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Effective March 1, 2006
Last Revised December 18, 2008
FLYCELL, INC. ("Flycell") may at any time amend, supplement or modify the terms of this Agreement, and will post a copy of such amended Agreement at www.Flycell.com. You must be at least thirteen (13) years of age to use the Flycell Services. By providing information to Flycell through the account registration page for new customers or any other part of the Flycell Sites, you represent to Flycell that you are 13 years of age or older. If you are between 13 and 17, you represent that you received parental permission both to complete the registration process and to download content to your cell phone.
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 registration process or attempt to access any part of the Service. Flycell reserves the right to deny registration of any individual to the Flycell Services and to deny access to any Site.
The Services are available at websites on the world wide web owned and/or operated by Flycell or its affiliates (the "Sites") and includes everything on the Sites that may exist from time to time, including, without limitation, downloadable mobile entertainment, such as ringtones, wallpaper, games and graphics (collectively, the "Downloads") as well as participating in an online social networking website (collectively, the "Services"). PLEASE NOTE THAT THE SOCIAL NETWORKING WEBSITE IS FREE OF CHARGE BUT ALL OTHER SERVICES, INCLUDING THE DOWNLOADS, ARE PAID SERVICES. Once properly registered and after making proper payment, you will be permitted to download to compatible wireless telephones and other compatible devices certain Downloads through the Service. Through the Service, you will also be able to create buddy lists, sample streaming versions of certain Downloads and send messages, content and information to other members, subscribers and third parties through one or more means (the "Messaging Systems"). We make no representation as to compatibility of your wireless phone with our Sites.
You agree that you will not allow others to use your member name, password and/or account. You agree to indemnify and hold harmless Flycell, its partners, parents, subsidiaries, agents, affiliates and/or licensors, etc. as applicable, for any improper, unauthorized or illegal uses of your member name, password and/or your account. This includes illegal, unauthorized or improper use by anyone to whom you have given permission to use your member name, password and/or account.
If you order a Download or other product and have problems, so that you are unable to download the product, let us know immediately by filling out our Support Form located at www.flycell.com. If we don't hear from you within seven days from the first date that the download was attempted, you will have been deemed to have successfully received the Download.
A refund will be issued if there is a technical issue that results in an inability of the user to receive their Download. Such issues may be corrupt files, system errors, or other unforeseen difficulties that may arise. If, however, you choose a phone or carrier we do not support, if you do not have text messaging and/or Internet enabled on your phone, or if you are simply dissatisfied with the actual product that has been correctly delivered, then YOU SHALL NOT BE ENTITLED TO A REFUND.
We will not share or use any details from your payment (except to arrange and/or clarify payment terms) with anyone outside Flycell and various third party partners.
You may use the Service only in accordance with the terms and conditions 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. The Service is for your personal and non-commercial use.
You understand and acknowledge that the Downloads made available as part of the Service are owned by Flycell, its business partners, affiliates and/or licensors, etc. as applicable, and are protected by intellectual property laws. Flycell 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 agree that you will take all reasonable steps to prevent any unauthorized reproduction and/or other use of downloads.
When you buy a product or service from Flycell, we will charge you the price that is advertised at that time. We may periodically change the advertised price at our sole discretion.
You may Pay-by-Phone using any of the following carriers AT&T, T-Mobile, Sprint, Verizon Wireless, Boost, Alltel or Cellular One. By making a purchase from Flycell that is billed to a cell phone account, you confirm you are the owner of the phone or have permission of the owner to incur these charges.
If you are not the owner of the wireless phone you intend to use for your participation in our Services, you should always obtain the permission from the owner before participating. If you are under 18 you should get parental permission and consent.
Flycell's rights to make certain Downloads available to you may expire. In such event, Flycell will not deliver to you the license necessary to play back any such Downloads after the end of the period in which such rights expire. If Flycell ceases making any such rights available, Flycell will not refund any portion of your fees, but you may contact customer support to the address below to receive appropriate replacement rights.
By completing the registration process, you authorize Flycell to charge the appropriate fees (including taxes or premium surcharges) to your mobile telephone invoice, as selected by you, and if you select the monthly fee subscription plan, you authorize the continued billing each month until you cancel such subscription. Message & Data Rates May Apply. If your billing information changes (e.g., new cell phone number or change of carrier), you must update that information in "My Account." If you cancel your account or subscription for any reason, Flycell will not refund any of your fees paid to date. Monthly subscribers are billed on a 30-day cycle, which begins on the first day you sign up for the subscription and ends 30 days thereafter (each, a "Subscription Month"). We will issue a charge to your cell phone invoice on the first day of each Subscription Month. Flycell services provided by Acotel Interactive.
The charges will be billed to your wireless phone bill or deducted from your prepaid balance. You confirm you are the owner of the phone or have permission of the owner to incur these charges. If you are under 18 you confirm that you have parental permission and consent to incur these charges. You understand that you will be charged these fees regardless of whether you complete your Downloads. Do not enter your personal PIN code unless you have read, understand and agree to these terms and conditions. Customers may stop this subscription service by sending the word STOP in a text message to number 69999 or by contacting Customer Care. Subscription cancellation will become effective at the conclusion of the Subscription Month in which we receive the cancellation request for monthly subscribers. Weekly subscribers will be canceled immediately upon request. Standard text and picture messaging rates apply.
