Effective Date: May 9, 2023 – Update to November 30, 2022
BY DOWNLOADING THE POPPYNOTES APPLICATION AND ANY UPDATE THERETO (AS PERMITTED HEREIN) YOU HAVE THE OPPORTUNITY TO REVIEW THIS EULA PRIOR TO USE. YOU MUST AFFIRMATIVELY CHOOSE THE “ACCEPT” BUTTON REGARDING THE EULA BEFORE THE POPPYNOTES APPLICATION WILL FUNCTION. BY “ACCEPTING” THE EULA, THEREFORE, YOU AGREE TO BE BOUND BY ALL THE TERMS STATED HEREIN. IF YOU DO NOT AGREE WITH ANY ONE OF THE EULA TERMS, NO LICENSE SHALL ISSUE TO YOU FOR THE USE OF THE POPPYNOTES APPLICATION. YOU MUST DELETE THE POPPYNOTES APPLICATION DOWNLOAD AND YOU ARE PROHIBITED FROM USING THE POPPYNOTES APPLICATION OR ITS SERVICES IN ANY MANNER.
- GRANT OF LICENSE:
Poppy grants to You a limited, non-transferable, non-exclusive, non-sublicensable, non-assignable, immediately (and without notice) revocable license to use the Poppynotes Application and the Services on Apple-branded Products You own or control (the “Device(s)”) and as permitted by the Apple Usage Rules set forth in the Apple Media Services Terms and Conditions (“Apple Usage Rules”), including other Apple accounts associated with You via Family Sharing, strictly and solely for Your personal, non-commercial use (Your “License”). Your License is subject to this EULA.
1.1 Except as otherwise provided for herein, You shall NOT in any manner whatsoever: edit, remove, or alter in anyway the artwork or design of any of the Services; or intellectual property notifications (including, but not limited to, the removal of the poppynotes™ trademarked name or other intellectual property notices and indicators therein).
1.2 You shall NOT copy, loan, sell, assign, rent, lease, publish, redistribute, license, sublicense or otherwise make available the Poppynotes Application or its Services to any third party except as permitted under this EULA.
1.3 You shall NOT: undertake, cause, assist in, permit or authorize the modification, creation of derivative works from, translation, reverse-engineering, decompiling or disassembling of the Poppynotes Application and/or its Services (or any part of it or their underlying software), or make any attempt to access the source code of the Poppynotes Application and its Services.
1.4 You shall be aware of and comply with all applicable local, state, U.S. Federal and/or Foreign laws and regulations in connection with Your use of the Poppynotes Application.
1.5 You represent and warrant that You are not located in a country that is subject to a U.S. Government embargo; or that You have been designated by the U.S. Government as a “terrorist supporting” country.
1.6 You and Poppy (collectively, the “Parties”) acknowledge that Apple, Inc. and the App Store (collectively, “Apple”) is not a party to this EULA and is not bound by any provisions or obligations with regard to the EULA, such as warranty, liability, maintenance and support regarding the Poppynotes Application. Poppy, not Apple, is solely responsible for the Poppynotes Application and the content thereof.
1.7 This EULA may not provide for terms or use for the Poppynotes Application that are in conflict with the latest Apple Usage Rules as of the EULA’s Effective date (Apple Media Services Terms and Conditions). Poppy acknowledges that it has reviewed the Apple Usage Rules and this EULA is not in conflict with them. Should any conflict arise between the terms of the EULA and the Apple Usage Rules, the Apple Usage Rules shall prevail.
1.8 Except as otherwise provided herein, Poppy reserves the right at its sole discretion to withdraw or vary the Poppynotes Application and its Services, and/or to suspend or terminate Your access to the Poppynotes Application at any time without notice, and Poppy shall not be liable to You if the Poppynotes Application or the Services are unavailable, either in whole or part, at any time for any reason whatsoever.
1.9 This EULA governs any upgrades provided by Poppy that replace or supplement Your original download of the Poppynotes Application, unless such upgrade is accompanied by its own terms.
