Terms of Use

Effective Date: 5/28/2009

SO, Here We Are. Please read these Terms of Use carefully. While there's probably many other things you'd rather read, these Terms do change from time to time and you may not know without coming here and reading them on a regular basis. Just by using the service, you're accepting these Terms of Use, so if you don't like them and don't want to live by them, then please, don't use our Service. Ouch! That hurt us to even think that could happen, but better to be up front with this type of stuff.

What we do

Fanminder (which we'll refer to as the "Company", "us", our", or "we") provides an internet-based application, marketing website, and related services (the "Service") for publishing and receiving information between the Service and your customers' cellphones.

Times change and so we may change this Terms of Use at any time. When we do, we'll try to notify you but can't promise that. If we add new features or services, or limit use of the Service, or change fees for the Service, or otherwise modify the Service in the future, they will automatically become subject to this agreement. We also put a date stamp at the top of the page representing the last day it was updated. If we change the Terms of Use and you're still using it after the last dated change, you're telling us that you agree to those changes. If there's something in it that you don't like, call us. We may or may not be able to do anything about it, but we will respect you and listen to you.

Fanminder uses reasonable efforts to ensure that the Service is available on a 24/7 basis. However, there will be occasions when the Service will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications that are beyond the control of us. By using the Service you agree that Fanminder shall not be liable to you for any modification, suspension or discontinuance of the Service.

To use the Service, you select a unique keyword. Fanminder provides it to you as part of your monthly paid subscription. The use of the keyword does not grant you ownership of such keyword, which is retained by Fanminder. We may revoke your keyword at any time for violations of this Agreement, or for no reason, but in all cases we will provide reasonable notification to you.

Warranty Disclaimer

Use of the service is at your sole risk. We do not warrant that the service will be uninterrupted or error free, nor do we make any warranty as to what results you'll obtain using the service.

As much as we hate to admit it, we're not perfect. So you understand that not every message sent by the Service will be received by the intended audience, or at all. The service is provided "AS IS." We are not responsible for the timeliness, deletion of data, misdelivery or other problems that might happen. We disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement.

Data Security

The importance of security for all personally-identifiable information associated with Users of the Service is our utmost concern, and we have implemented, and periodically review, certain physical, electronic, and managerial procedures to help prevent unauthorized access and maintain data security. Unfortunately, due to the open nature of Internet communications, no data transmission over the Internet can be guaranteed to be secure, and thus we cannot guarantee that communications between you and Fanminder will be free from unauthorized access by third parties.

SPAM is a Big No-No

Fanminder provides you with a variety of ways to collect contact information about your customers. For this Terms of Use, we define your "Customer" as a person you have a pre-existing business relationship with (see below.) In every case, we expect your Customer to consent (also defined below) to providing you with his/her information and the right to send messages to his/her cellphone.

If you couldn't tell so far, our Service may NOT be used for sending messages that lack consent from a pre-existing business relationship. We usually call this SPAM. Sending SPAM is something we will not tolerate, even once, by you.

• What is Spam - Spam is when you send an unsolicited text message. By sending messages only to those who have requested to receive it, you are following industry-accepted permission-based messaging guidelines.
• What constitutes a pre-existing business relationship (a required condition for permission-based messaging) - The recipient of your message has made a purchase, requested information, responded to a survey or an advertisement, or had offline contact with you.
• What constitutes consent - Your Customer has agreed either verbally, in writing, or through their mobile phone, to receive text-based messages from you to their phone.

We do NOT allow the entry or import of ANY third party mobile mailing lists. Only import or enter lists for which all listed phone numbers have consented to receive correspondence from you and for which you have a pre-existing business relationship. Fanminder customer support actively monitors import lists and messages going to a large number of contacts. In order to protect consumers as well as the integrity of our Service, if we believe you've engaged in SPAM we will immediately suspend or terminate your Service, at our discretion.

Finally, we want to make it easy for your customers to stop receiving your mobile marketing campaigns at any time should they want to (called "opt-out" in the industry). So every out-going message sent by you through the Service is appended with a mandatory opt-out link that will allow your Customer to remove themselves from your mobile mailing list.

Member Conduct & Content

You understand that all information, data, text, software, music, sound, photographs, graphics, audio, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Fanminder, are entirely responsible for all Content that you upload, post, transmit or otherwise make available via the Service. Fanminder does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Fanminder be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service.

At Fanminder, we want to do our small part to stop the spread of all kinds of scary, annoying, consumer unfriendly, offensive, and unlawful activities. So we compiled a list of activities we prohibit. Fanminder cannot be used by people, businesses or entities that:

• Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.
• Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
• Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. SPAM, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.
• Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
• Posts or discloses any personally identifying information or private information about children without their consent (or their parents consent in the case of a minor).
• Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
• Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.
• Promotes, solicits or participates in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting "get rich quick", "build your wealth" and "financial independence" offerings.
• Engages in any libelous, defamatory, scandalous, threatening, harassing activity.
• Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
• Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.

