Danger® Service and End-User License Agreement
IMPORTANT: PLEASE CAREFULLY READ THIS SERVICE AND END-USER LICENSE AGREEMENT (THE "AGREEMENT") BETWEEN YOU AND DANGER, INC. ("DANGER") BEFORE YOU USE YOUR WIRELESS DEVICE (THE "DEVICE"). YOUR USE OF THE DEVICE OR THE SERVICE FOR THE DEVICE SHALL CONSTITUTE YOUR BINDING ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE DEVICE OR THE SERVICE AND SHOULD PROMPTLY RETURN THE DEVICE TO THE PLACE WHERE YOU PURCHASED IT.
Danger owns and operates a service that enables certain features on your Device, including email, Internet access, instant messaging, address book and calendar functions, and that also allows you to access such features from a Web site operated by Danger (the "Service"). Your use of the Service and the Software (as defined below) in the course of operating your Device is subject to the terms and conditions of this Agreement. Danger reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy referenced herein at any time and in its sole discretion. You may access this agreement at www.danger.com/legal. If the Agreement is changed, we will post the new terms to such Web page. Any changes or modifications will be effective upon posting, and your continued use of the Service or Software after the posting of such changes will constitute your binding acceptance of the Agreement as revised.
1. Software
1.1 Definition. "Software" means any computer software, in executable code form, owned by Danger (or software owned by third parties, which Danger has the right to distribute or sublicense) and either pre-loaded on the Device at the time of manufacture or otherwise furnished to you by Danger in its sole discretion. "Software" includes the Danger® operating system and applications.
1.2 License Grant. Subject to the terms and conditions of this Agreement, Danger hereby grants to you a nonexclusive, nontransferable, nonsublicensable license to use, perform and display the Software using the Device upon which the Software was originally installed, and solely as necessary to operate the Software in accordance with the applicable documentation.
1.3 Restrictions. You may not (a) reproduce, distribute, sublicense, use for service-bureau purposes, sell, lease, or otherwise transfer the Software to any third parties; (b) modify, alter, improve, "hack," or create derivative works of the Software; or (c) reverse-engineer, decompile, disassemble, reverse-assemble, or otherwise attempt to derive the source code of the Software.
1.4 Third-Party Software. You understand and agree that in addition to the Software, the Device may contain certain third-party software ("Third-Party Software") the use of which may be subject to separate license agreements containing additional terms and conditions. Any such license agreements will be provided to you separately. You hereby agree to comply with all such additional terms and conditions in your use of the Third-Party Software.
2. Ownership. The Software is licensed to you, not sold. Danger and its licensors retain exclusive ownership of all proprietary rights, including all patent, copyright, trade secret, trademark and other intellectual property rights worldwide, in and to the Service and the Software (including any corrections, bug fixes, enhancements, updates, or other modifications thereto). There are no implied licenses under this Agreement, and all rights not expressly granted are hereby reserved.
3. Use of the Service
3.1 Wireless Service Provider. In addition to Danger's terms and conditions set forth in this Agreement, you agree and acknowledge that your use of the Service is subject to your wireless network operator's terms and conditions of service.
3.2 Privacy Policy. Danger believes strongly in protecting user privacy and providing you notice of Danger's collection and use of data, including personally identifying information. To learn about Danger's information collection and use practices and policies for the Service, please refer to the Danger® Service Privacy Notice.
3.3 Your Account. All information that you provide in connection with your registration for the Service must be accurate. You will receive a password and username upon completing your registration. You are responsible for maintaining the confidentiality of the password and account information, and are fully responsible for all activities that occur under your password or account. You agree to immediately notify your wireless network operator of any unauthorized use of your password or account or any other breach of security.
