAD AND USE THE ROADBREAKERS APP.

Owner reserves the right, in its sole and absolute discretion, to discontinue the RoadBreakers App or to modify, change, replace, or discontinue this Agreement. If Owner modifies, changes, or discontinues the terms of this Agreement, the Effective Date, located above, will change. Your installation or use of the RoadBreakers App after a change in the Effective Date of this Agreement constitutes your acceptance of and manifestation of assent to any modification, change, or replacement.

You warrant and agree that you have the right, power, and legal capacity to enter into this Agreement and to adhere to the terms and conditions hereunder. You further warrant and agree that you are not prohibited from entering into this Agreement by any preexisting agreement. You warrant and agree that you are a human individual that is at least thirteen (13) years of age or older. If you are 13 or older but under the age of 18, you should review this Agreement with your parent or guardian to make sure that you or your parent or guardian understand it. You agree to comply, in good faith, with the terms of this Agreement.

Subscription to RoadBreakers App

You acknowledge and agree that you may be required to subscribe to the RoadBreakers App and pay a subscription fee in order to access certain features of the RoadBreakers App otherwise not available upon download.

If you subscribe to the RoadBreakers App by providing your Apple ID, or allow Owner to facilitate payments through a third party payment processor, including but not limited to Apple iTunes Store, you acknowledge and agree that Owner does not own or control such third parties or third party payment processors and will not be held liable for any claims, demands, causes of action, debts, liabilities, damages, costs, or expenses, including costs and reasonable attorneys fees, arising out of or in relation to your use of such third party services, products, or payment processing. You understand and agree that any purchase made in the RoadBreakers App may be processed by someone other than Owner. You are advised to read the terms of use agreement of any such third party, including any third party payment processor.

Limited License Grant

Owner grants you a limited, non-exclusive, royalty free, non-sublicensable, non-transferrable, and non-assignable license to install and use one copy of the RoadBreakers App in executable object code form to be used on a single mobile device for non-commercial purposes. You can download and install the RoadBreakers App one time for each of the multiple devices, including, but not limited to iPhones, iPads. You will be charged one time for the initial purchase, with subsequent downloads/installs on your other devices being free of charge. However, you may not distribute or make the RoadBreakers App available over a network where it could be used by multiple devices at the same time.

The RoadBreakers App, including but not limited to any text, software, scripts, graphics, photos, sounds, music, videos, and interactive features, as well as its associated data and services, is the property of, owned by, or licensed to RoadBreakers, LLC. You acknowledge and agree that you are prohibited from copying, making derivative works of, modifying, publicly performing, publicly displaying, streaming, exploiting, broadcasting, decompiling, adapting, distributing, reproducing, republishing, scraping, transmitting, selling, posting, hacking, or reverse engineering the RoadBreakers App, in whole or in part, without the prior written consent of RoadBreakers, LLC. You understand and agree that you are prohibited from using the RoadBreakers App in any way inconsistent with or in violation of this Agreement or any local, state, provincial, national, or international law, regulation, statute, ordinance, or treaty.

The use of the RoadBreakers App should not be used while operating motor vehicles (including, without limitation, a car, truck, motorcycle, motor scooter, or recreational vehicle/RV). You understand that using any handheld device while driving is extremely dangerous, and can result in property damage, physical injuries, and/or death. You expressly agree that RoadBreakers, LLC shall not be held responsible or liable for the consequences of any driving decisions, injury, or harm caused by your use of the RoadBreakers App while driving, including, but not limited to hitting low bridges or high curbs, traffic tickets, or towing.

You are hereby prohibited from using the trademarks, service marks, design marks, and logos of RoadBreakers, LLC, or any colorable imitation thereof, or any mark not owned or licensed by you, as an indicator of source, as a part of a domain name, or in any way that is likely to cause confusion without the prior written consent of RoadBreakers, LLC. The RoadBreakers App is subject to all intellectual property laws, including but not limited to trademark, copyright, patent and trade secret laws.

You are prohibited from using the RoadBreakers App for any uses not explicitly stated in this Agreement. Such unauthorized uses may include, but are not limited to:

    • Any commercial use, such as the resale or republication of the RoadBreakers App;

    • Any modification of the RoadBreakers App, including but not limited to translation into another computer language or the creation of derivative works from the RoadBreakers App;

    • Any use of the RoadBreakers App outside of its customary or intended purposes;

    • Any use of the RoadBreakers App to transmit any material that violates the rights of third parties, including but not limited to material that contains or constitutes intellectual property infringement, false advertising, or defamation;

    • Any use of the RoadBreakers App to defraud, to impersonate, to harass, to participate in or promulgate ponzi schemes, pyramid schemes, chain letters, unsolicited bulk or commercial emails, or to collect personal or personally identifiable information from users of the RoadBreakers App without their knowledge or consent;

    • Any use of the RoadBreakers App while operating motor vehicles (including, without limitation, a car, truck, motorcycle, or motor scooter); or

    • Any other activity that disrupts the RoadBreakers App or its associated services, including but not limited to hacking or denial of service attacks.

