Terms of Service

Effective Date: December 4, 2006


1. ACCEPTANCE OF TERMS

Devicescape Software, Inc. ("Devicescape") welcomes you. Devicescape provides users with a variety of web-based services for devices and personal computers, and with the Devicescape websites at http://www.devicescape.com and https://my.devicescape.com (all of which we refer to collectively as the "Service").


By visiting or using the Devicescape web site or by completing the registration process to use the Devicescape Service, you agree to be bound by the following terms of service (the "Terms") which may be updated by us from time to time, without notice to you. You can review the most current version of the Terms at any time at: http://www.devicescape.com/pub/tos.jsp. When using a particular Devicescape Service, you and Devicescape shall be subject to any posted guidelines or rules applicable to such Service, which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into these Terms. Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to the Terms.


If you do not agree to be bound by (or cannot comply with) any of the Terms, then do not continue the registration process or attempt to access any part of the Services.


2. DESCRIPTION OF SERVICE

The Service is designed to give you easy access to Wi-Fi networks and hotspots. To use the Service, you either need to use a wireless device which already has our software, or you need to download software from our website, load it into your wireless device, and register your device on our website. If you wish to connect to a commercial network or hotspot, you may need to obtain a user ID and/or password from the operator of this network or hotspot.

  1. General

    You understand and agree that the Service is provided "AS-IS" and that Devicescape assumes no responsibility for the performance and operation of the Service, or for failure to enable or store any user communications or personalized settings. You are responsible for obtaining access to the Service; this access may involve third-party fees (such as Internet service provider or connection charges). You are responsible for those fees, including those fees associated with the service provider's display or delivery of advertisements (if any).

  2. Devicescape Communications and Advertisements

    In order to make the Service available at no charge (which pricing may change from time to time, with or without notice), the Service may include advertisements, service announcements, administrative messages, and certain other communications from Devicescape. You understand and agree that these advertisements, service announcements, administrative messages and similar communications are a necessary part of the Service. Because of the Service's business model, we do not provide or permit opting out of receiving certain messages. For advertisements and marketing messages where the Service does provide an opt-out, you may choose not to receive these messages from Devicescape and/or our partners.

  3. Your equipment and the Devicescape Service

    You must provide and are responsible for all equipment necessary to access the Service. The Service may provide automated login access through your Devicescape-registered equipment to Wi-Fi networks and hotpots, and you are responsible for all airtime charges associated with such service. Devicescape accepts no liability for per-minute, roaming, or premium charges due to the Wi-Fi network and hotspot operators as a result of such automated login service.

    You may choose to use Devicescape's binary executable code (also called 'object code') that enables you to re-program ('Re-Flash') existing mobile device hardware. Such Re-Flash operations can void your device's warranty, and as such, you accept all responsibility for voiding such warranties, and hold Devicescape harmless of any liability in this regard.

    The Devicescape service may enable a variety of wireless devices to connect to Wi-Fi networks and hotspots. One such class of devices provides voice services ("VoIP Phones"), similar to a conventional mobile or fixed line telephone. By accepting these terms and conditions, you agree that VoIP Phones do not necessarily provide an alternative for 911 emergency services provided by mobile or fixed line operators.

  4. Price Changes

    Devicescape provides a variety of Services: some of which are free, and some of which are subject to a one-time and/or subscription charges. Devicescape reserves the right to charge a one-time fee and/or subscription charge in the future for Services which were free at the time of initial registration. Devicescape will notify you of such changes in pricing policy promptly via your registered email address. If you choose not to accept these Service pricing changes, you may cancel your membership with Devicescape and/or your Service may be cancelled by Devicescape.

3. YOUR REGISTRATION OBLIGATIONS

In consideration of your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Devicescape has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Devicescape has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).

  1. Children

    Devicescape is concerned about the safety and privacy of all its users, particularly children. For this reason, children under the age of 13 may not register with Devicescape and are prohibited from using the Devicescape Service.

  2. Member Account, Password and Security

    In the process of completing the Devicescape registration process, you will provide (or be provided with) a user name and password, and your device will be assigned a unique identification (called a 'UUID'). You are responsible for maintaining the confidentiality of the UUID, user name and password, and you are fully responsible for all activities that occur under your UUID and user name. You agree to (a) immediately notify Devicescape of any unauthorized use of your user name, password or UUID or any other breach of security, (b) ensure that you exit from your account at the end of each session, (c) not alter, disclose or remove the UUID unless the UUID is removed as part of the de-installation of the Devicescape software. Devicescape cannot and will not be liable for any loss or damage arising from your failure to comply with this section.