3.4 Prohibited Activities. You agree not to use the Service to: (a) directly or indirectly violate any applicable laws, rules, or regulations issued or promulgated by any competent government authority, including without limitation any intellectual property laws, privacy laws, computer fraud or abuse statutes, or export control laws; (b) upload, post, email, or transmit any content that you do not have the right to post or transmit under any law, contractual duty, or fiduciary relationship; (c) upload, post, email, or transmit any content that infringes a third party's trademark, patent, trade secret, copyright, publicity, privacy, or other proprietary right; (d) upload, post, email, or transmit any materials that are unlawful, untrue (including incomplete, false or inaccurate biographical information), harassing, libelous, defamatory, abusive, tortious, threatening, obscene, pornographic, indecent, hateful, abusive, or harmful (including but not limited to viruses, corrupted files, or any other similar software or programs); (e) violate, attack, or attempt to violate or attack the security, integrity, or availability of any network, service, or other computer system; (f) send mass unsolicited or unauthorized electronic messages or "spam," including without limitation, promotions or advertisements for products or services; (g) send altered, deceptive, or false source-identifying information (including forged TCP/IP headers); or (h) use the Service in a manner that otherwise violates Danger's then-current Terms of Use, the latest version of which is available at www.danger.com/legal. Violations of any of the above will be investigated by Danger and, where appropriate, Danger may either institute legal action or cooperate with law enforcement authorities in bringing legal proceedings against users who violate this Agreement.
3.5 Third-Party Content and Services. In the course of using the Service, you may download to the Device content that is provided by third parties and/or access services and Web sites provided by third parties, including third-party Web sites accessible through links from the Service. Danger is not responsible for the content, products, materials, or practices (including privacy practices) of any such Web sites or third-parties. You understand that by using the Service you may be exposed to third-party Web sites or content that you find offensive, indecent, or otherwise objectionable. Danger makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature, or reliability of third party Web sites (including Web sites accessible by hyperlink from the Service) or third party products or services accessible via the Service. Danger provides links to third party Web sites for your convenience only and Danger does not control such Web sites. Danger's inclusion of links to third party Web sites or access to third party products or services does not imply any endorsement of the third parties or their products and services. It is your responsibility to review the privacy policies and terms of use that apply to third party Web sites you visit or to third party content and services you access. In no event will Danger be liable to you in connection with any Web sites, content, products, services, materials, or practices of a third party.
3.6 Uploading and Downloading of Information. You hereby agree and acknowledge: (a) that Software, data and other information may be downloaded from Danger to your Device and requests for information may be uploaded from your Device to Danger on a regular basis; (b) that Danger makes no guarantee of, and is not responsible for, the accuracy or completeness of any downloaded information; and (c) that the Service may be inoperable from time-to-time and Danger shall incur no liability for such inoperability. You also hereby agree and acknowledge that any information, content, or software that you upload or download using a particular Device model may not be available to you in the event that you switch to a different Device model.
4. Intellectual Property Rights
4.1 Copyright. All content included on the Device, including graphics, text, images, logos, button icons, images, audio and video clips and software, as well as the compilation of the content, is the property of Danger and/or its licensors ("Danger Material") and is protected by U.S. and international copyright laws. Any unauthorized use of Danger Material may violate copyright, trademark, or other laws. Additionally, certain other content, including, Web sites, photographs, images, text, graphics, video clips, audio recordings, or other content accessed or transmitted through the Service may be copyrighted by third parties and protected by U.S. and international copyright law. Materials that are copyrighted may be viewed as presented and are for personal use only. Unless otherwise authorized by law, you agree not to alter, falsify, misrepresent, modify, copy, reproduce, republish, upload, post, transmit, distribute, or otherwise utilize such materials without the express, written permission of the copyright holder. Unauthorized copying or distribution of copyrighted works is an infringement of the copyright holders' rights. Pursuant to the Digital Millennium Copyright Act, Danger reserves the right to terminate the accounts of users of the Service who are infringers of the copyrights of others.
4.2 Trademarks. Danger®, hiptop®, the Danger logo, the hiptop logo, and the PoweredByDanger logo are trademarks, service marks, and/or registered trademarks of Danger, Inc. in the United States and in other countries. You agree not to use Danger's trademarks (i) to identify products or services that are not Danger's, (ii) in any manner likely to cause confusion, (iii) in or as a part of your own trademarks, (iv) in a manner that implies that Danger sponsors or endorses your products or services, or (v) in any manner that disparages or discredits Danger. You must have Danger's prior written consent before you use Danger's trademarks in any way.