ClubPack: Supported carriers: Verizon Wireless, AT&T, T-Mobile, Sprint, Boost, and Virgin. $9.99 per month; includes 10 credits per month used to download products and services including ringtones, wallpapers, games, applications, and SMS services. (For T-Mobile and Verizon Wireless customers, games, applications, and Mobile Match Up are not supported). The account holder must authorize all purchases. Charges will be billed to the user's mobile phone bill. Monthly subscription will continue to renew until cancelled. Message & Data Rates May Apply. To cancel, text STOP CLUB to 69999. For more information, text HELP CLUB to 69999 or call 1-800-580-0017.
Clubpack Unlimited: $19.99 per month, includes unlimited downloads. This is for AT&T and Sprint customers only. Charges will be billed to the user's mobile phone bill. Charges will continue until cancelled by the user. Message & Data Rates May Apply. To cancel text STOP to 69999. For help text HELP to 69999 or call 1-800-580-0017.
SuitePack (52222): $9.99 per month includes 12 credits per month used to download products and services including ringtones, wallpapers, and SMS services. This is for AT&T, Sprint, T-Mobile and Verizon Wireless users only. Games not available for Verizon Wireless users. Charges will be billed to the user's mobile phone bill. Message & Data Rates May Apply. To cancel, text STOP to 52222. For more information, text HELP to 52222 or call 1-800-580-0017.
FlyMobile Pack: $4.99 per month, includes 5 wallpapers or ringtones. Charges will be billed to the user's mobile phone bill. Message & Data Rates May Apply. To cancel, text STOP FLY to 69999. For more information, text HELP FLY to 69999. 1-800-580-0017.
MegaPack: $9.99 per month, includes 10 wallpapers or ringtones. Charges will be billed to the user's mobile phone bill. Message & Data Rates May Apply. To cancel, text STOP MEGA to 69999. For more information, text HELP MEGA to 69999. 1-800-580-0017.
KingPack: $7.99 per month, includes 8 wallpapers or ringtones. Charges will be billed to the user's mobile phone bill. Message & Data Rates May Apply. To cancel, text STOP KING to 69999. For more information, text HELP KING to 69999. 1-800-580-0017.
HyperPack: $5.99 per month, includes 6 wallpapers or ringtones. Charges will be billed to the user's mobile phone bill. Message & Data Rates May Apply. To cancel, text STOP HYPER to 69999. For more information, text HELP HYPER to 69999. 1-800-580-0017.
RealPack: $9.99 per month, includes 6 real tones and 3 wallpapers. Charges will be billed to the user's mobile phone bill. Message & Data Rates May Apply. To cancel, text STOP REAL to 69999. For more information, text HELP REAL to 69999. 1-800-580-0017.
TonePack: $9.99 per month, includes 10 Ringtones, Real Tones or Funny Tones. Charges will be billed to the user's mobile phone bill. Message & Data Rates May Apply. To cancel, text STOP TONE to 69999. For more information, text HELP TONE to 69999. 1-800-580-0017.
Horoscope: $9.99 per month. Available to Verizon Wireless users only. Users text 'ZOD ARI' to 69999 to receive daily horoscope text alerts. Users receive 30 msgs per month.Message sent every day of the week to your phone. Charges will be billed to the user's mobile phone bill or deducted from the prepaid balance. Must be the account holder or have the account holder's permission to subscribe.Charges will continue until cancelled by the user. Message & Data Rates May Apply. To cancel, text STOP ZOD to 69999. For more information, text HELP ZOD to 69999. 1-800-580-0017.
LivePack: $5.99 per month, 5 items included in package: 4 Ringtones, Real Tones or Funny Tones plus 1 Game, Application or Theme (For T-Mobile customers, Games and Applications are not supported). Charges will be billed to the user's mobile phone bill. Message & Data Rates May Apply. To cancel, text STOP LIVE to 69999. For more information, text HELP LIVE to 69999. 1-800-580-0017.
PlayPack: $5.99 per month, 4 items included in package: 2 Games, Applications or Themes plus 2 Wallpapers or Animations (For T-Mobile customers, Games and Applications are not supported). Charges will be billed to the user's mobile phone bill. Message & Data Rates May Apply. To cancel, text STOP PLAY to 69999. For more information, text HELP PLAY to 69999. 1-800-580-0017.
PicPack: $5.99 per month, 5 items included in package: 4 Wallpapers or Animations plus 1 Game, Application or Theme (For T-Mobile customers, Games and Applications are not supported). Charges will be billed to the user's mobile phone bill. Message & Data Rates May Apply. To cancel, text STOP PIC to 69999. For more information, text HELP PIC to 69999. 1-800-580-0017.
Tone Pack 73333 $9.99 per month includes 10 Ringtones, Real Tones or Funny Tones. For Verizon Wireless users only. Charges will be billed to the user's mobile phone bill. Message & Data Rates May Apply. To cancel, text STOP to 73333. For more information text HELP to 73333 1-800-580-0017.
