IMPORTANT: PLEASE READ THIS EULA CAREFULLY. THIS AGREEMENT DESCRIBES THE CONDITIONS FOR YOUR ENJOYMENT AND USE OF SPARK COMPASS’s APP AND “RLL” (““SPARK PLUS” ”) AND TOTAL COMMUNICATOR SOLUTIONS, INC.’S (“TCS”) “SPARK PLUS” ’S AUGMENTED REALITY MOBILE APPLICATION (“APP”), WHICH COMBINES CONTENT PROVIDED BY “SPARK PLUS” AND RAHAL RACING (RLL) AND TCS’ AUGMENTED REALITY AND IMAGE RECOGNITION SOFTWARE WITH INFORMATION ABOUT YOUR LOCATION AND PREFERENCES TO DELIVER TO YOU “CONTEXTUALLY INTELLIGENT COMMUNICATIONS.” THIS APP DELIVERS INFORMATION, INCLUDING OFFERS, ALERTS, CONTENT, COUPONS, DIRECTIONS AND ENTERTAINMENT TO YOUR MOBILE DEVICE BASED ON WHAT YOU HAVE SHARED WITH “SPARK PLUS” AND TCS ABOUT YOUR PREFERENCES WHEN YOU ARE IN A LOCATION TO TAKE ADVANTAGE OF THE INFORMATION. BECAUSE THIS CONTEXTUALLY INTELLIGENT COMMUNICATION COMBINES INFORMATION ABOUT YOUR INTERESTS COLLECTED FROM YOU AND OTHER SOURCES AND YOUR LOCATION, IT IS IMPORTANT YOU UNDERSTAND HOW USING THE APP AFFECTS YOUR PRIVACY BEFORE YOU INSTALL IT ON YOUR DEVICE.

THIS EULA DESCRIBES THE DATA AND INFORMATION “SPARK PLUS”  AND TCS COLLECT ABOUT YOU AND WHERE YOU ARE, YOUR DEVICE AND HOW YOU USE YOUR DEVICE TO PROVIDE YOU WITH CONTEXTUALLY INTELLIGENT COMMUNICATIONS. IT ALSO STATES THE CONDITIONS AFFECTING YOUR RIGHT TO USE AND INTERACT WITH THE APP. READ THIS EULA CAREFULLY AND BE SURE YOU UNDERSTAND WHAT TYPES OF INFORMATION ABOUT YOU “SPARK PLUS”  AND TCS WILL COLLECT AND ANALYZE TO DELIVER CONTEXTUALLY INTELLIGENT COMMUNICATIONS TO YOU.

THIS EULA CONTAINS A MANDATORY AGREEMENT TO ARBITRATE, AS AN INDIVIDUAL, ALL CLAIMS OR DISPUTES THAT MAY ARISE FROM THE EULA OR YOUR USE OF THE APP.  THE TERMS OF THE ARBITRATION AGREEMENT ALSO CONTAINS A WAIVER OF YOUR RIGHT TO PARTICIPATE IN ANY CLASS ACTION ARISING OUT OF THE EULA OR SERVICES PROVIDED TO YOU BY TCS OR ITS AFFILIATES.

IF YOU ARE A MINOR, I.E., UNDER 18 YEARS OF AGE OR THE AGE OF LEGAL CONSENT IN YOUR JURISDICTION, OR DO NOT AGREE TO ALL THE TERMS AND CONDITIONS SET FORTH IN THE EULA, PLEASE SELECT THE “DECLINE” OPTION NOW.

IF YOU CLICK “ACCEPT” OR YOU DOWNLOAD, INSTALL, USE OR COPY THE APP, YOU ARE AGREEING TO ALL OF THE CONDITIONS SET FORTH BELOW.

1. DEFINED TERMS:

To make this EULA easier to understand, some defined terms are used. “We,” “Us” and “Our” means “SPARK PLUS”  and TCS. “Affiliates” means Qualcomm Austria, Inc., and our licensors. “You” and “Your” means the end user of the APP. The APP provides mobile marketing communication solutions by integrating historical data about your preferences and real time context information collected from You. Some other words that appear in quotes are also used as defined terms.

