Important Terms | PhoneTell

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Effective September 18, 2009

PhoneTell Terms of Use

This PhoneTell, Inc. Terms of Use Agreement (this “Agreement“) is a legal agreement between you and PhoneTell, Inc. (“PhoneTell“, “we“, “us” or “our“) providing, among other things, the terms and conditions for your use of PhoneTell’s services that are delivered via the PhoneTell site www.phonetell.com (the “Site“), delivered via the PhoneTell downloadable user applications (“Software“), and otherwise delivered to mobile devices and computers (collectively, the “Service“). This Agreement incorporates the PhoneTell Privacy Policy available at http://www.phonetell.com/company/privacy-policy.

BY USING THE SERVICE YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE OR CANNOT COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE SERVICE, INCLUDING BUT NOT LIMITED TO THE SOFTWARE OR THE SITE. PhoneTell may from time to time modify these terms of use and will post a copy of the amended Agreement on the Site at www.phonetell.com/company/terms-of-use. If you do not agree to, or cannot comply with the Agreement as amended, you must stop using the Service. You will be deemed to have accepted the Agreement as amended if you continue to use the Service after any amendments are posted on the Site or you are otherwise notified through the Software, as applicable.

AUTHORIZED USERS. The Service is intended solely for users located in the United States who are 13 years of age or older. If you are not located in the United States or if you are under the age of 13, you are not permitted to use the Service. IF YOU ARE A USER BETWEEN THE AGES OF 13 AND 17, PLEASE REVIEW THESE TERMS OF USE WITH YOUR PARENTS OR LEGAL GUARDIAN. THE SERVICES ARE NOT DESIGNED TO ATTRACT CHILDREN UNDER THE AGE OF 13 AND WE DO NOT INTENTIONALLY COLLECT PERSONAL INFORMATION FROM CHILDREN THROUGH OUR SERVICE.
USER ACCOUNT; REGISTRATION. Some areas or features of the Service require you to become a registered user and have an account registered through the Service (“User Account”). When you register for a User Account, you provide us with certain information including, without limitation, name, email address, age, and a password chosen by you (collectively, the “Registration Data”) that identifies you to PhoneTell. The Registration Data submitted by you will be used in accordance with the PhoneTell’s Privacy Policy. By creating a User Account, you agree to: (i) provide accurate and current Registration Data about you as may be prompted by any registration forms on the Site or through the Software, and to keep the Registration Data current and complete; (ii) maintain the security of your User Account password and identification and not disclose your password to any third party; and (iii) be fully responsible for all use of your account and for any actions that take place using your User Account. You understand and acknowledge that you have no ownership rights in your User Account, and that if you cancel your User Account or if your User Account is deactivated for any reason, you may lose all your account information retained by the Service, including but not limited to User Account profiles, saved items, and configurations; all of which will be marked as deactivated and may be deleted from our databases, excepting residual information that may stay in back-up versions. UPON CANCELLATION YOU WILL LOSE ALL PRIVILEGES OF BEING A REGISTERED USER. User Accounts may be deactivated after a period of 90 days of no User Account activity (or such longer period at our discretion), at which time the user who is associated with the deactivated User Account ceases to be a Registered User.
LICENSE GRANT. Subject to the terms and provisions of this Agreement, and so long as you fully comply at all times with this Agreement, PhoneTell grants you a non-exclusive and limited license to use the Software on a single mobile device (as applicable), and to otherwise use the Service for personal and internal business purposes. This Agreement will also govern any software upgrades provided by PhoneTell that replace and/or supplement the original Software, unless such upgrades are accompanied by a separate license, in which case the terms of that license will govern. In exercising your limited rights hereunder, you shall comply at all times with all applicable laws, regulations, ordinances, and statutes.
USE OF THE SERVICE. You understand that by using the Service, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the Service at your sole risk and that PhoneTell shall have no liability to you for content that may be found to be offensive, indecent, or objectionable.
PhoneTell reserves the right to change, suspend, remove, or disable access to the Service or any feature thereof, at any time without notice. In no event will PhoneTell be liable for any removal of or disabling of access to any portion of the Service. PhoneTell may also impose limits on the use of the Service or access to PhoneTell’s computers or communications networks (which may be required to operate the Software as intended), in any case and without notice or liability.
