© 2013 Pinger, Inc.
These terms govern your use of Pinger software (“App”), provided by Pinger, Inc. (“Pinger,” “Licensor,” or “Service Provider”) and your use of the related service (“Service”). These terms create two separate contracts: a software license for the App (the “License”) and terms for the use of the Service (the “Service Terms”).
License:
This License governs your use of the App and applies to updates of the App made available to you. Your use of the Service is governed separately under the Service Terms below. This License incorporates by reference the terms made available by the particular app store from which you downloaded the App (“App Store”) which apply to apps downloaded from that App Store, if any (“App Store Terms”). This License incorporates by reference the Data Protection Policy (“Privacy Policy”) located athttp://www.pinger.com/content/company/privacy_policy.html. The terms of this License control in the event of any conflict with the Privacy Policy or the App Store Terms.
License. Subject to the terms of this License, Licensor grants to you a royalty-free, non-exclusive, non-transferable license to use the App only on the device on to which it is downloaded. You may not, and may not allow a third party to: (i) use or access the App in any other manner; or (ii) attempt to derive the source code of the App except and only to the extent allowed by applicable law or as made available by Licensor.
Data. You acknowledge and accept that the App displays advertising and promotions. Some anonymous data collected in the App is used for advertising purposes, but such data does NOT include any data that can identify you personally, but does include the following (“Anonymous Data”): age, gender, phone number issued by Licensor, the number of messages you send and receive, date and time messages are sent and received, general location data (country, city), message data and traffic information, device type and operating system, carrier identity, and unique device identifier (UDID) and/or Ethernet MAC address. Anonymous Data is used by Licensor and shared with third parties for advertising within the App and to provide, improve, monitor, and update App and other current and future Licensor mobile applications. You hereby authorize and grant to Licensor a license to use, copy, and transmit Anonymous Data for any purpose and to sublicense, sell, lease and/or transfer the foregoing rights to any third party. To enable you to connect with other App users, you consent to allow, and represent that you have the right to allow, Licensor to import and store contacts from your device and/or from third party services through connections enabled by you through the App, to identify you by the name and phone number provided during registration and your association with such contacts to other users of the App, and to associate contact information on your device with contact information from third party services enabled by you through the App.
Additional Terms. The Additional Terms below are incorporated into this License by reference.
Service Terms:
These Service Terms govern your use of the Service. Your use of the App is governed separately under the License. These Service Terms incorporate by reference the App Store Terms and the Privacy Policy. These Service Terms control in the event of any conflict with the Privacy Policy or the App Store Terms.
License. Subject to these Service Terms, Service Provider grants to you a license to use the Service solely in conjunction with the App.
Ownership. Service Provider and its providers retain all right, title and interest, including all intellectual property rights embodied in the Service.
Requirements. You are required to provide a phone number to authenticate your Service registration and you acknowledge that you may incur charges for calls for such authentication. Only a single number may be used for authentication and you acknowledge that use of the same number for a future authentication may terminate your account and that Licensor and/or Service Provider will not have any liability to you in such event. An Internet connection is required to use the Service. You are solely responsible for any fees and costs associated with that Internet connection. Check the terms of your agreement with your carrier to determine if your carrier restricts or imposes fees or charges for VoIP transmissions. The App may use a carrier SMS features on a limited basis and standard text messaging rates or other carrier charges may apply. You are solely responsible for all fees and charges imposed by carriers. You hereby authorize and grant to Service Provider a license to use, copy, transmit, distribute, store and cache messages sent and received through your account with the Service and to sublicense those rights to its service providers only for so long as necessary to provide the Service to you. Service Provider may provide the Service to you directly or through its providers, including but not limited to Licensor.