FunPack 73333: This is for Verizon Wireless, AT&T, Sprint and T-Mobile users only. $9.99 per month;includes 10 credits used to download products and services including ringtones, wallpapers, games, text alerts and applications. VZW customers receive unlimited credits/mo at $9.99 per month. Games and Applications not available for VZW users. Charges will be billed to the user's mobile phone bill or deducted from the prepaid balance. Must be the account holder or have the account holder's permission to subscribe. Message and Data Rates may apply.Charges will continue until cancelled by the user. To cancel, text STOP to 73333. For more information, text HELP to 73333 or call 18005800017.
Horoscope Text Alerts 73333: Available to Verizon Wireless users only. $9.99 per month. Users text 'ZOD ARI' to 73333 to receive daily horoscope text alerts. Charges will be billed to the user's mobile phone bill or deducted from the prepaid balance. Must be the account holder or have the account holder's permission to subscribe. Message and Data Rates may apply.Charges will continue until cancelled by the user. To cancel, text STOP to 73333. For more information, text HELP to 73333 or call 18005800017.
GoPack (75884): $9.99 per month includes 13 credits per month used to download products and services including ringtones, wallpapers, games, applications and text alerts. This service is for Sprint, AT&T and T-Mobile users only. Charges will be billed to the user's mobile bill or deducted from their prepaid account. Monthly Subscription will continue to renew until cancelled. The account holder must authorize all purchases. Message & Data Rates May Apply. To cancel, text STOP to 75884. For more information, text HELP to 75884 or call 1-800-580-0017.
Mobile Match Up: $7.99 per month for peer-to-peer chatting through a mobile handset. Includes unlimited messaging between users of the service within the monthly fee. Charges will be billed to the user's mobile phone bill. Message & Data Rates May Apply. To cancel, text STOP DATE to 24444. For more information, text HELP DATE to 24444. 1-800-580-0017.
Pope's Thought of the Day Alerts: $6.99 per month subscription based premium SMS alert service to receive daily Pope's Thought of the Day, beginning the following day. Charges will be billed to the user's mobile phone bill. Message & Data Rates May Apply. To cancel, text STOP POPE to 69999. For more information, text HELP POPE to 69999. 1-800-580-0017.
SMS Love: SMS Love is a $9.99/month subscription-based premium SMS alert service that sends love/sex/personality/IQ-themed quizzes to users on a weekly basis for $9.99/month. Message and Data Rates May Apply. Users receive personalized quiz results based on their answers. For HELP text HELP to 69999. To cancel text STOP LOVE to 69999. Charges will be billed to the user's mobile phone bill. This service is intended for entertainment purposes only. Information and responses are generated by an algorithm and is not to be relied upon in making important decisions. Flycell makes no representations as to the quality, relevancy or appropriateness of any information or advice supplied by this service as applied to your individual circumstances and expressly disclaims any liability for any monetary or other injury or loss you may suffer in reliance upon such information or advice.
Voting 73333/69999 $0.50 per vote. Charges will be billed to the user's phone bill. Message & Data Rates May Apply. For help text HELP to 69999/73333. 1-800-580-0017
All fees are subject to change upon notice from Flycell. Flycell will send you a text describing the change in the fees to which you will have to reply confirming you accept the change. If you do not reply, the service will be terminated.
Flycell may include in the Service the ability for you to make electronic purchase(s). You acknowledge and agree that any submissions you make for electronic purchase(s) constitute your intent and agreement to be bound by the terms of and to pay for such purchase(s). You may withdraw your consent to enter into such electronic agreements by giving written notice to Flycell but if you do so, you will not thereafter be able to make any electronic purchase(s). To the extent that such electronic purchases are offered to you by a third party, you acknowledge that Flycell shall not be responsible or liable to you for the products or services purchased. Flycell does not make any warranty or representation for any third party product or service. The provisions of this paragraph do not apply to your agreement and arrangements to pay fees to Flycell for Downloads.
From time to time Flycell change their main Clubpack offer. Each time they do this they ensure the customer is better off. If at any point your monthly credits are reduced content pricing will be reduced to ensure you get even more content for your money.
Bid Hunter Pro is a subscription package which costs $9.99 per month ($6.99 for Boost Mobile customers). This entitles the subscriber to play Flycells new Low Bid/Reverse Auction game (Bid Hunter) via the web and SMS and also gives them unlimited text alert services such as Daily Horoscope and Joke of the Day. For Bid Hunter the subscriber has 30 guesses per day via SMS or web. At any given time prizes will be up for auction and the subscriber can submit a guess, the aim being to have the lowest unique number for that prize at the time that particular auction ends. The subscriber also has access to unlimited text alert services which they can select by logging in to the site. Charges will be billed to the user's mobile phone bill. Message and Data Rates may apply. To cancel, text STOP to 69999. For more information, text HELP to 69999. 1-800-580-0017.
Flycell is not responsible to you for any content or materials constituting all or part of any Download or any other aspect of the Service that you might find objectionable or contain explicit sexual content.
