THE FOLLOWING DESCRIBES THE TERMS ON WHICH YOUR ACCESS TO THIS WEBSITE AND ITS SERVICES ARE OFFERED.
Welcome to the User Agreement for onSMS.com, an ooober, Inc. product line (the "Agreement"). This Agreement describes the terms and conditions applicable to your use of services or features available under the domain www.onSMS.com (the "Site"). Throughout this Agreement, "we", "our", "us" or "onSMS" refers to onSMS, its affiliates, employees, directors, officers, agents and representatives. "You" or "your" refers to any individual or entity gaining access to the Site by any means.
If you do not agree to be bound by the terms and conditions of this Agreement, do not use the Site or access our services.
1. Description of onSMS Service
We provide, via the Site, a marketplace for downloadable intellectual property for use on mobile devices (e.g. mobile multimedia content such as pictures, ringtones, music, games, and applications) ("Content") provided by members of the Site who wish to sell such Content to other members of the Site (the "Service"). As such, you may access and use the Site as a member interested in selling licenses in your Content (a "Selling Member") or you may access and use the Site as a member interested in purchasing a license in the Content of Selling Members (a "Purchasing Member"). Certain terms and conditions pertaining to Selling Members and Purchasing Members differ and are described below.
2. Registration and Access to Service
a) In order to use the Service, you must have a registered account from the Site. If you opt to register for the Service, 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 we have reasonable grounds to suspect that the Registration Data is untrue, inaccurate or incomplete, we have 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 the Service. 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 are authorized to verify such Registration Data.
b) If you opt to register for the Service on our Site, you will 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 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. c) 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 our operations. Any equipment or software causing interference shall be immediately disconnected from the Service and we shall have the right to immediately terminate this Agreement or your account. 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.
d) We may provide you with access to the Site without you registering as a user. In such case, your use of the Site is governed by those terms and conditions of this Agreement that are applicable to non-registered users.
a) You represent and warrant that you are the owner or authorized licensee of all right, title and interest in and to any intellectual property, proprietary rights or other rights relating to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Content you upload to the Site ("Seller’s Intellectual Property"). You must be legally able to license the Content, and your Seller’s Intellectual Property contained therein, that you list for sale on the Site.
b) You are obligated to complete the transaction with the Purchasing Member, unless there is an exceptional circumstance, such as the Purchasing Member fails to pay for the Content.
c) Without limiting any other remedies, we may suspend or terminate your account and/or this Agreement if you are found (by conviction, settlement, insurance or escrow investigation, or otherwise) to have engaged in fraudulent activity in connection with the Site. Such fraudulent activity includes, but is not limited to, providing inaccurate Registration Data or alleging to be the owner or licensor of Content found to be the intellectual property of an individual or entity that has not authorized you to make such Content available on the Site.
a) You acknowledge and agree that the Content made available as part of the Service is owned by the applicable Selling Member or his/her/its licensor, and is protected by intellectual property laws. By using the Service, the Selling Member hereby grants and you hereby accept, a limited, non-exclusive, non-transferable, revocable right and license to download and use the object code version of the Content 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 Content except as expressly provided in this Agreement. No license is granted to you by this Agreement in the human readable code, known as the source code, of the Content downloaded on your mobile device, and no rights are granted to you by this Agreement in the Seller’s Intellectual Property or any other rights in respect of the Content downloaded on your mobile device.
b) You are obligated to complete the transaction with the Selling Member, including paying the advertised price for the Content as well as any applicable taxes and/or currency conversion.
c) Without limiting any other remedies, we may suspend or terminate your account and/or this Agreement if you are found (by conviction, settlement, insurance or escrow investigation, or otherwise) to have engaged in activity which violates the User Code of Conduct set out in section 5 herein, or any other fraudulent or illegal activity in connection with the Site. Such fraudulent or illegal activity includes, but not limited to, providing inaccurate Registration Data or violating the provisions of Section 4(a).
