Terms of Service
Last updated: January 26, 2010
Thank you for choosing the ShoutOUT service (the "Service") of Promptu Systems Corporation ("Promptu"). These Terms of Service (these "Terms") constitute the entire agreement between you and Promptu, under which Promptu authorizes you to download, install and use the ShoutOUT Client Application provided by Promptu (the "Software"), and use the Service. These Terms are exclusively between you and Promptu.
Promptu is solely responsible for providing, maintaining and supporting the Software and the Service and the content thereof, and Apple Computer Inc. ("Apple") bears no responsibility for the Service or the Software, or their content, or their maintenance or support. By installing the Software, you are agreeing to be bound by these Terms. If you are not willing to be bound by these Terms, you should decline these Terms and not install the Software.
All rights that are not explicitly granted in these Terms are reserved by Promptu.
Ownership. Title to and ownership of the Software, any accompanying written materials (the "Documentation"), and any improved, updated, modified or additional parts thereof, and all copyright, patent, trade secret, trademark and other intellectual property rights embodied in the Software and the Documentation, shall at all times remain the property of Promptu or Promptu's licensors.
Grant of License. You are hereby granted a limited, non-transferable license to use the Software on any iPhone or iPod Touch that you own or control and as permitted by the Usage Rules set forth in Section 9.b. of the Apple App Store Terms and Conditions. This license does not allow you to use the Software on any iPod Touch or iPhone that you do not own or control, and you may not distribute or make the Software available over a network where it could be used by multiple devices at the same time.
Personal, Non-Commercial Use. You may use the Service only for your own personal, non-commercial use. Unless expressly authorized by Promptu in writing, you may not:
- market, copy, distribute, resell, or otherwise offer the Service to any other individual or entity;
- attempt to modify, reverse engineer or disassemble the Software, or make any other attempt to obtain source code from the Service or the Software;
- access the Service with software or means other than the Software, properly licensed in conformance with these Terms;
- use the Service or the Software in any way that may adversely affect Promptu's services or the ability of other users to use those services in any way;
- communicate in any way the results of any product testing, competitive benchmarking or other product evaluation outside of your own organization;
- use the Service or the Software for any other commercial or competitive reasons.
Not for Use While Driving. The Service is not intended to be used while driving a motor vehicle or performing any other dangerous activity that requires your attention. Using the Service while driving may severely distract you and be unsafe for both you and other people on the road, and is prohibited under these Terms. Such use may also be illegal.
Automated or Recorded Queries. You may not submit any form of automated or recorded queries unless expressly authorized by Promptu in writing. You may not perform any other form of high volume usage beyond reasonable personal use.
Lawful Purpose and Legal Compliance. You may use the Service and the Software only for lawful purposes. You are responsible for compliance with all federal, state, and local laws applicable to your use of the Service, whether you use it from the United States or any other country. You represent and warrant that (i) you are 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.
Not for Emergency Use. You acknowledge and agree that the Service is neither intended nor suitable for urgent emergency use, and that you will not use it for emergency purposes.
Speech Recognition Results. The Service is designed to decode your voice and then return the text that it thinks you spoke. Both humans and automated speech recognition systems such as the Service will misunderstand or misrecognize what people say from time to time. It is your responsibility to verify that the text returned from the Service is accurate. Occasionally, the Service will misrecognize words you speak and return content that you may find objectionable. The Service and the Software attempt to filter potentially objectionable content. Promptu assumes no liability whatsoever with respect to the failure of the Service to recognize any spoken utterances provided to the Service.
Terms of Purchase. The initial download price for the Software and Service is free and entitles you to create a certain number of text messages using your voice as the primary method of entering the text. Once those free voice credits have been used, you will not be able to create additional text messages using only your voice until you purchase additional voice credits. The only acceptable payment method is using the in-application purchase capability of the Apple iTunes App Store. You must have an Apple iTunes account in order to purchase additional voice credits. If you decide not to purchase additional voice credits, you are able to use the Service to send an unlimited number of text messages using your device's virtual keyboard.
Fees, Costs and Other Expenses. The Service makes use of the data network operated by your wireless service provider to send both data and recorded audio from your device to the Promptu servers, and to return information back to your installed Software. Depending on the data plan you have as part of your service contract with your wireless service provider, you may incur charges from your wireless service provider for use of its networks and/or for specific services such as making phone calls, sending or receiving text messages and/or emails, or other services. You are solely responsible for any and all costs you incur as a result of your usage of the Service.
Product Claims. You and Promptu acknowledge that Promptu, not Apple, is responsible for addressing any claims you or any third party may have relating to the Software or your possession and/or use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; or (iii) claims arising under consumer protection or similar legislation.
Intellectual Property Rights. You and Promptu acknowledge that, in the event of any third party claim that the Software or your possession and use of the Software infringes that third party's intellectual property rights, Promptu, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
NO WARRANTY.YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE AND THE SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND THE SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PROMPTU HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND THE SERVICE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. PROMPTU DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE OR THE SERVICE, THAT THE FUNCTIONS CONTAINED IN, OR PERFORMED OR PROVIDED BY, THE SOFTWARE OR THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF SOFTWARE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR THE SERVICE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROMPTU OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL PROMPTU BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE OR THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF PROMPTU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Promptu's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Term and Termination. These Terms are effective until properly terminated. You may terminate these Terms, and the licenses granted herein, at any time by destroying the Software and the Documentation. These Terms, and the licenses granted herein, automatically terminate if you fail to comply with these Terms. You agree that, upon any termination, you will destroy and permanently erase from any hardware all copies of the Software and the Documentation.
Changes to These Terms. Promptu reserves the right to modify these Terms at any time, without notice, for any reason. Revised Terms will be posted on this shout-out.mobi web page.
Commercial Items. The Software and the Documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation will be licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to these Terms. The Software is "Unpublished - All Rights Reserved Under the Copyright Laws of the United States"
Governing Law. The laws of the State of California, excluding its conflicts of law rules, govern these Terms and your use of the Software and the Service. Your use of the Software or the Service may also be subject to other local, state, national, or international laws.
Third Party Beneficiary. You and Promptu acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries hereunder, and that Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary hereof.
Any questions, complaints or claims with respect to the Software or the Service should be directed to Promptu Systems Corporation, 333 Ravenswood Avenue Building 201 Menlo Park, CA 94025. Telephone +1 650 859 5800. Email firstname.lastname@example.org.
YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS.