IMPORTANT:  CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS EULA. THIS EULA IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND TEXAS PARKS AND WILDLIFE FOUNDATION (“THE FOUNDATION” OR “WE”) PERTAINING TO THE [WILD THUMB] MOBILE APPLICATIONS (IOS AND ANDROID) AND ANY UPDATES, UPGRADES, NEW VERSIONS, ADD-ON MODULES, ENHANCEMENTS, FEATURES, EDITIONS OR COMPONENTS FOR SUCH SOFTWARE (COLLECTIVELY, THE “SOFTWARE”) AND ANY ASSOCIATED MEDIA, MANUALS, PRINTED MATERIALS AND “ONLINE” OR OTHER ELECTRONIC OR WRITTEN DOCUMENTATION (COLLECTIVELY, “DOCUMENTATION”).

1. ELECTRONIC SIGNATURE CONSENT; END USER ACCOUNT SET UP
   1. The Software and Documentation and other materials provided by the Foundation are made available to you from the Foundation and/or its authorized resellers (including Apple and Google) on the express condition that you accept, without modification, and abide by each term and condition of this EULA. Your access and use of the Software and Documentation is conditioned upon your continued compliance with each term and condition of this EULA. The Foundation reserves the right to change the terms of this EULA any time by reasonable notice, including without limitation by posting revised terms on the App Store or Android Store page or the Foundation’s website (which shall constitute reasonable notice), and such amended terms shall be binding upon you upon posting.
   2. By accessing and using the Software and Documentation, you agree to conduct each transaction by electronic means and the Foundation and you hereby state that electronic signatures shall have the same force and effect as an original signature with respect to this EULA and all written agreements entered into between you and the Foundation. YOU WILL NOT BE PERMITTED TO ACCESS AND USE THE SOFTWARE AND ANY DOCUMENTATION WITHOUT FIRST READING AND ACCEPTING THE TERMS AND CONDITIONS OF THIS EULA.
   3. Access to certain features of the Software will require an account to be first established and activated. You may sign up for an account by completing the installation instructions and following the directions to submit a request to become an authorized end user and set up an account. When you register for an account, you will be asked to create a unique user name and password, and enter a valid email address for your account on the account set up page. If you are eligible, your account may be activated. If you are not eligible, your account will not be activated and you will not be permitted to access the features of the Software. The Foundation reserves the right to decline to activate an account for any person for any reason.
   4. If your account is activated, you will be permitted to log in, view, and use the features of the Software for which you have been registered as a user. You must have a password to access the Software via your account. You are responsible for maintaining the secrecy of your password and protecting against unauthorized use of your password. You also are responsible for all activities that occur under your password and user name on your account made by you or others. You will immediately notify the Foundation if your password is lost, stolen, disclosed to an unauthorized third party or otherwise has been compromised, or if there is any other breach of security. You must ensure that you exit from your account at the end of each session.
   5. In consideration of your access and use of the Software, you agree to: (i) provide true, accurate, current, and complete information about yourself as prompted by our account activation form; and (ii) maintain and promptly update such account information to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such account information is untrue, inaccurate, not current or incomplete, we reserve the right to suspend or terminate your account and refuse any and all current or future use of the Software or any portion thereof.
   6. You must be 18 years of age, or the age of majority in your state, to set up an account. Individuals under the age of 18, or applicable age of majority, may utilize the Software only with the involvement of a parent or legal guardian, under an end user account set up by such parent or legal guardian, subject to this EULA.
   7. You acknowledge and agree that you are solely responsible for any data, information or content processed or used by you or on your behalf by a user authorized by you to your end user account. You agree that the Foundation may use any such data, information or content in any manner that it deems necessary or appropriate in the performance of its obligations under this EULA. You authorize the Foundation and its affiliates, service providers and licensors, without compensation to you or others, to copy, store, modify, or otherwise use such data, information or content in furtherance of the rights and obligations set forth in this EULA throughout the world in any format or media (whether now known or hereafter created) for the duration of any copyright or other rights therein.
