This agreement ("Agreement") is a contract between you and FunMobility, Inc. By visiting or using the FUNMO web site ( www.FunMo.com ), other FunMobility, Inc. affiliated sites ( www.mlab.com, www.myapix.com, www.funmobility.com, www.moblastic.com ), the FunMo Widgets, other FunMo and/or FunMobility affiliated mobile entertainment services (America's Best Mobile Pix™, Flirt Pix™, instant messaging, mobile publishing, text messaging, MMS, and SMS) or by completing the registration process to use the FUNMO Download or Subscription services (collectively, the "Services" or "FUNMO Services"), you agree to be bound by the following terms and conditions (the "Terms of Service" or "Terms") and the current FunMobility Community Code of Conduct available at http://funmo.com/conduct , and the current FunMobility Privacy Policy available at http://funmo.com/privacy , which is incorporated herein by reference.
You must be at least thirteen (13) years of age to use the FUNMO Services. By providing information to FUNMO through the account registration page for new customers or any other part of the FUNMO site, you represent to FUNMO that you are 13 years of age or older. If you are between 13 and 17, you represent that you received parental permission both to complete the registration process and to download content to your cell phone.
If you do not agree to be bound by (or cannot comply with) any of the terms and conditions of this Agreement, do not continue the registration process or attempt to access any part of the Service. FUNMO reserves the right to deny registration of any individual to the FUNMO Services and to deny access to this website to any individual.
1. THE FUNMO SERVICE & BILLING INFORMATION
You must be 18 years or older in the following states: Florida.
Must be at least 18+ or have parental consent.
FUNMO's current rates:
The FUNMO Website includes downloadable mobile entertainment, such as ringtones, graphics, applications, videos, and games (collectively, the "Downloads"). You may purchase the Downloads through the FunMo Subscription Service where you will receive multiple Downloads according to a specified schedule ("Subscriptions"). You may also purchase some Downloads individually. Once fully registered and after making payment or being subscribed to the Service, you will be permitted to download to compatible devices the Downloads you requested.
You must have an internet-enabled cell phone or device in order to access the FUNMO services, including subscription and transactional services. Normal carrier charges and taxes may apply to any content you obtain from FUNMO. FUNMO is not responsible for any surcharges you incur from your cell phone or internet service provider as a result of the use of the FUNMO website or services.
The Unlimited Subscription Services – By registering for an Unlimited Subscription Service you authorize FUNMO to bill your mobile telephone invoice. Monthly Subscription plans are billed the Subscription fee each month until you cancel the Subscription. If you cancel your Subscription for any reason, FUNMO will not refund any of your fees. Monthly subscribers are billed on a 30-day cycle, which begins on the first day you sign up for the subscription and ends 30 days thereafter (your "Billing Cycle"). Your telephone bill will be charged on the first day of each Billing Cycle. You agree that normal carrier charges (WAP, MMS, GPRS, and SMS) may apply. Unused Credits do not roll-over to the next month.
You agree that if any attempt to bill you for your subscription fails for any reason, including non-payment by you or errors on the part of your mobile telephone company, FUNMO reserves the right to re-bill you for any outstanding fees.
Text Message Communications – You expressly agree that, as part of the service provided by FUNMO, you will receive communications from FUNMO by text message (SMS), including our promotional newsletters from time to time. You may stop receiving promotional text messages by emailing your request to opt-out, along with your cell phone number, to optout@funmobility.com , or following the opt-out instructions in the text message. You may not opt out of service-related text messages. You may receive your password confirmation text message multiple times until you complete the sign-up process. If you would like to stop receiving the password confirmation text messages, please email us at passwordsms@FunMo.com.
Email Communications – You also agree to receive promotional and account related email communications from FunMo. You may unsubscribe from promotional email communications by unsubscribing here.
Purchasing Downloads Individually – You may purchase the Downloads individually. By completing the registration process, you authorize FUNMO to charge the appropriate fees to the mobile phone number you provide to FUNMO during the registration process. You agree that normal carrier charges (WAP, MMS, GPRS, and SMS) may apply.
Right to Change Fees – All fees are subject to change upon notice from FUNMO. FUNMO will provide you with reasonable notice of such change through a service message to your device, a service email or by posting the change prominently on the website. If you do not agree to the new fees, you will have 10 days from such notice to cancel your Subscription.
Taxes – FUNMO reserves the right to collect applicable taxes for certain features of the Service.
Expiration of License – FUNMO's rights to make available certain Downloads to you may expire. In such event, FUNMO will cease delivering a playback license to you after the end of the period in which such rights expire. FUNMO will not refund any portion of your fees, but you may contact customer support at help@funmobility.com to receive replacement credit.
