SendMe Mobile - Ringtones, Wallpapers, Text Messages, and Games for Your Cell Phone!

SENDME TERMS OF SERVICE

Effective: July 1, 2006

IMPORTANT: THE FOLLOWING TERMS AND CONDITIONS APPLY TO YOUR USE OF THE SENDME WEBSITE AND SERVICES. PLEASE READ THEM CAREFULLY TOGETHER WITH THE SENDME PRIVACY POLICY.

WEBSITE AND SERVICES

Welcome to SendMe Mobile, provided by SendMe, Inc. ("SendMe" or "we"). By registering for, visiting or using any aspect of the Website (defined below) or registering, accessing or using the Services (defined below), you are agreeing to be bound by the following terms and conditions (the "Terms of Service"). "Website" means any websites owned and operated by SendMe, including the websites located at www.sendmemobile.com, www.sendmedevotions.com, www.sendmedownloads.com, www.sendmegames.com, www.sendmegraphics.com, www.sendmetrivia.com, www.sendmetunes.com, and www.sendmewallpaper.com, as well as any co-branded versions of those websites, but does not include any other web site linked to or from any of the foregoing. "Service" means any or all of the mobile content delivery services provided by SendMe which allows you to use your compatible mobile telephone or other device which you own or have control over, or for which you have permission to use and to incur charges for (the "Device") to download a variety of mobile entertainment content and to interact with SendMe or other users, via the Internet, SMS, MMS, WAP and other means of mobile content delivery. The term "Content" means (i) all content posted, transmitted, accessible or available for download or otherwise through the Website or Service, including, without limitation, in the form of software, content, design, text, images, photographs, illustrations, audio and video material, artwork, graphic material, or otherwise, such as ringtones, wallpapers, games, graphics, horoscopes, data, news, and other information, and (ii) any of the foregoing which you post, transmit or send on or through the Website or any Service (referred to as "User Provided Content").

PERMITTED USERS

The Website and Service are not directed to children under the age of 13. You must be at least 13 years of age to sign up for or use the Website or the Service and each user who signs up or uses the Website or any Service represents to SendMe that they are at least 13 years of age. If you are older than 13 but not yet 18 years of age, you agree that you have received parental permission to provide personal information to SendMe and to order any products or services through the Website and/or Service. Access to and use of the Website and Service is limited to users in the United States. Nevertheless, since use of the Internet and mobile devices is global in nature, it may be possible to access and/or use the Website and/or the Service outside of the United States. In the event of such access and/or use, you agree to comply with all local rules regarding online conduct and transmission of information, including, without limitation, all applicable laws regarding the transmission of technical data exported from the United States or any other jurisdiction. We make no representation that the Website, the Service and/or the Content are lawful in any jurisdiction outside the United States.

USER AGREEMENTS

By visiting, using or registering for the Website or any Service, you agree to be bound by the terms and conditions of this Terms of Service, including any changes which SendMe may determine to make to this Terms of Service from time to time. Additionally, if you register for or use a specific Service, you also agree to be bound by any specific terms and conditions or rules ("Rules") applicable for such Service as provided directly to you or posted on the Website. If you do not agree with this Terms of Service, the Privacy Policy and any applicable Rules, you may not register with, access or use the Website or the Service. By using the Website or the Service and/or by providing any information to SendMe, you warrant and represent that (i) you have read, understood and agree to be bound by this Terms of Service; (ii) you are at least 18 years of age, or you are older than 13 but not yet 18 years of age and have parental permission to use the Website and Service; (iii) you are the owner of the Device whose phone number you are entering, or if you do not own the Device, you have explicit permission from the owner of the Device to use the Device, enter the phone number for such Device and to incur charges to be billed to that Device; and (iv) you are a resident of the U.S..

USE OF WEBSITE AND SERVICE

To use the Service, you must have a mobile communications subscription with a participating carrier (a "Carrier") for your Device or otherwise have access to a mobile communications network for which SendMe makes the Service available and pay any service fees associated with any such access (for example, all standard messaging fees charged by your Carrier). We make no representation as to compatibility of your Device with the Website, the Services or the Content. You are responsible for enabling certain functionalities of your Device, such as a data plan and text messaging, which are required in order to participate in various elements of the Service. In addition, you must provide all equipment and software necessary to connect to the Website and Service (as they exist today or as modified or upgraded), including, but not limited to, computer equipment, Internet access, a mobile hand set or other mobile access Device that is in working order and suitable for use in connection with the Service. Carriers may impose limitations on delivery of certain types of content, so you should check with your Carrier to determine whether any transmission limitations will apply to any Service you have or may decide to register for.

