TERMS AND CONDITIONS

Effective November 3, 2009

Welcome to FunMail, a service provided by FunMobility, Inc.

This agreement ("Agreement") is a contract between you and FunMobility, Inc. By visiting or using the FunMail web site (www.funmail.com), the FunMail mobile website (m.funmail.com), the FunMail application for iPhone®, and/or the FunMail application for Facebook (apps.facebook.com/fm_funmail/) - collectively, the "Services" or "FunMail Services"), you agree to be bound by the following terms and conditions (the "Terms of Service" or "Terms") and the current FunMail Privacy Policy available at http://www.funmail.com/privacy, which is incorporated herein by reference.
You must be at least thirteen (13) years of age to use the FunMail Services. By providing information to FunMail through the account registration page for new customers or any other part of the FunMail site, you represent to FunMail 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. FunMobility, Inc. reserves the right to deny registration of any individual to the FunMail Services and to deny access to this website to any individual.

You must have an internet-enabled cell phone or device in order to access the FunMail mobile services. Normal carrier charges and taxes may apply to any content you obtain from FunMail. FunMobility, Inc is not responsible for any surcharges you incur from your cell phone or internet service provider as a result of the use of the FunMail services.

Text Message Communications – You expressly agree that, as part of the service provided by FunMail, you will receive communications from FunMail 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.

Email Communications – You also agree to receive promotional and account related email communications from FunMail. You may unsubscribe from promotional email communications by emailing optout@funmobility.com.

FunMail Widgets – From time to time, FunMail offers applications, including applications that may access certain information from the FunMail 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. TERMINATION
Termination – FunMobility, Inc reserves the right, at its sole discretion, to terminate your permission to access and use your FunMail account and/or the FunMail services for any reason at any time without notice, including in the event that FunMobility, Inc reasonably believes that you have breached or acted inconsistently with any provision of the Terms. You acknowledge and agree that FunMobility, Inc shall have no liability or responsibility to you for termination or suspension of your access or use.

3. ACCEPTABLE USE OF FUNMAIL
By downloading and/or using the FunMail services, you agree that FunMobility, Inc grants you a non-exclusive, non-transferable, revocable right to use the services on your compatible device for your own personal, non-commercial use only. Your use of the FunMail services means you also agree to the following acceptable use policies: Personal, Non-Commercial Use Only – The FunMail 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 services. For example, you may not copy or distribute the services in any manner not expressly authorized by the Service. If you want to make commercial use of the FunMail services, you must enter into an agreement with FunMail to do so in advance. Please contact us for more information.

Registration and your Personal Information – In order to use certain features of FunMail, you must register and provide personal information such as your name and wireless device number to FunMail ("Personal Information"). FunMobility, Inc 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 FunMobility, Inc’s collection, use and disclosure of your personal information, please refer to FunMobilty, Inc’s Privacy Policy.

Objectionable or Explicit Content – FunMail may contain content or materials that you may find objectionable. FunMobility, Inc does not warrant, and makes no guarantee or representation, that you will not find all or part of service objectionable. Parents should use appropriate parental discretion in determining whether you want to authorize minor children to access the service.

International Use – FunMail is hosted in the United States and is intended for use in the United States. At this time, FunMobility, Inc makes no guarantee that the FunMail service will be available to overseas visitors.

Intellectual Property Rights – The Downloads and the Widgets made available as part of the Service are owned by FUNMAIL, its licensors, partners and affiliates and are protected by U.S. intellectual property laws. By using the FUNMAIL 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 FunMail may not attempt (or authorize, encourage or support others' attempts) to gain unauthorized access to any FunMail 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. 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 FunMail Services. You agree to advise FunMail 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 FUNMAIL-related issue, to a FunMail customer service representative by e-mail at: help@funmail.com.

Design – FunMail offers a Design service, where users can create profiles, submit photos and, participate in tagging content. Users of some wireless services may receive a Design account automatically when registering to the FunMail Subscription Service. By using the Design facilities, you understand that all information, photos, graphics, text 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 FunMail website or through the FunMail service.