You understand that all information, data, text, files, graphics, links, music, photographs, software, sound, video, messages, communication or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. Accordingly, you, not Flycell, are entirely responsible and liable for all activities conducted through your Account. Flycell does not control the Content posted or transmitted in any way via the Services and, as such, does not guarantee the accuracy, integrity, or quality of such Content. You understand that by using this Service you may be exposed to Content that is offensive, indecent, or objectionable. Under no circumstances will Flycell be liable in any way for any Content, including but not limited to, any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the user of any Content posted, emailed, sent via SMS or otherwise transmitted via the Service. Listed below are some, though not all, violations that may result in Flycell terminating your Account. You agree not to do any of the following while using the Service:
Flycell is not responsible to you for any content or materials constituting all or part of any Download or any other aspect of the Service that you might find objectionable or contain explicit sexual content.
Flycell claims no ownership of Content you make publicly available on the Service, or otherwise upload, post or transmit for inclusion in publicly accessible portions of the Service. With respect to such Content, you grant Flycell a worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display the Content for the purpose for which such Content was submitted or made available. This license terminates when you remove (or Flycell removes) such Content from the Service. You understand and agree, however, that Flycell may retain copies, but not display, perform, or distribute, server copies of Content that has been deleted or removed. The license granted above with respect to Content that consists of text, messages, or user comments posted to publicly accessible areas of the Flycell Website is perpetual and irrevocable.
Flycell may offer contests or promotions encouraging users to upload Content for judging or prizes. Content uploaded for a contest or promotion is subject to the terms of the specific contest or promotion.
Please choose carefully the information you post on Flycell.com and that you provide to other Users. Your Flycell.com profile may not include the following items: telephone numbers, street addresses, last names, and any photographs containing nudity, or obscene, lewd, excessively violent, harassing, sexually explicit or otherwise objectionable subject matter. Despite this prohibition, information provided by other Flycell.com Members (for instance, in their Profile) may contain inaccurate, inappropriate, offensive or sexually explicit material, products or services, and Flycell.com assumes no responsibility or liability for this material. If you become aware of misuse of the Flycell Services by any person, please contact customer supports at Flycell.com immediately.
Flycell.com reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to restrict, suspend, or terminate your access to all or any part of the Flycell Services at any time, for any or no reason, with or without prior notice, and without liability. Flycell expressly reserves the right to remove your profile and/or restrict, suspend, or terminate your access to any part of Flycell Services if Flycell determines, in its sole discretion, that you pose a threat to Flycell and/or its Users.
The following is a partial list of the kind of Content that is illegal or prohibited to post on or through the Flycell Services. Flycell reserves the right to investigate and take appropriate legal action against anyone who, in Flycell's sole discretion, violates this provision, including without limitation, removing the offending communication from the Flycell Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to Content that, in the sole discretion of Flycell:
Prohibited activity includes, but is not limited to:
The Service features Messaging Systems that include text message capabilities and may from time to time contain other features that allow you to exchange messages, content and other information with other Flycell members and subscribers and third parties. Flycell has the right but not the obligation to monitor and edit or remove any activity or content it finds objectionable in such Messaging Systems. Flycell takes no responsibility and assumes no liability for any content, materials, messages and the like that you or any other subscribers, members or third parties post or send over the Messaging Systems. The Text Message content is for entertainment purposes only.
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 and hold harmless Flycell its partners, parents, subsidiaries, agents, affiliates and/or licensors, etc., as applicable, for all claims resulting from content, messages, materials and the like that you supply.
In addition to the above, you acknowledge and agree that Flycell 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 Flycell, its business partners, affiliates, and/or licensors, etc., any other Flycell, subscriber or member, or the general public.
By registering for a Flycell account, you agree that we may send you the following types of email communications: welcome emails, our weekly newsletter, account status updates and promotional content and solicitations. You may opt-out of receiving our email newsletter via the unsubscribe links in each email. You can also opt-out of specific types of email communications through your account settings. Our Services feature the distribution of content to your cellular phone, and by registering for a Flycell account, you agree to receive SMS messages to your phone, including messages regarding Services you request, account status updates, and occasional SMS newsletters. You will also have the opportunity to opt-in and receive surveys and promotional content by our affiliates. You may opt out of our SMS newsletter by sending an email or by responding to the SMS newsletter indicating that you would like to unsubscribe.
Our Sites may provide you with the opportunity to refer your friends, family members or relatives to the Flycell Services. For this feature of our Sites to work, we need to collect your friends and families' email addresses. The email addresses we collect in this context are not used for any other purpose other than to send a one-time referral.
Flycell 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 immediately send a notice to Flycell's designated agent to receive notice of possible copyright infringement as listed with the United States Copyright Office.
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 Flycell and/or its partners, parents, subsidiaries, agents, affiliates, and/or licensors. You may not copy, display or use any of these marks without prior written permission of Flycell.
If Flycell (a) receives a notice alleging that you have engaged in infringing behavior or (b) reasonably suspects that your use of the Service or the Downloads violates Flycell, Inc.'s or others' intellectual property rights, Flycell may, in its sole discretion, suspend or terminate your account with or without notice to you. If Flycell suspends or terminates your Flycell account under this paragraph, it shall have no liability or responsibility to you, and Flycell will not refund any portion of your fees charged to date.
