|1. Description of Service
Company provides downloadable mobile entertainment content, such as text, graphics, videos, video streams, ringtones, games, news, alerts and other information data (the “content”) via the internet, SMS, MMS, WAP, BREW and other means of mobile content delivery to certain compatible mobile devices (the “Service”). You acknowledge and agree that the Service is for your personal use on the mobile device designated during the Download. You agree that you may not transmit, broadcast, upload to any computer or mobile device, create derivative works of, or make commercial us of the Service, including, but not limited to, any Download(s). You may not, or attempt to (or otherwise authorize, encourage or support others attempts to) circumvent, re-engineer, decrypt, break or otherwise alter or interfere with the Service, including, but not limited to, any Download(s).
2. Registration and Access to Service
2.1 Access to the Service. In order to use the Service, you must have a mobile communications subscription with a participating carrier or otherwise have access to a mobile communications network for which Company makes the Service available as well as any carrier services necessary to download content and pay any service fees associated with any such access. In addition, you must provide all equipment and software necessary to connect to the Service, including, but not limited to, a mobile hand set or other mobile access device that is in working order and suitable for use in connection with the Service. You are responsible for ensuring that your equipment and/or software do not disturb or interfere with Company’s operations. Any equipment or software causing interference shall be immediately disconnected from the Service and Company shall have the right to immediately terminate this Agreement. If any upgrade in or to the Service requires changes in your equipment or software, you must effect these changes at your own expense. Unless explicitly stated otherwise, any new or additional features that augment or enhance the current Service, including the release of new products and services, shall be subject to the terms and conditions of this Agreement.
2.2 Service Plans. COMPANY is offering its services on the basis of single-event usage or as a monthly subscription for a defined period on a renewable basis.
2.2.2 Subscription Service. Subscriptions between you and COMPANY shall begin when COMPANY, upon your request, has provided you with access to the Service (such access may be based on a personal username and password generated for that purpose or on other data that COMPANY deems sufficient for your identification). Access to the Service can be provided by delivering to you downloadable mobile content of the content category you subscribed to (e.g., by delivering a graphical image, video, or news alert SMS) or by enabling you to download the content (e.g., by delivering a WAP-Push link or a PIN for download of the downloadable mobile content presented on COMPANY WAP site, COMPANY WEB site, print or broadcast media, or other sources) or by providing access to the mobile content (e.g., by enabling MSISDN for this product). The subscription period is 1 month, 6 months or 12 months depending on the type of the subscription plan you choose. The Subscription plan and subscription period will be renewed at the end of each period as applicable and a new subscription fee shall become due for the concerned subscription period. The subscription plan shall remain in effect until terminated and/or cancelled by you or Company according to Section 8 of these Terms.
2.3 Registration Data. If you opt to register for the Service on our Website, you agree to: (i) provide true, accurate and complete information about yourself as prompted by the registration form (“Registration Data”) and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If Company has reasonable grounds to suspect that the Registration Data is untrue, inaccurate or incomplete, Company has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). You acknowledge and agree that we may rely on the Registration Data to send you important information and notices regarding your account and our Services. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate Registration Data, including, but not limited to, your failure to receive critical information about the Service or your account. You further agree that we (ourselves or through third party service providers) are authorized to verify such registration data.
2.4 Username and Password. If you opt to register for the Service on our Website, you may be required to establish an account and obtain a username and password. You authorize us to process any and all account transactions initiated through the use of your username and password. You are solely responsible for maintaining the confidentiality of your username and password and must immediately notify us of any unauthorized use of your username and password. You acknowledge and agree that you are responsible for any unauthorized activities, charges and/or liabilities made through the use of your username and password. In no event will we be liable for the unauthorized use or misuse of your username and/or password. Company may need to change usernames allocated to certain of its Services and reserves the right to do so (you will be informed if this is necessary).
2.5 Access without Registration. Company may provide you with access to some Services without you registering as a user, such as sign-up via SMS. In each such case your identification is based on means of identification that we deem appropriate, such as your mobile telephone number.
2.6 License to Download(s). You acknowledge and agree that the Download(s) made available as part of the Service are owned by Company, its affiliate and/or licensors, as applicable, and are protected by intellectual property laws. Company hereby grants, and you hereby accept, a limited, non-exclusive, non-transferable, revocable license to download and use the Download(s) and the Service on a designated compatible mobile device solely for your own personal non-commercial use. You further acknowledge and agree that you may not reproduce, modify, perform, transfer, distribute, sell, create derivative works of or otherwise use or make available the Download(s) except as expressly provided in this Agreement.
