LAST REVISED: June 2, 2017
These platform publisher terms (“Publisher Terms”) apply to your (“Publisher,” “you,” or “your”) access and use of our platform. Our platform and related software are described at http://platform.detour.com (“Platform”) and provided via http://www.detour.com, http://decentral.detour.com or any of our successor sites and applications (“Site”).
By accessing the Platform, you acknowledge and agree that you have read and agree to be bound by all of the terms and conditions set forth in these Publisher Terms. If you are accessing the Platform in your capacity as an employee, consultant or agent of a company (or other entity), you represent that you are an employee, consultant or agent of such company (or other entity) and you have the authority to agree on behalf of such company (or other entity) to all of the terms and conditions of these Publisher Terms. These Publisher Terms constitute a legally binding agreement between you and Detour.com, Inc. (“Detour”, “our”, “we” or “us”).
Detour reserves the right to change or modify any of the terms and conditions contained in these Publisher Terms (or any policy or guideline of Detour) at any time and in its sole discretion by providing notice that these Publisher Terms have been modified. Such notice may be provided by sending an email, posting a notice on the Site, posting the revised Publisher Terms on the Site and revising the date at the top of these Publisher Terms, or such other form of notice as determined by Detour. Your continued use of the Platform after any of the notices above constitutes your acceptance of such changes or modifications. Therefore, you should review these Publisher Terms when you access the Platform to make sure that you understand the terms and conditions that will apply to your use of the Platform.
The “Effective Date” of these Publisher Terms is the date you first access the Platform.
In order to access the Platform, you must register with Detour by completing the Detour registration form provided via the Site. During the registration process, additional for-fee offerings (such as reports) may be made available as options. If you select one or more of these offerings, certain additional terms may apply.
Your use of the Platform is subject to the terms and conditions of Detour’s Terms of Service which are available at https://www.detour.com/terms (“Terms of Service”) which are incorporated into these Publisher Terms by reference. In the event of a conflict between the terms and conditions of these Publisher Terms and the terms and conditions of the Terms of Service, the terms and conditions of these Publisher Terms will govern.
Grants. Subject to the terms and conditions of these Publisher Terms, Detour grants to you a nonexclusive, worldwide, nontransferable, nonsublicensable, and revocable right and license to use, reproduce and modify the Platform solely in order to develop a mobile tour experience (“Tour”) for distribution via one of Detour’s mobile applications] (“Detour App”).
Acceptable Use Policy. Publisher must comply with (and each Tour (and its related content) must be in accordance with) Detour’s Acceptable Use Policy, which may be modified from time-to-time by Detour (“Acceptable Use Policy”).
Review and Approval of Tour. You must submit to Detour each Tour that you wish to make available via the Detour App. You are solely responsible and liable for the Tours you submit to Detour. Please maintain a backup copy of your tour. Detour will not make a Tour (including any updates to such) available via the Detour App unless and until Detour approves, in writing, such Tour or update, as applicable. Detour has no obligation to make available, or to maintain the availability of, any Tour that you submit to Detour, and Detour may remove or suspend the availability of any Tour for any reason.
Rights. In order for Detour to make your Tours available via the Detour App and our marketing purposes, you grant to Detour, during the term of these Publisher Terms, a non-exclusive, worldwide (and otherwise), perpetual, irrevocable and sublicensable right and license to reproduce, modify, distribute, perform publicly, and display publicly the Tours solely (a) to make the Tours available to the public via the Detour App (that is available via application distribution entities (including, but not limited to, the Apple App Store and Google and certain rental devices) and (b) for Detour’s marketing purposes.
Rankings and Ratings. The Detour App allows users to comment on and rate Tours. Detour may use those ratings and other data to determine the placement or marketing of Tours. Your Tour may be subject to user ratings and/or comments with which you may not agree. You may not attempt to manipulate rankings, ratings or comments for your Tours or any other Tours. You may contact Detour if you have any questions or concerns regarding these ratings.
Detour will remit to Publisher 100% of Net Revenue (as defined below) from tours sold in the Detour app. At the end of each calendar quarter, Detour will calculate the Net Revenue for such just completed calendar quarter and pay all such Net Revenue, in U.S. Dollars, to Publisher by check.
Publisher may elect to make available Tour(s) free of charge. Publishers may distribute up to 100 tour sessions per month under a Standard Subscription . In excess of this number, Publisher will pay $0.50 per tour session. Subscriptions are payable on or before the first of each month. Fees for excess tour sessions are calculated and invoiced at the end of each month.
To access Enterprise Level features of Detour Platform, organizations must enter a Platform License Agreement with associated fees.
Publisher and Detour will each bear sole responsibility for all taxes, assessments and other real property-related levies on its owned or leased real property, personal property (including software), franchise and privilege taxes on its business, and taxes based on its net income or gross receipts. For the purpose of these Publisher Terms, “Net Revenue” means all revenue received by Detour from the distribution of the Tour(s) and all products and services sold via the Tour(s) less taxes, app store fees, credit and debit card fees, returns, and chargebacks.
“Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by Detour to Publisher (or otherwise discovered by Publisher) concerning or related to these Publisher Terms, the Platform or Detour (whether before, on or after Publisher accesses the Platform) which Publisher knows or should know, given the facts and circumstances surrounding the disclosure of (or accesses to) the information, is the confidential information of Detour including, but not limited to, the source code related to the Platform, the know-how and other similar information of Detour. Publisher will, during the term of these Publisher Terms and thereafter, maintain in confidence the Confidential Information and will not use or disclose such Confidential Information unless expressly permitted in these Publisher Terms. Publisher will use the same degree of care in protecting the Confidential Information as Publisher uses to protect its own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. Notwithstanding any terms to the contrary in these Publisher Terms, any suggestions, comments or other feedback provided by Publisher to Detour with respect to the Platform or Detour (collectively, “Feedback”) will constitute Confidential Information. Detour will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind, on account of Intellectual Property Rights (as defined below) or otherwise. Publisher acknowledges and agrees that any unauthorized disclosure of Confidential Information will result in irreparable injury to Detour, which injury could not be adequately compensated by the payment of monetary damages. In addition to any other legal and equitable remedies that may be available, Detour is entitled to seek and obtain injunctive relief against any breach or threatened breach by Publisher of the confidentiality obligations set forth in these Publisher Terms, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies or post any bond or other security.
Publisher acknowledges and agrees that Detour may monitor, collect, use and store data (anonymous, aggregate or otherwise) regarding use of the Platform and/or Detour App and/or any individuals or entities that interact with the Platform and/or Detour App (“App Data”).
Unless expressly authorized by these Publisher Terms, Publisher may not (a) modify, disclose, alter, translate or create derivative works of the Platform (or any components thereof), (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Platform (or any components thereof), (c) decompile, disassemble, decode or reverse engineer the Platform (or any components thereof), (d) translate the Platform (or any components thereof) or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the Platform or reduce the Platform (or any components thereof) by any other means to a human-perceivable form, (e) bypass, delete or disable any copy protection mechanisms or any security mechanisms within the Platform, disclose to any third party any performance information or analysis relating to the Platform, or (f) cause or permit any other party to do any of the foregoing.
Publisher represents and warrants that (a) each Tour (and its content) is the original work of Publisher (or Publisher has the valid right or license to such content), (b) none of the Tours (except for the unmodified Platform) will infringe, violate or misappropriate any Intellectual Property Rights, rights of privacy, rights of publicity or any other rights of any third party, (c) Publisher will fulfill Publisher’s obligations (and exercise the rights granted to it) under these Publisher Terms in accordance with all applicable domestic and foreign laws, the Federal Trade Commission guidelines or their equivalents, rules and regulations including, but not limited to, data security, spyware or adware, privacy laws, Children’s Online Privacy Protection Act and CAN SPAM, (d) each Tour (and related content) will meet the terms and conditions of the Acceptable Use Policy, (e) none of the Tours will contain any viruses, worms, date bombs, time bombs, or other code that may damage, interrupt or interfere with Detour’s or any third party’s software or hardware.
DETOUR DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) ARISING OUT OR RELATING TO THESE Publisher Terms, THE DETOUR APP, THE PLATFORM OR THE TOURS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ALL (A) WARRANTIES OF MERCHANTABILITY, (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SUCH PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), OR (C) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF ANY EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
Detour Obligations.Detour, at its sole expense, will defend Publisher from and against all third-party claims, suits, actions or proceedings (“Claims”) and indemnify Publisher from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising from or relating to the Platform in the form provided by Detour infringing or misappropriating any Intellectual Property Rights of any third party; provided, however, that Publisher (a) gives Detour notice of the Claim, (b) grants Detour the option to take sole control of the defense (including granting Detour the right to select and use counsel of its own choosing) and settlement of the Claim, and (c) provides reasonable Detour and, at Detour’s request and expense, assistance in the defense or settlement of the Claim.
Publisher Obligations. Publisher, at its sole expense, will defend Detour and its directors, officers and employees (“Detour Indemnitees”) from and against any Claims and indemnify the Detour Indemnitees from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising from or relating to any of the Tours (including, but not limited to, damage to personal or real property or injury (including death) of any person arising from or relating to the use of a Tour), or any actual or alleged breach of any of Publisher’s obligations under these Publisher Terms (including, but not limited to, any alleged or actual breach of any of Publisher’s representations or warranties set forth in these Publisher Terms). Detour will have the right to approve any counsel retained to defend against any Claim in which Detour is named a defendant, and will not unreasonably withhold such approval. Further, Detour will have the right to control and participate in the defense of any such Claim concerning matters that relate to Detour, and Publisher will not settle or compromise any such Claim without Detour’s written consent. If, in Detour’s reasonable judgment, a conflict exists between the interests of Detour and Publisher in such a Claim, Detour may retain its own counsel whose reasonable fees will be paid by Publisher.
EXCEPT FOR BREACHES OF SECTIONS 5 (CONFIDENTIAL INFORMATION), 6 (RESTRICTIONS), OR 7 (REPRESENTATIONS AND WARRANTIES) OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE Publisher Terms EXCEED THE FEES PAID BY DETOUR TO PUBLISHER.
EXCEPT FOR BREACHES OF SECTIONS 5 (CONFIDENTIAL INFORMATION), 6 (RESTRICTIONS), OR 7 (REPRESENTATIONS AND WARRANTIES) OR PUBLISHER’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THESE Publisher Terms, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
The term of these Publisher Terms commences upon the Effective Date and continues until terminated as set in these Publisher Terms.
Either party may terminate these Publisher Terms if the other party breaches one of its obligations under these Publisher Terms and fails to cure such breach within 20 days of receipt of written notice from the other party setting for such breach. Further, Detour may terminate these Publisher Terms if Detour reasonably believes that Publisher has breached any of the terms set forth in these Publisher Terms. On any termination of these Publisher Terms (a) all rights and licenses granted under these Publisher Terms will immediately terminate, and (b) Publisher will promptly return to Detour all Confidential Information then in Publisher’s possession, or destroy all copies of Confidential Information at Detour’s sole discretion and direction. Notwithstanding any terms to the contrary in these Publisher Terms, this sentence and Sections 5 (Confidential Information), 6 (Restrictions), 7 (Representations and Warranties), 80 (Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), and 12 (General Provisions) will survive any termination of these Publisher Terms.
Entire Agreement. These Publisher Terms (including the terms and conditions incorporated into these Publisher Terms by reference) set forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersede all prior or contemporaneous agreements (unless the parties have entered (or do enter) into a separate written publisher or similar agreement), proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom.
Governing Law and Venue. These Publisher Terms will be governed by and construed in accordance with the laws of the State of California, without resort to its conflict of law provisions. The state or federal court in San Francisco County, California will be the jurisdiction in which any suits should be filed if they relate to these Publisher Terms. Before the filing or initiation of any action or proceeding relating to these Publisher Terms, the parties must participate in good faith mediation in San Francisco, California. If a party initiates any proceeding regarding these Publisher Terms, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of these Publisher Terms.
Ownership. As between the parties and subject to the grants set forth in these Platform Terms: (a) Publisher owns all rights, title and interest in and to the Tours (except the Platform) and all Intellectual Property Rights embodied therein; and Detour owns all right, title and interest in and to the Platform, all App Data (as defined below) and all Intellectual Property Rights embodied therein. Each party reserves all rights not expressly granted in these Platform Terms, and no licenses are granted by a party to the other party under these Platform Terms, whether by implication, estoppel or otherwise, unless expressly set forth in these Platform Terms. For the purpose of these Platform Terms, “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
Independent Contractors. Neither party will, for any purpose, be considered an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
Assignment. Publisher may not assign, delegate or transfer (by sale, merger, operation of law or otherwise) these Publisher Terms or any right, title, interest or obligation under these Publisher Terms without the prior written consent of Detour. Any attempted or purported assignment, delegation or transfer in violation of the foregoing will be null and void and without effect. Detour may assign these Publisher Terms without Publisher’s prior written consent. These Publisher Terms will be binding and inure to the benefit of such assignees, transferees and other successors in interest of the parties, in the event of an assignment or other transfer made consistent with the provisions of these Publisher Terms.
Electronic Communications. Detour may choose to electronically deliver all communications with Publisher, which may include email to the email address Publisher provides to Detour. Detour’s electronic communications to Publisher may send or convey information about action taken on Publisher’s request, portions of Publisher’s request that may be incomplete or require additional explanation, any notices required under applicable law and any other notices. Publisher agrees to do business electronically with Detour and to receive electronically all current and future notices, disclosures, communications and information and that the aforementioned electronic communications satisfy any legal requirement that such communications be in writing. An electronic notice will be considered to have been received on the day of receipt as evidenced by such email.
Publicity and Press Release. Publisher consents to Detour’s use of Publisher’s name and logo on any of Detour’s websites and Detour’s marketing materials identifying Publisher participation in the Detour application development program, and Publisher agrees that Detour may issue a press release identifying Publisher as a participant of the Detour application development program.
Severability. If any provision of these Publisher Terms is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of these Publisher Terms will nonetheless remain in full force and effect, so long as the economic and legal substance of the transactions contemplated by these Publisher Terms is not affected in any manner adverse to any party. On such determination that any provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify these Publisher Terms so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
Force Majeure. Detour will not be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of any services provided by any service providers used by Detour, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.
Notice for California Users. If you are a California resident, you may have these Publisher Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Publisher Terms. Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
If you have any questions regarding the use of these Publisher Terms, please email Detour at firstname.lastname@example.org.