Desert Botanical Garden User Agreement

End User License Agreement

Desert Botanical Garden Mobile Application

This Mobile Application End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and The Desert Botanical Garden, Inc. (“DBG,” “our,” “us” or “we”). This Agreement governs your use of the Desert Botanical Garden mobile application on the Android/Apple platform, (including all related documentation, the “Application”). The Application is licensed, not sold, to you.

BY DOWNLOADING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE AT LEAST 13 YEARS OF AGE OR OLDER AND HAVE PARENTAL CONSENT, OR OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD OR USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.

1. License Grant. Subject to the terms of this Agreement, DBG grants you a limited, non-exclusive, and nontransferable license to download, install, and use the Application for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the Application’s documentation and this Agreement.

2. License Restrictions & Prohibited Uses. You shall not:

a) copy the Application, or any of its images, content, features or functionality, except as expressly permitted by this license;

b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;

c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;

d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;

e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;

f) use the Application in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);

g) use the Application for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;

h) use the Application to send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards set out in this Agreement;

i) use the Application to transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation;

j) use the Application to impersonate or attempt to impersonate DBG, a DBG employee, another user, or any other person or entity (including, without limitation, by using email addresses, user names, social media names or handles associated with any of the foregoing);

k) use the Application to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Application, or which, as determined by us, may harm DBG or users of the Application, or expose them or us to liability;

l) use the Application in any manner that could disable, overburden, damage, or impair the Application or interfere with any other party’s use of the Application, including their ability to engage in real time activities through the Application;

m) use any robot, spider, or other automatic device, process, or means to access the Application for any purpose, including monitoring or copying any of the material or content on the Application;

n) use any manual process to monitor or copy any of the material or content on the Application, or for any other purpose not expressly authorized in this Agreement, without our prior written consent;

0) use any device, software, or routine that interferes with the proper working of the Application;

p) introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;

q) attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Application, the server on which the Application is stored, or any server, computer, or database connected to the Application;

r) attack the Application via a denial-of-service attack or a distributed denial-of-service attack; or

s) otherwise attempt to interfere with the proper working of the Application.

3. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. DBG reserves and shall retain its entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, including without limitation all common law rights and goodwill associated therewith, except as expressly granted to you in this Agreement.

4. Collection and Use of Your Information. You acknowledge that when you download, install, or use the Application, DBG may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Application is subject to our Privacy Policy [https://dbg.org/privacy/]. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

5. User Contributions. The Application contain messaging features, chat rooms, profiles or areas where you can contact the DBG or other users, or submit information in free text form, and use other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) information, content or materials (collectively, “User Contribution(s)”) on or through the Application.

All User Contributions must comply with the Content Standards set out in this Agreement.

Any User Contribution you post on the Application will be considered non-confidential and non-proprietary. By providing any User Contribution on the Application, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.

You represent and warrant that:

• • You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
  • All of your User Contributions do and will comply with this Agreement.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the DBG, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Website.

6. Monitoring and Enforcement. We have the right to:

• • Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
  • Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates this Agreement, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Application, the public, or could create liability for DBG.
  • Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
  • Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Application.
  • Terminate or suspend your access to all or part of the Application for any or no reason, including without limitation, any violation of this Agreement.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Application. YOU WAIVE AND HOLD HARMLESS DBG AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

However, we cannot review material before it is posted on or through the Application, and cannot ensure prompt removal of objectionable material after it has been posted or shared with others. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

7. Content Standards. These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:

• • Contain any material that is defamatory, obscene, vulgar, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, misleading, unlawful, or otherwise objectionable.
  • Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
  • Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
  • Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement and our Privacy Policy.
  • Be likely to deceive any person.
  • Promote any illegal activity, or advocate, promote, encourage or assist any unlawful, violent, immoral, or inappropriate act.
  • Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
  • Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
  • Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
  • Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
  • Involve any spam, scams, misleading metadata or thumbnails, or other deceptive practices that take advantage of other users of the Website.
  • Involve links to third party content, apps or websites that violate these Content Standards or this Agreement.
  • Involve phishing links or links that install malware or other harmful material.
  • Involve links or other materials or content that provide other users or visitors on the Application unauthorized free access to third party content.
  • Involve content that promotes third party services that artificially inflate metrics, like views, likes and subscribers.
  • Involve content that was previously removed by us, for whatever reason.
  • Involve content produced by person(s) who are/were restricted from using the Application, who are/were terminated under our Agreement, or any content that was removed by us for whatever reason.
  • Involve images, likeness, or personal information of any third-party, without their express written consent.

8. Copyright Infringement. If you believe that any User Contributions, or other content posted on or shared through our Application violates your copyright, please see our Terms of Use [https://dbg.org/terms/] for instructions on sending us a notice of copyright infringement. It is the policy of DBG to terminate the user accounts of repeat infringers.

Reliance on Information Posted. The information presented on or through the Application is made available solely for general information and entertainment purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Application, or by anyone who may be informed of any of its contents.

The Application may include content provided by third parties, including materials provided by other users, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by DBG, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of DBG. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

10. Geographic Restrictions. The Application is based in the state of Arizona in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Application content, features and functionality outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Application from outside the United States, you are responsible for compliance with local laws.

11. Updates. DBG may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that DBG has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:

a) the Application will automatically download and install all available Updates; or

b) you may receive notice of or be prompted to download and install available Updates.

You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.

We reserve the right to withdraw or amend the Application, and any service or material we provide on or through the Application, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Application is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Application, or the entire Agreement, to users.

To access the Application or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Application that all the information you provide on the Application is correct, current, and complete. You agree that all information you provide to register with the Application or otherwise, including, but not limited to, through the use of any interactive features on the is governed by our Privacy Policy [https://dbg.org/privacy/], and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Application or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time if, in our opinion, you have violated any provision of this Agreement.

12. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that DBG is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. DBG does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

13. Term and Termination.

a) The term of Agreement commences when you download the Application and will continue in effect until terminated by you or DBG as set forth in this Section 9.

b) You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.

c) DBG may terminate this Agreement at any time without notice if it ceases to support the Application, which DBG may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.

d) Upon termination:

i) all rights granted to you under this Agreement will also terminate; and

ii.) you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.

e). Termination will not limit any of DBG’s rights or remedies at law or in equity.

14. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DBG, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, DBG PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE OR DEVICE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

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.

15. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DBG OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:

a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.

b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR DBG WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

16. Indemnification. You agree to indemnify, defend, and hold harmless DBG and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.

17. Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.

18. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

19. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Arizona in each case located in Maricopa County, Arizona. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

20. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

21. Entire Agreement. This Agreement, our Privacy Policy (https://dbg.org/privacy/), and our Terms of Use (https://dbg.org/terms/) constitute the entire agreement between you and DBG with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.

22. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.

23. Your Comments and Concerns. The Application is operated by DBG. All notices of copyright infringement claims should be sent to the copyright agent designated in our Terms of Use (https://dbg.org/terms/) in the manner and by the means set out therein. All other feedback, comments, requests for technical support, and other communications relating to the Application should be directed to: [media@dbg.org].