Welcome to Perlego.
Please read these Terms and Conditions ("T&C's") carefully. If you do not agree to these T&C's, do not activate or use the Service.
These T&C's are a legal agreement between you and Perlego Services, Inc. and its affiliates ("Perlego," "we" or "us"). We provide software and backup, restore, download and related services for wireless handheld devices ("Devices") and related services (all, the "Service"). These T&C's govern the use of the Service and supersede all earlier versions. No Perlego employee, Channel Partner, dealer or other agent is authorized to make any representation or warranty (other than as described in these T&C's) or to waive or modify any terms or provisions of these T&C's. We may designate our vendors, resellers, channel partners and other associated service providers (each a "Channel Partner") as third party beneficiaries of these T&C's.
1. Acceptance of T&C's by Use/Activation. Your electronic acceptance on our web site, your activation or use of the Service or your signature below constitutes your acceptance of the T&C's.
2. Service Availability. The Channel Partner may provide you with software and/or information to allow you to gain access to the Services, subject to your agreement to these T&C's. A Device (typically, a cell phone) is required to use the Device-based components of Service. We do not sell Devices and make no representation as to the compatibility of the Service with any particular Device, which may have memory, storage range and other limitations. The Service is subject to change at any time without notice. Actual Service coverage, speeds, bandwidth and quality may vary. Service is subject to unavailability, including emergencies, third party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and maintenance and repair, and may be interrupted, refused, limited or curtailed. We will strive to maintain a commercially reasonable amount of uptime, but are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Service or communications services or networks or for other reasons. We may impose usage or Service limits, suspend Service, or block certain kinds of usage in our sole discretion to protect users or our site. Actual service performance will vary based on Device configuration, compression, distance, site congestion, interference and other factors. Service performance, and accuracy and timeliness of data, are not guaranteed; delays or omissions may occur.
3. Use of Service. You may not resell or attempt to resell any aspect of the Service, whether for profit or otherwise or authorize any individual or entity outside your Perlego service domain to use the Service. Sharing the Service with another party breaches these T&C's and may constitute fraud or theft, for which we reserve all rights and remedies. You have no proprietary or ownership rights to a specific log-in name, or password that you use on our network. We may assign you an IP address each time you access the Service, and it may vary. You may not assign your log-in name, password or IP address to any other person. We may change your, log-in name or password at any time. We may access your Device and information stored on it (such as drivers, software, etc.) to troubleshoot issues related to the Service; enable, operate and update the Service; and investigate and remediate or discontinue activity that may be in violation of the T&C's or the law. You agree not to use or attempt to use the Service or Perlego"s software or communications networks for any fraudulent, unlawful, harassing or abusive purpose, or so as to damage or cause risk to Perlego"s business, reputation, employees, subscribers, facilities, or to any person. Improper uses include, but are not limited to using the Service to: (a) Violate any applicable law or regulation; (b) Post or transmit content you do not have the right to post or transmit; (c) Post or transmit content that infringes a third party"s trademark, patent, trade secret, copyright, publicity, privacy, or other right; (d) Post or transmit content that is unlawful, untrue, stalking, harassing, libelous, defamatory, abusive, tortious, threatening, obscene, hateful, abusive, harmful or otherwise objectionable as determined in our sole discretion; (e) Attempt to intercept, collect or store data about third parties without their knowledge or consent; (f) Delete, tamper with or revise any material posted by any person or entity not a member of your Perlego service domain; (g) Access, tamper with or use non-public areas of the Service, Perlego"s computer systems and network or any Perlego site; (h) Attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures; (i) Attempt to access or search the Service, the Perlego network or any Perlego website with any engine, software, tool, agent, device or mechanism other than the software provided by us; (j) Send or attempt to send unsolicited messages outside your Perlego service domain, including without limitation, promotions or advertisements for products or services, "spam", "chain mail" or "junk mail"; (k) Use or attempt to send altered, deceptive or false source-identifying information; (1) Attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way making up a part of the Service, the Perlego network or any Perlego site; (m) Interfere or attempt to interfere with the access of any user, host or network, including without limitation, sending a "virus" to the Service, the Perlego network or any Perlego website, overloading, "flooding," "spamming," "crashing," or "mailbombing" the Service, the Perlego network or any Perlego website; (n) Impersonate or misrepresent your affiliation with any person or entity; or, (o) Create excessively high volume data transfers or bandwidth consumption, including without limitation use of components of the system for any communication of data not related to the scope of the Service. If we suspect violations of any of the above, we may: (i) Institute legal action; (ii) Immediately, without prior notice to you terminate the T&C's and the Service; (iii) Terminate any other Perlego T&C's between us and you and the Perlego service provided under those T&C's; and (iv) Cooperate with law enforcement authorities in bringing legal proceedings against violators. You agree to reasonably cooperate with us in investigating suspected violations. Perlego may install, implement, manage and/or operate one or more software, monitor or other solutions designed to assist us in identifying and/or tracking activities that we consider to be illegal or violations of these T&C's, including but not limited to any of the activities described in this Section. We may, but are not obligated to, in our sole discretion, and without notice, remove, block, filter or restrict by any means any materials or information (including but not limited to emails) that we consider to be actual or potential violations of the restrictions set forth in these T&C's, including but not limited to those activities described in this Section and any other activities that may subject Perlego or its customers to harm or liability. We will have no liability for any failure on our part to prevent such materials or information from being transmitted over the Service and/or into your Device.