2. NON-EXCLUSIVE LICENSE.
   1. Use. Subject to all terms and conditions of this EULA, the Foundation grants to you a personal, non-transferable, non-exclusive license to install a copy of the Software and Documentation on your mobile devices and to access and use the Software in a manner not inconsistent with the Documentation for your own internal personal use (and not for resale or commercial purposes).
   2. Reserved Rights. No additional or different rights are granted to you, either expressly or by implication. The Foundation retains all rights not expressly granted to you, and nothing in this EULA constitutes a waiver of the Foundation’s rights under copyright laws or any other federal or state law or treaty.
3. COPYRIGHT/TRADEMARKS: All right, title and interest in and to the Software (including all features, content (including plant databases) and components thereof) and the Documentation and all associated copyrights and intellectual property rights are and remain owned solely and exclusively by the Foundation and its licensors. The Software and Documentation are protected by the United States copyright and intellectual property laws, regulations, ordinances and international treaties. You agree to use best efforts and take all reasonable steps to protect the Software and Documentation from unauthorized use, disclosure or distribution. This EULA and any license granted hereunder shall not constitute a sale of the Software and Documentation and you shall not receive title to the Software and Documentation, or any of the media or any copies of the Software and Documentation delivered to or made by you, or any intellectual property rights therein.
4. OTHER RESTRICTIONS.
   1. This license does not include; (i) any resale or commercial use of the Software (or any contents or components thereof) and any collection and use of any plant images, databases, and descriptions contained in the Software; (ii) any derivative use of the Software or its contents; or (iii) any downloading or copying of account information for the benefit of another person or business, or any use of automated data mining tools such as “spiders,” “robots,” or similar data gathering and extraction tools. You may not frame or utilize framing techniques to display or enclose the Software or any contents thereof or any trademark, logo, or other proprietary information (including images, text, page layout, or form) of the Foundation without the Foundation’s express written consent. You may not alter, modify, translate, port or create derivative works of the Software and/or Documentation. You are expressly prohibited from selling, renting, leasing, outsourcing, setting up a B2B or B2C hub or using in a service bureau environment, or otherwise commercially exploiting the Software and the Documentation in any way. You will not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software and/or Documentation. You are not authorized to use the Software for comparison with, or benchmarking against, similar software. Notwithstanding anything to the contrary in this Agreement, in no event shall you be entitled to access, use, have disclosed or otherwise obtain any copies of the source code for the Software, and the Foundation has not, and will not, be obligated to disclose or provide in escrow, outright or otherwise, any such source code to you or any third party.
   2. Any modifications, improvements, enhancements, alterations, customizations or derivative works of the Software, whether authorized or not, made by you or a third party shall be the sole and exclusive property of the Foundation and you hereby assign all of your right, title and interest therein to the Foundation. You hereby grant the Foundation and/or its agent the right to audit your use of the Software and Documentation pursuant to this EULA and all books and financial records related to such use.  If so requested by the Foundation, you will conduct a self-audit of your use of the Software and Documentation, provide such audit results to the Foundation, and certify in writing to the Foundation your compliance with this EULA. You further authorize the Foundation and its service providers to remotely access the device on which the Software is installed and collect usage information to facilitate compliance, to push Software updates and to perform verification, notification and security services related to the Software. You consent to the collection of your user name and email from Apple and Google by the Foundation and its service providers in connection with your download and use of the Software.
   3. You may not combine or distribute the Software or any derivative work thereof with Open Source Software (as defined below) or with software developed using Open Source Software (e.g., tools) in a manner that subjects the Foundation or its licensors or any portion of the Software provided by the Foundation or its licensors hereunder or any derivative work thereof to any license obligations of such Open Source Software. “Open Source Software” means any software licensed under terms requiring that other software combined or distributed with such software: (i) be disclosed or distributed in source code form; or (ii) be licensed on terms inconsistent with the terms of this EULA.
   4. This license does not grant any rights to, reproduce and/or otherwise use the Software (or any contents or components thereof) and/or Documentation in any manner for purposes of training artificial intelligence technologies to generate text, including without limitation, technologies that are capable of generating works in the same style or genre as the Software, unless you first obtain the Foundation’s specific and express permission. You do not have the right to sublicense others to reproduce and/or otherwise use the Software and/or Documentation in any manner for purposes of training artificial intelligence technologies to generate text without the Foundation’s specific and express permission.
