TERMS OF USE

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY

  1. Your Acceptance

    The top level domains WhatsUp.net and their Websites (individually and collectively the "Website") are owned and operated by Focalstream Commerce, Inc. ("WhatsUp.net") and/or its affiliates and subsidiaries for your and others' personal, non-commercial enjoyment, subject to these terms and conditions of use and all modifications thereto ("Terms and Conditions"), and the rules that may be published from time to time by WhatsUp.net. BY USING THE WEBSITE, WHETHER OR NOT YOU CREATE A MEMBERSHIP ACCOUNT, YOU ARE DEEMED TO HAVE AGREED TO THESE TERMS AND CONDITIONS OF USE. WhatsUp.net may change the Terms and Conditions from time to time and at any time, and without actual notice to you. All such changes to these Terms and Conditions will appear on the Website. Material changes to the Terms and Conditions will be posted one month before they are effective. All non-material changes will become effective on the date they are posted. By using the Website after we post any changes to the Terms and Conditions, you agree to accept those changes, whether or not you have reviewed them.

  2. Website Access & Membership Information

    1. WhatsUp.net hereby grants you permission to use the Website as set forth in this Terms and Conditions, provided that: (i) your use of the Website as permitted is solely for your personal use; (ii) you will not copy or distribute any part of the Website in any medium except according to WhatsUp.net's policies for such set forth in these Terms and Conditions without WhatsUp.net's prior authorization (to do so, please see our Reprint and Permissions page); (iii) you will not alter or modify any part of the Website other than as may be reasonably necessary to use the Website for its intended purpose; and (iv) you will otherwise comply with the Terms and Conditions.
    2. The Website and all Website functionality, including User Submissions, (defined below), message boards, SMS messaging, or other interactive or telephonic service that may be available to you on or through the Website (collectively, the "Services") are provided to you solely for your enjoyment and entertainment purposes. Some Services require you to create a membership account. You may never use another's account without permission. When creating your account, you must provide accurate and complete information, and WhatsUp.net reserves the right to terminate your subscription and refuse any and all current or future use of the Services if you provide inaccurate or incomplete information. You understand that you are solely responsible for maintaining confidentiality of any passwords you create as a part of the Services. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. It is absolutely necessary that you immediately notify WhatsUp.net of any breach of security or unauthorized use of your account. If such a breach has occurred, contact us by email at abuse@whatsup.net. You may never use another's account without permission. Although WhatsUp.net will not be liable for harm or losses caused by any unauthorized use of your account, by your conduct, you may be liable for the harm or losses of WhatsUp.net or others due to such unauthorized use.

  3. Privacy Policy

    Please read our Privacy Policy which describes the personally identifiable information (the "Personal Information") we collect, use, disclose, manage and store.

  4. Intellectual Property Rights

    The content on the WhatsUp.net Website, except User Submissions (as defined below), including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like ("Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to WhatsUp.net, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on the Website is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever, except as permitted by these Terms and Conditions, without the prior written consent of the respective owners. WhatsUp.net reserves all rights not expressly granted in and to the Website and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Submissions of third parties obtained through the Website for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the WhatsUp.net Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the WhatsUp.net Website or the Content therein.