Help – Text 'HELP' to 50800 for text information on your FUNMO Subscription Service.
FunMo Widgets – From time to time, FunMo offers applications, including applications that may access certain information from the FunMo Service or facilitate the transmission of content to or from mobile devices, including for use on other platforms, such as the Facebook® Platform, (such applications and any accessible information, the "Widgets").
2. CANCELLATION & TERMINATION
Subscription Service and Pulse Service
If you have the FunMo Subscription Service, you can cancel by sending a text message from your mobile device containing only the word(s) 'STOP' or 'STOP SUB' to the shortcode 50800.
For AT&T users signing up for the Subscription Service via FunMo's WAP site, follow the same instructions as above.
Cancellation for subscribers will take effect immediately and all unredeemed credits will be forfeited. Services are not pro-rated for mid-month cancellations. FUNMO will send you a text message confirming the cancellation. If you have any questions about cancellation please contact our customer service at help@funmobility.com.
Except as set forth above with respect to inadvertent charges, in the event that your account or subscription is terminated or canceled, FUNMO will not refund any fees.
Termination – FUNMO reserves the right, at its sole discretion, to terminate your permission to access and use your FUNMO account and/or the FUNMO website for any reason at any time without notice, including in the event that FUNMO reasonably believes that you have breached or acted inconsistently with any provision of the Terms. You acknowledge and agree that FUNMO shall have no liability or responsibility to you for termination or suspension of your access or use, and that, in the event you breach these Terms, no portion of your fees will be refunded.
Disputes – Your sole right and remedy with respect to any dispute with FUNMO is to cancel your account. Disputes may include, but are not limited to, disputes related to or arising out of: these Terms and Conditions or any policy or practice of FUNMO, including its Privacy Policy, or FUNMO's enforcement or application of the same; the Downloads, Subscriptions, or Widgets; Your use or access to the Service or Subscriptions; and the FUNMO billing method or amount or type of fees, surcharges and applicable taxes or any change to the same.
3. ACCEPTABLE USE OF FUNMO
By downloading and/or using the FUNMO Downloads, Subscription Services and/or Widgets, you agree that FUNMO grants you a non-exclusive, non-transferable, revocable right to use the Downloads, Services, or Widgets on your compatible device for your own personal, non-commercial use only. Your use of the FUNMO Services means you also agree to the following acceptable use policies:
Personal, Non-Commercial Use Only – The FunMo Services are for your personal, non-commercial use only. You understand and agree that you may not resell, transmit or re-transmit, broadcast or re-broadcast or make any commercial use of the Service, including the Downloads, Subscriptions or Widgets. For example, you may not copy or distribute the Service, the Downloads, the Subscriptions, or the Widgets in any manner not expressly authorized by the Service. If you want to make commercial use of the FUNMO Services, you must enter into an agreement with FUNMO to do so in advance. Please contact us for more information.
Registration and your Personal Information – In order to use certain features of FUNMO, you must register and provide personal information such as your name and wireless device number to FUNMO ("Personal Information"). FUNMO will use your personal information in accordance with its Privacy Policy. Please review the Privacy Policy before you complete the registration process or attempt to use any part of the Service. For additional information regarding FUNMO's collection, use and disclosure of your personal information, please refer to FUNMO's Privacy Policy.
Objectionable or Explicit Content – FUNMO may contain content or materials that you may find objectionable. FUNMO does not warrant, and makes no guarantee or representation, that you will not find all or part of any Download or Subscription to be objectionable. Parents should use appropriate parental discretion in determining whether you want to authorize minor children to access the service.
International Use – FUNMO is hosted in the United States and is intended only for use in the United States. You agree that you will use the Service only in the United States. At this time, FUNMO's services are not available to overseas visitors.
Intellectual Property Rights – The Downloads and the Widgets made available as part of the Service are owned by FUNMO, its licensors, partners and affiliates and are protected by U.S. intellectual property laws. By using the FUNMO Services you understand and agree to abide by U.S. intellectual property laws and agree not to reproduce, modify, scrape, cache, frame, display, perform, transfer, distribute, create derivative works from, or otherwise use the Downloads, the Widgets except as authorized in this Agreement, and agree not to authorize, encourage or allow such use by any other party. You agree that you will take all reasonable steps to prevent any unauthorized reproduction and use of the Downloads or Widgets.
