temptd Terms of Use and License Agreement

TERMS OF USE AND LICENSE AGREEMENT

By installing or using the application, software and services known as TEMPTD™ including any accompanying documentation, read-me files or other files (collectively, the “Application”), you individually or the entity on whose behalf you are acting (“You” or “Your”) agree that Your use of this Application is subject to these Terms of Use and License Agreement (“Agreement”). READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT PRIOR TO INSTALLING OR USING THE APPLICATION. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT DOWNLOAD THE APPLICATION OR YOU MUST DELETE THE APPLICATION FROM YOUR COMPUTER OR OTHER HARDWARE.

PLEASE NOTE THAT YOU MAY NOT USE, COPY, MODIFY OR TRANSFER THE APPLICATION OR ANY COPY, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.

1. The Application. The Application known as TEMPTD™ is owned by and is being provided to You by frog design Inc. and its affiliates (the “Company”). The Company may elect, in its sole discretion, to change, edit, or discontinue the Application at any time, without notice.

2. Ownership. By entering into this Agreement with Company, You agree that this is a license and not a sale of the Application. You agree that the Application, including but not limited to graphics, audio clips, user-generated content and editorial content, contains proprietary information and material, is owned by the Company and is protected by applicable intellectual property and other laws, including but not limited to trade secrets, copyright and patents. You agree to not use such proprietary information or materials in any way whatsoever except for use of the Application in compliance with the terms of this Agreement. Your rights to use the Application are limited to the terms specified in this Agreement, and nothing herein shall reduce or modify the Company’s ownership of the Application. The Company retains and reserves all rights not expressly granted to You herein.

3. License. Subject to Your acceptance and ongoing compliance with the terms of this Agreement, the Company grants You a personal, non-exclusive, non-transferrable, and limited license to install and use the Application on a single authorized computing device located in the United States and its territories or any other country to which this Program may be legally exported for non-commercial (e.g., not for resale, rental or the like), personal and entertainment purposes only, subject to the Usage Rules in Apple’s App Store Terms of Service (which are located at http://www.apple.com/legal/itunes/us/terms.html#SERVICE).Nothing in this Agreement grants You any rights to any related documentation, support, upgrades, maintenance or other enhancements to the Application, and neither Company nor Apple have any obligation to furnish any such services regarding this Application.

4. Restrictions. You may not make copies of the Application, modify or create derivative works of the Application, decompile or reverse engineer the Application or otherwise attempt to create the source code from the Application, or in any way attempt to, or encourage or assist any other person to, circumvent or modify any security technology or software that is part of the Application. You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to Your use of the Application. No portion of the Application may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, or distribute Application, in any manner, and You shall not exploit the Application in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You may not release the results of any performance or functional evaluation of any Application to any third party without prior written approval of Company for each such release.

5. Changes. The Company reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify the Application or this Agreement, and to impose new or additional rules, policies, terms, or conditions on Your use of the Application. Unless expressly stated to the contrary, such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as "Additional Terms") will be effective immediately and incorporated into this Agreement. Your continued use of the Application following the Company’s adoption and posting of any Additional Terms will be deemed to constitute Your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference. The most recent terms of the Application and Company’s Privacy Policy are always available for viewing at www.mobilewillpower.com and such posted terms will show the last date such terms were updated.

6. Access. You must provide at Your own expense the mobile device, computer, equipment, internet access, or wireless connection to access and use this Application.

7. Content. The Application may offer features that allow You to, among other things, submit, store, manipulate and distribute content (e.g., text) selected, edited or produced by You (collectively, "Individual Content"). You represent and agree that such Individual Content and any use by You of features that allow for the transmission, posting or sharing of Individual Content shall be Your sole responsibility, shall not infringe or violate the intellectual property or other rights of any other party, violate any laws, contribute to or encourage infringing or other unlawful conduct, or otherwise be obscene, defamatory, objectionable or in poor taste, and that You have obtained all necessary rights, licenses or clearances necessary to engage in such activities.

YOU SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY SHALL NOT BE LIABLE FOR ANY INDIVIDUAL CONTENT OR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT ARISING OUT OR RELATED TO YOUR USE OF THE APPLICATION, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY IS NOT RESPONSIBLE FOR ANY CONTACT OR INTERACTION BETWEEN YOU AND ANY OTHER USE OR USER OF THE APPLICATION, AND THAT YOU BEAR THE SOLE RISK OF TRANSMITTING THROUGH THE APPLICATION ANY CONTENT, INCLUDING INFORMATION WHICH IDENTIFIES YOU OR YOUR LOCATION.