2.1 The Poppynotes Application is software that provides background designs for texts and emails. Subject to the terms of this EULA, using the Poppynotes Application allows You to personalize its poppynotes™ backgrounds with Your own text, annotations, messaging, images and photographs (“Your Content”) creating Your customized “Poppynotes ™” and deliver them electronically over the internet via SMS, Email and/or shared through Your Device(s). You may physically print and deliver Your Poppynotes.™ You may adjust the size of the export You wish to print by proportionally adjusting its physical dimensions. As between You and Poppy, You retain all rights in Your Content, except as otherwise provided in this EULA.
2.2 Because Your Content may be shared and viewed through third-party websites, it is considered non-confidential and non-proprietary. When You create Your Content through the Poppynotes Application You thereby represent and warrant that:
2.2.1 Your Content does not and shall not infringe any rights, including but not limited to, copyright, trademark, trade secret or any moral rights, of any third-parties; and if it incorporates work of third-parties, that You have all licenses and permissions necessary to do so;
- Your Content does not violate any applicable law, regulation or rule;
- Your Content is not obscene, lewd, violent, harassing, libelous, or abusive to any person, including offensive content regarding race, national origin, gender, sexual preference, or physical handicap (as determined by Poppy); and
- Your Content does not violate or link to material that violates any provision of this EULA or any applicable law or regulation.
2.3 Any violations of the above provisions in this section may result in termination of Your License to use the Poppynotes Application at Poppy’s sole discretion. You use Poppynotes Application at Your own risk.
- YOUR APPLE AND POPPYNOTES APPLICATION ACCOUNTS:
3.1 Freemium and Subscription: The Poppynotes Application is considered a ‘Freemium’ application on the Apple® App Store®. A ‘Freemium’ application means there is no cost to download the Poppynotes Application and use its limited no-cost Services. Poppy also offers full access of its Services with a paid in-application subscription purchased through the App Store® (the “Services Subscription”). You may un-subscribe from Your Services Subscription at any time. If You un-subscribe from the Services Subscription Your use of the Poppynotes Application will revert to the base ‘freemium’ state that offers the limited no-cost Services.
3.2 Financial Purchasing: All financial processing of payment and Services Subscription management is done through the App Store® using Your individual Apple ID and Apple certification on Your Devices. Poppy does not collect, store, or otherwise have access to Your financial information disclosed in Your Services Subscription purchase and has no liability whatsoever for Your financial information used in the purchase of a Services Subscription.
3.3 Apple ID: To download, access, and use the Poppynotes Application and its Services You will need to have an Apple® ID. Your Apple® ID is valuable, and You are responsible for maintaining its confidentiality and security. Neither Poppy, nor Apple is responsible for any losses arising from unauthorized use of Your Apple ID. Immediately contact Apple should You suspect that Your Apple ID has been compromised.
- LIMITED WARRANTY, REMEDIES AND DAMAGES FOR SERVICES SUBSCRIPTIONS ONLY:
4.1 Poppy uses reasonable care and skill to provide the Poppynotes Application and its Services in functioning order. Should You purchase a Services Subscription, Poppy warrants for a 30-day period from the date You purchase Your Services Subscription that, when properly installed and used under normal conditions, including sufficient Device and internet connections suitable for operation, the Poppynotes Application and Your Services Subscription will perform substantially as represented. Poppy makes this limited warranty to Service Subscription purchasers only.
4.2 In the event there is a failure of the Poppynotes Application to conform to its applicable warranty, You (if a Service Subscription purchaser) shall first, and as a prerequisit to any refund, provide Poppy with written notice of the problem and receive a correction or replacement of the Poppynotes Application. Poppy shall have the sole discretion as to whether it will correct or replace the Poppynotes Application. Poppy shall have thirty (30) calendar days to provide You with any correction or replacement from the date of Your written notice.