Limitations on Use. You acknowledge and agree that: (i) while the Service enables message management and transmission features, it does not have all the capabilities of wired and wireless communication services and, as such, it is not a replacement for your wired or wireless phone or telephone service; (ii) placing and receiving emergency service calls is not supported and it is your responsibility to purchase, separately from the Service, wireless phone or fixed line telephone service that offer access to emergency services; (iii) certain features are may be limited, suspended, blocked or restricted by geography, number, duration or other criteria as determined by Service Provider at any time in its sole discretion and without liability to you; (iv) texting of short codes is not supported; (v) if a phone number is provided for use with the App, you are limited to use of one phone number made available by Service Provider; and (v) if your version of App includes voicemail features, voicemails will be deleted upon the earlier of termination or two weeks after the voicemail is received, and may be subject to limitations as to the number and duration of voicemails, as determined by Service Provider in its sole discretion. Service Provider may reclaim the phone number associated with your account if you fail to send an SMS message through the App, or, if the App has calling features, place a call through the App, for a period of 15 days, and may otherwise discontinue phone number availability and reclaim phone numbers at any time without liability to you. You acknowledge and agree that: (i) you will create an account and use the Service only for yourself , with your true identity, and for lawful purposes and in compliance with applicable law; (ii) you may not transfer or assign your account or the phone number made available to you; (iii) you will not engage in any activity that interferes with or disrupts the Service (or the servers and networks which are connected to the Service); and (iv) you will not transmit any communications that are obscene, abusive, harassing, threatening, racist, malicious, fraudulent, defamatory, libelous, harmful to minors or that may violate or infringe the rights or privacy of third parties, as determined by Service Provider in its sole discretion.
Data. Service Provider collects data that you provide upon registration and data about your use of the App which includes Personal Data and Anonymous Data. “Personal Data” is data that identifies you personally that includes: name, address, email address, phone numbers of recipients of your messages, date of birth, and location data of a specific location. Personal Data is used only to identify you with your account in order to provide the Service and, for location data, to provide advertising to you. You consent to allow Licensor to transmit Personal Data to mobile operators upon your actions when you respond to certain promotional programs with mobile operators and that such transmission is made by your request and at your direction. Other than location data provided to third parties to serve advertising within the App or as otherwise provided above or in the Privacy Policy, Personal Data provided for use with the Service it is NOT shared with any third party other than Licensor. Traffic and location data are used to provide Service and are stored in accordance with applicable law. You may have Service Provider and/or Licensor remove your Personal Data from its systems by terminating your account as provided below. Anonymous Data is used by Service Provider and shared with third parties to provide, improve, monitor, and update the Service and to present advertisements to you from within the App. The Service is supported by advertising revenue and may display advertisements and promotions. In consideration for Service Provider granting you access to and use of the Service, you agree that Service Provider may place such advertising on the Service.
Voice Minutes. If made available through the App, you may earn and/or purchase a Service access license in increments of one or more minutes (“Voice Minutes”) to use voice features and/or may earn them through use of features enabled through the App, if made available to you. ONE VOICE MINUTE IS APPLIED TO THE FIRST MINUTE OR PARTIAL MINUTE OF EACH CALL. VOICE MINUTES ARE APPLIED IN INCREMENTS OF ONE TENTH (1/10) OF MINUTE AFTER THE FIRST MINUTE. VOICE MINUTES (I) EXPIRE UPON TERMINATION OF YOUR ACCOUNT OR RECLAMATION OF THE PHONE NUMBER ASSOCIATED WITH YOUR ACCOUNT; AND (II) MAY BE SUBJECT TO EXPIRATION IF NOT USED WITHIN 180 DAYS OF INITIAL PURCHASE UNLESS OTHERWISE RESTRICTED BY APPLICABLE LAW. VOICE MINUTES ARE NOT TRANSFERABLE OR REFUNDABLE.
Ownership. All right, title, and interest, including all intellectual property rights, in and to the Service and phone numbers made available through the Service (collectively, “Pinger Property”) are owned by Service Provider or its suppliers and, as an express condition to your use of the Service, you hereby (i) agree not to claim, and expressly waive, any right, title or interest in any Pinger Property; and (ii) assign to Service Provider any and all or your present and future rights, title or interests in any Pinger Property.
Additional Terms. The Additional Terms below are incorporated into these Terms by reference.
