Fun For Mobile

FunForMobile Terms of Service Agreement

Effective October 1, 2004

Welcome to FunForMobile. This agreement ("Agreement") is a contract between you and FunForMobile Inc. It governs your use of the FunForMobile Website, all Uploads and all your activity on the FunForMobile Website (collectively, the "Service"). The FunForMobile Website means this web site, as accessed by any of the following domain names: FunFunMobile.com. However, the FunForMobile Website does not refer to any other web site linked to or from this web site. By completing the registration process and accepting this Agreement, you represent that you have read and understood this Agreement and agree to be bound by its terms and conditions.

1. ACCEPTANCE OF TERMS

FunForMobile may from time to time amend, supplement or modify the terms of this Agreement, and will post a copy of such amended Agreement at http://www.FunForMobile.com/help/ServiceTerm.html. If you do not agree to be bound by (or cannot comply with) the Agreement as amended, your only remedy is to cancel your FunForMobile subscription and/or account. You will be deemed to have accepted the Agreement if you continue to use the Service; All other terms of this Agreement will continue in effect.

2. DESCRIPTION OF SERVICE

The Service is available at the FunForMobile Website and includes everything on the site that may exist from time to time. Part of the Service makes available to you uploadable mobile entertainment, such as ringtones, music and screensavers (collectively, the "Uploads"). Once properly registered, you will be permitted to upload to compatible wireless telephones and other compatible devices certain Uploads through the Service.

3. YOUR REGISTRATION OBLIGATIONS

To use the Service, you must register and provide certain information to FunForMobile ("Registration Data"). You agree to provide true, accurate, current and complete Registration Data at the time you register and that you will update your Registration Data as necessary to keep it true, accurate, current and complete; you are 13 years of age or older; your use of the FunForMobile Services does not violate any applicable law or regulation. FunForMobile will use your Registration Data in accordance with its privacy policy, which you can review at http://www.FunForMobile.com/help/PrivacyPolicy.html. Please review this privacy policy before you complete the registration process or attempt to use or access the Service.


You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to immediately notify FunForMobile of any unauthorized use of your password or account or any other breach of security, and ensure that you exit from your account at the end of each session. You agree that you will not allow others to use your member name, password and/or account. FunForMobile cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.

4. USE OF SERVICES

You may use the Service only in accordance with the terms and conditions of this Agreement and any amendments as well as any additional terms that may be presented in connection with any particular feature or function of the Service from time to time.

The Service is for your personal use. You understand and agree that you may not transmit or re-transmit, broadcast or re-broadcast or make any commercial use of the Service, including the Uploads. You may not attempt (or authorize, encourage or support others' attempts) to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Service, including the Uploads.

By using the Service, you may be charged by your service provider or carrier for wireless network usage such as SMS, WAP, and MMS. You understand and agree that you, not FunForMobile, are entirely responsible for all the charges.

You are solely responsible for your interactions with other FunForMobile Members. FunForMobile reserves the right, but has no obligation, to become involved in any way with disputes between you and other Members.

FunForMobile may terminate your account at any time, for any or no reason, with or without prior notice or explanation, and without liability.

Due to various reasons, the Service may fail or not perform as you expected. By using the Service, you understand and agree that you, not FunForMobile, bear all risks associated with the Service.


5. PRIVACY POLICY

Registration Data and certain other information about you is subject to our Privacy Policy. For more information, see our full privacy policy at http://www.FunForMobile.com/help/PrivacyPolicy.html

6. CONTENT

You understand that all data, text, music, sound, photographs, graphics, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not FunForMobile, are entirely responsible for all Content that you upload, post, transmit or otherwise make available via the Service. FunForMobile does not control the Content uploaded via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will FunForMobile be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service.

FunForMobile may reject, refuse to post or delete any Content for any or no reason, including Content that in the sole judgment of FunForMobile violates this Agreement or which may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity. FunForMobile assumes no responsibility for monitoring the FunForMobile Services for inappropriate Content or conduct. If at any time FunForMobile chooses, in its sole discretion, to monitor the FunForMobile Services, FunForMobile nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.

You agree to not use the Service to:

  1. upload, post, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
  2. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
  3. upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
  4. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
  5. upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

You acknowledge that FunForMobile may or may not pre-screen Content, but that FunForMobile and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, FunForMobile and its designees shall have the right to remove any Content that violates the Agreement or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.

You acknowledge and agree that FunForMobile may store and/or disclose, as applicable, any such content or material it is required to do so by law, or has a good faith belief that such storage or disclosure is reasonably necessary to comply with court orders or other legal processes; to enforce this Agreement; to respond to any claims that such content violates any third party's rights; or to protect the rights, property or personal safety of FunForMobile, its business partners, affiliates, licensors and/or licensees, any other FunForMobile subscriber or member, or the general public.