Owner retains the right to terminate this non-exclusive license for a violation of this Agreement, a violation of the rights of a third party, or a violation of any applicable local, state, provincial, national, or international law, regulation, statute, ordinance, or treaty.

User-Generated Content

The RoadBreakers App contains content not created by or provided by Owner. The RoadBreakers App may allow you to submit user generated content to a server, including but not limited to user names/handles, specific geographical locations (including names of the locations, geographical coordinates, addresses, telephone numbers, cities, states, and zip codes) and comments about the geographical locations, such as the accessibility of the locations, or accessibility of other businesses near a location, or problems with the locations (hereinafter “User Generated Content”). You hereby grant Owner, and its licensees, a non-exclusive, worldwide, royalty-free, sublicensable, transferrable, and irrevocable license to use, display, copy, distribute, publish, perform, transmit, broadcast, stream, prepare derivative works of, sell, modify, and adapt any User Generated Content that you add to or submit through the RoadBreakers App for the purposes of the RoadBreakers App. The purposes of the RoadBreakers App may include but are not limited to making copies of your User Generated Content for storage or archival purposes, uploading your User Generated Content to Owner’s servers or those of third party service providers it uses, submitting your User Generated Content to third parties with whom Owner has an agreement or upon your request, mapping overnight truck parking locations and directions in one database, and providing real-time current information about each location generated from user comments. You hereby explicitly agree to waive all moral rights in or to your User Generated Content. Owner does not claim any ownership rights in or to your User Generated Content outside of this non-exclusive license.

You acknowledge and agree that you are solely responsible for any User Generated Content that you submit to the RoadBreakers App. You warrant that you are the exclusive owner of all right, title, and interest in and to any User Generated Content that you submit to the RoadBreakers App and that you have the right to convey all right, title, and interest in and to the User Generated Content free and clear of any and all claims, liens, or encumbrances. You warrant and agree that your User Generated Content will not violate or infringe upon the rights of third parties, including but not limited to copyright, trademark, privacy, publicity, or other personal or proprietary rights. You also warrant and agree that any User Generated Content that you submit to the RoadBreakers App will not contain obscene, offensive, harassing, threatening, or defamatory material or other material in violation of local, state, provincial, national, or international laws, regulations, ordinances, statutes, or treaties.

You acknowledge and agree that Owner is a service provider and will not be held liable for any costs or fees incurred by you through your use of the RoadBreakers App, including but not limited to mobile carrier fees, SMS or other text message fees, or payment provider fees.

Copyright Policy

The RoadBreakers App and its contents are © 2014 RoadBreakers, LLC. All rights reserved.

This Copyright Policy is expressly incorporated into this Agreement.

Owner will respond to specific notices of copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”). Owner may expeditiously remove copyright infringing materials from RoadBreakers App, regardless of Owner’s liability, upon receipt of a notice that complies with the terms of the Digital Millennium Copyright Act’s § 512, located at 17 U.S.C. § 512(c)(3). Owner, upon removal of any materials that are alleged to be infringing, will make a good faith attempt to notify the owner or uploader of the materials so that they may respond with a counter-notification under 17 U.S.C. § 512(g)(3).

If you believe that content hosted on the RoadBreakers App infringes upon your copyright rights, please follow the Digital Millennium Copyright Act steps outlined below:

  1. If you are a copyright owner, or the authorized agent of a copyright owner, and you believe that content hosted on the Website and/or RoadBreakers App infringes upon your copyright rights, you may submit a notification pursuant to the Digital Millennium Copyright Act by providing our registered Copyright Agent with the following information in writing:
    1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
    2. Identification of the copyrighted work claimed to have been infringed, or, if multiple works have been allegedly infringed, a specific list of such works and their specific location on the Website and/or RoadBreakers App;
    3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit Owner to locate the material;
    4. Information reasonably sufficient to permit Owner to contact you, such as an address, telephone number, fax number, and, if available, an email address;
    5. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
    6. A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  1. Owner will maintain a designated Copyright Agent, who will receive notifications of alleged infringement. You recognize that if you fail to comply with the requirements of the Digital Millennium Copyright Act’s notification requirements, your DMCA notice may not be processed.
  1. Counter-Notification
    1. If you believe that content has been removed from the Website in error, you may file a counter-notification with Owner’s designated Copyright Agent that complies with the requirements of 17 U.S.C. § 512(g)(2) and (g)(3) outlined below. Upon receipt of a counter-notification complying with the requirements of 17 U.S.C. § 512, Owners may return the allegedly infringing content to the Website.
    2. A counter-notification must include:
      1. Identification of the specific materials that have been removed from the Website and/or RoadBreakers App;
      2. Your name, address, telephone number, and email address;
      3. A statement that, under penalty of perjury, you have a good-faith belief that the material was removed or disabled as a result of mistake or misidentification of the material;
      4. A statement that you consent to federal district court jurisdiction in the district in which your address is located or, if your address is outside of the United States, that you consent to jurisdiction in any district in which Owner may be found and that you will accept service of process from the person who provided notification or their agent; and
      5. Your physical or electronic signature.

