Pinger Terms and Conditions

Your License to Use the Services and Software

To use the Services, you must set up an account. If you set up a Pinger account other than through www.pinger.com or m.pinger.com (for example, through a Pinger Widget), then you may not have access to all Pinger features. To obtain all account features, you must create a full access account by registering through m.pinger.com or www.pinger.com or through direct registration methods made available by Pinger. Unless you register for a full access account, (a) you will not receive all rights and licenses granted in this Agreement (for example, you will not have rights to use Software) and Pinger will only provide you with certain features of the Services in its sole discretion notwithstanding anything to the contrary in this Agreement; and (b) all rights and remedies afforded to Pinger in this Agreement shall apply. You agree that Pinger may validate your mobile phone number and, upon Pinger's request, you will provide sufficient proof of your identity for validation by Pinger.

Some features require the use of Software. Subject to the terms and restrictions set forth in this Agreement, Pinger grants you a non-exclusive, non-transferable license when you set up a full access account, to: (a) download and install the Software on multiple computers and devices; and (b) use the Software for the sole purpose of using and accessing the Services. You may not use, copy, modify, or transfer the Software, in whole or in part, or reverse engineer, disassemble, decompile, modify or translate the Software, or otherwise attempt to derive the source code of the Software (collectively, "Software Limitations"), or use the Services except as expressly provided in this Agreement. You may use the Software and Services only for your personal use and may not share your account with a third party. The Software is licensed, not sold, to you for use only under the terms of this Agreement, and Pinger reserves all rights not expressly granted to you. Except for the foregoing license grant, this Agreement does not grant you any rights to patents, copyrights, trade secrets, trademarks, source code, or any other rights in respect to the Software or Services.

You are responsible for complying with any local laws in its jurisdiction which might impact your right to import, export or use the Software and/or Services. You represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable. You must be at least 13 to subscribe to, use and access the Services and Software.

Requirements to Use the Services

To take full advantage of the Services, you need to have a computer with Internet access and a mobile phone and wireless services with necessary wireless data features. You are solely responsible for all equipment and services (and related costs and expenses, such as wireless data fees) necessary for you to use and access the Services. You represent and agree that you: (a) are of legal age to form a binding contract; (b) will comply with all applicable laws and regulations; and (c) will provide and maintain true, accurate, current, and complete information about yourself when setting up an account. You also understand and agree that the Services may include certain communications from Pinger, such as service announcements and administrative messages, and that these communications are considered part of your account and you will not be able to opt out of receiving them. Further, you agree that the Services may involve textual, graphic, and/or audio advertisements throughout all features of the Services, including but not limited to advertisements within SMS and/or MMS messages, and that these advertisements are a necessary part of the Services and that you may not opt out of receiving them. You hereby authorize Pinger to import contact list data designated by you into your account and, to the extent that you import or authorize the importation of any such data from a third party, you represent and warrant that you have the right to provide such data to Pinger without violating any third party rights or agreements and that importation of such data is at your express authorization.

Public Content

IF YOU SIGN UP FOR THE SERVICES ON OR AFTER APRIL 30, 2008, YOU ACKNOWLEDGE AND AGREE THAT CERTAIN INFORMATION PROVIDED BY YOU WILL BE MADE PUBLICLY AVAILABLE THROUGH THE SERVICES, SOME OF WHICH YOU CAN REMOVE FROM PUBLIC VIEW BY CHANGING YOUR PRIVACY SETTINGS THROUGH THE SERVICES, AND SOME INFORMATION WHICH WILL REMAIN PUBLICLY AVAILABLE, AS FURTHER PROVIDED BELOW.

IF YOU SIGNED UP FOR THE SERVICES BEFORE APRIL 30, 2008, INFORMATION PROVIDED BY YOU WILL NOT BECOME PUBLICLY AVAILABLE UNLESS YOU PROVIDE NEW INFORMATION (SUCH AS SENDING US A PICTURE FOR YOUR PROFILE) OR YOU CHANGE YOUR PRIVACY SETTINGS THROUGH THE SERVICES.