4. Content Disclaimer: Cautions and Restrictions. We do not control, nor are we responsible or liable for loss of, data, content, services, or products (including software) that you access, download, receive or buy. We are not a publisher of third party content transmitted or accessed through the Service and are not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Service. You are responsible for paying all fees and charges of third party vendors whose sites, products or services you access, buy or use via the Service. If you choose to use the Service to access web sites, services or content, or purchase products from third parties, your personal information may be available to the third-party provider. How third parties handle and use your personal information related to their sites and services is governed by their security, privacy and other policies (if any) and not ours. We have no responsibility for third party provider policies, or their compliance with them. If you elect to download into your Device or otherwise enable any software, including any "client" not provided by Perlego designed to facilitate your access of the Service, you shall be solely responsible for, and shall be deemed to have reviewed and, to the extent applicable, acknowledged, accepted or waived, any disclosures, notices or options otherwise made available to you for viewing as part of the log-in process for the Service.
5. Term; Termination of Service. These T&C's begin on the date Service is activated or used (or is otherwise deemed to have been accepted) and will continue until terminated by you or us in the manner provided in the T&C's. If you breach the T&C's, we may suspend or terminate your Service immediately without prior notice (except to the extent prohibited by law). Our remedies hereunder are not exclusive but are in addition to all other remedies provided by law.
6. Digital Millennium Copyright Act ("DMCA") Notice. In operating the Service, we may act as a "services provider" (as defined in the DMCA) and offer services as an online provider of materials and links to third party web sites. As a result, third party materials that are not owned or controlled by us may be transmitted, stored, accessed or otherwise made available using the Service. If you believe any material available via the Service infringes a copyright, you should notify us using the notice procedure for claimed infringement under the DMCA. Our designated agent (the proper party for notice) to whom you should address infringement notices under the DMCA is our Chief Executive Officer. We will respond expeditiously to remove or disable access to material we determine may be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the party who has allegedly infringed.
7. Restrictions. You will not: (a) Remove, alter, or cover any copyright, trademark or other proprietary notice or legend incorporated in, marked on, or affixed to products or materials which are part of the Services; (b) Commit or make representations on behalf of Perlego in any manner or as to any matter; make any representations, warranties or guarantees with respect to the Services which are inconsistent with or in addition to those made by Perlego; or (c) modify, amend, alter, translate, reverse engineer, decompile or disassemble any software underlying or otherwise relating to the Services, or create derivative works based on the Service or such software.
8. Title. Title to and ownership of the software underlying or associated with the Service and any documentation provided to you related to the Service, and all patent, copyright, trademark, trade secret and all other intellectual property rights to the Service and any software or other intellectual property underlying or associated with the Service, shall at all times remain with Perlego. Any references to the "sale" of the Service herein refers solely to any transfer of media on which software programs constituting the Software may reside and media on which related documentation may reside. No transfer of any intellectual property right shall be deemed to have occurred in connection with any such transfer of media, and all such intellectual property is only licensed to you pursuant to the T&C's. Perlego retains sole ownership of all goodwill now or hereafter associated with the Service.
9. Disclaimer of Warranties. EXCEPT AS PROVIDED HEREIN, PERLEGO MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SOFTWARE, THE SERVICE OR THIS AGREEMENT, AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED, EVEN IF PERLEGO HAS BEEN INFORMED OF A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY. YOU AGREE THAT PERLEGO MAY BE IN A CONTRACT WITH CHANNEL PARTNER AND THAT YOU HAVE MERELY ACCEPTED THE TERMS OF THESE T&C's SUCH THAT YOU HAVE NO INDEPENDENT RIGHT OF ACTION AGAINST ANY CHANNEL PARTNER. YOU AGREE THAT ANY AND ALL CLAIMS YOU MAY POSSESS ARE TO BE BROUGHT DIRECTLY AGAINST PERLEGO ONLY AND NOT THE CHANNEL PARTNER, IF ANY, AND YOU WAIVE ANY AND ALL RIGHTS TO PURSUE CLAIMS DIRECTLY AGAINST CHANNEL PARTNER. YOU SPECIFICALLY AGREE THAT PERLEGO AND EACH CHANNEL PARTNER, OUR AND THEIR AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS, SHALL NOT IN ANY EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INLUDING DAMAGES FROM LOSS OF REVENUE OR DAMAGES BASED ON LOSS OF DATA. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT. THE LIMIT OF PERLEGO"S LIABILITY UNDER ANY THEORY OF LAW, RELATING TO ANY MATTER UNDER THIS AGREEMENT, AND FOR ANY AND ALL CLAIMS SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE SERVICES.