5. User Code of Conduct and Disclaimers
(a) The Service includes forums and interactive areas for users and groups of users, including message boards, picture and text messaging, content sharing, blogs and public and group services. When using any forums and interactive areas or when offering or selling Content, you agree not to do any of the following (the "Code of Conduct"):
– Transmit, distribute or otherwise publish through the Service any message, data, information, text or other Content that is unlawful, libelous, defamatory, racist, obscene, pornographic, indecent, lewd, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable;
– Transmit any Content that would constitute or encourage a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, provincial, state, national, or international law;
– Transmit any Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By offering for sale any Content, you represent and warrant that you have the lawful right to distribute and reproduce such Content;
– Use the Service to post any Content that contains any viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, spyware or any other similar software or programs that might damage the operation of a mobile device, computer or other property of any other person, or do anything else that might cause harm to the Service, or your wireless device or Internet service providers, or adversely affect the experience of other users;
– Impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity (It is important for you to protect against unauthorized access to your password and to your computer. Be sure to sign off when finished using a shared computer.); and,
– Distribute or publish unsolicited promotions, advertising or solicitations for funds, goods or services, including junk mail and spam.
(b) Company takes no responsibility and assumes no liability for any Content posted, offered, purchased or sold by you or any third party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of a marketplace for downloadable intellectual property, Company is only a venue and is not liable for any statements, representations, or Content provided by its users in any community or group forum or personal home page.
(c) Company reserves the right to reproduce or remove at its own discretion, any Content posted to the Service.
(d) Company may investigate any violation of the Code of Conduct that comes to Company’s attention and may take any action that it deems appropriate, including issuing warnings, suspension or termination of Service, and/or removal of posted Content. Company will be the sole judge, in its absolute discretion, of whether a user has violated the Code of Conduct.
(e) Company encourages visitors of the Service to report any objectionable message(s) or violations of the Code of Conduct to support@onSMS.net. The Service is not monitored on a 24/7 basis. Company has the right, but not the obligation, to monitor any activity and Content associated with the Service.
(f) Responsibility for Your Conduct. You shall remain solely liable for the Content you offer, sell, purchase or transmit to the Service, including its forums and interactive areas. You agree to indemnify and hold us harmless from any claim, action, demand, loss, or damages (including reasonable legal fees) made or incurred by any third party arising out of or relating to your conduct, your violation of this Agreement including its Code of Conduct, or your violation of any intellectual property or other rights of a third party.
We make no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party sites or services accessible by hyperlink from the Service, or third-party sites linking to the Service. Such linked third-party sites are not under our control and we are not responsible for the content of any such linked third party site or any link contained in a linked third-party site, or any review, changes or updates to such third-party sites. We are providing these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement, or adoption by us of the third-party site or any information contained therein. When leaving the Service, you should be aware that our terms and policies no longer govern, and, therefore, you should review the applicable terms and policies, including privacy and data gathering practices, of that third-party site.
7. Other Copyright and Intellectual Property Terms
a) 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 ("onSMS Intellectual Property Rights") are owned by us or our licensors, and you agree to make no claim of interest in or ownership of any such onSMS Intellectual Property Rights. You acknowledge that no title to the onSMS 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.
b) If you believe that your work has been copied and posted on the Site in a way that constitutes copyright infringement, or your intellectual property rights may have otherwise been violated, please provide our copyright agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Site; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agents, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Our copyright agent for notice of claims of copyright infringement can be reached as follows: support@onSMS.com. onSMS.com will remove the infringing posting(s), subject to the procedures outlined in the Digital Millennium Copyright Act.
9. Interruptions or Discontinuation of Service
We reserve 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.
You agree to release, indemnify, defend and hold harmless onSMS Inc., its affiliates, officers, directors, shareholders, contractors, agents, employees, licensors and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys’ fees, made by and 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.
(a) We shall use our reasonable endeavors to provide the Service but we cannot guarantee that the Site and the services provided through it will be available 24 hours a day, 365 days a year.
(b) All other warranties, conditions, terms and undertakings, express or implied whether by statute, common law, custom, trade usage, course of dealings or otherwise (including without limitation as to quality, performance or fitness or suitability for purpose) in respect of the Service are hereby excluded to the fullest extent permitted by law.
