Fun Facter, LLC Terms of Service
To cancel service, simply send the keyword 'STOP' to 32287.
Description
Registration
Fees
Privacy
Indemnification
Disclaimer of Warranties and Limitation of Liabilities
Termination and Cancellation of Services
Objectionable or Explicit
Content
Copyright Restrictions
Promotions and Advertising
Modifications to Service
Miscellaneous Provisions
In this Subscription
Agreement ("Agreement"), "You" and "Your" refer to each customer
("Customer") and the Customer's agents, and "We," "Us," and "Our"
collectively refer to Fun Facter, LLC (the "Company"). This Agreement
explains our obligations to you, and your obligations to us in relation to
the "Service" (as defined below).
By either (i)
completing the registration process on our website located at
www.FunFacter.com or any successor website (the "Website"), or (ii)
downloading mobile content via Short Message Service ("SMS") to a mobile
device (each, a "Download"), you are (A) AGREEING TO BE BOUND BY THE TERMS
AND CONDITIONS OF THIS AGREEMENT AND (B) REPRESENTING THAT YOU ARE OF
LEGAL AGE TO ENTER INTO THIS AGREEMENT. USERS UNDER THIRTEEN (13) YEARS OF
AGE REQUIRE PARENTAL PERMISSION BOTH TO COMPLETE THE REGISTRATION PROCESS
ON THE WEBSITE AND TO DOWNLOAD MOBILE CONTENT.
You represent that you
are of legal age to agree the Terms and Conditions set forth in this
Privacy policy and you are at least 13 years of age. If you are not the
owner of the wireless phone you intend to use for your participation in
our services, you should always obtain the permission from the owner
before participating. Neither www.FunFacter.com nor the Service is
intended to be used by, and is not directed toward children under 13 years
of age. Fun Facter, LLC does not ask visitors to Funfacter.com or
registering users to provide age information and for this reason the
Company will treat all visitors and registered users the same and shall
not be responsible for ensuring that parental control has been obtained.
Description:
The Company provides
downloadable mobile entertainment content, such as monophonic, polyphonic,
realtone, or fun sound ringtones; wallpapers, J2ME games; graphics; news
and other information data via the Internet, SMS, Wireless Access Protocol
("WAP"), and other means of mobile content delivery ("Content") to certain
compatible wireless mobile devices (the "Service"). You acknowledge and
agree that the Service is only for your personal use on the mobile device
designated during the Download. You agree that you may not (i) transmit,
(ii) broadcast, (iii) upload to any computer or mobile device, (iv) create
derivative works of, or (v) make commercial us of the Service, including,
but not limited to, any Download(s). You may not engage in, attempt to
engage in, or otherwise authorize, encourage or support others' attempts
to engage in the following activities: (i) circumventing, (ii)
re-engineering, (iii) reverse engineering, (iv) decrypting, (v) breaking,
(vi) hacking, (vii) probing, (viii) phishing, (ix) inserting or
communicating viruses, Trojan horses or other code, or (x) otherwise
altering or interfering with the Service, including, but not limited to,
any Download(s). You also agree not to use service in any manner such as
would violate any law of the United States or any individual State or
territory thereof, or of any foreign Nation or territory.
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Registration:
(a) Access to the
Service. In order to use the Service, you must have a mobile
communications subscription with a participating carrier or otherwise have
access to a mobile communications network for which Company makes the
Service available as well as any carrier services necessary to download
content and pay any service fees associated with any such access. In
addition, you must provide all equipment and software necessary to connect
to the Service, including, but not limited to, a mobile hand set or other
mobile access device that is in working order and suitable for use in
connection with the Service. You are responsible for ensuring that your
equipment and/or software do not disturb or interfere with Company's
operations. Any equipment or software causing interference shall be
immediately disconnected from the Service and Company shall have the right
to immediately terminate this Agreement. If any upgrade in or to the
Service requires changes in your equipment or software, you must effect
these changes at your own expense. Unless explicitly stated otherwise, any
new or additional features that augments or enhances the current Service,
including the release of new products and services, shall be subject to
the terms and conditions of this Agreement.