11. Indemnification. You agree to defend, indemnify and hold us harmless from and against any and all claims, demands, actions, liabilities, costs or damages arising out of your use of the Service or a Device or your violation of the T&C's. You further agree to pay our reasonable attorneys" and expert witnesses" fees and costs arising from any actions or claims hereunder and those incurred in establishing the applicability of this section.
2. Privacy and Security. Wireless systems transmit voice and data communications over complex networks. Privacy cannot be guaranteed, and we are not liable to you or any other party for any lack of privacy you experience while using the Service. If you use the Service in a public location, you understand that others may be able to see and observe your use of the Service. We have the right, but not the obligation to monitor, intercept and disclose any transmissions over or using our facilities, and to provide customer billing, account, or use records, and related information under certain circumstances (for example, in response to lawful process, orders, subpoenas, or warrants, or other information, in good faith reliance on legal process, if required by law or to protect our rights, business, network, customers or property).
13. Personal Information. Perlego collects de-personalized aggregate end user data and application usage data and similar aggregated, trend data in connection with the Service that does not identify and cannot be traced to any one person ("Aggregate Data"). You, hereby grant Perlego a perpetual, royalty-free, worldwide license and right to use the Aggregate Data, provided that Perlego does not specifically identify you in connection with the public use of any Aggregate Data. Perlego will have access to, use and store your wireless device phone numbers, as well as other data that is the subject of United States and other foreign laws and regulations, in order to provide the Service ("Personally Identifiable Information" or "PII"). Perlego agrees that such PII is owned exclusively by you and Perlego will comply with applicable law and regulation with respect to the storage, transmission, collection and disposal of such PII. Perlego may only make use of PII received by it hereunder to the extent necessary to provide the Service. Perlego will use reasonable security measures to protect PII from unauthorized access or disclosure.
14. End User Warranty. You represent and warrant that (i) you not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
15. Assignment. We may assign in whole or in part our rights or duties under these T&C's without prior notice to you and upon such assignment we shall be released from all liability hereunder. You may assign the T&C's only with our prior written consent. Subject to this restriction, the T&C's shall inure to the benefit of and be binding upon the heirs successors, subcontractors, and assigns of the respective parties.
16. Changes. Perlego reserves the right, at any time and from time to time, to revise these T&C's and to impose additional rules, policies, terms or conditions on your use of the Service (collectively referred to as "Additional Terms"). Such Additional Terms will be effective immediately. In the event such Additional Terms are deemed material in nature, a notice shall be posted on Perlego"s web site and Perlego may elect to contact you directly in accordance with these T&C's.
17. Notices and Communication. Written notice to us shall be considered given when received by our registered agent, namely, our Chief Executive Officer, at the address of Perlego"s offices as shown on our web site. You agree that we may contact you through the Service or your Device to notify you of changes to or information about your account, the Service, additional services or the T&C's.
18. Severability. All terms and provisions of these T&C's are independent of each other. If any term or provision of these T&C's is held to be inapplicable or unenforceable, then: (a) such term or provision shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect, (b) the T&C's will not fail their essential purpose and (c) the balance of the terms and provisions shall remain unaffected and in full force and effect, unless our obligations hereunder are materially impaired, in which event we reserve the right to terminate the T&C's.
19. Entire T&C's/Applicable Law/Venue/Miscellaneous. These T&C's represents the final and entire agreement between you and us regarding the Service. Electronic images of the T&C's will be considered originals. You acknowledge that you have not relied on any other representations not specifically included in the T&C's. If we don"t enforce our rights under any of the provisions of the T&C's, we may still require strict compliance in the future. You represent that you are of legal age and have the legal capacity to enter into the T&C's. If you are contracting on behalf of a company, you represent that you are authorized to enter into the T&C's and agree to be personally liable for all accounts if you are not so authorized. You acknowledge that you are responsible for (a) all actions by any person you authorize to access your Device or the Service and (b) ensuring that any person you authorize to access your Device complies with the T&C's. These T&C's will be governed by the laws of the state of Washington without regard to principles of conflicts of law. You irrevocably consent to the jurisdiction and venue of the state and federal courts located in King County, Washington in connection with any action relating to these T&C's.
20. Survival and Acceptance. Any restrictive covenants in these T&C's shall survive the termination of any Channel Partner agreement and these T&C's. Your activation of the Service on your Device constitutes your acceptance of these T&Cs.
You acknowledge having read the foregoing T&Cs, acknowledge this instrument is binding on the individuals who enable the Service on Devices supplied by the undersigned, and agree to be bound by the terms hereof.