PROHIBITED CONDUCT. You must use the Service only in a manner that is consistent with its intended purpose and only for lawful purposes. You shall not use the Service to transmit, distribute or store material: (i) that would constitute, encourage, promote, facilitate or instruct others to engage in illegal activity, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law; (ii) that may adversely affect the Service, PhoneTell or any PhoneTell customers; (iii) that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law; or (iv) that may expose PhoneTell to criminal or civil liability. You are prohibited from facilitating the violation of any part of this Agreement or another provider’s terms of use, including, but not limited to transmitting, distributing, or otherwise making available any product, service, or content that violates this Agreement or another provider’s terms of use.
1. Inappropriate Content. You shall not use the Service to transmit, distribute or store material that, as reasonably determined by PhoneTell, is inappropriate, obscene, abusive, harassing, unlawful, invasive of privacy or publicity rights, defamatory, libelous, threatening, abusive, hateful, or otherwise objectionable, including any material that promotes hate, violence, racial intolerance, or the financial exploitation of a crime.
2. Intellectual Property. You shall not use the Service in any manner that would infringe, dilute, misappropriate, or otherwise violate any privacy, publicity, or other personal rights and intellectual property rights, including but not limited to, copyrights and laws protecting patents, trademarks, trade secrets or other proprietary information. You further agree that you shall not (i) remove or alter any notices or other markings or legends, such as trademark or copyright notices, affixed on or within the Service; (ii) rent, sell, lease, sublicense or commercially exploit the Service; (iii) disassemble, reverse engineer, decompile, modify or alter the Service or any portion thereof; (iv) reproduce or copy the Service; (v) publicly display the Service; (vi) prepare or develop derivative works based upon the Service.
3. Harmful Actions and Content. You shall not restrict, inhibit, or otherwise interfere with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Service. You shall not use the Service to transmit, distribute or store material that may be harmful to or interfere with the Service, or any third party’s networks, systems, services, or websites. Such prohibited harmful content includes, but is not limited to, viruses, worms, or Trojan horses, or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of Service or any computer software or hardware or telecommunications equipment.
4. Fraudulent/Misleading Content. You shall not use the Service to impersonate any person or entity, forge anyone else’s digital or manual signature, or perform any other similar fraudulent activity (for example, “phishing”). You shall not use the Service to transmit or distribute material containing fraudulent offers for goods or services, or any advertising or promotional materials that contain false, deceptive, or misleading statements, claims, or representations.
5. Unsolicited Communications. You shall not use the Service to transmit unsolicited e-mail or other messages, including, without limitation, unsolicited bulk email, where such emails could reasonably be expected to provoke complaints (“Spam“). Further, you shall not use the service of another provider to send Spam to promote the Service or any portion thereof. In addition, you shall not use the Service in order to (a) send e-mail or other messages which are excessive and/or intended to harass or annoy others, (b) continue to send e-mail or other messages to a recipient that has indicated that he/she does not wish to receive them, (c) send e-mail or other messages with forged TCP/IP packet header information or other misleading sender information, (d) send malicious e-mail, including, without limitation, “mail-bombing”, or (e) send or receive e-mail or other messages in a manner that violates the use policies of any other Internet service provider.
RESPONSIBILITY FOR CONTENT. You understand that all information which you may have access to through your use of the Service is the sole responsibility of the person or entity from which such content originated. Content provided to PhoneTell is not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and as such they are not responsible for any content provided to them, including without limitation, the subject matter, accuracy, offensiveness, opinions, reliability, and any links contained within such content. Use of any websites or services reached through the Service is subject to the terms of use presented on such website or service. You use the Service and access any content through the Service, at your own risk. You acknowledge PhoneTell may have no control over any websites or resources which are provided by companies or persons other than PhoneTell. You acknowledge and agree that PhoneTell is not responsible for the availability of any such websites and does not endorse any advertising, products or other materials on or available from such websites. In addition, you acknowledge