The Subscription Plan
between you and Company shall begin when Company, upon your request, has
provided you with access to the Service (such access may be based on a
personal username and password generated for that purpose or on other data
that Company deems sufficient for your identification). Access to the
Service can be provided by delivering to you downloadable mobile
entertainment content of the content category you subscribed to (e.g., by
delivering a ringtone or an info news or facts - SMS) or by enabling you
to download the product (e.g., by delivering a WAP-Push link or a PIN for
download of the downloadable mobile entertainment content on Company
website) or by providing access to the mobile entertainment content (e.g.,
by enabling MSISDN for this product). The subscription period is 1 month.
The Subscription Plan and subscription period will be renewed each month
and a new subscription fee shall become due for the prospective
subscription period. The Subscription Plan shall remain in effect until
terminated and/or cancelled by you or Fun Facter, LLC.
To subscribe or opt-in to our service, you can
register directly on www.funfacter.com or by sending a text message containing the word "JOIN" to 32287 from your
mobile phone, you will receive a text message on your mobile phone from
Fun Facter, LLC with further instructions.
To unsubscribe or opt-out from our service,
simply send a text message containing the word "STOP" to 32287 from the
subscribed mobile phone and you will be unsubscribed from our subscription
service immediately. You will not receive any additional messages until
you subscribe again.
For any additional help or support, you may
call us toll free at 1-877-693-8436 or email us at support@funfacter.com. From
your mobile phone you can request our contact information at any time
simply by sending a text message containing the word "HELP" to 32287.
(b) Registration Data.
If you opt to register for the Service on our Website, you agree to: (i)
provide true, accurate and complete information about yourself as prompted
by the registration form ("Registration Data") and (ii) maintain and
promptly update the Registration Data to keep it true, accurate, current
and complete. If Company has reasonable grounds to suspect that the
Registration Data is untrue, inaccurate or incomplete, Company has the
right to suspend or terminate your account and refuse any and all current
or future use of the Service (or any portion thereof). You acknowledge and
agree that we may rely on the Registration Data to send you important
information and notices regarding your account and our Services. You
acknowledge and agree that We shall have no liability associated with or
arising from your failure to maintain accurate Registration Data,
including, but not limited to, your failure to receive critical
information about the Service or your account. You further agree that we
(ourselves or through third party service providers) are authorized to
verify such Registration Data.
(c) Username and
Password. If you opt to register for the Service on our Website, you may
be required to establish an account and obtain a username and password.
You authorize us to process any and all account transactions initiated
through the use of your username and password. You are solely responsible
for maintaining the confidentiality of your username and password and must
immediately notify us of any unauthorized use of your username and
password. You acknowledge and agree that you are responsible for any
unauthorized activities, charges and/or liabilities made through the use
of your username and password. In no event will we be liable for the
unauthorized use or misuse of your username and/or password. Company may
need to change usernames allocated to certain of its Services and reserves
the right to do so. You will be informed if this is necessary.
(d) Access without
Registration. Company may provide you with access to some Services without
you registering as a user, such as sign-up via SMS. In each such case your
identification is based on means of identification that we deem
appropriate, such as your mobile telephone number.
(e) License to
Download(s). You acknowledge and agree that the Download(s) made available
as part of the Service are owned by Company, its affiliate and/or
licensors, as applicable, and are protected by intellectual property laws.
Company hereby grants, and you hereby accept, a limited, non-exclusive,
non-transferable, revocable right and license to download and use the
object code version of the Download(s) and the Service on a designated
compatible mobile device solely for your own personal non-commercial use.
You further acknowledge and agree that you may not reproduce, modify,
perform, transfer, distribute, sell, create derivative works of or
otherwise use or make available the Download(s) except as expressly
provided in this Agreement. No license is granted to you by this Agreement
in the human readable code, known as the source code, of the mobile
entertainment content downloaded on your mobile device, and no rights are
granted to you by this Agreement in any patents, copyrights, trade
secrets, trademarks or any other rights in respect of the mobile
entertainment content downloaded on your mobile device.
This Agreement will
terminate immediately, without notice, if you fail to comply with any term
or condition of this Agreement. Upon a termination of this Agreement, you
agree to immediately remove all downloaded mobile entertainment content
from your wireless communications device.
(f) Interruptions or
Discontinuation of Service. Company reserves the right at any time and
from time to time to modify, suspend, discontinue or permanently cancel
the Service, or portions thereof, with or without notice to you. If the
Service, or any part thereof, for which you subscribe is permanently
discontinued or canceled by Company we will cancel your Subscription Plan
and reimburse any pre-paid fees related to such Service, except for
termination made in accordance with Section 8 of this Agreement.
(g) Third Party
Products and Services. We may make available or provide access to products
and services of independent third parties either directly or via links to
websites operated by such third parties. Such products or services shall
be purchased and/or obtained directly from such third party. You
acknowledge and agree that COMPANY SHALL NOT BE A PARTY TO, OR IN ANY WAY
RESPONSIBLE FOR, ANY TRANSACTION CONCERNING PRODUCTS OR SERVICES MADE
AVAILABLE FROM SUCH THIRD PARTIES OR FOR ANY CONTENT OR INFORMATION
PRESENTED IN CONNECTION WITH ANY PRODUCTS OR SERVICES OF THIRD PARTIES.
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Fees:
The fee schedule for
the subscription plans to the Service you select are available on our
Website. You agree to pay your mobile device carrier fees for the Service
you select in accordance with the fees in effect at the time of your
order. Unless otherwise indicated, the charges will be invoiced on your
mobile carrier's bill. All fees are subject to change upon notice from the
Company. The Company will provide you with reasonable notice of such
change.
All fees are due
immediately and are non-refundable, except as otherwise expressly noted.
The monthly subscription fee is due upon registration and the amount of
the fee remains the same regardless of whether or how much you use there
service in any given Subscription Month.
Please ensure that you
have text messaging and/or web browsing enabled on your phone.
If you are uncertain
about whether you have disabled text messaging and/or web browsing on your
mobile phone, please check with your cell phone carrier or Contact Us
before you subscribe.
By completing the
registration process, you authorize Fun Facter, LLC to charge the
appropriate fees (including taxes or premium surcharges) to your
designated credit card or directly to your mobile telephone invoice, as
selected by you, and if you select the monthly fee subscription plan, you
authorize the continued billing each month until you cancel such
subscription. Other charges may apply. If your billing information changes
(e.g., new credit card number, new address or email address, new phone
number or service, etc.), you provide updated information to Fun Facter,
LLC. If you cancel your account or subscription for any reason, Fun
Facter, LLC. will not refund any of your fees paid to date. 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 (each, a
"Subscription Month"). Your credit card or telephone bill will be charged
on the first day of each Subscription Month.
The charges will be
billed to your wireless phone bill or deducted from your prepaid balance.
You confirm you are the owner of the phone or have permission of the owner
to incur these charges. You understand that you will be charged these fees
whether you download your ringtones or not. Do not enter your personal PIN
code unless you have read, understand and agree to these terms and
conditions. Customers may stop this subscription service by sending the
word STOP in a text message to number 32287 or by contacting Customer
Care. Subscription cancellation will become effective at the conclusion of
the Subscription Month in which we receive the cancellation request for
monthly subscribers.
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Privacy:
Personal data will be
gathered and treated according to the Law. Please refer to Privacy Policy
available on www.funfacter.com. We take data security very seriously. We
attempt to provide for the secure transmission of information from your
computer or mobile device to our servers by utilizing generally accepted
encryption software. However, due to the open nature of Internet
communications, we cannot guarantee that communications between you and
the Company will be free from unauthorized access by third parties. Users
of the Website do so at their own risk. To prevent unauthorized access and
maintain accuracy, the Website has in place reasonable physical,
electronic, and managerial procedures to secure your personal information,
financial information, and demographic and usage information. Employees
with access to this information are required to follow our security
protocols, which provided that such information must be used only for the
purpose of providing the Service to you. The Company periodically reviews
and updates as appropriate these information access controls.
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Indemnification:
You agree to release,
indemnify, defend, and hold harmless the Company, its parent company,
subsidiaries, affiliates, officers, directors, shareholders, contractors,
agents, employees, licensors, and assigns from all liabilities, claims,
damages, costs, and expenses, including reasonable attorneys' fees, made
by any third party due to, or arising out of or in connection with, (a)
your use of the Service (including, but not limited to, any infections or
contaminations of the devices you use to access the Service or to transfer
Downloads that may result from that use), and (b) the breach by you of
your representations and warranties set forth in this Agreement.