4.3 Any claim by You must be made within the applicable 30-Day warranty period. All warranties cover only defects arising under normal use and do not include malfunctions or failure resulting from: lack or failure of internet, lack or failure of mobile provider, misuse, abuse, neglect, alteration, problems with electrical power, acts of nature, unusual temperatures or humidity effecting Device, improper installation, or damage, as determined by Poppy, to have been caused by You.
4.4 Any applicable limited warranties on the Poppynotes Application are granted only to You, as a Services Subscription purchaser, and are non-transferable.
4.5 If Poppy is unable to provide a replacement or corrections to the Poppynotes Application, , You (as a Services Subscription purchaser) may notify Apple of the Poppynotes Application failure by including all notices and communications with Poppy on the issue, and Apple may refund to You the purchase price of Your Services Subscription for the time Your Services Subscription was unavailable to You. You shall not be entitled to any other monetary damages from Apple or Poppy. Apple shall have no other warranty obligation whatsoever with respect to the Poppynotes Application.
- Disclaimer of WARRANTIES, LIMITATION OF LIABILITY:
5.1 OTHER THAN AS SET FORTH IN THIS EULA AND TO THE EXTENT ALLOWED BY LAW, POPPY MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU AGREE TO USE THE POPPYNOTES APPLICATION AND ITS SERVICES AT YOUR OWN RISK. THE POPPYNOTES APPLICATION AND ITS SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. POPPY DOES NOT REPRESENT OR WARRANT THAT THE AVAILABILITY OR USE OF THE POPPYNOTES APPLICATION OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE. POPPY DOES NOT ACCEPT RESPONSIBILITY OR LIABILITY FOR: LOSS OF DATA ON YOUR DEVICE(S); FAILURE OF YOUR MOBILE NETWORK OR INTERNET PROVIDER; OR, ANY OTHER LOSSES OR DAMAGE SUFFERED AS A RESULT THEREOF.
5.3 POPPY, OUR DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, BREACH OF STATUTORY DUTY OR OTHER TORT) OR OTHERWISE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS, DAMAGE, COSTS OR OTHER CLAIMS, HOWSOEVER CAUSED OR ARISING, INCLUDING WHERE ARISING, DIRECTLY OR INDIRECTLY FROM ANY USE BY YOU OF THE POPPYNOTES APPLICATION AND SERVICES, YOUR FAILURE OR DELAY IN PERFORMING ANY OBLIGATION UNDER THIS EULA, OR ANY OTHER CAUSES BY MATTERS BEYOND POPPY’S REASONABLE CONTROL.
5.4 Poppy, not Apple, is responsible for addressing any claims by You or any third-party relating to the Poppynotes Application and Your possession and/or use of the Poppynotes Application, except as otherwise provided for herein. The EULA may not limit Poppy’s liability to You beyond what is permitted by applicable law.
- NO MAINTENANCE OR SUPPORT
Except as otherwise provided for herein, Poppy is not obligated to provide any maintenance, technical or other support for the Poppynotes Application or its limited no-cost ‘freemium’ Services. In the case malfunctions arise within the Poppynotes Application, please notify us at:
Representative: Poppy and Pit, LLC
23890 Copper Hill Dr, Ste. 186
Valencia, California 91354
E-mail Address: firstname.lastname@example.org
(subject line: Poppynotes App Support)
- YOUR INDEMNIFICATION OF POPPY AND APPLE
7.1 Under no circumstances shall Poppy be liable in any way for any of Your Content sent, shared, posted, or delivered by You to third-parties; including but not limited to, for any errors or omissions in any of Your Content, or for any loss or damage of any kind incurred as a result of the use of any of Your Content, in any manner whatsoever.
7.2 You shall indemnify defend and hold Poppy harmless from all claims, judgments, liabilities, expenses, or costs of third-parties arising from Your breach of this EULA, sharing Your Content on third-party services, or any other acts or omissions otherwise regarding Your Content, including paying for Poppy’s legal counsel of their choosing, reasonable defense costs, mediation costs and fees, arbitration fees and experts’ fees.
