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License Agreement

Words to live by

1. AGREEMENT

This Services Agreement (this "Agreement") is entered into by and between you, the individual registering for the Service ("You") and FusionOne, Inc. ("FusionOne", "we", or "us") regarding your use of FusionOne's MightyPhone services and Software (as defined below). This Agreement sets forth the terms and conditions under which FusionOne makes its services and Software available to You. By clicking to select the checkbox next to the statement that reads "I have read and I accept all of the terms and conditions of the FusionOne Service Agreement" on the signup form, You are entering into this Agreement with us, and indicating that You agree to be bound by these terms and conditions. You may not register for the Service if You are younger than 13 years old. By registering for the Service You represent to FusionOne that You are 13 years of age or older. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT PROCEED WITH THE SIGNUP PROCESS AND SOFTWARE INSTALLATION.

2. SERVICE

  1. Description of Service. This Agreement covers FusionOne's MightyPhone services and software provided to individual end users as described in this agreement (individually, the"Service" and collectively, the "Services"). The Services provide data synchronization and management functionality for a variety of handheld devices, including certain models of mobile phones. To use the Service to synchronize data stored on a desktop computer, You may optionally download the FusionOne client software ("Software") from www.MightyPhone.com or other affiliated web sites.
  2. Equipment and Access. You are responsible for providing all equipment and services necessary for using the World Wide Web, such as a computer, telecommunications equipment and access to the Internet.
  3. Provision of Service. Upon acceptance of this Agreement and completion of the registration process (including selection of a username and password for the Service), You will have opened an account ("Account") with FusionOne and become a subscriber to the Service.
  4. General Practices. You acknowledge that FusionOne may establish general practices and limits concerning use of the Services, including without limitation the maximum number of days that content will be retained by FusionOne and the maximum size of any content that may be sent from or received by Your Account.

3. USE OF SERVICE

  1. Passwords and Security. FusionOne is entitled to act on instructions received under your username and password. You are responsible for maintaining the confidentiality of your username and password. You may authorize other individuals to them, but You assume all risks associated with doing so and remain solely responsible for all activity on your Account.
  2. Availability of Service. Although FusionOne will use commercially reasonable efforts to make the Service available without temporary interruption (except for scheduled maintenance downtime), FUSIONONE ASSUMES NO RESPONSIBILITY FOR LOSS OR DAMAGE RESULTED FROM ANY INTERRUPTION OR SUSPENSION OF THE SERVICE FOR ANY REASON.
  3. Data Storage and Content. Although FusionOne will use commercially reasonable efforts to store the data that You provide under this Agreement, FUSIONONE ASSUMES NO RESPONSIBILITY FOR LOSS OR DAMAGE TO THAT DATA. You are solely responsible for the data and settings in Your Account and for the data that You store, retrieve, transmit or synchronize within or to Your Account or other websites, services or devices or with respect to which you attempt to do so. You are solely responsible for maintaining back-ups of all data stored on your devices. Without limiting the forgoing, FusionOne shall have no obligation to store data in excess of 1GB or such lesser amount of data storage leased under this Agreement. You acknowledge that password-protected security systems are subject to unauthorized access so that it is possible for an unauthorized third party to access, view, copy, modify and distribute any data in Your Account. You are solely responsible for obtaining rights, as applicable, to the data and files in Your Account and for ensuring that such content is not and Your use of the Service is not illegal or for an illegal purpose, misleading or fraudulent, libelous, violative of the intellectual property of others, does not include any viruses, worms or similar contaminating or destructive aspects, is not for spamming or other use that may disrupt the Service or networks through which the Service is accessed. You also agree not to access or attempt to access any Service account for which You have no access authorization or gain unauthorized access to any of the servers or systems controlled by FusionOne.
  4. Export Control. The Software uses cryptography to protect the personal information You synchronize using the Service. Software incorporating cryptography technology is regulated by the applicable U.S. and foreign law. The software uses cryptography to protect the personal information You synchronize using the Service. By accepting the terms of this Agreement, You acknowledge that software incorporating cryptography is controlled under the Export Administration Regulations and understand that You cannot export or reexport the software to any other user without receiving a license or other authorization. You also acknowledge that the Software is not intended for use by a government end-user, as defined under the regulations, or any entity prohibited under U.S. law. Prohibited entities include any end-user in a restricted country (Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, Yugoslavia (Serbia), and Taliban-controlled regions of Afghanistan), and restricted end-users on the Denied Persons List or List of Specially Designated Nationals.

4. SERVICE BILLING

You acknowledge and understand that billing for the Service is provided by a third party, the terms of which are subject to a separate billing agreement. You further agree to adhere to all terms and conditions of the third party billing agreement, and to make all payments in accordance with requirements of the billing agreement.