Notices of infringement and counter-notifications may be sent to Traverse Legal, PLC, 810 Cottageview Drive, G20 Traverse City, MI 49684, with a copy to dmcaagent@traverselegal.com

Feedback

Owner encourages its users to submit comments, suggestions, and error reports to Owner. You acknowledge and agree that any feedback submitted to Owner, including but not limited to any intellectual property or other proprietary information contained within that feedback, will become the exclusive property of Owner. You agree to assign all right and title in or to any and all feedback that you submit to Owner and execute any and all documents necessary to assign your rights to any and all feedback to Owner upon Owner’s request, including but not limited to any documents necessary to perfect Owner’s rights in and to intellectual property or proprietary rights.

Disclaimer and Limitation of Liability

You acknowledge and agree that the content contained within the RoadBreakers App will not be considered a representation to reasonably be relied upon and nothing within the RoadBreakers App will be construed to create a duty of care in Owner or a warranty of any kind. You acknowledge and agree that Owner takes no responsibility and cannot be held liable for all the information contained within the RoadBreakers App, User Generated Content contained within the RoadBreakers App, information or websites linked to through the RoadBreakers App, information sent to Owner by third parties, and information intercepted by third parties. You agree to hold Owner harmless for any and all inaccuracies, omissions, errors, loss of data, corruption of data, failure of hardware, failure of the App, or misuse of the App.

OWNER PROVIDES THE ROADBREAKERS APP ON AN AS-IS BASIS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ACCURACY. YOU ACKNOWLEDGE AND AGREE THAT YOU USE THE APP AT YOUR OWN RISK AND THAT ROADBREAKERS, LLC WILL NOT BE HELD LIABLE FOR ANY DEFECTS, ERRORS, OMISSIONS, BUGS, OR DOWNTIME. ANY ATTEMPT BY OWNER TO MODIFY THE ROADBREAKERS APP WILL NOT BE DEEMED TO BE A WAIVER OF THIS LIMITATION OF LIABILITY. OWNER WILL NOT BE HELD LIABLE FOR ANY CONTENT CONTAINED WITHIN THE ROADBREAKERS APP, ANY THIRD PARTY LINKS ACCESSIBLE THROUGH THE ROADBREAKERS APP, OR ANY CONTENT TRANSMITTED THROUGH THE ROADBREAKERS APP.

OWNER WILL NOT BE HELD LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, SPECIAL DAMAGES, EXEMPLARY DAMAGES, INDIRECT DAMAGES, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, OR LOST INFORMATION ARISING OUT OF THE USE, WHETHER PROPER OR IMPROPER, OF THE ROADBREAKERS APP, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OWNER DOES NOT ASSUME RESPONSIBILITY FOR ANY ERROR IN, OMISSION OF, INTERRUPTION OF, DELETION OF, DEFECT IN, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, OR ALTERATION OF ANY DATA. YOU BEAR THE SOLE RESPONSIBILITY TO PROTECT AND BACKUP YOUR OWN DATA, NETWORK, HARDWARE, SYSTEMS, SERVERS, SOFTWARE, COMPUTERS, PHONES, AND SECURITY.

YOU ACKNOWLEDGE AND AGREE THAT OWNER’S LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT THAT YOU PAID FOR THE ROADBREAKERS APP, OR ANY SUBSCRIPTION TO THE ROADBREAKERS APP, OR $50, WHICHEVER IS GREATER. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS LISTED IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

You are expressly prohibited from using or otherwise exporting the RoadBreakers App except as authorized by the laws of the United States of America. You acknowledge and agree that you are prohibited from exporting the application to: (1) any countries currently listed as an embargoed country or person with the U.S. Department of Commerce; (2) any individuals or companies currently listed as a Specially Designated National with the U.S. Department of the Treasury; (3) any individuals or companies currently listed on the U.S. Department of Commerce’s Denied Persons List; and (4) any individuals or companies currently listed on the U.S. Department of Commerce’s Entity List.

