WELCOME TO PLYmedia’s ‘Send to my mobile’ service ("STM
Service") which is a technology- enabling service operated by PLYmedia
(“PLYmedia” or the “Company”), a company incorporated in the State of Delaware,
its subsidiaries, parent company or affiliates. The STM Service is operated as
part of the PLYmedia PLYplatform services and applications owned by PLYmedia and
has been integrated with the consent and approval of the site which hosts the
content, has the rights in the content or was granted the rights in the content,
and makes it available for view , (hereafter, the “Content Site”).. These Terms
of Service ("Terms") constitute a legal agreement ("Agreement") between you,
PLYmedia and the Content Site and are in addition to the term of use of the
Content Site to govern the use of the STM Service; please read them carefully.
By completing the registration process on the Content Site or any successor
website thereto OR by clicking the acceptance of these terms prior to using the
STM Service OR downloading mobile content to a mobile device (each a
"Download"), you (1) represent that you are at least 13 years of age and have
the consent of the subscriber of a participating mobile communications carrier
to sign-up for and use the STM Service on behalf of the subscriber; and (2)
agree on behalf of the subscriber and yourself to be bound by these terms and
conditions of this Agreement. If you access the STM Service through another
website, please review these terms and conditions on that website or other
posted guidelines as they may apply to your use. Any questions or comments
regarding, or problems with, the PLYmedia Site or STM Service should be sent to
info@plymedia.com.
In this Agreement, "you" and "your" refer to each
customer (including the subscriber of a participating mobile communications
carrier on whose behalf you are entering into this Agreement) and his or her
agents, and "we", "us" and "our" refer collectively to PLYmedia, PLYmedia.com
and the Content Site. This Agreement explains our obligations to you, and your
obligations to us in relation to the STM Service.
PLYmedia reserves the right to
modify these Terms, in whole or in part, at any time. Changes to these Terms
will be effective when posted. Your use of the STM Service shall evidence your
acceptance of the changes to these Terms and shall constitute your agreement to
be bound thereby.
1. Description of PLYmedia STM Service
PLYmedia provides, or
may provide in the near future, a technology-enabling service for the download
of mobile entertainment content, such as, but not limited to, ringtones, videos,
graphics, news and other information data via the Internet, SMS, MMS, WAP, BREW,
IVR and other means of mobile content delivery to certain compatible mobile
devices (the "STM Service"). It is stated that PLYmedia is not the provider or
licensor of the Content which is downloaded but only provides the
technology-enabling service for its download, condition that you have the rights
or granted the right by the Content Site to download such content. You
acknowledge and agree that the STM Service is for your personal use on the
mobile device designated during the Download or Registration. You agree that you
may not transmit, broadcast, upload to any computer or mobile device, create
derivative works of, or make commercial use of the STM Service, including, but
not limited to, any Download(s). You may not, or attempt to (or otherwise
authorize, encourage or support others' attempts to) circumvent, re-engineer,
decrypt, break or otherwise alter or interfere with the STM Service, including,
but not limited to, any Download(s). Please note that the STM Service is not
compatible with all mobile devices. Please write us for details concerning
content availability for certain devices.
2. Access to STM Service
(a) Access to
the STM Service. In order to use the STM Service, you must have a mobile
communications subscription with a participating carrier or otherwise have
access to a mobile communications network for which PLYmedia makes the STM
Service available (e.g. a prepaid plan) as well as any carrier services
necessary to download content (access to your carrier's data plan), and pay any
service fees associated with any such access. In addition, you must provide all
equipment and software necessary to connect to the STM Service, including, but
not limited to, a mobile handset or other mobile access device that is in
working order and suitable for use in connection with the STM Service. You are
responsible for ensuring that your equipment and/or software do not disturb or
interfere with PLYmedia's operations. Any equipment or software causing
interference shall be immediately disconnected from the STM Service and Plymedia
shall have the right to immediately terminate this Agreement. If any upgrade in
or to the STM 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 STM Service,
including the release of new products and services, shall be subject to the
terms and conditions of this Agreement.
(b) Individual Downloads. When you
purchase Individual Downloads or use the STM Service in any way, standard
messaging rates and the terms and conditions of your carrier service agreement
will apply. Please note that the STM Service and/or Individual Downloads may not
be available for use on all mobile devices. Check with your carrier service
provider for details.
PLYmedia may offer through its STM Service individual
Downloads for one-time non-recurring charges ("Individual Downloads"). The price
by content type for Individual Downloads, if any, will be listed on the STM
Service Registration menu which will appear after you click on the STM Service
button at a participating Content Site. The price per Individual Download shall
depend on (but is not limited to) the country in which your mobile or cellular
phone operates, the currency of the transaction and the Content Site pricing
requirements. The details of the Individual Downloads are incorporated into this
Agreement by this reference and form a part of this Agreement. All terms and
conditions of this Agreement shall govern any Individual Downloads.