5. SOFTWARE AND SERVICE LICENSE

  1. Right to Use. Subject to the terms and conditions of this Agreement, FusionOne grants You a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable license to use the Software to access and use the Service for use on your computing and communications devices only for synchronization of your personal digital content. You agree that You will not reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the Software. You further agree as a condition of this license to comply with our rules and policies on the use of the Service which we may (I) link to the Software; (II) publish within the FusionOne websites, at www.FusionOne.com and/or www.MightyPhone.com; or (III) otherwise notify you of from time to time in any other manner.
  2. Installation. You may install the Software on any number of your personal electronic devices for use in accordance with Section 5(A) above. The Service may automatically update, upgrade or repair itself when you attempt to synchronize your data, and you agree not to interfere with or prevent such activities. If in the alternative, we provide You with instructions to install such updates, upgrades or repairs yourself, you agree to follow those instructions that accompany such delivery and install such updates, upgrades and repairs promptly. All such updates, upgrades or repairs to the Software shall become part of the Software for the purposes of this Agreement.
  3. Ownership of Software and Services. FusionOne shall retain sole and exclusive ownership of all right, title and interest in and to the Software and Services. All rights not expressly granted hereunder are reserved by FusionOne. You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, the Software or Services or any portion thereof, including without limitation any content other than your personal digital content displayed in connection with the Services.

6. END-USER INFORMATION

  1. Use and Disclosure. FusionOne understands that certain information it obtains from You as a result of providing the Service, both during registration ("Registration Information") and through your use of the Service ("Synchronized Information") is your personal information. We will use the Registration Information and Synchronized Information in accordance with our Privacy Policy as it may be modified from time to time. Notwithstanding anything to the contrary stated in this Agreement, the Privacy Policy, or elsewhere, FusionOne has no responsibility of nondisclosure or confidentiality with respect to Registration Information or Synchronized Information that is in or enters the public domain without breach of this Agreement, that it receives from a third party without restrictions on disclosure, or that FusionOne obtains independently.
  2. No Breach of Privacy. You acknowledge and agree that our collection and use of Registration Information your Synchronized Information, and our operation and provision of the Service and Software, as contemplated in this Agreement, in no way constitutes an actionable breach of any privacy or other right, whether in equity, law, contract or otherwise and You hereby waive any and all such claims or rights of action whether foreseen or unforeseen.

7. TERMINATION OF SERVICE

FusionOne may terminate this Agreement immediately, for any reason or no reason in its sole discretion without liability to You or any third party upon notice to You, which notice will be deemed to be delivered if sent to the e-mail address You provided to us during your registration, as updated by You in our records. You may close Your Account and end your use of the Service at any time, for any reason or no reason by giving notice provided that you may not receive a refund for any fees which You may have paid in advance. Upon termination of your account, You shall remain liable for all fees incurred or accrued by You. Upon expiration or termination for any reason, You are no longer authorized to use the Service or Software. When this Agreement is terminated and/or Your Account is canceled, You will no longer have access to data, messages, files and other material You have stored on the Site and that material may be deleted by FusionOne. The following sections of this Agreement shall survive expiration or termination of the Agreement: 5(C), 6, 9, 10, 11, and 12.

8. MODIFICATION OF AGREEMENT

FusionOne may modify this Agreement by, five (5) calendar days before the new terms and conditions are to become effective, posting the new terms and conditions in the same location as the previous terms and conditions were posted and informing You of the modification via a general notice which may be provided by any reasonable means, including without limitation by e-mail to the e-mail address provided by You in registering for the Service or by general posting on this page. Once You have signed up for the service, You may access this page at any time at www.mightyphone.com/legal/agreement.php. If You continue to use the Service, then You will be considered to have accepted the modifications. You agree to check this web site for notices, and that You will be considered to have received a notice when We have made it available to You by posting on the web site. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, THEN YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT AND CEASE USING THE SERVICE.

9. WARRANTY DISCLAIMER

  1. You represent and warrant to FusionOne that You shall comply with all applicable laws, statutes, ordinances and regulations regarding Your use of our Services and Your access, transmittal, storage and use of data synchronized using the Services. You are responsible for compliance with applicable local laws, keeping in mind that use of the Service may not be legal by certain persons or in certain countries (see, for example, Section 3(D) Export Control).
  2. You acknowledge that availability of the Service is subject to many factors outside of FusionOne's control, including the availability of connection services to and within the Internet and to other network functions within and around the Internet, and to equipment that, by its nature, is not fault-tolerant. As a result, FusionOne cannot warrant that the Service will be secure or be continuously available. THE SERVICE AND THE SOFTWARE ARE PROVIDED AND LICENSED TO YOU "AS IS". YOU USE THE SERVICE ENTIRELY AT YOUR OWN RISK. WE HEREBY DISCLAIM ALL WARRANTIES OR CONDITIONS WITH RESPECT TO THE SERVICE AND SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY COMPANY, OR ITS EMPLOYEES OR REPRESENTATIVES WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. FUSIONONE DOES NOT WARRANT THAT THE SERVICE OR ITS USE BY YOU WILL BE UNINTERRUPTED, ACCURATE, COMPLETE, SECURE, VIRUS FREE, ERROR FREE OR AVAILABLE AT ANY TIME OR THAT DATA PROVIDED BY YOU TO FUSIONONE WILL NOT BE LOST OR CORRUPTED.