(c) You warrant that:
(1) Your Registration Data is correct, and you will promptly notify us of any changes in your Registration Data;
(2) None of the Content provided by you which is related to this Agreement is or shall breach or infringe the rights of any third party (including copyrights, trade marks, patents, privacy or other personal or proprietary rights); and
(3) None of the Content produced by you which is related to this Agreement:
(i) Contains or will contain or promote anything defamatory, illegal, violent or discriminatory (including anything racist or sexist); or
(ii) Makes any criticism or negative comment in relation to onSMS Inc., onSMS, the Service, or the service provided by onSMS or use any onSMS trade mark or trade name otherwise than as expressly permitted in this Agreement;
(iii) You will at all time act in a manner which reflects favorably on onSMS and will not make any statements or comments which are inconsistent with this Agreement;
(iv) You will promptly notify onSMS in the event of any complaint from or dispute with a Selling Member or Purchasing Member in relation to this Agreement and will take account of onSMS’s reasonable requests in relation to any such dispute or complaint;
(v) You will comply in all respects with any laws or regulations that apply to your obligations under this Agreement and you are responsible for all taxes and charges levied by any government or any authority on you in relation to the performance of your obligations under this Agreement.
(d) You warrant that you are fully authorized to enter into, and perform according to, the terms and conditions of this Agreement.
12. Limitation of Liability
(a) Except in the case of death or personal injury due to negligence or fraudulent misrepresentation from which no limit shall apply:-
(i) We shall not be liable to you for any direct loss in contract, tort, or otherwise arising out of, or in connection with, the performance by us of our obligations under this Agreement in respect of any one event or series of connected events in so far as the loss exceeds the amount paid by you to us, except if such loss is caused by a third party, in which case we shall not be liable at all; and
(ii) We shall not be liable to you for any indirect consequential or economic loss or damage.
(b) You indemnify and will keep us indemnified against any or all demands, claims and liability (whether criminal or civil, in contract, tort or otherwise) for losses, damages, legal costs and other expenses of any nature whatsoever and all costs and expenses (including without limitation legal costs) incurred in connection therewith ("Claims") which arise from any breach of this Agreement by you, or any Claims from a Selling Member or Purchasing Member which do not result from a breach of this agreement by us.
(c) We shall have no liability to or through you for any faulty receipt, distribution or delivery of the Service by any third party, or any reformatting or storage of or editing or change to the Service by any third party.
(d) YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND THE SERVICE, INCLUDING, BUT NOT LIMITED TO ANY USE OF CONTENT, IS SOLELY 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 OFFER, PURCHASE OR USE OF CONTENT. 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 WE SHALL HAVE NO LIABILITY TO YOU, OR TO ANY THIRD PARTY, FOR ANY MODIFICATION, SUSPENSION, DISCONTINUANCE OR TERMINATION OF THE SERVICE OR THE SITE, 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 MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES THAT THE SERVICE OR THE SITE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE OR USE OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE 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 OUR 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, WE, OUR 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 WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A JURISDICTION 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 JURISDICTIONS.
13. General Provisions
(a) Notices. We shall serve notices related to this Agreement by posting them on the Site or by sending them to the e-mail address you have given to us or as a text message to your mobile telephone number associated with your account. Notices posted on the Site 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. If you wish to communicate with us regarding the Service or your account, please use the Contact link (http://www.onSMS.com/html/contacts.jsp) on the Site and include your username and the mobile telephone number associated with your account in your communication.
(b) 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 conditions will remain in full force and effect.
(c) Entire Agreement. This Agreement is accepted upon your use of the Site and is further affirmed by you becoming a Selling Member and/or Purchasing Member of the Service. 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.
(d) 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.
(e) Governing Law. This Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. You and we each agree to submit to the exclusive subject matter jurisdiction, personal jurisdiction, and venue of the Superior Court of Ontario in Toronto, Ontario for any disputes between us under or arising out of this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
(f) Disputes. If there is any dispute about or involving the Site and/or the Service, by using the Site, you agree that the dispute shall be governed by the laws of the Province of Ontario without regard to conflict of law provisions. You are solely responsible for your interactions with other Selling Members and Purchasing Members. We reserve the right, but have no obligation, to monitor disputes between you and other Selling Members and Purchasing Members.
(g) Waiver. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by our authorized representative. Our remedies 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 rights 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.
(h) 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.
(i) Survival. In the event this Agreement terminates as provided herein, Sections 3(c), 4(c), 5, 7, 8, 10, 11 and 12 of this Agreement shall survive such expiration or termination.
(j) English Language. It is the express wish of the parties that this Agreement and any related documents be drawn up and executed in English. Les Parties aux prsentes confirment leur volont que cette Convention soit rdigeen langue anglaise seulement.