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Terms of Service
Acceptance of Terms of Service The Service
These Terms of Service (“Agreement“) are a binding legal agreement between you and Ontela, Inc. regarding your use of Ontela's data transfer service (“Service“) and any software you receive to enable your use of the Service (“Software“). Please read this Agreement carefully. By downloading, installing, or using the Software, or accessing or using the Service, you accept this Agreement and any modifications that may be made to the Agreement from time to time. If you do not agree to any provision of this Agreement, you should not download, install, or use the Software, or access or use the Service.
The Software and Service will allow you, in accordance with this Agreement, to transmit data (for example, photos and video) from a wireless mobile device that you own (“Device“) to your Internet-connected personal computer, to an email address specified by you, or to your account at a third-party partner destination (“Partner“). Your Device may come preloaded with Software by your wireless carrier (“Carrier“), or you may have to download Software from your Carrier to your Device. If you choose to use the Service to transmit images to your personal computer, you must download and install Ontela's personal computer software application. Ontela does not provide you with any equipment to access the Service. Please be aware that your Carrier may restrict or prohibit downloading, installing, or using the Software, and that the Service may not work with all wireless carriers or devices.
Eligibility
You must be 13 years of age or older to use the Software or Service. Use of the Software or Service is void where prohibited. By using the Software or the Service, you represent and warrant that you are 13 years of age or older and are fully able and competent to enter into, and abide by, the terms of this Agreement. The Service is not intended for those under the age of 13.
Fees
You will be charged fees for the Software and Service as you have agreed with your Carrier. YOUR USE OF THE SERVICE INVOLVES THE TRANSMISSION OF DATA TO AND FROM YOUR DEVICE, WHICH MAY RESULT IN ADDITIONAL CHARGES BY YOUR CARRIER. FOR THIS REASON, ONTELA RECOMMENDS THAT YOU CHECK WITH YOUR CARRIER ABOUT DATA TRANSFER PRICING BEFORE USING THE SERVICE. IN ADDITION, YOUR CARRIER OR A PARTNER MAY CHARGE A SUBSCRIPTION OR OTHER FEE FOR USE OF THE SERVICE. ONTELA WILL NOT BE RESPONSIBLE FOR ANY CHARGES INCURRED IN CONNECTION WITH THE SOFTWARE OR SERVICE.
License
If you comply with all the terms and conditions of this Agreement, Ontela grants you a revocable, non-transferable, and non-exclusive license to: (a) use the Service to transmit data from your Device to the destinations that you choose; and (b) use the Software solely in connection with your use of the Service.
Special Provisions Regarding Third Party Software
The Software contains third party software that is covered by a different license terms (“Third Party Software“). The notices, license terms, and disclaimers applicable to that Third Party Software are included at the end of this Agreement. This Agreement does not apply to any Third Party Software identified below.
Modifications
Ontela reserves the right to modify, discontinue, restrict, or monitor, temporarily or permanently, all or a part of the Software or Service, without notice. Neither Ontela nor its Partners or your Carrier will be liable to you or to any third party for any modification, discontinuance, restriction, or monitoring of the Software or Service.
Restrictions
You must comply with all applicable laws when using the Software and Service. You will not, and will not permit anyone else to, access or use the Software or Service in any way we deem illegal or otherwise wrongful or inappropriate. You will not: (a) reverse engineer, decompile, or disassemble the Software; (b) modify, translate, adapt, arrange, or create derivative works based on the Service or the Software; (c) export the Software in violation of applicable export control laws; (d) remove or alter any identification, copyright, or other notices included as part of the Software or Service; (e) use the Software or Service in a manner that threatens the integrity, performance, security, or availability of the Service, a Partner website, or your Carrier's network, or in a way that may subject Ontela, its licensors or suppliers, Partners, your Carrier, or any third party to harm or liability; (f) use the Service while driving a motor vehicle; (g) distribute, rent, loan, lease, sell, sublicense, copy or otherwise transfer all or part of the Software; (h) grant any access to the Software or the Service, or any of the rights granted hereunder, to any other person; or (i) use the Service to transmit any photo or other data that infringes the intellectual property rights of any third party.
Compliance with Partner and Carrier Terms
If you use the Service to send photos to a Partner website, you must abide by that Partner's terms and conditions, which may contain additional or different restrictions, obligations, or limitations. Your Carrier's terms and conditions also apply to your use of the Service.
Termination
You may terminate your use of the Service at any time by disabling the Software on your Device. Ontela or your Carrier may terminate this Agreement and your access to the Service, and a Partner may terminate your ability to send photos to your Partner account, at any time, for any reason. If Ontela suspects that you have violated any provision of this Agreement, Ontela may also seek any other available legal remedy. Your rights under this Agreement will terminate automatically if you breach any part of this Agreement.
You remain solely liable for all obligations related to use of the Service from your Device, even after you have stopped using the Service. Neither Ontela, nor any Partner or your Carrier, are liable to you or to any third party for any loss caused by any termination of the Service or termination of your access to the Service.
Privacy
Ontela may collect registration and other information about you through the Service. Our collection, use, and disclosure of this information is governed by the Ontela Privacy Policy available at www.ontela.com/privacy. Please be aware that Partners and your Carrier may collect information about your use of the Service. How a Partner or your Carrier collects, uses, and discloses your personal information is governed by that third party's privacy policy, if any.
