Smith Micro
End User Application License Agreement
PLEASE READ THIS APPLICATION LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE APPLICATION. BY INSTALLING AND USING THE APPLICATION, YOU (“YOU” or “YOUR”) ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE APPLICATION. USING ANY PART OF THE APPLICATION INDICATES THAT YOU ACCEPT THIS LICENSE.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND SMITH MICRO SOFTWARE, INC. (“SMSI”) THAT SETS FORTH THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SMSI LOCALITY APPLICATION (“APPLICATION”). YOU MUST ACCEPT AND ABIDE BY THESE TERMS AS PRESENTED TO YOU, AND CHANGES, ADDITIONS, OR DELETIONS ARE NOT ACCEPTABLE. SMSI MAY REFUSE ACCESS TO THE APPLICATION FOR NONCOMPLIANCE WITH ANY PART OF THIS LICENSE.
LICENSE
This Application is licensed, not sold, to you. SMSI grants to you a limited non-transferable revocable license to use the Application on any iPhone or iPod touch that you own or control as set forth herein and as permitted by the Usage Rules of the Apple App Store Terms and Conditions (the “Usage Rules”). The foregoing license does not allow you to use the Application on any iPod touch or iPhone that you do not own or control, and you may not distribute or make the Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Application. You may not copy (except as expressly permitted by this License and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any TPS included with the Application). Any attempt to do so is a violation of the rights of SMSI and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of this License will govern any upgrades and updates, unless accompanied by a separate license agreement, in which case, the terms of that separate license agreement will govern accordingly. SMSI reserves all rights not expressly granted to you.
TERMINATION
This License is effective until terminated by you or SMSI. Your rights under this License will terminate automatically without notice from SMSI if you fail to comply with any term(s) of this License. Upon termination of this License, you shall cease all use of the Application, and destroy all copies, full or partial, of the Application.
SERVICES AND MATERIALS
This Application may enable access to SMSI and third party services and websites (individually and collectively referred to as “Services”). This License does not apply to any Services. You acknowledge and agree that nothing in this License guarantees availability or continued availability of any Services. Any terms, conditions, warranties, or representations associated with any third party Services are solely between you and such third party.
You understand that by using any of the Services, You may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that the SMSI shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.
You agree that the Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that SMSI is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using any of the Services.
In addition, third party Services may be accessed from, displayed on, or linked to/from, the iPhone or iPod touch are not available in all languages or in all countries. SMSI makes no representation that such Services are appropriate or available for use in any particular location. To the extent you choose to access such Services, you do so at your own initiative and are responsible for compliance with any applicable laws, including without limitation applicable local laws. SMSI, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will SMSI be liable for the removal of or disabling of access to any such Services. SMSI may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
THIRD PARTY ACKNOWLEDGEMENTS/LICENSES
Portions of the Application include third party software and other copyrighted material (collectively, “TPS”). Acknowledgements, licensing terms, restrictions and disclaimers of such TPS are contained in the “About Box” of the Application and your use of such TPS is governed by such respective terms. Any terms of this License that differs from the terms of any TPS are offered by SMSI alone, and not by any other licensor.
NO WARRANTIES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION, THIRD PARTY MATERIALS, AND ANY SERVICES PERFORMED OR PROVIDED BY SMSI ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND SMSI, ITS SUPPLIERS AND ANY LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND/OR CONDITIONS WITH RESPECT TO THE APPLICATION, THIRD PARTY MATERIALS, AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SMSI DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SMSI OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SHOULD THE APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OR A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, TO THE EXTENT PERMITTED BY THE LAW OF THE JURISDICTION IN WHICH YOU OBTAINED THIS LICENSE, SMSI, ITS SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR PERSONAL INJURY, OR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION DAMAGES FOR COMPUTER MALFUNCTION, LOSS OF INFORMATION, LOST PROFITS AND BUSINESS INTERRUPTION, AND THE COST TO OBTAIN SUBSTITUTE SOFTWARE, ARISING IN ANY WAY OUT OF THIS LICENSE OR YOUR USE OF (OR INABILITY TO USE) THE APPLICATION, HOWEVER CAUSED AND WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SMSI, ITS SUPPLIERS, DISTRIBUTORS OR LICENSORS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL SMSI'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT PAID FOR THIS LICENSE TO THE APPLICATION, AND IF NO AMOUNT WAS PAID BY YOU FOR THIS APPLICATION, THEN ONE DOLLAR ($1.00).
INDEMNITY
You agree to indemnify, defend and hold SMSI, its officers, directors, affiliates, employees and agents harmless from and against any and all claims, liabilities, damages, losses, and costs, including without limitation, reasonable attorneys’ fees incurred in connection with or arising out of your use or misuse of the Application, or your violation of this License.
EXPORT LAW ASSURANCES
Export and re-export of this Application is governed by the laws, restrictions and regulations of the United States and applicable export and import laws, restrictions and regulations of certain other countries (collectively, “Export Laws”). You will comply with all such Export Laws. Export or re-export of this Application (including any direct product thereof) to any entity on the Denied Parties List and other lists promulgated by various agencies of the United States Federal Government is strictly prohibited. In addition, if the Application is identified as an export controlled item under the Export Laws, you represent and warrant that you are not a citizen of, or located within, an embargoed or otherwise restricted nation (e.g., Iran, Syria, Sudan, Cuba and North Korea) and that you are not otherwise prohibited under the Export Laws from receiving the Application.
U. S. GOVERNMENT END USERS
The Application and any related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States. The manufacturer is Smith Micro Software, Inc., 51 Columbia, Aliso Viejo, California 92656 USA.
CONTROLLING LAW AND SEVERABILITY
This License shall be governed by the laws of the United States and the State of California, except for its conflicts of laws principles. Your use of the Application may be subject to other state, provincial, national, or international laws. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
TRADEMARK NOTICE
Smith Micro Software, Sock Puppets, and other designated logos, marks, names and trade names are trademarks or registered trademarks of Smith Micro Software, Inc. All other product and Services names mentioned in the Application or related documentation are used for identification purposes only and may be trademarks or registered trademarks of their respective companies. Registered and unregistered trademarks used herein are the exclusive property of their respective owners. This License does not authorize you to use SMSI’s or its licensors’ names or respective trademarks (e.g., logos, name, etc.).
COMPLETE AGREEMENT
This License constitutes the entire agreement between the parties with respect to the use of the Application and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by SMSI.
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