By downloading, installing or using the developer(s) software or any portion thereof ("The Software") you agree to the following terms and conditions (the "Terms and Conditions"). The Software, and any portion thereof, are referred to herein as the "Software". By agreeing to these Terms and Conditions, you represent that you are of the applicable age in your jurisdiction to be capable of entering into a legally binding agreement. If you are a business entity, you also represent that you are duly authorized to do business in the country or countries where you operate and that your employees, officers, representatives, and other agents accessing the Service are duly authorized to access the Service and to legally bind you to these Terms and Conditions. In these Terms and Conditions, "Services" means any of the developer(s) products, software, services and web sites.
The following Terms and Conditions create a legal agreement between you and the Developer(s) - addressable as Scott Ernst | 250W Broadway Suite 206 | Eugene, OR 97401 - and our business enterprises (collectively known as “The Developers”). You agree by accessing or utilizing our Software and/or Services to these terms.
1. USE OF THE PRODUCTS; CONTENT IN THE PRODUCTS
The Developer(s) give you a worldwide, royalty-free, non-transferable, non-assignable and non-exclusive license to use the application, i.e. executable, version of the Software on the applicable devices you own or control under any additional restrictions imposed by authorized third party beneficiaries granted by these Terms and Conditions.
You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by The Developer(s) in writing.
You may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.
You may not use the Software in any manner that could damage, disable, overburden, or impair The Developer(s) services (e.g., you may not use the Software in an automated manner), nor may you use Software in any manner that could interfere with any other party's use and enjoyment of the Services.
You may not use or host the Software in a virtual server environment.
You may not distribute, sell, sublicense, rent, lease, or use the Software (or any portion thereof) for time sharing, hosting, service provider, or like purposes.
You may not remove any product identification, proprietary, copyright, or other notices contained in the Software.
3. PROPRIETARY RIGHTS
You acknowledge that (a) the Software contains proprietary and confidential information that is protected by applicable intellectual property and other laws, and (b) The Developer(s) owns all right, title and interest in and to the Software and software provided through or in conjunction with the Software, including without limitation all Intellectual Property Rights therein and thereto. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You agree that you will not, and will not allow any third party to, (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software, unless otherwise permitted, (ii) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management functionality) contained in the Software, (iii) use the Software to access, copy, transfer, transcode or retransmit content in violation of any law or third party rights, or (iv) remove, obscure, or alter The Developer(s) copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software.
If you believe that the Software has infringed on on your or a third party’s intellectual property, you may contact The Developer(s) as outlined at the end of this document and validate your claim by providing us with the following information:
a) a description of the work for which you are claiming infringement;
b) a description of the location in the Software where the infringing material exists;
c) enough contact information that will allow us to contact you such as your address, phone number and email address;
d) a statement by you that you have a good-faith belief that the disputed infringement is not authorized;
e) a statement that the information you are providing is accurate, correct, and that under penalty of perjury, that the complaining party is authorized to act on behalf of an owner of an exclusive right that is allegedly infringed.
f) a physical or electronic signature of the person authorized to act on behalf of the owner of the exclusive right that has allegedly been infringed.
Infringement claims must be made through the represented Parties of this agreement and not authorized third parties, which have no liability for the intellectual property and proprietary information contained within the Software. Infringement claims that fail to comply with these Terms and Conditions will be considered invalid by The Developer(s) and under no liability to authorized third parties.
4. UPDATES, MAINTENANCE AND SUPPORT
The Software may communicate with the Developer(s) servers from time to time to check for available updates to the Software, such as maintenance releases, covering bug fixes and version releases, which may give you new, modified, or enhanced functionality. Some of these updates may be critical to the continued functionality of the Software, notably in cases where the Software functions in conjunction with Services. The Software allows you to request and receive Updates automatically. Likewise, you may need to take action to download and install the software on devices where this action does not happen automatically.
In cases where the Software was installed and/or is managed through third-party stores, additional Update behaviors and restrictions may occur in accordance to and with reasonable adherence to the policies and best practices of those stores. Users that receive access to the Software under these circumstances consent to such actions as well as the terms and conditions of the third parties owning and operating the stores. While updates and maintenance may be conducted through these third parties, these updates and maintenances remain in adherence to the parties outlined in these Terms and Conditions and not the third parties.
You agree that any additional necessary Software support will be handled between you and The Developer(s) by contacting us as described at the end of this document, and that any such support is to be handled between the Parties with no rights granted to and no obligations expected of third party
5. U.S. GOVERNMENT RESTRICTED RIGHTS
The Software and any related documentation are deemed "commercial computer software" and "commercial computer software documentation", respectively, within the meaning of the applicable civilian and military Federal acquisition regulations and any supplement thereto. If the user of the Software is an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, including technical data or manuals, is restricted by the terms, conditions and covenants contained in these Terms and Condition. In accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies, use of the Software is further restricted by these Terms and Conditions. When the end user is an instrumentality of the US Government, the following terms apply: This agreement is a contract with the US Government and becomes effective when signed by the contractor and the US Government Contracting Officer as an addenda to the Contract. If this is an ID/IQ contract or Schedule Contract, ordering activities placing orders against the ID/IQ contract are subject to this agreement as a term of the ID/IQ contract. This EULA (or TOS) shall bind the government, subject to federal law. This agreement shall not operate to bind a government employee or person acting on behalf of the government in his or her personal capacity. The indemnity requirement of this agreement shall not apply against the US Government; recourse against the United States for any alleged breach of this agreement must be made under the terms of the Federal Tort Claims Act or as a dispute under the contract disputes clause (Contract Disputes Act) as applicable. Venue and jurisdiction of any disputes are determined by the applicable federal statute.