2. YOU ARE ACCEPTING THE EULA ELECTRONICALLY:

You agree that by clicking “Accept,” the action represents your electronic signature accepting the EULA and all of its terms and conditions as binding upon You. Clicking “Accept” is as binding as if You signed a paper document including these terms. To the extent possible, You are waiving any rights or requirements under laws or regulations which may require an original, non-electronic signature. You are also agreeing to deliver to Us and Our Affiliates and to allow Us and Our Affiliates to retain electronic records, including “Data” as described in the next paragraph, to the maximum extent permitted by law.

3. INFORMATION WE COLLECT ABOUT YOU AND HOW IT MAY BE USED:

Privacy is a concern for everyone. We want You to know what “Data” We collect, how We and Our Affiliates will use it and how We and Our Affiliates may use it in the future as the functionality of this APP is increased. By clicking “Accept,” You are allowing Us and Our Affiliates to collect, analyze, use and generate all of the following forms of Data:

(a)  We and Our Affiliates will collect information about Your device, including: (i) the device type; (ii) carrier information; (iii) device unique identifiers; (iv) make; (v) model; (vi) operating system; (vii) version; and (viii) kernel version;.

(b) We and Our Affiliates will collect information about Your activities on the APP and Your online/offline status. We or Our Affiliates will associate that information with Your device in order to deliver Contextually Intelligent Communication, which We believe will interest You. Contextually Intelligent Communication may include, but is not limited to, information, advertisements, offers, alerts, coupons, directions and entertainment.

(c) We and Our Affiliates may share the information identified in the previous subparagraphs with vendors who power features of the APP such as push notifications, and with vendors who help Us better understand APP user demographics.

(d) We and Our Affiliates who deliver Contextually Intelligent Communication to You through the APP may also collect, share and use information about Your usage of the APP and Your geographic area and link this information with Your device to deliver relevant Contextually Intelligent Communication to You.

(e) We and Our Affiliates can and may determine the exact geographic location of Your device through triangulation by use of nearby Wi-Fi access points, cell towers, proximity beacons or GPS. We may and probably will share this information with advertisers and advertising networks so that We can target Contextually Intelligent Communication to You based on Your geographic location.

(f) If You interacted with one of Our mobile advertisements promoting the APP, We may have used an ad tag in order to recognize You when You installed the APP.  We do this to measure the performance of Our ad campaigns.

(g) We and Our Affiliates may use the information collected for marketing purposes and will send Contextually Intelligent Communication to You via the APP, based upon Our analysis of the information collected.

(h) When You access the Contextually Intelligent Communications on Your device or purchase services or products from “SPARK PLUS”  as a result of having accessed the Contextually Intelligent Communications, TCS will be compensated by “SPARK PLUS”  based on how you utilized the Contextually Intelligent Communications.

(i) You may obtain additional information about “SPARK PLUS” ’s Privacy Policy on its website at http://www.visitsandiego.com. Additional information about TCS’ Privacy Policy may be found on its website at sparkcompass.com.

(j) TCS MAY AND PROBABLY WILL RETAIN THE DATA IT COMPLIED TO DELIVER CONTEXTUALLY INTELLIGENT COMMUNICATIONS TO YOU EVEN IF YOU TERMINATE THIS EULA OR UNINSTALL THE APP AT A LATER TIME.

If You object to Your Data being used in any manner described above, click “DECLINE” now and do not install this APP.

4. YOU UNCONDITIONALLY AGREE AND CONSENT TO: 

(a) Authorizing TCS and/or its Affiliates and licensors, including but not limited to QUALCOMM Austria and its affiliates and service providers to use the APP to collect “Statistics” about You. Statistics include, but are not limited to: (1) any information about Your devices, including: (i) device unique identifiers; (ii) make; (iii) model; (iv) operating system; (v) version; and (vi) kernel version; (2) information about Our APP used to create Your augmented reality; and (3) information about Your augmented reality and its use such as settings (e.g., camera resolution settings, configuration settings), start and stop dates and times, camera on/0ff events, target images obtained/lost events and other general usage information.

(b) Transferring Statistics to TCS and/or Our Affiliates and licensors, including but not limited to QUALCOMM Austria and its affiliates and service providers in the United States to, among other things: (1) deliver Contextually Intelligent Communication to your device; (2) facilitate the provision of new products, updates, enhancements and other services; (3) improve the APP and Our products, services and technologies; and (4) provide new products, services or technologies to You, other EULA license holders and customers of QUALCOMM Austria and its affiliates.

