This Textfree Web Terms of Service (the “License”) governs your use of Textfree, (referred to as “Textfree” or “Licensed Application”) which is the application and related service provided by Pinger, Inc. (referred to herein as “Pinger”) and made available through the Internet. This License applies to your use of the web-based version of Textfree. Use of Textfree services through mobile applications is governed by the terms and conditions of those mobile applications.
Scope of License. The Licensed Application is licensed, not sold, to you. This License is limited to a nontransferable license to use the Licensed Application through the Internet. The terms of the license will govern any upgrades provided by Pinger that replace and/or supplement the original Licensed Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
Requirements to Use the Licensed Application. An Internet connection is required to use the Licensed Application. You are solely responsible for any fees and costs associated with that Internet connection, such as fees of Internet access providers. You hereby grant Pinger a license to use, copy, transmit, distribute, store and cache messages and data (such as pictures files for MMS) on and through its systems and those of its providers. You represent and warrant to Pinger that you have all necessary rights to grant the foregoing license and that Pinger’s exercise of the rights granted by you will not violate applicable law or infringe or violate the rights of any party. Textfree may include advertisements and communications from Pinger, such as service announcements and administrative messages, and you will not be able to opt out of receiving them.
Consent to Use of Data. You agree that Pinger may collect and use technical data and related information—including but not limited to technical information about your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and services to you related to the Licensed Application. You consent to the disclosure of any information you make available to Pinger to legal authorities under a validly-issued subpoena.
Limitations on Use. You may not rent, lease, lend, sell, redistribute, or sublicense the Licensed Application. You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Application) or allow any third party to do so. You acknowledge and agree that: (i) Textfree communications are limited to connections within the contiguous United States (i.e. excluding Alaska, Hawaii, and U.S. territories) and may be limited, suspended, blocked or restricted by geography, number, duration or other criteria as determined by Pinger at any time in its sole discretion and without liability to you; (ii) placing and receiving emergency service calls is not supported; (iii) texting of short codes is not currently supported; (iv) you are limited to use one phone number from Pinger which is owned by Pinger; (v) Pinger may reclaim the phone number used by you if you fail to send a text message for a period of 30 days and may otherwise discontinue phone number availability and reclaim phone numbers at any time without liability to you; and (vi) if your version of Textfree includes voicemail features, voicemails will be deleted upon the earlier of termination of this License or two weeks after the voicemail is received by Pinger, and may be subject to limitations as to the number and duration of voicemails, as determined by Pinger in its sole discretion. Spamming is not allowed. You acknowledge and agree that: (i) you will use Textfree only for yourself and for lawful, non-commercial purposes and in compliance with applicable law; (ii) you may only create a Textfree account for yourself and not for anyone else and may not transfer or assign your Textfree account or phone number; (iii) you will not create a Textfree account or use Textfree under a false identity or by impersonating any person or entity; and (iv) you will not use Textfree to transmit any communications or messages that constitute spam, are obscene, abusive, harassing, threatening, racist, malicious, fraudulent, defamatory, libelous, harmful to minors, or that violate or infringe the rights of third parties.
Textfree Voice Credits. Depending on the version of Textfree you use, you may purchase voice credits to use outbound voice features or earn them through use of the Licensed Application. ONE VOICE CREDIT IS APPLIED TO THE FIRST MINUTE OR PARTIAL MINUTE OF EACH CALL. VOICE CREDITS ARE APPLIED IN INCREMENTS OF ONE TENTH (1/10) OF MINUTE AFTER THE FIRST MINUTE. VOICE CREDITS (I) EXPIRE UPON TERMINATION OF YOUR TEXTFREE 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 CREDITS ARE NOT TRANSFERABLE OR REFUNDABLE.
Purchases. Purchases made within or through the Licensed Application, if any, are made through third party services and may be subject to separate terms and conditions of such services which you may be required to accept. You acknowledge and agree Pinger shall not have any liability to you arising out of the use and/or operation of such services or the actions or failures to act of any such third parties.
Third-Party Materials. The Licensed Application may enable you to receive, view and access content provided by third parties and to interact and provide information to third party service providers (collectively, “Third Party Content”). You acknowledge and agree that Pinger does not warrant or endorse and will not have any liability or responsibility to you or any other person for any Third Party Content.
Ownership. All right, title, and interest, including all intellectual property rights, in and to the Licensed Application and phone numbers made available through the Licensed Application are owned by Pinger or its suppliers.