6. EXPORT RESTRICTIONS
The Software may be subject to export controls or restrictions by the United States or other countries or territories. You agree to (i) comply with the requirements of the U.S. Department of Commerce (DOC) Export Administration Regulations (EAR) (see http://www.bis.doc.gov) and all applicable international, national, state, regional and local laws, and regulations, including without limitation any applicable import and use restrictions, (ii) not export, or re-export, directly or indirectly, the Software to any country outlined in the EAR, nor to any person or entity on the DOC Denied Persons, Entities and Unverified Lists, the U.S. Department of State's Debarred List, or on the U.S. Department of Treasury's lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists, (iii) not export, or re-export the Software to any military entity not approved under the EAR, or to any other entity for any military purpose, and (iv) not license, sell, provide or distribute the Software for use in connection with chemical, biological, or nuclear weapons or missiles capable of delivering such weapons.
7. COMPLIANCE WITH LAWS
You agree to comply with all local laws and regulations regarding the download, installation and/or use of the Software. Additionally, by accepting these Terms And Conditions you are affirming that you are not located in a country subject to U.S. embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country. You are also affirming that you are not listed on any U.S. Government list of prohibited or restricted parties.
You may terminate these Terms and Conditions at any time by permanently deleting the Software in its entirety. Your rights automatically and immediately terminate without notice from The Developer(s) if you fail to comply with any provision of these Terms and Conditions. In such event, you must immediately delete the Software.
The provisions of Sections 3, 5, 6, 9, 10, 11, 12, 13, 14, 15 and 16 shall survive any termination or expiration of these Terms and Conditions.
You agree to hold harmless and indemnify The Developer(s) from and against any claim, suit or action arising from or in any way related to your use of the Software or your violation of these Terms and Conditions, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, The Developer(s) will provide you with written notice of such claim, suit or action.
11. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a) YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE DEVELOPER(S) EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b) THE DEVELOPER(S) MAKES NO WARRANTY (I) THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, (II) THAT THE SOFTWARE WILL BE ERROR-FREE OR BUG-FREE, (III) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SOFTWARE, (IV) THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED AND (V) REGARDING THE RESULTS OR OUTPUT OF THE SOFTWARE.
c) ANY CONTENT OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT OR MATERIAL.
d) NONE OF THE SOFTWARE IS INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER SUCH ACTIVITIES IN WHICH CASE THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
e) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE DEVELOPER(S) OR ANY THIRD PARTY OR THROUGH THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.
f) NO THIRD PARTIES MAY GRANT OR TAKE RESPONSIBILITY FOR ANY IMPLIED OR EXPRESSED WARRANTIES BETWEEN PARTIES IN THESE TERMS AND CONDITIONS. ADDITIONALLY, NO THIRD PARTIES MAY BE LIABLE FOR IMPLIED OR EXPRESSED WARRANTIES NOT EXPRESSLY GRANTED BY THESE TERMS OF SERVICES OR EXCEPTIONS OBTAINED IN WRITING BY THE DEVELOPERS.
12. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE DEVELOPER(S) SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE DEVELOPER(S) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SOFTWARE; (II) THE INABILITY TO USE THE SOFTWARE TO ACCESS CONTENT OR DATA; (III) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (V) ANY OTHER MATTER RELATING TO THE SOFTWARE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
13. EXCLUSIONS AND LIMITATIONS
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN SECTIONS 11 AND 12 WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND THE DEVELOPER’(S) LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14. NO IMPLIED THIRD PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in these Terms and Conditions, there shall be no third party beneficiaries to these Terms and Conditions.
Exceptions to this restriction are hereby granted to any and all third party distributors and storefronts explicitly authorized by The Developers in such cases as those parties require third party beneficiary status for compliance with their distribution and storefronts. In these cases the third parties are accepting and granted the right to exercise the enforcement of these Terms and Conditions.
15. MISCELLANEOUS PROVISIONS
a) Entire Agreement. These Terms and Conditions constitute the entire agreement between you and The Developer(s) relating to the Software and govern your use of the Software. This agreement can only be modified if agreed upon by the Developer(s) and you in writing. These Terms and Conditions may change at any time. The official language of these Terms and Conditions is English. If there is a conflict between the English language version and any translation, the English language version will control.
b) Choice of Law and Forum. Unless you obtained this Software in Canada or the European Union, this Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. In such case the jurisdiction and venue for actions related to the subject matter hereof are the State of California and United States federal courts located in Santa Clara County, California, and both parties hereby submit to the personal jurisdiction of such courts.
If you obtained this Software in Canada, this Agreement is governed by the laws of the Province of Ontario, Canada, excluding its rules governing conflicts of laws and without regard to the United Nations Convention on the International Sale of Goods. In such case jurisdiction and venue for actions related to the subject matter hereof are the courts of the Judicial District of York, Province of Ontario and both parties hereby submit to the personal jurisdiction of such courts.
If you obtained this Software in the European Union, this Agreement is governed by the laws of The Netherlands, excluding its rules governing conflicts of laws and without regard to the United Nations Convention on the International Sale of Goods. In such case each jurisdiction and venue for actions related to the subject matter hereof are the courts of The Hague, The Netherlands and both parties hereby submit to the personal jurisdiction of such courts.
c) Waiver and Severability of Terms. The failure of The Developer(s) to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms and Conditions shall remain in full force and effect.
d) Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Software or these Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred.
e) Headings. The section headings in these Terms and Conditions are for convenience only and have no legal or contractual effect.
All contact regarding these Terms and Conditions should be made to The Developer(s) using our support contact account as provided at http://www.lettermotion.com/help
Last Updated November, 4, 2013