1.1 This Agreement is a contract between you and 9 Squared, Inc., doing business as ZED USA ("ZED USA") and governs your use of the website, WAP Deck, Application, all Content (as defined below) and your activity in connection with all ZED USA websites and services (collectively the "Service"). By completing the registration process and accepting this Agreement, you represent that (i) you have read and understood this Agreement and agree to be bound by its terms and conditions and (ii) 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 check the acceptance box below and do not continue the registration process or attempt to access the Service.
1.2 ZED USA may from time to time amend, supplement or modify the terms of this Agreement. If you do not agree to be bound by or cannot comply with the Agreement as amended, your only remedy is to stop using the Service. You will be deemed to have accepted the Agreement as amended if you continue to use the Service.
2.1 Description of Service. The Service is available via a number of sites including ZED USA's websites and includes everything on the applicable site that may exist from time to time. Part of the Service makes available to you downloadable mobile content, such as delivery applications, ringtones, polytones, voice tones, FlixTones, SoundEffectsTones, games and graphics (collectively, the "Content"). Once properly registered and after making proper payment, you will be permitted to download to compatible mobile devices and other hand-held devices certain Content through the Service.
2.2.1 You must be at least 18 years of age to use this Service.
2.2.2 You may use the Service only in accordance with the terms and conditions of this Agreement and any amendments, including any additional terms necessary in connection with any particular feature or function of the Service.
2.2.3 The Service is for your personal use and may only be used in accordance with the terms and conditions of this Agreement. 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 Content. For example, you may not copy or distribute the Service or the Content in any manner not expressly authorized by the Service.
2.2.4 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 Content. You agree to advise ZED USA promptly of any such unauthorized use(s) or attempt(s).
2.2.5 ZED USA's rights to make certain Content available to you may change. In such event, ZED USA will not deliver to you the license connected to such Content. If ZED USA ceases making any such rights available, ZED USA will not refund any portion of your fees, but you may contact customer support to receive an appropriate replacement.
2.2.6 You assume total responsibility and risk for your use of this Service. To the extent permitted by law, ZED USA provides all Services, Content and Information on an "AS IS" basis and does not make any warranties, express or implied, representations or endorsements with regard to the Service, merchants, information, or Content.
2.2.8 As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by these terms and conditions. You may not use the Service in any manner that could damage, disable, overburden, or impair the Service, or network, connected to the Service, or interfere with any other party's use and enjoyment of the Service. You may not attempt to gain unauthorized access to the Service, accounts, computer systems or networks connected to the Service, through any means. ZED USA reserves the right at all times to disclose any information as ZED USA deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in its sole discretion.
2.2.9 The Service may present links to retailers and/or other third-party websites not owned or operated by ZED USA. These links are provided only as a convenience to you. Neither ZED USA nor its business partners are responsible for the availability of these outside sites or their contents. You understand and agree that neither ZED USA 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.
2.2.10 ZED USA reserves the right at any time and 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 ZED USA nor its affiliates or licensors shall be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
2.2.11 By posting messages, inputting data, or engaging in any other form of communication through the Service, you represent and warrant that you own or otherwise control all applicable rights to the content, materials, messages and the like that you post, upload, transmit or display; that the content, materials, messages and the like are accurate; that use of the content, materials, messages and the like that you supply does not violate third-party rights and will not cause injury to any person or entity; and that you will indemnify ZED USA, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for all claims resulting from content, messages, materials and the like that you supply. In addition, you acknowledge and agree that ZED USA may store and/or disclose, as applicable, any such content, messages or material it is required to do so by law, or has a good faith belief that such storage or disclosure is reasonably necessary to comply with court orders or other legal processes; to enforce this Agreement; to respond to any claims that such content (or your use of the same) violates any third party's rights; or to protect the rights, property or personal safety of ZED USA, its business partners, affiliates, licensors and/or licensees, any other ZED USA subscriber or member, or the general public.
2.3.1 The price of any Content purchased through the Service will be the price specified in the Service at the time of your purchase. By purchasing the Content or Service you warrant that you are the authorized purchaser and that the billing information provided is accurate. ZED USA will not issue refunds based upon inaccuracies represented by the purchaser. By approving the purchase of the product, you authorize ZED USA to charge you for the purchase.
2.3.2 Member Subscription: This Service may require you to open an account. You must complete the registration process by providing ZED USA with current, complete and accurate information as prompted by the applicable registration form. You then will choose a password and a user name. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify ZED USA immediately of any unauthorized use of your account or any other breach of security ZED USA will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by ZED USA or another party due to someone else using your account or password. The Service subscription is not transferable, such that you may not authorize other persons to sue your account. Any distribution by you of your account name and password my result in cancellation of your subscription without refund and in additional charges based upon unauthorized use.
