Terms of Service
May 1, 2010
By indicating your acceptance of these terms and conditions, you ("Subscriber") acknowledge and agree to be bound by the provisions of this agreement for the use of the Wakerupper services ("services") provided by Abstract Factory, Inc. ("Wakerupper"). If you are not willing to be bound by these terms and conditions do not click the button labeled "I Agree...". By clicking this button or by using or accessing the service, you agree to be bound by the following terms and conditions.
In response to the Children's Online Privacy Protection Act ("COPPA") we require that subscriber be at least 13 years old to use Wakerupper's services.
GRANT OF RIGHTS TO USE SERVICES
- Effective upon acceptance of this Agreement, Wakerupper hereby grants to Subscriber a personal, nonexclusive, nontransferable, revocable license to access and use the Services (as defined below), for Subscriber's non-commercial use.
- Subscriber shall have no right to sell, resell, reproduce, duplicate, copy, distribute, create derivative works or exploit for commercial purposes, any portion of the Services, access to the Services, or use of the Services nor make any claim that it does have such right.
- The services provided by Wakerupper hereunder may allow Subscriber to perform various online messaging and communications functions (collectively, the "Services"). Unless explicitly stated otherwise, any new features provided by Wakerupper that augment or enhance the current Services shall also constitute "Services" and shall be subject to these terms and conditions.
WAKERUPPER'S PROPRIETARY RIGHTS
- As between the parties, Wakerupper shall retain all right, title and interest to the Services including all copyrights, trademarks, patents and all other intellectual property rights thereto, including without limitation with respect to all technology used in connection with or provided as part of the Services.
- Subscriber may not, nor allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Services for any purpose whatsoever. Subscriber may not allow any third party to access the Services for any purpose whatsoever.
- The copyright notices and other proprietary legends shall not be removed from the Services and no right to use any trademark is granted under this Agreement.
- Subscriber may not grant any sublicense, lease or other right in the Services to any third party. All rights not expressly granted under this Agreement are retained by Wakerupper.
- Subscriber agrees to provide true, accurate, current and complete data to Wakerupper upon signing up for the Services and at subsequent times as requested by Wakerupper.
- If Subscriber provides data that is, or that Wakerupper suspects to be, false, inaccurate, not current or incomplete, Wakerupper has the right to suspend or terminate Services and refuse any and all current or future use of all Services, or any portion thereof.
- Subscriber shall maintain and promptly update the registration data as applicable.
- Upon completion of all registration information and acceptance of this Agreement, Subscriber will receive a password, user ID, and a telephone PIN.
- Subscriber is solely responsible for the maintaining the confidentiality of Subscriber's password and PIN, and will be responsible for all transactions and activities that occur as a result of Subscriber's disclosure of such password and/or PIN, whether or not such transactions and/or activities were authorized by Subscriber.
- Subscriber shall not give account information to third parties and shall at all times be responsible and liable for any transactions or activities that occur on Subscriber's account.
- Subscriber shall immediately notify Wakerupper if any unauthorized use of Subscriber's account has occurred or of any other breach of security.
- Subscriber agrees that the Wakerupper Services are for personal use and agrees to enter telephone numbers that are controlled by or under the common control of that Subscriber. If Wakerupper finds telephone information that Wakerupper suspects to be, false, inaccurate, not current or otherwise not under the control of Subscriber, Wakerupper has the right to suspend or terminate Services and refuse any and all current or future use of all Services, or any portion thereof.
- The Wakerupper Services are for personal, non-commercial usage. Wakerupper reserves the right to immediately disconnect or modify a Subscriber's Service if Wakerupper determines, in its sole discretion, that Subscriber's use of the Service is, or at any time was, inconsistent with normal personal, non-commercial usage patterns.
- Any free services provided by of Wakerupper that involve creating a unique account are personal to the Subscriber and a Subscriber is only allowed one free Wakerupper account. If Wakerupper determines, in its sole discretion, that multiple free accounts have been created by a single Subscriber, Wakerupper reserves the right to immediately disconnect or modify any or all of Subscriber's accounts.
- To maintain or improve the Services, to prevent fraud, or for any other reason determined by Wakerupper, its sole discretion, Wakerupper may restrict, suspend, terminate or modify Subscriber's service with or without notice.
- Upon any termination in accordance with the foregoing, Wakerupper may immediately deactivate or delete Subscriber's account and all related information and files in Subscriber's account, reassign any telephone numbers associated with the account, and/or bar any further access to such files, information, or the Services.
- Wakerupper shall not be liable to Subscriber or any third party for any reason for terminating this Agreement or access to Services or for modifying this Agreement and/or the Services.
- THE SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WAKERUPPER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY SIMILAR WARRANTY WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF. WAKERUPPER MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES ARE FREE OF RIGHTFUL CLAIMS OF ANY THIRD PARTY FOR INFRINGEMENT OF PROPRIETARY RIGHTS. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SERVICES SHALL BE BORNE SOLELY BY SUBSCRIBER.
