All services under the FanBox and SMS.ac names are provided by SMS.ac, Inc. (“We” or “FanBox”) to You (“You”, “Your” or “User”), and subject to the terms of this agreement (“Agreement”), and any changes, rules or guidelines that may be published or posted from time to time by FanBox. In the event You are entering into the Agreement on behalf of an entity, You represent and warrant that You have the legal authority to bind such entity to the terms of this Agreement. FanBox currently offers services to users who agree to abide by (i) the terms and conditions of this Agreement; (ii) the privacy policy located at http://www.FanBox.com/Homepage/Privacy.aspx, and (iii) the Fanbox software download license. If there are any contradiction between this Agreement and any additional terms, notices or guidelines or rule for a particular service, promotion or product (“Additional Terms”), the Additional Terms shall take precedence in relation to that service. All such guidelines or rules are hereby incorporated by reference into this Agreement. FanBox reserves the right to change the nature of this relationship at any time without notice to You by posting it at http://www.FanBox.com/Homepage/TermsAndCons.aspx. YOUR CONTINUED ACCESS OR USE OF FANBOX WILL BE DEEMED AS AN ACCEPTANCE BY YOU OF THE CHANGES. .
Users who violate the terms of this Agreement will have their account (“Account”) canceled and they may permanently be banned from using FanBox. ENTERING A PAGE OF THE SMS.AC OR FANBOX SITES OR MAKING USE OF ANY API OR SERVICE WILL CONSTITUTE ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ABIDE BY THESE TERMS, PLEASE DO NOT ENTER ANY SITE OF THE FANBOX NETWORK OF SERVICES.
FanBox and SMS.ac are entertainment services that enable users to create unique profiles (which are made available on the Web and/or through mobile devices) and provides users with access to a collection of services and resources, including various communication tools, a web-based operating system, data storage, software, content, applications, and programming offered from time to time through its network of properties. Any software that is made available to You from FanBox is also subject to the terms of the end user license agreement, if any, which accompany the download of the software. Additionally, FanBox is making available to You APIs to enable You to build and operate an application. Applications may be used to form and develop, create and update content, including information, software, data, music, video, sound, photography, graphics, text, files, links, messages, widgets, applications, communications and other materials. Collectively, all of the above provided by You in whatever form or format on FanBox is the “Content”. You may instruct FanBox to charge FanBox users for the purchase or subscription to Your Content. All of the above mentioned services and products are collectively the “Services”.
FanBox employs representatives who, among other tasks, remove pornography and hate-communications, assist users by answering questions, and help users to become active participants of the community. FanBox and its representatives reserve the right to communicate directly with users through any of the community tools, as well as to use automation to do some or all parts of their jobs, including the removal of photos, pornography, or hate communications, as well as to communicate with users through the Web site, mobile phone applications, or text messaging, with the objective of encouraging users to become active users of the community. For security purposes, community representatives may use simulated or assumed identities, photos and interests in their profiles. You agree that Your public profile information, including but not limited to Your display name, photograph, interests and greeting may be utilized by the community representatives or community tools to encourage other users to communicate with You or to interact with the Services. Inactive profiles that have not been utilized by their creators in over 18 months may be removed or modified at the sole discretion of FanBox. All messages and services, whether or not they are delivered to or access Your mobile phone, may include a premium message charge on Your mobile phone account. You may also be charged for standard messages by Your mobile phone provider. Please check Your agreement with Your mobile phone provider to see if You are charged for receiving standard messages.
If You do not wish to receive messages on Your mobile phone from FanBox or its users, simply reply “stop” to any type of message, and that specific type of message or service will permanently cease. As part of its participation and adherence to the Mobile Consumer Bill of Rights, on a global basis FanBox includes opt-out instructions in all premium messages. You may change the setting on Your Account at any time at: http://www.FanBox.com/Preferences/Main.aspx while signed into FanBox. To permanently stop all messages from all FanBox products and delete Your FanBox Account, simply reply “stop all” to any message. Unless explicitly stated otherwise, any new features added to the current Services, including but not limited to the release of new FanBox products, shall be subject to this Agreement. You understand and agree that the Services are provided “AS IS” and that FanBox assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. Unless otherwise stated, all fees on the Services are quoted in United States Dollars. In order to use the Services, You must obtain access to the World Wide Web, either directly or through devices that access web-based content and data, and pay any service fees associated with such access. In addition, You must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.