  5. User Submissions

    1. The WhatsUp.net Website may now or in the future permit the submission of writings, art works or other visual images submitted by you and other users ("User Submissions") and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, WhatsUp.net does not guarantee any confidentiality with respect to any submissions.
    2. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize WhatsUp.net to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service. For clarity, you retain all of your ownership rights in your User Submissions, but license it exclusively to WhatsUp.net. However, by submitting the User Submissions to WhatsUp.net, you hereby grant WhatsUp.net: (a) a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, exclusive right and license to (i) use, reproduce and distribute your User Submissions within the Website as permitted by you through your interactions on the Website, and (ii) use, distribute, reproduce and make derivative works (and to authorize third parties to use and reproduce) any of your User Submissions in any or all media for marketing and/or promotional purposes in connection with the Website or any other part of WhatsUp.net's business, provided that in the event that your User Submissions appears publicly in material under the control of WhatsUp.net, and you provide written notice to WhatsUp.net of your desire to discontinue the distribution of such User Submissions in such material (with sufficient specificity to allow WhatsUp.net, in its sole discretion, to identify the relevant User Submissions and materials), WhatsUp.net will make commercially reasonable efforts to cease its distribution of such User Submission following the receipt of such notice, although WhatsUp.net cannot provide any assurances regarding materials produced or distributed prior to the receipt of such notice; (b) the perpetual and irrevocable right to delete any or all of your User Submissions from WhatsUp.net's servers and from the Website, whether intentionally or unintentionally, and for any reason or no reason, without any liability of any kind to you or any other party; and (c) a royalty- free, fully paid-up, perpetual, irrevocable, exclusive right and license to copy, analyze and use any of your User Submissions as WhatsUp.net may deem necessary or desirable for purposes of debugging, testing and/or providing support services in connection with the Website. Further, you agree to grant to WhatsUp.net a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, exclusive, sublicensable right and license to exercise the copyright, publicity, and database rights you have in your account information, including any data or other information generated by your account activity, in any media now known or not currently known, in accordance with our privacy policy as set forth at the Privacy Policy page; (d) a license to use, reproduce, distribute, display, and perform the User Submissions in connection with the WhatsUp.net Website and WhatsUp.net's (and its successor's) business, including without limitation for promoting and redistributing part or all of the WhatsUp.net Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the WhatsUp.net Website a license to access your User Submissions through the Website, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The foregoing license granted by you terminates once you remove or delete a User Submission from the WhatsUp.net Website.
    3. In connection with User Submissions, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant WhatsUp.net all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage WhatsUp.net or any third party; (iii) submit material that is unlawful, defamatory, libelous, harassing, hateful, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business: (v) impersonate another person. WhatsUp.net expressly disclaims any and all liability in connection with User Submissions. WhatsUp.net does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and WhatsUp.net will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights. WhatsUp.net reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to defamatory material. WhatsUp.net may remove such User Submissions and/or terminate a User's access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.
    4. You understand that when using the WhatsUp.net Website, you will be exposed to User Submissions from a variety of sources, and that WhatsUp.net is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that may be inaccurate, or that you may find offensive or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against WhatsUp.net with respect thereto, and agree to indemnify and hold WhatsUp.net, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.

  6. User Conduct

    Without limitation of the foregoing, you agree to not use the Website or Services to:

    1. Upload, post, publish, e-mail, reproduce, distribute or otherwise transmit any information, data, text, music, sound, photographs, graphics, video, messages or other materials, including any User Submissions, that is unlawful, harmful, threatening, embarrassing, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, deceptive, fraudulent, contains explicit or graphic descriptions or accounts of sexual acts, invasive of another's privacy, or hateful;
    2. "Stalk" another;
    3. Upload, post, publish, e-mail, reproduce, distribute or otherwise transmit any Content that victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
    4. Harm minors in any way;
    5. Impersonate any person or entity, including, but not limited to, a WhatsUp.net official, or falsely state or otherwise misrepresent your affiliation with a person or entity;
    6. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content or User Submissions transmitted to or through the Web Site;
    7. Upload, post, publish, e-mail, reproduce, distribute or otherwise transmit any Content or User Submissions that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
    8. Upload, post, publish, e-mail, reproduce, distribute or otherwise transmit any Content or User Submissions that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
    9. Upload, post, publish, e-mail, reproduce, distribute or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "Spam," "chain letters," "pyramid schemes," or any other form of solicitation;
    10. Upload, post, publish, e-mail, reproduce, distribute or otherwise transmit any material that contains software viruses, Trojan horses, worms, time bombs, cancelbots, or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment or any other similarly destructive activity, or surreptitiously intercept or expropriate any system, data or personal information;
    11. Act in a manner that negatively affects other users' ability to engage in the Website or Services;
    12. Engage in any activity that is contrary to or which would adversely affect the purpose or intention of the Website or Services, including but not limited to, actually or attempting to manipulate, corrupt or otherwise affect the outcome of the Services, in whole or part, by, among other methods, subscribing another party without their authorization or registering multiple subscriptions under the same or different names;
    13. Interfere with or disrupt the Website Service or servers or networks connected to the Website or Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Website or Service;
    14. Intentionally or unintentionally violate any applicable local, state, national or international law; or
    15. Harvest, collect or store information about the users of this Website or the User Submissions, so-called “phishing,” or use such information for any purpose inconsistent with the purpose of this Website or for the purpose of transmitting or facilitating transmission of unsolicited bulk electronic mail or communications.

  7. Copyright Owners

    If you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

    1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
    2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
    3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
    4. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
    5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
    6. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    WhatsUp.net's designated Copyright Agent to receive notifications of claimed infringement is: Copyright Agent, P.O.Box 123, Saint Charles, IL 60174, email: copyright@whatsup.net. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to WhatsUp.net customer service through http://www.whatsup.net. You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid.

