Terms of Service
Last modified: February 29, 2016
The following Terms of Service (these "Terms of Service") are between you and Diverge, Inc. ("Diverge") and constitute a legal agreement that governs your use of the Diverge mobile application ("Mobile App"), website ("Site"), and any other content or services made available to you by Diverge (collectively referred to as the "Services").
Diverge reserves the right to make changes to these Terms of Service at any time and at Diverge's discretion. If you do not agree with such changes you should cease using the Services. Your continued use of the Services after any such changes to these Terms of Service shall be deemed acceptance of any such new or modified terms.
Introduction and Key Points
The Services include, at least, Diverge's map ("Map") and tracker ("Tracker"). The Services may also include a map editor, whereby you can edit or contribute to the Map ("Map Editor"). The Map includes, for example, trails, landmarks, and trailheads. The Tracker can be used to contribute data to the Map or for your own personal fitness tracking purposes. The Tracker can track GPS coordinates and show you other information such as total distance traveled and elevation change. The Tracker may also track data from other sensors such as accelerometers, barometers, gyroscopes, and magnetometers.
The following key points are summarized here for your reference. These points are not intended to supersede or override any other terms or conditions provided by Diverge.
- The Services are not intended for use by children under the age of thirteen. If Diverge determines any user is under the age of thirteen, such user's account will be deleted.
- Activities may be dangerous and you should consider the risks. Diverge is not responsible or liable for any injuries or damage you may sustain from the use of the Services.
- The Map is not guaranteed to be accurate. Do not count on the Map or any other of the Services if your life depends on it.
- The Map may show trails that may be closed or are on private property. You alone are responsible for determining whether a trail is open or if you are permitted to enter property.
- The Services are currently provided free of charge. However, you may need to create an account to access some of the Services.
- You agree not to extract or scrape Diverge's data.
- Diverge can use your feedback without compensation.
- Diverge collects location data and uses it to improve the Services.
Subject to these Terms of Service, Diverge grants you a limited, non-exclusive, and non-transferable license to:
- download, install, and use the Mobile App for your personal, non-commercial use on mobile devices owned or otherwise controlled by you; and
- access and use on such mobile devices, or through the Site, the Services made available in or accessible from the Mobile App or Site.
Accessing the Services and Account Security
You are responsible for making all arrangements necessary for you to have access to the Mobile App or the Site. You may need to purchase third party equipment to use the Services. You are responsible to ensure that all persons who access the Site through your internet connection are aware of these Terms of Service and comply with them.
The Services are not intended for children under thirteen years of age. If Diverge determines any user is under the age of thirteen, such user's account will be deleted, or if such user does not have an account, Diverge may take steps to prevent such user's access to the Services.
Any user name, password, or other information ("Credentials") you may select or which Diverge provides to you as part of Diverge's security procedures is confidential. You must treat all such information as confidential and not disclose it to any other person or entity. Your account is personal to you and you agree not to provide another with access to any part of the Services using your Credentials. You agree to notify Diverge immediately of any breach of security involving the unauthorized access to or use of your account Credentials.
License Restrictions and Prohibited Uses
You shall not:
- copy the Mobile App, the Site, or any other part of the Services, except as expressly permitted by these Terms of Service;
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile App, the Site, or any other part of the Services;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of any parts of the Mobile App, the Site, or any other part of the Services;
- copy, extract, scrape, or reutilize any portions of the data provided by the Services, including bulk downloads or feeds of map data or imagery, or the creation of any databases based upon results from the Services;
- remove, delete, alter, or obscure any trademark, copyright, or other intellectual property notices;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any of the Services to any third party for any reason;
- remove, disable, or circumvent any copy protection, rights management, or security features;
- use the Services in any way that violates any applicable federal, state, local, or international law or regulation;
- use the Services for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
- use the Services to send, knowingly receive, upload, download, use, or re-use any material which does not comply with the User Content Standards set forth in these Terms of Service;
- use the Services to transmit, or procure the sending of, any advertising or promotional material, including any junk mail, chain letter, spam, or any other similar solicitation;
- use the Services to impersonate or attempt to impersonate Diverge, its employees, another user of the Services, or any other person or entity (including using an e-mail address associated with the foregoing);
- use the Services to engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Services, or which Diverge determines may harm Diverge or other users or expose them to liability;
- use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with another's use of the Services;
- use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the data in the Services;
- use any manual process to monitor or copy any of the data in the Services or for any other unauthorized purpose;
- use any device, software, or routine that interferes with the proper working of the Services;
- introduce any viruses, trojan horses, worms, or other material which is malicious or technologically harmful;
- attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, including servers, computers, or databases connected to the Services;
- attack the Site via a denial-of-service attack or a distributed denial-of-service attack; or
- otherwise attempt to interfere with the proper working of the Services.