Fanminder does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to all feedback, comments, likenesses, and other specially-indicated data you supply us, you grant to Fanminder the following worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service and elsewhere for the purpose for which such Content was submitted or made available and also for the purpose of providing and promoting the Service to which such Content was submitted or made available.

You understand that in the course of doing business with Fanminder you may generate ideas, feedback, drawings, and/or content that leads directly or indirectly to improvements in the Fanminder service, new products introduced by Fanminder, or new business lines, collectively titled "Inventions." You hereby assign today and in the future to Fanminder all your right, title and interest in and to any and all Inventions (and all Proprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes, created prior to or during the period of your consulting relationship with the Company. You hereby waive any moral rights you may have in and to the Inventions.

Fanminder reserves the right at all times to disclose any of your data as necessary to satisfy any law, regulation, governmental request or partner request, or protect the property, rights, or safety of Fanminder, our customers and the public, in its sole discretion.

Member Account and Password

You will receive a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account designation and are fully responsible for all activities that occur under your password or account designation. You agree to (a) immediately notify Fanminder of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Fanminder will not be liable for any loss or damage arising from your failure to comply with this Section.

Cancelling Your Subscription and Termination of Service

Once your free trial period ends, for your joyous use of Fanminder you pay us a monthly subscription fee. This fee is explained in the My Account section of the Service. You authorize Fanminder to charge your credit card for all fees, including the monthly fee each month on the first day after the end of your free trial. Should your credit card be declined for any reason, we'll notify you and give you a short grace period (we're nice like that) to give us a valid credit card. After the grace period ends, we'll have no choice but to cancel your Service.

Even if you continue to use and love us, there may also come a day when you wish to cancel your subscription. We try to make it as easy to cancel your subscription as it was to begin it with us (you know, if you love someone, let them go...) So you may terminate this Agreement at any time by cancelling your Service on our website, by emailing us or by calling us.

It's unlikely, but always possible, that some people do bad things. So we need to reserve the right to terminate this Agreement and suspend, disable access or terminate your Service, in each case at any time with or without cause, and with or without notice. You can always call us if you believe there is a mistake or error and we will do our best to listen to you. We shall have no liability to you or any third party because of such termination or action.

Indemnification

You hereby agree to defend, indemnify and hold harmless Fanminder and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that (i) arises from any alleged breach of this Agreement, (ii) arises from the content or effects of any messages you distribute using the Service or (iii) otherwise arises from or relates to your use of the Service. In addition, you acknowledge and agree that Fanminder has the right to seek damages when you use the Service for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.

Disputes

The Agreement shall be governed by the laws of California, USA without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in San Francisco, CA. In any action or proceeding to enforce rights under the Agreement, Fanminder will be entitled to recover its costs and attorneys'fees.

Binding Arbitration. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN YOU AND FANMINDER, its agents, employees, principals, successors, assigns, affiliates (collectively for purposes of this paragraph, "Fanminder") arising from or relating to these Terms of Use, their interpretation or breach, termination or validity, the relationships which result from these Terms of Use (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to these Terms of Use), the Fanminder Service, Fanminder's advertising or any related transaction SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION, JAMS OR THE NATIONAL ARBITRATION FORUM, IN ACCORDANCE WITH THEIR APPLICABLE RULES, OR ANY OTHER ESTABLISHED ALTERNATIVE DISPUTE RESOLUTION PROVIDER MUTUALLY AGREED UPON BY THE PARTIES. The arbitration will be limited solely to the dispute between you and Fanminder. NEITHER YOU NOR FANMINDER SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Any award of the arbitrator shall be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. Each party shall pay its own costs and attorneys' fees. However, if any party prevails on a statutory claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.

Limitations of Actions. Any claim or cause of action arising out of or related to your use of the Fanminder Service must be filed within one (1) year after such claim or cause of action arose, regardless of any statute or law to the contrary. In the event any such claim or cause of action is not filed within such one (1) year period, such claim or cause of action shall be forever barred.

We Saved the Most Boring for Last... General

• The Service may only be used for lawful purposes.
• You acknowledge that you have read, understand, and agree to be bound by the Fanminder Privacy Policy, which may be modified from time to time by Fanminder.
• If a court should find that one or more rights or provisions contained in these Terms of Use are invalid, you agree that the remainder of the Terms of Use shall be enforceable.
• You agree this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
• No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind Fanminder in any respect whatsoever.