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DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES:
We
warrant that: Once downloaded, the Ringtones or Logos will operate until
removed by you or a person to whom you have given access to the mobile
telephone to which the Ringtones, Logos or other products were delivered;
We are entitled to license you to use the Ringtones or Logos for your
personal use on your mobile telephone and that no third party will take
action against you in respect of that use; Because you have chosen the
Ringtones, Logos or other products and have had the opportunity to review
them prior to purchase, we accept no liability if the Ringtones, Logos or
other products are in any way found to be of unsatisfactory quality or
otherwise not suitable for your particular purpose; IN NO EVENT SHALL WE
BE LIABLE TO YOU UNDER THIS AGREEMENT FOR INDIRECT, SPECIAL, INCIDENTAL,
PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF
INFORMATION OR MATERIAL OF ANY KIND, LOST PROFITS, LOSS OF BUSINESS OR
OTHER ECONOMIC DAMAGE, AND INJURY TO PROPERTY IN CONNECTION WITH, ARISING
OUT OF, OR AS A RESULT OF THE SERVICES, THE TECHNICAL SYSTEMS, OR BREACH
OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT. SUCH LIMITATIONS SHALL
APPLY REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS
ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY OF
SUCH DAMAGES.
Our entire liability
for any claim concerning its performance or nonperformance in connection
with this Agreement or the conduct of the parties in furtherance hereof
under any legal theory, whether contract, tort, product liability, breach
of implied duty or otherwise shall be limited to the amount charged for
the Ringtones or Logos or other products. If you have any questions or
comments, please let us know by completing our Support Form.
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Termination and Cancellation of Services:
Fun Facter, LLC may in
its sole discretion terminate this Agreement or suspend your account at
any time with or without notice to you. If Fun Facter, LLC terminates this
Agreement, or suspends your account it shall have no liability or
responsibility to you, and Fun Facter, LLC will not refund any portion of
your fees. You understand and agree that your cancellation of your account
is your sole right and remedy with respect to any dispute with Fun Facter,
LLC. This includes, but is not limited to, any dispute related to or
arising out of: (1) any term of this Agreement or Fun Facter, LLC 's
enforcement or application of the same; (2) any policy or practice of Fun
Facter, LLC., including its Privacy Policy, or Fun Facter, LLC 's
enforcement or application of these policies; (3) the Downloads or the
Messaging Systems; (4) your use of and/or ability to access and use the
Service; and (5) the amount or type of fees, surcharges, applicable taxes,
billing methods, or any change to the fees, applicable taxes, surcharges
or billing methods.
To
cancel your subscription plan you may either (i) send a text message with
the text "STOP" from your mobile device via SMS to our short code number,
32287, (ii) call toll free 1-877-693-8436 or by such other number as may
be designated on our Website, (iii) delivering notice to Fun Facter, LLC
at support@funfacter.com,
you must include your subscribed wireless number in the body of the email
with the Subject line reading "Cancel". Cancellation via email will
take effect within 72 business hours during which you deliver
notice to Fun Facter, LLC.
You agree that, if you
remain in breach of this Agreement for more than seven (7) days from
notice of such breach, the Company, at its sole discretion, may at any
time terminate your use of the Service or individual services provided via
the Service and/or change its content offering made available through the
Service. The Company may cancel all or any of the Services (or individual
services provided via the Services) if the Company believes that you have
violated or acted inconsistently with this Agreement. You agree that, upon
termination of your access to the Service under any provision of this
Agreement, the Company 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 Service. Furthermore, you agree that
the Company will not be liable to you or any third party for any
termination of your access to the Service. If you cancel your account or
subscription for any reason, the Company is not obligated to refund any of
your fees paid to date, although it reserves the right to do so in the
exercise of its discretion on a case-by-case basis.
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Objectionable or Explicit
Content:
You acknowledge that
some of the Content or communications on the Service may be offensive to
you or to others who you may expose, deliberately or inadvertently, to the
Content or the Service. The Company makes previews of the Content
available on the Website, and you agree to be responsible for previewing
any Content with which you may be unfamiliar prior to requesting a
Download of such Content. You agree that you will be solely responsible
for any aspect of the Service that you or others might find objectionable.
