ELIGIBILITY AND ACCEPTANCE OF TERMS AND CONDITIONS
RESTRICTIONS ON USE OF CONTENT
The content of this Site, such as all software, design, text, graphics, artwork, images, photographs, audio clips, video clips, digital downloads, button icons, and other material, including the selection and arrangements thereof (the “Material”), are the property of Phone.com and/or its subsidiaries, affiliates, assigns, licensors, and the Site’s design, hosting, network and programming vendors (collectively “operational service providers”) and/or the Site’s advertisers, promotional partners, and sponsors (collectively, “Advertisers”). The Material is protected, without limitation, pursuant to United States and international copyright, trademark, and other applicable laws, and the unauthorized copying, displaying, or other use of any of the Site’s Material may violate one or more of these laws.
You are hereby granted permission to access the Material from the Site in whole or in part, solely for your use by viewing and browsing through the Site or ordering products or services from the Site. This permission terminates automatically if you breach any of the terms of this Agreement. If pursuant to an authorization from Phone.com you download software from the Site, the software, including all code, files, images, contained in or generated by the software, and accompanying data, are deemed to be licensed to you by Phone.com. Neither title nor intellectual property rights are transferred to you, but remain with Phone.com, who owns full and complete title. You may not resell, decompile, reverse engineer, disassemble, or otherwise convert the software to a perceivable form. Phone.com does not grant you any permission to use the Material other than the permission expressly stated in this Agreement or in the Additional Terms. All other use of the Materials, including, but not limited to, uploading, downloading, display, publication, public performance, broadcast, transmission, retransmission, modification, creation of derivative works from, reproduction (whether by linking, framing, or any other method), or in any other way exploiting the material, in whole or in part, or downloading and using software for uses other than those expressly permitted may not be made without Phone.com’s prior express written consent.
Access to the Materials may not be lawful by certain persons or in certain countries. You also understand, acknowledge, and agree that downloading of any object code or software by website users in restricted countries is prohibited. If you access the Site from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.
Notwithstanding any statement to the contrary in this Agreement, you will not use or attempt to use, and shall cause each other party under your control not to use or attempt to use, any engine, software, tool, agent, or other device or mechanism (including, without limitation, browsers, spiders, avatars, or intelligent agents) to navigate or search the Site other than (a) the search engine and search agents available from the Site and (b) generally available third-party web browsers (e.g., Firefox, Google Chrome, Safari, or Microsoft Internet Explorer).
TRADEMARKS AND SERVICE MARKS
There are a number of proprietary trademarks, service marks, logos, slogans, and product designations found on this Site. By making them available on this Site, Phone.com is not granting you a license to use them in any fashion other than expressly provided in wiriting. Access to this Site does not confer upon you any license under any of Phone.com’s or any third party’s intellectual property rights. No Phone.com trademark, service mark, or logo may be used as a hyperlink without Phone.com’s prior written permission. All product or service names and other marks not owned by Phone.com are the property of their respective owners.
This Site and/or the Services may provide users with the opportunity to submit, post and/or exchange information, data, text, software, music, photographs, graphics or artwork, video, audio, messages, or other materials (“Postings”), whether publicly posted or privately transmitted. You understand, acknowledge and agree that such Postings are the sole responsibility of the person from which such Postings originated. This means that you, the user, and not this Site or Phone.com, are entirely responsible for the consequences of all Postings that you upload, post, email, transmit, or otherwise make available via the Site or the Services. Users may not: 1) post or transmit material that is copyrighted, unless you are the copyright owner or have the permission of the copyright owner to post or transmit it; 2) post or transmit material that reveals trade secrets, unless you own them or have the permission of the owner to do so; 3) post or transmit material that infringes on any other intellectual property rights of others or on the privacy or publicity rights of others; 4) post or transmit material that is considered by us , in our sole judgment, to be obscene, indecent, defamatory, threatening, harassing, tortious, abusive, hateful, embarrassing, or harmful to another user or any other person or entity; 5) post a sexually-explicit image or statement; 6) post advertisements or solicitations of business; 7) post chain letters or pyramid schemes; 8 ) post any incomplete, false, fraudulent, or inaccurate biographical information or general information that is not your own information; or 9) impersonate another person.