You must be at least 18 years of age to access and use the Services.
YOU UNDERSTAND THAT FANBOX MAY MODIFY SERVICES AT ANY TIME AND THAT FANBOX SPECIFICALLY RESERVES THE RIGHT FROM TIME TO TIME TO ALTER THE SELECTION, FUNCTIONALITY AND PRICING OF SERVICES AND MESSAGES, THE NUMBER OF FREE MESSAGES, THE CONTENT PROVIDER REVENUE SHARE AND OTHER FREE SERVICES OR ELIMINATE ANY OR ALL FREE OR PREMIUM OFFERINGS ENTIRELY AT ITS SOLE DISCRETION, WITH OR WITHOUT NOTIFICATION. PLEASE CHECK BACK OFTEN TO UNDERSTAND THE LATEST AND CURRENT OFFERINGS.
In consideration of Your use of the Services, You agree to: (a) provide true, accurate, current and complete information about Yourself as prompted by the Service’s registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If You provide any information that is untrue, inaccurate, not current or incomplete, or FanBox has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, FanBox has the right to suspend or terminate Your Account and refuse any and all current or future use of the Services (or any portion thereof).
FanBox is concerned about the safety and privacy of all its users, particularly children. Please remember that the Services are designed to appeal to a broad audience. Accordingly, as a legal guardian, it is Your responsibility to determine whether any of the Services and/or Content is appropriate for Your child. You agree to grant FanBox a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicenseable (through multiple tiers), right to exercise the copyright and publicity rights You have to Your Registration Data and any information You provide to FanBox or other users within publicly accessible areas of the Services or through the messaging service (“Your Information”), in any media now known or not currently known. FanBox will only use the Registration Data and Your Information in accordance with FanBox Privacy Policy which is located at: http://www.FanBox.com/Homepage/Privacy.aspx. You agree that FanBox adds may add a tag line at the end of a message originated by You if the message has enough space for a tag line.
Subject to the terms and conditions of this Agreement, FanBox hereby grants You a non-exclusive, no right to sub-license, non-transferable license to use the FanBox APIs in conjunction with the FanBox Services. FanBox may periodically update or modify the APIs (“Modification”) and in such event, FanBox authorizes You to incorporate the Modification according to the terms and conditions of this Agreement and any additional documentation that may be provided by FanBox at the time of the Modification. If required by FanBox, You agree to incorporate the Modification no later than thirty (30) days from the date of FanBox’s release of same. Upon said incorporation and publication of the Modification, You will terminate use of all prior versions of the APIs. FanBox reserves the right, in its sole discretion, to license any new Modification separately, at an additional license fee. If You fail to comply with this provision, FanBox may terminate this Agreement.
FanBox shall retain all right, title, and interest to the FanBox system and APIs, including any ideas or technology utilized or developed in order to provide You with access to the APIs. You shall retain all right, title, and interest to the Content that You transmit, upload or post via the APIs. All rights not specifically granted herein are reserved to the owner thereof.
If required, You may be required to set up or be given a user ID or a password to use the FanBox Services. You are responsible for maintaining the confidentiality of the password for Your Account, and are fully responsible for all activities that occur under Your password or Account. You also may be required to establish other accounts such as under the MyMoney feature of FanBox in order to utilize a particular product or service. You agree to (a) immediately notify FanBox of any unauthorized use of Your password or Account or any other breach of security, and (b) ensure that You exit from Your Account at the end of each session. FanBox cannot and will not be liable for any loss or damage arising from Your failure to comply with this Section 4.
You understand that all Content, whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. Accordingly, You, not FanBox, are entirely responsible and liable for all activities conducted through Your Account. FanBox 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 the Services You may be exposed to Content that You might find to be offensive, indecent, or objectionable. Under no circumstances will FanBox 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 Services.
