This End-User License Agreement (this "EULA" or "Agreement") is an agreement between you and smuttlewerk interactive UG (haftungsbeschränkt), having its registered address at Donnersbergweg 1, 67059 Ludwigshafen, Germany (together with its subsidiaries and affiliates, "smuttlewerk"). This EULA governs your use of the application distributed by smuttlewerk that you installed and any and all related updates and upgrades that replace or supplement the Application in any respect (the "Application"), unless any such update or upgrade is accompanied by a separate license, in which case the separate license shall govern. This EULA governs only software that can operate on a device powered by the Android operating system provided by Google, Inc.
By installing or using the Application, you agree to and wish to be bound by the terms of this EULA, which consists of:
- this license
If you do not agree to the terms of this EULA, or do not wish to be bound by them, do not install or use the Application.
If you download the Application from an online market for software applications (Google Play, App Store, etc.), you acknowledge that you have reviewed and accepted the terms of services applicable to such market.
A) COMMON PROVISIONS FOR ALL APPLICATIONS
1. Limited License Grant.
Through this purchase or use, you are acquiring and smuttlewerk grants you a personal, limited, non-exclusive and non-transferable license to install and use the Application for your personal, non-commercial use. Your acquired rights are subject to your compliance with this EULA. Any commercial use is prohibited. Notwithstanding this prohibition you are allowed to create and use User Content (as defined below) in a non-modified form (exactly as produced by the Application) for any purposes (subject to the Restrictions on Use in Section 2 hereof) including commercial purposes (e.g. creating a video where a virtual character endorses a commercial product, selling videos created by the Application online, etc.). Any modification of User Content created by the Application or incorporation of such User Content into other works requires explicit written approval from smuttlewerk. You are expressly prohibited from sub-licensing, renting, leasing, transferring or otherwise distributing the Application or rights to use the Application. The terms of this EULA shall commence on the date you install or otherwise use the Application and shall end on the earlier of the date you dispose of the Application or smuttlewerks termination of this EULA. This EULA does not entitle you to receive from smuttlewerk hard-copy documentation, support, maintenance, telephone assistance, enhancements or updates to the Application.
2. Restrictions on Use.
Your right to use the Application is limited to the license grant above, and you may not otherwise copy, display, seek to disable, distribute, perform, publish, modify, transfer, create works from, or use the Application or any component of it, except as expressly authorized by smuttlewerk. Unless you have received prior written authorization from smuttlewerk, you must not:
- access or use the Application through any technology or means other than those provided in the Application, or through other explicitly authorized means smuttlewerk may designate;
- make a copy of the Application available on a network where it could be used by multiple users;
- copy, translate, modify, or make derivative works of the Application or any part thereof;
- redistribute, sublicense, rent, publish, sell, assign, lease, market, transfer, or otherwise make the Application available to third parties;
- reverse engineer, decompile or otherwise attempt to extract the source code of the Application or any part thereof, unless this is expressly permitted or required by applicable law or by the licensing terms governing use of any open sourced components included with the Application;
- delete, obscure, or in any manner alter any warning, notice (including but not limited to any copyright or other proprietary rights notice), or link that appears in the Application;
- use the Application with any products, systems, or applications for or in connection with real time navigation or route guidance; or
- remove or alter smuttlewerks trademarks or logos or legal notices included in the Application or related assets.
In no event may the Application be used in a manner that:
- harasses, abuses, threatens, defames or otherwise infringes or violates the rights of any other party;
- is unlawful, fraudulent or deceptive;
- uses technology or other means to access smuttlewerks proprietary information that is not authorized by smuttlewerk;
- uses or launches any automated system to access smuttlewerks website or computer systems;
- attempts to introduce viruses or any other malicious computer code that interrupts, destroys or limits the functionality of any computer software, hardware or telecommunications equipment;
- attempts to gain unauthorized access to smuttlewerks computer network or user accounts;
- encourages conduct that would constitute a criminal offense, or would give rise to civil liability; or
- violates this EULA.
Your right to use the Application is also predicated on your compliance with any applicable terms of agreements you have with third parties when using Your Application. For instance, if you have a voice-over-IP ("VoIP") application, then you must not be in violation of your wireless data service agreement when using your Application.
