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PLEASE READ THIS APPLICATION END USER 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 FARM PUPPET 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.
THIS LICENSE MAY BE AMENDED FROM TIME TO TIME BY SMSI. THE MOST RECENT VERSION OF THIS LICENSE SHALL ALWAYS BE AVAILABLE ON THE INTERNET AT http://my.smithmicro.com/farm-puppets-eula-app.html AND THE MOST RECENT VERSION SHALL SUPERSEDE ANY AND ALL OTHER VERSIONS OF THIS LICENSE. SMSI RESERVES THE RIGHT TO CHANGE OR MODIFY THIS LICENSE OR ANY OTHER SMSI POLICIES RELATED TO USE OF THE APPLICATION AT ANY TIME AND AT ITS SOLE CISCRETION BY POSTING REVISIONS ON THE INTERNET AT http://my.smithmicro.com/farm-puppets-eula-app.html. YOUR CONTINUED USE OF THE SOFTWARE FOLLOWOING THE POSTING OF THESE CHANGES OR MODIFICATIONS WILL CONSTITUTE ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS.
THIS LICENSE AND ENFORCEMENT RIGHTS REGARDING APPLE APP STORE
If this Application and any Content (defined below) is/are provided to you through the Apple Inc. ("Apple") App Store, then the following additional terms and conditions in this paragraph apply. SMSI and you, the end-user of the Application, acknowledge that the License is entered into by and between SMSI and you and not with Apple, Inc. Notwithstanding the foregoing, you acknowledge and agree that Apple, Inc. and it subsidiaries are third-party beneficiaries of this License and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce this License. SMSI is solely responsible for the Application and any Content contained or made available for purchase therein. You acknowledge that Apple, Inc. (and it subsidiaries) has no obligation whatsoever to furnish any maintenance and/or support services with respect to the Application. You acknowledge that you have reviewed the Apple App Store Terms and Conditions (located at the following URL: http://www.apple.com/legal/internet-services/itunes/us/terms.html#SERVICE). This License incorporated by reference the "Licensed Application End User License Agreement" ("EULA") published by Apple, Inc. (located at the following URL: http://www.apple.com/legal/internet-services/itunes/appstore/dev/stdeula/). For purposes of this License, "Application" is considered the "Licensed Application" as defined in the EULA and "SMSI" is considered the "Application Provider" as defined in the EULA. If any terms of this License conflict with the terms of the EULA, the terms of this License shall prevail, control and govern. This Application (and Content) is licensed, not sold, to you. SMSI reserves all rights not expressly granted in this License.
APPLICATION LICENSE GRANT AND RESTRICTIONS
SMSI grants to you a limited non-transferable revocable personal non-commercial license to use the Application on any iPhone®, iPod® Touch or iPad® device that you own or control and as permitted by this License and the Apple Usage Rules set forth in the Apple App Store Terms and Conditions.
The foregoing license does not allow you to use the Application on any iPod® Touch, iPad® 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 only use the Application as allowed by the Application's features and functionalities. 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.
IN-SOFTWARE UPGRADE PURCHASE OPTIONS Your version of the Software may include the ability for you to either download for free or for purchase of license rights for certain Content. In addition, your version of the Software may include the ability for you to purchase more recording time to record your Application adventures. The terms of this License will govern your use of the Content, unless such Content is accompanied by a separate license agreement, in which case, the terms of that separate license agreement will govern accordingly. All Content is either owned by or licensed to SMSI.
CONTENTLICENSE GRANT AND RESTRICTIONS
This Application makes available to you certain content, including without limitation, images, puppets, props, audio, video, background, figures, clothing, scenery, text, materials, shapes, models, objects, textures, and other related materials including without limitation combinations of any of the foregoing (individually and collectively, as applicable, "Content"). The Content is licensed to you, not sold to you. Subject to the terms and conditions of this License, you acknowledge that you will have only a limited, personal, non-exclusive, non-assignable license to reproduce, prepare derivative works based upon, and publicly display and/or perform the Content as allowed by the Application.
The Content is provided for your exclusive non-commercial personal use. You may not sublicense your license of the Content as provided herein. You may reproduce the Content in whole or in part for your exclusive use only and solely as allowed by the Application. You may only publicly display and/or perform the Content to others in accordance with the features and functionalities of the Application. You may not (or permit anyone else to do the same) disable, tamper, alter, modify or otherwise attempt to circumvent any restrictions and/or limitations of the features and/or functionalities of the Applications and/or Content. You may not use the Content in any unlawful manner or that may otherwise violate any applicable laws, statutes and/or regulations.