(c) Access
without Registration. PLYmedia may provide you with access to some STM Services
without you registering as a user, such as sign-up via SMS or via Individual
Download purchases. In each such case your identification is based on means of
identification that we deem appropriate, such as your mobile telephone number.
(d) License to Download(s). You acknowledge and agree that the Download(s) made
available as part of the STM Service are owned by the participating Content
Site, its affiliate and/or licensors, as applicable or by the copyright owners
who have uploaded the content to the Content Site and have authorized the
Content Site to offer their content and they have agreed to offer their content
as part of the STM Service. All content available for download are protected by
intellectual property laws. Your rights to view or download the Content are
governed by the terms of use with the Content Site and you may not download
content if not permitted by the Content Site, even if such download is
technologically-enabled. PLYmedia and the Content Site hereby grant, and you
hereby accept, a limited, non-exclusive, non-transferable, revocable right and
license to download and use the object code version of the Download(s) and the
STM Service on a designated compatible mobile device solely for your own
personal non-commercial use. You further acknowledge and agree that you may not
reproduce, duplicate, modify, perform, transfer, post, distribute, sell, create
derivative works of or otherwise use or make available the Download(s) 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 mobile
content downloaded on your mobile device, and no rights are granted to you by
this Agreement in any patents, copyrights, trade secrets, trademarks or any
other rights in respect of the mobile content downloaded on your mobile device.
This Agreement will terminate immediately, without notice, if you fail to comply
with any term or condition of this Agreement. Upon a termination of this
Agreement, you agree to immediately remove all downloaded mobile entertainment
content from your wireless communications device or any other storage device in
which the content is stored.
(e) Interruptions or Discontinuation of the STM
Service. PLYmedia reserves the right at any time and from time to time to
modify, suspend, discontinue or permanently cancel the STM Service, or portions
thereof, with or without notice to you.
3. Privacy
PLYmedia is committed to the
privacy of the users and does not collect, process or sell any identifying
information from users of the STM service. The only identifying information
which is collected and used by PLYmedia is information required for billing
purposes and this information will be deleted after the end of the billing
cycle, as determined by the Mobile Phone Carrier and the Billing Agent. PLYmedia
may collect non-identifying information about the downloaded content, types of
usage of the STM Service or usage patterns for statistical purposes and will not
sell this information or share it with third parties beside the Content Site.
4.
Indemnification
You agree to release, indemnify, defend and hold harmless
PLYmediaand their respective parent companies, subsidiaries, and affiliates,
including technology affiliates and billing agents, together with their
respective officers, directors, shareholders, contractors, agents, employees,
licensors and assigns from and against all liabilities, claims, damages, costs
and expenses (including reasonable attorneys' fees and costs) arising out of or
in connection with (a) your use of the PLYmedia Site, the Content Site and its
STM Service; (b) your failure to use the Site; (c) your breach or alleged breach
of this Agreement; (d) your breach or alleged breach of the copyright,
trademark, proprietary or other rights of third parties , and (e) the breach by
you of your representations and warranties set forth herein.
5. DISCLAIMER OF
WARRANTIES AND LIMITATION OF LIABILITIES
YOU UNDERSTAND AND AGREE THAT YOUR USE
OF THE STM SERVICE, INCLUDING, BUT NOT LIMITED TO ANY DOWNLOAD(S), 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 USE OR DOWNLOAD. YOU
AGREE THAT THE SERVICE IS PROVIDED ON AN "AS IS," AND "AS AVAILABLE" BASIS,
EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT
PLYMEDIA, ITS AFFILIATES AND BILLING AGENT, AND CONTENT SITE SHALL HAVE NO
LIABILITY TO YOU, OR TO ANY THIRD PARTY, FOR ANY MODIFICATION, SUSPENSION,
DISCONTINUANCE OR TERMINATION OF THE STM SERVICE, OR ANY PART THEREOF. WE
EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PLYMEDIA AND CONTENT SITE MAKE NO
WARRANTIES THAT THE STM SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE STM
SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. NO ADVICE OR
INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR
SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU MAY NOT RELY
ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO
YOU.
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, YOU AGREE
THAT PLYMEDIA OR THE CONTENT SITE’S ENTIRE LIABILITY TO YOU OR ANY THIRD PERSON,
AND YOUR OR ANY THIRD PERSON'S EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR
OTHERWISE, WITH RESPECT TO THE STM SERVICE PROVIDED UNDER THIS AGREEMENT AND/OR
FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR
SUCH STM SERVICE DURING THE TERM OF THIS AGREEMENT. EXCEPT IN JURISDICTIONS
WHERE SUCH PROVISIONS ARE RESTRICTED, PLYMEDIA CONTENT SITE, ITS LICENSORS AND
CONTRACTORS (INCLUDING ANY THIRD PARTIES PROVIDING ALL OR PART OF THE STM
SERVICE) SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES EVEN IF PLYMEDIA OR CONTEN SITE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE OR COUNTRY DOES NOT
PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN OUR
LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW IN SUCH STATES OR
COUNTRIES.