"Bots", Hacking and Other Unauthorized Use – Users of FUNMO may not attempt (or authorize, encourage or support others' attempts) to gain unauthorized access to any FUNMO Services, user accounts or computer networks through hacking, password mining or any other means, or to reverse engineer, decrypt, break or otherwise alter or interfere with the Service, including the Downloads, Widgets and the Subscriptions. You may not use any web robots (bots'), web crawlers, data-mining, or similar applications to submit, gather and extract data from, or otherwise use the FUNMO Services. You agree to advise FUNMO promptly of any such unauthorized use(s) or attempt(s). You may not interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services, or act in a manner that negatively affects the ability of other users to use the Services.
Customer Support – Please direct any questions concerning the Service or any other FUNMO-related issue, to a FUNMO customer service representative by e-mail at: help@funmobility.com.
Pulse – FUNMO offers a Pulse Service, where users can create profiles, Pulse photos and videos, participate in discussions, and much more. Users of some wireless services may receive a Pulse account automatically when subscribing to the FunMo Subscription Service. By using the Pulse facilities, you understand that all information, text, audio/video materials, messages, tags, or other materials (collectively, 'Content'), whether publicly posted or privately transmitted, are the sole responsibility of the person originating the Content. You acknowledge and agree that you are solely responsible for any and all Content that you upload, transmit, post, or otherwise make available on the FUNMO website or through the FUNMO service.
FUNMO does not control Content made available by users, and does not guarantee the accuracy, integrity, or quality of such Content. You acknowledge and agree that by accessing the Pulse, you may be exposed to Content that you find offensive, indecent, or otherwise objectionable. FUNMO shall not be liable for any loss or damage of any kind incurred as a result of the use, uploading, or otherwise making available of any Content on the service. You agree that you bear all risk associated with the use of any Content, including reliance on the accuracy, usefulness, or completeness of any Content.
You acknowledge and agree that FUNMO may or may not pre-screen Content, and that FUNMO shall have the right, but not the obligation, to pre-screen, refuse, move, or remove any Content available by or through the service, at its sole discretion.
You agree that you will NOT use the FunMo Services to:
Harm minors in any way; and/or
Interfere with or disrupt FUNMO's service, hardware, or telecommunications equipment.
4. THIRD PARTY CONTENT APPEARING ON THE FUNMO SITE
Links and Advertisements – The FUNMO website contains links to and advertisements for websites operated by third parties. While we endeavor to associate only with reputable sites, FUNMO cannot be responsible for the availability, content or the practices, such as the privacy policy and practices, of these other sites. Your business dealings with any third-party advertisers through the Service, 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 third-party. You agree that FUNMO and its affiliates are not responsible, 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, goods or services available through third party sites. Please contact those sites directly if you have any concerns about their availability, content or practices.
FunMo Promotions – From time to time FUNMO may provide users with the opportunity to participate in promotional events sponsored by third party advertisers or affiliates. Your participation in any FUNMO promotional event is subject to the terms associated with that event. Your participation in these promotions and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the sponsoring third-party. You agree that neither FUNMO nor its affiliates shall be responsible or liable for any loss or damage of any sort incurred as the result of the promotions or as the result of the presence of such third parties on the Service.
5. REFERRAL PROGRAMS
We may from time to time offer you the opportunity to earn rewards by referring friends to subscribe to FunMo ("Referral Program"). Participation in a Referral Program may require you to submit personal information about you and your friends, such as name and email address. By participating in a Referral Program, you agree to receive communications from FunMo, and/or from our trusted partners that operate and maintain the Referral Program, with regards to your participation in the Referral Program. The following guidelines shall apply to your participation in any Referral Program:
We reserve the right to modify or amend at any time these guidelines and the methods through which rewards are earned. We reserve the right to disqualify you at any time from participation in a Referral Program if you do not comply with any of these guidelines. All information collected from you in a Referral Program shall be subject to the FunMo privacy policy which can be found at http://www.FunMo.com/privacy.
6. FUNMO PROPRIETARY RIGHTS
General – Your use of the Service, Downloads, Subscriptions, and Widgets is under license; you will not obtain any ownership interest in any of the Services through this Agreement or otherwise. All content in the Service or on the FUNMO website, such as the Downloads, Subscriptions, Widgets, text, graphics, logos, button icons, images, data compilations, and software, is the property of FUNMO or its content suppliers and protected by United States and international copyright and other intellectual property laws. The compilation of all content on this site is the exclusive property of FUNMO and protected by U.S. and international copyright laws. Your rights with respect to your use of the same are governed by these Terms, all applicable laws, including but not limited to intellectual property laws, and any applicable end-user license agreements.