The Website, Service and Content are solely for your personal non-commercial use on the Device you designate in your registration or at the time you purchase an item of Content. You may not copy, distribute, transmit, broadcast, sell, resell or upload to any computer or Device, or create derivative works from any portion of the Website or Service, including, without limitation, any Content. You may not, or otherwise attempt to (or otherwise authorize, encourage or support other attempts to) circumvent, re-engineer, decrypt, break or otherwise alter or interfere with the Website or Service, including, but not limited to, any Content.

Certain Services offered by SendMe are provided on an automatically renewing subscription basis whereby you will receive certain types of Content on a periodic basis (e.g., jokes, trivia questions) or will be permitted to download a pre-set number of pieces of Content per month (e.g., ringtones, wallpaper) each for a pre-set monthly price ("Subscription Service"). Other Services carry a separate price for each piece of Content (e.g., downloading an individual ringtone) that you select to receive ("A La Carte Service"). Unless otherwise stated in the Rules applicable to a Subscription Service, if you register for a Subscription Service entitling you to a fixed amount of Content per month, any unused Content items at the end of any month will not be carried over to any future period and you will lose your right to access or use that unused number of Content items. Billing for any Subscription Service begins when you subscribe or register for the Service and is automatically re-billed on the monthly anniversary of your subscription or registration, unless you cancel prior to the monthly anniversary. Billing for an A La Carte Service will be at the time you selected the A La Carte Service. Access to a Service for which you have subscribed may be provided by directly delivering to you the applicable Content (e.g., by delivering an SMS message with a joke) or by enabling you to download the applicable Content (e.g., by delivering a WAP-Push link that leads to a ringtone download).

In order to use the Services, you must provide SendMe your Device phone number (the "Device Data"). You agree to provide current, complete and accurate Device Data and you agree to update your Device Data and other account information as necessary to keep it current, complete and accurate. You should update your information by visiting your My Mobile page. SendMe will use your Device Data and other account information in accordance with its Privacy Policy. You agree that SendMe may rely on the Device Data to provide the Services, including, without limitation, billing for the Service through your Carrier. SendMe shall have no liability associated with or arising from your failure to maintain current Device Data, including, but not limited to, your failure to receive critical information. You are responsible for all activities conducted under your account, whether or not you authorized such activity.

TRANSMISSIONS, SUBMISSIONS AND POSTINGS

You represent and warrant to SendMe that you own all of the rights in and for, or that you have a valid license to transmit, submit or post, any and all User Provided Content that you transmit, submit or post to the Website or through a Service. By transmitting, submitting or posting User Provided Content to the Website or through a Service, you grant SendMe and its Affiliates the worldwide, fully-paid, royalty-free, non-exclusive, sub-licensable right and license to use, copy, format, adapt, publish, sell, license, distribute and/or incorporate any or all of your User Provided Content in any media and for any purpose that SendMe may determine in its sole discretion.

You shall not transmit, submit or post any User Provided Content to the Website or through a Service if it:

Infringes SendMe's or any third party's copyright, patent, trademark, trade secret or other proprietary rights;
Violates any law, statute, ordinance or regulation;
Is libelous, unlawfully threatening, unlawfully harassing, defamatory, obscene, explicit or vulgar, or otherwise injurious to SendMe or third parties or that infringes SendMe’s or any third party's rights of publicity or privacy;
Contains any viruses, worms, Trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots or other code or computer programming routines that contain contaminating or destructive properties or that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
Contains or constitutes chain letters, mass mailings, political campaigning, unsolicited or unauthorized advertising, or any form of "spam";
Is false, inaccurate or misleading; or
Is a commercial advertisement or solicitation.

Although SendMe does not regularly review User Provided Content, SendMe reserves the right (but not the obligation), at its sole discretion and at any time, to edit, refuse to post or remove any User Provided Content. Pursuant to the Privacy Policy, SendMe may review transmissions, submissions or postings made by you to determine, in its sole discretion, your compliance with this Terms of Service.

