1.) POLTERGEIST SERVICE
Poltergeist is a global messaging communication solution where its subscribers can exchange text and multimedia content between them using mobile terminals through an Internet data connection. The text messages and multimedia content that users exchange, the "user content", is ciphered end-to-end when transmitted through the network to ensure confidentiality and integrity protection. Poltergeist employs advanced cryptographic techniques and methods to protect this data in transit.
For using Poltergeist you need an Internet data connection. Costs associated to the network connection are outside the Poltergeist service and may be charged to you through your service provider. Poltergeist operates over any Internet access type, such as WiFi, GPRS, UMTS, LTE, HSDPA, etc. We recommend you subscribing to a data plan before using Poltergeist. Even when you are not explicitly sending messages to other users, Poltergeist service may send data between your mobile device and the service platform, which may incur traffic costs. This is necessary to keep the service running and to ensure you can receive messages sent to you by other users. Remember that while roaming outside your service provider's home network, data traffic may incur in extra costs not covered by a data plan. If you don't want Poltergeist to send any data, you may set the state of the Poltergeist application to "offline" or logout from the service.
By registering to Poltergeist, you accept Poltergeist to collect your e-mail address, which is used solely for verifying your account and ensuring the correct operation of the service. You represent and warrant that the information you provide is current, truthful, complete and accurate. You may not impersonate other individuals by using their e-mail address and you may not use their data to violate any third party rights, such as privacy and confidentiality rights or their right to use Poltergeist in any form. You may as well not use third party e-mail addresses to abuse of the service or to spam persons with unsolicited messages. The Company reserves the right to take legal action against you if such violation or abuse of the service is reasonably suspected.
If you have reasonable information to believe that a third party is misusing, or has misused, your account data, you shall notify this evidence to the Poltergeist service at email@example.com.
Poltergeist allows you sending text messages and multimedia files like pictures, videos, audio, etc. to other users; your "user content". You represent and warrant that:
a) You are in possession of all necessary rights, consents or permissions to send your user content and you authorize the Company to encrypt and deliver such content to the recipients selected by you through the service. You grant the recipients of your user content a non-exclusive right to access, display and store your user content through the means provided by the service and to disclose this content to the Company if there is reasonable evidence that the user content may be inappropriate according to c), d) or e).
b) You authorize the Company to temporarily store your user content in network repositories, servers or databases for the purpose of delivering the content to all designated recipients and as long as this delivery is not deemed completed by the service. You acknowledge that the Company may, at its own discretion, delete or remove any content pending for delivery after a reasonable time defined, solely by the Company or upon determination that the content is inappropriate according to c) or d)
c) You will not send any content 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 send the content.
d) You will not send any content that is unlawful, obscene, defamatory, libelous, threatening, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate.
e) You authorize the Company to deliver user content sent to you by other users of the service and you understand and accept that the Company has no control over the nature, ownership, rights and origin of that content and whether the delivery of that user content to you infringes any third party rights. The Company shall not be liable for any inappropriate or unlawful user content sent to you by other service users. You may block other service users in the System from sending you user content through the service.
Intellectual Property Rights Infringement
As a secure end-to-end communication solution, the Company does not have access and cannot screen any user content exchanged through the service. The user content traverses the service and may be stored temporarily by the service stored in encrypted and not encrypted form. Only the sender and recipient(s) of the user content may decrypt it and access it. Therefore, once the user content is delivered to service users and stored in their devices, the Company has no means to remove such user content remotely and cannot prevent that those users make copies of the user content.
2. LICENSING RIGHTS
You ensure herewith that you are legally authorized to use the service under any applicable laws in your jurisdiction. If you do not meet these conditions, you may not use the service and you must uninstall the Poltergeist Application from your mobile device. By accepting these terms and subject to your compliance to them, the Company grants you a limited, personal, non-exclusive, non-commercial, non-assignable, non-transferable license to download and install the Poltergeist Application on a mobile device or personal computer (Desktop or Laptop) and use the service under the terms, conditions and obligations defined herein.
3. YOUR OBLIGATIONS
a) You may not decompile, disassemble, or otherwise reverse engineer the service, including any component, function, protocol, algorithm or software contained therein.
b) You may not transmit any portion of the service over a network, by telephone, or electronically by any means except as necessary to install your licensed copy of the Poltergeist Application
c) You will not interfere with or disrupt the integrity or performance of the service or the data contained therein.
d) You may not sell, transfer or convey the product to any third party.
e) You are solely responsible for ensuring that your use of the service is permissible under and in compliance with the laws of your jurisdiction.
f) You understand that the export of this service to certain countries is prohibited by German law. You agree that you are not located in a country where due to export restrictions under German law, the service may not be provided to consumers and that you are not a person who is prohibited due to export restrictions under German law, to use the service.
h) You ensure that you explicitly covenant to grant the Company the right to limit, suspend, or terminate the license and the usage of the service at the Company's own discretion, without further notice, with immediate effect, without any liability for any damages or other remedies in case that there is any suspicion of a violation of law or these terms by you. Upon termination of the Agreement between you and the Company all license rights granted shall be terminated and any usage of the service by you shall be ceased.
