OBD Apps · Legal

User Agreement — Smog Predict, Used Car Check & OBD Cockpit

Recitals

This User Agreement (the “Agreement”) is made between [TourGuid LLC], a [California] limited liability company (the “Company,” “we,” “us”), and each person who downloads, opens or uses any of the Apps (“you,” the “User”).

WHEREAS, the Company develops and publishes the software applications known as Smog Predict, Used Car Check and OBD Cockpit, in web, Android and iOS versions (each an “App” and together the “Apps”);

WHEREAS, the Apps read information that a motor vehicle’s own computers report through its standardized On-Board Diagnostics (“OBD”) port, by way of a separately purchased adapter, and present that information together with the Company’s automated interpretation of it;

WHEREAS, the information a vehicle reports is limited, may be incomplete or inaccurate, and cannot by itself establish a vehicle’s mechanical condition, safety, history, value or eligibility to pass any inspection;

WHEREAS, the Apps are not an official smog, emissions or safety inspection, are not affiliated with or endorsed by any government agency, vehicle manufacturer, inspection station or adapter maker, and do not replace an inspection by a licensed technician or a vehicle-history report;

WHEREAS, using diagnostic equipment while driving is dangerous, and certain diagnostic functions can change a vehicle’s stored information;

WHEREAS, the Company wishes to make the Apps available, and the User wishes to use them, only on the terms, conditions, limitations and disclaimers set out below, including the User’s activation of the Apps by confirming this Agreement; and

WHEREAS, the User has had the opportunity to read this Agreement and the Company’s Privacy Policy before using the Apps;

NOW, THEREFORE, in consideration of the license granted below and of the mutual promises in this Agreement, the receipt and sufficiency of which are acknowledged, the Company and the User agree as follows.

1. Definitions, Acceptance and Activation

1.1 Definitions. “Adapter” means any OBD-II interface device, wired or wireless, that connects a vehicle’s diagnostic port to a phone, tablet or computer. “Vehicle Data” means information read from a vehicle through an Adapter. “Results” means any reading, finding, score, prediction, readiness status, red flag, report or other output of the Apps. “Third-Party Data” means information the Apps obtain from outside sources, such as government recall or VIN databases. “Acceptance Record” has the meaning given in Section 1.4.

1.2 Binding agreement. By tapping “I Agree,” or by installing, opening or using any App, you agree to be bound by this Agreement. If you do not agree, do not use the Apps.

1.3 Eligibility. You must be at least 18 years old, or the age of majority where you live, and legally able to enter into contracts. If you use the Apps for a business, you represent that you are authorized to bind that business, and “you” includes it.

1.4 Activation. Before you first use an App on a device, you must activate it by completing the confirmation shown in the App, which has three steps: (a) you enter, or confirm, your full name and email address, and place a check mark in the box stating that you have read this Agreement and agree to all of its provisions; (b) the Company sends an authorization number to that email address; and (c) you copy the authorization number from that email into the App, which confirms that the email address belongs to you. Only after step (c) does the App issue a unique receipt number for that confirmation. Your name, verified email address, check mark, authorization, receipt number, date and time, Agreement version, App edition, app version, device platform and the network address and country the confirmation came from together form an “Acceptance Record.” Activation is required once on each device or browser, and again whenever the Company issues a new version of this Agreement (Section 13.1) or the App’s stored data is erased. The App’s features do not open until activation is complete.

1.5 Delivery of Acceptance Records. You agree that each Acceptance Record is sent to the Company at tourguidllc@gmail.com, or to another address the Company designates by updating this Agreement, and is kept by the Company as evidence of your acceptance. The receipt number is shown to you and a copy is kept on your device. Because the authorization number must be delivered by email, an internet connection is required to complete the confirmation.

1.6 Accuracy. You agree that the name and email address you give are your own and are accurate. Giving false information is a breach of this Agreement.