8. Copyright/Digital Millennium Copyright Act

It is the Company’s policy to fully comply with the Digital Millennium Copyright Act (DMCA), which provides a procedure for notifying a service provider about intellectual property infringement by third parties. If You have a good faith belief that infringing activity is occurring in connection with the use of the Application, please provide written notice detailing the requisite information as set forth in Section 512(c)(3)(A) of the DMCA, which requires that a notification of claimed infringement must be by way of written communication provided to the designated agent, and that this writing includes substantially all of the following:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

For the purposes of the DMCA, Company’s registered agent is:

Legal name and address:
frog design Inc.
660 Third Street, 4th Floor
San Francisco, CA 94107

Designated Agent:
Attn: General Counsel

Address of Agent:
frog design Inc.
660 Third Street, 4th Floor
San Francisco, CA 94107

Telephone: (415) 442-4804
Fax: (415) 489-3188
Email for notice: legal@frogdesign.com

9. Privacy. The Company’s collection, use, sharing and transfer of any data generated, or any Individual Content You may provide, in connection with Your use of the Application is subject to the Company’s Privacy Policy, a copy of which can be viewed in this Application as well as at www.mobilewillpower.com.

10. Third Party Services. The Application may facilitate Your use of third party services not provided by the Company (e.g., Facebook®) or provide You opportunities to participate in certain promotional offers offered by third party partners ("Third Party Services"). The Company makes no representations or warranties regarding the performance of such Third Party Services, their compliance with applicable laws and regulations, or any other aspect of such Third Party Services. Your use of Third Party Services or participation in any service or promotional offer provided by a Third Party Service is at Your own risk, and You are solely responsible for complying with all legal and contractual requirements necessary for using Third Party Services.

11. Trademarks. All Company logos and trademarks used in connection with the Application (including FROG, FROG DESIGN, TEMPTD or the “Friedolin” frog character mark) are trademarks or registered trademarks of Company in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Application, including Third Party Services, are the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks. You may not use Company’s name or other trademarks or refer to Company or Company’s products directly or indirectly in any papers, articles, advertisements, sales presentations, news releases or releases to any third party without the prior written approval of Company for each such use.

12. Termination. This license is effective until terminated. You may terminate this license at any time by permanently deleting the Application from Your mobile computing device. This license automatically terminates if You fail to comply with its terms and conditions. You agree that, upon such termination, You will delete and permanently erase all copies of the Application.

13. Disclaimer of Warranties; Liability Limitations.

13.1 THE COMPANY DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME THE COMPANY MAY REMOVE OR SUSPEND THE APPLICATION AT ANY TIME. FURTHER YOU ACKNOWLEDGE THAT THE CONTINUED PROVISION OF THE APPLICATION MAY RELY UPON THE GENERAL OPERATION OF YOUR WIRELESS CARRIER AND/OR CONNECTIVITY TO THE INTERNET AND WORLD WIDE WEB. CERTAIN FACTORS NECESSARY FOR THE CONTINUOUS OPERATION OF THE CARRIER, INTERNET AND WORLD WIDE WEB ARE BEYOND COMPANY'S CONTROL.

13.2 YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE APPLICATION IS AT YOUR SOLE RISK. THE APPLICATION IS PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.

13.3 IN NO CASE SHALL THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE APPLICATION OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE APPLICATION, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR FEATURE POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE APPLICATION, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE COMPANY'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL COMPANY’S TOTAL AND CUMULATIVE LIABILITY UNDER THIS AGREEMENT OR ARISING IN ANY WAY FROM YOUR USE OF THE APPLICATION EXCEED THE PURCHASE PRICE PAID BY YOU FOR THE APPLICATION.

13.4 COMPANY DOES NOT REPRESENT OR GUARANTEE THAT THE APPLICATION WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND THE COMPANY DISCLAIMS ANY LIABILITY RELATING THERETO.

14. Waiver and Indemnity. BY USING THE APPLICATION, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS LICENSE, YOUR USE OF THE APPLICATION, YOUR INDIVIDUAL CONTENT OR ANY ACTION TAKEN BY THE COMPANY AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION BY YOU OF THIS LICENSE.