Fun Facter, LLC is not
responsible to you for any content or materials constituting all or part
of any Download or any other aspect of the Service that you might find
objectionable or contain explicit sexual content.
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Copyright Restrictions:
Your payment
constitutes a permanent non-exclusive license to use the ringtone or other
product downloaded from Fun Facter, LLC. The license is personal to you,
so you cannot transfer these products to anyone else. If you do, you will
liable to pay compensation and costs to both Fun Facter, LLC and various
third partners.
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Promotions and Advertising:
Fun Facter, LLC.
and/or its business partners may present advertisements and promotional
materials on or through the Service. Your participation in any Fun Facter
promotional event is subject to the terms and conditions associated with
that event. Your correspondence or business dealings with, or
participation in promotions of, any third-party advertisers on or 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 neither Fun Facter, LLC. nor its business partners shall 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 third
parties on the Service.
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Modifications to Service:
Fun Facter, LLC
reserves the right at any time and from time to time to modify or
discontinue, temporarily or permanently, the Service (or any part thereof)
with or without notice to you. You agree that neither Fun Facter, LLC nor
its partners, parents, subsidiaries, agents, affiliates and/or licensors
etc. shall be liable to you or to any third party for any modification,
suspension or discontinuance of the Service.
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Miscellaneous Provisions:
(a) Notices And
Announcements. Except as expressly provided otherwise herein, all notices
to Company shall be in writing and delivered via overnight courier or
certified mail, return receipt requested to:
Fun
Facter, LLC
4100
Newport Place, Ste 400
Newport Beach, CA 92660 USA
Company shall serve
notices related to this contract by posting them on the Website or by
sending them to the postal address or e-mail address you have given to
Company or as a text message to your mobile telephone number associated
with your account. Notices sent by mail shall be deemed received seven
days after they were sent. Notices posted on the Website or sent by e-mail
or as a text message shall be deemed received on the weekday following the
day when they were posted or sent.
(b) Severability. You
agree that the terms of this Agreement are severable. If any term or
provision is declared invalid or unenforceable, in whole or in part, that
term or provision will not affect the remainder of this Agreement; this
Agreement will be deemed amended to the extent necessary to make this
Agreement enforceable, valid and, to the maximum extent possible,
consistent with applicable law, consistent with the original intentions of
the parties; and the remaining terms and provisions will remain in full
force and effect.
(c) Entire Agreement.
You agree that this Agreement constitutes the entire, complete and
exclusive agreement between you and us regarding the Service and
supersedes all prior agreements and understandings, whether written or
oral, or whether established by custom, practice, policy or precedent,
with respect to the subject matter of this Agreement. This Agreement
contain the entire agreement of the parties with respect to the subject
matter of this Agreement, and supersede all prior negotiations, agreements
and understandings with respect thereto. This Agreement may only be
amended by a written document duly executed by all parties.
(d) Assignment And
Resale. Except as otherwise set forth herein, your rights under this
Agreement are not assignable or transferable. You agree not to resell the
Service or any portion thereof.
(e) Governing Law.
This Agreement and any disputes hereunder shall be governed in all
respects by and construed in accordance with the laws of the California,
United States of America, excluding its conflict of laws rules. The
application of the United Nations Convention of Contracts for the
International Sale of Goods is expressly excluded.
(f) Waiver. No waiver
of any provision of this Agreement shall be effective unless it is in
writing and signed by an authorized representative of Company. The
remedies of Company under this Agreement shall be cumulative and not
alternative, and the election of one remedy for a breach shall not
preclude pursuit of other remedies. The failure of a party, at any time or
from time to time, to require performance of any obligations of the other
party hereunder shall not affect its right to enforce any provision of
this Agreement at a subsequent time, and the waiver of any rights arising
out of any breach shall not be construed as a waiver of any rights arising
out of any prior or subsequent breach.
(g) Attorney Fees. In
the event of litigation relating to the subject matter of this Agreement,
the non-prevailing party shall reimburse the prevailing party for all
reasonable attorney fees and costs resulting there from.
(h) Headings. The
section headings appearing in this Agreement are inserted only as a matter
of convenience and in no way define, limit, construe or describe the scope
or extent of such section or in any way affect such section.