Additional Terms:
Consents. IN ADDITION TO THE CONSENTS ABOVE, YOU AGREE AND CONSENT TO THE FOLLOWING (THE “CONSENTS”): (I) SERVICE PROVIDER MAY SEND, AND THE APP MAY INCLUDE, SERVICE ANNOUNCEMENTS, ADVERTISING, AND ADMINISTRATIVE MESSAGES TO YOU THROUGH THE APP AND YOU WILL NOT BE ABLE TO OPT OUT OF RECEIVING THEM UNLESS YOU CANCEL THE SERVICE OR TERMINATE THE LICENSE AS PROVIDED BELOW; (II) ANONYMOUS DATA MAY BE USED BY SERVICE PROVIDER AND/OR LICENSOR AND SHARED WITH THIRD PARTIES TO PROVIDE, IMPROVE, MONITOR, AND UPDATE THE APP OR THE SERVICE AND TO PRESENT ADVERTISEMENTS TO YOU FROM WITHIN THE APP; (III) SERVICE PROVIDER MAY ASSOCIATE CONTACT NAMES WITH PHONE NUMBERS FROM YOUR DEVICE FOR MESSAGES YOU SEND AND RECEIVE, INCLUDING BUT NOT LIMITED TO IDENTIFYING SUCH CONTACTS AS APP USERS AND IDENTIFYING YOU AS AN APP USER TO YOUR CONTACTS WHO ARE APP USERS; (IV) LICENSOR AND SERVICE PROVIDER MAY DISCLOSE ANY INFORMATION YOU PROVIDE TO LEGAL AUTHORITIES AS REQUIRED UNDER APPLICABLE LAW AND AS AUTHORIZED IN THE PRIVACY POLICY; (V) SERVICE PROVIDER AND/OR LICENSOR MAY TRANSFER YOUR PERSONAL DATA WITHIN AND WITHOUT THE EUROPEAN UNION, INCLUDING BUT NOT LIMITED TO THE UNITED STATES OF AMERICA; AND (VI) SERVICE PROVIDER AND/OR LICENSOR MAY PROCESS AND STORE YOUR PERSONAL DATA IN ANY COUNTRY OF THE WORLD. YOU REPRESENT AND WARRANT TO SERVICE PROVIDER AND LICENSOR THAT YOU HAVE ALL NECESSARY RIGHTS TO GRANT ALL CONSENTS HEREIN AND THAT SERVICE PROVIDER’S AND/OR LICENSOR’S EXERCISE OF THE RIGHTS GRANTED BY YOU WILL NOT VIOLATE APPLICABLE LAW OR INFRINGE OR VIOLATE THE RIGHTS OF ANY PARTY.
App Store Terms. Purchases made within the App, if any, may be subject to App Store Terms. You acknowledge and agree that neither Licensor nor Service Provider shall have any liability to you arising out of any payment issues for purchases made within the App and that you must resolve all issues in that regard with the payment processor.
Term and Termination. The License and Service Terms are effective until terminated by you or Licensor/Service Provider. Termination of the License terminates the Services terms and vice versa. Licensor may terminate the License and/or disable use of the App with the Service, at any time, for any reason, and without any liability to you or any obligation to return amounts previously paid by you, if any. Service Provider may suspend or terminate your use of the Service or otherwise restrict your use of the Service at any time, for any reason, and without any liability to you or any obligation to return amounts previously paid by you, if any. You may terminate the License or the Service Terms at any time, for any reason, by contacting support@pinger.com and stating that you are terminating your account. Upon termination of the License and/or the Service Terms, your account with the Service will be terminated by the next business day (Monday through Friday, excluding US federal and California state holidays). Upon termination, the licenses granted to you shall cease, your Personal Data will be deleted, any voice credits in your account with the Service will expire without refund or liability to you, and you shall promptly uninstall the App software. The protections afforded to Licensor and Service Provider under the App Store Terms, sections entitled “Ownership” and “Data,” and all of the Additional Terms shall survive termination or expiration.
No Warranties. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF APP AND THE SERVICE IS AT YOUR SOLE RISK AND THAT APP AND THE SERVICE ARE PROVIDED "AS IS" AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. LICENSOR AND SERVICE PROVIDER DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO APP OR THE SERVICE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER LICENSOR NOR SERVICE PROVIDER REPRESENTS OR WARRANTS THAT YOUR USE OF APP OR THE SERVICE will meet your requirements OR BE uninterrupted, timely, secure or free from error. IF YOU ARE DISSATISFIED WITH THE APP OR SERVICE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE APP AND SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LICENSOR OR THIRD PARTY SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
limitation of Liability. YOU AGREE THAT NEITHER LICENSOR NOR SERVICE PROVIDER WILL BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR THE ACTIONS OF THIRD PARTIES IN CONNECTION WITH THE SERVICE. IN NO EVENT WILL LICENSOR, SERVICE PROVIDER AND THEIR SUPPLIERS AND RESELLERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO THE LICENSE OR THE SERVICE TERMS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S OR SERVICE PROVIDER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT OF TEN DOLLARS (U.S. $10.00). NOTHING IN THE LICENSE OR THE SERVICE TERMS SHALL EXCLUDE OR LIMIT LICENSOR OR SERVICE PROVIDER’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