5. No Monitoring; Necessary Disclosures. You acknowledge that Danger does not pre-screen or monitor content posted to or transmitted through the Service, but that Danger shall have the right (but not the obligation) to remove any content in its sole discretion, including, without limitation, any content that violates this Agreement. In addition, Danger reserves the right to disclose all content that you upload, post, email, transmit or otherwise make available via the Service (whether or not directed to Danger) if required to do so by law or in the good faith belief that such disclosure is necessary or appropriate to conform to the law or comply with legal process served on Danger or its service partners, to protect and defend the rights or property of Danger, the Service, Danger's service partners or end users, whether or not required to do so by law, or to protect the personal safety of our end users or the public.
6. Termination. You agree that Danger or its service partners, in their sole discretion, may immediately terminate your access to the Service (whether directly or through your wireless network operator) if they believe that you have violated the terms and conditions of this Agreement. You agree that any termination of your access to the Service may be effected without prior notice, and acknowledge and agree that, upon termination, Danger and its service partners may immediately deactivate or delete your account, and all related information, emails, files and other data in your account and/or bar any further access to such files or the Service. Further, you agree that neither Danger nor its service partners shall be liable to you for any termination of your access to the Service hereunder.
7. NO WARRANTIES. THE SERVICE AND SOFTWARE ARE PROVIDED BY DANGER ON AN "AS IS" BASIS. DANGER, ITS SUPPLIERS AND SERVICE PROVIDERS HEREBY DISCLAIM ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SERVICE OR THE SOFTWARE (INCLUDING ANY INFORMATION, CONTENT, MATERIALS, OR PRODUCTS THAT YOU MAY ACCESS THROUGH THE SERVICE), INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ACCURACY OF INFORMATIONAL CONTENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT DANGER, ITS SUPPLIERS AND SERVICE PROVIDERS DO NOT WARRANT OR REPRESENT THAT THE SERVICE OR THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE SERVICE OR THE SOFTWARE WILL BE TIMELY, SECURE, UNINTERRUPTED, OR ERROR-FREE, THAT DEFECTS IN THE SERVICE OR THE SOFTWARE WILL BE CORRECTED, THAT ANY CONTENT OR INFORMATION CONTAINED IN THE SERVICE OR ACCESSED THROUGH YOUR USE OF THE DEVICE WILL BE ACCURATE, COMPLETE, RELIABLE, OR ERROR-FREE, THAT THE SOFTWARE OR ANY MATERIALS AVAILABLE FOR DOWNLOAD FROM THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICE WILL BE FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS). FURTHER, AS THE WIRELESS NETWORK OPERATOR IS NOT CONTROLLED BY DANGER, NO WARRANTY IS MADE AS TO COVERAGE, AVAILABILITY OR GRADE OF SERVICE PROVIDED BY THE WIRELESS NETWORK OPERATOR. PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
8. LIMITATION OF LIABILITY. IN NO EVENT SHALL DANGER, ITS SUPPLIERS OR SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, OR OTHER PECUNIARY LOSS) RESULTING FROM YOUR ACCESS TO, OR USE OR INABILITY TO USE THE SERVICE OR SOFTWARE (INCLUDING AS A RESULT OF AN OUTAGE OF THE SERVICE PROVIDED BY YOUR WIRELESS NETWORK OPERATOR OR ANY OTHER THIRD PARTY SERVICE PROVIDER, OR WITH RESPECT TO THE INFORMATION, SERVICES, CONTENT, OR ADVERTISEMENTS CONTAINED ON OR OTHERWISE ACCESSED THROUGH THE SERVICE). IN NO EVENT WILL DANGER, ITS SUPPLIERS, OR SERVICE PROVIDERS BE LIABLE TO YOU IN CONNECTION WITH THE SERVICE OR THE SOFTWARE FOR ANY DAMAGES IN EXCESS OF TWO HUNDRED U.S. DOLLARS (U.S. $200).
