Your use and access of the FunMobility, Inc. ("FunMobility") services, website and software provided through or in connection with the FunMobility services, including but not limited to our mobile applications and services, and websites, including http://FunMo.funmail.com, http://www.funmail.com, and http://www.FunMobility.com, (collectively, "Services") are subject to this Terms of Use Agreement ("Agreement") and the current FunMobility Privacy Policy available at http://www.funmobility.com/pp.html, which is incorporated herein by reference.  These Services include, but are not limited to, FunMo, America's Best Mobile Pix™, Flirt Pix™, instant messaging, mobile publishing, text messaging, MMS, and SMS and may be added to or discontinued at any time.

BY CLICKING ON "THE "I ACCEPT" BUTTON, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND THE PRIVACY POLICY.  IF YOU DO NOT AGREE TO THIS AGREEMENT AND THE PRIVACY POLICY, YOU DO NOT HAVE PERMISSION TO USE THE SERVICES OR ANY LICENSE UNDER THE AGREEMENT. 

FunMobility reserves the right, at its discretion, to modify the Agreement at any time.  Changes to the Agreement will be posted on the Services or sent via e-mail, and are effective immediately upon such posting or emailing.  Each time You access or use the Services, You agree to be bound by the then current Agreement and Privacy Policy.  If You do not agree with anything in the current Agreement or Privacy Policy, then You must immediately discontinue your use of the Services.

1. SERVICE USE

FunMobility provides visitors and registered users ("Users" or "You") with interactive wireless entertainment services over wireless networks and the Internet that allows Users to share and view User Submissions through the Internet, hand-held devices, wireless devices, and mobile devices such as cell phones.

You understand that by using FunMobility Services you may be exposed to content that is offensive, indecent or objectionable, and you agree that FunMobility is not liable in any way for such content.  Under no circumstances will FunMobility be liable in any way for any content, including errors or omissions in any content, or any loss or damage of any kind incurred as a result of your use of the Services or viewing of the content.

FunMobility hereby grants You permission to use the Services as set forth in the Agreement, provided that your use of the Services as permitted is solely for your personal, noncommercial use, You comply with the terms and conditions of this Agreement and FunMobility's Privacy Policy, including that You shall not do any of the following:

            a.         copy or distribute any part of the Services in any medium without FunMobility's prior written authorization;

            b.         alter or modify any part of the Services other than as may be reasonably necessary to use the Services for their intended purpose;

            c.          attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services;

            d          take any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;

            e.         upload invalid data, viruses, worms, or other software agents through the Services;

            f.          impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity;

            g.         interfere with the proper working of the Services;

            h.         bypass the measures used to prevent or restrict access to the Services; 

            i.          use or launch any automated system, including without limitation, "robots," "spiders," "offline readers," etc., that access the Services in a manner that sends more request messages to the Services' servers than a human can reasonably produce in the same period by using a conventional on-line web browser.

            j.          collect or harvest any personally identifiable information, including account names, from the Services, nor to use the communication systems provided by the Services for any commercial solicitation purposes;

            k.         submit, post, e-mail, transmit, or otherwise make available any video, audio, graphics, images, text, or other content submitted, transmitted, posted or uploaded, via Internet, cellular telephone or other wireless device, to the public areas of the Services ("User Submissions") that:
                       
                              (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to You, to any other person, or to any animal;
                             
                              (ii) may create a risk of any other loss or damage to any person or property;
                             
                              (iii) may constitute or contribute to a crime or tort;
                             
                              (iv) contains any information or content that is (in FunMobility's sole opinion) unlawful, harmful, abusive, racially or ethnically offensive, obscene, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people, libelous, threatening, objectionable, or not allowed under our user guidelines, including at www.FunMo.com/guidelines;
                             
                              (v) contains any information or content that is illegal; or
                             
                              (vi) contains any information or content that You do not have a right to make available under any law or under contractual or fiduciary relationships, including that it does not and will not violate third-party rights of any kind, including without limitation any FunMobility's Intellectual Property Rights and rights of publicity and privacy, or similar rights of any third party; or

            l.          solicit, for commercial purposes, any Users of the Services with respect to their User Submissions or post, use or publish spam, spyware, or chain letters, or offer fraudulent goods, services or schemes;
 
2.  YOUR PROMISES

You shall be solely responsible for your own use of the Services and User Submissions and the consequences of posting or publishing them.  You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Submissions that You send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Services, is solely your responsibility. 