Indemnification and Waiver. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD LICENSOR AND SERVICE PROVIDER HARMLESS FROM AND AGAINST ALL CLAIMS, LIABILITIES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS OF EXPERTS, RESULTING FROM (I) ANY VIOLATION OR BREACH OF THE LICENSE OR THE SERVICE TERMS BY YOU, (II) ANY ACTIVITY RELATED TO YOUR ACCESS TO OR USE OF THE SERVICE (INCLUDING NEGLIGENT OR WRONGFUL CONDUCT), OR (III) LICENSOR’S OR SERVICE PROVIDER'S AUTHORIZED USE AND PROCESSING OF DATA PROVIDED BY YOU OR OBTAINED FROM THIRD PARTY SERVICES AT YOUR DIRECTION OR WITH YOUR CONSENT. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST LICENSOR OR SERVICE PROVIDER ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. AS AN EXPRESS CONDITION OF THE RIGHTS GRANTED TO YOU HEREIN, YOU ACKNOWLEDGE AND AGREE THAT (I) VOICE MINUTES ARE REVOCABLE AND CANCELABLE LICENSE RIGHTS AND DO NOT CONSTITUTE DIGITAL GOODS, CURRENCY, GIFT CERTIFICATES, STORED VALUE INSTRUMENTS, OR NON-CANCELABLE CREDITS OF ANY KIND; AND (I) YOU WAIVE, AND FOREVER RELEASE LICENSOR, SERVICE PROVIDER, THEIR AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS FROM, ALL CLAIMS AND DAMAGES ARISING OUT OF ANY EXPIRATION OR TERMINATION OF VOICE MINUTES, CALL POINTS, AND SMS POINTS WHETHER BY INACTIVITY, TERMINATION OF THE LICENSE, TERMINATION OF THE SERVICE TERMS OR OTHERWISE.
Governing Law; Venue. The License and the Service Terms shall be governed by the laws of the United States and the State of California, without reference to conflict of laws principles. Any dispute between the parties regarding the License or the Service Terms will be subject to the exclusive venue of the state and federal courts in the state of California in San Francisco, San Mateo and Santa Clara counties. The parties hereby consent to the exclusive jurisdiction and venue of such courts. You agree the United Nations Convention on Contracts for the International Sale of Goods (1980) terms are hereby excluded in its entirety from application to the License and Service Terms.
Severability; No Waiver. If any provision of the License or the Service Terms is deemed invalid or unenforceable, such provision shall be enforced to the maximum extent permissible so as to effect its intent, and the remaining provisions shall continue in full force and effect. The failure by either you or Licensor/Service Provider to exercise or enforce any rights or provisions of this Agreement shall not constitute a waiver of such right or provision.
Use of Electronic Communications. You agree to the use of electronic communication to enter into agreements, contracts, place orders, and create other records and to the electronic delivery of notices, policies and changes thereto and records of transactions with Licensor and Service Provider.
Entire Agreement. The License sets forth the entire understanding and complete and exclusive statement of the agreements between Licensor and you and the Service Terms sets forth the entire understanding and complete and exclusive statement of the agreements between Service Provider and you. The License and the Service Terms supersede any proposal or prior agreements or understandings between you and Licensor and Service Provider with respect thereto.
General. You agree to (i) strictly comply with all applicable laws and regulations applicable to your use of the App and the Service; and (ii) not to license, sell, provide or distribute the Software for any prohibited use or to any prohibited end user. Neither the License nor the Service Terms (including any rights or obligations of you therein) may be assigned by you in whole or in part without the prior written approval of Licensor or Service Provider, respectively. Any assignment in violation of the foregoing shall be null and void. Licensor and Service Provider shall not be liable for any delay in the performance hereunder due to causes beyond its or their direct control, including but not limited to actions by third parties, an act of God, war or natural disaster. You have no third party beneficiaries to this License. Notwithstanding any law, rule or regulation to the contrary, you agree that any claim or cause of action you may have arising out of this License must be filed within one (1) year after such claim or cause of action arose or be forever barred. You agree that any feedback you provide regarding the App or the Service is given voluntarily and without any confidentially obligations of Licensor or Service Provider, and you grant Licensor and Service Provider a perpetual, irrevocable, world-wide, royalty free right and license to use disclose, reproduce, distribute, assign, sublicense, and otherwise commercialize all such feedback for any purpose and without obligation or restriction of any kind.
Language. For your convenience, Licensor and Service Provider may provide you with a translation of the English language version of the License and Service Terms. In the event of any inconsistency between a non-English version of the License and the Service Terms and the English version, the English versions shall govern your relationship with Licensor and Service Provider.
Last updated June 26, 2012