1.7 Electronic signature. You agree that placing the check mark, together with your name and the authorization number sent to your email address, is your electronic signature. It has the same force as a handwritten signature under the U.S. Electronic Signatures in Global and National Commerce Act (E-SIGN) and applicable state law, including the California Uniform Electronic Transactions Act. You agree that the Acceptance Record is sufficient proof that you, and not someone else, accepted this Agreement.

2. License

2.1 Grant. Subject to this Agreement, the Company grants you a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable license to install and use the Apps on devices you own or control, for your own personal or internal business purposes.

2.2 Restrictions. You will not, and will not let anyone else:

2.3 Reservation. The Apps are licensed, not sold. All rights not expressly granted are reserved by the Company and its licensors.

3. Nature of the Services — Not an Inspection

3.1 Information only. The Apps display what a vehicle’s own computers report, together with the Company’s automated interpretation. Results are estimates and general information. They are not professional mechanical, legal, financial or safety advice.

3.2 Smog Predict. Smog readiness Results are a pre-check based on the Company’s rule packs, which summarize published inspection requirements as the Company understands them. Rule packs may be out of date, incomplete or wrong for your vehicle or location. Smog Predict is not an official smog check, emissions test or inspection; is not affiliated with or approved by the California Bureau of Automotive Repair, the California Air Resources Board, the U.S. Environmental Protection Agency or any other agency; and does not guarantee that a vehicle will pass or fail any inspection.

3.3 Used Car Check. Used Car Check Results, including “red flags,” point to things worth asking about. They are not a pre-purchase inspection, appraisal or vehicle-history report and cannot reveal title status, accidents, flood damage, liens, theft, prior repairs or true mileage. A vehicle that shows no red flags may still have serious problems. Always have a qualified mechanic inspect a vehicle and obtain a vehicle-history report before you buy.

3.4 Recall information. Recall lookups list recalls that the U.S. National Highway Traffic Safety Administration (“NHTSA”) has published for a make, model and model year. They do not show whether a recall applies to a particular vehicle or has already been repaired. Check a specific VIN at nhtsa.gov/recalls or with an authorized dealer.

3.5 Your decisions. You alone are responsible for any decision you make about buying, selling, repairing, driving, registering or inspecting a vehicle, and for any repair you or others perform. Results may never be your only basis for such a decision.

4. Safe Use

4.1 Never while driving. Do not look at, touch or operate the Apps while driving. Drive Mode and the Readiness Monitor are designed to run without attention; set them up only while the vehicle is safely parked. A passenger may operate the Apps only if doing so does not distract the driver. Obey all traffic and distracted-driving laws.

4.2 Adapter placement. Place the Adapter and any cable so they cannot interfere with the pedals, steering, airbags or your view. Do not leave an Adapter plugged in unattended if it may drain the battery.

4.3 Running engines. Never run an engine in a closed or poorly ventilated space. Keep clear of moving parts and hot surfaces.

4.4 Functions that change stored data. Some functions, such as clearing diagnostic codes, reset readiness monitors and erase information a technician or inspector may need. The Apps ask for confirmation before any such function. You are responsible for using it, including any failed inspection or lost diagnostic information that follows.

4.5 Vehicles you do not own. If you use the Apps on a vehicle you do not own, you must have the owner’s permission to connect an Adapter, and you must not clear codes or change any stored data on that vehicle.

5. Adapters and Vehicle Compatibility

5.1 Third-party hardware. Adapters are made and sold by third parties. The Company does not make, sell, endorse or warrant any Adapter. Links to online stores are provided only for convenience; any purchase is between you and that seller.

5.2 No compatibility promise. Vehicles report different information, and many Adapters, especially low-cost clones, behave inconsistently. The Company does not promise that the Apps will work with any particular vehicle, Adapter, phone or operating system, or that any particular information will be available. iPhones cannot use classic-Bluetooth Adapters.

5.3 Risk to the vehicle. Connecting any device to a vehicle’s diagnostic port carries some risk, including battery drain, warning lights and, rarely, interference with vehicle electronics. The Apps limit themselves to standard read requests except where you confirm otherwise, but you connect an Adapter at your own risk.

