TERMS OF SERVICE
IMPORTANT: BY PROCEEDING WITH THE COMPLETION OF YOUR PURCHASE OF SINGLE DOWNLOAD (THE "PURCHASE PROCESS") YOU AGREE WITH THE FOLLOWING TERMS AND CONDITIONS AND ACCEPT THE TERMS OF THIS AGREEMENT AS SET FORTH BELOW. PLEASE READ CAREFULLY.
WELCOME TO CSTV Mobile ("Site"), a property of CSTV Online Inc. This Site is operated by CSTV. The Site may include materials owned by third parties and posted on the Site by virtue of a license, grant or some other form of agreement between the third party and CSTV. These Terms of Service ("Terms") constitute a legal Agreement ("Agreement") between you and CSTV please read them carefully. By downloading mobile content to a mobile device (each a "Download"), you (1) represent that you have read and understood this Agreement and agree to be bound by its terms and conditions. (2) 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 CSTV Service on behalf of the subscriber; and (3) agree on behalf of the subscriber and yourself to be bound by these terms and conditions of this Agreement. Any questions or comments regarding, or problems with, this Site should be sent to the Site Administrator at customerservice@website.cstv.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 CSTV Online Inc. This Agreement explains our obligations to you, and your obligations to us in relation to the CSTV Mobile Service.
1. DESCRIPTION OF SERVICE
CSTV provides downloadable mobile entertainment content, such as ringtones, games, graphics, news and other information data via the Internet, SMS, MMS, WAP, BREW and other means of mobile content delivery to certain compatible mobile devices (the "Service"). You acknowledge and agree that the Service is for your personal use on the mobile device designated at 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 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 Service, including, but not limited to, any Download(s). We make no representation as to compatibility of your Device with the CSTV Site and the Service and you acknowledge and agree that CSTV shall have no liability for the compatibility or non-compatibility of your Device with the CSTV Site and the Service.
2. REGISTRATION AND ACCESS TO SERVICE
(a) Access to the Service: In order to use the Service, you must have a mobile communications subscription with a participating carrier or otherwise have access to a mobile communications network for which Company makes the Service available as well as any carrier services necessary to download content (e.g., AT&T's Media Net, service), and pay any service fees associated with any such access. In addition, you must provide all equipment and software necessary to connect to the 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 Service. You are responsible for ensuring that your equipment and/or software do not disturb or interfere with Company's operations. Any equipment or software causing interference shall be immediately disconnected from the Service and Company shall have the right to immediately terminate this Agreement. 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.
(b) Individual Downloads: Company is also offering through its service individual Downloads for one-time non-recurring charges ("Individual Downloads"). Prices for individual content items are located next to each item on Site and/or displayed at point of sale. The details of the Individual Downloads are incorporated into this Agreement by this reference and form part of the terms of this Agreement. All terms and conditions of this Agreement shall govern Individual Downloads.
(c) Registration Data: If you opt to register for the Service on our Site, you agree to: (i) provide true, accurate and complete information about yourself and your mobile device 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 Company has reasonable grounds to suspect that the Registration Data is untrue, inaccurate or incomplete, Company has 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 send you important information and notices regarding your account and our Services. 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. (d) Username and Password: If you opt to register for the Service on our Site, you may 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 maintaining the confidentiality of your username and password and must immediately notify us of 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. Company may need to change usernames allocated to certain of its Services and reserves the right to do so. You will be informed if this is necessary.
(e) Access without Registration: Company may provide you with access to some 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.
(f) License to Download(s): You acknowledge and agree that the Download(s) made available as part of the Service are owned by Company, its affiliate and/or licensors, as applicable, and are protected by intellectual property laws. Company 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 Download(s) and the 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.
As noted in Section 9, 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 content from your wireless communications device.
(g) Interruptions or Discontinuation of Service: Company reserves 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.
(h) Third Party Products and Services: We may make available or provide access to products and services of independent third parties either directly or via links to websites operated by such third parties. Such products or services shall be purchased and/or obtained directly from such third party. You acknowledge and agree that COMPANY SHALL NOT BE A PARTY TO, OR IN ANY WAY RESPONSIBLE FOR, ANY TRANSACTION CONCERNING PRODUCTS OR SERVICES MADE AVAILABLE FROM SUCH THIRD PARTIES OR FOR ANY CONTENT OR INFORMATION PRESENTED IN CONNECTION WITH ANY PRODUCTS OR SERVICES OF THIRD PARTIES.