Trademark Information – 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 FUNMO and/or its affiliates, licensors and/or licensees. Without FUNMO's prior permission, you agree not to display or use in any manner the FUNMO' marks.
7. CONTENT SUBMITTED BY USERS
FUNMO claims no ownership of Content you make publicly available on the Service, or otherwise upload, post or transmit for inclusion in publicly accessible portions of the Service. With respect to such Content, you grant FUNMO a worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display the Content for the purpose for which such Content was submitted or made available. FunMo can also make derivative works of each such User Submission and your name, content and/or likeness contained in your User Submission, in whole or in part, and in any form, media or technology, whether now known or hereafter developed for use in connection with the Services.
This license terminates when you remove (or FUNMO removes) such Content from the Service. You understand and agree, however, that FUNMO may retain copies, make derivatives, perform, or distribute server copies, but not display Content that has been deleted or removed. The license granted above with respect to Content that consists of text, messages, or user comments posted to publicly accessible areas of the FUNMO Website is perpetual and irrevocable.
All User Submissions are deemed non-confidential and FunMobility shall be under no obligation to maintain the confidentiality of any information and content, in whatever form, contained in any User Submission.
FUNMO may offer contests or promotions encouraging users to upload Content for judging or prizes. Content uploaded for a contest or promotion is subject to the terms of the specific contest or promotion.
8. GENERAL TERMS
Applicable Law – These Terms of Service and your use of the Service, including the Downloads and the Subscriptions, will be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of law principles. You expressly consent that the state or federal courts of Alameda County, California. shall have exclusive jurisdiction and venue over any dispute arising out of or relating to these Terms or any claim involving FUNMO or its partners, parents, licensors, affiliates, subsidiaries, employees, contractors, officers, directors or suppliers, and you hereby covenant that you will not bring suit in any other jurisdiction.
Severability of Terms – If for any reason a court of competent jurisdiction finds any provision or portion of the Terms of Service to be unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remainder of the Terms of Service will continue in full force and effect.
Entire Agreement – These Terms, which incorporate by reference the FunMo Privacy Policy, constitute the entire agreement between the parties with respect to your use of the Service or any part thereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the Terms of Service will be effective only if in writing and signed by FUNMO. 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.
Assignment of Terms – These Terms may not be assigned by any user of FUNMO. These Terms may be assigned by FUNMO and shall inure to the benefit of FUNMO, its successors and assigns.
No Right of Survivorship or Transferability – You agree that your FunMo account, including any optional profiles you may create, is non-transferable and any rights to your account or the contents thereof terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
FUNMO's Remedies – You agree that any unauthorized use of the Services, the Widgets or the Downloads would result in irreparable injury to FUNMO and/or its affiliates or licensors for which money damages would be inadequate. In such event FUNMO its affiliates and/or licensors, shall have the right to immediate injunctive relief against you, in addition to other remedies available at law and in equity. Nothing contained in these Terms shall be construed to limit remedies or relief available pursuant to statutory or other claims that FUNMO, its affiliates and/or licensors may have, including but not limited to, any claim for intellectual property infringement.
Indemnity – By using the FUNMO Services, you agree to indemnify and hold FUNMO, its affiliates, employees, directors, successors and assigns, harmless for any violation or against any third party claim, damages or demand, including reasonable attorneys' fees, relating to or arising out your use of the Service, including the Downloads, the Widgets, and the Subscriptions, your violation of these Terms, or your violation of any rights of another party.
9. DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY
Disclaimer of warranties – By using the FUNMO services you expressly understand and agree that: the FUNMO Services, and all downloads, materials, applications, information, products and services included in the FUNMO services are provided "as is" with no warranties by FUNMO or its agents, employees, parents, subsidiaries, affiliates, licensors, business partners and/or suppliers (the "FUNMO entities"). FUNMO and the FUNMO entities expressly disclaim to the fullest extent permitted by law all express, implied, and statutory warranties, including, without limitation, the warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights.
FUNMO and the FUNMO entities disclaim any warranties that the Services, the Downloads, the Widgets, or the Subscriptions will meet your requirements, or that your access to the same will be uninterrupted or error-free. FUNMO and/or the FUNMO entities, do not warrant, guarantee, or make any representations regarding the use or the results of the use of the Services, the Downloads or the Subscriptions with respect to the accuracy, operability, availability, security, reliability, timelines, and performance of the FUNMO Services. FUNMO disclaims any responsibility for the deletion or failure to store any content.