In addition to the restrictions set forth above, you acknowledge and agree that you may not copy, distribute, sell, resell or exploit for any commercial purposes, any portion of the Service (or any Downloads accessible on or through the Service), or your user name or password.
Flycell, Inc. and/or its business partners may present advertisements and promotional materials on or through the Service. Your participation in any Flycell 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 Flycell, Inc. 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.
The Service may present links to retailers and/or other third-party websites not owned or operated by Flycell. These links are provided only as a convenience to you. Neither Flycell nor its partners, agents, affiliates, etc. are responsible for the availability of these outside sites or their contents. You understand and agree that neither Flycell nor its partners, agents, affiliates, etc. 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.
Flycell 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 Flycell nor its partners, parents, subsidiaries, agents, affiliates and/or licensors etc. shall be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
You understand and agree that any unauthorized use of the Service or the Downloads would result in irreparable injury to Flycell nor its, partners, parents, subsidiaries, agents, affiliates and/or licensors etc. for which money damages would be inadequate, and in such event Flycell 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 Flycell nor its, partners, parents, subsidiaries, agents, affiliates and/or licensors etc. may have under separate legal authority, including but not limited to, any claim for intellectual property infringement.
You agree to indemnify and hold harmless Flycell and its agents, employees, representatives, licensors, licensees, 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, including the Messaging Systems and the Downloads (collectively "Claims"), and to reimburse them on demand for any losses, costs, judgments, fees, fines and other expenses they incur (including reasonable attorneys' fees and court costs) as a result of any Claims.
THE FLYCELL SERVICE, MATERIALS AND WEB SITE, INCLUDING BUT NOT LIMITED TO SERVICES AND MATERIALS SUPPLIED BY THIRD PARTIES THROUGH FLYCELL, ARE PROVIDED ON AN "AS-IS" BASIS WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTY, NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE WITH REGARD TO OUR CONTENT, INFORMATION, PRODUCTS, OR SERVICES PROVIDED HEREUNDER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE FURTHER DISCLAIM THAT OUR SERVICE WILL BE FREE FROM BUGS, DEFECTS, OR ERRORS OR THAT THE SERVICE WILL BE ACCESSIBLE WITHOUT INTERRUPTION. WE FURTHER DISCLAIM ALL WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTY, NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE WITH REGARD TO OUR CONTENT AND ANY THIRD PARTY CONTENT DISTRIBUTED BY US, INFORMATION, PRODUCTS, OR SERVICES PROVIDED HEREUNDER.
We warrant that: once downloaded, the Downloads will operate until removed by you or a person to whom you have given access to the mobile telephone to which the Downloads were delivered; We are entitled to license you to use the Downloads for your personal use on your mobile telephone and that no third party will take action against you in respect of that use. Because you have chosen the Downloads or other products and have had the opportunity to review them prior to purchase, we accept no liability if the Downloads are in any way found to be of unsatisfactory quality or otherwise not suitable for your particular purpose.
IN NO EVENT SHALL WE BE LIABLE TO YOU UNDER THIS AGREEMENT FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INFORMATION OR MATERIAL OF ANY KIND, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE, AND INJURY TO PROPERTY IN CONNECTION WITH, ARISING OUT OF, OR AS A RESULT OF THE SERVICES, THE TECHNICAL SYSTEMS, OR BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT. SUCH LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES.
Our entire liability for any claim concerning its performance or nonperformance in connection with this Agreement or the conduct of the parties in furtherance hereof under any legal theory, whether contract, tort, product liability, breach of implied duty or otherwise shall be limited to the amount charged for the Downloads. If you have any questions or comments, please let us know by completing our Support Form.
This Agreement and any other terms or documents referred to herein represent your entire agreement with Flycell with respect to your use of the Service. 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. Flycell's failure to pursue any available claim or defense pursuant to this Agreement or otherwise 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. The laws of the State of New York, excluding its conflicts-of-law rules, govern this Agreement and your use of the Service, including the Messaging Systems and the Downloads. You expressly agree that the courts in the State of New York have exclusive jurisdiction over any claim or dispute with Flycell or relating in any way to your account or your use of the Service, the Messaging Systems or the Downloads. You further agree and expressly consent to personal jurisdiction over you in the New York federal and state courts in connection with any such dispute including any claim involving Flycell or its partners, parents, licensors, affiliates, subsidiaries, employees, contractors, officers, directors or suppliers.
IMPORTANT: PLEASE READ THIS SECTION CAREFULLY. IT MAY AFFECT YOUR RIGHTS.
BY ENTERING INTO THIS AGREEMENT, YOU AND FLYCELL, INC. ("FLYCELL") BOTH AGREE TO RESOLVE ANY CLAIM, CONTROVERSY OR DISPUTE BETWEEN YOU AND FLYCELL, INCLUDING, WITHOUT LIMITATION, ANY CLAIM, CONTROVERSY OR DISPUTE ARISING OUT OF OR RELATING TO THE PRODUCTS AND/OR SERVICES PROVIDED UNDER THIS AGREEMENT THROUGH BINDING ARBITRATION (OR, IF THE CASE QUALIFIES, BY COMMENCING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT) INSTEAD OF IN COURTS OF GENERAL JURISDICTION.