15. Governing Law and Venue. This Agreement is governed by the laws of the State of California, USA, without reference to its principles of conflicts of laws. You expressly agree that exclusive jurisdiction and venue for any claim or dispute with the Company relating in any way to Your use of the Software resides in the state or federal courts of San Francisco County, California, USA. You hereby irrevocably consent to the personal and exclusive jurisdiction and venue of these courts.

16. Third Party Software and Open Source Software. The Application includes certain software owned by third parties, including the Facebook Connect, which is subject to the terms located at http://www.facebook.com/terms.php, and some third-party “open source” software (“Open Source Software”). Specifically, the Application contains the following Open Source Software:

a. Ruby (© Yukihio Matsumoto and subject to the terms of the Ruby Licensed located at http://www.ruby-lang.org/en/about/license.txt )

b. Ruby On Rails (© David Heinemeier Hansson and subject to the terms of the Ruby Licensed located at http://www.ruby-lang.org/en/about/license.txt and MIT Licensed located athttp://www.opensource.org/licenses/mit-license.php )

c. Rails (© David Heinemeier Hansson and subject to the terms of the Ruby Licensed located at http://www.ruby-lang.org/en/about/license.txt and MIT Licensed located at "http://www.opensource.org/licenses/mit-license.php"http://www.opensource.org/licenses/mit-license.php )

d. RubyForge [json_pure v1.1.9] (© Florian Frank and subject to the terms of the Ruby Licensed located at http://www.ruby-lang.org/en/about/license.txt )

e. Rbyist-Aasm (© Scott Barron and subject to the terms of the MIT Licensed located at http://www.opensource.org/licenses/mit-license.php )

f. Rufus-schduler (©John Mettraux and subject to the terms of the MIT Licensed located at http://www.opensource.org/licenses/mit-license.php)

g. Facebook Rails (© Hoan Tonthat, Sltsim and T. Lucas and subject to the terms of the BSD License located at http://www.opensource.org/licenses/bsd-license.php)

h. Irs_process_scripts (© David Heinemeier Hansson and subject to the terms of the MIT Licensed located at http://www.opensource.org/licenses/mit-license.php)

i. restful –authentication (subject to the terms of the MIT Licensed located at http://www.opensource.org/licenses/mit-license.php)

j. Shoula (© Tammer Saleh and subject to the terms of the MIT Licensed located athttp://www.opensource.org/licenses/mit-license.php)

k. Will_paginate (© Mislav Marohnic and PJ Hyett and subject to the terms of the MIT Licensed located at http://www.opensource.org/licenses/mit-license.php)

l. Three20 (© Joe Hewitt and subject to the terms of the Apache License 2.0 located at http://www.apache.org/licenses/LICENSE-2.0)

n. ObjectiveResource (© Y Factorial, LLC and subject to the license located at http://github.com/yfactorial/objectiveresource/blob/ master/LICENSE)

17. Miscellaneous. If any provision of this Agreement shall be unlawful, void, or unenforceable, then that provision shall be deemed severed from this Agreement and shall not affect the validity or enforceability of the remaining provisions of this Agreement. This Agreement is the complete, final and exclusive statement of the agreement between the parties with respect to the subject matter hereof, and supersedes any proposal or prior contemporaneous agreement or communications between the parties (whether oral or written) relating to the subject matter hereof. This Agreement may only be modified in a writing signed by both parties. No failure or delay (in whole or in part) on the part of either party to exercise any right or remedy hereunder shall operate as a waiver thereof or affect any other right or remedy. Waiver of a breach shall not waive the right to enforce any subsequent breach under this Agreement. If You have any questions regarding this Agreement, You may contact us at the address appearing on this website at www.mobilewillpower.com.

18. Electronic Signatures and Contracts; Sufficient Legal Age. Your use of the Application includes the ability to enter into agreements electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY THIS LICENSE. YOU REPRESENT THAT YOU ARE OF A SUFFICIENT LEGAL AGE NECESSARY TO LEGALLY ENTER INTO AND BE BOUND BY LEGAL AGREEMENTS FORMED THROUGH THE APPLICATION. IF YOU ARE UNDER THE AGE OF 18, USE OF THE APPLICATION SHOULD ONLY OCCUR WITH THE INVOLVEMENT OF YOUR PARENT OR GUARDIAN.