End user agreement for Photo A.K.A.
Smith Micro End User License Agreement
This End User License Agreement ("EULA") is between you (both the individual installing the Software and any single legal entity on behalf of which such individual is acting) ("you" or "your") and Smith Micro Software, Inc., and/or its subsidiaries ("Company").
PLEASE READ THIS EULA CAREFULLY BEFORE USING THE SOFTWARE. BY CLICKING THE "AGREE" BUTTON LOCATED AT THE BOTTOM OF THIS WINDOW, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, PLEASE CLICK THE "DISAGREE" BUTTON AND DO NOT USE THE SOFTWARE. USING ANY PORTION OF THE SOFTWARE INDICATES THAT YOU ACCEPT THESE TERMS. IF YOU DECLINE TO AGREE TO THE TERMS OF THIS EULA, CONTACT THE PLACE OF PURCHASE FOR A REFUND.
The software accompanying this EULA, whether delivered on disk, on CD, via electronic download, or on any other physical or electronic media (collectively the "Software") are licensed, not sold, to you. You own the media on which the Software is recorded but Company and/or its licensor(s) retain title to the Software. Similarly, the user guides for installation and use of the Software that the Company makes generally available ("Documentation") are protected by copyright and licensed, not sold, to you. All right, title, and interest in and to the intellectual property rights in the Software and Documentation (and any derivative works of either) not expressly granted to you by this EULA remain with the Company. You do not acquire any other rights, express or implied, in the foregoing other than those rights expressly granted under this EULA.
Subject to your compliance with the terms and conditions of this EULA, the Company grants you a limited, personal, nontransferable and nonexclusive license (without the right to sublicense): (i) to use a single copy of the Software solely for your own internal business operations on a single computer or digital device for production operation or, on a temporary basis, on a backup system if such computer is inoperative, consistent with the limitations specified or referenced in this EULA; (ii) to use the Documentation in support of your authorized use of the Software; and (iii) to make one (1) copy of the Software in machine-readable form for backup purposes only, provided that you will retain on such backup copy all titles and trademark, copyright and restricted rights notices contained on the original.
If you have obtained any Software on a free, discounted or trial basis, your use may be terminated, restricted or limited to certain features or components of the Software in the event that you do not pay for a registration or serial number as set forth in written instructions that the Company provides with such Software. In addition, the Company may terminate or revoke your license to use such Software at any time if you do not obtain an authentic registration or serial number in accordance with such instructions.
Except as permitted by applicable law and this EULA, you will not use, copy, modify, distribute, or create derivative works from the Software or Documentation or transfer the Software or Documentation, and you will not (and will not permit any third party to) decompile, reverse engineer, disassemble, rent, lease, or loan the Software. You may, however, transfer your rights under this EULA provided you transfer the related Documentation, this EULA and a copy of the Software to a party who agrees to accept the terms of this EULA and provided you destroy all copies of the Software (or portions thereof) remaining in your possession. In addition, you may transfer your rights under this EULA solely in accordance with any written instructions that the Company provides in connection with the Software.
You agree to use the Software and Documentation only for lawful purposes. Any use of the Software or Documentation other than as granted in this EULA must be approved by the Company's prior written consent. The Company maintains an ongoing EULA enforcement program. Violation of any provision in this EULA automatically terminates this EULA. The Company reserves all other rights that it may have for violation of this EULA.
Company has no obligation to provide support, maintenance, updates, upgrades, modifications, or new releases under this EULA. If Company chooses to make updates to the Software available to you, such updates shall be deemed included within the Software subject to this EULA.
This EULA remains in full force and effect until terminated. Your rights under this EULA will terminate automatically without notice if you fail to comply with any term(s) of this EULA. Upon termination of this EULA, you will cease all use of the Software and return to Company or destroy the Software and all Documentation in your possession, and so certify to Company. Except for the license granted herein (which shall terminate) and except as expressly provided otherwise herein, the terms of this EULA will survive termination.
This Software contains trade secrets and proprietary know-how belonging to the Company and it is being made available to you in strict confidence. Any use or disclosure of this Software, or its algorithms, protocols, or interfaces, other than in strict accordance with this EULA, may be actionable as a violation of the Company's trade secret rights.
