You must be 13 years or older to use the Service. By agreeing to the Terms, you represent and warrant to us that: (i) you are at least 13 years old and have not previously been suspended or removed from the Service; (ii) if you are using the Service on behalf of a entity, organization or company (collectively a "Subscribing Organization"), you are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms; and you hereby agree to be bound by these Terms on behalf of such Subscribing Organization (in such a case, “you” in these Terms refers to your Subscribing Organization, and any individual authorized to use the Service on behalf of the Subscribing Organization, including you); and (iii) your registration and your use of the Service is in compliance with any and all applicable laws and regulations.
Your use of the Foneclay’s application programming interfaces is subject to the Foneclay Developer Agreement (which may be found at http://www.foneclay.com/pg/en/fcpages/developer-license). The the Foneclay Developer Agreement is hereby incorporated by reference.
our use of the Service is subject to any additional terms, rules, or guidelines which we may post from time to time (the "Additional Terms"). All such Additional Terms are hereby incorporated by reference into, and made a part of, the Terms.
Modification of the Terms -
We reserve the right, at our discretion, to change the Terms on a going forward basis at any time. Please check the Terms periodically for changes. Your continued use of the Service after the changes become effective constitutes your binding acceptance of such changes. In the event that a change to the Terms materially modifies your rights or obligations, we will make an effort to notify you of the change, such as by sending you an email to the address we have on file for you, or presenting a pop-up window or other notification to you through the Service when you log in. Immaterial modifications are effective upon publication, and material changes will be effective upon the earlier of (a) continued use of the Service with actual knowledge of the modification, or (b) thirty (30) days following the change. For the avoidance of doubt, disputes arising hereunder will be resolved in accordance with the Terms in effect that the time the dispute arose.
Accounts and Registration -
To access most features of the Service you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your e-mail address or other contact information). You agree that the information you provide to us is and will be accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure for any reason (for example, in the event of a loss, theft or unauthorized disclosure or use of your password), then you agree to immediately notify us at support@Foneclay.com. We may also provide functionality designed to permit you to register with the Service through your account(s) with certain third party services, such as email providers, social networks (including, but not limited to, Facebook), and other online application platforms to which you may be a user (collectively, “Third Party Service(s)”). When you register through your Third Party Service account, you will be asked to login to the Service using your Third Party Service account credentials. By creating a member account via your account with a Third Party Service, you are allowing Foneclay to access your Third Party Service account information and you are agreeing to abide by the applicable terms and conditions of your Third Party Service. If you are not currently registered as a member and you click to login with an Third Party Service, you will first be asked to enter your Third Party Service credentials and then be given the option to register and join Foneclay. You may be able to automatically post historical activity back to the applicable Third Party Service, and you may also have the option to disable the connection between your account and Third Party Service account at any time by accessing the Third Party Service account and disconnecting access to the Service.
Purchases; Billing; Payment
Foneclay may, now or in the future, charge subscription fees for the use of the Service or fees for purchases made through the Service. You agree to pay to Foneclay all fees for subscriptions purchased by you, purchases made by you, including any applicable taxes (the “Fees”).
Fees for subscriptions, if any, will be billed at the beginning of your subscription or any renewal. Subscription Fees are nonrefundable. Foneclay may change the Fees for subscriptions for the Service or any feature of the Service, or add additional fees or charges, on a going forward basis at any time. For any change in the Fee for renewal of a subscription purchased under your account, Foneclay will send you a notice of such change in advance of renewal (via a message on or through the Service or email). Each of your subscriptions, if any, will automatically renew unless Foneclay terminates such subscription or you cancel such subscription. You must cancel a subscription prior to renewal to avoid incurring Fees for the renewal term.
Fees for purchases made through the Service, including purchases of additional storage space, will be billed at the time of purchase or shortly thereafter. Subject to any Additional Terms, purchases are non-refundable.
Foneclay will bill charges through the payment method specified in your account (e.g. electronic funds transfer or credit card). If you pay any applicable Fees with a credit card, Foneclay may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You authorize such credit card account to pay any amounts described herein, and authorize Foneclay to charge all sums described herein to such credit card account. You agree to provide Foneclay updated information regarding your credit card and account upon Foneclay’s request and any time the information earlier provided is no longer valid.
