Terms of Service
Effective date: May 30, 2011
These Terms and Conditions constitute an agreement ("Agreement") between you ("you", "your", "user" or "Customer") and FonGenie, Inc. ("FonGenie", "us", "we" or "our") for social media management, virtual telecommunication services and any related products or services ("Services"). This Agreement governs both the Services and any assigned toll-free and/or local number account ("Account") used in connection with the Services.
Any of the following actions constitute your agreement, without limitation or qualification, to be bound by, and to comply with, the terms of this Agreement: (i) your initialization or registration of the Services, either on the telephone or through the FonGenie website (www.FonGenie.com) or through any of the FonGenie subdomains (e.g. blog.FonGenie.com) (the FonGenie website and subdomains are collectively referred to herein as, the "Site"); or (ii) through the use of your Account and PASSWORD (defined below); or (iii) your use of the Site.
Your Account
Our Service is not intended for children under 13. By using the Service, you are representing that you are at least 18, or that you are at least 13 years old and have your parents' permission to use the Service. The Company can refuse registration or cancel an account at its sole discretion at any time.
You are responsible for using the Service in a private and secure manner. The Company is not liable for any damage or loss due to unauthorized account access resulting from your actions, such as sharing your account password or not logging out of the Service. You may not register accounts with unauthorized automated methods ("bots"). You may not use the Service for any illegal activity or to violate laws in your jurisdiction. You may not use the Service to distribute unsolicited email ("spam") or malicious content such as viruses or worms. You may not exploit the Service to access unauthorized information.
Payment, Refunds and Upgrading Terms
Some accounts might be for free. Other accounts and services require a valid credit card for payments. Free accounts are not required to provide payment data.
Any applicable initiation fees and monthly recurring charges are billed in advance of the month of usage and are non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
You will also be billed for additional calls received (which exceeded the number of calls allowed in your service plan); either on the month following such usage or upon the usage of an additional 10 calls, whichever comes first. Usage charges are billed in arrears. Unless otherwise agreed to in writing, you are to pay for all charges by credit or debit card. Credit or debit cards will automatically be billed monthly or upon the usage of an additional 10 calls, whichever comes first, and no additional notice or consent will be required for billings to that credit or debit card or account.
You will advise us of any changes to your credit or debit card account, such as account number, billing address, or expiration date changes. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and pro-rations. Time is of the essence for payment. Therefore, you agree to pay us interest at the lesser of (a) 18% per annum or (b) the highest amount allowed by law for any amounts unpaid as of the due date. Acceptance of late or partial payments (even if marked "Paid in Full") shall not waive any of our rights to collect the full amount due under this Agreement. Notice of any disputes must be in writing and received by us at our address within thirty (30) days after the invoice date or you will waive any objection.
Account Changes
You may change Service features or Service plans by notifying us in writing or by telephone. All requests need to provide name, address, account number, and administrative PASSWORD or be submitted from the original email address on file.
Use of Information Submitted
By contributing any ratings, reviews, comments, feedback, suggestions, pictures and other materials (collectively, the "User-posted Content") through FonGenie and its Services, you hereby grant to FonGenie an exclusive, worldwide, royalty-free, transferable right to fully exploit such Content. FonGenie does not regularly review the content posted on the Site; however, FonGenie reserves the right to remove or edit any Content or User-posted Content from the Site at any time without notice. User-posted Content is copyrighted, and any use or reproduction of user-posted content must comply with the terms of the respective license(s) and must include a label indicating such license. FonGenie reserves the right, in its sole discretion, to reject, refuse to post or link to or remove any posting or link by you, or to restrict, suspend, or terminate your access to all or any part of the Site and/or the Service at any time, for any or no reason, with or without prior notice, and without liability.
User-posted Content shall not be illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and shall not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any User-posted content. FonGenie takes no responsibility and assumes no liability for any User-posted Content.
Third Party Websites
The Sites and specifically the User Posts may contain or reference links to websites operated by third parties ("Third Party Websites"). Such Third Party Websites are not under the control of FonGenie. FonGenie is not responsible for the content of any Third Party Websites or any link contained in Third Party Websites. FonGenie does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites, and the inclusion of any link to any Third Party Website on the Site is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by FonGenie of any information contained in any Third Party Website. In no event will FonGenie be responsible for the information contained in such Third Party Websites or for your use of or inability to use such Third Party Websites. Access to any Third Party Websites is at your own risk, and you acknowledge and understand that linked Third Party Websites may contain separate terms and privacy policies that apply to such Third Party Websites and are not administered by FonGenie. FonGenie is not responsible for such provisions, and expressly disclaims any liability related to any Third Party Websites.
Feeds and APIs
FonGenie provides access to portions of its Site and Services via RSS feeds and APIs; for the purposes of these Terms, such access constitutes use of the Site and Services.