6.1 Sources. Some features use Third-Party Data, including NHTSA’s VIN-decoding and recall services and published inspection rules. The Company does not control these sources and does not guarantee that they are accurate, complete, current or available.

6.2 Platforms. App stores, payment processors, mapping or browser platforms, and online retailers are run by third parties under their own terms and privacy policies. The Company is not responsible for them.

6.3 Requests you start. The Apps contact a Third-Party Data source only when you start the lookup, for example by tapping “Check Recalls.” That request may include the vehicle’s make, model, model year or VIN.

7. Privacy and Acceptance Records

7.1 Vehicle Data stays on your device. Vehicle Data, Results and reports are stored on your device. They are not sent to the Company unless you choose to share or export them.

7.2 What the Company receives. The only personal information the Company routinely receives is what is needed for the confirmation in Section 1.4: your name and email address, the authorization number (stored only in scrambled, “hashed,” form and deleted within fifteen minutes), and each Acceptance Record. The Company’s email-delivery provider sends the authorization number to your email address and sends each Acceptance Record to tourguidllc@gmail.com, and the Company keeps a copy of each Acceptance Record in its own records.

7.3 Why. The Company uses Acceptance Records only to keep proof that you accepted this Agreement, to answer your questions about a receipt number, and to enforce or defend its rights. It does not sell them, share them for advertising or send marketing email based on them unless you separately opt in.

7.4 Retention. Acceptance Records are kept for as long as you use the Apps and for [four (4)] years afterward, or longer if required by law or a legal claim, and then deleted.

7.5 Your rights. Depending on where you live, including California (CCPA/CPRA) and the European Economic Area or United Kingdom (GDPR), you may have the right to access, correct or delete your personal information and to object to or limit its use. Contact the Company under Section 15. Deleting Acceptance Records may end your ability to use the Apps, because acceptance must be recorded.

7.6 Privacy Policy. The Company’s Privacy Policy, at [privacy URL], gives more detail and forms part of this Agreement. If the two conflict on a privacy matter, the Privacy Policy controls.

8. Purchases and Subscriptions

8.1 Store billing. Paid editions, features or subscriptions bought inside an App are sold through the Apple App Store or Google Play and are subject to that store’s terms, including its payment, renewal, cancellation and refund rules. The Company does not handle your payment card details.

8.2 Renewal. A subscription renews automatically at the price shown when you bought it, unless you cancel in your store account settings at least 24 hours before the end of the current period.

8.3 Refunds. Refund requests go to the store you bought from. Except where the law requires otherwise, fees are non-refundable, and the Company does not give refunds or credits for partial periods, unused features or Results you are unhappy with.

8.4 Price changes. The Company may change prices for future periods, with the notice required by the store and applicable law.

9. Intellectual Property

9.1 Ownership. The Apps, including their software, rule packs, analysis logic, code descriptions, designs, logos and the names “Smog Predict,” “Used Car Check” and “OBD Cockpit,” belong to the Company or its licensors and are protected by copyright, trademark and other laws.

9.2 Your reports. You may keep, print and share reports the Apps generate for your own vehicles or for a vehicle you are considering buying or selling, provided you do not remove the disclaimers and do not present a report as an official inspection or certification.

9.3 Feedback. If you send suggestions or feedback, the Company may use them without restriction or payment to you.

9.4 Other marks. Vehicle makes, models and other third-party names appear only to identify vehicles and products. Their use does not mean any affiliation with or endorsement by their owners.

10. Disclaimer of Warranties

10.1 As is. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE APPS, THE RESULTS, THIRD-PARTY DATA AND ALL RELATED SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” AND YOUR USE OF THEM IS AT YOUR SOLE RISK. THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

10.2 No warranty about Results or vehicles. Without limiting Section 10.1, the Company does not warrant that:

10.3 Vehicle risks you accept. You understand that connecting an Adapter and using the Apps can, among other things: drain the vehicle’s battery or leave it unable to start; turn on warning lights; interfere with vehicle electronics; and, when a function that clears codes is used, reset readiness monitors, erase information a technician or inspector needs, hide an existing fault and cause a smog or emissions inspection to fail until the monitors complete again. Use of aftermarket diagnostic devices may affect a vehicle manufacturer’s warranty; check your warranty before connecting one. Unplug the Adapter if the vehicle behaves abnormally and whenever the vehicle is parked for a long time.

10.4 Not professional advice. No information or Result, whether oral or written, obtained from the Company or through the Apps creates any warranty not expressly stated in this Agreement or replaces the judgment of a licensed technician, a licensed smog-check station or your own independent judgment.

10.5 Statutory rights. Some jurisdictions do not allow the exclusion of implied warranties, so some of the above may not apply to you. Where implied warranties cannot be excluded, they are limited to the shortest period the law allows, or to ninety (90) days from your first use, whichever is shorter.

11. Assumption of Risk, Release, Indemnification and Limitation of Liability

PLEASE READ THIS SECTION CAREFULLY. IT REQUIRES YOU TO DEFEND AND REIMBURSE THE COMPANY FOR CLAIMS ARISING FROM YOUR USE OF THE APPS, RELEASES CLAIMS YOU MIGHT OTHERWISE HAVE, AND LIMITS THE COMPANY’S LIABILITY TO YOU.

11.1 Company Parties. In this Section, the “Company Parties” means TourGuid LLC and its parents, subsidiaries and affiliates, and each of their members, managers, owners, officers, directors, employees, agents, contractors, successors and assigns, and the Company’s licensors and data providers.

11.2 Assumption of risk. You understand and voluntarily assume all risks arising from or connected with your use of the Apps, Adapters and Results, whether known or unknown, including the risks described in Sections 3, 4, 5 and 10.3: physical injury or death, distraction while driving, traffic accidents, damage to or failure of any vehicle or its electronic control units, battery drain, towing, loss of use, repair and diagnostic costs, failed or delayed inspections and re-test fees, registration penalties or fines, buying a vehicle with undisclosed defects, paying more or receiving less for a vehicle, lost bargains, and lost or erased data.

11.3 Release. To the maximum extent permitted by law, you release, waive and forever discharge each of the Company Parties from any and all claims, demands, causes of action, damages, losses, costs and liabilities of every kind, known or unknown, suspected or unsuspected, that arise from or relate to (a) your use of, inability to use or reliance on the Apps or any Result, (b) any Adapter or other third-party product or Third-Party Data, (c) any vehicle on which the Apps are used, and (d) any transaction, dispute or dealing between you and any third party, including a buyer, seller, dealer, repair shop, inspection station, insurer, lender or government agency.

11.4 California Civil Code §1542 waiver. If you are a California resident, you expressly waive California Civil Code §1542, which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” You waive any similar right under the law of any other jurisdiction.

11.5 Indemnification. To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless each of the Company Parties from and against any and all claims, demands, suits, actions, proceedings, investigations, losses, damages, liabilities, judgments, awards, settlements, fines, penalties, costs and expenses, including reasonable attorneys’ fees, expert fees and court and arbitration costs (together, “Losses”), brought by any third party or by any government authority, or incurred by any Company Party, that arise out of or relate in any way to any of the following:

  1. your access to, use of, misuse of, inability to use or reliance on the Apps, the Results or any report, including any report you share, print, export or show to anyone;
  2. any decision you or anyone relying on you makes to buy, sell, trade in, lease, finance, insure, register, inspect, repair or not repair, drive or not drive any vehicle;
  3. any actual or prospective sale, purchase, trade-in or other transaction between you and any third party in which a Result, report or the Apps was used, shown, mentioned or relied on, including any claim by a buyer, seller, dealer or lender that a vehicle’s condition, mileage, history, emissions readiness or value was misstated;
  4. any injury to or death of any person, or any damage to or loss of any property, including any vehicle, its battery, engine, emissions system or electronic control units, connected with your use of the Apps or an Adapter, including any use of the Apps while a vehicle is moving;
  5. connecting, mounting, leaving connected or removing any Adapter, and any Adapter, cable, phone, tablet, head unit or other device or product made or sold by a third party;
  6. clearing diagnostic codes, resetting readiness monitors, or using any function that changes information stored in a vehicle, and any resulting failed inspection, hidden fault, lost diagnostic information, fine or penalty;
  7. using the Apps on a vehicle you do not own or are not authorized to diagnose, or on a modified, tuned, damaged or unsupported vehicle;
  8. any tampering with, or any claim that you tampered with, emissions controls, odometer readings, VIN records, safety systems or inspection results, or any attempt to deceive a buyer, seller, inspector, insurer or government agency;
  9. your breach of this Agreement or of any representation in it, including giving false information in an Acceptance Record;
  10. your violation of any law, regulation or third-party right, including traffic, distracted-driving, emissions, consumer-protection, privacy and intellectual-property laws;
  11. your negligence, gross negligence, willful misconduct or fraud; and
  12. any investigation by a Company Party of a suspected breach of this Agreement by you, or any action a Company Party takes in response to it.

11.6 Scope. Your obligations under Section 11.5 apply whether the claim is based on contract, tort (including negligence), strict liability, product liability, statute or any other theory, and, to the maximum extent permitted by law, even if the Losses are alleged to have been caused in part by the negligence of a Company Party. They do not apply to the extent a Loss is finally determined by a court or arbitrator to have been caused by a Company Party’s fraud, willful injury, gross negligence or knowing violation of law.

11.7 Defense and settlement. The Company may, at its option and at your expense, assume the exclusive defense and control of any matter you must indemnify, with counsel of its choosing, and you will cooperate fully and promptly, including by providing information and documents. You will not settle any claim that affects a Company Party, or admit fault on its behalf, without the Company’s prior written consent. The Company may participate in any defense you conduct with counsel of its own choosing at its own cost. You will pay Losses as they are incurred.

11.8 Exclusion of damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL ANY COMPANY PARTY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY OF THE FOLLOWING, HOWEVER CAUSED: damage to or failure of any vehicle or its components or electronic control units; battery drain or no-start; towing, rental or loss of use; repair, parts, diagnostic or labor costs; failed, delayed or repeated inspections, re-test fees, registration penalties or fines; the price paid for a vehicle, overpayment, diminished value or a lost bargain; lost profits, revenue, goodwill or data; or personal injury or property damage, IN EACH CASE ARISING FROM OR RELATING TO THE APPS, THE RESULTS, ANY ADAPTER OR THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY, AND EVEN IF A COMPANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.9 Cap. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY PARTIES’ TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THE APPS, THE RESULTS OR THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (A) THE AMOUNT YOU PAID FOR THE APP IN THE TWELVE (12) MONTHS BEFORE THE EVENT GIVING RISE TO THE CLAIM, OR (B) FIFTY U.S. DOLLARS (US$50).

11.10 Exclusive remedy. If you are dissatisfied with the Apps, any Result or this Agreement, your sole and exclusive remedy is to stop using the Apps and, where available, to request a refund from the store you bought from under its rules.

11.11 What this Section does not do. Nothing in this Agreement excludes or limits any liability that cannot be excluded or limited under applicable law, including, under California Civil Code §1668, liability for a Company Party’s own fraud, willful injury to the person or property of another, or violation of law, or liability for gross negligence or for death or personal injury caused by a Company Party’s negligence where the law does not allow it to be limited. Nothing in this Agreement waives any right under the California Consumers Legal Remedies Act or any other consumer-protection law that cannot be waived. Where any such law applies, the exclusions and limits in this Section apply to the fullest extent that law allows.