Reservation of Rights
The Services, including the Mobile App and the Site, are provided under license to you, and are not sold. You have no ownership interest in any of the Services, Mobile App, or Site. Diverge retains and reserves all rights in the Services, Mobile App, and Site, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, that are not expressly granted to you in these Terms of Service.
In addition Diverge expressly reserves the rights to do the following:
- withdraw or amend the Services, Mobile App, or Site, or any other service or material Diverge provides at Diverge's sole discretion and without notice;
- restrict your access to any part of the Services, whether or not you have a registered account;
- disable your access to any part of the Services, including disabling or deleting a registered account, at any time and in Diverge's sole discretion, if in Diverge's opinion you have violated any provision of these Terms of Service;
- remove or refuse to post any User Content (as defined below) to the Services for any reason in its sole discretion;
- take any action with respect to any User Content that Diverge deems necessary or appropriate, including if Diverge believes that such User Content violates these Terms of Service, infringes any intellectual property right or other right of another, threatens the personal safety of users of the Services or the public, or could create liability for Diverge;
- disclose your identity or other information about you to any third party that claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy;
- take appropriate legal action, including referral to law enforcement for any illegal or unauthorized use of the Services.
User Content and User Content Standards
If you create an account, you will have the option to upload a profile picture. You may also contribute information to the Services in the following ways: recording an activity using the Tracker; creating or editing the Map using the Map Editor; and sending feedback about the Services to Diverge (collectively, with any other information you may contribute or submit through the Services, the "User Content").
User Content must comply with all applicable law. User Content must not:
- contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
- promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person;
- be likely to deceive any person;
- promote any illegal activity, or advocate, promote or assist any unlawful act;
- cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person;
- impersonate any person, or misrepresent your identity or affiliation with any person or organization;
- involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising; or
- give the impression that they emanate from or are endorsed by Diverge or any other person or entity, if this is not the case.
Collection and Use of Your Information
Intellectual Property Rights
All intellectual property rights to the Services are owned by Diverge or its licensors, including all copyright, trademark, and patent rights, as applicable. Any contributions you make to the Services via the Tracker or the Map Editor ("Map Contributions") are and shall be the sole and exclusive property of Diverge. You agree to assign, and hereby assign any and all rights, if any, to the Map Contributions. For any feedback you provide to Diverge ("Feedback") you agree to grant, and hereby grant to Diverge a worldwide, irrevocable, perpetual, non-exclusive, transferrable, assignable, sublicenseable, and royalty-free license to copy, distribute, create derivative works of, publicly display and perform, and otherwise exploit such Feedback and to use, make, have made, sell, offer for sale, import, and export products and services based on such Feedback. You represent and warrant that you have sufficient rights to assign any and all rights to the Map Contributions and to grant the above license to Feedback. You also acknowledge and agree that you are not entitled to any compensation of any kind from Diverge for Feedback you provide.
The Diverge logo and all related names, logos, product and service names, designs and slogans are trademarks of Diverge or its affiliates or licensors. You must not use such marks without the prior written permission of Diverge. All other names, logos, product and service names, designs and slogans that appear on the Site, Mobile App, or other Services are the trademarks of their respective owners.
Copyright Infringement Notice Procedures
Diverge respects the intellectual property rights of others, and expects you to do the same. If you are a copyright owner, or authorized to act on behalf of a copyright owner, or authorized to act under an exclusive right under copyright, and you believe that some material or content in the Services has been improperly copied and posted in the Services, please provide Diverge with a claim that contains the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) 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 Diverge to locate the material; (iv) information reasonably sufficient to permit Diverge to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (v) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. All of the above information is required to give Diverge legally sufficient notice of copyright infringement. Claims should be sent to Diverge's designated copyright agent:
c/o Diverge, Inc.