Phone.com does not represent or guarantee the truthfulness, accuracy, timeliness, or reliability of Postings by users and does not endorse any opinions that may be expressed by any user. You further agree that any reliance on such Postings by other users will be at your own risk. We do not regularly review, screen, or monitor the Site, and we assume no obligation to do so and will not be liable or responsible to any user for performance or nonperformance of such material. If notified by a user of any Posting or communication which allegedly does not conform to this Agreement, we may, in our sole discretion, investigate the allegation and may thereafter determine, in our sole discretion, whether or not to remove or request the removal of the material. You understand, acknowledge, and agree that we reserve the right to expel users and prevent their further access to the Site for violating this Agreement or any applicable law, and may remove communications which are considered to be, in our sole judgment, unlawful, harmful, threatening, abusive, obscene, indecent, libelous, disruptive, hateful, infringing, or racially, ethnically, or otherwise objectionable.
Notwithstanding any rights or obligations governed by the Additional Terms, if, at any time you upload or post any content, including but not limited to comments, suggestions, problem reports, and design ideas to the Site, you automatically grant Phone.com a royalty-free, universal, perpetual, irrevocable, non-exclusive right (including any moral rights) and license to use, reproduce, modify, adapt, publish, retransmit, translate, create derivative works from, distribute, communicate to the public, publicly perform, or display such content (in whole or in part), and/or to incorporate it in other works in any form, media, or technology now known or later developed, for so long as any rights exist in such content. You also warrant that the holder of any rights, including moral rights in such content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license set forth in this agreement. You also permit any other user to access, display, view, store, and reproduce such content for such user’s personal use. Subject to all of the foregoing, the owner of such content placed on the Site retains any and all rights that may exist in such content.
ADVERTISING AND OTHER THIRD-PARTY CONTENT
This Site may provide banner and general advertising, and other content provided by our Advertisers. You understand, acknowledge, and agree that the inclusion of such third-party content on this Site is not an endorsement by Phone.com of the goods, services, or messages conveyed in the content or the business practices (including the privacy policies) of such third- party content providers. Users may from time to time enter into correspondence with or participation in the advertising or promotions offered through the Site. However, all such correspondence, including, without limitations, and resulting contractual agreements are solely between the Advertiser and the user. Your further agree that we are not responsible for upholding any applicable terms, conditions, or representations of warranty made by Advertisers or other third parties in connection with an agreement between users, or the purchase of goods and services offered by Advertisers or other third parties.
LINKS TO THIRD-PARTY WEBSITES
Phone.com may provide links to third-party websites and other resources that could be of interest to our users. You understand, acknowledge, and agree that these links are provided solely as a convenience to you and not as an endorsement by Phone.com of the content, advertising, or business practices (including the privacy policies) of such third-party websites. These third-party websites may have different privacy policies and business practices than we do. Therefore, we do not endorse, verify, make any representations, or take responsibility for the content, truthfulness, accuracy, quality, or completeness of the content or activities conducted on such websites. You further agree that Phone.com, its corporate affiliates, successors and assigns, and their respective officers, directors, employees, representatives, agents, and operational service providers will not, under any circumstances, be 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 the content, advertising, or business practices of linked third-party sites. If you decide to access and use linked third-party websites, you understand, acknowledge, and agree that you do so at your own risk.
By submitting content to any area of the Site open to the other users or the general public, you understand, acknowledge, and agree that your content will be considered “Public Material” and will not be subject to the privacy protections generally afforded your Personal Information.
You further agree that Phone.com may save and archive any content of any nature posted to the Site and that Phone.com may, without liability to any user, disclose such content if required to do so by law or to comply with legal processes; to respond to claims that any of the content violates the property, privacy, publicity, or any other rights of another individual, organization, or corporation; or to protect the rights, property, or safety of Phone.com, its corporate affiliates, Advertisers, employees, suppliers, operational service providers, users, and members of the public.
MODIFICATION, SUSPENSION, OR DISCONTINUANCE OF SITE
Phone.com reserves the right, at its sole discretion and at any time, to modify or discontinue any portion of the Site or any of the products or services offered on the Site, on a temporary or permanent basis, with or without notice. You understand, acknowledge, and agree that Phone.com will not be liable to you or to any third party for any such modification, suspension, or discontinuance of the products or services offered by the Site.
SECURITY OF THE SITE
You understand, acknowledge, and agree that by accessing or registering for any interactive area of the Site, you are prohibited from using the Site for any of the purposes below, in addition to the conduct requirements listed in the User Conduct section of this Agreement:
Posting a profile for anything other than to participate in the specific Site activity.