4. DEVICESCAPE PRIVACY STATEMENT

Information about you is subject to our Privacy Statement which is expressly incorporated into the Terms. For more information, see our full privacy policy at http://www.devicescape.com/pub/privacy.jsp. You understand that through your use of the Service, you consent to the collection and use (as set forth in the Privacy Statement) of your personal information, including the transfer of this information to the United States and/or other countries for storage, processing and use by Devicescape and its affiliates.


5. MEMBER CONDUCT

Devicescape provides a public discussion forum on its website to aid its users in technical support issues, and to provide a place for general discussion about the Service. You understand that all such information, data, text, messages, tags, or other materials ("Content"), is the sole responsibility of the person from whom such Content originated. This means that you, and not Devicescape, are entirely responsible for all Content that you upload, post or email. Devicescape may or may not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Devicescape be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.


You represent and warrant that you have and will use the Service consistent with any and all obligations you may have undertaken to third parties and that your use of the Service shall, in no way, violate the rights of third parties including, without limitation, the rights of providers of services or devices.


You agree to not use the Service to:

  1. upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
  2. harm minors in any way;
  3. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  4. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content;
  5. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available;
  6. upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
  7. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
  8. interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
  9. reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service; and
  10. violate the rights of third parties including, without limitation, providers of services or devices.

You acknowledge that Devicescape may or may not pre-screen Content, but that Devicescape and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content posted or emailed to Devicescape. Devicescape and its designees shall have the right to remove any Content that violates the Terms or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Devicescape or submitted to Devicescape.


6. INTERNATIONAL NATURE OF COMMUNICATIONS

When you register with Devicescape, you acknowledge that, in using the Service, you will be causing communications to be sent through Devicescape's computer networks, located in California, other parts of the United States and elsewhere in the world. Accordingly, by agreeing to the Terms, you acknowledge that use of the Service may result in interstate and international data transmissions. Recognizing the global nature of the Internet, you agree to comply with all applicable rules regarding online conduct and acceptable Content.


7. GENERAL PRACTICES REGARDING USE

You acknowledge that Devicescape may establish general practices and limits concerning use of the Service, including, without limitation, the maximum number of devices you may manage, or the frequency of times you access or use the Service. You agree that Devicescape has no responsibility or liability for the deletion or failure to store any information stored by the Service. You acknowledge that Devicescape reserves the right to cancel accounts that are inactive for an extended period of time. You further acknowledge that Devicescape reserves the right to modify these Terms, general practices and limits from time to time, with or without notice.


8. MODIFICATIONS TO AND TERMINATION OF SERVICE

Devicescape reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof), with or without notice.


You agree that Devicescape may, in its sole and absolute discretion, under certain circumstances and without prior notice, and for any reason or no reason, immediately terminate your Devicescape account and access to the Service. Causes for such termination include, but are not limited to, (a) breaches or violations of the Terms or other incorporated agreements or guidelines, (b) a request by you (self-initiated account deletions), (c) discontinuance or material modification to the Service (or any part thereof), (d) unexpected technical or security issues or problems, (e) extended periods of inactivity, (g) engagement by you in fraudulent or illegal activities, (h) unauthorized access by you to any part of the Service, and/or (i) nonpayment of any fees, if any, owed by you in connection with the Service.


Termination of your Devicescape account may include (a) removal of access to all offerings within the Service, (b) deletion of your user ID and all related information, files and content associated with or inside your account (or any part thereof), and/or (c) barring of further use of the Service. Further, you agree that Devicescape shall not be liable to you or any third party for any modification, suspension, discontinuance or termination of the Service, your account, or your access to the Service.


You may cancel your Service at any time. However in the event that you cancel your Service, Devicescape will not refund any fees. Services are not pro-rated for mid-month cancellations.

Your sole right and remedy with respect to any dispute with Devicescape is to cancel your account. Disputes may include, but are not limited to, disputes related to or arising out of: the Service, the Terms, including its Privacy Statement, or Devicescape's enforcement or application of the same; your use or access to the Service; and the Devicescape billing method or amount or type of fees, surcharges and applicable taxes or any change to the same.