3. Reservation of Rights.
You have obtained a license to the Application and your rights are subject to this EULA. Except as expressly licensed to you herein, smuttlewerk reserves all right, title and interest in the Application. This license is limited to the intellectual property rights of smuttlewerk and does not include any rights to other patents or intellectual property. All rights not expressly granted herein are reserved by smuttlewerk.
4. Submissions of content to smuttlewerk.
The Application may allow you to create content such as videos, data, photographs, messages, graphics, text, and other information ("User Content") and to share such User Content with smuttlewerk or to other sites, including social networking sites, as you may designate. You are solely responsible for your User Content that you upload, publish, display, link to or otherwise make available (hereinafter, "share") on or through the Application, and you agree that smuttlewerk is only acting as a passive conduit for your online distribution and publication of your User Content.
The Application may enable sharing of User Content in two ways: (i) one to one (e.g. through SMS, e-mail, KakaoTalk and Facebook message); and (ii) one to many (e.g. Facebook, YouTube, Twitter). Unless explicitly stated otherwise herein no User Content is stored by smuttlewerk and smuttlewerk only acts as a passive conduit, offering you a platform to create the User Content and (solely as a help to you and for the sake of improving user experience) referring you to a third party service (e.g. e-mail client, Facebook application, YouTube application, Twitter application) where you can decide what User Content to share, how, when and with whom.
You understand that unless explicitly stated otherwise herein smuttlewerk has no control over the access to your User Content, sharing of your User Content, privacy or confidentiality of your User Content and you, together with the third party service providers (e.g. Facebook, YouTube, Twitter) and subject to their terms of service have the sole control over such User Content.
You agree not to share User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party?s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current.
You agree that any User Content that you share does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below), rights of publicity and privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below.
For the purposes of this EULA, ?Intellectual Property Rights? means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
If you believe that a certain User Content shared through the Application, but stored on third party services (e.g. Facebook, YouTube) is infringing your rights, please contact the respective third party service provider, where such User Content is stored.
smuttlewerk takes no responsibility and assumes no liability for any User Content that you or any other User or third party creates with the Application or shares through the Application. You shall be solely responsible for your own User Content and the consequences of sharing or publishing it. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, share or otherwise make available or access through your use of the Application, is solely your responsibility. In connection with your User Content, you affirm, represent and warrant the following:
- You are at least 18 years of age, or if you are under 18 years of age you are either an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
- You have the written consent of each and every identifiable natural person in the User Content to use such person?s name or likeness in the manner contemplated by the Application and this EULA, and each such person has released you from any liability that may arise in relation to such use.
- Your User Content and smuttlewerks use thereof as contemplated by this EULA and the Application will not infringe any rights of any third party, including but not limited to any Intellectual Property Rights, privacy rights and rights of publicity.
- smuttlewerk may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
smuttlewerk is not responsible for any public display or misuse of your User Content. You understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, objectionable, or inappropriate for children, and you agree that smuttlewerk shall not be liable for any damages you allege to incur as a result of such User Content.
Certain content and functions available via the Application may include materials from third parties. smuttlewerk may integrate third party content (e.g. user generated You Tube videos) and provide links to third-party websites as a convenience to you. You agree that smuttlewerk is not responsible for examining or evaluating the content or accuracy of such content and smuttlewerk does not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of any other party and that smuttlewerk is not in any way responsible for any such use by you.
You must provide at your own expense the equipment, Internet connections or mobile devices and/or service plans to access and use this Application. smuttlewerk does not guarantee that this Application is available in all geographic locations. You acknowledge that when you use this Application, your wireless carrier may charge you fees for data, messaging, and/or other wireless access. Check with your carrier to see if there are any such fees that apply to you. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS THIS APPLICATION FROM YOUR MOBILE DEVICE.
6. Consent to Use of Data.
7. Consent to Public Display of Data.
8. Third Party Ad-Serving Technology.
This ad serving technology is integrated into the Application; if you do not want to use this technology, your only remedy / opt-out option is to not use the Application.