and agree that PhoneTell is not liable for any loss or damage which may be incurred by you as a result of the availability of those websites, or as a result of any reliance placed by you on the completeness, accuracy or existence or any advertising products or other materials on, or available from, such websites. In the event that PhoneTell becomes aware that any content available through the Service may violate this Agreement and/or expose PhoneTell to civil or criminal liability, PhoneTell reserves the right to block access to such material and suspend or terminate any user creating, storing or disseminating such material. PhoneTell further reserves the right to cooperate with legal authorities and third parties in the investigation of alleged wrongdoing, including disclosing the identity of the user that PhoneTell deems responsible for the wrongdoing.
To the extent that you provide any content through the Service, including without limitation, text, images, audio, video, website addresses or otherwise, you represent, warrant, and agree that you have the right to make such content available and that it will not violate or infringe upon the rights of any third party, including without limitation copyright, trademark, privacy, publicity, attorney-client privilege, or other personal or proprietary rights; or contain libelous, defamatory, or otherwise unlawful material. By submitting or directing the Service to use such content, you grant PhoneTell, and its parent, affiliates, subsidiaries, assigns, agents, and licensees a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any such content that you post on, or in connection with, the Service.
OWNERSHIP. PhoneTell owns all intellectual property in the Service. The structure, organization and code of the Software are the valuable trade secrets and confidential information of PhoneTell. The PhoneTell trademarks, including but limited to PhoneTell, PhoneTell!, and RINGPAGES, are the property of PhoneTell. The Service is protected by law, including but not limited to the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Service (including but not limited to the Software) and all rights not expressly granted are reserved by PhoneTell and its licensors. You agree that the materials made available through the Service, including but not limited to graphics, audio clips, and editorial content, may contain proprietary information and material that is owned by PhoneTell or other third parties, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary information or materials in any way whatsoever except as permitted for use with the Service by this Agreement and applicable law.
PERFORMANCE AND USAGE INFORMATION. Portions of the Service might be configured to automatically report back information regarding your use of the Service or information relating to computer errors arising in connection with use of the Service, without notice to you. Information on your configuration settings for the Software or Site may be included. This data, if sent, is used by PhoneTell to help diagnose performance issues with, and improve the Service. Portions of the Service may also provide PhoneTell with anonymous information about use of Service features. PhoneTell uses this information to personalize the Service for you, and in the aggregate to determine which features and buttons are most popular and useful to its users. The Software may contain a specific identification number for the purpose of tracking the number of unique instances of the Software in use, or identifying personalized settings created for your use of the Service. Information collected by PhoneTell shall be used in accordance with PhoneTell’s Privacy Policy.
PRIVACY POLICY. You agree to the PhoneTell Privacy Policy as it may be updated from time to time, and which is made available at www.phonetell.com/legal/privacy. When changes are made to the privacy policy a new version and date will be posted on the above referenced website. It is your responsibility to ensure that you understand the terms of the PhoneTell Privacy Policy, so you should periodically check the current version of the policy for changes.
PROTECTING COPYRIGHT; DIGITAL MILLENNIUM COPYRIGHT ACT. We respect the intellectual property rights of others and as a condition of your use of the Service you agree not to use the Service in a manner that would infringe the intellectual property rights of others in any way. The unauthorized posting, reproduction, copying, distribution, modification, public display, or public performance of copyrighted works constitutes infringement of the copyright of owners’ rights and is strictly prohibited.
1. Our Designated Agent to Receive Notifications of Infringement Under the DMCA. If any copyrighted work is made available on or through the Service in violation of a copyright, the owner of such copyright may provide PhoneTell with a written communication or notice pursuant to the Digital Millennium Copyright Act (“DMCA“) 17 U.S.C. § 512(c)(3) (the “DMCA Notice”). The DMCA Notice should be sent to Wendell Brown, who is our “Designated Agent” and can be contacted as follows:
  • By Mail: PhoneTell, Inc., 4200 Bohannon Road, Suite 100, Menlo Park CA 94025
  