9. Indemnity. You agree to defend, indemnify and hold harmless Danger, its officers, directors, employees and agents, from and against any claims, actions or demands, including without limitation reasonable attorneys' fees, made by any third party due to or resulting from your violation of this Agreement.
10. Export Controls. You agree and acknowledge that the Software may contain cryptographic functionality the export of which is restricted under U.S. export control law. You will comply with all applicable laws and regulations in your activities under this Agreement, including without limitation all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including the Export Administration Regulations promulgated by the Bureau of Industry and Security (as codified in 15 C.F.R. Parts ¤¤ 730-774). You expressly agree not to export or re-export the Software in violation of such laws or regulations, or without all required licenses and authorizations.
11. Government End Users. The Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth therein.
12. Applicable Law and Jurisdiction. You agree that this Agreement and all matters relating to the Service and the Software will be governed by the laws of the State of California, without giving effect to any principles of conflicts of laws that would require the application of the laws of a different state. You also consent to the exclusive jurisdiction and venue of the Superior Court of Santa Clara County for state claims and the Northern District of California for federal claims in all disputes arising out of or relating to the Software or the Service. The parties agree that the Uniform Computer Information Transaction Act (or any statutory implementation of it) and the United Nations Convention on the International Sale of Goods will not apply with respect to this Agreement or the parties' relationship.
13. General Provisions.You are responsible for compliance with applicable local laws. This Agreement is personal to you, and you may not transfer, assign or delegate this Agreement to anyone without the express written permission of Danger. Any attempt by you to assign, transfer, or delegate this Agreement without the express written permission of Danger shall be null and void. The paragraph headings in this Agreement, shown in boldface type, are included to help make the Agreement easier to read and have no binding effect. The waiver of any breach or default, or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. This Agreement constitutes the complete and exclusive agreement between you and Danger with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications, or agreements. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
Last Modified: July 12, 2007
Back to top | Legal Notices
IMPORTANT: PLEASE CAREFULLY READ THIS SERVICE AND END-USER LICENSE AGREEMENT (THE "AGREEMENT") BETWEEN YOU AND DANGER, INC. ("DANGER") BEFORE YOU USE YOUR WIRELESS DEVICE (THE "DEVICE"). YOUR USE OF THE DEVICE OR THE SERVICE FOR THE DEVICE SHALL CONSTITUTE YOUR BINDING ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE DEVICE OR THE SERVICE AND SHOULD PROMPTLY RETURN THE DEVICE TO THE PLACE WHERE YOU PURCHASED IT.
Danger owns and operates a service that enables certain features on your Device, including email, Internet access, instant messaging, address book and calendar functions, and that also allows you to access such features from a Web site operated by Danger (the "Service"). Your use of the Service and the Software (as defined below) in the course of operating your Device is subject to the terms and conditions of this Agreement. Danger reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy referenced herein at any time and in its sole discretion. You may access this agreement at www.danger.com/legal. If the Agreement is changed, we will post the new terms to such Web page. Any changes or modifications will be effective upon posting, and your continued use of the Service or Software after the posting of such changes will constitute your binding acceptance of the Agreement as revised.
1. Software
1.1 Definition. "Software" means any computer software, in executable code form, owned by Danger (or software owned by third parties, which Danger has the right to distribute or sublicense) and either pre-loaded on the Device at the time of manufacture or otherwise furnished to you by Danger in its sole discretion. "Software" includes the Danger® operating system and applications.
1.2 License Grant. Subject to the terms and conditions of this Agreement, Danger hereby grants to you a nonexclusive, nontransferable, nonsublicensable license to use, perform and display the Software using the Device upon which the Software was originally installed, and solely as necessary to operate the Software in accordance with the applicable documentation.
1.3 Restrictions. You may not (a) reproduce, distribute, sublicense, use for service-bureau purposes, sell, lease, or otherwise transfer the Software to any third parties; (b) modify, alter, improve, "hack," or create derivative works of the Software; or (c) reverse-engineer, decompile, disassemble, reverse-assemble, or otherwise attempt to derive the source code of the Software.