Listed below are some, though not all, violations that may result in FanBox terminating Your Account. You agree not to do any of the following actions while using the Services:
In addition, You understand and acknowledge that differing countries, societies and governments may hold their citizens, companies and visitors to a different standard of conduct and speech (legal, ethical, moral and/or religious), and in this regard Your Services may be terminated if they offend the conduct and speech standards of the country they are in or are transmitting into. Considerations include:
Note on unsolicited advertising and spam: FanBox policy on using our communication system to market to our users mandates that:
You acknowledge that FanBox doesn’t pre-screen Content, but that FanBox and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Services for any reason or no reason at all. You agree that You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, You acknowledge that You may not rely on any Content created by FanBox, transmitted through the Services, or submitted to FanBox. You acknowledge and agree that FanBox may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of FanBox, its users or the public. You understand that the technical processing and transmission of the Services, including Your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Unless Your Content is hosted on FanBox servers, You are responsible for obtaining and maintaining all computer hardware, software, ISP and hosting services, and communications equipment and services needed to access, maintain and host Your Content. You are also responsible for ensuring Your Content complies will all laws and regulatory policies. You authorize FanBox to link to, host if desired by FanBox in its sole discretion, and otherwise incorporate Your Content onto FanBox including but not limited to a User’s Mobile Homepage and a Directory Feature, and to perform any modification, copying, testing, distribution, or other processes necessary or reasonably required by FanBox to publish Your Content.
If available, Your Content may be hosted on FanBox servers. You agree that FanBox will have administrative rights to access and control Your hosted Content, including the right to access, view, copy, delete, and/or remove Your Content and any information relating to Your Content. Please be sure to maintain a backup copy of any and all data or other information relating to your Content.
SMS.ac may make available to You certain data storage capabilities (limitations), certain upload/download data capabilities (limitations), domain names, an mailboxes. You agree not to exceed these limits without express written permission from FanBox. While FanBox currently does not charge a fee for data storage, we reserve the right to do so in the future.
You acknowledge that FanBox may establish general practices and limits concerning use of the storage, including without limitation the maximum number of days that messages or other uploaded Content will be retained by the Services, the maximum number of messages that may be sent from or received by an account on the Services, the maximum size of any message that may be sent from or received by an account on the Services, the maximum disk space that will be allotted on the FanBox servers on Your behalf, and the maximum number of times (and the maximum duration for which) You may access the Services in a given period of time. You agree that FanBox has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Services. You acknowledge that FanBox reserves the right to delete the Content of accounts that are inactive for more than 90 days. You further acknowledge that FanBox reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
From time to time at its sole discretion FanBox may make special offerings to You of promotional credits under various programs which equate to FanBox credits regardless of the terminology used by FanBox at the time of the offer. You acknowledge that verification of Your mobile phone may be required for redemption of any such offer from FanBox through Your My Money account and that these credits are solely for use with FanBox Services and are not redeemable for cash. These promotions will also be subject to specific time limits and limitations on redemption and usage. Your mobile phone operator may not support the FanBox Services or a particular offer in which case the offer will be null and void. In the event the balance of promotional credit is depleted and You purchase Content through FanBox for a fee which exceeds the balance of Your promotional funds, the sequence in which monies will be debited from and/or charged through the FanBox MyMoney functionality is as follows: 1) promotional credits (if applicable); 2) earned revenue (if applicable); and thereafter 3) charged to Your mobile phone or credit card as indicated by You.
FanBox reserves the right, in the exercise of its sole discretion, to offer promotions that are designed to encourage use or purchase of Your Content, such as offering free trial periods for access to and use of Content. You understand and hereby agree to participate in any promotional campaigns that FanBox may from time to time implement. For instance, a promotional campaign may include offers of “credits” or “gift certificates” (both of which, and any other terms used, are defined as credits for exclusive usage with the FanBox services). Such may be redeemed by FanBox Users towards the cost of purchases of Content. To be clear, You agree that FanBox may offer Your Content to FanBox users free of charge as a promotional campaign. You understand that redemption of any type of promotional credits will not constitute collected revenue included in calculation of Your revenue distribution.
FanBox reserves the right to use Your Content for screen shots for its own marketing efforts or internal testing purposes without being charged by You.
FanBox will provide all customer support related to Your Content; provided, however, if there is a functionality problem or Your Content is not working properly, FanBox may in its sole discretion enable You to speak directly to the FanBox user to resolve the issue. FanBox shall have the right to access Your account with FanBox in order to provide customer service to FanBox users or as required by any regulatory body or law enforcement agency. You also expressly consent to FanBox sending you communications via email of any updates, notices, or other communication that may be of interest to You or FanBox deems important for Your knowledge of modifications or other changes to the FanBox Services.