7.3 You agree to indemnify, defend and hold Apple and their subsidiaries and affiliates, harmless from any third-party claim or demand, including reasonable attorneys’ fees, due to, or arising out of, any act or omission by You relating to the Poppynotes Application or Services, including without limitation, any event, SMS, MMS or other form of text message: sent, promoted through the Poppynotes Application, or publicly distributed through a third-party service on the web by You or on Your behalf; any content posted to or transmitted through the Poppynotes Application, or publicly distributed through a third-party service on the web by You or on Your behalf; Your use of or connection to the Poppynotes Application, Your violation, or any violation done on Your behalf of the EULA, or Your violation of any rights of another.
- 13 YEARS OF AGE OR OLDER:
The Poppynotes Application and its Services do not intentionally address, solicit or otherwise market to, anyone under the age of thirteen. Poppy does not knowingly solicit or collect any information about users who may be under the age of 13. You must be age 13 (or equivalent minimum age in Your Home Country, as set forth in the Apple® ID creation process) to use the Poppynotes Application and its Services. Please do not provide Poppy with any personal information or user data if You are under the age of 13. Except as provided herein, if Poppy discovers that a person under the age of 13 has provided Poppy with user data, Poppy will immediately delete the data from its servers. If You are a parent or guardian and You are aware that Your child has provided Poppy with user data, please contact Poppy immediately. Unless the access to the Poppynotes Application by a person under the age of 13 meets all qualifications set forth in the Apple Usage Rules; or, Poppy has a legal obligation to keep it, Poppy shall terminate the underage person’s access to the Poppynotes Application and delete their data thereon.
- INTELLECUTUAL PROPERTY RIGHTS:
9.1 Poppy is the owner, and maintains all ownership, of all intellectual property rights to the Services and the Poppynotes Application; none of which are transferred to You by this EULA. All functionality, operation and materials associated with the Poppynotes Application and its Services (the “Poppy Intellectual Property”), are, to the extent allowable by law, protected by intellectual property rights owned by Poppy. Poppy’s Intellectual Property includes, but is not limited to:
- the poppynotes™ background images, illustrations, design layouts, logos, trademarks, trade dress, and copyrights contained on the Poppynotes Application; and
- the software used in the Poppynotes Application, including but not limited to its design and development of the Poppynotes Application, and the functionality and operation of the Poppynotes Application itself.
9.2 Poppy reserves all its rights to the Poppy Intellectual Property rights worldwide. You are not allowed to remove any copyright, trademark or other intellectual property notices contained on the Poppynotes Application or in the Services or from any copies or printed items created of the material from the Services.
9.3 You and Poppy acknowledge that Apple will not be held responsible in the event there is any third-party claim of infringement of intellectual property rights by the Poppynotes Application or Your possession and use of its Services.
- THIRD-PARTY SERVICES: You must comply with all applicable third-party terms of agreement when using the Poppynotes Application. For example, You must be in compliance with Your wireless data service agreement when using the Poppynotes Application. Further, when sharing Your Content on a Poppynotes™ through social media platforms, You are responsible for familiarizing Yourself with the privacy policies of each specific platform, as well as abiding by their Terms and Conditions of Use.
- THIRD-PARTY BENEFICIARY: You and Poppy acknowledge and agree that Apple and Apple’s subsidiaries, are third party beneficiaries of the EULA, and that, upon Your acceptance of the EULA, Apple will have the right (and will be deemed to have accepted that right) to enforce the EULA against You as a third-party beneficiary thereof.
- CHANGES TO THESE TERMS:
Poppy may modify this EULA (and any policies or agreements referenced herein) at any time. Poppy will post the most current version of the EULA on our website poppynotes.com. Poppy will provide You with reasonable advance notice of any change to the EULA that, in its sole determination, materially adversely affect Your rights or Your use of the Poppynotes Application and Services. Poppy may provide You this notice via a push notification on the Poppynotes Application; or by email if You have provided an address by subscribing to Poppy’s mailing list or when creating an In-App Account within the Poppynotes Application. It is Your responsibility to understand the EULA prior to using the Poppynotes Application. By continuing to use the Poppynotes Application and its Services after any revised terms become effective, You agree to be bound by the terms in the modified EULA.
