FUNAMBOL TERMS OF USE AGREEMENT (revised on January 31, 2012)
This Terms&Conditions is prepared and entered into in the English language only, whose language shall be controlling in all respects. Any translation of this Terms&Conditions into any other language are for reference only and shall have no legal or other effect.
Funambol Inc. ("we" or "Funambol") maintains the Internet web sites at funambol.com, funambol.net, and onemediahub.com (collectively, the "Site", including any successor web sites). In addition to information about Funambol, we offer the Services (as described below) to you ("you" or "user") through the Site under the terms and conditions of this Terms of Use (the "Terms&Conditions").
By accessing the Site, using the Services, or registering with Funambol, you agree to the terms of this Terms&Conditions. The terms and conditions below and any other rules or policies set forth on the Site (all of which are incorporated into this Terms&Conditions, including the Privacy Policy) comprise the entire agreement between you and Funambol and supersede all prior agreements between us. Funambol may update this Terms&Conditions from time to time without notice to you. Funambol recommends that you review the Terms&Conditions on a regular basis. You may not use the Services and may not accept the Terms&Conditions if you are not of legal age to form a binding contract with Funambol. You agree that you are solely responsible for (and that Funambol has no responsibility to you or to any third party for) any breach of your obligations under the Terms&Conditions and for the consequences of any such breach.
1. SERVICES: STANDARD SERVICE AND PREMIUM SERVICE
Funambol will provide you with access to the Funambol portal service (which enables storage and synchronization of your PIM Data (as that term is defined in the Privacy Policy), picture(s), video(s), and/or file(s)), developer applications services, email-related services and/or publisher content services (the "Services"). The Services can be either "Standard Services" or "Premium Services". Standard Service is a Service free of charge while Premium Service is a paid service. For the sake of clarity, the Premium Service and the Standard Service are collectively referred to as the Services. Your account is allocated certain level of storage capacity based on the type of Service you elect to use. You can select your storage capacity when you signup for the Services. For the purpose of this Terms&Conditions, the "Maximum Storage For Standard Services" means the maximum amount of data associated with your account as part of the Standard Service; and the "Maximum Storage For Premium Services" means the maximum amount of data associated with your account as part of the Premium Service.
Unless explicitly stated otherwise, any new online services provided by Funambol or features that augment or enhance the current Services, shall be subject to the Terms&Conditions.
You are responsible for obtaining access to the Services, and you will pay any third party fees (such as Internet service provider, airtime charges or mobile operator/carrier data plan fees) associated with such access. In addition, you must provide and are responsible for all equipment necessary to access the Services.
2. REGISTRATION
When you register for the Services, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (your "Account Data") and (b) maintain the accuracy and completeness of the Account Data.
3. PRIVACY STATEMENT
Our privacy statement, which is located at privacy policy, describes our data practices and is a part of this Terms&Conditions.
4. ACCOUNT, PASSWORD AND SECURITY
You will receive (or choose) a password upon completing the registration process. You are responsible for maintaining the confidentiality of your password, and are fully responsible for all activities that occur under your account. You agree to (a) immediately notify Funambol of any unauthorized use of your account or any other breach of security, and (b) ensure that you fully exit from your account at the end of each session. Funambol will not be liable (to you or any third party) for any loss or damage arising from or related to the unauthorized use of your account (unless such use is directly caused by Funambol's gross negligence).
5. MEMBER CONDUCT
All information, data (including Account Data and PIM Data, as those terms are defined in the Privacy Statement), text, software, music, sound, photographs, graphics, video, messages or other materials ("Content") that you upload, post, email, store, transmit or otherwise make available (collectively, "transmit") to or through the Services is solely your responsibility. You agree to not use the Services to:
(a) transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including, but not limited to, a Funambol employee, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(e) transmit any Content (such as inside information, intellectual property, or confidential information) that you do not have a right to transmit under any law or under contractual or fiduciary relationships;
(f) transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or any other form of solicitation, except in those areas (such as shopping rooms) that are designated for such purpose;
(g) transmit 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;
(h) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services.
You acknowledge that Funambol does not pre-screen Content, but that Funambol and its designees shall have the right (but not the obligation) in their sole discretion to remove any Content from the Services.
You acknowledge and agree that Funambol may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Agreement; (c) respond to claims that any Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Funambol, its users or the public.
You understand that the Services may involve (a) transmissions of your Content over various networks; and (b) changes to your Content to conform and adapt to technical requirements of connecting networks or devices.
You further understand that the cancellation policy, as described below, will not apply in the circumstances described in this section 5. Therefore you will not be able to recover any fee and/or data from Funambol.
6. COMPLIANCE WITH LAW
You agree to comply with (a) all applicable laws regarding online conduct and acceptable Content, and (b) all applicable laws regarding the transmission of technical data exported from the United States or the country where you reside (or the country of which you are a national).
You acknowledge that Funambol can remove infringing Content and can close the account without notice of repeat infringers in order to comply with the Digital Millennium Copyright Act.
7. INDEMNITY
You agree to indemnify and hold Funambol, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party arising out of or related to any Content you transmit through the Services, your use of the Services, your connection to the Services, your violation of the Terms&Conditions, or your violation of any rights of another.
8. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Services, use of the Services, or access to the Services.
9. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that Funambol may establish general practices and limits concerning use of the Services, including without limitation the maximum number of days that your Content will be retained by the Services, the maximum amount of data synchronization that may executed by an account on the Services over a given time, the maximum amount of data that may be stored by an account on the Services, and the maximum number of times (and the maximum duration for which) you may access the Services in a given period of time. You acknowledge that Funambol reserves the right to log off accounts that are inactive for a specified period of time.