2.7 Interruptions or Discontinuation of Service. Company reserves the right at any time and from time to time to modify, suspend, discontinue or permanently cancel the Service, or portions thereof, with or without notice to you. If the Service, or any part thereof, for which you subscribe is permanently discontinued or canceled by Company we will cancel your subscription and reimburse any pre-paid fees related to such Service, except for termination made in accordance with Section 8 of this Agreement.
2.8 The COMPANY reserves the right at any time and from time to time to modify, update, add or delete any and all content without notice to you. Updating the content shall be a normal and integral part of the service, and no representations are made with respect to the ongoing availability of any specific content.
2.9 Third Party Products and Services. We may make available or provide access to products and services of independent third parties either directly or via links to websites operated by such third parties. Such products or services shall be purchased and/or obtained directly from such third party. You acknowledge and agree that COMPANY SHALL NOT BE A PARTY TO, OR IN ANY WAY RESPONSIBLE FOR, ANY TRANSACTION CONCERNING PRODUCTS OR SERVICES MADE AVAILABLE FROM SUCH THIRD PARTIES OR FOR ANY CONTENT OR INFORMATION PRESENTED IN CONNECTION WITH ANY PRODUCTS OR SERVICES OF THRID PARTIES.
3. Conditions of Content Usage
3.1 Content Usage Rules. You acknowledge that the Content may contain security technology that limits your usage of the Content to some or all of the following usage rules, and you agree to use the Content in compliance with such usage rules.
3.1.1 Your use of the Content is conditioned upon your prior acceptance of the terms of this Agreement.
3.1.2 You may only use the content for personal, noncommercial use.
3.1.3 You may only use the content on one single Device.
3.1.4 You may not export, burn or copy the Content unless expressly permitted by this Agreement.
3.1.5 You agree that you will not attempt to, or encourage or assist any other person to, circumvent or modify any security technology or software that is part of the Service or the Content.
3.1.6 The delivery of Content to you does not transfer to you any commercial or promotional use rights in the Content.
4. Your Responsibilities and Acknowledgements
4.1 Compliance with Laws, Regulations and Requirements. You will not use the Service or Content for illegal purposes, but will abide by and comply with both: (i) all applicable local, state, national, and international laws and regulations in your use of the Service or Content (including laws regarding the transmission of technical data exported from the United States), and (ii) all requirements, procedures, policies and regulations of networks connected to the service.
4.2 Non-Interference. You will not interfere with or disrupt either: (i) the use and ejoyment of the Service by other users, or (ii) the Service or servers of networks connected to the Service (including without limitation, any attempt to gain unauthorized access to other computer systems or networks connected to the Service).
4.3 Resale of the Content. You will not resell the Content or the use of or access to the Service.
4.4 Report of Abuse. You will report any violations of the terms of this Agreement by other users of the Service of which you become aware by contacting Space2Phone at support@space2Phone.com.
You acknowledge that Company may collect and process “personal information”(i.e. information that could be used to contact you, such as full name, postal address, phone number or e-mail address), “financial information” (i.e. credit card numbers, bank account information or passwords) or “demographic and usage information” (i.e. information that you submit, or that we collect, that is neither personal information nor financial information but necessary for the proper functioning and billing of our service, such as the date regarding the start and end and the extent of your usage of the service), in connection with the Service. We may pass on your personal information, financial information and or demographic and usage information to your mobile phone service provider to secure collection of fees and such information collected by Company may be stored and processed in the United States, United Kingdom, Germany, Japan or any other country in which Company or its agents maintain facilities. By using the Service, you consent to any such transfer of information outside of your country. Your personal information, financial information and demographic information will be deleted no later than six months after termination of your subscription. Company may store your information beyond this date if that is required by law or contract.
You agree to release, indemnify, defend and hold harmless Company, its parent company, subsidiaries, affiliates, officers, directors, shareholders, contractors, agents, employees, licensors and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys’ fees, made by any third party due to or arising out of or in connection with (a) your use of the Service, and (b) the breach by you of your representations and warranties set forth herein.
7. Disclaimer Of Warranties and Limitation of Liabilities
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO ANY DOWNLOAD(S), IS SOLEY AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR MOBILE DEVICE OR LOSS OF DATA THAT MAY RESULT FROM YOUR USE OR DOWNLOAD. YOU AGREE THAT THE SERVICE IS PROVIDED ON AN “AS IS,” AND “AS AVAILABLE” BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT COMPANY SHALL HAVE NO LIABILITY TO YOU, OR TO ANY THIRD PARTY, FOR ANY MODIFICATION, SUSPENCION, DISCONTINUANCE OR TERMINATION OF THE SERVICE, OR ANY PART THEREOF. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, YOU AGREE THAT COMPANY’S ENTIRE LIABILITY TO YOU OR ANY THIRD PERSON, AND YOUR OR ANY THIRD PERSON’S EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO THE SERVICE PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH SERVICE DURING THE TERM OF THIS AGREEMENT. EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, COMPANY, ITS LICENSORS AND CONTRACTORS (INCLUDING ANY THIRD PARTIES PROVIDING ALL OR PART OF THE SERVICE) SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW IN SUCH STATES.
