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SMARTPOPS END USER AGREEMENT
IMPORTANT -- READ CAREFULLY: THIS END USER LICENSE AGREEMENT ("AGREEMENT") IS AN AGREEMENT BETWEEN LINCOLN SALES CORPORATION ("SmartPops") AND YOU (also referred to as "USER") FOR THE USE OF THE SMARTPOPS SOFTWARE APPLICATION ("SmartPops Software"). YOU MUST ENTER INTO THIS AGREEMENT IN ORDER TO DOWNLOAD THE SOFTWARE AND USE THE RESULTING SERVICES. SMARTPOPS RESERVES THE RIGHT TO CHANGE OR MODIFY THE TERMS AND CONDITIONS OF THIS LICENSE AND ANY OF THE POLICIES GOVERNING THE SERVICES AT ANY TIME IN ITS SOLE DISCRETION WITHOUT DIRECT NOTICE TO YOU. YOUR CONTINUED USE OF THE SOFTWARE CONSTITUTES YOUR ACCEPTANCE OF ANY SUCH CHANGES. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT INSTALL THE SMARTPOPS SOFTWARE.
2. Use of the Software.
You acknowledge and agree that you shall not (a) modify or create any derivative works of the Licensed Software or documentation; (b) attempt to disable the Licensed Software by any means or in any manner; (c) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Licensed Software (except to the extent applicable laws specifically prohibit such restriction); (d) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer or disclose the Licensed Software to any other party; or (e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Licensed Software or the Product.
3. Proprietary Rights.
You acknowledge and agree that SmartPops owns all right, title, and interest in and to the Licensed Software. You agree that you shall take no action that might jeopardize, limit, or interfere in any way with SmartPops' ownership or other rights regarding the Licensed Software. You acknowledge that the Licensed Software is protected by copyright and other intellectual property laws, and by international treaties. You further acknowledge and agree that the remaining portions.
4. Auto Update.
Due to the ever-changing nature of software distributed on the Internet, SmartPops has included an auto update feature to ensure that you have the most recently released version of the SmartPops software. You acknowledge that SmartPops or parties appointed by SmartPops may from time to time provide programming fixes, updates and upgrades to you, including automatic updates to SmartPops, through automatic electronic dissemination and other means. You consent to such automatic updates and agree that the terms and conditions of this Agreement will apply to all such updates. Unless explicitly stated otherwise, any new features that augment or enhance the current Software, including the release of new SmartPops properties, shall be subject to terms of this License. If you should elect not to have your software updated at any future time, SmartPops shall not be responsible for any incompatibilities that may arise on your system. IF YOU WISH TO UNINSTALL THIS SOFTWARE OR ANY OF ITS UPDATES, SMARTPOPS HAS PROVIDED AN UNINSTALL FEATURE.
5. Software Conflicts.
Conflicts may occur with other software applications that may already be installed on your computer. The SmartPops software will report back to our servers what applications may be running on your system and will resolve these conflicts whenever possible. This will make our software more reliable and provide you with products and services that are compatible with your current system settings.
6. Third-Party Links.
SmartPops may provide, links to World Wide Web sites or other Internet resources. Any third-party sites to which SmartPops may link are not under the control of SmartPops and SmartPops shall not be responsible or liable for any information, data, communications or materials available on such third-party sites.
To further enhance your media viewing experience, SmartPops reserves the right to run advertisements and promotions based on URLs and/or search terms you enter when navigating the Internet. This service is offered as a benefit to our members to obtain useful and informative information about entertainment or other related products and services offered by our sponsors. We do not transmit or collect your browsing activity and do not store any information that records your browsing behavior. We only collect aggregate statistics about the URLs and search terms you enter. We do not build profiles of our users or attempt to correlate demographic or personal information. By accepting the terms of this License, you agree that we have the right to run such advertisements and promotions without compensation to you. The timing, frequency, placement and extent of advertising within the pages comprising your SmartPops account is subject to change and shall be determined by us in our sole discretion. Your business dealings with, or participation in promotions of, advertisers found on or through SmartPops, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the advertiser. You agree that SmartPops will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers within the SmartPops network.
9. Limitation of Liability.
THE LICENSED SOFTWARE IS BEING DELIVERED TO YOU "AS IS" AND SMARTPOPS MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. NEITHER SMARTPOPS NOR ITS MEDIA, CONTENT OR OTHER SUPPLIERS WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING SMARTPOPS SOFTWARE OR SUPPLEMENTAL SOFTWARE. SMARTPOPS AND ITS SUPPLIERS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT WILL SMARTPOPS OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR SAVINGS, LOSS OF GOODWILL, LOSS OF DATA OR OTHER INTANGIBLE LOSSES RESULTING FROM YOUR USE OF OR YOUR INABILITY TO USE DOWNLOADED SOFTWARE EVEN IF A SMARTPOPS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, OR THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST AND THEREFORE, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
10. Governing Law and General Provisions.
This Agreement will be governed by the laws of the State of California, U.S.A., excluding the application of its conflicts of law rules. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations. This Agreement shall automatically terminate upon failure by you to comply with its terms. This Agreement may only be modified in writing signed by an authorized officer of SmartPops.
12. Legal Compliance.
You agree that you shall fully comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Licensed Software and the Product.
You agree to indemnify and hold SmartPops, its successors, assigns, subsidiaries, affiliates, officers, directors, agents, and employees harmless from any claim or demand, including reasonable attorneys' fees, made by any third-party due to or arising out of your failure to comply with this Agreement or your violation of any applicable law, rule or regulation, or your infringement of the rights of any other party.
This Agreement shall be effective unless and until terminated. You acknowledge and agree that SmartPops may, without prejudice to any other rights under this Agreement or applicable law, terminate the license granted in this Agreement at any time without notice to you if you fail to comply with any of the terms and conditions of this Agreement. Upon termination of this Agreement, all rights granted to you in this Agreement shall immediately terminate.
(a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof;(b) This Agreement and any dispute arising out of it shall be governed by the laws of the State of California, U.S.A.; (c) Unless otherwise agreed in writing, all disputes relating to this Agreement (excepting any dispute relating to intellectual property rights) shall be subject to final and binding arbitration in Los Angeles County, California; (d) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods; (e) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect; (f) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof; (g) The provisions of this Agreement that require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination; (h) you may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. (i) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors, and assigns; (j) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay), or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
16. US Government Restricted Rights Legend.
The licensed Software and any documentation provided are commercial in nature and have been developed exclusively at private expense. Use, duplication or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7103 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights section at 48 CFR 52.227-19, and any other successor regulations, as applicable.
17. Acknowledgment of Agreement.
I acknowledge and understand that downloading and using the SmartPops Licensed Software constitutes an acceptance of the terms and conditions of this End User License Agreement. I further acknowledge and understand that refusing to accept these terms and conditions constitutes a rejection of the SmartPops Licensed Software.