In the event you purchase a Premium Service, at the expiration of such Premium Service, you have thirty (30) days to renew your subscription. In the event you decide not to renew your subscription, the amount of data associated with your account will be reduced to the Maximum Storage For Standard Services after the thirty (30) days. In order to reduce the data stored, Funambol reserves the right to delete some of your data without the need to notify you.
10. TECHNICAL SUPPORT
You may refer to help.onemediahub.com for FAQ. You understand that Funambol does not provide any technical support as part of the services besides the help you may get from the group of volunteers that run the URL defined above.
11. MODIFICATIONS TO SERVICES
Funambol reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Funambol shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
You further agree that Funambol shall not be liable to you or to any third party for any temporary or permanent loss of data.
12. TERMINATION
You agree that Funambol, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Services, and remove and discard any Content within the Services, for any reason or no reason. Funambol may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice.
You agree that any termination of your access to the Services under any provision of this Terms&Conditions may be effected without prior notice, and acknowledge and agree that Funambol may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services. Further, you agree that Funambol shall not be liable to you or any third party for any termination of your access to the Services.
13. ADVERTISERS AND THIRD PARTY LINKS
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Funambol shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Services.
Because Funambol has no control over third-party sites and resources to which Funambol may provide links (including advertiser sites), you acknowledge and agree that Funambol is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources .You further acknowledge and agree that Funambol shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
14. PROPRIETARY RIGHTS
You and your licensors will retain ownership of all right, title, and interest in and to the Content you transmit to or through the Services. Subject to the terms and conditions of this Terms&Conditions, you hereby grant to Funambol a worldwide, perpetual, and irrevocable license to reproduce, distribute, create derivative works of, display, and perform any and all Content you transmit to or through the Service as contemplated under this Agreement and for the purpose of Funambol fulfilling its obligations or exercising its rights under this Terms&Conditions.
You acknowledge and agree that the Services and any necessary software used in connection with the Services or the Site ("Software") 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 Services or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Funambol or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Software, in whole or in part.
Funambol grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software incidental to your use of the Services; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Services. You agree not to access the Services by any means other than through the interface that is provided by Funambol for use in accessing the Services. Unless you have agreed otherwise in writing with Funambol, nothing in the Terms&Conditions gives you a right to use any Funambol's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
15. SHARING YOUR CONTENT AND INFORMATION
You own all of the content and information you post on the Funambol Site and you can control how it's shared through your settings. In addition:
(a) For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Funambol ("IP License"). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
(b) When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
When you share Content and/or other information with other sites other than the Funambol Site, you acknowledge that Funambol and the other sites are independent from one another. You further acknowledge and agree that once you decide to share Content and/or other information with other sites, you must also comply with the terms and conditions of those other site(s).
16. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SITE AND THE SERVICES IS AT YOUR SOLE RISK.THE SITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. FUNAMBOL EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, ACCURACY, AND QUIET ENJOYMENT.
(b) FUNAMBOL MAKES NO WARRANTY (AND ASSUMES NO OBLIGATION) THAT (i) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (ii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (iii) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, (iv) ANY SOFTWARE DOWNLOADED TO A MOBILE DEVICE, OR ANY INFORMATION READ FROM OR WRITTEN TO A MOBILE DEVICE, WILL NOT ADVERSELY AFFECT THE PERFORMANCE, OPERATION, WARRANTY OR ANY OTHER ASPECT OF THE DEVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FUNAMBOL OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS&CONDITIONS.
17. LIMITATION OF LIABILITY
IN NO EVENT SHALL FUNAMBOL BE LIABLE FOR:
(a) ANY DAMAGES IN EXCESS OF THE LOWER BETWEEN (i) THE AMOUNTS ACTUALLY PAID BY YOU FOR THE SERVICES AND (ii) $50; OR
(b) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FUNAMBOL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iii) LOSS OR DELETION OF ANY OF YOUR DATA OR CONTENT (iv) STATEMENTS, CONDUCT, OR CONTENT OF ANY THIRD PARTY ON THE SERVICE OR THE SITE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
18. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 16 AND 17 MAY NOT APPLY TO YOU.
19. COPYRIGHTS
Funambol respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, provide the following information to Funambol:
Intellectual property infringement claim can be sent to info@funambol.com.
You further acknowledge and agree not to use in connection with the Services any copyrighted material without the written consent of the owner of such material.
19. FEES
You agree to pay all fees and charges specified when you sign up for the Premium Service. All the fees are exclusive of applicable taxes, unless otherwise stated, and you are solely responsible for the payment of any such taxes that may be imposed on your use of the Premium Service.
20. CANCELLATION POLICY
If you elect to cancel your Premium Service account before the expiration of the term of such Premium Service you agree to pay a cancellation fee of $25.00 to Funambol. Funambol will then pay you back the amount you paid to Funambol prorated for the number of months you will not be using the Services, rounded to the end of the month following your communication to Funambol regarding your cancellation, net of the cancellation fee.
21. GENERAL
The Terms&Conditions and the relationship between you and Funambol shall be governed by the laws of the State of California (without giving effect to any principles that may provide for the application of the law of another jurisdiction). You agree to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California. The failure of Funambol to exercise or enforce any right or provision of the Terms&Conditions shall not constitute a waiver of such right or provision. If any provision of the Terms&Conditions 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 Terms&Conditions remain in full force and effect. 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 Services or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms&Conditions are for convenience only and have no legal or contractual effect. Any notices intended to have legal effect: (a) to you may be made via email, regular mail or through the Services, and (b) to Funambol must be made by delivery receipt-requested mail at Funambol headquarters, ATTN: Legal Department.