FanBox may require customer support contact and Your personal contact information, which may include Your name, company name, email address, mailing address, customer support line, customer support email, and any other information that FanBox deems necessary to ensure that You respond to User complaints appropriately. Any information that you include in the information fields for customer support will be publicly available as part of Your Content or provided by the FanBox customer support team to FanBox users who inquire regarding Your Content. In addition, an account manager or other designated FanBox employee may contact You.
You agree that FanBox in its sole discretion may make any refunds to FanBox users related to Your Content in connection with this Agreement as FanBox deems appropriate. Further, in the event FanBox determines, in its sole discretion, that it is necessary to resolve a dispute with an FanBox user to pay such user an ex-gratia payment, then You shall be responsible for and agree to reimburse FanBox for any such payments made by FanBox. In the event FanBox has made such refunds or ex-gratia payments, FanBox may choose to i) hold-back the amount of the refund or ex-gratia payment from the payment due by FanBox to You hereunder this Agreement, or ii) invoice You for the amount of the refund or ex-gratis payment, which such payment shall be made by You within fifteen (15) days of your receipt of notification from FanBox.
You hereby authorize FanBox to act as Your facilitator to aid the acceptance and processing of payments from FanBox users. You agree that only FanBox shall contact mobile network operators, intermediary aggregators, and payment processing firms for billing and collection of charges for products provided by You hereunder. You acknowledge that FanBox is neither: (1) a bank and its obligations are as a payment processing service, not a banking service; nor is FanBox (2) acting as a trustee, fiduciary, or escrow with respect to Your funds, and is acting only as a facilitator and intermediary to process payments due You.
FanBox shall provide You with on-line reports in regards to the amount of transactions generated during a calendar month within ten (10) days from the last day of the calendar month ending through our My Money feature (“My Money”). Payment to You for the amount reflected in My Money shall be mailed by check to You to the address identified in the registration process within thirty (30) days from the last day of the month ending.
Please note that there must be a minimum balance of $20US owed to You before FanBox will issue a check to your attention. In the event that the balance due to You for a particular months is less than $20US, then such balance shall roll into the proceeding calendar month balance until such point that the balance due meets or exceeds $20US.
The amount owed to You for the transactions Your Content generates on a calendar month basis shall be calculated as 35% of Your Content’s retail price of Your credited transactions (subscriptions and one-time charges) to a user on purchases of Your Content through your mobile homepage and purchases from the directory. The amount owed to You from purchases through other user’s homepages shall be calculated as 10% of Your Content’s retail price of Your credited transactions (subscriptions and one-time charges) to a user (collectively, “Proceeds”).
Retail price is defined as the price in effect when a user purchased Your Content. Credited transactions are those transactions for which the user has been billed and the related retail price for Your Content has been collected. Credited transactions may appear in subsequent months than when they originally occurred for any of the following “message not delivered” events that prevent a user from being successfully billed immediately: invalid or disqualifying phone information collected from a user, user overdrawing against a prepaid account or technical carrier issues.
Thus, due to the “message not delivered” events specified above, FanBox cannot guarantee the billing of all transactions. Therefore, “message not delivered” events specified above will not be included in calculating Proceeds. Additionally, FanBox cannot guarantee that revenues relating to all successfully delivered messages will be collected from the user. However, FanBox will make commercially reasonable attempts to collect payment for all message-delivered transactions.
From the remaining Proceeds, FanBox shall be responsible for making the following applicable payments: mobile network operator fees, taxes, FanBox transaction fees and other fees that may be applied by the mobile network operator or regulatory bodies.
You shall be responsible for reporting and paying your own taxes in relation to this Agreement. In the event FanBox is required to withhold taxes for revenues earned hereunder this Agreement, then FanBox is authorized by You to do so.
Notwithstanding the other provisions of this section, no agency, partnership, join venture, or employment is created as a result of this Agreement, and You have no authority of any kind to bind FanBox in any respect whatsoever.