3. PRIVACY
See CSTV privacy policy, located on this Site, for an explanation of our collection and use of personal information under this Agreement: http://www.cstv.com/ot/privacy.html.
4. INDEMNIFICATION
You agree to defend, indemnify and hold harmless CSTV, its parents, and affiliates together with their respective employees, agents, directors, officers and shareholders, from and against all the liabilities, claims, damages and expenses (including reasonable attorney's fees and costs) arising out of your use of this Site and its Service; your failure to use the Site; your breach or alleged breach of this Agreement or your breach or alleged breach of the copyright, trademark, proprietary or other rights of third parties.
5. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE 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 COMPANY SHALL HAVE NO LIABILITY TO YOU, OR TO ANY THIRD PARTY, FOR ANY MODIFICATION, SUSPENSION, DISCONTINUANCE OR TERMINATION OF THE SERVICE, OR ANY PART THEREOF. COMPANY MAKES NO WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE 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 COMPANY'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 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, COMPANY, ITS 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 COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE 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.
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 Service ("Company Intellectual Property Rights") are owned by Company or its licensors, and you agree to make no claim of interest in or ownership of any such Company Intellectual Property Rights. You acknowledge that no title to the Company 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.
7. OBJECTIONABLE OR EXPLICIT CONTENT
You and the owner of the Device acknowledge and agree that CSTV Online, Inc. is not liable to anyone for any content or materials constituting all or part of any Download or any other aspect of the Service that anyone might find objectionable or contain explicit sexual content, and you and the owner of the Device release CSTV Online, Inc. from any and all liability related thereto.
8. FEES
The amount of the individual download fees is identified and available on the Site. You agree to pay your mobile device operator the fees that corresponds to the individual downloads you select in accordance with the fees in effect at the time of your order. Unless otherwise indicated, the charges shall be invoiced on the bill from your participating mobile communications carrier. All fees are subject to change upon notice from Company. Company will provide you with reasonable notice of such change.. All fees are due immediately and are non-refundable, except as otherwise expressly noted.
9. TERMINATION AND CANCELLATION OF SERVICES
You agree that Company, at its sole discretion, may at any time terminate your use of the Service or individual services provided via the Service, if Company believes that you have violated or acted inconsistently with this Agreement. You further agree that Company has the right to immediately terminate your use of, or access to, this Site at any time if Company decides at its sole discretion that you have breached any term or condition of this Agreement or any relevant law, rule or regulation or you have engaged in conduct that CSTV considers to be inappropriate or unacceptable.
You agree that upon termination of your access to the Service under any provision of this Agreement, Company 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 Service. Further, you agree that Company shall not be liable to you or any third party for any termination of your access to the Service.
10. MISCELLANEOUS PROVISIONS
(a) Notices And Announcements: Except as expressly provided otherwise herein, all notices to Company shall be in writing and delivered via overnight courier or certified mail, return receipt requested to:
CSTV Online, Inc.
85 10th Avenue, 3rd Floor
New York, NY 10011
(b) 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.
(c) Entire Agreement: You agree that this Agreement constitutes the entire, complete and exclusive agreement between you and us regarding the Service and supersedes all prior and contemporaneous 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 is governed by, and construed in accordance with, the laws of the State of New York without giving effect to any principles of conflicts of law. You agree to submit to the exclusive jurisdiction of the courts of the State of New York or, if appropriate, the United States District Court for the Southern District of New York for resolution of any dispute, action or proceeding arising in connection with this Agreement or your use or non-use of the Site, and you further irrevocably waive any right you may have to trial by jury in any such dispute, action or proceeding.
(f) Waiver: No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of Company. The remedies of Company 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.
(g) 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.
(h) Survival: In the event this Agreement terminates as provided herein, Sections 2(b), 2(c), 2(e), 4, 5, 6 and 10 of this Agreement shall survive such expiration or termination.
Effective Date: August 1, 2006
NOTICE
CSTV reserves the right at any time and from time to time to amend, supplement or modify the terms of this Agreement (the "Amendments"). We will post or display notices of material Amendments on the CSTV Site. Once CSTV posts such Amendments on the CSTV Site, these Amendments become effective immediately and if you continue to use the CSTV Site after they become effective it will signify your agreement to be bound by such Amendments.