6. Intellectual Property Rights
Except as otherwise set forth herein,
all right, title and interest in and to any intellectual property, proprietary
rights or other rights related to intangible property which are used, developed,
comprising, embodied in, or practiced in connection with any of the STM Service
("Intellectual Property Rights") are owned by PLYMEDIA y or its licensors, and
you agree to make no claim of interest in or ownership of any such Intellectual
Property Rights. The copyrighted content made available to you to download as
part of the STM Services are the intellectual property rights of the Content
Site or the original creator who uploaded the content to the Content Site (the
“Uploader”) and has warranted that content uploaded to the Content Site is the
sole property and all rights, images, usage, music, contained therein are the
sole property of the Uploader. For more details regarding the use, restrictions,
claims, disclaimers related to the content at the Content Site, please visit the
respective Content’s Site terms of use page.
7. Termination and Cancellation of Services
As your agreement with the STM Service relates to Individual Downloads,
cancellation or termination if not required, just discontinue your use of the
STM Service and you or your mobile phone carrier shall not be billed for any
cancellation or termination surcharges. However, should you reuse the STM
Service, or portion, thereof, you and/or your mobile phone carrier may be
charged the standard Service rates as applicable.
You agree that Company, at its
sole discretion, may at any time terminate your use of the STM Service or
individual services provided via the STM Service, if PLYmedia believes that you
have violated or acted inconsistently with this Agreement or breached any
relevant law, rule or regulation or that you have engaged in conduct that
PLYmedia considers to be inappropriate or unacceptable.
You agree that upon
termination of your access to the STM Service under any provision of this
Agreement, PLYmedia may immediately deactivate or delete your account and all
related information and files in your account and/or bar any further access to
such files or the STM Service. Further, you agree that PLYmedia shall not be
liable to you or any third party for any termination of your access to the STM
Service.
8. Miscellaneous Provisions
(a) Notices and Announcements. Except as
expressly provided otherwise herein, all notices to PLYmedia shall be in writing
and delivered via overnight courier or certified mail, return receipt requested
to:
PLYmedia Inc.724 Arastradero Rd, Suite 109 Palo Alto, CA 94306 Attention:
STM Administrator
Our customer service department can be reached at
info@plymedia.com.
PLYmedia shall serve notices related to this contract by
posting them on the PLYmedia Site or by sending them to the postal address or
e-mail address you have given to Company or as a text message to your mobile
telephone number associated with your account. Notices sent by mail shall be
deemed received seven days after they were sent. Notices posted on the PLYmedia
Website or sent by e-mail or as a text message shall be deemed received on the
weekday following the day when they were posted or sent.
(b) Copyright
Infringement:
If you believe that your work has been copied and posted on the
STM Service in a way that constitutes copyright infringement, please contact the
participating Content Site, following the Content Site's respective reporting
procedure, and provide them with the following information: (i) an electronic or
physical signature of the person authorized to act on behalf of the owner of the
copyright interest; (ii) a description of the copyrighted work that you claim
has been infringed; (iii) a description of where the material that you claim is
infringing is located on the STM Service; (iv) your address, telephone number,
and email address; (v) a written statement by you that you have a good faith
belief that the disputed use is not authorized by the copyright owner, its
agent, or the law; (vi) 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.
(c) Severability.
This Agreement operates to the fullest extent permissible by law. If any
provision of this Agreement is unlawful, void or unenforceable that provision is
deemed severable from this Agreement and does not affect the validity and
enforceability of any remaining provisions.
(d) Entire Agreement. You agree that
this Agreement constitutes the entire, complete and exclusive agreement between
you and us regarding the STM 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.
(e) 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.
(f) Governing Law. This Agreement is
governed in all respects by and construed in accordance with the laws of the
State of California without given effect to any principles of conflicts of law.
You agree to submit to the exclusive jurisdiction of the courts of the State of
California, County of Los Angeles or, if appropriate, the United States District
Court for the Central District of California for any resolution of any dispute,
action or proceeding arising in connection with this Agreement or your use or
non-use of the PLYmedia Site, and you further irrevocably waive any right you
may have to trial by jury in any such dispute, action, or proceeding. The
application of the United Nations Convention of Contracts for the International
Sale of Goods is expressly excluded.
(g) Waiver. No waiver of any provision of
this Agreement shall be effective unless it is in writing and signed by an
authorized representative of PLYmedia. The remedies of PLYmedia under this
Agreement shall be cumulative and not alternative, and the election of one
remedy for a breach shall not preclude pursuit of other remedies. The failure of
a party, at any time or from time to time, to require performance of any
obligations of the other party hereunder shall not affect its right to enforce
any provision of this Agreement at a subsequent time, and the waiver of any
rights arising out of any breach shall not be construed as a waiver of any
rights arising out of any prior or subsequent breach.
Effective Date: January 1,
2008