INFORMATION THAT IS MADE PUBLICLY AVAILABLE THROUGH THE PINGER SERVICES IS CALLED "PUBLIC CONTENT."

YOU ACKNOWLEDGE AND AGREE THAT YOU MAY RECEIVE SMS, MMS, AND/OR EMAIL MESSAGES FROM THIRD PARTIES WHO ACCESS YOUR PUBLIC CONTENT AND THAT PINGER SHALL NOT HAVE ANY LIABILITY TO YOU WITH RESPECT TO SUCH MESSAGES OR THE COSTS ASSOCIATED WITH THOSE MESSAGES.

Information that is never made publicly available includes the following:

birth date
zip code

Information that is made publicly available and cannot be removed from public availability while you remain a Pinger subscriber (“Static Public Content”) includes the following:

first name (or data provided in name field)
picture
age
city

Information that is made publicly available but which may be removed from public view includes the following:

phone type
voice intro
gender
relationship status
looking for status
interests
tagline

Information that is not currently made publicly available but which may or may not be made publicly available by you in the future includes the following:

email address

You hereby grant Pinger and its successors and assigns an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, modify, translate, excerpt (in whole or in part) and distribute all Public Content for any purpose on or in connection with the Services or the promotion thereof (including commercial, advertising, or other purposes) to prepare derivative works of, or incorporate into other works, such Public Content, and to grant and authorize sublicenses of the foregoing (b) you represent and warrant that you have all rights in and to such Public Content to grant the foregoing rights and have obtained all releases, consents, licenses and permissions necessary to make Public Content publicly available without violating the legal rights of any third party. You can remove Public Content when you like (except for Static Public Content), in which case the license you granted above terminates; provided, however, that after you elect to discontinue public availability of your Public Content, Pinger may (i) retain copies of Public Content for backup and archival purposes; and (ii) to the extent commercially necessary, exercise the license granted by you to Pinger.

Limitations on Use

Depending on your geographic location and wireless carrier, the Services may not be available to you. For example, if you are located outside the U.S., the mobile features of the Service may not be available to you. You are responsible for determining whether the Services are available in your area and through your wireless carrier.

You acknowledge and agree that: (a) you will use the Software and Services in only in compliance with applicable laws, rules and regulations; (b) Pinger may limit the storage capacity for your account and the size and number of messages stored and/or transmitted; (c) any data, information, text or other communication, etc., which you upload, post, share, store, receive or transmit using the Services may be accessed or intercepted, albeit without authorization from you or Pinger, and that Pinger is not liable for such unauthorized access; (d) you may not create a Pinger account other than for yourself or create a Pinger account which uses a false identity or impersonates any person or entity; (e) you may not use any automated system to use, access, or interact with the Services; and (f) you will only use the Service and/or Software for the sending, storing, and receiving messages in accordance with the terms hereof, and will not use the same in any manner which may degrade the performance or availability of the Services provided to subscribers generally. You shall not use the services: (a) to solicit personal information from anyone under 18; (b) to provide false or misleading information; (c) to conduct, promote, or enable any criminal or illegal activity; (d) to post, share, store, send, create, publish, or distribute any images, sounds, messages or other materials which are obscene, abusive, harassing, threatening, racist, malicious, fraudulent, defamatory or libelous, or violate or infringe the rights (including but not limited to rights privacy or copyrights) of third parties; (e) for any activity that may be considered unethical or immoral, or to "spam" or send other such unsolicited mass e-mails, voicemails, or SMS or MMS messages; (f) to post, share, solicit, store, send, create, publish, or distribute any images, sounds, data or other information in violation of applicable law; or (g) to disclose private information of someone else, including but not limited to, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers. Unless authorized in writing by an officer of Pinger, (a) you will not use the Services or Software for commercial purposes, including but not limited to dissemination of any messages that contain advertising or any messages for political or promotional campaigns; (b) you will not resell or enable or allow the reselling of the Services or Pinger accounts; (c) you will not create or use Pinger accounts for use by third parties; (d) you will not use the services to harvest subscriber contact information for the purposes of sending unsolicited communications; and (e) you will not provide access to the Pinger website or Pinger accounts through any mechanism, including but not limited to framing the Pinger website within another website or creating Pinger accounts associated with other accounts not managed by Pinger.

