YOU MUST READ THE FOLLOWING TERMS OF USE ("Agreement"). YOUR CONTINUED USE OF THE SERVICE INDICATES YOU HAVE READ AND ACCEPTED THESE TERMS IN THEIR ENTIRETY.
1. General
1.1 This Agreement is a contract between you and 9 Squared, Inc., a wholly owned subsidiary of MonsterMob Group, plc ("9 Squared") and governs your use of all Content (as defined below) and your activity in connection with all 9 Squared websites (collectively the "Service"). By using the Service, you represent that you have read and understood this Agreement and agree to be bound by its terms and conditions. If you do not agree to be bound by (or cannot comply with) any of the terms and conditions of this Agreement, do not access or attempt to access the Service.
1.2 Squared may from time to time amend, supplement or modify the terms of this Agreement. If you do not agree to be bound by or cannot comply with the Agreement as amended, your only remedy is to stop using the Service. You will be deemed to have accepted the Agreement as amended if you continue to use the Service.
2. Service
2.2 Use of Service
2.2.1 You may use the Service only in accordance with the terms and conditions of this Agreement and any amendments, including any additional terms necessary in connection with any particular feature or function of the Service.
2.2.2 The Service is for your personal use and may only be used in accordance with the terms and conditions of this Agreement. You understand and agree that you may not transmit or re-transmit, broadcast or re-broadcast or make any commercial use of the Service, including the Content. For example, you may not copy or distribute the Service or the Content in any manner not expressly authorized by the Service.
2.2.3 You may not attempt (or authorize, encourage or support others' attempts) to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Service, including the Content. You agree to advise 9 Squared promptly of any such unauthorized use(s) or attempt(s).
2.2.4 You assume total responsibility and risk for your use of this Service. To the extent permitted by law, 9 Squared provides all Services, Content and Information on an "AS IS" basis and does not make any warranties, express or implied, representations or endorsements with regard to the Service, merchants, information, or Content.
2.2.5 As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by these terms and conditions. You may not use the Service in any manner that could damage, disable, overburden, or impair the Service, or network, connected to the Service, or interfere with any other party's use and enjoyment of the Service. You may not attempt to gain unauthorized access to the Service, accounts, computer systems or networks connected to the Service, through any means. 9 Squared reserves the right at all times to disclose any information as 9 Squared deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in its sole discretion.
2.2.6 9 Squared 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 9 Squared nor its affiliates or licensors shall be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
2.2.7 Please direct any questions concerning the Service, Content or any other related issue to contactus@9squared.com.
2.3 Delivery
Delivery of Product(s) and Services purchased will be made directly to your cellular phone. Delivery is conditional. In order for proper delivery, your cellular phone must be turned on; capable of receiving the Product(s); set to receive text messages (Please note that not all mobile phones allow the storage of new ringtones). Ordered Product(s) can only be delivered when the cellular phone is on a compatible network. Provided that the cellular phone and cellular phone provider’s network will accept the Product(s), delivery of the Product will occur within 24 hours of completion of your request pursuant to the terms herein. Typically, delivery of the Product(s) occurs within a matter of seconds. We will attempt to deliver the Products a total of three times to the same cellular phone. If the Product(s) has not been successfully delivered, please notify us within 7 days. If you do not notify us within this period, we will presume that the Product(s) has been received.
3. Content
3.1 In consideration of your acceptance of these terms and conditions, 9 Squared grants you a non-exclusive, non-transferable, single-user right to download and use the Content on a single hand-held computer or mobile device. This license extends to you and your hand-held computer or mobile device.
3.2 You may not reproduce, copy, transfer or distribute by any means, method or process whatsoever, any of the Content licensed by this Agreement, including by not limited to, transferring or downloading any such Content from one hand-held computer or mobile device to another, to a computer hard drive, or otherwise copying the Content onto any other storage medium.
3.3 This license may not be assigned without the written consent of 9 Squared, which right may be withheld by 9 Squared in its sole discretion.
3.4 The Content may contain third party Content which requires notices and/or additional terms and conditions. By accepting this Agreement, you are also accepting the additional terms and conditions, if any, set forth therein.
3.5 You may not alter, merge, modify, or adapt the Content or create derivative works based upon the Content.
3.6 You may not sell, rent, lease, or sublicense the Content.
3.7 9 Squared is not responsible to you for any content or materials constituting all or part of any Content or any other aspect of the Service that you might find objectionable.
3.8 Nothing in this Agreement grants you or authorizes you to grant to anyone else any right to reproduce, copy or distribute by any means, method or process whatsoever any of the Content licensed by this Agreement, including but not limited to, transferring or downloading any such Content to a computer hard drive, or otherwise copying the Content onto any storage medium.
3.9 Nothing in this Agreement grants you or authorizes you to grant to anyone else any right to reproduce, copy or distribute or perform publicly by any means, method or process whatsoever, any sound recording embodying any of the Content licensed under this Agreement.
3.10 If you fail to comply with this Agreement, 9 Squared may, in addition to its other remedies, terminate this Agreement and the license it grants you and you must destroy all copies of the Content.
3.11 The foregoing license grants you a limited license to use the Content. 9 Squared and its licensors retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Content and all copies thereof. All rights not specifically granted in this Agreement including Federal and International Copyrights, are reserved by 9 Squared and its licensors.
