September 15, 2008
FLUTTER TERMS OF SERVICE
PLEASE SCROLL DOWN AND READ THESE TERMS OF USE.
These Terms of Service (the "Agreement") govern your use of Flutter including, without limitation, our mobile device software application and services (collectively, the "Services"). Flutter is wholly-owned by Juice Wireless, Inc. (“Juice Wireless”).
If you agree to be bound by the terms of this Agreement, you should click on the "ACCEPT" button during the registration process. If you do not agree to be bound by the terms of this Agreement, you should click on “CANCEL.” If you click "CANCEL," you will not be able to proceed with registration and Juice Wireless will not provide you with access to the Services.
Introduction
1.1 You affirm and represent that you are more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement. In any case, you affirm and represent that you are over the age of 14, as the Services are not intended for children under 14.
1.2 Juice Wireless reserves the right, at its sole discretion, to change, modify, add to, or remove any portion of this Agreement, in whole or in part, at any time. Amendments to the Agreement will take effect immediately upon notice. Your continued use of the Services after Juice Wireless notifies you of an Amendment constitutes your acceptance of and consent to the Amendment.
Flutter Services and Software.
2.1 The Services, among other things, allow you to send, share, and distribute content including, without limitation, photographs (collectively, “Content”), from your mobile phone to third parties mobile phone devices. To use the Services you must valid and legal access to a mobile phone.
2.2 You must download the mobile device software associated with the Services (the “Software” through your mobile device and are solely responsible for payment of fees for the Software and/or use of the Services. Billing for the Services and/or Software will be arranged through your wireless carrier or another authorized third party. You are responsible for all charges incurred in connection with the Services regardless of who incurs the charges. You are responsible for any and all taxes, and expenses that may be incurred related to use of the Services.
2.3 You are responsible for your account and should never provide any third party with your password or access to your Flutter account or the Services. YOU ARE SOLELY LIABLE FOR ANY ACTS OR OMISSIONS RELATING TO YOUR USE OF THE SERVICE AND YOUR ACCOUNT. You agree to defend, indemnify and hold Juice Wireless harmless to the extent your account is violated or compromised in any way.
Software License Grant; Restrictions.
3.1 Juice Wireless grants you, during the term of this Agreement, a revocable, non-transferable and non-exclusive license to use the Software solely in connection with your use of the Services and in a manner that is consistent with this Agreement. You may use the Software for one mobile device owned or leased solely by you, for your personal use.
3.2 You shall not (a) distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or part of the Software, any access to it, or any rights granted under this Agreement to any other person; (b) reverse engineer, decompile, or disassemble the Software; (c) modify, translate, adapt, arrange, or create derivative works based on the Software for any purpose; (d) use the Software in a manner inconsistent with or in violation of this Agreement.
3.3 The Software including, without limitation, visual interfaces and computer code is protected by copyright, trade secret and other intellectual property laws and treaties and will remain the exclusive property of Juice Wireless or its suppliers or licensors. All rights not expressly granted in this Agreement are reserved by Juice Wireless.
3.4 You shall comply with all trade regulations and export control laws, both domestic and foreign. Software and any underlying information accessed or transferred using the Services may be subject to U.S. export controls, including the Export Administration Act (50 U.S.C. § 2401, et seq.) and the Export Administration Regulations (50 C.F.R. § 730-774), as well as the import regulations of other countries. Except as authorized by Juice Wireless and the U.S. export control laws, you agree not to export or re-export any Software to any foreign country. Any information transferred by you using the Services to any foreign country, entity, or person must comply with the U.S. Export Administration Act and the Export Administration Regulations.
3.5 Government End Users. If the Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.
3.6 Export Control. The Software originates in the United States, and is subject to United States export laws and regulations. The Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Software and the Services.
The Services; Availability, Use and Prohibitions.
4.1. There will be instances when the Services are interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment that are beyond the control of Juice Wireless. You agree that Juice Wireless is not liable for any modification, suspension or discontinuance of the Services.
4.2 You are responsible for all of the Content you send, transmit, upload or distribute using the Services. Juice Wireless expressly disclaims any and all liability in connection with Content and does not permit copyright infringing activities and infringement of intellectual property rights on its Services.