You will be solely liable for your use of the Services and you agree that you are, and shall be, fully responsible for, and shall take all reasonable steps necessary in order to, establish and implement any and all measures needed to limit the control and/or access to your handheld device, your account with the Service, the Software, any related data or communications transmitted or received by you, as well as any related computer systems with which you use to connect to the Services (including, without limitation, the selection of passwords and the like). Pinger reserves the right in its sole discretion to (i) delete, move, block, or edit messages and any content that it, in its sole discretion, deems to violate this Agreement, or (ii) take any other action that it deems necessary relating to use or misuse of the Service, including the right to suspend or terminate your use of the Services. You agree that Pinger shall not be liable to you or to any third party for any elimination or discontinuation of any content on or feature of the Services or any suspension or termination of any Pinger account and/or Pingercast. You hereby grant to Pinger a worldwide, non-exclusive, royalty-free license to use, publish, copy, modify, transmit, display and distribute messages and any contact information and/or data you provide to Pinger or authorize Pinger to obtain, in each case for the sole purpose of delivering the Service.

Pinger is under no obligation to provide you with maintenance, technical support or updates for the Software or Services. Pinger reserves the right to limit the number and duration of messages which may be sent by you through the Services, the number of recipients of such messages, and the number of contacts imported to, exported from, or stored in your account.

YOU ACKNOWLEDGE AND AGREE THAT PINGER MAY IN ITS SOLE DISCRETION, AND WITHOUT ANY LIABILITY TO YOU, DELETE OR REMOVE SOME OR ALL CONTENT, DATA AND MESSAGES STORED AND/OR MADE AVAILABLE THROUGH THE SERVICES.

Pingercast Messages

Pinger's Services include a feature that enables subscribers to allow others to sign up to receive Pinger messages from such third parties. This feature is called a "Pingercast." We refer to third parties who use this feature as "Pingercast Senders" and the messages they send through this feature as "Pingercast Messages." If you establish a Pingercast through your use of the Services, in addition to the other obligations set forth in this Agreement, you agree that: (a) you will comply with all laws, rules and regulations with respect to your Pingercast; (b) you will not disclose, publish, share, assign or otherwise transfer any subscriber information obtained by you through the Pingercast except under separate, express authorization from such subscribers and only if such subscribers are provided sufficient notice of how such information is used and are otherwise provided with all legal rights available to them related to such information; and (c) you shall not include any advertisement in your SMS or MMS notifications or in related voicemails without the express written authorization from Pinger.