For all Content uploaded, copied, published, performed, delivered, sold, or controlled by You, You represent and warrant that (i) You own or have the necessary licenses, rights, consents, and permissions to use such Content, (ii) You have the written consent, release, license, and/or permission of each and every identifiable person in the Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the Content in the manner contemplated; (iii) that you will pay any and all necessary licensing, royalty, or other rates or fees necessary in order to obtain such rights of use. By submitting any Content to FanBox, You thereby grant FanBox a perpetual, worldwide, non-exclusive, royalty-free, sub licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform such Content in connection with the FanBox Services, including without limitation for promoting and redistributing part or all of the FanBox Services in any media formats and through any media channels. You also hereby grant each purchaser or user of Your Content a perpetual, worldwide, non-exclusive license to access, copy, transmit, distribute, perform, and use Your Content, pursuant to the subscription or purchase terms You may require. You retain all copyright and any other rights you already hold in the Content which You submit, post or display on or through the Services and no such rights are granted by the license you grant FanBox.
This license is for the sole purpose of enabling FanBox to display, distribute and promote the Services and exists only for as long as You elect to continue to include such Content on the Services and shall be terminated at the time You delete such Content from the Services. You understand that the transmission of your Content may require FanBox to make such changes to your Content which may be necessary to adapt or conform to the technical requirements of transmitting your Content and you agree that Your license shall permit these changes as determined by FanBox.
You represent that You have all rights necessary to post Your Content without violation of any intellectual property or other rights or other U.S. and foreign laws, treaties, and regulations.
For information on whether you will need to obtain rights to music or video produced by others, please consult the guidelines located at:
http://www.soundexchange.com/licensing101.html,
http://www.riaa.com/issues/licensing/vol_stat.asp,
http://www.mpaa.org/piracy_AndLaw.asp.
For information on licensing distribution and/or performance of music, please consult the following websites:
http://www.loudcity.net/Services/HowLoudCityWorks/tabid/126/Default.aspx
http://www.ascap.com
http://www.bmi.com
http://www.sesac.com
http://www.harryfox.com.
FanBox is not responsible for obtaining rights to Your Content, and will not be liable for any fees, fines, penalties, or liabilities You incur relating to your failure to obtain full rights to Content uploaded or posted on FanBox Services.
FanBox is not responsible for the monitoring or filtering of any Content and is not responsible for any use or misuse of Your Content by users.
Should any Content be reported to FanBox or FanBox believes in its sole discretion that Your Content may be seen as being offensive, inappropriate or an infringement of any intellectual property rights of others, FanBox may call upon You to retract, modify, remove, or protect the Content in question and/or may require You to provide to FanBox documentation as to proof of ownership or license of said Content (the sufficiency of such documentation to be at FanBox’s discretion). Should You fail to comply with such a request, FanBox may terminate this Agreement and the license granted hereunder or may remove access to all or any portion or item of Content in question. FanBox, however, is under no obligation to restrict or monitor Content in any way.
FanBox respects the intellectual property of others, and we ask our users to do the same. If You believe that Your work has been copied in a way that constitutes copyright infringement, please provide the following information:
A signature of a person authorized to act on behalf of the owner of the copyright interest that is allegedly infringed;
The above information should be in writing and sent to FanBox’s Designated Copyright Agent, Attention: C. Valencia, copyright@corp.sms.ac, or to the address below:
255 G Street #723
San Diego, CA 92101 USA
It is FanBox’s policy to terminate the accounts of users who infringe the intellectual property rights of others.
If You have been notified of an allegation that Your Content infringes the copyrights of others but believe that Your Content does not infringe the copyrights of others, You may provide us with a “counter-notice” providing the following information:
If we receive a compliant counter notification we will promptly notify the claiming party of Your counter notification. If the copyright owner does not bring a lawsuit in district court within 14 days, we will then restore the material to its location on its network.
You acknowledge that FanBox shall not be responsible or liable in any way for any Content You may purchase via the Services including the accuracy, usefulness or availability of such Content. FanBox reserves the right to restrict or deny access to Content at any time which You may have purchased. If such occurs, You are entitled to a refund for the sum paid during that particular month (or portion thereof), or a replacement content/application if available.