(c) To the collection, storage, and use by TCS and/or its Affiliates and licensors including but not limited to QUALCOMM Retail Solutions (“QRS”) and its Affiliates and services providers of Data from the Software and the transfer of Data between QRS and its Affiliates and service providers (which may be in the United States or in other countries), in each case for the purposes of (i) facilitating the provision of new products, updates. enhancements and other services, (ii) improving the Software, and other products, services and technologies, and (iii) providing new products, services or technologies to You and customers of  QRS and its Affiliates;

(d) You are also advised that the proximity locations are approximate based upon several factors including without limitation environmental surroundings, obstructions, orientation between Beacon and Receiver, accuracy of Receiver’s location, and version of software running on Beacon and/or Receiver.

(e) Your Application may incur data usage charges in varying amounts, based on variable factors which include the number of interactions of Your Application with the Solution.

5. LICENSE GRANTED AND LIMITATIONS AND RESTRICTIONS ON YOUR USE OF THE APP:

Your right to download, use, copy or change the APP is subject to Our “IP Rights” and to the terms and conditions in this EULA. . “IP Rights” include, but are not limited to:

(1) patents;

(2) pending patent applications;

(3) designs;

(4) trade marks and trade names (whether registered or unregistered);

(5) copyright and related rights;

(6) database rights;

(7) know how;

(8) trade secrets and confidential information;

(9) other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognized in the future; and

(10) applications, extensions and renewals in relation to any such rights, Any and all IP Rights in the APP and any of Our Promotional Materials are and shall remain Our exclusive property or in the appropriate instance of Our licensors, clients or Affiliates. As specified by this EULA:

(a) We grant You a limited, personal, non-commercial, non-exclusive, non-sublicensable, non-assignable, free-of-charge license to download, install and use the APP on Your computer, phone, tablet or other device for the sole purpose of personally using the APP  and any other applications We may provide to You in the future. You have not been granted any rights to any “IP Rights” We or Our Affiliates, clients and licensors own

(b) You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to any third party in any way relating to the APP or any part thereof or any of Our IP Rights or those of our Affiliates, clients and licensors.

(c) Nothing in this EULA authorizes or grants the transfer of Our IP Rights or those of Our licensors, clients or Affiliates to You or vests any such IP Rights in You. You are only entitled to the limited use of the IP Rights granted to You by this EULA.

(d) You will not take any action to jeopardize, limit or interfere with Our IP Rights or in the appropriate instance of Our Licensors, clients or Affiliates. Any unauthorized use of any of Our IP Rights or those of Our licensors, clients or Affiliates is a violation of this EULA as well as a violation of the intellectual property laws and treaties, including without limitation copyright and trademark laws.

(e) All title and IP Rights in and to any third party content, including but not limited to content owned by Our licensors, clients or Affiliates that is not contained in the APP, but which may be accessed through use of the APP, is the property of the respective owners and may be protected by applicable copyright or other intellectual property laws and Treaties.

(f) You will not attempt, cause, permit or authorize modifying, creating derivative works, translating, reverse engineering, decompiling, disassembling or hacking of the APP or any part thereof, except to the extent permitted by law.

(g) Any third party software or technology that is incorporated into the APP is subject to this EULA. By clicking “Accept,” You agree to be bound by the terms of any license governing the use of such third party software.

(h) You will not remove, obscure, make illegible or alter any notices or indications of Our IP Rights and ownership thereof or that of Our Affiliates, clients or licensors irrespective of whether such notices or indications are affixed on, contained in or otherwise connected to the APP.

(i) Intentionally or unintentionally violate any applicable law or regulation.

(j) Access, tamper with, or use nonpublic areas of the APP or TCS’ computer systems. Unauthorized individuals attempting to access or tamper with these areas may be subject to prosecution.

(k) Frame or link to the APP except as permitted in writing by TCS.

(l) Your use of the APP is governed by the TCS Privacy Policy.

6. UPDATES TO AND NEW VERSIONS OF THE APP:

With respect to the APP, We reserve the unfettered right and discretion to:

(a) Add features or functions;

(b) provide programming fixes, updates and upgrades; and

(c) provide downloads and install the foregoing items automatically. You agree to receive APP updates from Us in order to continue using the APP.