Sending a message to a user for any reason other than to participate in the specific Site activity.
Deleting or revising any content or material posted by any other person or entity.
Forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting for any reason.
The Site’s membership activities are to be accessed only by registered users of the Site, which should have only one unique user name with one unique password. If you are found to share passwords with any non-registered member we will terminate your membership immediately without notice.
As a user of this Site, the following actions are also prohibited:
Accessing data not intended for such user or logging into a server or account in which the user is not authorized to access.
Attempting to probe, scan, or test the vulnerability of the system or network or to breach the security or authentication measures of the Site without proper authorization.
Forging any headers or otherwise manipulation of Site identifiers in order to disguise the origin of transmission through the Site.
Attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, “flooding,” “spamming,” “mailbombing,” or “crashing” the Site or the server of any user.
Sending unsolicited commercial email individually or in bulk (also called Spam), which promotes or advertises Phone.com or its affiliates or Advertisers, or any other activity, program, product, or service.
Harvesting email addresses off this Site through an automated process.
Bypassing this Site’s homepage via deep-linking or any other means, or framing this Site, or any webpage or material on the Site without the express written permission from Phone.com. Users are also prohibited from linking to this Site or any webpage in an email sent for commercial purposes, without the express written permission of Phone.com.
Attempting to gain unauthorized access to the Site’s features or activities, interfering with or manipulating in any manner the entry or registration process for any other interactive features and activities on this Site.
Falsifying identification or impersonating any person or entity, including, but not limited to, a Phone.com official, chat room, or public forum leader, host, or guide, when accessing or participating in such features and activities.
Setting up fake sites or other dummy sites that appear to be the Site, mirroring the Site’s contents, or otherwise copying any part of the Site Material and/or layout.
Violations of the Site’s system or network security may result in civil or criminal liability. The Site will investigate possible violations of system or network security and may involve, and cooperate with a user’s employer, Internet Service Provider, and/or law enforcement authorities in investigating and/or prosecuting users who are involved in such violations. Phone.com will also terminate the membership of any person that Phone.com believes, in its sole judgment, to have violated its security provisions.
NOTIFICATION OF COPYRIGHT INFRINGEMENT
If you believe that your work has been copied and is accessible on this Site in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information:
An electronic or physical signature of the copyright owner or someone authorized to act on the owner’s behalf to assert a claim of copyright infringement.
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at this Site are covered by a single notification, a representative list of such works at this Site.
Identification of material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
Information reasonably sufficient to permit us to contact the complaining party, such as the party’s name, address and daytime telephone number, and an e-mail address, if available.
A statement that the complaining party has a good faith belief that the use of the infringing copyrighted work is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed.
Such written notice should be sent to our copyright agent as follows:
DMCA Copyright Agent
c/o Arent Fox
The above address is intended only for notifications and any related correspondence regarding claims of copyright infringement on this Site. Correspondence pertaining to other matters will not receive a response if sent to the above contact information. Please note that any person who submits a false or fraudulent claim of copyright infringement may be subject to liability under U.S. copyright law.
INDEMNIFICATION AND LIMITATION OF LIABILITY
You understand, acknowledge, and agree to defend, indemnify, and hold harmless Phone.com and its corporate affiliates, successors and assigns, Advertisers, suppliers and operational service providers and their respective officers, directors, employees, representatives, and agents, or others involved in creating, promoting, or otherwise making available this Site from and against any claims, actions, costs, expenses, or demands, including, without limitation, reasonable legal and accounting fees, resulting from any content you submit, post to, or transmit through this Site, your use of the Site, your violation of this Agreement, your violation of any rights of another, or otherwise arising out of your use of this Site in any manner. Phone.com will attempt to provide notice to you promptly of any such claim, suit, or proceeding and will assist you, if requested and at your expense, in defending any such claim, suit, or proceeding. We reserve the right to take exclusive control and defense of any such claim subject to indemnification by you, in which event you will cooperate fully with Phone.com in asserting any available defenses.
The Site and its Material may contain technical inaccuracies, typographical errors, and out-of- date information. The Site makes no representations about the accuracy, reliability, completeness, or timeliness of the Site or the Material, and the Site makes no warranty that the Site will meet your requirements. You understand, acknowledge, and agree that the use of the Site and the Material is at your own risk. The Site reserves the right to make or refrain from making changes to the Site and Material at any time.
UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL PHONE.COM, ITS OWNER AND OPERATOR, PARENT COMPANY, CORPORATE AFFILIATES, SUCCESSORS OR ASSIGNS, AND PHONE.COM’S ADVERTISERS, SUPPLIERS, OR OPERATIONAL SERVICE PROVIDERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS, ASSUME OR HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY CLAIMS, DAMAGES OR LOSSES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, COMPENSATORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES) RESULTING FROM YOUR USE OR YOUR INABILITY TO USE THE SITE, OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO USE THIS SITE, THE MATERIALS, ANY RELATED SERVICE OR PRODUCT, ANY OTHER WEBSITE, OR TAMPERING WITH YOUR PERSONAL INFORMATION OR TRANSMISSIONS, WHETHER OR NOT THE COMPANY OR AN AUTHORIZED REPRESENTATIVE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
APPLICABLE LAW MAY NOT ALLOW FOR THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE LIMITATIONS IN THIS AGREEMENT MAY NOT APPLY TO YOU.
DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN A WRITTEN AGREEMENT BETWEEN YOU AND PHONE.COM, THE SITE, MATERIALS, SERVICES, AND PRODUCTS ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTIES OF ANY KIND. PHONE.COM, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, PHONE.COM DOES NOT WARRANT THAT THE SITE OR THE FUNCTIONS CONTAINED IN ANY SERVICE OR PRODUCT WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT THE SITE AND ITS SERVER OR SOFTWARE ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SITE IS UNDERTAKEN SOLELY AT YOUR DISCRETION AND OWN RISK. IF YOUR USE OF THE SITE, SOFTWARE, OR THE MATERIAL RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT THE SITE IS NOT RESPONSIBLE FOR THOSE COSTS.
PHONE.COM MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICES, SOFTWARE, DESIGN, TEXT, VIDEO CLIPS, AUDIO CLIPS, GRAPHICS AND ARTWORK, IMAGES, PHOTOGRAPHS, OTHER MATERIAL, LINKS AND OTHER DATA.
APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE DISCLAIMERS IN THIS AGREEMENT MAY NOT APPLY TO YOU.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, you understand and agree that PHONE.COM’S MAXIMUM liability to YOU for all claims, DAMAGES, AND LOSSES arising from YOUR ACCESS TO, use OF OR INABILITY TO ACCESS or USE this site or ANY of the Material, SOFTWARE, PRODUCTS OR SERVICES MADE AVAILABLE THROUGH THE SITE, OR ARISING FROM PHONE.COM’S PROVISION THEREOF SHALL NOT EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ANY MATERIALS, SOFTWARE, PRODUCTS OR SERVICES WITHIN THE TWELVE MONTH PERIOD PRECEDING THE DATE PHONE.COM RECEIVES NOTICE OF SUCH CLAIMS.
Phone.com reserves the right, at its sole discretion, to terminate your membership or registration at any time, delete any or all of your Postings, or block access to the Site and/or any other service provided to you. Phone.com reserves the right to take such actions, with or without notice, for any reason or for no reason, and without any liability to the account holder or user.
LEGAL VENUE, GENERAL, AND CONTACT INFORMATION
This Agreement is governed by the internal substantive laws of the State of Delaware, without regard to its conflict of laws provisions. Any and all disputes or claims arising under or relating to this Agreement (including its interpretation), the Site (including the Materials), and/or Phone.com’s provision of any products or services in connection with the Site shall be submitted to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, which arbitration shall be held in New Jersey. Arbitration in accordance with the foregoing shall be the exclusive means of dispute resolution.
If any provision of this Agreement, or the application thereof to any person or circumstances, is found to be invalid or for any reason, unenforceable by any court having competent jurisdiction, the invalidity or unenforceability of such provision shall not affect the validity and application of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. Except as expressly provided in this Agreement, in a particular “Legal Notice,” or Additional Terms, this Agreement constitutes the entire agreement between you and the Site with respect to the use of Site.
The section titles in this Agreement are for your convenience only and do not have any legal or contractual effect.
If you have any questions regarding this Agreement, please contact the Phone.com Privacy Administrator via email at firstname.lastname@example.org, or contact:
184 South Livingston Avenue
Livingston, NJ 07039
Attn: Your California Privacy Rights
c/o Privacy Administrator