- WAKERUPPER MAKES NO WARRANTY THAT THE SERVICES WILL MEET SUBSCRIBER'S REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. WAKERUPPER IS NOT RESPONSIBLE FOR MESSAGES OR INFORMATION LOST OR MISDIRECTED DUE TO INTERRUPTIONS OR FLUCTUATIONS IN THE SERVICES OR THE INTERNET IN GENERAL.
- WAKERUPPER DOES NOT WARRANT THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF THE SERVICES OR ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICES. SUBSCRIBER ACKNOWLEDGES THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICES ARE AT SUBSCRIBER'S SOLE RISK AND DISCRETION AND WAKERUPPER WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER OR SUBSCRIBER'S PROPERTY.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY SUBSCRIBER FROM WAKERUPPER, IT'S EMPLOYEES, OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.
- SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO SUBSCRIBER.
LIMITATION OF LIABILITY
IN NO EVENT SHALL WAKERUPPER BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER ARISING UNDER CONTRACT, WARRANTY, OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY. WAKERUPPER'S LIABILITY FOR DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, SHALL NOT EXCEED THE LICENSE FEE PAID BY SUBSCRIBER FOR THE SERVICES, IF ANY. The limitation of liability reflects the allocation of risk between the parties. The limitations specified in this Section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
Subscriber shall indemnify and hold harmless Wakerupper, its directors, officers, employees and agents from and against all liabilities, losses, costs, expenses (including reasonable attorneys' fees), and damages resulting from any negligent acts, omissions or willful misconduct by Subscriber, Subscriber's use of the Services and/or any breach of the terms and conditions of this Agreement by Subscriber.
Wakerupper makes no representation that materials on its web site(s) are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Subscriber agrees to comply with all applicable foreign and domestic laws, rules and regulations regarding the transmission of technical data exported from or imported to the United States or the country in which Subscriber resides.
MODIFICATION TO SERVICES
- During the term of this Agreement, Wakerupper may modify or discontinue the Services at any time and with or without notice to Subscriber.
- Without limiting the generality of the foregoing, Wakerupper may, from time to time, with or without notice and at its sole discretion, establish or change various practices, limitations and restrictions for administering such Services, including without limitation: (a) how often all or a part of the Services or account may be accessed; (b) the duration of any access; (c) the maximum number of days that records will be retained; (d) the maximum number of telephone alerts allowed; (e) the size and nature of telephone alerts; (f) the maximum storage space available for an account; and (g) any other matter related to the administration of the Services.
- Subscriber agrees that Wakerupper shall not be responsible or liable in any way for deactivation or deletion of accounts or for loss of telephone alerts, communications, data or information as a result of, or arising out of, administration of the Services, whether or not Subscriber is given prior notice thereof.
- Wakerupper may delete accounts that are inactive for an extended period of time as determined by Wakerupper in its sole discretion.
- Wakerupper may delete pending accounts that have not yet been validated by Subscriber after a period of time as determined by Wakerupper in its sole discretion.
- Wakerupper shall not be liable to the Subscriber or any third party for any reason for Wakerupper modifying or terminating the Services, in whole or in part.
- Subscriber is responsible for creating a back-up copy of any important or critical information that is stored on the Services. Wakerupper shall not be responsible or liable in any way for any information or data loss in connection with the Services.
MODIFICATION TO AGREEMENT
Wakerupper reserves the right to change the terms and conditions of this Agreement, by posting a revised version of the Agreement at Terms of Service or its successor site.
- Use of the Services signifies Subscriber's agreement to all terms, conditions and notices contained or referenced herein. Continued use of any part of the Services following the posting of any changes to this Agreement constitutes acceptance of those changes, and all changes shall thereupon become binding upon the Subscriber.
- If Subscriber does not agree to the changes, Subscriber shall immediately cease all use of the Services.
RULES AND REGULATIONS
- Subscriber shall be solely liable for any transmissions sent through the Service. Wakerupper has no control over the content of any transmission nor will it be liable for such content.
- Wakerupper has the right to restrict termination to any telephone numbers in its sole discretion. These may include, but are not limited to certain geographic locations, special services numbers, satellite telephony services, and other call forwarding services.
- Subscriber shall not use the Services to create or distribute any sounds, messages or other materials, which are obscene, harassing, racist, malicious, fraudulent infringing or libelous, nor use the Services for any activity that may be considered or are unethical, immoral, violative of any third party's rights, or illegal.
- Further, Subscriber will abide by all rules, regulations, procedures and policies of Wakerupper and any policies of the networks connected to the Services.