You may be required to enter into an updated version of the EULA whenever a new or updated version of the APP is downloaded or installed on Your device. We have no obligation to make available to You any subsequent versions of the APP.

7. OUR RIGHTS TO TERMINATE YOUR USE OF THE APP:

We reserve the unfettered right and discretion with or without notice to You to: (1) modify, discontinue, suspend or disable Your ability to use the APP; or (2) disable any of the APP’s features. We reserve the right to do so even if You have already accessed or installed the APP. Our reasons for altering the APP include but are not limited to the repair, improvement and/or upgrading of the APP. We also reserve the right to do so if We determine, in our sole discretion, You are, among other things:

(1) breaching the EULA;

(2) creating potential legal liabilities;

(3) engaging in fraudulent, immoral or illegal activities;

(4) doing anything else detrimental to the use of the APP.

8. YOUR REPRESENTATIONS, WARRANTIES AND PROMISES TO US:

(a) You are authorized to enter into this EULA.

(b) You will at all times meet Your obligations under this EULA and any updates or amendments to it or EULAs which replace it, as well as all applicable laws, regulations and policies, which may apply to Your use of the APP.

(c) If, at any time, You are no longer willing or are otherwise unable to meet Your obligations under this EULA or updates or amendments to it or EULAs which replace it, as well as all applicable laws, regulations and policies, which may apply to Your use of the APP, You will immediately terminate your EULA and Your use of the APP as provided in Paragraph 8, below.  

(d) YOU WILL INDEMNIFY, DEFEND AND HOLD US AND OUR AFFILIATES, CLIENTS AND LICENSORS HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS, INCLUDING ACTUAL ATTORNEYS’ FEES INCURRED BY THESE PARTIES, ARISING OUT OF OR IN CONNECTION WITH YOUR (1) VIOLATION OR BREACH OF ANY TERM OF THIS AGREEMENT OR ANY APPLICABLE LAW OR REGULATION, WHETHER OR NOT REFERENCED HEREIN; (2) VIOLATION OF ANY RIGHTS OF ANY THIRD PARTY; OR (3) USE OR MISUSE OF THE APP.

9. TERMINATION OF THIS EULA AND LIMITATIONS:

(a) This EULA becomes effective when You click “Accept” and will remain in effect until terminated as set forth below.

(b) You may terminate the EULA at any time by uninstalling the APP and discontinuing Your use of it. Notwithstanding Your termination of the EULA, YOU UNDERSTAND AND AGREE THE INFORMATION AND DATA COLLECTED WHILE THE EULA WAS IN EFFECT MAY AND PROBABLY WILL BE RETAINED AND USED AS DESCRIBED ABOVE.

(c) We may limit, suspend or terminate Your license to use the APP immediately at any time for any reason, with or without notice to You.

10. NO WARRANTIES, NO LIABILITY:

(a) THE APP SOFTWARE IS PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER. WE EXPRESSLY DISCLAIM ANY WARRANTIES, CONDITIONS, CLAIMS OR REPRESENTATIONS ABOUT THE APP, INCLUDING BUT NOT LIMITED TO EXPRESSED, IMPLIED OR STATUTORY WARRANTIES, CONDITIONS, CLAIMS OR REPRESENTATIONS. THIS DISCLAIMER OF WARRANTIES, CONDITIONS, CLAIMS OR REPRESENTATIONS INCLUDES DISCLAIMERS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. TCS FURTHER DISCLAIMS ANY WARRANTY, CONDITION, CLAIM OR REPRESENTATION ABOUT THE AVAILABILITY OF THE APP OR ITS ACCESSIBILITY, SECURITY, ACCURACY, COMPLETENESS OR FREEDOM FROM ERROR.

(b) IN NO EVENT SHALL WE OR OUR AFFILIATES, LICENSORS OR CLIENTS BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMIATION, ANY LOSS OF OR CORRUPTION TO DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE, MISUSE OR INABILITY TO USE THE APP. 

(c) ANY OPINIONS, ADVICE, STATEMENTS, SERVICES, OFFERS, EVENTS OR OTHER INFORMATION OR CONTENT EXPRESSED OR MADE AVAILABLE ON THIS APP BY THIRD PARTIES (INCLUDING INFORMATION PROVIDERS AND USERS) ARE THOSE OF THE RESPECTIVE AUTHOR(S) OR DISTRIBUTOR(S) AND NOT OF TCS. WE AND OUR AFFILIATES NEITHER ENDORSE NOR ARE RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, INFORMATION, OR STATEMENT MADE ON THIS APP BY ANYONE OTHER THAN AUTHORIZED TCS EMPLOYEES OR AFFILIATES ACTING IN THEIR OFFICIAL CAPACITIES.