PO Box 1041
Menlo Park, CA 94026
Diverge will respond expeditiously to claims of copyright infringement committed using the Services that are reported to Diverge's designated copyright agent. Upon receipt and verification that the above requirements are met, Diverge will take action as it deems to be appropriate and required by law, including possible removal of material or content from the Services. Diverge may disable or terminate the accounts of users who repeatedly infringe the rights of others.
Diverge can from time to time, and at Diverge's sole discretion, develop and provide updates to the Services, the Site, and the Mobile App. Updates may include upgrades, bug fixes, patches, new features, or may modify or delete features and functionality. You agree that Diverge has no obligation to provide any updates. Depending on the settings on your mobile device/s you use to access the Mobile App, updates to the Mobile App may be automatically downloaded and installed on your mobile device/s, or you may receive notice of the update or a prompt to download and install the update. You shall promptly download and install any updates to the Mobile App. The Mobile App may not function or operate properly if you fail to download and install any updates. All updates to the Mobile App, the Services, and the Site are subject to these Terms of Service.
Third Party Materials
The Services may display, include, or make available third party content or provide links to third party websites or services, including through third party advertising ("Third Party Material"). Diverge is not responsible for Third Party Material. Diverge does not assume any liability or responsibility to you or any other person or entity for Third Party Material. Third Party Material and links thereto are provided solely as a convenience to you. If you access and use them, you do so entirely at your own risk and subject to such third parties' terms and conditions.
Term and Termination
The term of these Terms of Service commences on the earlier of either when you first use the Services or when you acknowledge your acceptance of these Terms of Service. Diverge may terminate its provision of the Services in their entirety or any parts thereof, temporarily or permanently, at Diverge's sole discretion and at any time. Upon such termination, all rights granted to you under these Terms of Service will terminate and you must cease all use of the Services and deleted all copies of the Mobile App from your mobile devices.
Disclaimer of Warranties
THE SERVICES AND ALL CONTENT PROVIDED TO YOU THROUGH THE SERVICES IS PROVIDED "AS IS" AND WITHOUT WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DIVERGE AND ITS AFFILIATES, AND DIVERGE'S AND THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND PARTNERS, EXPRESSLY DISCLAIM ALL WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, DIVERGE AND ITS AFFILIATES, AND DIVERGE'S AND THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND PARTNERS, MAKE NO WARRANTY THAT (a) THE SERVICES WILL MEET YOUR REQUIREMENTS; (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS; AND (e) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
YOU EXPRESSLY AGREE THAT DIVERGE IS NOT PROVIDING MEDICAL ADVICE VIA THE SERVICES. ALL CONTENT PROVIDED THROUGH THE SERVICES, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY DIVERGE OR BY OTHER USERS OR THIRD PARTIES IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (A) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, (B) A VISIT, CALL OR CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, OR (C) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL. SHOULD YOU HAVE ANY HEALTH RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY.
YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED ON OR VIA THE SERVICES, AND YOU SHOULD NOT USE THE SERVICES OR ANY CONTENT AVAILABLE THROUGH OR VIA THE SERVICES FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF ANY CONTENT, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, E-MAIL, OR OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND DIVERGE.
YOU EXPRESSLY AGREE THAT YOUR ATHLETIC ACTIVITIES, WHICH GENERATE THE USER CONTENT YOU POST OR SEEK TO POST ON OR VIA THE SERVICES (INCLUDING BUT NOT LIMITED TO HIKING, TRAIL RUNNING, AND MOUNTAIN BIKING) CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY, OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES, EVEN IF CAUSED IN WHOLE OR PART BY THE ACTION, INACTION, OR NEGLIGENCE OF DIVERGE OR BY THE ACTION, INACTION, OR NEGLIGENCE OF OTHERS. YOU ALSO EXPRESSLY AGREE THAT DIVERGE DOES NOT ASSUME RESPONSIBILITY FOR THE INSPECTION, SUPERVISION, PREPARATION, OR CONDUCT OF ANY RACE, CONTEST, GROUP ATHLETIC ACTIVITY, OR EVENT THAT UTILIZES THE SERVICES.