FunMobility, Inc does not control Content made available by users, and does not guarantee the accuracy, integrity, or quality of such Content. FunMobility, Inc 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 FunMobility, Inc may or may not pre-screen Content, and that FunMobility, Inc shall have the right, but not the obligation, to pre-screen, refuse, move, or remove any Content available by or through the FunMail service, at its sole discretion.

You agree that you will NOT use the FunMail Services to:

  1. Upload, transmit, post, or otherwise make available any Content that contains nudity or profanity, depicts drug use, is unlawful, harmful, abusive, defamatory, tortuous, harassing, obscene, libelous, hateful, invasive of another's privacy, or that contains hate speech or otherwise objectionable materials;
  2. Upload, transmit, post, or otherwise make available any Content that you do not have a right to make available under federal, state, or local law, or under contractual or fiduciary relationships, such as proprietary or confidential information;
  3. Upload, transmit, post, or otherwise make available any Content that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any person or entity;
  4. Upload, transmit, post, or otherwise make available any Content containing unauthorized or unsolicited advertising, spam, promotional materials, chain letters, pyramid schemes or other forms of solicitation;
  5. Upload, transmit, post, or otherwise make available any materials, such as viruses, trojans, malware, designed to interrupt, destroy or limit the functionality of any computer software or hardware or any telecommunications equipment;
  6. Harm minors in any way; and/or
  7. Interfere with or disrupt FunMail’s service, hardware, or telecommunications equipment.

4. THIRD PARTY CONTENT APPEARING ON THE FUNMAIL SITE
Links and Advertisements – The FunMail services may contain links to and advertisements for products and / or websites operated by third parties. While we endeavor to associate only with reputable sites and groups, FunMobility Inc cannot be responsible for the availability, content or the practices, such as the privacy policy and practices, of these organizations / 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 FunMobility Inc 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 groups / sites directly if you have any concerns about their availability, content or practices.

FunMail Promotions – From time to time FunMobility Inc may provide users with the opportunity to participate in promotional events sponsored by third party advertisers or affiliates. Your participation in any FunMail 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 FunMobility Inc 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 use the FunMail service ("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 FunMail, 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:

  1. Rewards are limited to one per user.
  2. You may not submit multiple email addresses in an attempt to earn a reward or an additional reward.
  3. You may not participate in a Referral Program where doing so would be prohibited by any applicable law or regulations.
  4. Your eligibility to earn a reward may be based on your ability to make referrals that result in new FunMail users. Referrals to existing FunMail subscribers may not count towards your eligibility to earn a reward.
  5. Credit for referrals can only be given out for those referrals who participate using their unique referral link.
  6. You agree that you will not use unsolicited bulk email to obtain referrals. You further agree that you will not induce people you do not know to sign up through use of unsolicited email, advertisement, message board solicitation, or any other means.
  7. You agree that you will not obtain referrals or rewards through any fraudulent means.
  8. You acknowledge and agree that FunMobility Inc may deny reward for referrals for any reason, including if it believes, at its sole discretion, that the referrals were obtained in violation of these terms.
  9. You may not barter, sell or trade for referrals or offer completions.
  10. Rewards and other credits are non-transferable, and any attempt to transfer a reward or credit shall render the reward or credit void.
  11. FunMail does not guarantee delivery time on any rewards earned, nor does it guarantee receipt of any rewards.

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 FunMail privacy policy which can be found at http://www.funmail.com/pages/privacy.

6. FUNMAIL PROPRIETARY RIGHTS
General – Your use of the service is under license; you will not obtain any ownership interest in any of the services through this Agreement or otherwise. All content in the services such as the text, graphics, logos, button icons, images, data compilations, and software, is the property of FunMobility Inc 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 FunMail 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 FunMail services are the property of FunMobility, Inc and/or its affiliates, licensors and/or licensees. Without FunMobility Inc’s prior permission, you agree not to display or use in any manner the FunMail' marks.

7. CONTENT SUBMITTED BY USERS
FunMobility Inc claims no ownership of Content you make publicly available on the FunMail services, or otherwise upload, post or transmit for inclusion in publicly accessible portions of the services. With respect to such Content, you grant FunMobility, Inc 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. FunMail can also make derivative works of each such User Submission and your name, content and/or likeness contained in your Design 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 FunMobility Inc removes) such Content from the Service. You understand and agree, however, that FunMail 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 FUNMAIL 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.