8. Intellectual Property Rights
Except as otherwise set forth herein, all right, title and interest in and to any intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Service (“Company Intellectual Property Rights”) are owned by Company or its licensors, and you agree to make no claim of interest in or ownership of any such Company Intellectual Property Rights. You acknowledge that no title to the Company Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the Service, other than the rights expressly granted in this Agreement.
The weekly or monthly fees for the subscription plan to the Service you select are available on the Website. You agree to pay your mobile device operator the weekly and/or monthly fee for the Service you select in accordance with the fees in effect at the time of your order. Unless otherwise indicated, the charges shall be invoiced on your mobile operator’s bill. All fees are subject to change upon notice from Company. Company will provide you with reasonable notice of such change. If you do not accept the new fees (which will be applicable on a prospective basis only), you will have 14 days from the date of such notice to cancel your subscription plan and/or your account effective at the end of the calendar month. All fees are due immediately and are non-refundable, except as otherwise expressly noted.
10. Termination and Cancellation of Services
To cancel your subscription plan, send a text message with the text “STOP” to 65279 or such other number as may be designated on our Website, or send an e-mail with the word “Cancel” in the subject line to email@example.com. The termination shall become effective at the end of the billing period in which you gave your notice of termination.
You agree that Company, at its sole discretion, may at any time terminate your use of the Service or individual services provided via the Service and/or change its content offering made available through the Service, if you remain in breach of this agreement for more than 7 days from notice of such breach. Company may cancel all or any of the Services (or individual services provided via the Services) or if Company believes that you have violated or acted inconsistently with this Agreement. You agree that upon termination of your access to the Service under any provision of this Agreement, Company may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Company shall not be liable to you or any third party for any termination of your access to the Service. If you cancel your account or subscription for any reason, Company will not refund any of your fees paid to date, except as expressly provided in this Agreement.
11. General Provisions
11.1 Notices And Announcements. Except as expressly provided otherwise herein, all notices to Company shall be in writing and delivered via overnight courier or certified mail, return receipt requested to:
Ashburn International Holdings, Inc.
Company shall serve notices related to this contract by posting them on the Website or by sending them to the postal address or e-mail address you have given to Company or as a text message to your mobile telephone number associated with your account. Notices sent by mail shall be deemed received seven days after they were sent. Notices posted on the Website or sent by e-mail or as a text message shall be deemed received on the weekday following the day when they were posted or sent.
11.2 Space2PhoneTM, the Space2PhoneTM logo, and other Space2Phone trademarks, service marks, graphics, and logos used in connection with the Service and Content are trademarks or registered trademarks owned by Ashburn International Holdings, Inc. in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Service and Content may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks. All references to the names and logos of companies, likenesses of products produced by other companies included on the Space2Phone Site are for promotional purposes only.
11.3 Severability. You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible consistent with applicable law, consistent with the original intentions of the parties; and the remaining terms and provisions will remain in full force and effect.
11.4 Entire Agreement. You agree that this Agreement constitutes the entire, complete and exclusive agreement between you and us regarding the Service and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement.
11.5 Assignment And Resale. Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. You agree not to resell the Service or any portion thereof.
11.6 Governing Law. This Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the Commonwealth of Virginia, United States of America, excluding its conflict of laws rules. You and we each agree to submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the United States District Court for the Eastern District of Virginia, Alexandria Division for any disputes between us under or arising out of this Agreement. If there is no jurisdiction in the United States District Court for the Eastern District of Virginia, Alexandria Division, for any disputes between us under or arising out of this Agreement you and we agree that jurisdiction shall be in the courts of Fairfax County, Fairfax, Virginia. The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
11.7 Force Majeure. Neither party will be deemed in default hereunder, nor will it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this section (i) will give the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and (ii) will take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this paragraph extends for a period in excess of thirty (30) days in the aggregate, Space2Phone may immediately terminate this agreement.
11.8 Waiver. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of Company. The remedies of Company under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach.
11.9 Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
11.10 Survival. In the event this Agreement terminates as provided herein, Sections 2(b)(c)(e), 4, 5, 6 and 9 of this Agreement shall survive such expiration or termination.