Welcome to ThumbsMobile.com, by Knickpoint Technology, LLC., (“ThumbsMobile, we, our, or us”). Please read these Terms of Service carefully before using this website and service, and check them periodically for changes or updates.
ANY USE OF THIS WEBSITE OR OTHER RELATED WEBSITES, TOOLBARS, WIDGETS, APPLICATIONS OR DISTRIBUTION CHANNELS WE MAY OPERATE FROM (collectively, the “Site”), OR THE SERVICES AVAILABLE ON THE SITE (including without limitation the software, programs, tools, components, upgrades, updates and all related applications, available now or in the future, collectively the "Service"), IS SUBJECT TO AND CONDITIONED UPON ASSENT TO AND COMPLIANCE WITH ALL OF THESE TERMS OF SERVICE (the “Agreement”). Portions of the Service may be subject to other terms and conditions and your use of such services is subject to and conditioned upon your acceptance of such additional terms and conditions.
BY ACCESSING THE SITE AND THE SERVICE, YOU CONFIRM AND ACKNOWLEDGE THAT YOU HAVE (1) READ THIS AGREEMENT AND THAT YOU UNDERSTAND ITS CONTENT, AND (2) THAT YOU AGREE TO BE BOUND BY THIS AGREEMENT. THE AGREEMENT IS BETWEEN YOU AND THUMBSMOBILE.COM. If you do not agree to be bound by the terms and conditions of this Agreement, do not use or access the Site or the Service. Use of our Site or Service is void where prohibited.
We may change the terms of this Agreement at any time(s) and in our sole discretion, upon posting notice on the Site. If you do not agree to the new or different terms, you should not use or access the Site or the Service.
2. THE SERVICE
We provide mobile website solutions for existing Internet websites, Facebook business pages and/or create original mobile web sites. You may use the Services for your personal and business use or for internal business purpose in the organization that you represent, as long as you are in compliance with all provisions of this Agreement. In providing the Service, we obtain and rely on certain information from third parties and third party software and applications. We cannot guarantee the accuracy or completeness of such data.
We do not claim ownership of the Content (as defined below) you place on your website or Content submitted by your mobile website. By submitting Content to us for inclusion on your mobile website, you grant us a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your mobile website, and storing it on our servers. This license exists only for as long as you continue to be our customer and shall be terminated upon receiving written notice from you. You acknowledge that we do not pre-screen Content, however, we reserve the right (but not the obligation) in our sole discretion to refuse or remove any Content that is available to third parties via the Service. Without limiting the foregoing, we shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
In connection with your use of the Site or the Service, you may be made aware of services, products, offers and promotions provided by third parties. If you decide to use such third party services, you are responsible for reviewing and understanding the terms and conditions governing such services, and acknowledge that the third party is responsible for the performance of such services.
Any downloads of software from the Site or from authorized third party websites, which enable you to access and use the Service, including without limitation any files, images incorporated in or generated by the software, and data accompanying the software, (the “Software”) is licensed to you by us or third-party licensors for your personal, noncommercial use only. You shall keep intact all copyright and other proprietary notices and your use of such Software is strictly subject to the terms of this Agreement and any agreement accompanying the Software.
It is your obligation to ensure that you fully comply with all applicable laws, regulations and directives with regard to the use of the Site and the Service. For the avoidance of doubt, the ability to access our Site or the Service does not necessarily mean that your use thereto are legal under relevant laws, regulations and directives.
3. REGISTRATION AND ACCOUNT MANAGEMENT
Some functions of the Service require registration, and as part of the process you will be requested to provide certain information, including among others, first name, last name, email address, company name, field of business and website URL (“Registration Data”) You agree to:
• Provide true, accurate, current and complete Registration Data as prompted by the registration process;
• Maintain and promptly update the Registration Data to keep it accurate, current and complete;
• Maintain the security and confidentiality of your password and any other security or access information used by you to access the Site or Services;
• Ensure that you log out of the Service at the end of each session using the Service.
• Refrain from transferring your user account on the Service to any other party without our prior written consent;
• Refrain from impersonating any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person's username, password or other Registration Data; and
• Immediately notify us in writing if you become aware of any loss, theft or use by any other person or entity of any of your Registration Data in connection with the Site or the Service or any other breach of security that you become aware of involving or relating to the Site.
We assume that any communications and other activities through use of your Registration Data were sent or authorized by you, and you are fully responsible for all activities that occur under your Registration Data.