You affirm, represent and warrant, in addition to the other representations and warranties in this Agreement, the following:
 
            a.         By your use of the Services, You affirm that You are either are at least 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.  In any case, You affirm that You are over the age of 13, as the Services are not intended for children under 13. If You are under 13 years of age, You do not have permission to use the Services and may not provide any User Submissions. 

            b.         You have the written consent of each and every identifiable natural person in the User Submission to use such person’s name or likeness in the manner contemplated by the Services and this Agreement, and each such person has released You from any liability that may arise in relation to such use. 

            c.          The User Submission and FunMobility's use thereof as contemplated by this Agreement and the Services will not infringe any rights of any third party, including but not limited to, any Intellectual Property Rights, privacy rights and rights of publicity of any third party.

3.  LICENSE

By submitting, posting, emailing, transmitting, or otherwise making available any User Submission, You expressly grant FunMobility a royalty-free, sub-licensable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, edit, translate, distribute, perform, display, and make derivative works of each such User Submission and your name, voice, and/or likeness as 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.  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.

If You want FunMobility to remove any of your User Submissions from the Services, please delete if possible.  However, we cannot guarantee that your User Submissions will be completely removed from all Services, User devices or User web pages, nor that other Users will not misuse any content that You supply.  In addition, other Users may have already copies and forwarded your User Submissions to others, making recovery impossible.  FunMobility is not responsible for any public display or misuse of your User Submissions.

Notwithstanding anything to the contrary in this Agreement, the operators of public search engines may use spiders to copy materials from the Services for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials.

4.  OUR RIGHTS

FunMobility reserves the right, but is not obligated, to filter User Submissions and reject and/or remove any User Submissions that FunMobility believes, in its sole discretion, violate any terms of this Agreement.  FunMobility may also permanently or temporarily terminate, suspend, or otherwise refuse to permit User’s access to the Services and/or terminate this Agreement, without notice and liability, if, in FunMobility's sole determination, User violates any of the Agreement or for any reason or no reason.  Upon termination of this Agreement, User continues to be bound by this Agreement.  At any time FunMobility, may without notice make changes to the Services or products offered thereon.  

Notwithstanding anything in this Agreement to the contrary, FunMobility reserves the right to take any action required or requested by any carrier, government agency, court, or law enforcement, or in order to comply with any local, state or federal laws, statutes, codes, orders, or regulations, including but not limited to FCC regulations. 

5.  INTELLECTUAL PROPERTY RIGHTS

The Services and all materials therein or transferred thereby, including, without limitation, illustrations, logos, photographs, website and wireless design, text, photos, technology, audio, software, video, images, graphics, other content, and the selection and arrangement thereof (collectively "Content") of the Services and all rights in the associated intellectual property rights, current or future, including but not limited to, trade secrets, trademarks, copyrights, technology, service marks, patents, inventions, developments, improvements, mask work rights, moral rights, rights or publicity, trade dress, know-how, and other proprietary rights (collectively "Intellectual Property Rights") are the exclusively owned by FunMobility or its licensors, and FunMobility reserves all rights therein.

Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, republish, adapt, edit or create derivative works from, manipulate, edit, posted, transmitted,  transferred, use on any other service, website or other networked computer environment, or otherwise exploit in any manner whatsoever without our prior written consent.  If You download, print, or otherwise reproduce a copy of the Content for personal use, You must retain all copyright and other proprietary notices contained therein.

6.  DMCA NOTICE

If You believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify FunMobility's copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 ("DMCA").  For your complaint to be valid under the DMCA, You must provide the following information in writing:

            a.         An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
            b.         Identification of the copyrighted work that You claim has been infringed;
            c.          Identification of the material that is claimed to be infringing and where it is located on the Services;
            d.         Information reasonably sufficient to permit FunMobility to contact You, such as your address, telephone number, and e-mail address;
            e.         A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and 
            f.          A statement, made under penalty of perjury, that the above information is accurate, and that You are the copyright owner or are authorized to act on behalf of the owner.

The above information must be submitted to the following DMCA Agent:

Name:              Kellen Smalley
Attn:                 DMCA Notice
COMPANY:    FunMobility, Inc.
ADDRESS:      5568 Gibraltar Drive
                        Pleasanton, California 94588                          

Telephone:       (925) 598-9700
Fax:                 (925) 598-9770
Email:               ksmalley@funmobility.com

7.  PURCHASING OR SUBSCRIBING

You agree to purchase any of the Services ordered on the various order screens when You (or anyone using your account) clicks on the "DOWNLOAD" or similar button on FunMobility WAP or BREW mobile products or service order screens.  Some Services require a paid subscription to fully access and use a particular Service. 