11.12 Basis of the bargain. You acknowledge that the Company offers the Apps at their price, or free, in reliance on the disclaimers, releases, indemnities and limits in Sections 10 and 11, that they allocate risk between you and the Company, and that they form an essential basis of this Agreement.

11.13 Survival. This Section 11 survives the end of your use of the Apps, the termination of this Agreement and the deletion of the Apps.

12. Disputes, Arbitration and Class-Action Waiver

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS HOW DISPUTES ARE RESOLVED AND WAIVES YOUR RIGHT TO A JURY TRIAL AND TO PARTICIPATE IN A CLASS ACTION.

12.1 Informal resolution first. Before starting arbitration or a court case, you and the Company agree to try to resolve any dispute informally for at least 60 days, starting with a written notice to the other party that describes the claim and the relief sought. Notices to the Company go to the contact address in Section 15.

12.2 Binding arbitration. Any dispute, claim or controversy arising out of or relating to the Apps, the Results or this Agreement, including its formation, scope or enforceability (a “Dispute”), will be resolved by final and binding individual arbitration administered by [the American Arbitration Association (AAA) under its Consumer Arbitration Rules], before a single arbitrator. The Federal Arbitration Act governs this Section. Arbitration will take place in the county where you live or by video, unless both parties agree otherwise. For claims of US$10,000 or less, the Company will pay the administrator’s filing and arbitrator fees, unless the arbitrator finds the claim frivolous. If twenty-five (25) or more similar demands are filed by or with the help of the same counsel, they will be administered in batches under the administrator’s mass-arbitration procedures. Claims for public injunctive relief, where the law does not allow them to be waived, will be decided by a court after the individual arbitration ends.

12.3 Exceptions. Either party may bring an individual claim in small-claims court if it qualifies, and either party may seek an injunction in court to protect its intellectual property.

12.4 Class-action and jury waiver. Disputes will be resolved only on an individual basis. Neither you nor the Company may bring or take part in a class, collective, consolidated or representative action, and the arbitrator may not award relief to anyone other than the individual party. YOU AND THE COMPANY EACH WAIVE THE RIGHT TO A JURY TRIAL. If this class-action waiver is found unenforceable for a particular claim, that claim (and only that claim) will be heard in court, not in arbitration.

12.5 Opt-out. You may opt out of this arbitration agreement by emailing the Company under Section 15 within 30 days after you first accept this Agreement, giving your name, email address and a clear statement that you opt out of arbitration. Opting out does not affect any other part of this Agreement.

12.6 Time limit. To the extent permitted by law, any claim must be brought within one (1) year after it arises, or it is permanently barred.

12.7 Governing law and venue. This Agreement is governed by the laws of the State of [California] and of the United States, without regard to conflict-of-laws rules. Subject to Section 12.2, the state and federal courts located in [county], [California], have exclusive jurisdiction, and you and the Company consent to their personal jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply. If you live in a country whose consumer laws give you rights that cannot be waived, those rights still apply.

13. Changes and Termination

13.1 Changes to this Agreement. The Company may update this Agreement from time to time. Each version carries a version number and date. When a new version is issued, the App will ask you to activate again under Section 1.4 before any further use, and that confirmation is your acceptance of the new version. Changes do not apply to a Dispute that arose before the change.

13.2 Changes to the Apps. The Company may add, change, suspend or remove features, rule packs, supported vehicles or editions at any time.

13.3 Termination. You may stop using the Apps and delete them at any time. The Company may suspend or end your license immediately if you breach this Agreement or if required by law. When your license ends you must stop using and delete the Apps. Sections 3, 6, 7, 9, 10, 11, 12, 14, 15 and 16, and any other terms that by their nature should survive, survive termination.