Indemnification and Waiver. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD PINGER 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 THIS LICENSE BY YOU, (II) ANY ACTIVITY RELATED TO YOUR ACCESS TO OR USE OF TEXTFREE (INCLUDING NEGLIGENT OR WRONGFUL CONDUCT), OR (III) PINGER’S AUTHORIZED USE OF DATA PROVIDED BY YOU OR OBTAINED AT YOUR DIRECTION AS AUTHORIZED BY YOU UNDER THIS LICENSE. AS AN EXPRESS CONDITION OF THE RIGHTS GRANTED TO YOU HEREIN, YOU ACKNOWLEDGE AND AGREE THAT (I) ANY VOICE CREDITS EARNED OR PURCHASED ARE REVOCABLE AND CANCELABLE LICENSE RIGHTS TO USE THE PINGER SERVICES 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 PINGER, INC., ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS FROM, ALL CLAIMS AND DAMAGES ARISING OUT OF ANY EXPIRATION VOICE CREDITS, WHETHER BY INACTIVITY, TERMINATION OF THIS LICENSE, OR OTHERWISE. YOU AND PINGER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
No Warranty. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PROVIDED IN CONJUNCTION WITH THE LICENSED APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PINGER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SUCH SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. PINGER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR RELATED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL PINGER BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS LICENSE OR YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF PINGER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Pinger’s total liability to you for all damages exceed the amount of ten dollars ($10.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Termination. This License is effective until terminated. Pinger may modify this License from time to time and notify you that the License has been modified and you consent to the modified License by your continued use of Textfree after such notification. Pinger may suspend, terminate or otherwise restrict your use of Textfree at any time, for any reason, and without any liability to you or any obligation to return amounts previously paid by you. Pinger reserves the right in its sole discretion and at any time to terminate this License, without any liability to you or any obligation to return amounts previously paid by you, if you violate the terms of this License, if your use of Textfree is disabled or prevented by a party other than Pinger, or if the Textfree services are terminated by Pinger. Upon termination, the license granted herein shall cease, your Textfree account will be terminated, any voice credits will expire, any voicemails will be deleted, and you shall promptly uninstall the Licensed Application. The protections afforded to Pinger under this License and the following Sections shall survive termination or expiration of this License: “Limitations on Use,” “Purchases,” “Third Party Materials,” “Ownership,” “Indemnification and Waiver,” “No Warranty,” “Limitation of Liability,” “Termination,” and “General.”
a. Compliance with Laws. You agree to comply with any local laws and regulations regarding Your right to download, install, import, export or use the Licensed Application. You acknowledge and agree that the Licensed Application is controlled for export purposes and that your use of the Software may be subject to audit to ensure compliance with this License. You agree to (i) strictly comply with all United States export laws and regulations, including, but not limited to the U.S. Department of Commerce (DOC) Export Administration Regulations (EAR), the Office of Foreign Asset Control (OFAC) regulations as administered by the Department of Treasury, and all treaties, Executive Orders, laws, statutes, amendments, or supplement thereto, including all applicable international, national, state, regional and local laws, and regulations (ii) not export, re-export or transfer, directly or indirectly, the Licensed Application to any prohibited country outlined in the EAR, or to any denied person, entity, or against any general denial order, as listed with the DOC as follows: Denied Persons List, Entities List, the Unverified List, and General Order No. 3 to Supplement No. 1 to Part 736 of the EAR, or on any OFAC list, currently the Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists, (iii) not export, or re-export the Licensed Application to any military entity or military end-use not authorized under the applicable provision of the EAR, and (iv) not to export or re-export into Cuba, Iran, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; (v) not to license, sell, provide or distribute the Software for any prohibited use or to any prohibited end user.
b. Governments. The Licensed Application is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth in this License.
c. Miscellaneous. This License 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 that conflicts of laws principles of such laws, the Uniform Computer Information Transactions Act, and the United Nations Convention on Contracts for the International Sale of Goods (1980) and its successors are excluded in their entirety from application to this License. The parties 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 License or the relationship between the parties. Neither this License nor any or 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 violation of the foregoing shall be null and void. If any part of this License is for any reason found to be invalid, illegal or unenforceable, all other parts nevertheless remain valid, legal and enforceable. In lieu of the unenforceable provision, the parties agree that the court should attempt effect as much as possible the economic, legal and business objectives as were intended by the unenforceable provision. Pinger shall not be liable for any delay in the performance hereunder due to causes beyond its control, including but not limited to actions by third parties, an act of God, war or natural disaster. This License set forth the entire understanding and complete and exclusive statement of the agreement between Pinger and You and it supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this License. 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.
Pinger software may include third party open source programs identified at http://www.pinger.com/OSS/currentlist/011121011, provided that only unmodified Pinger software may be used with services made available by Pinger under the license above.
Copyright © 2011 Pinger, Inc. All Rights Reserved.
Last updated December 14, 2011