You understand and agree that you download or otherwise obtain material or data through the use of the FUNMO services at your own discretion and risk and that you will be solely responsible for any damages to your mobile phone, mobile phone service or computer system or loss of data that results from the download of such material or data. You will not hold FUNMO and/or the FUNMO entities responsible for any damages that result from you using the Services 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 FUNMO and/or the FUNMO entities as applicable. FUNMO and the FUNMO entities disclaim any warranties for services or goods received through or advertised on the FUNMO Services or received through any links provided by the FUNMO Services.
The Services may contain links to third-party websites or services that are not owned or controlled by FunMobility. FunMobility has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites or services. In addition, FunMobility will not and cannot censor or edit the content of any third-party website or service. By using the Services, You expressly relieve FunMobility from any and all liability arising from your use of any third-party website or services. FUNMOBILITY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICES, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND FUNMOBILITY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FunMobility does not endorse any User Submission or the views, opinions, recommendations or advice expressed via the Services. FunMobility is not responsible for any User Submission content or the accuracy, usefulness or safety thereof, no matter the source. FunMobility is not obligated to review the User Submissions for any reason. You may be exposed to User Submissions that are inaccurate, offensive, indecent, objectionable, infringing, and you hereby agree to waive any legal rights and remedies you may have against FunMobility.
The Services are controlled from FunMobility's facilities in the United States. FunMobility makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
The Services do not include any "dating" website and FunMobility does not provide, nor does it intend to provide, any dating, matchmaking, or social referral services.
Limitation of liability – under no circumstances, shall FUNMO and/or the FUNMO entities as applicable, be liable for any unauthorized use of the Services, the Downloads and/or the Subscription.
Under no circumstances, including, but not limited to, negligence, shall FUNMO or the FUNMO entities be liable for any direct, indirect, special, incidental or consequential damages, including, but not limited to, loss of data or profit, arising out of the use of, reliance on, or the inability to use, the Downloads or Services, or from the interruption, non-performance, suspension, or termination of the FUNMO Services (including such damages incurred by third parties), even if FUNMO and/or the FUNMO entities as applicable, have been advised of the possibility of such damages.
This limitation shall also apply with respect to damages incurred by reason of advice, information, services or goods received through, or advertised on the FUNMO Services or received through any links provided in the FUNMO Services.
Without limiting the foregoing, FUNMO or its licensors shall not be liable for any delay, interference or failure in performance resulting directly or indirectly from acts or conditions beyond its reasonable control, including without limitation, fire or other casualty or accident, internet failures, telephone equipment failures, acts of god, severe weather conditions, war or other violence, or any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental agency.
Exclusions and limitations – some states or other jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages so the above exclusions may not apply to you. You may also have other rights that vary from state to state and jurisdiction to jurisdiction.
10. PROCEDURES FOR CLAIMS OF COPYRIGHT INFRINGEMENT
FUNMO respects the intellectual property rights of others. FUNMO may, in appropriate circumstances and at its sole discretion, disable and/or terminate the accounts of users who may be repeat copyright infringers. If you believe that your work has been used in a way that constitutes copyright infringement, please send notice to FUNMO's Copyright Agent, including the following information:
Notices can be sent to FUNMO's Copyright Agent at:
Registered Copyright Agent
| Attn: | DMCA Notice |
| COMPANY: | FunMobility, Inc. |
| ADDRESS: | 5568 Gibraltar Drive, Pleasanton, California 94588 |
| Telephone: | (925) 598-9700 |
| Fax: | (925) 598-9770 |
| Email: | copyright@funmobility.com |
11. CHANGE IN TERMS AND CONDITIONS AND FUNMO SERVICES
FUNMO may modify or terminate its Services from time to time, for any reason, and without notice or liability to you, any other user or any third party. We reserve the right to revise these Terms of Service by updating this posting. Please review these Terms of Service from time to time so that you will be apprised of any changes. Use of this service following a change to the Terms of Service constitutes agreement to the new Terms. If you cannot comply with the amended Terms, your only remedy is to cancel your FUNMO Subscription and/or not use the Services.
©2008 FunMo, Inc.
For personal non-commercial use only. All rights reserved. Usage of album artwork is solely for promotion of CD sales, and no endorsement or sponsorship of FunMo or its products by any musical artists or other parties is expressed or implied. Artist names for identification purposes only. Third party trademarks are the property of their respective owners. Depiction or mention of handsets or other FunMo-compatible devices does not indicate their manufacturers' partnership, endorsement or sponsorship of FunMo. iPod® is a registered trademark of Apple Inc. Apple is not a partner or sponsor of FunMo.