(d) THE APP MAY CONTAIN LINKS TO OTHER WEB SITES OR RESOURCES. YOU ACKNOWLEDGE AND AGREE THAT TCS IS NOT RESPONSIBLE OR LIABLE FOR: (1) THE AVAILABILITY OR ACCURACY OF SUCH WEB SITES OR RESOURCES; OR (2) THE CONTENT, ADVERTISING, OR PRODUCTS ON OR AVAILABLE FROM SUCH WEB SITES OR RESOURCES. THE INCLUSION OF ANY LINK ON THE APP DOES NOT IMPLY THAT TCS ENDORSES THE LINKED SITE.

11. AGREEMENT TO ARBITRATE:

Instead of suing in court, You and TCS agree to arbitrate all disputes and claims which may arise between TCS, or Qualcomm Austria, other licensors, their affiliates, subsidiaries, agents, employees, predecessors or successors in interest and You and all authorized or unauthorized users or beneficiaries of services provided under this or prior EULAs between TCS and You.  This Agreement to Arbitrate is intended to be broadly interpreted.  It includes, but is not limited to any claims arising under, based upon or in any way relating to this or any prior EULA or the APP:

(a) involving any aspect of the relationship between TCS and You, whether based on contract, tort, statute, fraud, misrepresentation or any other legal theory;

(b) relating to advertising, service or privacy; and

(c)  even if they arise after the termination of this EULA.

You agree that, by entering into this EULA and Agreement to Arbitrate, You and TCS each waive the right to a trial by jury, to the extent permitted by law.  Additionally You and TCS waive any right to pursue disputes on a class wide basis, i.e., to either join a claim with the claim of another person or entity or assert a claim in a representative capacity on behalf of anyone else in any lawsuit, arbitration, other proceeding or  otherwise participate in a class action.  This EULA involves transactions in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this agreement to arbitrate.  This agreement to arbitrate shall survive termination of this EULA.

12. ADDITIONAL TERMS:                          

(a) This is the entire EULA between You and Us. This EULA supersedes and replaces all prior understandings or agreements, in whatever form, about the APP and the subject matter of this EULA.

(b) If any part or provision of this EULA is bound by any court, arbitrator or administrative body having jurisdiction to be illegal, invalid or otherwise unenforceable, and is not an essential term the absence of which would frustrate the purpose of the EULA, the legality, validity or enforceability of the remainder of the EULA shall not be affected.

(c) The failure to exercise, or delay in exercising a right, power or remedy provided in this EULA or by law shall not constitute a waiver of that right, power or remedy nor shall the failure to exercise or delay in exercising a right operate as an estoppel to assert that right, power or remedy. If We waive a breach of any provision of this EULA, it shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.

(d) You are not allowed to assign any of your rights under this EULA. We and Our Affiliates are allowed, in Our sole discretion, to assign the Terms or any rights hereunder to any third party, without giving prior notice.

(e) All the terms and conditions contained in this EULA shall apply retroactively and shall be deemed effective as of the date You first accepted any EULA between Us and You concerning the APP or any prior version of it.

(f) This EULA shall be construed under the substantive laws of the State of California to the extent they are not preempted by Federal law..

YOU EXPRESSLY ACKNOWLEDGE YOU READ THIS EULA AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS GOVERNING THE PARTIES SET FORTH HEREIN, INCLUDING THE AGREEMENT TO RESOLVE ANY AND ALL DISPUTES ARISING UNDER THIS EULA OR FROM USE OF THE APP THROUGH INDIVIDUAL ARBITRATION GOVERNED BY THE FEDERAL ARBITRATION ACT. BY CLICKING ON THE “ACCEPT” BUTTON AND/OR CONTINUING TO INSTALL THE APP, YOU EXPRESSLY CONSENT TO BE BOUND BY THE TERMS OF THIS EULA AND GRANT US AND OUR AFFILIATES THE RIGHTS SET FORTH HEREIN.