WITHOUT LIMITING THE FOREGOING, DIVERGE DISCLAIMS ANY WARRANTIES RELATING TO THE ACCURACY OF THE MAP OR THE SERVICES. FOR EXAMPLE, SOME TRAILS MAY BE CLOSED, LEGALLY UNAUTHORIZED FOR ACCESS, NO LONGER EXIST, OR BE ON PRIVATE PROPERTY. YOU AGREE THAT YOU ASSUME FULL, EXCLUSIVE, AND SOLE RESPONSIBILITY FOR YOUR USE AND RELIANCE ON THE SERVICES. YOUR USE AND RELIANCE ON THE SERVICES IS MADE ENTIRELY AT YOUR OWN RISK. DO NOT RELY ON THE SERVICES IF YOUR LIFE DEPENDS ON IT. THE SERVICES ARE NOT MEANT TO REPLACE TRAIL SIGNS OR OTHER NAVIGATIONAL INFORMATION THAT MAY BE AVAILABLE TO YOU. IF TRAIL SIGNS OR OTHER NAVIGATIONAL INFORMATION AVAILABLE TO YOU IS DIFFERENT THAN INFORMATION PROVIDED TO YOU THROUGH THE SERVICES, DO NOT RELY ON THE SERVICES.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU.
Limitation on Liability
YOU EXPRESSLY AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DIVERGE, INCLUDING ITS AFFILIATES, LICENSORS, AND SERVICE PROVIDERS, AND DIVERGE'S AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND ASSIGNS, WILL NOT BE LIABLE FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGE, AND COSTS, EXPENSES, AND PAYMENTS, ARISING FROM OR RELATING TO YOUR USE OR INABILITY TO USE THE SERVICES. THE FOREGOING LIMITATIONS SHALL APPLY WHETHER SUCH DAMAGES ARISE OUT OF CONTRACTUAL, TORT, OR OTHER LIABILITY, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR DIVERGE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CERTAIN JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to indemnify, defend, and hold harmless Diverge, its affiliates, licensors, and service providers, and Diverge's and their respective officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses (including reasonable attorney's fees) of any kind, arising from or relating to your use or misuse of the Services or your breach of these Terms of Service.
Additional Terms for Mobile App on Apple iOS Devices
The following additional terms and conditions apply solely with respect to the Mobile App that Diverge provides to you, designed for use on an Apple iOS-powered mobile device (the "Mobile App for iOS"). For avoidance of doubt, these additional terms supplement and do not exclude or supersede any other provisions of these Terms of Service:
- You acknowledge that these Terms of Service are between you and Diverge only, and not with Apple, Inc. ("Apple"). Diverge, and not Apple, is solely responsible for the Mobile App for iOS and the content thereof.
- The license granted to you in these Terms of Service, as it relates to your use of the Mobile App for iOS, is subject to the Usage Rules set forth in Apple's App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile App for iOS.
- In the event of any failure of the Mobile App for iOS to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Mobile App for iOS to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Mobile App for iOS.
- You acknowledge that Diverge, not Apple, is responsible for addressing any claims of yours or any third party relating to the Mobile App for iOS or your possession and/or use of the Mobile App for iOS, including, but not limited to: (i) product liability claims; (ii) any claim that the Mobile App for iOS fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You acknowledge that, in the event of any third party claim that the Mobile App for iOS or your possession and use of the Mobile App for iOS infringes that third party's intellectual property rights, Diverge, not Apple, will be solely responsible, to the extent required by these Terms of Service, for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- You acknowledge and agree that Apple and Apple's subsidiaries are third-party beneficiaries to these Terms of Service, as they relate to your license of the Mobile App for iOS. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as they relate to your license of the Mobile App for iOS as a third-party beneficiary thereof.
The Services may be subject to United States export laws. You may not use or export the Services in violation of United States export laws. Diverge does not make any representation that the Services are appropriate or available for use in other jurisdictions or countries, and accessing the Services from jurisdictions or countries where the content or use of the Services is illegal is prohibited. You shall not, directly or indirectly, export, re-export, or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Those who choose to access the Services from locations outside of the United States do so on their own initiative and are responsible for compliance with applicable local laws. If you use the Services outside the United States, you expressly agree to the transfer and processing of any information Diverge collects wherever Diverge may have operations.
Governing Law, Jurisdiction, Class Action Waiver, Waiver, and Severability
Limitation on Time to File Claims
Any cause of action or claim you may have arising out of or relating to the Services must be commenced within one year after the cause of action accrues. Failure to do so will result in the cause of action or claim being permanently barred, and will constitute your complete and final waiving of the cause of action or claim.
To ask questions or comment about these Terms of Service or the Services, contact Diverge at:
PO Box 1041
Menlo Park, CA 94026