5. TRADE SECRETS/LIMITED ACCESS: The Software and Documentation embody proprietary technology and valuable trade secrets and confidential information of the Foundation, which are vital to the mission and operation of the Foundation and whose value depends upon them not being generally known. You agree to hold the Software and Documentation in strict confidence and take all necessary steps to ensure that access to the Software or Documentation stored on your device is not provided to any person or entity other than you. You further represent to the Foundation that you will download and use the Software only on devices that you own or control exclusively (and not devices shared with your employer or other businesses).
6. NO REVERSE ENGINEERING: You may not disassemble, decompile, reverse engineer or otherwise attempt to derive source code for the Software or any portion of the Software, or request or authorize any other person or entity to do so for any reasons whatsoever. In countries where a right to reverse engineer is provided by law unless information is available about the Software in order to achieve interoperability, functional compatibility or other objectives, you agree to submit a detailed written proposal to the Foundation or its authorized reseller concerning your need for such information before engaging in reverse engineering (or requesting or purporting to authorize any other person or entity to do so) and the Foundation may, in its sole discretion, propose to you terms and conditions under which it is willing to make such information available.
7. NO TRANSMISSION: You agree not to electronically, optically or otherwise transmit, broadcast, transfer, or disseminate any portion of the Software and/or the Documentation over any public or private computer network (either local, wide area or otherwise), telephone network or other mode or channel of communication except (a) where intrinsic to the normal operation of the Software, or (b) where provided in the Documentation, or (c) as otherwise expressly authorized by the Foundation in writing.
8. THIRD-PARTY COMPONENTS. You acknowledge that (i) the Software may contain (or permit access and use of) application programming interfaces (APIs), content, data,  software or components that are either owned by a third party or in the public domain (“Third-Party Components”) or may require your use of Third-Party Components in order for the Software (or any feature or content thereof) to be accessed, used and/or operated, and (ii) the Foundation has no proprietary interest in such Third-Party Components, and as such, cannot grant you a license to use such Third-Party Components. A listing of such Third-Party Components, and all necessary consents, legal terms, end user license agreements and/or sublicenses from such third party in connection thereto (“Third-Party Terms”), is made available to you in the Documentation or otherwise, upon written request, from the Foundation. Your use of any Third-Party Components shall remain subject to the applicable Third-Party Terms at all times. By accessing and using such Third-Party Components, you acknowledge and agree to fully comply with the applicable Third-Party Terms, as if set forth in full herein. THE FOUNDATION AND ITS LICENSORS MAKE NO WARRANTIES OR REPRESENTATION AS TO THIRD-PARTY COMPONENTS (INCLUDING QUIET ENJOYMENT AND NON-INFRINGEMENT) AND FURTHER DISCLAIM ANY AND ALL LIABILITY FOR ANY LOSSES OR DAMAGES THAT MAY RESULT FROM YOUR USE OR DISTRIBUTION THEREOF (INCLUDING INFRINGEMENT INDEMNIFICATION). THE FOUNDATION IS NOT OBLIGATED TO PROVIDE SUPPORT SERVICES FOR ANY THIRD-PARTY COMPONENTS. YOU FURTHER AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE FOUNDATION, ITS LICENSORS, PARENT ORGANIZATIONS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS ANY CLAIMS OR LAWSUITS, INCLUDING ATTORNEYS’ FEES, THAT ARISE OR RESULT FROM THE USE OR DISTRIBUTION OF SUCH THIRD-PARTY COMPONENTS.
9. TERMINATION:
   1. You may cancel your license to the Software at any time by providing written notice to the Foundation. This EULA also will terminate automatically if you fail to comply with any term or condition of this EULA. The Foundation reserves the right to terminate this EULA at any time with or without cause by providing you with prior written notice. If either party goes into receivership, bankruptcy, or insolvency, or makes an assignment for the benefit of creditors, or ceases business operations, this EULA shall be immediately terminable by the other party by written notice, but without prejudice to any rights of the terminating party hereunder, such termination to be effective as of one (1) day prior to such event.