FonGenie asks that you use these features respectfully, as outlined in the documentation. You may not use these or any other features or the Site itself to allow the display of a substantial portion of the FonGenie database or reproduce, duplicate or copy the FonGenie Site. FonGenie reserves the rights to change these features at any time and to disable access to the feeds and the APIs at any time for any reason.
Ownership of Number
You understand and agree that you are not the owner of any telephone number assigned to you by FonGenie. Ownership of any such phone number is vested solely in FonGenie (who will assign or re-assign such numbers to you for your use during the term of this Agreement). You understand and agree that (a) FonGenie may from time to time need to change the number assigned to you (due to an area code split or for any other reason outside of FonGenie's control) and (b) following the termination of your FonGenie account for any reason you will no longer have access to such number. In either case, such phone number may be re-assigned immediately to another customer and you agree that FonGenie will not be liable for damages (including consequential or special damages) arising out of any such re-assignment and you hereby waive any claims with respect to any such re-assignment, whether based on contract, tort or other grounds, even if FonGenie has been advised of the possibility of damages.
Modification to Service, Prices or Billing Terms
FonGenie reserves the right, at any time, to change its prices and billing methods for Materials, Content, Services and Accounts, effective immediately upon posting on the Site or by e-mail delivery to you.
Modification; Assignment
We may change or modify this Agreement from time to time, but any such change (a) will be made in good faith, and (b) if significant (as determined in the sole discretion of FonGenie), will only be made after first providing you with notice of the change. You can review the most current version of this Agreement at any time at our Site (www.FonGenie.com). If you do not agree to a significant change, you may terminate this Agreement by giving us written notice within 15 days of receipt of our notice of such significant change. No hand-marked changes on this Agreement or any amendment by you will be valid unless we accept the changes in writing. Delivery by facsimile transmission (fax) of a copy of a modification of this Agreement shall be effective as delivery of an original.
Assignment
We may assign all or part of our rights or duties under this Agreement in connection with a sale of all or substantially all the assets of FonGenie to a third party without notice to you; provided any such third party shall be obliged to honor the terms of this Agreement. You may not assign this Agreement without our prior written consent.
Electronic Signature and Contracts
YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND PURCHASES. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THE SITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS AND APPLICATIONS.
NO WARRANTIES
THE MATERIALS, CONTENT, SERVICES AND ACCOUNTS ARE PROVIDED "AS IS." WE MAKE NO WARRANTIES REGARDING THE MATERIALS, CONTENT, SERVICES AND ACCOUNTS WHATSOEVER AND DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OR TRADE. WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties. If you rely on the representations or warranties of any third persons with respect to the Services (including without limitation by dealers or resellers of the Services) beyond those made by FonGenie, your sole remedy for such reliance is against the third person making such representation or warranty.
LIMITATION OF LIABILITY
IN NO EVENT SHALL FonGenie, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF OR RELATING TO (i) YOUR INABILITY TO USE THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (ii) YOUR MISUSE OF THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (iii) NONPERFORMANCE OR A FAILURE OF THE SERVICES CAUSED BY ACTS OR OMISSIONS OF ANOTHER SERVICE PROVIDER, (iv) EQUIPMENT OR SOFTWARE FAILURE OR MODIFICATION; (v) TELECOMMUNICATIONS OR COMPUTER EQUIPMENT FAILURES, OR (vi) ACTS OF GOD, OR OTHER CAUSES BEYOND OUR REASONABLE CONTROL. THE FOREGOING SHALL APPLY EVEN IF FonGenie HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FonGenie ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT YOUR ACCESS TO AND USE OF THE SITE, MATERIALS, CONTENT, SERVICES AND ACCOUNTS (1) WILL BE UNINTERRUPTED OR ERROR FREE; (2) IS FREE OF VIRUSES, UNAUTHORIZED CODE, OR OTHER HARMFUL COMPONENTS; (3) IS SECURE; OR (4) WILL MEET YOUR SATISFACTION. YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS YOU BELIEVE NECESSARY OR ADVISABLE TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF YOUR USE OF THE SITE, MATERIALS, CONTENT, SERVICES AND ACCOUNT.
IN NO EVENT SHALL FonGenie, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER BE LIABLE FOR INJURIES TO PERSONS OR PROPERTY ARISING FROM USE OF THE SERVICES, OR ANY EQUIPMENT USED IN CONNECTION WITH THE SERVICES.
IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, FonGenie SHOULD HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, YOU AND FonGenie AGREE THAT IN NO EVENT SHALL LIABILITY OF FonGenie TO YOU FOR ANY REASON EXCEED OUR SERVICE CHARGES DURING THE AFFECTED PERIOD GIVING RISE TO SUCH LIABILITY.
YOU AND FonGenie AGREE THAT THIS SECTION 16 OF THE AGREEMENT, "LIMITATION OF LIABILITY", IS AN AGREED ALLOCATION OF RISK BETWEEN YOU AND FonGenie. YOU ACKNOWLEDGE THAT, ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, FonGenie WOULD NOT PROVIDE THE SITE, MATERIALS, CONTENT, SERVICES, OR ACCOUNTS TO YOU.
THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
Indemnity
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS FonGenie, ITS PARENTS, SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, EXPENSES OR DAMAGES (INCLUDING ATTORNEYS' FEES), WHETHER KNOWN OR UNKNOWN, ARISING FROM, INCURRED AS A RESULT OF, OR IN ANY MANNER RELATED TO (A) YOUR USE OF THE SERVICES, (B) ANY OTHER PERSON'S USE OF ANY ACCOUNT OR PASSWORD YOU MAINTAIN, REGARDLESS OF WHETHER SUCH USE IS AUTHORIZED BY YOU, OR (C) YOUR PROMISES OR STATEMENTS MADE IN THIS AGREEMENT. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES. NOTWITHSTANDING THE FOREGOING, YOU SHALL NOT BE LIABLE FOR CLAIMS, EXPENSES OR DAMAGES ARISING FROM THE INTENTIONAL OR GROSSLY NEGLIGENT ACTS OF FonGenie OR ITS EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES. THIS INDEMNIFICATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
Emergencies
FonGenie IS NOT A "DIAL-TONE" PROVIDER. IN THE EVENT OF AN EMERGENCY WHILE USING YOUR SERVICES, HANG UP AND DIAL "911". YOU MUST USE THE TELEPHONE SERVICE PROVIDED BY YOUR LOCAL CARRIER TO MAKE A 911 CALL.
Force Majeure
Either party shall be excused from any delay or failure in performance hereunder, other than the payment of moneys, caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, terrorism, war or government requirements.
Privacy
Privacy Policy of FonGenie is set forth on the Site (www.FonGenie.com). In addition, you authorize our monitoring and recording of your calls to us concerning your Account or the Services and you consent to our contacting you from time to time by means of (a) automatic dialing equipment, or (b) your FonGenie voicemail box.
Cooperation With Government Authorities
If necessary and in accordance with applicable law, FonGenie will cooperate with local, state, federal, international and/or worldwide government authorities to protect this Site, Materials, Content, Services, Accounts, visitors, customers, FonGenie, its parents, subsidiaries, affiliates and their respective members, managers, directors, officers, employees, stockholders and agents and operational providers, from the unauthorized use of this Site, Materials, Content, Services and Accounts.
Links to Other Materials
The linked sites are not necessarily under the control of FonGenie and FonGenie is not responsible for the content of any linked site or any link contained in a non-affiliated linked site. FonGenie reserves the right to terminate any link or linking program at any time. FonGenie has selected the links for your convenience. The selection or omission of links is not intended to endorse any particular companies or products. If you decide to access any of the third party sites linked to this Site, you do so entirely at your own risk. Any links to any portion of the Site shall be the responsibility of the linking party, and FonGenie shall not be responsible for notification of any change in name or location of any information on the Site.
Dealings With Advertisers
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through this Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. YOU AGREE THAT FonGenie, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER ARE NOT RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF ANY SUCH DEALINGS OR AS A RESULT OF SUCH ADVERTISERS ON THE SITE.
Notices
Except as otherwise provided in this Agreement, notices and other communications under this Agreement shall be in writing and shall be delivered, mailed by first-class mail, postage pre-paid or sent by facsimile or electronic mail, addressed, (a) if to you, at the address as kept in our files or at such other address as you shall have furnished to us in writing, or (b) if to us at 650 Castro Street, Suite 120-450, Mountain View, CA 94041, attention Customer Support Department. Your notice must specify your name and Account. Each such notice, request or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the mails with first class postage prepaid, addressed as aforesaid, (ii) if sent by facsimile, when sent and receipt is telephonically confirmed or (iii) if given by any other means (including, without limitation, by air courier), when delivered at the address specified above. Oral notices shall be deemed effective on the date reflected in our records.
Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding that body of law applicable to conflicts of law.
Jurisdiction and Venue
You and FonGenie agree that any suit, action or proceeding arising out of or relating to this Agreement shall be instituted only in a New York state or federal court sitting in NYC, New York, United States of America. You and FonGenie each waive any objection you or FonGenie may have now or hereafter to the laying of the venue of any such suit, action or proceeding, and irrevocably submit to the jurisdiction of any such court in any such suit, action or proceeding.
General Information
If any part of this Agreement is held invalid or unenforceable, that portion shall be construed to reflect the parties' original intent, and the remaining portions shall remain in full force and effect.
You hereby consent to FonGenie publicizing the existence (but not the terms) of the relationship contemplated hereunder as a part of promotional and marketing activities from time to time by FonGenie.
This Agreement constitutes the entire agreement between FonGenie and you with respect to your use of FonGenie Site, Materials, Content, Services and your Account, and it supersedes all prior or contemporaneous communications and proposals, whether oral or written, between FonGenie and you with respect thereto.
The failure of FonGenie to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.