4.3 You agree that you will NOT:
stalk or harass another when using the Services;
use the Services other than for your own personal non-commercial use;
use the Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, intellectual property, data protection and privacy, and import or export control laws.
make unsolicited offers, proposals, or send junk mail to third parties through the Services. 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 Services to impersonate any person or entity, or misrepresent a relationship with any person or entity, including misrepresenting a relationship with Juice Wireless;
share or otherwise allow another person to access you Flutter-issued password, account, or your mobile device while Flutter is running and accessible;
remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services, or features that enforce limitations on use of the Services;
transmit any Content that contains any viruses, cancel bots, Trojan horses, harmful code, or other computer software or program designed to interrupt the Services we provide, the proper functioning of any software, hardware or equipment or materials used in connection with the Services, or intentionally interfere with or damage the operation of the Services by any means;
send, transmit, or disseminate any Content which a reasonable person could deem to be objectionable, libelous, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
send, transmit, or disseminate any Content that infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights, or misrepresents the source, identity or content of information transmitted via the Services;
attempt to gain unauthorized access to the Services, or any part of it, other accounts, computer systems or networks connected to the Services, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
modify Services in any manner or form, nor use modified versions of the Services, including (without limitation) for the purpose of obtaining unauthorized access to the Services;
use the Services with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, or otherwise capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management, or similar applications;
use the Services in connection with hazardous environments requiring fail-safe performance or any application in which the failure or inaccuracy of that application or the Services could lead directly to death, personal injury, or severe physical or property damage;
use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Services in a manner that sends more Content through the Services than can normally be produced in the same time period, or otherwise overwhelm the Services with massive amounts of Content.; OR
use the Services to collect or harvest any personally identifiable information, including account names.
Payment; Cancellation and/or Termination of the Services.
5.1 Your account and access to the Services may be terminated without penalty or liability for any reason.
Disclaimers.
6.1 THE LOCATION FEATURES IN THE SERVICES ARE INTENDED ONLY AS PERSONAL, LOCATION-BASED SERVICE FOR INDIVIDUAL USE AND SHOULD NOT BE USED OR RELIED ON AS AN EMERGENCY LOCATOR SYSTEM, USED WHILE DRIVING OR OPERATING VEHICLES, OR USED IN CONNECTION WITH ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OR INACCURACY OF THAT APPLICATION OR THE SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE.
6.2 YOU AGREE THAT YOUR USE OF THE SERVICES AND SOFTWARE SHALL AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, JUICE WIRELESS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND THE SOFTWARE AND YOUR USE THEREOF. JUICE WIRELESS MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS, MISTAKES, OR INACCURACIES OF CONTENT.
6.3 JUICE WIRELESS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, INCLUIDNG BUT NOT LIMITED TO LOST PROFITS (REGARDLESS OF WHETHER JUICE WIRELESS HAS BEEN NOTIFED THAT SUCH LOSS MAY OCCUR) BY REASON OF ANY (A) ACT OR OMISSION IN ITS PROVISION OR FAILURE TO PROVIDE THE SERVICES OR SOFTWARE, (B) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (C) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES OR SOFTWARE , (D) ANY UNAUTHORIZED ACCESS TO OR USE OF JUICE WIRELESS’ SECURE SERVERS, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT SENT, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT JUICE WIRELESS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU SPECIFICALLY ACKNOWLEDGES THAT JUICE WIRELESS SHALL NOT BE LIABLE FOR ANY CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
6.4 The Services are offered from the Juice Wireless facilities in the United States. The Services may not be appropriate or available for use in other countries and those who access or use it from other jurisdictions are responsible for compliance with local law.
Indemnification.
7.1 You agree to defend, indemnify, and to hold harmless Juice Wireless and its affiliates, suppliers and licensors (and each entities’ respective officers, directors and employees) from any and all liabilities, penalties, claims, causes of action, and demands brought by third parties (including the costs, expenses and attorneys' fees on account thereof) resulting from or relating to your use of the Services and/or the Software or your inability to use the Services and/or Software.
7.2 Your agreement to defend, to indemnify, and to hold Juice Wireless harmless applies whether a claim against Juice Wireless is based in contract or tort (including strict liability), and regardless of the form of action, including but not limited to your violation of any third party right, a claim that the Content caused damage to you or to any third party and/or your use and access to the Services and/or Software. This indemnification section shall survive your termination of or cessation of use of the Services.
Additional Terms and Conditions
8.1 This Agreement supersedes all oral or written communications and understandings between you and Juice Wireless with respect to the Software and Services, and the terms under which the Services are offered and provided. Any cause of action that you may have with respect to the use of the Services must be commenced within one (1) year after the claim or cause of action arises.
8.2 Both parties waive the right to a jury trial in any dispute arising out of this Agreement or the Services. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion of the Agreement, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of this Agreement shall continue in full force and effect. The headings contained in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
8.3 You may not assign your rights or delegate your obligations under this Agreement. There shall be no third party beneficiaries under this Agreement, except for Juice Wireless’s affiliates, suppliers, and licensors or as required by law.
8.4 Any legal action concerning this Agreement or the Services shall be interpreted under the laws of the State of California, excluding the State of California’s choice of law rules. Any dispute arising from this or relating to this Agreement, regardless of theory of action, shall be resolved State of California. Use of the Services is unauthorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this paragraph. The failure of Juice Wireless to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
8.5. You may receive a copy of this Agreement by emailing us at: support@flutterpic.com Subject: Terms of Service Agreement or visit www.flutterpic.com.
Copyright © 2008 Juice Wireless, Inc. All rights reserved.