WHILE PINGER REQUIRES PINGERCAST SENDERS TO AGREE TO THIS AGREEMENT, PINGER DOES NOT VALIDATE THEIR LEGAL IDENTITY OR PRE-SCREEN OR APPROVE PINGERCAST MESSAGES. PINGER DOES NOT PROVIDE ANY REPRESENTATION, WARRANTY OR GUARANTEE, WHETHER EXPRESS OR IMPLIED, AS TO THE IDENTITY OR AUTHENTICITY OF THE PINGERCAST SENDER. YOUR SUBSCRIPTION TO A PINGERCAST IS MADE AT YOUR SOLE RISK AND PINGER IS NOT RESPONSIBLE FOR THE USE, COLLECTION AND/OR SHARING OF DATA AND/OR PERSONAL INFORMATION PROVIDED TO SUCH THIRD PARTY OR THE CONTENT OF ANY PINGERCAST MESSAGES SENT BY SUCH THIRD PARTY. THEREFORE YOU SHOULD EXERCISE CAUTION WHEN CONSIDERING TO PROVIDE PERSONAL INFORMATION TO A PINGERCAST SENDER OR TO CONDUCT ANY TRANSACTIONS RELATED TO PINGERCASTS. BY SUBSCRIBING TO A PINGERCAST, YOU HEREBY AUTHORIZE PINGER TO PROVIDE THE PINGERCAST SENDER THE DATA PROVIDED BY YOU WHEN SUBSCRIBING TO THE PINGERCAST AND YOU CONSENT TO RECEIVE MESSAGES FROM THE PINGERCAST SENDER AS PART OF YOUR SUBSCRIPTION TO THE PINGERCAST. IF YOU SUBSCRIBE TO A PINGERCAST, YOU: (A) HEREBY AUTHORIZE PINGER TO PROVIDE THE DATA PROVIDED BY YOU UPON SUBSCRIBING TO SUCH PINGERCAST TO THE PINGERCAST SENDER; (B) CONSENT TO RECEIVE MESSAGES (SMS, MMS, EMAIL AND RELATED VOICEMAILS) FROM THE PINGERCAST SENDER AS PART OF YOUR SUBSCRIPTION TO THE PINGERCAST; (C) AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY USE OF INFORMATION MADE AVAILABLE TO THE PINGERCAST SENDER; AND (D) ACKNOWLEDGE AND AGREE THAT PINGER WILL NOT HAVE ANY LIABILITY TO YOU FOR THE PROVISION OF SUCH DATA TO THE PINGERCAST SENDER OR THE USE OR MISUSE OF SUCH INFORMATION BY THE PINGERCAST SENDER OR ANY THIRD PARTY.

Feedback

You agree that any input or feedback you provide to Pinger, including but not limited to usability, bug reports and test results, with respect to the Software and/or Services shall be the property and confidential information of Pinger and may be used by Pinger for any purpose and you hereby assign all right, title and interest therein, including all intellectual property rights therein, to Pinger. Pinger provides no assurance that any specific errors or discrepancies in the Software or Services will be corrected.

Ownership

All right, title, and interest, including all intellectual property rights, in and to the Software and Services are owned by Pinger or its suppliers. The Software is protected by copyright and other intellectual property laws and by international treaties. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Pinger's or its suppliers' ownership of or rights with respect to the Software or Services. Title and related rights in the content accessed through the Software are the property of the applicable content owner and are protected by applicable law. The licenses granted under this Agreement do not give you any rights in or to such content other than as expressly set forth in this Agreement.

Term and Termination

This Agreement is effective until terminated. This Agreement will terminate immediately without notice to you upon the earlier of (i) Pinger's election to terminate this Agreement with you; or (ii) the effective date of a new version of this Agreement as set forth above, or (iii) your breach or failure to comply with any term or condition of this Agreement. Pinger reserves the right to modify or terminate this Agreement, or any of its services and/or product offerings at any time without notice to you. Upon termination, the license granted herein shall cease, your account and any associated data will be deleted, and you shall promptly destroy the Software or return the Software to Pinger. The licensed you've granted to Pinger, the Software Limitations, the restrictions on your use of content made available through the Services, and the following Sections shall survive termination or expiration of this Agreement: "Limitations on Use," "Pingercast Messages," "Feedback," "Ownership," "Term and Termination," "Disclaimer of Warranties," "Limitation of Liability," "Indemnification," and "General."

Site Content

All content that is made available to view and/or download in connection with the Pinger websites (collectively, the "Site") is the copyrighted work of and is owned by Pinger and/or its licensors, as applicable, and is protected by copyright laws and international treaty provisions. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any such content without the express written permission of Pinger and the copyright owner. The Site may contain links to third party web sites ("Linked Sites"). These Linked Sites are not under the control of Pinger and Pinger is not responsible for the availability, contents, or performance of any Linked Sites. Pinger is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Pinger of the Linked Site or any association with its operators. You are responsible for viewing and abiding by the privacy statements and terms of use posted at the Linked Sites. You should direct any concerns regarding these third-party sites to those sites' administrators. "Pinger" and the Pinger logo are trademarks of Pinger and are protected by law. All other names of companies and products mentioned may be trademarks of their respective owners. You may not copy, display or use any of these marks without prior written permission of the mark owner.

