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Effective as of March 15, 2007
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Acceptance of Terms
AllFocus, Inc., ("AllFocus") welcomes you. AllFocus provides its service to you subject to the following Terms of Service. By registering for AllFocus' Service (defined below), accessing and using the AllFocus.com website, or downloading applications to your cell phone, you agree that you have read, understand, and accept the terms and conditions described below (the "Terms of Service"). By agreeing to the Terms of Service, you agree that you have read, understand, and accept the terms and conditions of the Privacy Policy, which are incorporated herein by reference. If you do not wish to be bound by these Terms and Conditions, you are not authorized to use the Software, Site or Service.
For purposes of these Terms of Service, the term AllFocus Products means AllFocus' Software whether pre-installed, on a medium, or offered by download, and all documentation related thereto; AllFocus' website including, but not limited to, www.allfocus.com ("AllFocus" or the "Site"); AllFocus' services provided to you through the Software, through your Web account on the Site, or through your registered cell phone; and all content made available by AllFocus and/or its vendors and licensors including by or through the AllFocus website, software and services (the "AllFocus Content").
Description of Service
AllFocus provides you with access to resources online or on your cell phone, including various communications tools, address-book/contacts services, event calendar services, food recipes services, personalized content and branded programming which are accessible through any medium or device now known or hereafter developed (the "Service"). You also understand and agree that the Service may include advertisements and that these advertisements are necessary for AllFocus to provide the Service. You also understand and agree that the Service may include service announcements and administrative messages and that these communications are considered part of AllFocus membership and you will not be able to opt out of receiving them. Your use of the Products is at your sole risk. You understand and agree that the Service is provided "AS-IS" and that AllFocus assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service.
Changes on Terms or Service
AllFocus reserves the right at any time to modify, add or delete portions of these Terms of Service, at its sole discretion. The amended Terms of Service will be posted on the Site. It is your responsibility to regularly review the Terms of Service. Your continued use of the Service constitutes your acceptance of any such changes or modifications to the Terms of Service.
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Eligibility
To use the Service in consideration of the safety and privacy of all AllFocus users, you must be thirteen years of age or older to register as a member of AllFocus (a "Member") with accurate, current and complete information about yourself as prompted by the Service's registration form ("Registration Data"). AllFocus reserves the right to suspend or terminate your account and refuse any and all current or future use of the Service.
AllFocus Privacy Policy
Registration Data and your other personal data are subject to our Privacy Policy. By using the Site or the Service, you are consenting to the collection and use (as set forth in the Privacy Policy) of this information by AllFocus.
Member Account, Password, and Security
Upon registration for the Service, you will be required to provide AllFocus with your username and password. You understand that you are solely responsible for maintaining the confidentiality of your password and that you shall be solely and fully responsible for all activities that occur under your username and password. You agree to (i) immediately notify AllFocus of any unauthorized use of your password or account or any other breach of security, and (ii) ensure that you sign out from your account at the end of each session. AllFocus cannot and will not be liable for any loss or damage arising from your failure to keep your account information confidential.
Member Conduct
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- upload, post, email, transmit, forward, provide links to, or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
- upload, post, email, transmit, forward, provide links to, store or otherwise make available any material that infringes copyrighted material or promotes the violation of the intellectual property rights of others, including but not limited to trademark and patent violations;
- copy, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code of, or modify the Service in any manner;
- upload, post, email, transmit, forward, provide links to, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
- impersonate any person or entity, including, but not limited to, AllFocus officials, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- upload, post, email, transmit, forward, provide links to, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of the Service;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures or policies or regulations connected to the Service; and/or
- intentionally or unintentionally violate any applicable local, state, national, or international law.
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You acknowledge that AllFocus may or may not pre-screen Content, but that AllFocus and its designees shall have the right (but not the obligation) at their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, AllFocus and its designees shall have the right to remove any Content that violates the Terms of Service or is otherwise objectionable. You agree that you must consider, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by AllFocus. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
Content Submitted or Made Available for Inclusion on the Service
AllFocus does not claim ownership of Content you submit or make available for inclusion on publicly accessible areas of the Service. You are solely responsible for the address-book contacts and event calendar content that you publish or display on or through the Service or the Site or your cell phone. You may only post Content that you have created or which the owner of the Content has given you permission to post. You may not post or distribute Content that is illegal or that violates these Terms of Service. By posting or submitting Content on any AllFocus Products, you represent and warrant that (i) you own all the rights to this Content or are authorized to use and distribute this Content on the AllFocus Products and (ii) this Content does not and will not infringe any copyright or any other third-party right nor violate any applicable law or regulation.
Limits on Use and Storage
You acknowledge that AllFocus may establish general practices and limits concerning use of the Service, including, but not limit to, the maximum number of days that address-book contacts, calendar events, or other uploaded Content will be retained by the Service, the maximum number of contacts that may be downloaded to your cell phone by an account on the Service, the maximum number of calendar months that are available to an account on the Service, the maximum number of events in a given calendar month that may be added to an account on the Service, the maximum number of any text message that may be sent simultaneously from an account on the Service, and the maximum disk space that will be allotted on AllFocus' servers on your behalf. You agree that AllFocus has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service. You acknowledge that AllFocus reserves the right to de-activate accounts that are inactive for an extended period of time. You further acknowledge that AllFocus reserves the right to modify these general practices and limits from time to time.
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Incidental Costs Associated with Use of the Service
You agree that you are solely liable for all costs, fees, and other expenses resulting from your use of the Service. This specifically includes, but is not limited to, incidental costs incurred by you in connection with your use of the Service, including, but not limited to, costs owed to your cell phone carrier or mobile provider, monthly cell phone coverage fees, data plan costs, and any other additional fees incurred from your cell phone carrier or mobile provider in connection with receipt of transmission of short-text messages.
Changes to Service
AllFocus has the right at any time to change, modify, add to, suspend, or discontinue or retire any aspect or feature of the Products including, but not limited to, the MobileLiving applications, the Site, hours of availability, equipment needed for access or use, the maximum disk space that will be allotted on AllFocus servers on your behalf either cumulatively or for any particular service, or the availability of the Software on any particular device or communications service. AllFocus has no obligation to provide you with notice of any such changes. You agree that AllFocus shall not be liable to you or any third party for any direct, indirect, or consequential damages stemming from these modifications.
Links to Other Websites
The Site contains links to other web sites. We are not responsible for the content, accuracy or opinions express in such web sites, and such web sites are not investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked web site on or through the Site or the Service does not imply approval or endorsement of the linked web site by us. If you decide to leave the Site and access these third-party sites, you do so at your own risk.
AllFocus Proprietary Rights
You acknowledge and agree that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or by advertisers is protected by applicable copyright, trademark, patent, trade secret, and/ or intellectual property and other laws such that it is the sole property of AllFocus or third parties who may own them. Except as expressly authorized by AllFocus or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
AllFocus grants you a personal, non-transferable and non-exclusive right and license to use the object code of its software on a single computer and a single cell phone; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the software. You agree not to modify the software in any manner or form, or to use modified versions of the software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by AllFocus for use in accessing the Service.
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Disclaimer of Warranties
ALLFOCUS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
ALLFOCUS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS DO NOT GUARANTEE OR WARRANTY THE RESULTS YOU WILL RECEIVE FROM THE WEBSITE OR SERVICE, THE INFORMATION YOU RECEIVE THROUGH THE SERVICE OR WEBSITE FROM EITHER THE SERVICE, THE WEBSITE OR A THIRD PARTY, OR ANY OTHER MATERIAL OR TRANSACTION OCCURRING OR BEING RECEIVED BY REASON OF YOUR USE OF THE WEBSITE OR SERVICE. ALL MATERIAL AND CONTENT, LICENSED MATERIAL, SOFTWARE, CONTENT OR DATA DOWNLOADED THROUGH THE SERVICE OR WEBSITE, AND ALL OTHER CONTENT OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE OR SERVICE IS AT YOUR OWN DISCRETION AND RISK. YOU UNDERSTAND AND AGREE THAT YOU WILL BE SOLELY LIABLE FOR ANY DAMAGE TO YOUR CELL PHONE OR COMPUTER SYSTEM THAT RESULTS FROM THE USE OF THE SERVICES OR THE WEBSITE, OR THE DOWNLOAD OF ANY OF THE ABOVE DESCRIBED CONTENT, MATERIAL, DATA AND/OR SOFTWARE.
Limitation of Liability
to the maximum extent permitted by applicable law, YOU EXPRESSLY UNDERSTANDAND AGREE THAT UNDER NO CIRCUMSTANCES (INCLUDING NEGLIGENCE) SHALL ALLFOCUS or its suppliers be liable for any consequential, incidental, indirect, special, punitive, or other damages whatsoever or for damages for loss of business profits, business interruption, computer OR CELL PHONE failure, loss of business information, or other pecuniary loss arising out of these Terms of Service or the use of or inability to use the Software, Site or Services, even if ALLFOCUS has been advised of the possibility of such damages. Your sole and exclusive remedy for any dispute with ALLFOCUS related to these Terms of Service or the Software, Site or Services shall be cancellation of the Software License and Services. In the event a court awards direct damages despite the foregoing, such damages shall not exceed the lesser of $10.00 or the amount you Paid for the Software and Services. 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.
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Indemnity
You agree to hold harmless, indemnify and defend AllFocus, its officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys' fees and costs) arising out of or relating to any claims that you have (i) used the Software, Site or Service in violation of another party's rights or in violation of any law, or (ii) violated any terms of these Terms of Service.
Trademark Information
MobileLiving and CyberEssence are registered trademarks of AllFocus, Inc. Without AllFocus' prior permission, you agree not to display or use in any manner AllFocus' Marks. Third party trademarks, trade names, product names, and logos may be trademarks or registered trademarks of their respective owners.
Copyright Policy
We respect the intellectual property rights of others. If you believe your work has been copied in a way that constitutes copyright infringement or your intellectual property rights have been otherwise violated, please contact support at allfocus dot com. You understand that AllFocus is under no obligation to take any action, however it may, in appropriate circumstances and at its sole discretion, disable and/or terminate the accounts of users violating or infringing the copyright or other intellectual property rights of others.
General Information
Entire Agreement. This agreement constitutes the entire agreement between you and AllFocus and governs your use of the Service, superseding any prior agreements between your and AllFocus with respect to the Service.
Choice of Law and Forum. The Terms of Service and the relationship between you and AllFocus shall be governed by the laws of the State of Massachusetts without regard to conflict of laws principles. You and AllFocus hereby agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Middlesex, Massachusetts.
Waiver and Severability. The failure of AllFocus to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
Survival. The terms and conditions contained in the Terms of Service, including but not limited to the provisions relating to Indemnity, Proprietary Rights, Limitation of Liability and Disclaimer of Warranties, that by their sense and context are intended to survive the performance hereof by the Parties hereunder shall so survive the completion of the performance, cancellation or termination of the Terms of Service.
Statute of Limitations. You agree that any claim or cause of action arising out of or otherwise related to your use of the Site or the Service must be filed within one year after such claim or cause of action arose or be forever barred.
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