You agree to indemnify and hold FanBox, and its subsidiaries, affiliates, officers, agents, customers or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content You submit, post to or transmit through the FanBox Services, Your use of the FanBox Services, Your connection to the FanBox Services, Your violation of this Agreement, or Your violation of any rights of another.
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the FanBox Services, use of any FanBox Services, or access to the FanBox Services.
FanBox reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that FanBox shall not be liable to You or to any third party for any modification, suspension or discontinuance of any part or the entirety of the FanBox Services.
In addition to the other prohibitions and obligations in the Agreement, You agree that You shall not:
Recognizing the global nature of the Internet and wireless messaging, You agree to comply with all local rules regarding online and telecommunication conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding exports from the United States or the country in which You reside.
Where FanBox has provided you with a translation of the English language version of the Agreement or any Additional Terms, then You agree that the translation is provided for Your convenience only and that the English language versions will govern Your relationship with FanBox in the event there is any contradiction between the versions.
You agree that FanBox, in its sole discretion, may terminate Your password, Account (or any part thereof) or use of any part or all of the FanBox Services, and remove and discard any Content within the Services, for any reason or no reason at all. You may terminate Your Account at any time by removing Your Content and/or contacting FanBox to cancel Your Account. You agree that FanBox is not responsible for deleting copies of Your Content accessed, copied, transmitted, distributed, performed, and used by one or more purchase or user prior to your removal of Your Content from Fanbox. You agree that any termination of Your access to the Services under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that FanBox 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 Services. Further, You agree that FanBox shall not be liable to You or any third-party for any termination of Your access to the Services. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services, 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 advertiser. You agree that FanBox shall not 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 advertisers on any FanBox Services. In addition, FanBox does not regulate user-to-user dealings, therefore, in the event You have a dispute with one or more users of the Services, You agree that FanBox shall not 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 user or users on the Services.
The Services may provide, or third parties may provide, links to other Web sites or resources. Because FanBox has no control over such sites and resources, You acknowledge and agree that FanBox is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that FanBox shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
You acknowledge and agree that the Services and any necessary software used in connection with the Services (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. “FanBox Trademarks” means all names, marks, brands, logos, designs, trade dress and other designations that are used by FanBox in connection with its website, products and services, including, without limitation, FanBox and SMS.ac.
All other trademark and service marks appearing on FanBox’s Web site which do not belong to FanBox are the property of their respective owners. You agree not to copy, modify, rent, lease, loan, sell, distribute or create derivative works based on the the marks, in whole or in part, except as expressly authorized by the owners of such marks.
FanBox does not make any warranties or representations that the FanBox Services shall be available at all times. You acknowledge that the FanBox Services may be unavailable due to a variety of reasons including but not limited to system updates, causes beyond the control of FanBox such as virus infection, power failures, or other “acts of God”.
FanBox makes no guarantees as to the continuous availability of the FanBox Services or any specific feature(s) of the FanBox Services. FanBox does not guarantee delivery of messages or successful billing transactions behalf of mobile network operators, intermediary aggregators, payment processing firms or mail servers. FanBox makes no claims respecting network coverage. Although FanBox focuses on providing extensive coverage aggregation services, mobile network operators and/or their appointed partners and/or affiliates may choose from time to time to not be part of FanBox’s Services or its service providers’ networks or FanBox may in its sole discretion determine to stop working with a particular mobile network operator, intermediary aggregator, or payment processing firm. This may result in messages not being delivered; billing not being available for certain mobile network operators or payment processing firms, either for a period of time or indefinitely. It is understood that billing records provided by the mobile network operator shall be final and under no circumstances shall FanBox assume responsibility relating to discrepancies or disputes with monies not recognized on the mobile network operator reports.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (a) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FANBOX EXPRESSLY DISCLAIMS 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. (b) FANBOX MAKES NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, (c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FANBOX OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to You. This warranty gives You specific legal rights and You may also have other legal rights, which vary from state to state.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT FANBOX SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FANBOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (v) ANY OTHER MATTER RELATING TO THE SERVICES.