CHARGES / BILLING

You authorize SendMe to charge the appropriate fees for the Services (the "Fees") directly to your Carrier invoice for your Device, as selected by you, and if you select a Subscription Service, you authorize the continued billing each month until you cancel such subscription. If any of your billing information changes (e.g. Device Data or Carrier), you must promptly inform SendMe by updating your information via your My Mobile page. If you cancel your Subscription Service for any reason, SendMe will not refund any of your fees paid prior to cancellation. Payment for any A La Carte Service is also non-refundable, even if you are unable to receive the A La Carte Service item for technical reasons. Your sole recourse in the event of such a technical issue is to request that the A La Carte Service item be re-sent.

When you register for a Service, information about the Fees applicable for such Service will be provided to you either as part of the signup process on the Website or via a confirmation message sent to the Device you provide. These Fees are also available to you on the Website under your account information. Unless otherwise indicated, the Fees will be included in your bill from your Carrier, and you agree to pay your Carrier all applicable Fees. The Fees shall be due immediately and are non-refundable, unless otherwise indicated to you in writing by SendMe. Other third party charges, such as from your Carrier, may apply when you register for and/or use a Service. Please review your agreement with your Carrier or contact your Carrier for more details.

All Fees are subject to change and SendMe will provide you with reasonable notice of such change in Fees prior to the new Fees taking effect. Upon receipt of SendMe's notice of a change in Fees, you may cancel any Subscription Service for which Fees have been changed at the end of your then-current subscription period if you do not accept the new Fees. Continuation of a Service after notice of a change in Fees will constitute your agreement to the new Fees.

CHANGES TO THIS TERMS OF SERVICE

SendMe reserves the right at any time and from time to time to amend, supplement or modify the terms of this Terms of Service. We will post or display notices of material changes on the Website and those changes will become effective ten (10) days after the date of posting. Your continued use of the Website and/or Service after the changes become effective, signifies your agreement to bound by such modified Terms of Service.

PRIVACY

All personally identifiable information you provide in connection with your use of the Website and Service is subject to the SendMe Privacy Policy.

COPYRIGHT AGENT

SendMe respects the intellectual property rights of others, and expects you to do the same. If you believe that any Content has been used on the Website or Service in a manner not authorized by you and that constitutes copyright infringement, please provide SendMe's Copyright Agent with a written notice that includes the following information:

an electronic or physical signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
identification of the copyrighted work claimed to have been infringed;
a description of where the material that you claim is infringing is located on the Website or Service;
your address, telephone number, and e-mail address;
a statement by you that have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
a statement by you, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

SendMe's Copyright Agent for notice of claims of copyright infringement on the Website or any Service is:

Copyright Agent
c/o SendMe, Inc.
585 Howard Street
Third Floor
San Francisco, CA 94105
fax: (415) 978-5248
copyright@sendmemobile.com

INTELLECTUAL PROPERTY RIGHTS

The Website and Service, including, without limitation, all software, content, design, text, images, photographs, illustrations, audio and video material, artwork, graphic material, databases, proprietary information and all copyrightable or otherwise legally protectible elements of the Website and Service, including, without limitation, the "look and feel" of the Website and Service, the Content, all trademarks, service marks and tradenames, but excluding all User Provided Content (individually and/or collectively, the "Material") are the property of SendMe and/or its Affiliates (as defined below). The Website, Service and Material are owned by SendMe and/or its Affiliates, and are legally protected, without limitation, under U. S. Federal and State laws, as well as applicable foreign laws, regulations and treaties. Unless the context or service clearly requires otherwise or we explicitly say so in writing, the term "the Service" includes the Material as well. You must not alter, delete or conceal any copyright notices or other intellectual property notice contained on the Service. SendMe grants to you a limited, non-exclusive, non-transferable, revocable right to download the Content to your compatible Device solely for your own non-commercial, non-exclusive, non-assignable, non-transferable and limited personal use and for no other purposes. You understand, acknowledge and agree that you shall not, nor will you allow any third party (whether or not for your benefit) to, download, reproduce, modify, create derivative works from, display, publish, perform, transfer, broadcast, distribute or otherwise use the Website, Service or Content except as expressly provided in this Terms of Service.