We may, in our sole discretion and without notice or liability to you or any third party, immediately suspend or terminate your account and refuse any and all current or future access to and use of the Service (or any portion thereof). Grounds for such termination may include, but are not limited to, extended periods of inactivity, loss, theft or unauthorized use of your Registration Data, violation of the letter or spirit of this Agreement, providing content including without limitation Registration Data that is inappropriate or offensive in our discretion, or if we have reasonable grounds to suspect any of the Registration Data that you provided is inaccurate, not current or incomplete.
You declare that by providing your Registration Data to us, you hereby consent to, us sending, and you receiving, by means of telephone, facsimile, SMS or e-mail, communications containing content of a commercial nature relating to your use of the Site, the Service and related services, including further information and offers from us that we believe you may find useful or interesting, such as newsletters, marketing or promotional materials. You acknowledge that we do not have to obtain your prior consent (whether written or oral) before sending such communications to you, provided that we shall immediately cease to send any such further communications should you notify us in writing that you do not wish to receive such commercial content anymore.
4. PAYMENTS AND TAXES
5. USER CONDUCT
You may access and use the Site and Service only for its purposes as intended by the normal functionality of the Site and Service, as long as you are in compliance with all provisions of this Agreement. In connection with your use of the Site and the Service, you agree to abide by all applicable local, state, national and international laws and regulations and not, nor allow or facilitate a third party to, violate or infringe any rights (including without limitation copyrights, rights of publicity or privacy and trademarks) of others, our policies or the operational or security mechanisms of the Service, and without limiting the foregoing you may not:
• use (i) the Site, (ii) the Service, or (iii) any content, services, features, data, information, text, images, photographs, graphics, scripts, sounds, video, music, sound recordings, programming, logos, trademarks, service marks, HTML code, compilation of content, format, design, user interface and software made available through or which appears on the Site or Service ("Content") to promote, conduct, or contribute to fraudulent, obscene, pornographic, inappropriate or illegal activities, including without limitation deceptive impersonation, in connection with contests, pyramid schemes, surveys, chain letters, junk e-mail, spamming or any duplicative or unsolicited messages (commercial or otherwise);
• interfere with the access, use or enjoyment of this Site or the Service by others (including without limitation causing greater demand on the Service than is deemed by us reasonable, attacks such as "flaming" other participants in a manner that might incite or perpetuate a conflict or argument, and creating usernames to attack other participants' identities); harass or defame others; or promote hatred towards any group of people;
• harvest or otherwise collect non-public information about another user obtained through the Site or the Service (including without limitation email addresses), without the prior written consent of the holder of the appropriate rights to such information;
• add a Site member to your email or physical mailing list without their consent after adequate disclosure, or use their email address or contact details for antisocial, disruptive, or destructive purposes, including "flaming," "spamming," "flooding," "trolling," and "griefing" as those terms are commonly understood and used on the internet;
• use any Content except for the intended purposes of the Service and Site, subject always to the terms of this Agreement. You may not display, import or export feedback information relating to the Site or use it for purposes unrelated to the Service without our prior written consent;
• alter, modify, delete, forge, frame, hyper-link, create derivative works or otherwise interfere with or in any manner disrupt, circumvent, or compromise any part of the Site, the Service, any Content, or features;
• access or attempt to access any of our systems, programs or data that are not made available for public use, or attempt to bypass any registration processes on the Service;
• decompile, disassemble, reverse engineer or otherwise attempt to discover any source code or underlying ideas or algorithms of the Site or the Service except if and to the extent permitted by applicable law;
• copy, distribute, transmit, broadcast, publicly display, publicly perform, rent or sell any portion of the Service, the Site or the Content;
• use any robot, spider, other automated device or any tool-bar, web-bar, other web-client, device, software, routine or manual process, to monitor or scrap information from this Site or the Service, or bypass any robot exclusion request (either on headers or anywhere else on the Site);
• fail to deliver timely payment for your purchases;
• use any meta tags or any other "hidden text" utilizing any trademarks or intellectual property owned or licensed by us;
• create or provide any other means through which the Service may be accessed, for example, through server emulators, whether for profit or not;
• 'deep-link', redistribute or facilitate the redistribution of Content; and
• abuse or use any other means to affect or manipulate the Service in general or the prices quoted through the Service.
We are not responsible for the accuracy, usefulness, safety or intellectual property rights of or relating to any Content, other than Content provided by us.
7. PROPRIETARY RIGHTS
You acknowledge that the Service and Content, including without limitation the Software, the trademarks, service marks and logos contained on the Site (“Marks”), are protected by copyrights, trademarks, service marks, patents or other proprietary rights, both with respect to individual content and as a collective work or compilation, pursuant to laws and international conventions. Any rights to the Content, the Site and the Service are reserved by us and out licensors.