PLEASE NOTE THAT ARBITRATION IS MORE INFORMAL THAN LITIGATION. THERE IS NO JUDGE OR JURY IN AN ARBITRATION PROCEEDING BUT THERE IS A NEUTRAL ARBITRATOR INSTEAD AND THE PROCEDURES MAY BE DIFFERENT THAN IN A COURT. ARBITRATION ALLOWS FOR MORE LIMITED DISCOVERY AND LIMITED APPELLATE REVIEW BUT AN ARBITRATOR CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT, INCLUDING ATTORNEYS' FEES, IF APPLICABLE.
PLEASE ALSO NOTE THAT THE SUBJECT MATTER OF THIS AGREEMENT IS AN INTERSTATE COMMERCE TRANSACTION. CONSEQUENTLY, THE FEDERAL ARBITRATION ACT ("FAA") GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT.
In addition, you and Flycell both agree that:
(1) Reference to "Flycell" includes its parents, subsidiaries, affiliates, predecessors, successors, assigns, and its directors, officers, employees and agents. Reference to "you" includes your heirs, personal representative and all beneficiaries of this Agreement and all users of the products and/or services provided under this Agreement.
(2) BY ENTERING INTO THIS AGREEMENT, YOU AND FLYCELL ARE EACH WAIVING THE RIGHT TO A JURY TRIAL ("JURY TRIAL WAIVER") OR TO PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION ("CLASS ACTION WAIVER"), INCLUDING, WITHOUT LIMITATION, CLASS ACTIONS OR CLASS ARBITRATIONS BEGUN BY OTHERS PRIOR TO THE DATE OF THIS AGREEMENT EVEN IF APPLICABLE LAW OR THE AMERICAN ARBITRATION ASSOCIATION RULES WOULD ALLOW IT. YOU AND FLYCELL MAY EACH BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR CONSOLIDATED OR REPRESENTATIVE PROCEEDINGS. THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL CLAIM. IF THIS PARAGRAPH TWO (2) IS FOUND TO BE UNENFORCEABLE, THEN THE AGREEMENT TO ARBITRATE SHALL NOT APPLY.
(3) Any claim must first be brought to the attention of the other party by sending a written notice ("Claim Notice") to (a) your then-current (or last provided) billing address, or (b) to Flycell at P.O. Box 3315, New York, NY 10008-3315. In the unlikely event that the claim is not resolved within thirty (30) days after the Claim Notice is received, you or Flycell may commence arbitration proceedings pursuant to paragraph (4) below. Click here for a Claim Notice form.
(4) The arbitration will be governed by the Wireless Industry Arbitration Rules of the American Arbitration Association (the "AAA Rules"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available by visiting www.adr.org or by calling +1 (800) 778-7879.
Unless you and Flycell agree otherwise, the arbitration will take place in the County (or equivalent) of your billing address, provided, however, that if your billing address is outside of the United States, the arbitration will take place in New York County, New York. There will be one single neutral arbitrator appointed pursuant to the AAA Rules. If your claim is for $10,000.00 or less, you can choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, or by a hearing in-person or by phone. If your claim exceeds $10,000.00, arbitration proceedings will be carried out in accordance with the AAA Rules. Flycell may reimburse you for all AAA filings, administration and arbitrator fees (collectively the "Arbitration Fees") for any arbitration proceedings commenced in accordance with this Dispute Resolution and Arbitration section. In the event you cannot pay the Arbitration Fees, you may request in the Claim Notice that Flycell pay the Arbitration Fees directly. If, however, the arbitrator finds that your claim, its substance or the relief sought is frivolous or brought for an improper purpose, you agree to reimburse Flycell for all monies disbursed by it that are otherwise your obligation to pay under the AAA Rules. The arbitration award shall be final and binding upon both you and Flycell. The language of the arbitration shall be English.
(5) UNLESS OTHERWISE PROVIDED IN THIS DISPUTE AND ARBITRATION SECTION, EACH PARTY IS RESPONSIBLE FORHIS/HER/ITS OWN ATTORNEY'S FEES, THE EXPENSES OF HIS/HER/ITS OWN WITNESSES, EXPERTS AND/OR INTERPRETERS AND ALL OTHER EXPENSES CONNECTED WITH PRESENTING THE CASE.
(6) An arbitration award and any judgment confirming such award apply only to that specific case and cannot be used in any other case except to enforce the award itself.
(7) The provisions set forth in this Dispute Resolution and Arbitration Section do not preclude you from bringing any issues you may have to the attention of federal, state or local government agencies, including, for example, the Federal Trade Commission, and if the law allows, such agencies can seek relief against Flycell on your behalf.
(8) The provisions set forth in this Dispute Resolution and Arbitration Section shall survive the termination of this Agreement or your contractual relationship with Flycell.
(9) NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, EITHER YOU OR FLYCELL MAY ELECT TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT IF THE CASE QUALIFIES UNDER APPLICABLE LAW.