PROMOTIONS, GIVEAWAYS AND ADVERTISING

SendMe and/or its Affiliates may present advertisements and promotional materials on or through the Website and any Service. Your participation in any such promotional event is subject to any applicable Rules associated with that event as described on the Website. Other third party charges, such as from your Carrier, may apply when you participate in such an event. Please review your agreement with your Carrier or contact your Carrier for more details. Your correspondence or business dealings with, or participation in promotions of, any third-party advertisers on or through the Website or 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 SendMe nor its Affiliates shall be responsible or liable, directly or indirectly, 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 Website or Service.

LINKS TO THIRD-PARTY SITES

The Website and the Service may include links to third-party websites not owned or operated by SendMe (the "Third Party Websites"). These links are provided only as a convenience to you. Neither SendMe nor its Affiliates are responsible for the availability of such Third Party Websites or their contents, nor will SendMe or its Affiliates have any liability, directly or indirectly, for any damage or loss 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 Third Party Websites to those sites' administrators.

INDEMNITY

You agree to indemnify and hold harmless SendMe and its employees, officers, directors, parents, subsidiaries, agents, contractors, suppliers, affiliates and/or licensors (the "Affiliates") from and against any and all claims, actions, demands, causes of action and other proceedings arising from or concerning (A) any third party access, use or misuse of the Website, Service or Content, through the Devise or under your account, whether or not authorized by you, or (B) your violation of these Terms of Service, the Privacy Policy, applicable Rules or any applicable laws (collectively "Claims"), and agree to reimburse them on demand for any liabilities, losses, costs, judgments, fees, fines and other expenses they incur (including reasonable attorneys' fees and court costs) as a result of any Claims, including costs of defense of such Claim.

CHANGES TO OR TERMINATION OF WEBSITE AND/OR SERVICE

SendMe reserves the right in its sole discretion from time to time, to modify, suspend or discontinue all or any portion of any Service, including distribution of a particular type or category of Content in a Service. In such event, SendMe will not refund any portion of your fees, but SendMe will provide substitute Content or Services as it may determine to be appropriate, or may provide you with other alternatives, at SendMe's sole discretion. The foregoing is your sole remedy, and SendMe will have no liability, with respect to any changes to the Service or Content available through the Website or Service.

To cancel any Subscription Service for which you are registered, you should either send a text message with the text "STOP" to the short code for the Service you wish to cancel and then follow the instructions provided to you, or you may contact SendMe customer service via email at help@sendmemobile.com. Termination will become effective on the date you give notice of termination. No refunds will be provided even if you elect to terminate prior to the end of your paid billing period.

You agree that SendMe, in its sole discretion, may immediately suspend or terminate your use of the Website and/or any Service, or any part thereof, with or without notice to you, if you have (or if SendMe believes that you have) violated any provision of this Terms of Service, the Privacy Policy or any applicable Rules. You are responsible for all activities conducted under your account, whether or not you authorized such activity. Upon termination, SendMe may immediately deactivate or delete your account and all related information and files in your account, and may bar any further access to your account or Services by you. If SendMe suspends or terminates your use under this paragraph, you agree that SendMe shall have no liability or responsibility to you, and SendMe will not refund any portion of your fees paid to date.

You understand and agree that your sole right and remedy with respect to any dispute with SendMe is to cancel your use of the Service. This includes, but is not limited to, any dispute related to or arising out of: (1) any term of this Terms of Service or SendMe's enforcement or application of the same; (2) any SendMe policy or practice, including its Privacy Policy or SendMe’s enforcement or application of such policies or practices; (3) the Website, any Service and the Content; (4) your use of and/or ability to access and use the Website, Service or Content; and (5) the amount or type of fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods. You can cancel your account by delivering notice to SendMe as specified above.