   2. Immediately upon any termination of this EULA for any reason, the license granted under paragraph 2 above terminates, and all rights thereunder revert in their entirety to the Foundation, its successors and assigns. You agree upon termination to immediately return or destroy all copies of the Software and the Documentation in your possession or control or to instruct any third party hosting service (including Apple or Google) to do so in their systems.
10. DISCLAIMER OF WARRANTY: THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU, THE END USER. THE FOUNDATION MAY STORE DATA GENERATED FROM YOUR USE OF THE SOFTWARE; HOWEVER THE FOUNDATION AND ITS SERVICE PROVIDERS ARE NOT RESPONSIBLE FOR THE HOSTING OF ANY DATA GENERATED FROM YOUR USE OF THE SOFTWARE, AND YOU ASSUME ALL RESPONSIBILITY FOR STORING OR BACKING UP ANY SUCH DATA. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OR AGAINST INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION. THERE IS NO WARRANTY THAT THE SOFTWARE OR THE DOCUMENTATION WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS. THERE IS NO IMPLIED WARRANTY OF BENEFIT FOR THE ORDINARY PURPOSES TO WHICH SUCH SOFTWARE OR DOCUMENTATION ARE USED. THERE IS NO WARRANTY, REPRESENTATION OR GUARANTEE THAT THE SOFTWARE WILL CONTINUOUSLY OPERATE OR BE ERROR FREE OR THAT ANY PROBLEMS WILL BE CORRECTED. SHOULD THE SOFTWARE OR ANY OF ITS COMPONENTS PROVE DEFECTIVE OR INADEQUATE IN ANY RESPECT, YOU (AND NOT THE FOUNDATION OR ITS LICENSEES OR THIRD PARTY SERVICE PROVIDERS) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. FURTHER, THE FOUNDATION DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF, OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS ABILITY TO DETER UNAUTHORIZED ACCESS, ITS COMPATIBILITY WITH HARDWARE OR OTHER SOFTWARE, ITS RELIABILITY, CURRENTNESS, OR OTHERWISE; AND YOU RELY ON THE SOFTWARE AND ITS PERFORMANCE SOLELY AT YOUR OWN RISK. ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS OF THE PRODUCT FOR A PARTICULAR USE OR PURPOSE, QUALITY, COURSE OF DEALINGS, USAGE OF TRADE, INACCURACY IN CONTENT CAUSED BY THE FOUNDATION’S FAILURE TO PERFORM WITH REASONABLE CARE, QUIET ENJOYMENT OR NON-INFRINGEMENT, ARE HEREBY EXPRESSLY DISCLAIMED. THE FOUNDATION IS NOT LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF THE FOUNDATION OR ITS THIRD PARTY SERVICE PROVIDERS.
11. LIMITATION OF LIABILITY: NEITHER THE FOUNDATION NOR ANY OTHER PERSON OR ENTITY WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SOFTWARE, THE DOCUMENTATION, OR ANY OF ITS COMPONENTS SHALL BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOST SAVINGS, LOSS OF DATA, COMMERCIAL LOSS, OR OTHER SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, THE RESULTS OF USE, OR INABILITY TO USE THE SOFTWARE, THE DOCUMENTATION OR ANY OF ITS COMPONENTS, OR YOUR LOSS OF PLANTS IN YOUR GARDEN EVEN IF THE FOUNDATION OR OTHERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM AND EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. IN NO EVENT WILL THE FOUNDATION’S LIABILITY EXCEED THE AMOUNT OF USD $100. SOME COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
12. GARDEN ADVICE:  The advice on native Texas plants and gardening and other content provided in the Software regarding native plants and gardens and other resources or references (including weather) is provided by the Foundation for informational purposes only. Any resources or references to weather, plant varieties, and local or regional nurseries and plant providers are only suggested and are not a complete listing of native Texas plants and gardening materials or information or Texas nurseries and plant providers. Gardening with native Texas plants can result in damages and loss of plant life and personal injury or property damage, and you acknowledge and agree that the Foundation is not responsible or liable for any such damages or losses based upon your use of the Software and any content or information made available by the Foundation, and you bear the sole risk of any such damages or losses and you will look solely to the local or regional nursery and plant providers from which you purchased any native Texas plants for recovery of any such damages and losses.