1.4 Third-Party Software. You understand and agree that in addition to the Software, the Device may contain certain third-party software ("Third-Party Software") the use of which may be subject to separate license agreements containing additional terms and conditions. Any such license agreements will be provided to you separately. You hereby agree to comply with all such additional terms and conditions in your use of the Third-Party Software.
2. Ownership. The Software is licensed to you, not sold. Danger and its licensors retain exclusive ownership of all proprietary rights, including all patent, copyright, trade secret, trademark and other intellectual property rights worldwide, in and to the Service and the Software (including any corrections, bug fixes, enhancements, updates, or other modifications thereto). There are no implied licenses under this Agreement, and all rights not expressly granted are hereby reserved.
3. Use of the Service
3.1 Wireless Service Provider. In addition to Danger's terms and conditions set forth in this Agreement, you agree and acknowledge that your use of the Service is subject to your wireless network operator's terms and conditions of service.
3.2 Privacy Policy. Danger believes strongly in protecting user privacy and providing you notice of Danger's collection and use of data, including personally identifying information. To learn about Danger's information collection and use practices and policies for the Service, please refer to the Danger® Service Privacy Notice.
3.3 Your Account. All information that you provide in connection with your registration for the Service must be accurate. You will receive a password and username upon completing your registration. You are responsible for maintaining the confidentiality of the password and account information, and are fully responsible for all activities that occur under your password or account. You agree to immediately notify your wireless network operator of any unauthorized use of your password or account or any other breach of security.
3.4 Prohibited Activities. You agree not to use the Service to: (a) directly or indirectly violate any applicable laws, rules, or regulations issued or promulgated by any competent government authority, including without limitation any intellectual property laws, privacy laws, computer fraud or abuse statutes, or export control laws; (b) upload, post, email, or transmit any content that you do not have the right to post or transmit under any law, contractual duty, or fiduciary relationship; (c) upload, post, email, or transmit any content that infringes a third party's trademark, patent, trade secret, copyright, publicity, privacy, or other proprietary right; (d) upload, post, email, or transmit any materials that are unlawful, untrue (including incomplete, false or inaccurate biographical information), harassing, libelous, defamatory, abusive, tortious, threatening, obscene, pornographic, indecent, hateful, abusive, or harmful (including but not limited to viruses, corrupted files, or any other similar software or programs); (e) violate, attack, or attempt to violate or attack the security, integrity, or availability of any network, service, or other computer system; (f) send mass unsolicited or unauthorized electronic messages or "spam," including without limitation, promotions or advertisements for products or services; (g) send altered, deceptive, or false source-identifying information (including forged TCP/IP headers); or (h) use the Service in a manner that otherwise violates Danger's then-current Terms of Use, the latest version of which is available at www.danger.com/legal. Violations of any of the above will be investigated by Danger and, where appropriate, Danger may either institute legal action or cooperate with law enforcement authorities in bringing legal proceedings against users who violate this Agreement.
3.5 Third-Party Content and Services. In the course of using the Service, you may download to the Device content that is provided by third parties and/or access services and Web sites provided by third parties, including third-party Web sites accessible through links from the Service. Danger is not responsible for the content, products, materials, or practices (including privacy practices) of any such Web sites or third-parties. You understand that by using the Service you may be exposed to third-party Web sites or content that you find offensive, indecent, or otherwise objectionable. Danger makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature, or reliability of third party Web sites (including Web sites accessible by hyperlink from the Service) or third party products or services accessible via the Service. Danger provides links to third party Web sites for your convenience only and Danger does not control such Web sites. Danger's inclusion of links to third party Web sites or access to third party products or services does not imply any endorsement of the third parties or their products and services. It is your responsibility to review the privacy policies and terms of use that apply to third party Web sites you visit or to third party content and services you access. In no event will Danger be liable to you in connection with any Web sites, content, products, services, materials, or practices of a third party.
3.6 Uploading and Downloading of Information. You hereby agree and acknowledge: (a) that Software, data and other information may be downloaded from Danger to your Device and requests for information may be uploaded from your Device to Danger on a regular basis; (b) that Danger makes no guarantee of, and is not responsible for, the accuracy or completeness of any downloaded information; and (c) that the Service may be inoperable from time-to-time and Danger shall incur no liability for such inoperability. You also hereby agree and acknowledge that any information, content, or software that you upload or download using a particular Device model may not be available to you in the event that you switch to a different Device model.
4. Intellectual Property Rights
4.1 Copyright. All content included on the Device, including graphics, text, images, logos, button icons, images, audio and video clips and software, as well as the compilation of the content, is the property of Danger and/or its licensors ("Danger Material") and is protected by U.S. and international copyright laws. Any unauthorized use of Danger Material may violate copyright, trademark, or other laws. Additionally, certain other content, including, Web sites, photographs, images, text, graphics, video clips, audio recordings, or other content accessed or transmitted through the Service may be copyrighted by third parties and protected by U.S. and international copyright law. Materials that are copyrighted may be viewed as presented and are for personal use only. Unless otherwise authorized by law, you agree not to alter, falsify, misrepresent, modify, copy, reproduce, republish, upload, post, transmit, distribute, or otherwise utilize such materials without the express, written permission of the copyright holder. Unauthorized copying or distribution of copyrighted works is an infringement of the copyright holders' rights. Pursuant to the Digital Millennium Copyright Act, Danger reserves the right to terminate the accounts of users of the Service who are infringers of the copyrights of others.
4.2 Trademarks. Danger®, hiptop®, the Danger logo, the hiptop logo, and the PoweredByDanger logo are trademarks, service marks, and/or registered trademarks of Danger, Inc. in the United States and in other countries. You agree not to use Danger's trademarks (i) to identify products or services that are not Danger's, (ii) in any manner likely to cause confusion, (iii) in or as a part of your own trademarks, (iv) in a manner that implies that Danger sponsors or endorses your products or services, or (v) in any manner that disparages or discredits Danger. You must have Danger's prior written consent before you use Danger's trademarks in any way.
5. No Monitoring; Necessary Disclosures. You acknowledge that Danger does not pre-screen or monitor content posted to or transmitted through the Service, but that Danger shall have the right (but not the obligation) to remove any content in its sole discretion, including, without limitation, any content that violates this Agreement. In addition, Danger reserves the right to disclose all content that you upload, post, email, transmit or otherwise make available via the Service (whether or not directed to Danger) if required to do so by law or in the good faith belief that such disclosure is necessary or appropriate to conform to the law or comply with legal process served on Danger or its service partners, to protect and defend the rights or property of Danger, the Service, Danger's service partners or end users, whether or not required to do so by law, or to protect the personal safety of our end users or the public.
6. Termination. You agree that Danger or its service partners, in their sole discretion, may immediately terminate your access to the Service (whether directly or through your wireless network operator) if they believe that you have violated the terms and conditions of this Agreement. You agree that any termination of your access to the Service may be effected without prior notice, and acknowledge and agree that, upon termination, Danger and its service partners may immediately deactivate or delete your account, and all related information, emails, files and other data in your account and/or bar any further access to such files or the Service. Further, you agree that neither Danger nor its service partners shall be liable to you for any termination of your access to the Service hereunder.