Please direct any questions concerning the Service or any other Flycell related issue, to a Flycell customer service representative by e-mail at: firstname.lastname@example.org or email@example.com
Copyright 2006-2008 © Flycell, Inc.
SkillDerby.com is a casual mobile gaming site which is part of your content when you subscribe as a registered/paid user (“Contestant Membership”, also referred to as “Contestant”) to Flycell’s Club Pack.
ELIGIBILITY: OPEN TO LEGAL RESIDENTS OF THE 50 UNITED STATES AND DISTRICT OF COLUMBIA EXCLUDING VERMONT AND NORTH DAKOTA (“TERRITORY”) WHO ARE 18 YEARS OF AGE AND OLDER (19 IN ALABAMA OR NEBRASKA, 21 IN MISSISSIPPI) AT TIME OF ENTRY (“CONTESTANT”) WHO HAVE INTERNET ACCESS. VOID IN VT AND ND AND WHEREVER ELSE PROHIBITED, RESTRICTED OR TAXED BY LAW. YOU MUST BE PHYSICALLY LOCATED IN THE TERRITORY IN ORDER TO PARTICIPATE. Employees of: Flycell (the “Sponsor”) and its respective affiliates, subsidiaries, parent companies, representatives, any prize providers, advertising, promotion and publicity agencies ("Sponsor and its agents") and all other companies involved in the development and execution of this website (“Released Parties”) and the immediate family members and persons living in the same household of each are not eligible to play or win. All federal, state and local laws and regulations apply.
By entering any tournament (also referred to as “Contest”), all contestants accept and agree to abide by the terms of these Official Rules, the decisions of the Sponsor which are final and binding and to be contacted by Sponsor or its agents by email, mail and/or telephone regarding these tournaments. By entering any of the tournaments or playing any of the games, each contestant represents and warrants that he or she meets the eligibility requirements and acknowledges that failure to meet all eligibility requirements will disqualify participant from any tournament or from winning any prize.
HOW TO PLAY: As a Contestant, you will be able to participate in mobile tournaments which take place on an ongoing basis (as described below) in which contestants will compete to beat the current highest scores in order to win available prizes (as described below). In order to play and be eligible for the prizes outlined below, you must be a registered/paid user of Flycell’s Club Pack.
Starting on ___, there will be two (2) –three (3) games and one (1) weekly tournament (“Weekly Tournament”) available which you may participate in. Weekly tournaments will last 24 x 7 hours. The top three (3) scorers as of the end of the Weekly Tournament (based on contestant’s best score during the tournament period and subject to Sponsor’s verification) will win the prize as set forth below, pending verification. End times for all tournaments will be posted on the site.
Prizes and prize awarding procedures are subject to change from time to time, and are at the Sponsor’s sole discretion. If any Contestant stops playing prior to the game conclusion, that score will not be stored in the database. Only the top three (3) scorers at tournament end time are considered as the winners, pending verification by Sponsor.
SCORING/TRACKING: All scores for any tournament will be tracked by the Sponsor, which will be deemed the official scorer for all purposes. The Sponsor’s clock is the official time keeper for the Contest. At the end of each tournament period, all players will have their points erased and reset at zero. PRIZES & APPROXIMATE RETAIL VALUES (“ARV”): Prizes that are available to be awarded are as follows: an Apple® iPad®2 (Wi/Fi), (ARV: $500). Contestants, including all winners, acknowledge that the Sponsor and all other businesses concerned with this Contest and their agents do not make, nor are in any manner are responsible for any warranty, representations, expressed or implied, in fact or in law, relative the quality, conditions, fitness or merchantability of any aspect of any prize except that each merchandise prize shall be subject to its manufacturer’s standard warranty. Merchandise prizes are not redeemable for cash. Prizes are non-assignable or transferable. No prize substitution permitted. Sponsor reserves the right to substitute any merchandise prize (or portion thereof) with a prize (or portion thereof) of equal or greater value in the event offered prize is unavailable. Prize recipients will be responsible for payment of all federal, state, local and income taxes associated with the awarding of their respective prizes. Any other incidental expenses on any prize not specified herein is the sole responsibility of each prize recipient.
NOTIFICATION: If you are determined the winner of a prize after verification, you will be contacted by email or telephone (using the contact information you have on your Flycell registration), and your prize will be sent to you via mail. In order to claim a prize, you must provide an ID (Federal or State Government issued) as proof of identity. The value of any prize you win will be posted to your account when the prize is shipped. Each Contestant who wins over $600 in prizes during a calendar year will be required to complete and return an Affidavit of Eligibility, W-9 within ten (10) days of notification or he/she may be disqualified and deemed to have voluntarily forfeited the prize, and the next highest scoring Contestant may be determined as the alternate winner. If a winner cannot be contacted, or is contacted and does not respond as directed within ten (10) days of attempted contact, or refuses the prize or is ineligible to accept the prize, or has not complied with these Official Rules, or has made false statements or if prize notification is returned as undeliverable, prize will be forfeited and an alternate winner may be determined. Although we will use reasonable efforts to comply with IRS requirements, you agree that Released Parties will not be liable to you or any third party for any liabilities, damages, costs or expenses of any kind which you or such third party may incur as a result of any acts, errors or omissions of Released Parties in their efforts to comply with the IRS requirements, and that you agree that you remain solely responsible for paying all federal, state and other taxes that apply in your state of residence and that you will indemnify and hold harmless Released Parties from any and all liabilities, costs and expenses incurred as a result of (a) inaccuracies or omissions in any W-9 or other IRS form which you submit to Sponsor.