13. INDEMNIFICATION. You will indemnify and hold harmless, and upon request defend, the Foundation and its officers, directors, agents, affiliates, distributors, employees and service providers from any and all losses, damages, costs, or other expenses incurred by such indemnified parties (including court costs and attorneys’ fees) to the extent arising out of your use or misuse of the Software and the Documentation and your breach of this EULA.
14. COMPLIANCE: You will be responsible for compliance with all applicable laws, rules regulations, order and ordinances of the United States of America and in any other nation, province, or city with jurisdiction over you or your activities under this EULA.
15. EQUITABLE REMEDIES: You hereby agree that, if the terms of this EULA are not specifically enforced, the Foundation will be irreparably damaged, and therefore You agree that the Foundation shall be entitled, without bond, other security, proof of damages, to appropriate equitable remedies with respect any breach(es) of this EULA, in addition to any other remedies available at law or in equity.
16. GOVERNING LAW: This EULA shall be governed by the laws of the State of Texas, without regard to choice of law principles, and the applicable federal laws and international treaties of the United States of America. This EULA shall inure to the benefit of the Foundation and its successors and assigns. This EULA will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
17. PERSONAL JURSIDICTION:  You consent to personal jurisdiction in the state and federal courts located in Dallas County, Texas, USA or United States District Court for the Northern District of Texas, USA, (Dallas Division) with respect to any dispute, controversy or claim arising out of or relating to this EULA or to a breach hereof, including its interpretation, performance or termination.
18. ASSIGNMENT. You may not assign this EULA in whole or in part without the prior written consent of the Foundation and any attempted assignment in violation thereof (whether voluntary or involuntary, by operation of law, merger, reorganization, change of control or otherwise) is void. The Foundation may assign its rights under this EULA in whole or in part without notice or your prior written consent.
19. MISCELLANEOUS: Other than as provided in Section 1.A. above, this EULA may not be modified except pursuant a written amendment signed by an authorized representative of the Foundation. If any provision of this EULA is held to be illegal, invalid, or unenforceable then that provision shall be fully severable from this EULA and shall not affect the legality, validity or enforceability of the remaining provisions of this EULA. the Foundation reserves the right, in its sole discretion and at any time: (i) to modify or discontinue the Software; (ii) to limit, terminate or suspend your use of the Software; (iii) assess charges for the use of the Software in the future; or (iv) to make changes to this EULA pursuant to Section 1.A., and you shall have the right to terminate this EULA if you choose not to accept those terms, as modified, pursuant to Section 9 hereof. Failure of the Foundation to enforce any of the terms or conditions of this EULA, unless waived in writing, shall not constitute a waiver of the Foundation’s right to enforce each and every term and condition of this EULA.
20. ACKNOWLEDGMENT. BY ACCESSING OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER REPRESENT AND ACKNOWLEDGE THAT THERE ARE NO BENEFICIARIES OTHER THAN YOURSELF UNDER THIS EULA. YOU ACKNOWLEDGE THAT THE PROVISIONS OF THIS EULA REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN YOU AND THE FOUNDATION OF THE RISKS (BOTH KNOW AND UNKNOWN) ASSOCIATED WITH THE TRANSACTION CONTEMPLATED BY THIS EULA AND THAT THE LIMITATIONS AND DISCLAIMERS RELATED TO WARRANTIES AND LIABILITY CONTAINED IN THIS EULA ARE INTENDED TO LIMIT THE CIRCUMSTANCES AND EXTENT OF LIABILITY. YOU FURTHER AGREE THAT THIS EULA IS THE COMPLETE AND EXCLUSIVE STATEMENT BETWEEN THE PARTIES, AND SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, VERBAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES, RELATING TO THE SUBJECT MATTER OF THIS EULA.
21. CONTACT INFORMATION.  If you have questions regarding this Agreement or wish to obtain additional information, please contact us at [email protected] (to the attention of the Executive Director). All written notices should be delivered to Texas Parks and Wildlife Foundation, 6220 Gaston Avenue, Suite 700, Dallas, Texas 75214.