The terms and conditions of any purchase or subscription include the information included on the various order screens, which are incorporated herein by reference, and this Agreement. Furthermore FunMobility and any Affiliates do not offer refunds on purchases and all purchases are final, except where prohibited by law.   

Purchases charged to your wireless bill ARE NOT REFUNDABLE UNDER ANY CIRCUMSTANCES. If You are not satisfied with your purchase/download, please contact your carrier.

8.  CARRIER CHARGES

FunMobility does not accept responsibility for charges that may be imposed by your wireless carrier when sending and receiving text messages, WAP push messages or data usage charges while using the Services.  Please note that text messages are typically included as a feature of your wireless plan. Please consult your carrier to be certain.

9.  PASSWORD

In order to access some features of the Services, You will have to create an account, with user name and we will supply a password.  You may never use another's account, user name or password without permission.  When creating your account, You must provide accurate and complete information and You must update this information to maintain accuracy and completeness. You are solely responsible for the activity that occurs on your account, and You must keep your account password secure. You should notify FunMobility immediately of any breach of security or unauthorized use of your account.  FunMobility will not be liable for your losses caused by any unauthorized use of your account, You shall be liable for the charges made using your account and any damages incurred by FunMobility or others due to any unauthorized use.

10.  DISCLAIMERS

THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.  USE OF THE SERVICES IS AT YOUR OWN RISK.  THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  WITHOUT LIMITING THE FOREGOING, FUNMOBILITY, ITS SUBSIDIARIES, PARTNERS, EMPLOYEES, DIRECTORS, OFFICERS, AFFILIATES, AGENTS, AND LICENSORS (COLLECTIVELY "AFFILIATES") DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES ARE DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR WIRELESS DEVICE AND FOR ANY LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.  FUNMOBILITY DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND USER MAY NOT RELY ON ANY SUCH STATEMENT OF WARRANTY.

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. 

11.  Limitation of Liability

IN NO EVENT SHALL FUNMOBILITY OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, WORK STOPPAGE, COMPUTER FAILURE, LOSS OF DATA OR INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES.  UNDER NO CIRCUMSTANCES WILL FUNMOBILITY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES, YOUR ACCOUNT, OR THE INFORMATION CONTAINED THEREIN. 

FUNMOBILITY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE OR CRANK CALLS OR TEXT MESSAGES, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR USER SUBMISSIONS, OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR USER SUBMISSIONS POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. 

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF FUNMOBILITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  FUNMOBILITY'S AGGREGATE LIABILITY ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICES SHALL NOT EXCEED $100.00.  THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

12.  INDEMNIFICATION

You agree to defend, indemnify and hold harmless FunMobility and its Affiliates, assigns and successors from and against any and all claims, costs, losses, damages, judgments and expenses (including reasonable attorneys' fees) arising out of or in connection with any claim or damages arising from your (or by anyone using your account): (i) use of, or access to, the Services, including any data or Content, User Submission, or other materials transmitted or received by You or through your account; (ii) violation of any term of this Agreement, including without limitation, your breach of any of the representations and warranties; (iii) violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; or (iv) violation of any state or federal law, rule or regulation of the United States or any other country. 

13. OPT OUT

We may use your personal information, including but not limited to email address or telephone number, to notify You of important changes to the Services, new Services, contests, and special offers.  If You do not want to receive such notices, You may send an email message to optout@funmobility.com with the word "Opt Out" in the subject field.

Opting out may prevent You from receiving updates, improvements, or special offers.  If FunMobility has provided any third party with your personal information, You will have to contact the third-party directly with any opt-out request.

14.  SOLE REMEDY 

IN ANY EVENT, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY LIABILITY RELATING TO OR ARISING OUT OF THE SERVICES OR THIS AGREEMENT, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THIS AGREEMENT.
 
15.  GENERAL

A.  You agree that: (i) the Services shall be deemed solely based in California; and (ii) the Services shall be deemed passive, which does not give rise to personal jurisdiction over FunMobility, either specific or general, in jurisdictions other than California.  This Agreement shall be governed by the laws of the State of California, without respect to conflict of laws principles.  Any claim or dispute between You and FunMobility that arises in whole or in part from the Services shall be decided exclusively by a court of competent jurisdiction located in Alameda County, California.

B.  This Agreement, together with FunMobility's Privacy Policy and any other legal notices published by FunMobility on the Services, shall constitute the entire agreement between You and FunMobility concerning the Services.  If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.   This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by FunMobility without restriction or consent.

C. No waiver of any term of this Agreement or delay or failure to enforce a provision of this Agreement shall be deemed a waiver of such term or any other term.

Please contact us with any questions or comments about this Agreement or the Services by using this link.