You acknowledge that the Content, including without limitation Marks, are protected by copyrights, trademarks, service marks, patents or other proprietary rights, both with respect to individual Content and as a collective work or compilation, pursuant to laws and international conventions. Any rights to the Content, the Site and the Service not expressly granted herein are reserved.
8. RELEASE & DISPUTES WITH OTHERS
You are solely responsible for your interaction with other users of the Service and other parties with whom you come in contact through the Service. We reserve the right, but have no obligation, to monitor and/or manage disputes between you and other users of the Service. If you have a dispute with one or more users of the Site or the Service, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
9. LINKS TO OTHER WEBSITES
10. LINKS TO THIS SITE
Subject to the terms of this Agreement and as long as this Agreement is not terminated, we grant to you, a nonexclusive, non-transferable, non-sublicensable right to display on your website a link to the Site's homepage, as long as your use is not misleading, illegal or defamatory, or your website is not obscene, pornographic, inappropriate or illegal. You may display the logo only in the form and size provided to you. You may not use the logo in any way that suggests that we endorses or sponsors your site, or that tarnishes, blurs or dilutes the quality of our trademarks or any associated goodwill, including without limitation displaying the logo on any page that contains infringing, misleading or illegal content. All use of and goodwill associated with the logo shall inure to our benefit.
Any material, including without limitation, idea, knowledge, technique, marketing plan, information, questions, answers, suggestions, emails and comments, provided by you to us shall not be considered confidential or of a proprietary nature. In providing us with material, you authorize us to use it and any developments or derivatives thereto, according to our needs as determined in our sole discretion, including for public relations and promotion of the Site and the Service in the online and offline media, and all without requirement of any additional permission from you or the payment of any compensation to you. You also agree that (i) by submitting unsolicited ideas to us or any of our or representatives, you automatically forfeit your right to any intellectual property rights in these ideas; and (ii) unsolicited ideas submitted to us or any of our employees or representatives automatically become the property of ThumbsMobile. You hereby assign and agree to assign all rights, title and interest you have in such feedback and ideas to Thumbs Mobile together with all intellectual property rights therein.
For our marketing purposes, you expressly allow ThumbsMobile, at our discretion, to present your mobile website in our customer portfolio with photo illustration(s) and active links.
12. DISCLAIMERS OF ALL WARRANTIES
THE CONTENT, THE SITE AND THE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WITHOUT LIMITING THE ABOVE, (I) WE MAKE NO WARRANTY THAT THE SITE, THE SERVICE OR THE CONTENT WILL MEET YOUR REQUIREMENTS, OR WILL BE UNINTERRUPTED, CONTINUOUS, TIMELY, SECURE, ACCURATE, CORRECT, COMPLETE OR AVAILABILE; (II) WE DO NO ENDORSE OR APPROVE ANY CONTENT PROVIDED BY ANY PARTY THAN US AND DISCLAIM ALL LIABLITY WHATSOEVER THERETO; AND (III) WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THIS SITE, THE SERVICE OR THE CONTENT IN TERMS OF ITS CORRECTNESS, COMPLETENESS, RESULTS, AVAILABILITY, ACCURACY, RELIABILITY OR OTHERWISE.
13. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY INJURY, DEATH, ACT OF GOD, ACCIDENT, DELAY, DIRECT OR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY (I) USE OR THE INABILITY (FOR ANY REASON) TO USE ANY PART OF THIS SITE OR THE SERVICE (INCLUDING WITHOUT LIMITATION INACCURACIES OR ERRORS OF INFORMATION AS A RESULT OF ACCESSING THIS SITE OR THE SERVICE), (II) ACTION OR INACTION IN CONNECTION WITH THIS AGREEMENT OR FOR COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR (III) STATEMENTS OR CONDUCT OF YOU OR ANY THIRD PARTY ON THIS SITE OR YOUR WEBSITE OR MOBILE WEBSITE, INCULDING WITHOUT LIMITATION ANY SUBMISSIONS THEREON; IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, whether based on contract, tort, negligence, strict liability or otherwise. All of the above limitations shall apply notwithstanding any failure of essential purpose of any limited remedy and are fundamental elements of the bargain between us and you. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or in connection with the Site, the Service, the Content or the Agreement must be filed within thirty (30) days after such claim or cause of action arose or be forever barred.