Copyright Policy

Pinger respects the intellectual property of others, and we expect our users to do the same. Pinger may suspend and/or terminate the accounts of users who infringe the rights of others. If you believe that your copyrights or other intellectual property rights have been infringed by postings of others through the Services, you should provide Pinger's copyright agent with the following information:

an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of where the material that you claim is infringing is located on the site;
your address, telephone number, and email address;
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;
a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

Pinger's Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:

By mail:
Copyright Agent
c/o Pinger, Inc.
97 S. 2nd Street, Suite 210
San Jose, CA 95113
By phone: (408) 271-5700
By fax: (408) 993-1903
By email: copyright@pinger.com

Disclaimer of Warranties

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PINGER AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND SERVICES AND SITE "AS IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIM WITH RESPECT TO THE SOFTWARE AND SERVICES ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) WARRANTIES, DUTIES OR CONDITIONS OF OR RELATED TO: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT AND LACK OF NEGLIGENCE. ALSO, THERE IS NO WARRANTY, DUTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PINGER OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE AND/OR SERVICES AND/OR SITE OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF PINGER OR ANY SUPPLIER, AND EVEN IF PINGER OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PINGER'S AGGREGATE LIABILITY TO YOU EXCEED U.S.$1.00. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Indemnification

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD PINGER AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS HARMLESS FROM AND AGAINST ALL CLAIMS, LIABILITIES, LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS OF EXPERTS, RESULTING FROM (I) ANY VIOLATION OR BREACH OF THIS AGREEMENT BY YOU, (II) ANY ACTIVITY RELATED TO ACCESS TO OR USE OF YOUR ACCOUNT (INCLUDING NEGLIGENT OR WRONGFUL CONDUCT) BY YOU OR ANY OTHER PERSON ACCESSING OR USING THE SERVICES THROUGH YOUR ACCOUNT, OR (III) PINGER'S AUTHORIZED USE OF DATA PROVIDED BY YOU OR DATA OBTAINED AND USED BY PINGER AS AUTHORIZED BY YOU UNDER THIS AGREEMENT.

Licenses to Government Users

The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government end-users acquire the Software with only those rights set forth herein.

Access by Minors

Following the requirements of 47 U.S.C. Section 230(d), as amended, we hereby notify you that parental control protections are commercially available that may assist you in limiting access to material that is harmful to minors. For more information on how to obtain such protections see GetNetWise (http://kids.getnetwise.org/) and OnGuard Online (http://onguardonline.gov/). Pinger does not endorse any particular provider or service that enables parental controls.

Notice to California Users

Under California Civil Code Section 1789.3, California users of the Service are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by mail at 1625 North Market Blvd., Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

General

This Agreement and the legal relations between the parties arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California exclusively, as such laws apply to contracts between California residents performed entirely within California. You agree(s) that conflicts of laws principles of such laws and the United Nations Convention on Contracts for the International Sale of Goods (1980) and its successors are hereby excluded in their entirety from application to this Agreement. The parties hereby consent to the exclusive jurisdiction of and venue in the federal and/or state courts located in Santa Clara County, California, for all claims arising out of or relating to this Agreement. Neither this Agreement nor any of your rights or obligations hereunder may be assigned by you in whole or in part without the prior written approval of Pinger. Any assignment in derogation of the foregoing shall be null and void. If any part of this Agreement is for any reason found to be invalid, illegal or unenforceable, all other parts nevertheless remain valid, legal and enforceable as long as a party's rights under this Agreement are not materially affected. In lieu of the unenforceable provision, the parties will substitute or add as part of this Agreement a valid, legal and enforceable provision that will be as similar as possible in economic and business objectives as were intended by the unenforceable provision. This Agreement sets forth the entire understanding and complete and exclusive statement of the agreement between Pinger and You which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement.

THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.

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