  8. External Links

    The Website may contain links to other websites. WhatsUp.net is not responsible for the privacy practices or content of other websites. When you leave a WhatsUp.net Website, WhatsUp.net advises you to read the privacy statements of each and every website that collects personally identifiable information. The presence of external links on the Website does not imply WhatsUp.net's endorsement of or association with the linked site. These Terms of Use apply solely to WhatsUp.net's Websites. In no event shall WhatsUp.net be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the linked sites or the information or the material accessed through these linked sites.

  9. Contests

    From time to time, WhatsUp.net may offer as part of the Services, either on or through the Website, contests, promotions, simulations or games (collectively, "Contests"). To participate in Contests, players may be required to complete a registration form. Upon submission, all registrations become the exclusive property of WhatsUp.net. You agree to release WhatsUp.net and its agents, advertisers, sponsors or promotional partners, from all liability arising from participation in any of Contest located on, or accessed through, the Website. WhatsUp.net is not responsible for technical, hardware or software failures of any kind, lost or unavailable network connections, or failed, incomplete, garbled or delayed computer transmissions which may limit your ability to participate in any Contest.

    You agree to be bound by the rules of any Contest, if any, and by the rules of fair play and consideration of fellow users. Violators of any of the rules or guidelines for behavior published on the Website, or the site where the Contest is conducted, are subject to immediate disqualification and revocation of their membership. WhatsUp.net is under no obligation to award any prize to any user who violates a published rule or guideline.

    Some Contests may offer prizes. All prizes are subject to the official game or contest rules published with that Contest.

    WhatsUp.net reserves the right to cancel, terminate or alter any Contest or the rules thereof at any time without prior notification.

  10. Age of Majority

    The website is designed to appeal to adults; WhatsUp.net does not knowingly solicit any information from children nor does WhatsUp.net knowingly market or otherwise target Websites to children. If WhatsUp.net becomes aware that you are under the legal drinking age in the country or other territory in which you are located at the relevant time and has registered without verifiable parental consent, WhatsUp.net will remove your personal information from our files. You agree to abide by any such restrictions, and not to help anyone avoid these restrictions.

  11. Warranty Disclaimer

    YOU AGREE THAT YOUR USE OF THE WHATSUP.NET WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WHATSUP.NET, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF. WHATSUP.NET MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONSIN ANY CONTENT OR FOR 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 WHATSUP.NET WEBSITE. WHATSUP.NET DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WHATSUP.NET WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WHATSUP.NET WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

  12. Limitation of Liability

    IN NO EVENT SHALL WHATSUP.NET, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WHATSUP.NET WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER ORNOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

    YOU SPECIFICALLY ACKNOWLEDGE THAT WHATSUP.NET SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

    The Website is controlled and offered by WhatsUp.net from its facilities in the United States of America. WhatsUp.net makes no representations that the WhatsUp.net Website is appropriate or available for use in other locations. Those who access or use the WhatsUp.net Website from other jurisdictions do so at their own volition and are responsible for compliance with local law.

  13. Indemnity

    You agree to defend, indemnify and hold harmless WhatsUp.net, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the WhatsUp.net Website; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the WhatsUp.net Website.

  14. Ability to Accept Terms of Service

    You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service.

  15. Assignment

    These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by WhatsUp.net without restriction.

  16. General

    You agree that: (i) the WhatsUp.net Website shall be deemed solely based in Illinois; and (ii) the WhatsUp.net Website shall be deemed a passive website that does not give rise to personal jurisdiction over WhatsUp.net, either specific or general, in jurisdictions other than Illinois. These Terms of Service shall be governed by the internal substantive laws of the State of Illinois, without respect to its conflict of laws principles. Any claim or dispute between you and WhatsUp.net that arises in whole or in part from the WhatsUp.net Website shall be decided exclusively by a court of competent jurisdiction located in DuPage County, Illinois. These Terms of Service, any artist representation agreements and any other legal notices published by WhatsUp.net on the Website, shall constitute the entire agreement between you and WhatsUp.net concerning the WhatsUp.net Website. If any provision of this agreement is in conflict with a provision in a signed artist representation agreement, the artist representation agreement provision shall prevail. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and WhatsUp.net's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. WhatsUp.net reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the WhatsUp.net Website following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND WHATSUP.NET AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WHATSUP.NET WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

LAST UPDATED: 5/4/2010