In the event this limitation of liability shall be for any reason held unenforceable or inapplicable, you agree that our aggregate liability shall not exceed amount paid by you to us pursuant to this Agreement.
YOU RELEASE, AND AGREE, AT YOUR OWN EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS US, OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES, FROM ALL CLAIMS, LIABILITIES, LOSS AND DAMAGES (OF EVERY KIND, WHETHER KNOWN OR UNKNOWN AND SUSPECTED OR UNSUSPECTED) RELATED TO IN ANY WAY TO: (I) YOUR USE OF, ACCESS TO OR RELIANCE ON THIS SITE, THE SERVICE OR THE CONTENT, OR (II) YOUR VIOLATION OF ANY OF THE TERMS OF THIS AGREEMENT OR ANY APPLICABLE LAWS OR REGULATIONS. We will provide you with written notice of such claim. You will not enter into any settlement or compromise of any such claim without our prior written consent. We may assume the exclusive defense and control of any matter subject to indemnification by you. In all events, you shall cooperate fully in the defense of any claim.
15. REDIRECT CODE
As one of the final steps to publishing your mobile site, you may be required to install or have installed in the code of your website a certain section of code that redirects customers to your mobile site (“Redirect Code”) when viewing your website on a mobile device. In rare cases, installing Redirect Code incorrectly can cause a website to be impaired, malfunction or function differently. You understand and acknowledge at the Agreement’s Limitation of Liability (Sec. 12) and Indemnification (Sec. 14) apply to all foreseen and unforeseen situations arising from your installation of Redirect Code; in no way shall Thumbs be responsible for any claims, liabilities, loss or damages related to installation of Redirect Code.
16. COPYRIGHTED MATERIALS, INFRINGEMENT NOTICES AND TAKEDOWN
YOU SHALL NOT USE THE SERVICES TO TRANSMIT, ROUTE, PROVIDE CONNECTIONS TO OR STORE ANY MATERIAL THAT INFRINGES COPYRIGHTED WORKS OR OTHERWISE VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. We have adopted and implemented a policy, stated below, that provides for the termination in appropriate circumstances of Thumbs Mobile users who infringe or are believed to be infringing the rights of copyright holders:
If you believe that any material contained on this Site infringes your copyright, you should notify this Site's Designated Agent listed below with the following information required under 17 U.S.C. § 512:
Name of Designated Agent:
Full Address of Designated Agent: 1508 Parmeadow Drive
Telephone Number of Designated Agent: (952) 297-6453
Email Address of Designated Agent:email@example.com
Your notice to the Designated Agent should be in English and contain the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest that is allegedly infringed; (b) a description of such copyrighted work(s) and an identification of what material in such work(s) is claimed to be infringed; (c) a description of the exact name of the infringing work and the location of the infringing work on the Service; (d) information sufficient to permit us to contact you, such as your physical address, telephone number and e-mail address; (e) a statement by you that you have a good faith belief that the use of the material identified in the manner complained of is not authorized by the copyright owner, its agent, or the law; (f) a statement by you that the information in the notification is accurate and, under penalty of perjury that you are authorized to act on the copyright owner's behalf.
The Copyright Agent will only respond to any claims involving alleged copyright infringement. Notwithstanding this section, we reserve the right at any time and in our sole discretion, to remove content which in our sole judgment appears to infringe the intellectual property rights of another person.
17. GOVERNING LAW AND EXCLUSIVE COURTS
This Agreement will be governed by laws of the State of Minnesota without regard to its choice of law or conflicts of law principles. The parties consent to the exclusive jurisdiction and venue in the courts in Minnesota, USA, except that temporary relief to enjoin infringement of intellectual property rights may be sought in any court.
No waiver of any term of this the Agreement shall be deemed a further or continuing waiver of such term or any other term, and any failure to assert any right or provision under the Agreement shall not constitute a waiver of such term. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. You agree that no joint venture, partnership, employment, franchise or agency relationship exists between you and us as a result of the use of the Site or the Service. This Agreement comprises the entire agreement between you and us, states our and our suppliers' entire liability and your exclusive remedy with respect to the Site and Service, and supersedes all prior agreements pertaining to the subject matter thereof. If any provision(s) of this Agreement is held to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the original provision and the other provisions remain in full force and effect. The section titles in this Agreement are solely used for the convenience and have no legal or contractual significance. No provision of the Agreement shall be construed against us but rather shall be construed in a neutral and fair manner as terms entered into by a fully-informed party on a voluntary basis after opportunity to confer with advisors and legal counsel about the meaning and effects of the terms of this Agreement.