9. Disclaimer of Warranties.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE APPLICATION IS PROVIDED TO YOU "AS IS," WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. smuttlewerk AND smuttlewerks LICENSORS (COLLECTIVELY "smuttlewerks" FOR PURPOSES OF THIS SECTION AND SECTION 10) DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. smuttlewerk DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION; THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; THAT THE APPLICATION WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION; THAT ANY ERRORS IN THE APPLICATION WILL BE CORRECTED; OR THAT THE APPLICATION WILL BE AVAILABLE FOR REINSTALLS TO THE SAME OR MULTIPLE DEVICES. NO ORAL OR WRITTEN ADVICE PROVIDED BY smuttlewerk OR ANY AUTHORIZED REPRESENTATIVE OR THIRD PARTY SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
10. Limitation of Liability.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL smuttlewerk, ITS SUBSIDIARIES OR ITS AFFILIATES BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS LICENSE OR THE APPLICATION, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT smuttlewerk HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS OR CERTAIN INTENTIONAL OR NEGLIGENT ACTS, OR VIOLATION OF SPECIFIC STATUTES, OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. In no event shall smuttlewerks total liability to you for all damages (except as required by applicable law) exceed the amount actually paid by you for the Application.
11. Limitation of Liability and Disclaimer of Warranties are Material Terms of this EULA.
You agree that the provisions in this EULA that limit liability are essential terms of this EULA.
You agree to defend, indemnify, and hold harmless smuttlewerks and its employees, contractors, officers, and directors from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, expenses (including attorneys fees) that arise from your use or misuse of the Application, violation of this EULA or violation of any rights of a third party. smuttlewerk reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate in asserting any available defenses.
13. Severability and Survival.
If any provision of this EULA is illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this EULA shall continue in full force and effect.
14. Injunctive Relief.
You agree that a breach of this EULA will cause irreparable injury to smuttlewerks for which monetary damages would not be an adequate remedy and smuttlewerk shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security, or proof of damages.
You agree to abide by German and U.S. and other applicable export control laws and agree not to transfer the Application to a foreign national, or national destination, which is prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You certify that you are not a person with whom smuttlewerk is prohibited from transacting business under applicable law.
16. Contact Information.
Should you wish to contact the smuttlewerks with any questions, complaints or claims with respect to the Application, you should visit the smuttlewerks website at http://smuttlewerk.com
17. Transfer of title for sales of Application
To the extent that applicable legislation allows the parties to a transaction to agree on where title passes for sales of property, you agree that title for sales of Application (software sold by electronic download) passes where smuttlewerk is located and that is in Federal Republic of Germany, EU.
18. Governing Law.
This Agreement and all disputes or controversies arising out of or relating to this Agreement shall be governed by, and construed in accordance with, the internal laws of the Federal Republic of Germany, EU, without regard to the laws of any other jurisdiction that might be applicable because of the conflicts of laws principles of the Federal Republic of Germany, EU.
We will make every reasonable effort to resolve any disagreements that you have with smuttlewerk. If those efforts fail, by using the Application, you agree that any claim, dispute, or controversy you may have against smuttlewerk arising out of, relating to, or connected in any way with this Agreement and/or the Application, shall be resolved exclusively by final and binding arbitration.
20. Entire Agreement.
This EULA constitutes the entire agreement between you and smuttlewerk with respect to the Application and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this EULA will be binding unless made in writing and signed by smuttlewerks. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder preclude further exercise of any other right hereunder. In the event of a conflict between this EULA, any applicable purchase, or other terms, the terms of this EULA shall govern.
This EULA is effective until terminated. Your rights under this EULA will terminate immediately and automatically without any notice from smuttlewerk if you fail to comply with any of the terms and conditions of this EULA. Promptly upon termination, you must cease all use of the Application and destroy all copies of the Application in your possession or control. Termination will not limit any of smuttlewerks other rights or remedies at law or in equity. Sections 9-13 and 17-18 of this EULA shall survive termination or expiration of this EULA for any reason.
22. Governing Language.
The original version of this EULA is written in English. Any translation of this EULA into any other language is done for local requirements and in the event of a dispute, inconsistency or discrepancy between English and any non-English versions, the English version of this EULA shall govern, to the extent not prohibited by local law in your jurisdiction.
smuttlewerk interactive UG (haftungsbeschränkt)
Updated May 2016