Terms and Conditions ("Terms")
Revised Effective 04/07/2011>
U.S. Patent No's 7,403,788 and 7,792,518
IMPORTANT - BY USING THIS WEBSITE ("SITE"), INCLUDING SELECTING THE YES OPTION WHEN YOU DOWNLOAD ANY MATERIAL FROM THE SITE, YOU AGREE TO BE BOUND BY THESE TERMS.
THESE TERMS INCLUDE (I) A WAIVER OF CLAIMS BY YOU AGAINST YOUR WIRELESS CARRIER OR COMPANY'S SUPPLIERS (Section 11); AND (II) YOUR CONSENT THAT ANY DISPUTE WILL ONLY BE RESOLVED THROUGH BINDING ARBITRATION (Section 12), AN OBLIGATION FROM WHICH YOU ARE ENTITLED TO OPT OUT.
These Terms are the terms of an agreement ("Agreement") between Site user ("you") and MDK Media, Inc (the "Company") which govern your use of the Site and all Downloads (as defined below) from the Site (collectively, the "Service").
By your use of the Service you represent that (a) you have read and understood this Agreement and agree to be bound by its Terms, (b) you are the person or entity responsible for the wireless account associated with the mobile number provided, (c) you are responsible for all services used through that wireless account, and (d) you are at least 18 years of age.
If you do not agree to be bound by (or cannot comply with) any of the terms and conditions of this Agreement, do not continue the download process by clicking on "CANCEL" or closing the internet browser window you have opened.
1. DESCRIPTION OF SERVICE. The Service is available via supported wireless devices, making available to you downloadable data, messages, chat services, information and mobile entertainment, such as ringtones, voice mail, games and graphics (collectively, the "Downloads").
2. USE OF SERVICE. You agree that you will not allow unauthorized individuals to use your account as identified by your cellular phone number.
(a) You agree to indemnify and hold harmless, the Company, its partners, parents, subsidiaries, agents, affiliates or licensors, as applicable against any improper, unauthorized or illegal uses of your account.
(b) The Company shall be entitled to rely on the assumption that the person or entity responsible for the wireless account for mobile handset to which content is downloaded is responsible for all use of the Service through that wireless account. Except for a refund you may request when you cancel within the first 30 days of Service, the Company will not issue refunds to persons or entities claiming that they did not authorize the use of their wireless account to receive a Download or that they did not authorize the incurring of any cost or expense in connection with any such Download.
(c) You acknowledge that certain Downloads accessible via the Service will only be supported by certain types of wireless device. For example, to download a polyphonic ringtone, you must have a wireless device that (a) supports polyphonic ringtones, (b) supports text messaging, and (c) has a plan that supports wireless Internet access. Similarly, to download a monophonic ringtone, your wireless device must support monophonic ringtones and your plan must support text messaging. The Company shall not be responsible for any attempted Download not supported by your wireless device, and if you attempt to download any Download that cannot be supported by your wireless device, you agree that you will not be entitled to any refunds or credits. If you fail to receive a Download because of network congestion or unavailability, you may contact the Company by email, and the Company will redeliver such Download. Except for a refund you may request when you cancel within the first 30 days of Service, in no event will the Company provide any refunds to you for the inability to download any Downloads.
(d) You may use the Service only in accordance with the Terms of this Agreement and any amendments, as well as any additional terms that may be presented in connection with any particular feature or function of the Service from time to time.
(e) The Service is for your personal use. You understand and agree that you may not transmit or re-transmit, broadcast or re-broadcast or make any commercial use of the Service, including the Downloads. For example, you may not copy or distribute the Service or the Downloads in any manner not expressly authorized by the Service.
(f) You may not attempt (or authorize, encourage or support others' attempts) to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Service, including the Downloads. You agree to advise the Company promptly of any such unauthorized use(s) or attempt(s). You understand and acknowledge that the Downloads made available as part of the Service are owned or licensed by the Company or its affiliates. You agree to be responsible for all damages, costs and expenses, including reasonable attorney's fees, incurred by the Company as a result of any such unauthorized use or attempts.