8. GENERAL TERMS
Applicable Law – These Terms of Service and your use of the services 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 FunMobility, Inc 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 FunMail 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 FunMobility, Inc. 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 FunMail. These Terms may be assigned by FunMobility, Inc and shall inure to the benefit of FunMobility, Inc, its successors and assigns.

No Right of Survivorship or Transferability – You agree that your FunMail 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.

FUNMAIL's Remedies – You agree that any unauthorized use of the FunMail services, would result in irreparable injury to FunMobility Inc and/or its affiliates or licensors for which money damages would be inadequate. In such event FunMobility Inc, 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 FunMobility Inc, its affiliates and/or licensors may have, including but not limited to, any claim for intellectual property infringement.

Indemnity – By using the FunMail services, you agree to indemnify and hold FunMobility Inc, 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 services, 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 FunMail services you expressly understand and agree that: the FunMail services, and all materials, applications, information, products and services included in the FunMail services are provided "as is" with no warranties by FunMobility Inc, or its agents, employees, parents, subsidiaries, affiliates, licensors, business partners and/or suppliers (the "FunMail entities"). FunMobility and the FunMobility 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.

FunMobility Inc and the FunMobility Inc entities disclaim any warranties that the FunMail services will meet your requirements, or that your access to the same will be uninterrupted or error-free. FunMobility, Inc and/or the FunMobility Inc entities, do not warrant, guarantee, or make any representations regarding the use or the results of the use of the FunMail services, with respect to the accuracy, operability, availability, security, reliability, timelines, and performance of the FunMail services. FunMobility, Inc 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 FunMail 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 FunMobility, Inc and/or the FunMobility, Inc entities responsible for any damages that result from you using the FunMail 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 FunMobility, Inc and/or the FunMobility, Inc entities as applicable. FunMobility Inc and the FunMobility Inc entities disclaim any warranties for services or goods received through or advertised on the FunMail services or received through any links provided by the FunMail services.

The FunMail services may contain links to third-party websites or services that are not owned or controlled by FunMobility Inc. FunMobility Inc 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 Inc will not and cannot censor or edit the content of any third-party website or service. By using the FunMail services, You expressly relieve FunMobility Inc from any and all liability arising from your use of any third-party website or services. FUNMOBILITY INC 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 Inc does not endorse any User Submission or the views, opinions, recommendations or advice expressed via the FunMail services. FunMobility Inc 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 FunMail services are controlled from FunMobility Inc's facilities in the United States. FunMobility Inc makes no representations that the FunMail 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.

Limitation of liability – under no circumstances, shall FunMobility Inc and the FunMobility Inc entities as applicable, be liable for any unauthorized use of the FunMail services.

Under no circumstances, including, but not limited to, negligence, shall FunMobility Inc and the FunMobility Inc 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 FunMail services, or from the interruption, non-performance, suspension, or termination of the FunMail services (including such damages incurred by third parties), even if FunMobility Inc and the FunMobility Inc 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 FunMail services or received through any links provided in the FunMail services.

Without limiting the foregoing, FunMobility, Inc 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
FunMobility, Inc respects the intellectual property rights of others. FunMobility, Inc 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 FunMobility, Inc Copyright Agent, including the following information:

  1. An electronic or physical signature of the person authorized to act on behalf of the copyright owner;
  2. A description of the copyrighted work that you claim has been infringed;
  3. A description of where the material that you claim is infringing is located on the site;
  4. Your address, telephone number, and email address;
  5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
  6. A statement by you, made under penalty of perjury, that the above information in your Copyright Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Notices can be sent to FunMobility, Inc’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 FUNMAIL SERVICES
FunMobility, Inc. 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 not use the FunMail services.

©2009 FunMobility, Inc.
Artist names for identification purposes only. Third party trademarks are the property of their respective owners. Depiction or mention of handsets or other FunMail-compatible devices does not indicate their manufacturers' partnership, endorsement or sponsorship of FunMail. iPhone® is a registered trademark of Apple Inc. Apple is not a partner or sponsor of FunMail.

© 2009 FunMobility, Inc.