Winning constitutes permission (except where prohibited by law) to use each Contestant’s name, entry, hometown, likeness, prize won, statements, photograph, video (all at Sponsor’s discretion) for future promotion, advertising, publicity in any and all media (including online posting on Flycell’s and/or SkillDerby’s mobile site) now or hereafter devised throughout the world in perpetuity, without additional compensation, notification, attribution or permission.
LIMITATIONS: Contestants (as defined above) may participate in as many tournaments or games as they want. GENERAL: The Sponsor, in its sole discretion, reserves the right to disqualify any Contestant who engages in conduct Sponsor deems to be improper, unfair or otherwise adverse to the operation of the Contest or any tournament or detrimental to other Contestants. Such improper conduct includes, but is not limited to, falsifying personal information required during registration or prize claim, violating any Official Rules stated herein, or winning using illegal methods or unfair tactics. Any other action designed to disrupt the opposing Contestant’s is prohibited. Contestant further acknowledges that the forfeiture of a prize and/or return of a prize shall in no way prevent Sponsor from pursuing other avenues of recourse such as criminal or civil proceedings in connection with such conduct. Any attempt by a Contestant to deliberately undermine the legitimate operations of any tournament or game is a violation of criminal and civil laws. Should such an attempt be made, the Sponsor reserves the right to seek damages from any such Contestant to the fullest extent permitted by law and to disqualify such Contestant from the tournament or game. Released Parties are not responsible for the actions of Contestants in connection with any tournament or game, including Contestant’s attempts to circumvent the Official Rules or otherwise interfere with the administration, security, fairness, integrity or proper conduct of any tournament or game.
Contestants must comply with any security procedures, measures and instructions imposed by the Sponsor who reserves the right in their sole discretion to suspend or cancel Contestant’s participation due to any non-compliance with instructions, security procedure or inappropriate behavior or misconduct. Each Contestant further understands that neither the Sponsor nor its agents will be responsible for any technical malfunctions or other reasons they cannot compete.
By entering any tournament or playing any game, Contestants agree to (i) these Official Rules and the decisions of Sponsor, its prize provider and its agents which are final and binding in all respects, and (ii) to indemnify and hold harmless Released Parties from any and all liability, injuries, including, without limitation, personal injuries and/or damage to property, caused or claimed to be caused by, related to, or arising out of participating in these tournaments or the acceptance, possession, shipping and handling, loss, use or misuse of any prize awarded and/or from Contestant’s fraudulent or wrongful acts or omissions. Released Parties are not responsible if tournaments cannot take place or if any prize cannot be awarded due to unavailability, etc. Sponsor has the right to cancel, terminate or modify any of the tournaments if they cannot be completed as planned due to computer virus, bugs, tampering, unauthorized intervention, technical failures, or other conditions beyond Sponsor's control. Sponsor is not responsible for any software or hardware failure, or failure to contact Contestants, whether due to technical or human error.
In the event of an outage of power, accidental unplugging, system freeze or some other event not in either Sponsor’s or Contestant’s control that would not allow the Contestant to finish the game, the game will be restarted from the beginning. By participating in any tournament or game, the Contestant agrees that (1) the Released Parties are not responsible for typographical or other errors in the offer or administration of this Contest, including but not limited to: errors in the advertising, Rules, selection and announcement of the winners and distribution of the prizes; (2) All disputes, claims and causes of action at law or in equity (individually, “Claim”) arising out of or relating to this Contest, the meaning or interpretation of the Rules or any prize awarded shall be resolved by applying the laws of New York, without regard to conflict of laws provisions therein, and shall be solely and exclusively brought in the state or federal courts within that state; (3) All Claims shall be resolved individually, without resort to any form of class action, and all Claims, judgments and awards shall be limited to actual out-of-pocket costs incurred, but in no event include attorneys’ fees, and under no circumstances will any entrant be permitted to obtain awards for, and hereby waives all rights to claim, punitive, incidental, special, consequential damages and any other damages, other than for actual out-of-pocket expenses and waives all rights to have damages multiplied or otherwise increased.
WINNERS LIST: For a list of the winners, available thirty (30) days after each tournament, send a stamped, self addressed envelope to: SkillDerby, 80 Pine, 29th Floor, NYC, NY 10005 _____________________________________________________ SPONSOR: Flycell, 80 Pine Street, 29th Floor NYC, NY 10005
Prize providers such as Apple iPad® (or others) are not sponsors of this tournament. Their name(s) are for purposes of promotion and/or prize description only and such use is not intended to suggest or imply the prize provider’s approval, sponsorship or endorsement of this promotion.
© 2012 Ventura Associates International LLC