Funambol will provide you with access to the Zefiro Service (which enables synchronization and/or access of Personal and Rich Media data from various sites and applications), developer applications services, email-related services and/or publisher content services (the "Service" or "Services"). Use of the Services is limited to personal purposes and not for distribution to, or use on behalf of, others. Personal Data are your personal information manager files (which include your electronic "rolodex", SMS/MMS, call logs, list of apps). Rich Media data are your picture(s), video(s), file(s) and legally acquired music. Once you sign up for the use of the Services, your account will be allocated a certain level of storage capacity determined by Funambol. You explicitly agree that Funambol, at its sole discretion, can change and adjust the storage capacity and the limit at any time without notice to you.
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.
Please note that according to the United State Department of State
regulations, resident or citizens of countries that are subject to the
US State Department embargo are not eligible to use the service.
Funambol reserves the right to delete without notification any account/s that are discovered in violation of this stipulation.
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.
Our privacy statement, which is located at http://www.funambol.com/privacy.html, describes our data practices and is a part of this Terms&Conditions.
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).
All information, data (including Account Data and Contacts 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 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 and agree on the following uploading policy:
(a) any content (for example, but not limited to document, music file, video, photo) larger than 2GB (two Gigabyte) will not be stored on the server;
(b) you are entitled of an upload capacity of 20GB per calendar month; the service may prevent upload of more content when such a limit is reached;
(c) Funambol reserves the right to block or prevent, in full or part, access to the service if abuse or misuse is detected.
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 fees and/or data from Funambol.
You may use the Services only as permitted by law. You further agree to comply with (a) all applicable laws regarding online conduct and acceptable Content, and (b) all applicable export and re-export control laws and regulations, including, without limitation to, the United States export laws and regulations. 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.
Users resident in or citizens of countries embargoed by the United State Department of State are NOT permitted to sign up for the service.
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.
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.
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 other sites and applications from which you share your Content may also establish limits in the foregoing ways and Funambol has no control over those sites’ or applications’ limitations. You acknowledge that Funambol reserves the right to log off accounts that are inactive for a specified period of time. You further acknowledge that Funambol reserves the right to limit the number of sign-ups at any time without notice to you.
You understand that Funambol does not provide any technical support as part of the Services. However, you may refer to firstname.lastname@example.org for inquires.
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.
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.
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.
Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access. You may not use content from our Services unless you obtain permission from its owner or are otherwise permitted by law. These Terms&Conditions do not grant you the right to use any branding or logos used in our Services. You are not allowed to remove, obscure, or alter any legal notices displayed in or along with our Services.
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. Furthermore, you agree that you may not make the Software available to any third party as part of any rental, time-sharing, service bureau, or ASP arrangement and that the use of the Software is limited to your personal access. 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.
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 and licenses by other sites and applications, including, without limitation to, photos, videos, and Rich Media data ("IP content"), you specifically give us the following permission: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, copy, and make available 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 or applications other than the Funambol Site, you acknowledge that Funambol and the other sites and applications are independent from one another. You further acknowledge and agree that once you decide to share Content and/or other information with or from other sites or applications, you must also comply with the terms and conditions and privacy policies of those other sites and applications.
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.
WHEN PERMITTED BY LAW, IN NO EVENT SHALL FUNAMBOL BE LIABLE FOR 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.
TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF FUNAMBOL FOR
ANY CLAIM UNDER THESE TERMS&CONDITIONS, INCLUDING FOR ANY IMPLIED
WARRANTIES, IS LIMITED TO THE AMOUNT PAID US TO USE THE SERVICES.
IN ALL CASES, FUNAMBOL WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
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.
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 email@example.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. The unauthorized upload of copyrighted or other proprietary Content is illegal and could subject you to personal liability for damages in a civil suit as well as criminal prosecution. You assume all liability for any damage resulting from any infringement of copyright or proprietary rights.
The Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the software is provided to U.S. Government End Users (a) only as a commercial end item and (b) with only those rights as are granted to all other End Users pursuant to the terms and conditions herein.
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.