(g) The Company grants you a limited, non-exclusive, non-transferable, revocable right to download the Downloads to your compatible device solely for your own non-commercial use. You understand and agree that you may not download, reproduce, modify, display, perform, transfer, distribute or otherwise use the Downloads except as expressly provided in this Agreement. You understand and agree that you may not authorize, encourage or allow any Downloads used or obtained by you to be reproduced, modified, displayed, performed, transferred, distributed or otherwise used by any other party, and you agree that you will take all reasonable steps to prevent any unauthorized reproduction or other use of them. You agree to defend, indemnify and hold harmless the Company for any damage, cost or expense, including reasonable attorney's fees, incurred by the Company resulting from any breach by you of the provisions of this subparagraph.
(h) Please direct any questions concerning the Service to the Company's Customer Service department by e-mail or phone 1800 235 7105.
3. CHARGES / BILLING. By requesting a Download, you authorize your wireless carrier to charge appropriate fees directly to your wireless service bill.
(a) You agree that your wireless carrier is authorized to collect any applicable taxes and impose any applicable premium surcharges that may apply to the use of certain features of the Service
(b) The Company may include in the Service the ability for you to make electronic purchases. You acknowledge and agree that these Terms, govern those purchases. You may withdraw your consent to enter into such further electronic agreements by giving written notice to the Company in the manner described in these Terms or otherwise published by the Company. But you will remain responsible for any charges, costs, or taxes incurred prior to the Company's receipt of that revocation.
4. OBJECTIONABLE OR EXPLICIT CONTENT. The Company is not responsible to you for any content or materials contained in all or part of any Download or any other aspect of the Service that you might find objectionable.
5. INTELLECTUAL PROPERTY NOTICE. The Company respects the intellectual property rights of others, and it expects you to do the same. If you know of or suspect that any use of the Service or the Downloads constitutes copyright infringement, please send a notice to the Company's Customer Service department by email. The notice must contain the following information: (a) a physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner's behalf; (b) description of the copyrighted work(s) that is/are allegedly being infringed; (c) the location of the allegedly infringed work(s); (d) your current contact information (e.g. address, phone number, and email address); (e) a statement that you have a "good faith belief" that the use of the complained-of copyrighted work(s) is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you signed under penalty of perjury that all the information you provide in the notice is accurate and that you are the copyright owner or a person authorized to act on the copyright owner's behalf (all of this collectively is a "Notice"). All trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with the Service are the property of the Company or its affiliates, licensors or licensees. You may not copy, display or use any of these marks without prior written permission of the mark owner. You agree to defend, indemnify and hold harmless the Company for any damage, cost or expense, including reasonable attorney's fees, incurred by the Company resulting from your unauthorized use of the intellectual property rights of others.
6. PROMOTIONS AND ADVERTISING. The Company or its business partners may present advertisements and promotional materials on or through the Service. Your participation in any Company promotional event is subject to the terms and conditions associated with that event. Your correspondence or business dealings with, or participation in promotions of, any third-party advertisers on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third-party. You acknowledge that neither the Company nor its business partners shall be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings with third parties.
7. LINKS TO THIRD-PARTY SITES. The Service may present links to retailers or other third-party websites not owned or operated by, nor under the control of, the Company. These links are provided only as a convenience to you and are not intended by the Company, nor do you consider them as, an endorsement by the Company of those sites or of the content contained therein. Neither the Company nor its business partners are responsible for the availability of these third party sites or the content on those sites. You acknowledge that neither the Company nor its business partners are responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site. You should direct any concerns regarding these third-party sites to those sites' administrators.
(a) Modifications to Terms. The Company may from time to time amend, supplement or modify the Terms and will post a copy of such amended Agreement on this website. If you do not agree to be bound by (or cannot comply with) the Agreement as amended, you agree that your sole remedy is to cease using the Service by texting "STOP" to 21664, or otherwise contacting Company to discontinue the Service. Your continued use of the Service constitutes your knowledge and acceptance of this Agreement and any modifications or amendments to any non-price terms of the Agreement, and you expressly consent and agree to be bound by the amended Agreement. To be sure, your subscription price will not be changed absent your express consent.