DISCLAIMERS

YOUR USE OF THE WEBSITE, SERVICE AND CONTENT, IS SOLELY AT YOUR OWN RISK. THE WEBSITE, SERVICE AND CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND BY SENDME OR ITS AFFILIATES, AS APPLICABLE. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, SENDME AND ITS AFFILIATES, AS APPLICABLE, EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT. THERE IS NO WARRANTY THAT THE WEBSITE, SERVICE OR CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO THE SAME WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. SENDME AND/OR ITS AFFILIATES, AS APPLICABLE, DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WEBSITE, SERVICE OR CONTENT WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. YOU AGREE THAT YOU WILL NOT HOLD SENDME AND/OR ITS AFFILIATES, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING OR USING THE WEBSITE, SERVICE OR CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY INFECTIONS OR CONTAMINATIONS OF YOUR DEVICES YOU USE TO ACCESS THE SAME. YOU AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO SENDME AND/OR ITS AFFILIATES, AS APPLICABLE.

UNDER NO CIRCUMSTANCES SHALL SENDME AND/OR ITS AFFILIATES, AS APPLICABLE, BE LIABLE FOR ANY UNAUTHORIZED USE OF THE WEBSITE, SERVICE OR CONTENT. THE AUTHORIZED PRODUCTS ARE THE PROTECTED, COPYRIGHTED MATERIALS OF THIRD PARTIES. AUTHORIZED PRODUCTS MAY ONLY BE USED FOR INDIVIDUAL, PERSONAL USE. AUTHORIZED PRODUCTS MAY NOT BE COPIED, TRANSFERRED OR DISTRIBUTED WITHOUT THE PRIOR WRITTEN CONSENT OF THE AUTHORIZED PRODUCTS RIGHT OWNERS.

UNDER NO CIRCUMSTANCES SHALL SENDME AND/OR ITS AFFILIATES, AS APPLICABLE, BE LIABLE TO YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE WEBSITE, SERVICE OR CONTENT, EVEN IF SENDME AND/OR ITS AFFILIATES, AS APPLICABLE, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, SENDME AND/OR ITS AFFILIATES, AS APPLICABLE, SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EXCEED $100.

SENDME WILL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY, INCLUDING THE OWNER OF THE DEVICE, FOR ANY CONTENT OR ANY OTHER ASPECT OF THE WEBSITE OR SERVICE THAT ANYONE MIGHT FIND OBJECTIONABLE.

REMEDIES

You agree that any unauthorized use of the Website, Service or Content would result in irreparable injury to SendMe and its Affiliates for which money damages would be inadequate, and in such event SendMe and/or its Affiliates, 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 Terms of Service shall be construed to limit the remedies or relief available pursuant to statutory or other claims that SendMe or its Affiliates may have under separate legal authority, including but not limited to any claim for intellectual property infringement.

MISCELLANEOUS

This Terms of Service, and all terms or documents referred to herein, including without limitation, the Privacy Policy and Rules, represent your entire agreement with SendMe regarding your use of the Website and Services, including, without limitation, the Content. Except as expressly set forth herein, this Terms of Service does not confer any rights or remedies upon any person other than the parties to this Terms of Service and the Affiliates. If any part of this Terms of Service 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.

The failure of a party, at any time or from time to time, to require performance of any obligations of the other party under this Terms of Service shall not affect its right to enforce any provision of this Terms of Service 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. No waiver of any provision of this Terms of Service shall be effective unless it is in writing and signed by an authorized representative of SendMe. The remedies of SendMe and/or the Affiliates under this Terms of Service shall be cumulative.

Your rights under this Terms of Service are not assignable or transferable. You agree not to resell or transfer the Service including, without limitation, the Content or any portion thereof.

The laws of the State of California, excluding its conflicts-of-law rules, govern this Terms of Service and your use of the Website and Services, including, without limitation, the Content. You expressly agree to the exclusive jurisdiction and venue in the state and federal courts of the State of California, San Francisco County, USA for all disputes arising out of or related to the Website, the Services or this Terms of Service.

Please direct any questions concerning the Website, the Service or any other issue related to SendMe, to help@sendmemobile.com. Except as expressly provided otherwise herein, all notices to SendMe shall be in writing and delivered via overnight courier or certified mail, return receipt requested to:

SendMe, Inc.
585 Howard Street
Third Floor
San Francisco, CA 94105

SendMe will give notices to you related to this Terms of Service by posting them on the Website or sending them as a text message to your Device, and you expressly agree to receive notices from SendMe in such manner. Notices posted on the Website or sent as a text message shall be deemed received on the weekday following the day they were posted or sent.