You acknowledge and agree that the RoadBreakers App constitutes Commercial Computer Software as defined by 48 CFR § 2.101. The RoadBreakers App is licensed to U.S. Government personnel as a Commercial Item only and subject to the terms and conditions contained within this Agreement. Owner reserves all other rights under the law.

Indemnification

You agree to indemnify, hold harmless, and defend Owner, its officers, members, employees, agents, and directors from and against any and all claims, demands, causes of action, debts, liabilities, damages, costs, or expenses, including costs and reasonable attorneys fees, arising out of or in relation to your use of the RoadBreakers App, your violation of a term or provision of this Agreement, or your violation of the rights of a third party. You agree that your obligation to hold harmless, defend, and indemnify Owner will survive the termination or failure of this Agreement and your use of the RoadBreakers App. You acknowledge and agree that your obligation to defend Owner will not provide you with the right to control Owner’s defense and you expressly agree that Owner has the right to direct and control its defense regardless of your obligation to defend Owner.

Assignment

You are expressly prohibited from assigning your rights and duties under this Agreement without Owner’s prior written consent. Owner may assign its rights or obligations under this Agreement at any time, including but not limited to in a sale of the Owner’s business or in a sale of the RoadBreakers App. In the event of an assignment by Owner, you understand and agree that Owner may share any information collected, as set forth in the Privacy Policy.

Integration

This Agreement, along with any relevant policies, including Privacy Policy, constitutes the entire agreement between the parties relating to the subject matter of this Agreement and hereby supersedes all prior agreements, statements, or representations. This Agreement may only be modified by a writing signed by both parties.

Choice of Laws and Resolution of Disputes

You agree that for all legal and non-legal purposes, the RoadBreakers App is located in the State of Illinois. You agree that the RoadBreakers App does not give rise to personal jurisdiction over Owner in jurisdictions other than Illinois. This Agreement will be interpreted under and governed by the laws and legal principles of the State of Illinois, without regard to its conflicts of laws principles or statutes.

YOU AND OWNER AGREE THAT ARBITRATION WILL BE THE EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR CONCERNING THE VALIDITY, INTERPRETATION, BREACH, VIOLATION, OR TERMINATION OF THIS AGREEMENT. THIS ARBITRATION WILL BE HELD IN ILLINOIS AND WILL BE HELD IN ACCORDANCE WITH THE MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES PROMULGATED BY THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATOR WILL DECIDE THE CLAIM ON THE BASIS OF THE LEGAL PRINCIPLES AND LAWS OF THE STATE OF ILLINOIS AND WILL HAVE THE DISCRETION TO AWARD ALL COSTS AND ATTORNEYS’ FEES. THE LOSING PARTY WILL BE REQUIRED TO PAY THE PREVAILING PARTY’S REASONABLE ATTORNEYS’ FEES. YOU AND OWNER AGREE THAT THE DETERMINATION OR AWARD OF THIS ARBITRATOR MAY BE ENTERED AS A JUDGMENT IN ANY COURT SITTING WITHIN THE STATE OF ILLINOIS THAT HAS JURISDICTION OVER THE SUBJECT MATTER OF THE DISPUTE. YOU AND OWNER AGREE THAT THE PARTIES WILL BE REQUIRED TO BE PRESENT WITH THE STATE OF ILLINOIS IN ORDER TO PERFORM THEIR OBLIGATIONS UNDER THIS AGREEMENT. YOU AND OWNER HEREBY AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF ANY SUCH ARBITRATOR OR ARBITRATION PROCEEDING.

Additional Provisions

No waiver of rights under this Agreement by either party will be recognized unless made in writing and signed by the party to be charged. This Agreement is solely between Owner and you and will not confer any rights or remedies upon any third party, including third party beneficiaries. A finding that any term or provision of this Agreement is invalid or unenforceable will not affect the validity or enforceability of this Agreement. Any term or provision of this Agreement that is found to be invalid or unenforceable will be reformed to the extent necessary to make it valid and enforceable.

YOU AND OWNER AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PROVIDED UNDER THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED. FAILURE TO ASSERT SAID CAUSE OF ACTION WITHIN ONE YEAR WILL PERMANENTLY BAR ANY AND ALL RELIEF.

Notices

All notices to Owner must be in writing to RoadBreakers, LLC, Glencoe, IL 60022, with a copy emailed to truckparkingovernight@gmail.com.

All rights not expressly granted herein are reserved to Owner.

This Agreement is enforced by the Internet lawyers of Traverse Legal, PLC.

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