4. COMPLIANCE WITH APPLICABLE LAWS OF YOUR JURISDICTION
You expressly confirm to be legally entitled to enter this agreement. If you are under a jurisdiction which interdicts or limits the use of encryption software, you may not enter into this agreement and may not use the service. By entering into this agreement you expressly state to have confirmed that your use of this service is permitted.
5. WARRANTY DISCLAIMER
a) THE SERVICE AND ALL ITS COMPONENTS, INCLUDING THE POLTERGEIST APPLICATION, POLTERGEIST SERVICE AND POLTERGEIST WEBSITE, ARE PROVIDED "AS IS", WITH NO WARRANTIES WHATSOEVER; THE COMPANY. ITS AGENTS, AUTHORIZED DISTRIBUTORS, CHANNEL PARTNERS OR ASSOCIATED SERVICE PROVIDERS, DO NOT, EITHER EXPRESSED, IMPLIED OR STATUTORY, MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR A PARTICULAR PURPOSE.
b) Neither the Company nor any other party makes any representation that the service or its output, including the user content, is appropriate, legal or available for use under the laws of any country. You are responsible for ensuring that your use of the service and the user content you send is permitted under and compliant with the laws in your and your recipient's jurisdiction.
c) The service protects your user content in transit when sent to other service users. This protection is based on advanced cryptographic algorithms and standard security practices. The Company has no knowledge of available ways to decrypt this user content and has not included any means within the service that would enable the Company or any third party, except the service users expressly selected by you to receive it, to decrypt it. However, as with any security related product or service, there is always a chance of a successful attack on the security and the algorithms employed, as well as on the user content before it is encrypted and after is decrypted by the service in your device. Accordingly, the Company does not assume any responsibility and shall not be liable for damages that might be caused by any unauthorized access to the user content or by any breach of its integrity.
d) You acknowledge that the service may be affected by interruptions, disruptions, errors, bugs, maintenance or service denial. You also acknowledge that the Company has no control over user content sent to you by other service users, including malicious or inappropriate content, or content infringing yours or third party intellectual property rights.
e) If any jurisdiction does not allow the exclusion of implied warranties contained in this agreement, then implied warranties in those jurisdictions will be excluded to the maximum extent permitted by law.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CHANNEL PARTNERS OR ASSOCIATED SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), LIABILITY OR ANY OTHER FORM OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, SERVICE INTERRUPTION, LOSS OF INFORMATION, INAPPROPRIATE USER CONTENT, INAPPROPRIATE THIRD PARTY BEHAVIOR, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. INTELLECTUAL PROPERTY AND INDEMNIFICATION
a) Any and all Intellectual Property Rights (IP Rights) to or arising from the service are and shall remain the exclusive property of the Company. Nothing in this Agreement intends to transfer any such IP Rights, or to vest any such IP Rights to, you. You are only entitled to the limited use of the IP Rights granted to you under these terms. You will not take any action to jeopardize, limit or interfere with the IP Rights. Any unauthorized use of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws.
b) You agree to indemnify, defend and hold the Company harmless from and against any and all liability and costs, including reasonable attorneys' fees incurred by said parties, in connection with or arising out of violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or violation of any rights of any third party, or use or misuse of the service, or communication made by means of this service.
a) Without limiting other remedies, the Company may, at its own discretion and without further notice, limit, suspend, or terminate this license and the usage of this service with immediate effect.
b) Upon termination of this Agreement, all license rights granted hereby shall terminate and any usage of the service by you shall cease.
c) The Company shall not be liable in respect to any damage caused by the termination of this agreement.
d) You may terminate this agreement by ceasing using the service, deleting your service account from the Poltergeist Application and uninstalling the Poltergeist Application in your device. All provisions of the agreement that by their nature should survive its termination will survive after termination of the agreement.
This Agreement shall be binding upon and inure to the benefit of You and the Company. No assignment or transfer of any rights shall be made by you without the prior written consent of the Company. The Company may assign this Agreement to any parent, subsidiary, or affiliate.
Any term or provision of this Agreement that is determined to be invalid or unenforceable by a court of competent jurisdiction shall be ineffective only to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement and such invalid or unenforceable provision shall be modified so that it is enforceable to the extent permitted by applicable law.
12. DISPUTE RESOLUTION AND GOVERNING LAW
You herewith confirm that you have agreed that these above obligations shall be governed by and construed in accordance with the laws of Germany without giving effect to any conflict of laws or provisions whether contained in German law nor the laws of your current state or country of residence. Any legal proceedings arising out of or relating to these obligations will exclusively be subject to the jurisdiction of the courts of Frankfurt, Germany.
Last Modified: March 21, 2016.