OWNERSHIP SMSI and its suppliers retain all right, title, and interest in and to all of the copyrights and any other proprietary rights in and to the Application and Content. No rights in any Content are granted except the licenses specified in this License. Any right, title or interest arising in any compilation or derivative works created using any Content shall entitle you to use any Content except as permitted in this License.
You represent and warrant that you will not use the Application or any Content for any unlawful purposes. Without limiting the generality of the foregoing, the following are prohibited uses (without exhaustion):
i. Uploading, posting, emailing, transmitting or otherwise making available any Content that is illegal, that is, without limitation, libelous, that infringes a third-party's copyright, trademark, trade secret or other intellectual property or proprietary rights that intentionally or unintentionally violates any applicable local, state, provincial, national or international laws and/or regulations;
ii. Without limiting the foregoing, uploading, posting, emailing, transmitting or otherwise making available any Content that is harmful, indecent, incites violence, graphic or gratuitous violence, threatening, abusive, harassing, vulgar, obscene, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
iii. Uploading, posting, emailing, transmitting or otherwise making available any Content intended to or that actually does harm minors in any way;
iv. Impersonating any person or entity or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
v. Forging headers or otherwise manipulating identifiers in order to disguise the origin of any Content transmitted through use of the Application;
vi. Uploading, posting, emailing, transmitting or otherwise making available any Content that you do not have a right to make available under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
vii. Uploading, posting, emailing, transmitting or otherwise making available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
viii. Interfering with or disrupting the Application or Services, servers or networks connected to the Application, or disobeying any requirements, procedures, policies or regulations of networks connected to the Application, including using any device, software or routine to bypass robot exclusion headers; and/or
ix. "Stalking" or otherwise harass another.
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 or uptime 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. In addition, you agree not to use the Application to create content that may be deemed offensive, indecent, or objectionable; hateful, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence. 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; hateful threatening or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.
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, your iPhone®, iPod® Touch or iPad® device that 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.
TERM; 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. The waiver by either party of any default or breach of this License will not constitute a waiver of any other or subsequent default or breach.
PRODUCT CLAIMS You acknowledge that SMSI, not Apple, Inc., is responsible for addressing any claims of the end-user or any third party relating to the Application or the end-user's possession and/or use of the Application, including, without limitation: (a) product liability claims; (b) any claim that the Application fails to conform to any applicable legal or regulatory requirements; and (c) claims arising under consumer protection or similar legislation.
DISCLAIMER OF 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, MADE AVAILABLE 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 FULLEST 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 and/or any Content, 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) designated by the U.S. Government and that you are not otherwise a prohibited or restricted party published by the U.S. Treasury, U.S. Department of Commerce or other similar agencies of the United States Federal Government.
INTELLECTUAL PROPERTY RIGHTS CLAIMS You acknowledge that, in the event of any third party claim that the Application or your possession and use of the Application infringes a third party's intellectual property rights, SMSI, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
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.
COPYRIGHT & TRADEMARK NOTICE Smith Micro Software, Farm 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. For purposes of Japan law regarding unregistered trademarks (e.g., a pending trademark application), the right in and to a trademark in Japan may not be exclusive until it is validly registered. You may not remove, modify, alter, cover or deface any trademark, trade names, product/service names, logo, copyright or other proprietary notices, legends, symbols or labels in the Application and all related documentation and materials (in any form). This License does not authorize you to use SMSI's or its licensors' names or respective trademarks (e.g., logos, name, etc.). Further, any reference to any third party commercial products, processes or services by trade name, trademark, logo, and company and/or product/service names mentioned or displayed in the Application (and in any of its related documentation and materials in any form) does not constitute or imply SMSI's endorsement, recommendation or favoring by SMSI or any of its suppliers/licensors.
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.
CONTACT If you have any questions, complaints or claims with respect to the Application, please contact SMSI at this address: Smith Micro Software, Inc., 877 Cedar Street, Suite 147 Santa Cruz, CA 95060 USA. Customer Service (questions, complaints or claims) via SMSI's website at the following URL: https://support.smithmicro.com.