Ownership
Ontela, its suppliers and licensors, and Partners own all right, title, and interest, including all intellectual property rights, in and to the Software and Service. Except for those rights expressly granted in this Agreement, no other rights are granted, either express or implied, to you.
Feedback
If you provide feedback to us regarding the Software or Service (“Feedback“), you authorize us to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to us perpetual and irrevocable license to use the Feedback for any purpose.
Disclaimer of Warranties
YOUR USE OF THE SOFTWARE AND SERVICE IS AT YOUR SOLE RISK. THE SOFTWARE AND SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ONTELA, ITS LICENSORS AND SUPPLIERS, PARTNERS, AND YOUR CARRIER 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, TITLE, AND NON-INFRINGEMENT. Ontela does not warrant uninterrupted use or operation of the service or that any PHOTOS OR OTHER data sent by you will be transmitted in uncorrupted form or within a reasonable amount of time. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DELAY OR LOSS OF ANY KIND THAT RESULTS FROM YOUR ACCESS OR USE OF THE SOFTWARE AND SERVICE, INCLUDING LOSS OF ANY PHOTOS OR ANY LOSS OR HARM TO YOUR DEVICE OR PERSONAL COMPUTER. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ONTELA, THROUGH OR FROM THE SERVICE, OR FROM ANY PARTNER OR YOUR CARRIER, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
Limitation of Liability
NEITHER ONTELA NOR ITS LICENSORS OR SUPPLIERS, PARTNERS, OR YOUR CARRIER WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ONTELA, ANY LICENSOR OR SUPPLIER, PARTNER, OR YOUR CARRIER HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM YOUR ACCESS OR USE OF THE SOFTWARE OR SERVICE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
The maximum TOTAL liability of Ontela, its licensors and suppliers, PARTNERS, AND YOUR CARRIER to you for any claim under this agreement, whether in contract, tort, or otherwise, is $50. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Indemnity
You will defend, indemnify and hold Ontela, its affiliates, directors, officers, agents, employees, licensors and suppliers, Partners, and your Carrier harmless from any costs, damages, expenses, and liability caused by your use of the Software or Service, your violation of this Agreement, or your violation of any rights of a third party through use of the Software or Service.
Updates to this Agreement
Ontela may update this Agreement. When we do, we will revise the "last updated" date on the Agreement, and you may view the most current version here. It is your responsibility to review the most recent version of the Agreement frequently and remain informed about any changes to it. By continuing to use the Software or Service, you consent to any updates to this Agreement. This version of the Agreement supersedes all earlier versions, and comprises the entire agreement between you and Ontela regarding the Software and Service. Certain terms and conditions of this Agreement may be superseded by the end user license agreement accepted by you, if any, for the personal computer version of the Software.
Copyright Infringement
Ontela respects the intellectual property rights of others, and asks you to do the same. Ontela will terminate the access privileges of those who repeatedly infringe the copyright rights of others. If you believe that your work has been transmitted by the Service in a way that constitutes copyright infringement, please contact Ontela at the address below and provide the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed, and identification of the time(s) and date(s) the material that you claim is infringing was transmitted by the Service; (3) your address, telephone number, and email address; (4) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Ontela's designated agent for notice of copyright infringement can be reached at:
Ontela, Inc.
Attention: Copyright Compliance Officer
506 2nd Avenue, Suite 300
Seattle, WA 98104
Email: copyright@ontela.com
General Legal Notices
By using the Service, you consent to receiving electronic communications from Ontela. These communications will include notices about your account and information concerning or related to the Software or Service. You agree that any notice, agreements, disclosure or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Ontela's failure to act in a particular circumstance does not waive its ability to act with respect to that circumstance or similar circumstances. Any provision of this Agreement that is found to be invalid, unlawful, or unenforceable will be severed from this Agreement, and the remaining provisions of this Agreement will continue to in full force and effect.
This Agreement is governed by the laws of the State of Washington, excluding conflicts of law principles. Any controversy or claim arising out of or relating to the Software, Service, or this Agreement must be commenced within one year after the claim arose and will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in Seattle, Washington, and judgment on the arbitration award may be entered into any court of competent jurisdiction. The award of the arbitrator will be final and binding upon the parties without appeal or review except as permitted by Washington law. Either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party's rights or property pending the completion of arbitration.
This Agreement is the entire agreement between you and Ontela concerning the Software and the Service, and supersedes all prior agreements or communications between you and Ontela regarding the subject matter of this Agreement.
Contacting Ontela
If you have any questions or concerns about this Agreement, the Software, or the Service, please send us a thorough description by email to support@ontela.com.
Third Party Software and Third Party Licenses
Although delivered by Ontela with the Software, the following files contain Third Party Software that are licensed pursuant to the terms of the relevant referenced Third Party Software license set forth below:
File:omsclient.mod
Third Party Software: Expat XML Parser
Third Party Software license text:
Expat XML Parser (c) 1998, 1999, 2000 Thai Open Source Software Center Ltd and Clark Cooper, and (c) 2001, 2002, 2003, 2004, 2005, 2006 Expat maintainers.
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
Terms of Service Last Updated: 5/1/2008