7. INTERNATIONAL CONSIDERATIONS

You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

8. NO RESALE OF SERVICE

You agree not to reproduce, duplicate, distribute, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or your user name or password.

9. MODIFICATIONS TO SERVICE

FunForMobile reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that FunForMobile nor its affiliates shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

10. INDEMNITY


You agree to indemnify and hold FunForMobile, its partners, parents, subsidiaries, agents, affiliates, employees and/or licensors, as applicable, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of the Agreement, or your violation of any rights of another.

11. COPYRIGHT INFORMATION

You acknowledge and agree that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.

12. TRADEMARK

All trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with the Service are the property of FunForMobile and/or its affiliates, licensors and/or licensees. You may not copy, display or use any of these marks without prior written permission of the trademark owner.

13. VIOLATION OF INTELLECTUAL PROPERTY RIGHTS

FunForMobile respects the intellectual property of others, and we ask our users to do the same. If FunForMobile (a) receives a Notice alleging that you have engaged in infringing behavior or (b) reasonably suspects that your use of the Service or the Uploads violates FunForMobile's or others' intellectual property rights, FunForMobile may, in its sole discretion, suspend or terminate your account with or without notice to you.

14. OBJECTIONABLE OR EXPLICIT CONTENT

FunForMobile is not responsible to you for any content or materials constituting all or part of any Uploads or any other aspect of the Service that you might find objectionable.

15. LINKS TO THIRD-PARTY SITES

The Service may present links to retailers and/or other third-party websites not owned or operated by FunForMobile. These links are provided only as a convenience to you. Neither FunForMobile nor its business partners are responsible for the availability of these outside sites or their contents. You understand and agree that neither FunForMobile nor its business partners are responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site. You should direct any concerns regarding these third-party sites to those sites' administrators.


16. TERMINATION, CANCELLATION AND PLAN CHANGES

FunForMobile may in its sole discretion terminate this Agreement or suspend your account at any time with or without notice to you in the event that you breach (or FunForMobile reasonably suspects that you have breached) any provision of this Agreement. You understand and agree that your cancellation of your account is your sole right and remedy with respect to any dispute with FunForMobile. This includes, but is not limited to, any dispute related to or arising out of: (1) any term of this Agreement or FunForMobile's enforcement or application of the same; (2) any policy or practice of FunForMobile, including its Privacy Policy, or FunForMobile's enforcement or application of these policies;

17. DISCLAIMER


You understand and agree that your use of the Service and the Uploads is at your own sole risk. THE SERVICE AND THE UPLOADS ARE PROVIDED "AS IS" AND WITHOUT WARRANTY BY FunForMobile OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS (THE "FunForMobile ENTITIES"), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, FunForMobile AND THE FunForMobile ENTITIES, AS APPLICABLE, EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NONINFRINGEMENT.

THERE IS NO WARRANTY THAT THE SERVICE OR THE UPLOADS WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE. FunForMobile AND/OR THE FunForMobile ENTITIES, AS APPLICABLE, DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR THE UPLOADS WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE.

YOU WILL NOT HOLD FunForMobile AND/OR THE FunForMobile ENTITIES, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING THE SERVICE OR USING THE SERVICE, AND/OR THE UPLOADS INCLUDING, BUT NOT LIMITED TO, ANY INFECTIONS OR CONTAMINATIONS OF YOUR DEVICES YOU USE TO ACCESS THE SAME OR TO TRANSFER DOWNLOADS THAT MAY RESULT FROM THAT USE.

NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO FunForMobile AND/OR THE FunForMobile ENTITIES AS APPLICABLE.

18. LIMITATION OF LIABILITY


UNDER NO CIRCUMSTANCES SHALL FunForMobile AND/OR THE FunForMobile ENTITIES AS APPLICABLE, BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE AND/OR THE UPLOADS.

UNDER NO CIRCUMSTANCES SHALL FunForMobile AND/OR THE FunForMobile ENTITIES AS APPLICABLE, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE AND/OR THE UPLOADS, EVEN IF FunForMobile AND/OR THE FunForMobile ENTITIES AS APPLICABLE, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

19. NO THIRD PARTY BENEFICIARIES

You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.

20. LAW AND LEGAL NOTICES

The Agreement constitute the entire agreement between you and FunForMobile and govern your use of the Service, superceding any prior agreements between you and FunForMobile. You understand and agree that, except as expressly set forth herein, this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this Agreement.

The Agreement and the relationship between you and FunForMobile shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and FunForMobile agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California in connection with any such dispute including any claim involving FunForMobile or its partners, parents, licensors, affiliates, subsidiaries, employees, contractors, officers, directors or suppliers.

The failure of FunForMobile to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.

You agree that your FunForMobile account is non-transferable and any rights to your FunForMobile I.D. or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

The headings used in this Agreement are for convenience only, and will have no effect on the interpretation or legal enforceability of the terms herein.