(b) Modifications to Service. The Company reserves the right from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice to you. You agree that neither the Company nor its affiliates or licensors shall be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
Except for a refund you may request when you cancel within the first 30 days of Service, the Company will not refund any fees, on the basis that the requested Download is not compatible with your handset. It is your responsibility to test if your phone is compatible with monophonic, polyphonic or truetone ringtones, or with any Download.
10. DISCLAIMERS. You understand and agree that your use of the Service and the Downloads is at your own sole risk.
THE SERVICE AND THE DOWNLOADS ARE PROVIDED "AS IS" AND WITHOUT WARRANTY BY THE COMPANY OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS OR SUPPLIERS (THE "COMPANY'S ENTITIES"), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE COMPANY AND THE COMPANY'S ENTITIES, AS APPLICABLE, EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NONINFRINGEMENT OF THIRD PARTY RIGHTS. IN ADDITION, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE COMPANY AND THE COMPANY'S ENTITIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, AND ALL REPRESENTATIONS OR ENDORSEMENTS, WITH REGARD TO THE SERVICE, THE DOWNLOADS, MERCHANTS, INFORMATION OR PRODUCTS OFFERED OR REFERRED TO ON THE WEBISTE. THERE IS NO WARRANTY THAT THE SERVICE OR THE DOWNLOADS WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE. THE COMPANY OR THE COMPANY'S ENTITIES, AS APPLICABLE, DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR THE DOWNLOADS WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. YOU WILL NOT HOLD THE COMPANY OR THE COMPANY'S ENTITIES, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING THE SERVICE OR USING THE SERVICE, OR THE DOWNLOADS INCLUDING, BUT NOT LIMITED TO, ANY INFECTIONS OR CONTAMINATIONS OF YOUR DEVICES YOU USE TO ACCESS THE SAME OR TO TRANSFER DOWNLOADS THAT MAY RESULT FROM THAT USE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO THE COMPANY OR THE COMPANY'S ENTITIES AS APPLICABLE.
UNDER NO CIRCUMSTANCES SHALL THE COMPANY OR THE COMPANY'S ENTITIES AS APPLICABLE, BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE OR THE DOWNLOADS.
UNDER NO CIRCUMSTANCES SHALL THE COMPANY OR THE COMPANY'S ENTITIES AS APPLICABLE, BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE), WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT, OR OTHERWISE, ARISING OUT OF OR RELATED TO THE PURCHASE OF THE SERVICE OR ANY DOWNLOAD, OR ANY USE OR INABILITY TO USE THE SERVICE OR THE DOWNLOADS, EVEN IF THE COMPANY OR THE COMPANY'S ENTITIES AS APPLICABLE, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, THE COMPANY OR THE COMPANY'S ENTITIES AS APPLICABLE, SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EXCEED $100.
11. WAIVER OF CLAIMS AGAINST YOUR WIRELESS CARRIER AND COMPANY'S SUPPLIERS
(a) Company is the only obligor under this agreement, and the only one providing you the Service. YOU HEREBY VOLUNTARILY, IRREVOCABLY, AND UNCONDITIONALLY RELEASE, ACQUIT, AND FOREVER DISCHARGE AND FULLY WAIVE YOUR RIGHT TO BRING ANY TYPE OF LAWSUIT, LEGAL ACTION, CHARGE, DEMAND, COMPLAINT OR CLAIM OF ANY TYPE AGAINST YOUR WIRELESS CARRIER, ANY OF COMPANY'S SUPPLIERS, OR ANYONE OTHER THAN COMPANY, RELATING TO THE SERVICE.
(b) Accordingly, you also waive all rights under Section 1542 of California's Civil Code, and similar laws of any other state relating to general waivers of claims. And you understand that an operative provision of that law, whose benefit you now waive, provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
12. GOVERNING LAW; ARBITRATION
(a) DISPUTE RESOLUTION: The Company and you each agree to first contact each other with any controversy, claim, or dispute ("Disputed Claim") arising out of or relating to a service agreement between the Company and you , providing a written description of the problem, all relevant documents or information and the proposed resolution. You agree to contact the Company with disputes by calling or writing us. The Company will contact you by letter to your billing address or on your Device.