Subscriber agrees to abide by all applicable local, state, national, foreign and international laws and regulations and is solely responsible for all acts or omissions that occur under Subscriber's account or password, including the content of Subscriber's transmissions through the Service. By way of example, and not as a limitation, Subscriber agrees not to:
- Use the Service in connection with chain letters, telemarketing, voice mail, faxes, spamming or any duplicative or unsolicited messages (commercial or otherwise);
- Harvest or otherwise collect information about others, including email addresses, without their consent;
- Transmit through the Service unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature;
- Transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity;
- Transmit any material that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;
- Violate any U.S. or foreign law regarding the transmission of technical data or software exported through the Service;
- Interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks;
- Attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means;
- Interfere with another member's use and enjoyment of the Service or another entity's use and enjoyment of similar services.
COMMUNICATIONS WITH WAKERUPPER
Subscriber may provide information, including but not limited to feedback, data, answers, questions, comments, suggestions, plans and ideas to Wakerupper. Such information shall be deemed non-confidential and Wakerupper assumes no obligation to protect such information from disclosure. The submission of such information to Wakerupper shall in no way prevent the purchase, manufacture, or use of similar products, services, plans and ideas by Wakerupper for any purpose whatever. Wakerupper shall be free to reproduce, use, disclose and distribute such information to others without restriction. Subscribers shall have no recourse against Wakerupper for alleged infringement or misappropriation in connection with any information or materials submitted to Wakerupper hereunder.
Subscriber may purchase prepaid credits to be used for Wakerupper services as described on the Website. Wakerupper offers full refund of remaining pre-paid balance if requested within 30 days of purchase. Unused balances shall expire three (3) months from the most recent date of use, and may not be transferred. Usage of minutes is billed in one minute increments. Minutes are deducted for outbound calls from Wakerupper to the termination number. Prepaid credits are billed at the time of purchase.
Depending upon the level of Services selected by Subscriber, there may be charges for calls to or from certain locations, including without limitation payphones, calls placed, and areas within extended calling zones. There may also be applicable taxes, surcharges, assessments, government fees and charges for any special or enhanced services Subscriber uses. Any of the foregoing may be billed to Subscriber when they reach a limit as Wakerupper determines at its sole discretion.
Subscriber agrees that all payments will be made to Wakerupper via PayPal using a credit or debit card, issued by a US bank, including VISA, MasterCard, AmericanExpress, or Discover. Wakerupper may change the credit cards accepted at any time, at its sole discretion. Subscriber's name and address as it appears on Subscriber's Wakerupper account must also be on the credit account from which Payment is made. If Subscriber provides a credit card number that Wakerupper accepts for payment of Subscriber's recurring charges, Subscriber is authorizing Wakerupper to charge the amounts Subscriber owes, then or later, to that credit card account and to demand immediate payment from the card issuer. Subscriber also agrees to pay, under the terms of Subscriber's agreement with the card's issuer, the amounts charged to Subscriber's credit card. Every time Subscriber uses Wakerupper Services, Subscriber re-affirms that Wakerupper is authorized to charge Subscriber's card. Subscriber agrees to authorize Wakerupper to charge purchases made online to the credit card account supplied to Wakerupper when the subscription was initiated, or the card that Wakerupper has on file when the purchase is made. Subscriber agrees to pay all costs and expenses, including without limitation attorney's fees, incurred by Wakerupper to collect any monies due under terms of this Agreement.
- This Agreement, including any documents incorporated herein by reference, merges all prior written and oral communications and defines the entire agreement of the parties concerning the Services.
- In the event any portion of this Agreement shall be held illegal, void, or ineffective, the remaining portions hereof shall remain in full force and effect and such illegal, void or ineffective provisions shall be construed, as nearly as possible, to reflect the intentions of the parties.
- All notices under this Agreement shall be in writing and delivered by email or in writing.
- This Agreement shall be construed in accordance with the laws of the State of New York without regard to its conflict of law provisions. Each party submit to the exclusive jurisdiction of the state and federal courts located in New York, and irrevocably waive any right that such party may have to assert the such forum is not convenient or that any such court lacks jurisdiction.
- Subscriber agrees and acknowledges that any breach of the provisions regarding ownership contained in this Agreement shall cause Wakerupper irreparable harm and Wakerupper may obtain injunctive relief as well as seek all other remedies available to Wakerupper in law and in equity.
- Subscriber shall not transfer or assign this Agreement or Subscriber's rights under this Agreement. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties, their successors, permitted assigns and legal representatives.
- The failure of Wakerupper to exercise its rights under this Agreement will not be construed as a waiver of such rights, nor will it in any way affect the validity of this Agreement. The provisions of this Agreement relating to intellectual property ownership, restrictions on use or disclosure of the Services, disclaimers of warranties, limitations of liability and indemnification shall survive termination or expiration of this Agreement for any reason.
- The U.N. Convention for the Sale of Goods shall not be applicable to this license of the Services to Subscriber.
- The section titles in this Agreement are for convenience only and have no legal or contractual effect.
- Under California Civil Code Section 1789.3, California users of the Service receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 1-916-445-1254.