ADDITIONAL LIMITATIONS: Without limiting the generality of the terms set forth above, FanBox and its affiliates, agents, service providers, and partners: (i) HEREBY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES AS TO THE ACCURACY, COMPLETENESS, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OF THE FANBOX SERVICES GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN, AS WELL AS ALL EXPRESS AND IMPLIED WARRANTIES THAT THE OPERATION OF THE FANBOX SERVICES GENERALLY AND ANY CONTENT OR SERVICES CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE;
(ii) SHALL IN NO EVENT BE LIABLE TO DEVELOPER OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE CAUSED IN WHOLE OR IN PART BY FAILURES, DELAYS OR INTERRUPTIONS OF THE FANBOX SERVICES GENERALLY, AND ANY ASPECT ANCILLARY THERETO; (YOU AGREE TO INDEMNIFY FANBOX PURSUANT TO THE TERMS OF THIS AGREEMENT FOR ANY AND ALL THIRD PARTY CLAIMS ARISING FROM SUCH FAILURES, DELAYS OR INTERRUPTIONS IN CONNECTION WITH THE SERVICES);
(iii) WITHOUT IN ANY WAY LIMITING THE FOREGOING, FANBOX SHALL IN NO EVENT HAVE (IN THE AGGREGATE) ANY LIABILITY WHATSOEVER IN CONNECTION WITH THIS AGREEMENT IN EXCESS OF AN AMOUNT EQUAL TO TWO TIMES THE LOWEST MONTHLY FEE APPLICABLE TO SUCH ACCOUNT AND/OR CLAIM IN EFFECT FOR THE MONTHLY PERIOD IMMEDIATELY PRECEDING THE DATE OF THE FIRST CLAIM MADE BY THE USER AND/OR THE USER FIRST ALLEGING FANBOX LIABILITY.
(iv) THE FANBOX SERVICES ARE NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING BUT NOT LIMITED TO USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE FANBOX SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). IN ADDITION TO THE OTHER DISCLAIMERS AND LIMITATIONS CONTAINED WITHIN THIS AGREEMENT, FANBOX AND ITS AFFILIATES, AGENTS, SERVICE PROVIDERS, AND PARTNERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES INCLUDING EMERGENCY NOTIFICATION SERVICES.
(v) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR INCIDENTAL OR CONSEQUENTIAL DAMAGES; SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH JURISDICTIONS, FANBOX’S LIABILITY (AND THE LIABILITY OF ITS AFFILIATES, AGENTS, SERVICE PROVIDERS AND PARTNERS) SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
To the fullest extent permitted under law, You hereby agree to indemnify, defend and hold FanBox, and its officers, directors, agents, licensors and licensees (collectively, the “Indemnified Parties”) harmless from and against any and all claims or demands (including, without limitation, attorneys’ fees) incurred by the Indemnified Parties in connection with or arising out of: (i) Your use of the FanBox Services; (ii) Your Content; (iii) any use by FanBox users of Your Content; (iv) any breach of or noncompliance with any representation, warranty or obligation in this Agreement or applicable policies; and (v) any claim that Your Content violates any applicable law, including without limitation that it infringes the rights of a third party. You shall cooperate as fully as reasonably required in the defense of any claim. FanBox reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
You acknowledge that damages for improper use of FanBox may be irreparable; therefore, FanBox is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.
Notices to You may be made via email, SMS (short message service), regular mail, or FanBox may also provide notices of changes to this Agreement or other matters by posting notices or links to notices generally on the Services.
This Agreement constitutes the entire agreement between You and FanBox and governs Your use of the Services, superseding any prior agreements between You and FanBox. You also may be subject to additional terms and conditions that may apply when You use affiliate services, third-party content or third-party software. This Agreement and the relationship between You and FanBox shall be governed by the laws of the State of California, USA without regard to its conflict of law provisions. You and FanBox agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Diego, California, USA. The failure of FanBox to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
Notwithstanding anything to the contrary contained herein, this Agreement’s benefits do not extend to any third party.
The headings in this Agreement are for convenience only and will not affect the meaning or interpretation of this Agreement.
The failure by FanBox to exercise in any respect to any right provided for herein will not be deemed as a waiver of those rights.
Please report any violations of this Agreement by emailing us at: support@FanBox.com.
Your use of this service and interaction with other users is at Your own risk. Your profile can be viewed by other users. You may receive messages from FanBox or other users at any time. View pricing per country at: http://www.FanBox.com/mobile/smsCredits.aspx.
Dated: November 13, 2007