If such negotiations fail to resolve the dispute within their first 30 days, Disputed Claims must be resolved by binding arbitration of a single arbitrator in accordance with the rules of the American Arbitration Association ("AAA"). The arbitrability of Disputes shall also be determined by the arbitrator. Each party shall bear its own expenses and the parties shall equally share the filing and other administrative fees of the AAA and the expenses of the arbitrator, except that the arbitrator shall be entitled to award a different allocation of costs and fees where the arbitrator determines that a filed claim is frivolous. The arbitration proceeding shall be conducted in the English language, in New York City, NY. Any award of the arbitrator shall be in writing and shall state the reasons for the award. Judgment upon an award may be entered in any Court having competent jurisdiction. The decision of the arbitrator must be based upon the service agreement and applicable law. The decision of the arbitrator must be reduced to writing, is final and binding except for fraud, misconduct, or errors of law, and judgment upon the decision rendered may be entered in any court having jurisdiction
IT IS IMPORTANT THAT YOU READ THIS ARBITRATION CLAUSE. IT PROVIDES THAT YOU MAY BE REQUIRED TO SETTLE ANY CLAIM OR DISPUTE THROUGH ARBITRATION, EVEN IF YOU WOULD PREFER TO LITIGATE THE CLAIM IN COURT. YOU ARE GIVING UP THE RIGHTS YOU MIGHT HAVE TO LITIGATE SUCH CLAIMS BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL THE DECISION, MAY NOT BE AVAILABLE IN ARBITRATION OR MAY BE MORE LIMITED. YOU SHOULD CONSULT LEGAL COUNSEL TO DETERMINE WHETHER THIS ARBITRATION CLAUSE IS APPROPRIATE FOR YOU. YOU CAN OPT OUT OF THE ARBITRATION BY FOLLOWING THE INSTRUCTIONS IN THE LAST PARAGRAPH OF THIS ARBITRATION CLAUSE.
YOU UNDERSTAND THAT UNLESS YOU EXERCISE THE RIGHT TO OPT-OUT OF ARBITRATION IN THE MANNER DESCRIBED BELOW, YOU AGREE THAT ANY DISPUTE WILL BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO HAVE A JURY, TO ENGAGE IN DISCOVERY (EXCEPT AS MAY BE PROVIDED IN THE ARBITRATION RULES), AND TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN COURT PROCEDURES. YOU ALSO AGREE ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN YOURSELF AND THE COMPANY AND WILL NOT BE PART OF A CLASS-WIDE OR CONSOLIDATED ARBITRATION PROCEEDING.
(b) NO CLASS ACTIONS. EVEN IF APPLICABLE LAW PERMITS CLASS ACTIONS OR CLASS ARBITRATIONS, THE DISPUTE RESOLUTION PROCEDURE SPECIFIED HERE APPLIES AND, THE COMPANY AND YOU EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
(c) RIGHT TO OPT OUT. If you do not wish to be bound by this arbitration clause, you must notify the Company in writing within 60 days after signing this Agreement or your rejection of arbitration will not be effective . You must send your request by email. Your request must include your telephone number(s) and a clear statement of your intent, such as "I reject the arbitration clause stated in the Company's Agreement."
(d) GOVERNING LAW. The laws of the state of New York will govern any disputes relating to the Service or these Terms, notwithstanding the conflicts of laws rules of New York or any other jurisdiction.
13. GENERAL. You understand and agree that, except as expressly set forth herein, this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this Agreement. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The Company's failure to pursue any available claim or defense pursuant to this Agreement will not be a waiver of such claim or defense. The headings used in this Agreement are for convenience only, and will have no effect on the interpretation or legal enforceability of the terms herein.
14. ENTIRE AGREEMENT. This is the entire agreement between you and the Company relating to the Service or any of the subject matter herein, superseding any promises or agreements made before or after, orally or in writing.