User Content Generally -
By posting User Content, you grant Foneclay and a worldwide, non-exclusive, non-transferable, assignable, fully paid-up, royalty-free, perpetual, irrevocable right and license to host, display, perform, reproduce, modify, distribute and re-distribute, and otherwise promote your User Content, in whole or in part, in any digital media formats and through any digital media channels (now known or hereafter developed). You retain copyright and any other proprietary rights you hold in the User Content that you post to the Service.
Limited License Grant to Foneclay -
By posting User Content, you grant Foneclay and a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, perpetual, irrevocable right and license to host, transfer, display, perform, reproduce, modify, distribute and re-distribute, and otherwise exploit your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). You retain copyright and any other proprietary rights you hold in the User Content that you post to the Service.
Limited License Grant to Other Users -
By posting and sharing User Content with another user of the Service, you hereby grant that user a non-exclusive license to access and use such User Content.
User Content Representations and Warranties -
ou are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting and publishing User Content, you affirm, represent, and warrant that:
You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions (including any such rights or permissions required under any applicable law or regulation) to use and to authorize Foneclay and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section and in the manner contemplated by Foneclay and the Terms;
Your User Content, and the use thereof as contemplated herein, does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (c) contain any viruses, adware, spyware, worms, or other malicious code; or (d) violate any applicable law or regulation.
User Content Disclaimer -
We are under no obligation to edit or control User Content that you and other users post or publish, and will not be in any way responsible or liable for User Content. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Foneclay with respect thereto. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to the Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Foneclay does not permit copyright infringing activities on the Service.
Digital Millennium Copyright Act
DMCA Notification -
We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material posted on the Service you may contact our Designated Agent at the following address:
P.O.Box 7031, RSF, CA 92067
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of the material that you claim is infringing and where it is located on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Third Party Services
Foneclay may provide tools through the Service that enable you to export User Content and information to third party websites or services. By using these tools, you agree that we may transfer such User Content and information to the applicable third party service. Such third party services are not under our control, and we are not responsible for the contents of the third party service or the use of your User Content or information by the third party service.
BY USING THE SERVICE YOU AGREE NOT TO:
rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials (as defined in Section 12 , below);
post, upload, or distribute any defamatory, libelous, or inaccurate User Content or other content;
post, upload, or distribute any User Content or other content that is unlawful or that a reasonable person could deem to be offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Service accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Service, or perform any other similar fraudulent activity;
delete the copyright or other proprietary rights on the Service or any User Content;
make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the Service. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
use the Service for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy, or the collection, storage, transmission, or access of educational records;
defame, harass, abuse, threaten or defraud users of the Service, or collect, or attempt to collect, personal information about users or third parties without their consent,
remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service or User Content, features that prevent or restrict use or copying of any content accessible through the Service, or features that enforce limitations on the use of the Service or User Content;
reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service or any part thereof (including any App), except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
modify, adapt, translate or create derivative works based upon the Service or any part thereof, except and only to the extent the foregoing restriction is expressly prohibited by applicable law; or
intentionally interfere with or damage operation of the Service or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
Third Party Websites
The Service, including our websites, may contain links to third-party websites. The linked sites are not under our control, and we are not responsible for the contents of any linked site. We provide these links as a convenience only, and a link does not imply our endorsement of, sponsorship of, or affiliation with the linked site. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties.
Termination of Use; Discontinuation and Modification of the Service.
If you violate any of the Terms, your permission to use the Service will automatically terminate. You also agree that we may, at any time and without notice to you, suspend or revoke your access to and use of the Service, and any accounts you may have in connection with the Service including: (i) where we determine in our sole discretion that such action is reasonable in order to comply with legal requirements or to protect the rights or interests of Foneclay or any third party; or (ii) in connection with any general discontinuation of the Service. We also reserve the right to modify the Service at any time without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or revocation of your access to or use of the Service, provided that if we terminate your access to the Service other than for your breach of these Terms, you may be entitled to a refund of a prorated portion ofFees for a subscription to the Service paid in advance for the period of the subscription that was terminated. You may terminate your account, at any time by contacting customer service at support@Foneclay.com. If you terminate your account, you will remain obligated to pay all outstanding fees and charges, if any, relating to your use of the Service incurred before termination.