2.3.4 Delivery: Delivery of Product(s) purchased pursuant to these Terms will be made directly to your cellular phone. The details of the delivery process will be provided to you at the time of purchase. Delivery is conditional. In order for proper delivery, your cellular phone must be turned on; capable of receiving the Product(s); set to receive text messages (Please note that not all mobile phones allow the storage of new ringtones). Ordered Product(s) can only be delivered when the cellular phone is on a compatible network, a full list of which is available on the order form. Provided that the cellular phone and cellular phone provider's network will accept the Product(s), delivery of the Product will occur within 24 hours of completion of the order. Typically, delivery of the Product(s) occurs within a matter of seconds. We will attempt to deliver the ordered Products a total of three times to the same cellular phone. If the Product(s) has not been successfully delivered, please notify us within 7 days. If you do not notify us within this period, we will presume that the Product(s) has been received. If the Product(s) cannot be delivered, ZED USA will refund the payment, provided that the Product's non-delivery to the cellular phone is not the result of the Purchaser's error. If the Purchaser's error caused the non-delivery, payment will not be refunded.
2.3.5 ZED USA reserves its right to collect applicable taxes and impose premium surcharges for certain features of the Service.
2.3.6 You may be provided the opportunity to register to receive updates from certain applications within the Services These updates may be in the form of text messages. This means you must be subscribed to Text Messaging to obtain these notices and you will be charged for all Text Messages in accordance with your subscription plan.
2.4.1 You may not use the Service to upload, post, transmit, display, perform or otherwise make available to other subscribers, members or third-parties any messages, content or materials that are illegal, obscene, threatening, defamatory or invasive of privacy; violate (intentionally or unintentionally) a contractual, fiduciary or confidentiality obligation or duty you have to any third party; infringe intellectual property or other third-party rights; harm minors in any way; comprise or contain software viruses or other computer code designed to interfere with the functionality of any computer systems, software or hardware; interfere with or disrupt the Service or any networks or servers connected to or by the Service; constitute unsolicited bulk email, political campaigning, commercial solicitation, chain letters, pyramid schemes, mass mailings, or any form of spam; or violate (intentionally or unintentionally) any applicable local, state, national or international law. In addition, you may not use a false email address, impersonate any person or entity (including but not limited to other subscribers, members and employees of ZED USA, its affiliates or licensors), or otherwise mislead other subscribers, members or third parties as to your identity or to the origin of a message or content. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any messages, content or material that you upload, post, transmit, display or otherwise make available through your use of the Service is solely your responsibility.
3.1 In consideration of your payment and your acceptance of this Agreement, ZED USA grants you a non-exclusive, non-transferable, single-user right to download and use the Content on a single hand-held computer or mobile device. This license extends to you and your hand-held computer or mobile device.
3.2 You may not reproduce, copy, transfer or distribute by any means, method or process whatsoever, any of the Content licensed by this Agreement, including by not limited to, transferring or downloading any such Content from one hand-held computer or mobile device to another, to a computer hard drive, or otherwise copying the Content onto any other storage medium.
3.3 This license may not be assigned without the written consent of ZED USA, which right may be withheld by ZED USA in its sole discretion.
3.4 The Content may contain third party Content which requires notices and/or additional terms and conditions. By accepting this Agreement, you are also accepting the additional terms and conditions, if any, set forth therein.
3.5 You may not alter, merge, modify, or adapt the Content pr create derivative works based upon the Content.
3.6 You may not sell, rent, lease, or sublicense the Content.
3.7 ZED USA is not responsible to you for any content or materials constituting all or part of any Content or any other aspect of the Service that you might find objectionable.
3.8 Nothing in this Agreement grants you or authorizes you to grant to anyone else any right to reproduce, copy or distribute by any means, method or process whatsoever any of the Content licensed by this Agreement, including but not limited to, transferring or downloading any such Content to a computer hard drive, or otherwise copying the Content onto any storage medium.
3.9 Nothing in this Agreement grants you or authorizes you to grant to anyone else any right to reproduce, copy or distribute or perform publicly by any means, method or process whatsoever, any sound recording embodying any of the Content licensed under this Agreement.
3.10 If you fail to comply with this Agreement, ZED USA may, in addition to its other remedies, terminate this Agreement and the license it grants you and you must destroy all copies of the Content.
3.11 The foregoing license grants you a limited license to use the Content. ZED USA and its licensors retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Content and all copies thereof. All rights not specifically granted in this Agreement including Federal and International Copyrights, are reserved by ZED USA and its licensors.
3.12 CONTENT WARRANTY DISCLAIMER AND LIMITED LIABILITY. THE CONTENT IS PROVIDED TO YOU ON AN "AS-IS" BASIS. ZED USA PROVIDES NO TECHNICAL SUPPORT, WARRANTIES OR REMEDIES FOR THE CONTENT. ZED USA AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. ZED USA DOES NOT WARRANT THAT THE CONTENT IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE U.C.C. WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. ZED USA SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE CONTENT, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ZED USA, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. (USA ONLY) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
3.13 The Content Warranty Disclaimer and Limited Liability set forth above are fundamental elements of the basis of the Agreement between ZED USA and you. ZED USA would not be able to provide the Content on an economic basis without such limitations. Such Warranty Disclaimer and Limited Liability inure to the benefit of ZED USA's licensors.