14. Apple App Store and Google Play Terms

14.1 Apple. If you got an App from the Apple App Store: (a) this Agreement is between you and the Company only, not Apple, and the Company, not Apple, is solely responsible for the App and its content; (b) your license is limited to use on Apple-branded products you own or control, as permitted by the App Store’s Usage Rules; (c) Apple has no obligation to provide maintenance or support; (d) if the App fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price, if any, and to the maximum extent permitted by law Apple has no other warranty obligation; (e) the Company, not Apple, is responsible for addressing any claims relating to the App, including product-liability claims, claims that the App fails to meet legal or regulatory requirements, and consumer-protection or privacy claims; (f) the Company, not Apple, is responsible for investigating, defending, settling and discharging any claim that the App infringes a third party’s intellectual property; (g) you represent that you are not located in a country subject to a U.S. government embargo or designated as a “terrorist supporting” country, and are not on any U.S. government list of prohibited or restricted parties; (h) you must comply with applicable third-party terms when using the App; and (i) Apple and its subsidiaries are third-party beneficiaries of this Agreement and may enforce it against you.

14.2 Google. If you got an App from Google Play, the Google Play Terms of Service also apply. Google is not a party to this Agreement and is not responsible for the App.

15. General Terms and Contact

15.1 Entire agreement. This Agreement, together with the Privacy Policy and any terms shown at purchase, is the entire agreement between you and the Company about the Apps and replaces any earlier understanding.

15.2 Severability. If any provision is found unenforceable, it will be enforced to the maximum extent permitted and the rest of this Agreement stays in effect.

15.3 No waiver. A failure or delay to enforce any right is not a waiver of it.

15.4 Assignment. You may not assign this Agreement. The Company may assign it, including in a merger, acquisition or sale of assets.

15.5 Force majeure. The Company is not responsible for any failure caused by events beyond its reasonable control, including outages of networks, app stores or Third-Party Data sources.

15.6 Export. You will comply with all U.S. and other export and sanctions laws that apply to the Apps.

15.7 Headings and language. Headings are for convenience only. The word “including” means “including without limitation.” If this Agreement is translated, the English version controls to the extent the law allows.

15.8 Notices. The Company may give you notice in the App or at the email address in your latest Acceptance Record. You may give notice to the Company at the address below.

15.9 California users. Under California Civil Code §1789.3, California users may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

15.10 Contact.

[TourGuid LLC] [Street address] [City, State ZIP] Email: tourguidllc@gmail.com

16. Incomplete or Improper Confirmation

16.1 Confirmation is a condition of your license. Completing the confirmation in Section 1.4 correctly and truthfully, on each device and for each version of this Agreement, is a condition of the license in Section 2. A confirmation is not completed correctly if, among other things: you did not place the check mark; you gave a name that is not yours or an email address you do not own or control; the authorization number was not copied from the email sent to that address; someone else completed it for you without your authority; or the confirmation was skipped, bypassed, automated, altered or falsified in any way.

16.2 No rights or protection for you. If you use an App on a device without having correctly completed the confirmation for that device and the current version of this Agreement, then for all such use: (a) you have no license, and your use is unauthorized; (b) you receive none of the rights, remedies, benefits or protections this Agreement gives users, including the Company’s commitments in Sections 7.3, 8.3, 12.2 (fee payment) and 15.8; and (c) you are not entitled to rely on any Result for any purpose.

16.3 The Company’s protections still apply. Failing to complete the confirmation does not reduce or remove any protection this Agreement gives the Company Parties. By opening or using an App at all (Section 1.2) you are bound by, and the Company Parties may enforce, every disclaimer, assumption of risk, release, waiver, indemnity, limitation of liability and dispute-resolution provision in Sections 3, 4, 5, 6, 10, 11 and 12, and you will defend, indemnify and hold harmless the Company Parties under Section 11.5 for any Losses arising from your unauthorized use. Where the law does not allow those provisions to bind you without a completed confirmation, the Company Parties have every protection that law provides, and the Company owes you no duty or obligation arising from this Agreement.

16.4 Records. The Company may treat the absence of a matching Acceptance Record for a device and Agreement version as conclusive evidence that the confirmation was not completed correctly for that device and version.

Agreement version: 1.0 · Effective date: [date]