10. LIMITATION OF LIABILITY AND INDEMNITIES

  1. IN NO EVENT SHALL FUSIONONE HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY AND WHETHER IN BASED CONTRACT, OR TORT (INCLUDING NEGLIGENCE). THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF FUSIONONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  2. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental, consequential or certain other damages. Accordingly, some of the limitations of Sections 9 and 10 may not apply to You.
  3. You agree to defend, indemnify, and hold harmless FusionOne, its officers, directors, employees and agents, from and against any and all claims, actions, demands, losses, liabilities, costs and expenses, including without limitation, reasonable legal and accounting fees arising out of or relating to any claims, actions or demands brought by third parties resulting in whole or in part from Your use of the Service, the data and content You store, retrieve, transmit or synchronize within or to Your Account, or Your violation of this Agreement.

11. INTELLECTUAL PROPERTY

  1. When You synchronize any information, text, files, links, software, or other materials ("Content") to publicly-accessible areas of the Site, You represent and warrant to us that (I) You are the rightful owner of the Content You are synchronizing, (II) You have obtained all rights necessary to upload the Content to FusionOne's servers, synchronize the Content with the devices You have included in your Account and grant the rights set forth below, (III) neither the Content nor the use of such Content in the Service infringes or violates the rights of third parties or any applicable laws. You acknowledge and agree that FusionOne will have no obligation to enforce, defend or otherwise protect Your rights in uploaded Content and You release FusionOne and any of its affiliates (and our respective officers, directors, agents, subsidiaries and employees) from and against any and all claims, demands, losses, costs, expenses, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to the Content or disputes with third parties regarding your rights in or to the Content. If You are a California resident, You waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." You further acknowledge and agree that You may be held legally liable for the Content You post on the Site (e.g., if the material You upload infringes someone else's intellectual property rights or defames someone or violates their rights of privacy).
  2. It is our policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act in an appropriate manner under such Act and other applicable intellectual property laws, including the removal or disabling of access to material claimed to be the subject of infringing activity. Pursuant to 17 United States Code 512(C)(2) (Digital Millennium Copyright Act of 1998), FusionOne's designated agent for notice is: FusionOne, Inc., 1 Almaden Blvd., 11th Floor, San Jose, California, 95113; Attention: Copyright Department.
  3. To file a notice of infringement with us, one needs to fulfill the requirements specified in Title II of the Digital Millennium Copyright Act of 1998. A summary of the text of this statute can be found at the U.S. Copyright Office Web Site, www.loc.gov/copyright.

12. MISCELLANEOUS.

  1. Any controversy or claim arising out of or relating to this Agreement, the Site or our Services shall be governed by the laws of the State of California without reference to conflict of laws principles and without regard to the U.N. Convention on the International Sales of Goods. If You are a resident of the United States, the parties agree to submit to the jurisdiction of the courts of Santa Clara County of the State of California with respect to any dispute, claim or controversy arising out of or relating to the Agreement, whether based on contract, tort, or any other legal theory. If You are not a resident of the United States, any dispute, claim or controversy arising out of or related to this Agreement, whether based on contract, tort, or any other legal theory, shall be finally settled by binding arbitration under the then-current rules of the American Arbitration Association by a panel of arbitrators appointed in accordance with those rules. The arbitration shall be held in San Jose, California, USA. The award by the arbitrators shall be deemed to be made in the State of California, USA. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. If any provision of this Agreement is held by an arbitrator or arbitrators of competent jurisdiction to be contrary to law, then such provision(s) shall be construed as nearly as possible to reflect the intentions of the parties with the other provisions remaining in full force and effect.
  2. You may not assign this Agreement or any of your rights or obligations without the prior written consent of FusionOne, and any such attempted assignment will be void. Subject to the above, this Agreement will be binding upon the parties' respective successors and permitted assigns. FusionOne will not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by Internet outages, earthquakes, communications outages, fire, flood, war, an act of God or the occurrence of any other any unforeseen contingency beyond the reasonable control of FusionOne. FusionOne's failure to enforce any provision of this Agreement will not be construed as a waiver of any provision or right. No amendment or modification hereof will be valid or binding upon either party unless made in writing and signed by the authorized representatives of both parties. In the event that a portion of this Agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN YOU AND FUSIONONE WITH RESPECT TO THE SERVICES AND SOFTWARE AND SUPERSEDES ALL PRIOR AGREEMENTS BETWEEN YOU AND FUSIONONE.