3.14 (Outside of the USA) Consumer End Users Only. The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business. The limitations or exclusions of warranties, remedies or liability contained in this Agreement shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
3.15 If ZED USA (a) receives a Notice alleging that you have engaged in infringing behavior or (b) reasonably suspects that your use of the Service or the Content violates ZED USA's or others' intellectual property rights, ZED USA may, in its sole discretion, suspend or terminate your account with or without notice to you. If ZED USA suspends or terminates your account under this paragraph, it shall have no liability or responsibility to you, and ZED USA will not refund any portion of your fees charged to date.
3.16 You may not transfer the Service or any Content out of your handset via any means for any purpose. Any copying, redistribution or other use of the Content is expressly prohibited without the prior written consent of 9Squared.
3.17 ALL DOWNLOADS SHALL EXPIRE THIRTY (30) DAYS AFTER PURCHASE AND NO REFUNDS WILL BE GIVEN FOR EXPIRED DOWNLOADS.
5.1 You agree to indemnify and hold harmless ZED USA and its agents, employees, representatives, licensors, affiliates, parents and subsidiaries from and against any and all claims, actions, demands, causes of action and other proceedings arising from or concerning your use of the Service and the Content (collectively "Claims"), and to reimburse them on demand for any losses, costs, judgments, fees, fines and other expenses they incur (including attorneys' fees and court costs) as a result of any Claims.
5.2 UNDER NO CIRCUMSTANCES SHALL ZED USA AND/OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS ("ZED USA PARTIES") BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE CONTENT, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE CONTENT AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ZED USA OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
5.3 ZED USA'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $50 OR THE AMOUNT PAID BY YOU FOR THE SERVICE AND/OR CONTENT THAT CAUSED SUCH DAMAGE.
5.4 (USA ONLY) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
5.5 THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO ALL ASPECTS OF THIS AGREEMENT.
5.6 UNDER NO CIRCUMSTANCES SHALL ZED USA AND/OR THE ZED USA PARTIES, AS APPLICABLE, BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE AND/OR THE CONTENT.
6.1 Remedies. You understand and agree that any unauthorized use of the Service or the Content would result in irreparable injury to ZED USA and/or its affiliates or licensors for which money damages would be inadequate, and in such event ZED USA its affiliates and/or licensors, as applicable, shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against you. Nothing contained in this paragraph or elsewhere in this Agreement shall be construed to limit remedies or relief available pursuant to statutory or other claims that ZED USA, its affiliates and/or licensors may have under separate legal authority, including but not limited to, any claim for intellectual property infringement.
6.2 Promotions and Advertising. ZED USA and/or its business partners may present advertisements and promotional materials on or through the Service. Your participation in any ZED USA 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 agree that neither ZED USA 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 or as the result of the presence of such third parties on the Service.
6.3 This Agreement shall be governed by the internal laws of the State of Colorado, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Denver County, Colorado or the United States Federal District for the District of Colorado to resolve any disputes arising under this Agreement. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
6.4 This Agreement contains the complete Agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous Agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Content licensed hereunder shall be of no effect. The failure or delay of ZED USA to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach.
6.5 No ZED USA dealer, distributor, agent or employee is authorized to make any amendment to this Agreement. This Agreement supersedes any and all prior agreements, discussions and negotiations between you and ZED USA, and it sets forth the entire agreement and understandings between the parties as to the subject matter of this Agreement. Neither of the parties shall be bound by any terms, conditions, definitions, waivers, warranties or representations with respect to the subject matter of this Agreement other than as expressly provided in this Agreement or duly set forth on or subsequent to the date hereof in a writing signed by a proper and duly authorized representative of whichever of the parties is to be bound thereby.
6.6 If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
6.7 "ZED USA" and other trademarks contained in the Content are trademarks or registered trademarks of ZED USA, Inc, in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Content. This Agreement does not authorize you to use ZED USA's or its licensors' names or any of their respective trademarks.
6.8 If either party breaches, or threatens to breach, any of its obligations under this Agreement, the damages to the other party will be great and irreparable; therefore, either party may apply to a court of competent jurisdiction for injunctive or other equitable relief to restrain such breach or threat of breach, without posting bond and without disentitling such party to any other relief in either law or equity.
6.9 This Agreement shall not be construed to create a joint venture or partnership between the parties hereto. Neither party shall have the right, power, or authority at any time to act on behalf of, to impose any obligation on, or to represent or legally bind the other.
6.10 The enumeration and headings contained in this Agreement are for convenience only and are not intended to have any substantive significance interpreting this Agreement.
6.11 You agree that ZED USA may audit your use of the Content for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Content by you other than in full compliance with the terms of this Agreement, you shall reimburse ZED USA for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.
6.12 Any correspondence, notice or request permitted to be given under or in connection with this Agreement or the subject matter hereof shall be sent by prepaid, certified, first class mail, or courier service with receipt of delivery obtained directly to ZED USA