9. DEALINGS WITH ADVERTISERS AND VENDORS

Your correspondence or business dealings with, or participation in promotions of, vendors or advertisers found on or through the Service, 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 or vendor. You agree that Devicescape shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or vendors on the Service.


10. LINKS

The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Devicescape has no control over such sites and resources, you acknowledge and agree that Devicescape is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Devicescape shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.


11. INDEMNITY

You agree to indemnify and hold Devicescape and its subsidiaries, affiliates, officers, shareholders, agents, employees, partners, vendors and licensors harmless from any and all losses, liabilities, claims, obligations, costs, expenses (including without limitation reasonable attorney's fees), arising out of or relating to (i) your use of the Service, your connection to the Service or violation of the Terms; (ii) any claims or damages brought or sought against Devicescape by a third party due to or arising out of or relating to your use of the Service, your connection to the Service, or your violation of the Terms; (iii) any unauthorized access by you or a third party to the Service or a Devicescape registered device; and (iv) any claims by a third party alleging your use of the Service infringe such third party's United States intellectual property rights or infringe any other laws or rights. Devicescape will have sole control over the litigation or settlement of such claims.


12. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

  1. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. DEVICESCAPE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, PARTNERS, VENDORS AND LICENSORS 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.
  2. DEVICESCAPE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, PARTNERS, VENDORS AND LICENSORS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED; AND (vi) YOUR PERSONAL INFORMATION WILL BE SECURED AGAINST UNAUTHORIZED DISCLOSURES.
  3. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY DEVICE YOU REGISTERED FOR USE WITH THE SERVICE OR THAT USES THE SERVICE, VOIDING OF WARRANTIES OF ANY DEVICE YOU REGISTERED WITH THE SERVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD AND/OR USE OF ANY SUCH MATERIAL.
  4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DEVICESCAPE OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

13. LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT DEVICESCAPE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, PARTNERS, VENDORS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, PERSONAL INFORMATION OR OTHER INTANGIBLE LOSSES (EVEN IF DEVICESCAPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (V) ANY UNAUTHORIZED ACCESS TO THE SERVICE; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE.


14. EXCLUSIONS AND LIMITATIONS

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 12 AND 13 MAY NOT APPLY TO YOU.


15. NO THIRD-PARTY BENEFICIARIES

You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to this agreement.


16. NOTICE

Devicescape may provide you with notices, including those regarding changes to the Terms, by email, regular mail or postings on the Service.


17. TRADEMARK INFORMATION

Devicescape and Devicescape Connect are registered trademarks ("Devicescape Marks") of Devicescape Software, Inc. You agree not to display or use in any manner the Devicescape Marks without Devicescape's prior permission.


18. ENTIRE AGREEMENT

The Terms constitutes the entire agreement between you and Devicescape and governs your use of the Service, superseding any prior agreements between you and Devicescape with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Devicescape services, or the services of third-party network operators or service operators.


19. CHOICE OF LAW

The Terms and the relationship between you and Devicescape shall be governed by the laws of the State of California without regard to any conflict of law provisions. You and Devicescape agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Mateo, California.


20. SEVERABILITY OF TERMS

The failure of Devicescape to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.


21. NON-TRANSFERABILITY

You agree that your Devicescape account is non-transferable.


22. STATUTE OF LIMITATIONS

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.


23. TITLES

The section titles in the Terms are for convenience only and have no legal or contractual effect.


24. VIOLATIONS

Please report any violations of the Terms to our Customer Support Group.


25. U.S.A. GOVERNMENT

The software used in the Service is commercial computer software developed exclusively at private expense, and is in all respects the proprietary data belonging solely to Devicescape or its licensors. If the Software is provided to the U.S. Government, it must contain the following legend on all soft and hard copy Software: "This product and documentation are provided on a RESTRICTED basis. Use, duplication, or disclosure, by the United States Government is subject to restrictions set forth in this Agreement and in Subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, DFARS 227.7202-1(a), DFARS 227.7202-3(a) (1995), FAR 12.212(a)(1995), FAR 52.227-19, and/or FAR 52.227-14(ALT III), as applicable. If the Software is acquired by or on behalf of agencies or units of the Department of Defense (DOD), then, pursuant to DOD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government's right to use, reproduce or disclose the Software acquired under this Agreement is subject to the restrictions of this Agreement. If the Software is acquired by or on behalf of civilian agencies of the United States Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government's right to use, reproduce or disclose the Software under this Agreement is subject to the restrictions of this Agreement