3.12 CONTENT WARRANTY DISCLAIMER AND LIMITED LIABILITY. THE CONTENT IS PROVIDED TO YOU ON AN "AS-IS" BASIS. 9 SQUARED PROVIDES NO TECHNICAL SUPPORT, WARRANTIES OR REMEDIES FOR THE CONTENT. 9 SQUARED AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. 9 SQUARED DOES NOT WARRANT THAT THE CONTENT IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE U.C.C. WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. 9 SQUARED SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE CONTENT, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY 9 SQUARED, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. (USA ONLY) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
3.13 The Content Warranty Disclaimer and Limited Liability set forth above are fundamental elements of the basis of the Agreement between 9 Squared and you. 9 Squared would not be able to provide the Content on an economic basis without such limitations. Such Warranty Disclaimer and Limited Liability inure to the benefit of 9 Squared’s licensors.
3.14 You may not transfer the Service or any Content out of your handset via any means for any purpose. Any copying, redistribution or other use of the Content is expressly prohibited without the prior written consent of 9Squared.
4. Privacy
4.1 For additional information regarding the use of information collected in connection with the Service, please refer to the Privacy Policy of Nick.com at http://www.nick.com/mynick/site_wide/privacy/index.jhtml .
5. Liability
5.1 You agree to indemnify and hold harmless 9 Squared and its agents, employees, representatives, licensors, affiliates, parents and subsidiaries from and against any and all claims, actions, demands, causes of action and other proceedings arising from or concerning your use of the Service and the Content (collectively "Claims"), and to reimburse them on demand for any losses, costs, judgments, fees, fines and other expenses they incur (including attorneys' fees and court costs) as a result of any Claims.
5.2 UNDER NO CIRCUMSTANCES SHALL 9 Squared AND/OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS ("9 SQUARED PARTIES") BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE CONTENT, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE CONTENT AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF 9 Squared OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
5.3 9 SQUARED’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $50 OR THE AMOUNT PAID BY YOU FOR THE SERVICE AND/OR CONTENT THAT CAUSED SUCH DAMAGE.
5.4 (USA ONLY) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
5.5 THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO ALL ASPECTS OF THIS AGREEMENT.
5.6 UNDER NO CIRCUMSTANCES SHALL 9 SQUARED AND/OR THE 9 SQUARED PARTIES, AS APPLICABLE, BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE AND/OR THE CONTENT.
6. Miscellaneous
6.1 Remedies. You understand and agree that any unauthorized use of the Service or the Content would result in irreparable injury to 9 Squared and/or its affiliates or licensors for which money damages would be inadequate, and in such event 9 Squared 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 9 Squared, its affiliates and/or licensors may have under separate legal authority, including but not limited to, any claim for intellectual property infringement.
6.2 This Agreement shall be governed by the internal laws of the State of Colorado, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Denver County, Colorado or the United States Federal District for the District of Colorado to resolve any disputes arising under this Agreement. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
6.3 This Agreement contains the complete Agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous Agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Content licensed hereunder shall be of no effect. The failure or delay of 9 Squared to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach. Notwithstanding anything in this Agreement to the contrary, in the event of a conflict between the terms and conditions of this Agreement and the Nick.com Terms & Conditions ( http://www.nick.com/mynick/site_wide/terms/index.jhtml), the Nick.com Terms & Conditions shall control.
6.4 No 9 Squared dealer, distributor, agent or employee is authorized to make any amendment to this Agreement. This Agreement supersedes any and all prior agreements, discussions and negotiations between you and 9 Squared, and it sets forth the entire agreement and understandings between the parties as to the subject matter of this Agreement. Neither of the parties shall be bound by any terms, conditions, definitions, waivers, warranties or representations with respect to the subject matter of this Agreement other than as expressly provided in this Agreement or duly set forth on or subsequent to the date hereof in a writing signed by a proper and duly authorized representative of whichever of the parties is to be bound thereby.
6.5 If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
6.6 "9 Squared" and other trademarks contained in the Content are trademarks or registered trademarks of 9 Squared, Inc, in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Content. This Agreement does not authorize you to use 9 Squared's or its licensors' names or any of their respective trademarks.
6.7 If either party breaches, or threatens to breach, any of its obligations under this Agreement, the damages to the other party will be great and irreparable; therefore, either party may apply to a court of competent jurisdiction for injunctive or other equitable relief to restrain such breach or threat of breach, without posting bond and without disentitling such party to any other relief in either law or equity.
6.8 This Agreement shall not be construed to create a joint venture or partnership between the parties hereto. Neither party shall have the right, power, or authority at any time to act on behalf of, to impose any obligation on, or to represent or legally bind the other.
6.9 The enumeration and headings contained in this Agreement are for convenience only and are not intended to have any substantive significance interpreting this Agreement.
6.10 You agree that 9 Squared may audit your use of the Content for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Content by you other than in full compliance with the terms of this Agreement, you shall reimburse 9 Squared for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.
6.11 Any correspondence, notice or request permitted to be given under or in connection with this Agreement or the subject matter hereof shall be sent by prepaid, certified, first class mail, or courier service with receipt of delivery obtained directly to 9 Squared addressed as follows:
Email Inquiries: contactus@9squared.com
Telephone Inquiries: (303) 567-6390
Facsimile Inquiries: (720) 889-0016
US Mail Inquiries:
9 Squared, Inc.
Legal Department
1999 Broadway
Suite 1250
Denver, CO 80202