Ownership; Proprietary Rights
The Service is owned and operated by Foneclay. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, applications, services, and all other elements of the Service provided by Foneclay (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any User Content that is provided and owned by users of the Service, all Materials contained in the Service are the property of Foneclay or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Foneclay or its affiliates and/or third-party licensors. Except as expressly authorized by Foneclay, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Foneclay reserves all rights to the Materials not expressly granted in the Terms.
You agree that you will be personally responsible for your use of the Service, and you and your Subscribing Organization agree to defend, indemnify and hold harmless Foneclay and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the "Foneclay Entities") from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys' and accounting fees and costs, arising out of or in any way connected with (i) your access to, use of or alleged use of the Service; (ii) your violation of the Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) (v) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
Disclaimers; No Warranties
THE SERVICE IS PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE FONECLAY ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; (ii) ANY WARRANTIES ARISING OUT OF COURSE-OF-DEALING, USAGE, OR TRADE; (iii) ANY WARRANTIES THAT THE INFORMATION OR RESULTS PROVIDED IN, OR THAT MAY BE OBTAINED FROM USE OF, THE SERVICE WILL MEET YOUR REQUIREMENS OR BE ACCURATE, RELIABLE, COMPLETE, OR UP-TO-DATE; AND (iv) ANY WARRANTIES WHATSOEVER REGARDING ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ADVERTISED, MADE AVAILABLE, OR REFERRED TO YOU THROUGH THE SERVICE. YOU ASSUME ALL RISK FOR ALL DAMAGES, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE OR LOSS OF DATA THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE. ANY CONTENT, MATERIALS, INFORMATION OR SOFTWARE DOWNLOADED, USED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN SOME CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE FONECLAY ENTITIES NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OPERATING OR DELIVERING THE SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE FONECLAY ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. YOU SPECIFICALLY ACKNOWLEDGE THAT THE FONECLAY ENTITIES ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, THE FONECLAY ENTITIES WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THROUGH THE SERVICE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE FONECLAY ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO THE USE OF THE SERVICE IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO FONECLAY FOR ACCESS TO AND USE OF THE SERVICE GIVING RISE TO SUCH LIABILITY IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM OR (ii) $100. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FONECLAY AND YOU.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Dispute Resolution and Arbitration
In the interest of resolving disputes between you and Foneclay in the most expedient and cost effective manner, you and Foneclay agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and Foneclay are each waiving the right to a trial by jury or to participate in a class action.
Notwithstanding subsection 16.1, we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
Any arbitration between you and Foneclay will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Foneclay.
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Foneclay's address for Notice is: [Foneclay, Inc., P.O.Box 7031, RSF, CA 92067]. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Foneclay may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Foneclay shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Foneclay shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Foneclay in settlement of the dispute prior to the arbitrator’s award.
In the event that you commence arbitration in accordance with these Terms, Foneclay will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in the County of San Diego, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Foneclay for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No class actions. YOU AND FONECLAY 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.
Further, unless both you and Foneclay agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
In the event that Foneclay makes any future change to this arbitration provision (other than a change to the Foneclay's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Foneclay's address for Notice, in which case your account with Foneclay shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
If only Subsection 16.6 is found to be unenforceable or the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described elsewhere in Section 17 shall govern any action arising out of or related to these Terms.
Governing Law; Venue
These Terms, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California by California residents, and without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Foneclay agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within the County of San Diego, California for the purpose of litigating all such claims or disputes. We operate the Service from our offices in California, and we make no representations that information and materials included in the Service are appropriate or available for use in other locations. Access to the Service from any territory where the content is illegal is prohibited.
If you have any questions regarding Foneclay, the Service, or the Terms please contact us at support@Foneclay.com.
Questions about Terms of Service
Any questions about these Terms of Service should be addressed to legal@Foneclay.com.