- CHANGES TO THE SERVICE:
Poppy may add, change or remove features or functionality to the Poppynotes Application and its Services; modify or introduce limitations or additional features; or discontinue the Services altogether at any time. If Poppy discontinues the Service You are using during Your paid subscription period, Poppy will provide for Your subscription until its next date of renewal at which time it will be cancelled. If Poppy is unable to provide any paid Services Subscription through the duration of a subscription period then it will authorize Apple to provide a pro-rata refund to You of fees prepaid for the remaining period of Your subscription.
- TERM AND TERMINATION
The EULA, subject to the “survivability” clause herein, is effective until terminated by You or Poppy. Poppy may revoke and terminate Your License under the EULA at its sole discretion. Your License and rights under this EULA shall terminate automatically if You fail to comply with any of its terms. Poppy shall have an irrevocable right to the termination of Your Services Subscription at its sole discretion should You be found in Poppy’s opinion to have violated the EULA. For the avoidance of doubt, no refund would be due for any Services Subscription should Poppy exercise its right to terminate a subscription.
- SEVERABILITY:If any provision of this EULA is or becomes invalid, unenforceable, or non-binding, You shall remain bound by all other provisions herein. In such event, such invalid provisions shall nonetheless be enforced to the fullest extent permitted by applicable law, and You will agree to accept a similar effect as the invalid, unenforceable or non-binding provision, given the contents and purpose of this EULA.
- ASSIGNMENT:You shall not assign Your rights under the EULA. Poppy may transfer or assign any of its rights and obligations under the EULA in whole or in part, at any time with or without notice to You.
- GOVERNING LAW – ATTORNEYS FEES:The EULA shall be construed and interpreted under the laws of the State of California, United States of America, without regard to California’s conflict or choice of law provisions. You consent to the personal jurisdiction and venue of the courts of the State of California, including the Federal courts, located in California’s Central Districts or North Valley District, at Poppy‘s sole discretion, in any action brought to enforce, or otherwise relating to, this EULA. In the event of a dispute arising out of this EULA or the Parties’ obligations or actions hereunder, the prevailing party thereto shall be entitled to an award of actual attorneys’ fees and costs, including expert witness expenses.
The following rules of interpretation shall be applied in interpreting the EULA:
18.1 The headings used in this EULA are for reference and convenience only and will not enter into the interpretation of this EULA;
18.2 As used in this EULA, the term “including” will always be deemed to mean “including, without limitation;” and,
18.3 This EULA shall not be construed against either Poppy or You as the drafter of this AGREEMENT.
18.4 This English language version of the EULA shall control over any other language interpretation of the EULA.
- CONSENT TO USE OF DATA:
You agree that Poppy may collect and use technical data and related information; including but not limited to technical information about Your device, system and application software, and peripherals—that is gathered periodically to help Poppy provide software updates, product support, and other services to You (if any) related to the Poppynotes Application. Poppy may use this information, as long as it is in a form that does not personally identify You, to improve its products, or to provide services or technologies to You.
The provisions of Sections 1.1-1.9, 2.2 and its subsections, 2.3, 3.2, 4 and its subsections, 5 and its subsections, 7 and its subsections, 9 and its subsections, 10, 12, and 14-21 and all their subsections shall survive any termination of the EULA.
- ENTIRE AGREEMENT:
The EULA constitutes the entire agreement between You and Poppy with respect to the Poppynotes Application and its Services. The EULA supersede any prior representations, agreements, or understandings between You and Poppy, whether written or oral, with respect to the Poppynotes Application and its Services including previous versions of the EULA.
Poppy and Pit LLC
23890 Copper Hill Drive, Ste. 186
Valencia, CA 91354 United States of America