DISCLAIMER OF WARRANTY ON SOFTWARE
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND AND THE COMPANY, ITS SUPPLIERS, DISTRIBUTORS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND/OR CONDITIONS OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE COMPANY OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT THE COMPANY OR ANY AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE DISCLAIMER OF IMPLIED WARRANTIES ABOVE MAY NOT APPLY TO YOU, IN WHICH CASE THE DURATION OF ANY SUCH IMPLIED WARRANTIES IS LIMITED TO SIXTY (60) DAYS FROM THE DATE YOU FIRST INSTALLED THE SOFTWARE ON YOUR COMPUTER; PROVIDED, HOWEVER, THAT YOUR SOLE AND EXCLUSIVE REMEDY, AND COMPANY'S SOLE OBLIGATION SHALL IN ANY CASE BE THAT COMPANY WILL, AT ITS OPTION, REPAIR OR REPLACE YOUR COPY OF THE SOFTWARE, OR TERMINATE THIS EULA AND REFUND AMOUNTS ALREADY PAID THEREFOR BY YOU.
LIMITATION OF LIABILITY
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, TO THE EXTENT PERMITTED BY LAW, COMPANY, ITS SUPPLIERS, DISTRIBUTORS AND LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY CHARACTER, INCLUDING BUT NOT LIMITED TO 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 AGREEMENT OR THE USE OF (OR INABILITY TO USE) THE SOFTWARE HOWEVER CAUSED AND WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF COMPANY, 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 THE COMPANY'S TOTAL LIABILITY TO YOU EXCEED THE AMOUNT PAID BY YOU HEREUNDER.
EXPORT LAW ASSURANCES
Export, re-export of this Software is governed by the laws and regulations of the United States and import laws and regulations of certain other countries. You will comply with all such laws and regulations. Export or re-export of Software to any entity on the Denied Parties List and other lists promulgated by various agencies of the United States Federal Government is strictly prohibited.
U. S. GOVERNMENT END USERS
The Software is provided with RESTRICTED RIGHTS. Any use, modification, reproduction, release, performance, display or disclosure by the U.S. Government or any of its agencies shall be governed solely by the terms of this EULA and shall be prohibited except to the extent expressly permitted by the terms of this EULA. The Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR 12.212(b), as applicable. Any technical data provided that is not covered by the above provisions is deemed to be “technical data-commercial items” pursuant to DFAR Section 227.7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR Section 227.7015(b).
This EULA shall be governed by the laws of the United States and the State of California, except for its conflicts of laws principles. This EULA will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. You agree to submit to the exclusive jurisdiction and venue of the state and/or federal courts of Orange County, California with respect to any suit arising out of or relating to this EULA. If for any reason neither the state nor federal courts of Orange County, California exercise jurisdiction over you or such suit, jurisdiction for such suit will be in any court of competent jurisdiction. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this EULA shall continue in full force and effect. The waiver by either party of any default or breach of this EULA will not constitute a waiver of any other or subsequent default or breach. Except as expressly provided for in this EULA, you may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this EULA or any rights or obligations under this EULA. Any purported assignment, transfer or delegation by you except as expressly provided for in this EULA will be null and void. This EULA, together with all other agreements contained within the Software and/or presented to you during installation or use constitute the entire agreement between the parties with respect to the subject matter herein and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning such subject matter. No amendment to or modification of this EULA will be binding unless in writing and signed by a duly authorized representative of each party.
If you have questions concerning this EULA or need to contact Customer Service, please refer to http://my.smithmicro.com or contact Company at: Smith Micro Software, Inc., 51 Columbia, Aliso Viejo, CA 92656.
INTELLECTUAL PROPERTY NOTICES
The Smith Micro and the Smith Micro Software logo, StuffIt, StuffIt Deluxe, StuffIt SEA Maker, StuffIt Archive Manager, Magic Menu, StuffIt Contextual Menu, StuffIt Expander and DropStuff, the StuffIt Logo, and StuffIt X are trademarks or registered trademarks of Smith Micro Software, Inc. US Patent Numbers 7,184,603, 7,397,959, and 7,502,514. Additional patents pending. Copyright (c) 2002 - 2009 Smith Micro Software, Inc. All Rights Reserved. Other brand and product names are the trademarks or registered trademarks of their respective owners.
BY CLICKING ON THE “AGREE” BUTTON BELOW, YOU ACKNOWLEDGE THAT (1) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (2) YOU AGREE TO BE BOUND BY THIS AGREEMENT, (3) THE INDIVIDUAL SO CLICKING HAS THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOU AND, (4) BY SO CLICKING, THIS AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATIONS OF YOU.