7. NO WARRANTIES. THE SERVICE AND SOFTWARE ARE PROVIDED BY DANGER ON AN "AS IS" BASIS. DANGER, ITS SUPPLIERS AND SERVICE PROVIDERS HEREBY DISCLAIM ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SERVICE OR THE SOFTWARE (INCLUDING ANY INFORMATION, CONTENT, MATERIALS, OR PRODUCTS THAT YOU MAY ACCESS THROUGH THE SERVICE), INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ACCURACY OF INFORMATIONAL CONTENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT DANGER, ITS SUPPLIERS AND SERVICE PROVIDERS DO NOT WARRANT OR REPRESENT THAT THE SERVICE OR THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE SERVICE OR THE SOFTWARE WILL BE TIMELY, SECURE, UNINTERRUPTED, OR ERROR-FREE, THAT DEFECTS IN THE SERVICE OR THE SOFTWARE WILL BE CORRECTED, THAT ANY CONTENT OR INFORMATION CONTAINED IN THE SERVICE OR ACCESSED THROUGH YOUR USE OF THE DEVICE WILL BE ACCURATE, COMPLETE, RELIABLE, OR ERROR-FREE, THAT THE SOFTWARE OR ANY MATERIALS AVAILABLE FOR DOWNLOAD FROM THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICE WILL BE FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS). FURTHER, AS THE WIRELESS NETWORK OPERATOR IS NOT CONTROLLED BY DANGER, NO WARRANTY IS MADE AS TO COVERAGE, AVAILABILITY OR GRADE OF SERVICE PROVIDED BY THE WIRELESS NETWORK OPERATOR. PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
8. LIMITATION OF LIABILITY. IN NO EVENT SHALL DANGER, ITS SUPPLIERS OR SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, OR OTHER PECUNIARY LOSS) RESULTING FROM YOUR ACCESS TO, OR USE OR INABILITY TO USE THE SERVICE OR SOFTWARE (INCLUDING AS A RESULT OF AN OUTAGE OF THE SERVICE PROVIDED BY YOUR WIRELESS NETWORK OPERATOR OR ANY OTHER THIRD PARTY SERVICE PROVIDER, OR WITH RESPECT TO THE INFORMATION, SERVICES, CONTENT, OR ADVERTISEMENTS CONTAINED ON OR OTHERWISE ACCESSED THROUGH THE SERVICE). IN NO EVENT WILL DANGER, ITS SUPPLIERS, OR SERVICE PROVIDERS BE LIABLE TO YOU IN CONNECTION WITH THE SERVICE OR THE SOFTWARE FOR ANY DAMAGES IN EXCESS OF TWO HUNDRED U.S. DOLLARS (U.S. $200).
9. Indemnity. You agree to defend, indemnify and hold harmless Danger, its officers, directors, employees and agents, from and against any claims, actions or demands, including without limitation reasonable attorneys' fees, made by any third party due to or resulting from your violation of this Agreement.
10. Export Controls. You agree and acknowledge that the Software may contain cryptographic functionality the export of which is restricted under U.S. export control law. You will comply with all applicable laws and regulations in your activities under this Agreement, including without limitation all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including the Export Administration Regulations promulgated by the Bureau of Industry and Security (as codified in 15 C.F.R. Parts ¤¤ 730-774). You expressly agree not to export or re-export the Software in violation of such laws or regulations, or without all required licenses and authorizations.
11. Government End Users. The Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth therein.
12. Applicable Law and Jurisdiction. You agree that this Agreement and all matters relating to the Service and the Software will be governed by the laws of the State of California, without giving effect to any principles of conflicts of laws that would require the application of the laws of a different state. You also consent to the exclusive jurisdiction and venue of the Superior Court of Santa Clara County for state claims and the Northern District of California for federal claims in all disputes arising out of or relating to the Software or the Service. The parties agree that the Uniform Computer Information Transaction Act (or any statutory implementation of it) and the United Nations Convention on the International Sale of Goods will not apply with respect to this Agreement or the parties' relationship.
13. General Provisions.You are responsible for compliance with applicable local laws. This Agreement is personal to you, and you may not transfer, assign or delegate this Agreement to anyone without the express written permission of Danger. Any attempt by you to assign, transfer, or delegate this Agreement without the express written permission of Danger shall be null and void. The paragraph headings in this Agreement, shown in boldface type, are included to help make the Agreement easier to read and have no binding effect. The waiver of any breach or default, or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. This Agreement constitutes the complete and exclusive agreement between you and Danger with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications, or agreements. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
Last Modified: July 12, 2007
Back to top | Legal Notices