  • By Telephone: (650) 395-8355
  
  • By Email: info@phonetell.com
2. Notice of Infringement. The DMCA Notice to the Designated Agent should include the following:
  1. Signature of Copyright Owner or Agent – A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  2. Identification of the Copyrighted Material – Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works.
  3. Identification of the Allegedly Infringing Material – Identification of the material that is 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.
  4. Contact Information – Information reasonably sufficient to permit us to contact the sender of the DMCA Notice, such as an address, telephone number, and, if available, an electronic mail address at which the sender may be contacted.
  5. Good Faith Belief of Infringement – A statement that the sender of the DMCA Notice has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  6. Accuracy and Authority – A statement that the information in the DMCA Notice is accurate, and under penalty of perjury, that the sender of the DMCA Notice is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
3. Please note that a sender of a DMCA Notice may be liable for damages, including court costs and attorneys fees, if the sender materially misrepresent that content on the Site and/or content made available by the Service infringes upon the copyright of another.
4. Counter-Notice. If you believe in good faith that a DMCA Notice of copyright infringement has been wrongfully filed against you, the DMCA permits you to send us a counter-notice. Counter-notices must be sent to our Designated Agent and must include the following:
  1. Your Signature – A physical or electronic signature of the user who the claim of infringement is made against.
  2. Identification of Removed/Blocked Material – Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
  3. Your Good Faith Belief – A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
  4. Your Contact Information, Acceptance of Jurisdiction and Service of Process – Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Orange County, California, and a statement that you will accept service of process from the person who provided the DMCA Notice of the alleged infringement.
5. Termination Under Our DMCA Policy. In accordance with the DMCA and other applicable law, it is PhoneTell’s policy to terminate, in the appropriate circumstances and at PhoneTell’s sole discretion, access to the Service for any user who has been found to violate copyright law by posting or otherwise making material available on or through the Service, in a way that infringes upon the intellectual property rights of others, whether or not there has been repeated infringement by such user.
NO SUPPORT OR UPGRADE OBLIGATIONS. PhoneTell is not obligated to create or provide any support, corrections, updates, upgrades, bug fixes and/or enhancements of the Service, or portions thereof.
SUSPENSION; TERMINATION. This Agreement automatically terminates if you fail to comply with the terms hereof or if you attempt to assign this Agreement or transfer the Software to a third party except as expressly permitted in this Agreement. Upon termination, you must stop all use of the Service and must destroy all copies of the Software that are in your possession. All provisions of this Agreement, except for Sections 1-4 above, survive the termination of this Agreement. PhoneTell may take any technical remedies to prevent any materials prepared in violation of this Agreement from entering, utilizing, or remaining within PhoneTell ’s computer or communications networks. PhoneTell may take such further action as PhoneTell determines to be appropriate under the circumstances to eliminate or preclude repeat violations. PhoneTell shall not be liable for any damages of any nature suffered by you, or any third party resulting in whole or in part from PhoneTell ’s exercise of its rights under this Agreement.
YOUR REPRESENTATIONS. You represent and warrant that you have adequate legal capacity to enter into this Agreement, that you will use the Service only for lawful purposes and that you will not violate the terms of this Agreement.
ADVERTISEMENTS. As consideration for using the Service, you agree and understand that we will display advertisements and other information as part of your user experience. The manner, mode, and extent of advertising by PhoneTell are subject to change without specific notice to you.
DISCLAIMER OF WARRANTY. THE SERVICE AND ANY CONTENT ACCESSED THROUGH THE SERVICE IS EACH PROVIDED ON AN “AS IS” BASIS WITH ALL FAULTS AND WITHOUT ANY WARRANTIES OF ANY KIND. PhoneTell TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. PhoneTell DOES NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR-FREE OR THAT THE SERVICE IS FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORT AND COST OF ANY SERVICE AND REPAIR IS WITH YOU. You bear the entire risk as to selecting the SERVICE for your purposes and as to the quality and performance of the SERVICE. This limitation will apply notwithstanding the failure of essential purpose of any remedy. Some jurisdictions do not allow the exclusion or limitation of implied warranties, so this disclaimer may not apply to you.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL PhoneTell BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY ASPECT OF YOUR USE OF THE SERVICE, WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE SERVICE, FROM INABILITY TO USE THE SERVICE, OR THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF YOUR USE OF THE SERVICE, OR ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Regardless of the previous paragraph, if PhoneTell IS found to be liable, such liability to you or any third party is limited to the greater of the total fees you paid to PhoneTell for USE OF THE SERVICE (if any) or $10.00. PhoneTell IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY YOU OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SERVICE, AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
INDEMNITY. You agree to indemnify, defend, and hold harmless, PhoneTell and each of PhoneTell ’s shareholders, directors, officers, agents, contractors, partners and employees, from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with any content you share or otherwise make available to another by using the Service, your use or misuse of the Service, or any breach and/or violation by you of this Agreement or of any law or the rights of any third party. PhoneTell reserves the right, at PhoneTell ’s expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with PhoneTell in asserting any available defenses.
CALIFORNIA RESIDENTS. If you are a California resident, you waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES. You agree that the laws of the State of California govern this contract and any claim or dispute that you may have against PhoneTell , without regard to California’s conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims that you may have against PhoneTell will be resolved by a court located in the State of California and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.
PLEASE NOTE THAT BY AGREEING TO THESE TERMS OF USE, YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST PhoneTell BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE OR FEDERAL COURTS IN THE STATE OF CALIFORNIA OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH PHONETELL; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS LOCATED IN THE STATE OF CALIFORNIA FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.
EXPORT CONTROL. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software for any purposes prohibited by United States law.
SUBMISSIONS. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions“), provided by you to us are non-confidential and shall become the sole property of PhoneTell. PhoneTell shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
GENERAL TERMS. If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties’ original intent, and the remaining portions remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. PhoneTell may assign this Agreement or rights hereunder (as applicable) to any entity at its sole discretion and without notice to you. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. This Agreement constitutes the entire agreement between you and PhoneTell concerning the subject matter of this Agreement, which may only be modified by PhoneTell .
CONTACT US. If you need to contact us regarding this Agreement, we can be reached at info@phonetell.com.