1. Introduction / Service description
These "Terms of Use" represent and contain the terms and conditions that constitute the legal agreement between you ("you", "your", "customer") and TuneClub / Burda Wireless ("company", "we", "us", "our").
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 Burda Wireless GmbH, operating the TuneClub in the US ( http://www.tuneclub.com).
By completing the registration process on our website located at www.tuneclub.com or any successor website thereto ("Website") OR by ordering / downloading mobile content to a mobile device (each a "Download"), you (1) agree on behalf of the subscriber and yourself to be bound by the terms and conditions of this Agreement; and (2) confirm 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 TuneClub Service on behalf of the subscriber.
This Agreement explains your obligation to us and our obligations to you in relation to the TuneClub Service. We reserve the right to change these Terms & Conditions at any time at our sole discretion. Changes to these Terms & Conditions will be published in a revised version of these Terms & Conditions on our web page at www.tuneclub.com. Continued use of your existing Subscription Plan and/or subscription to a new Subscription Plan shall then represent an evidence of your acceptance of the changes to these Terms & Conditions.
TuneClub`s service is the provision of downloadable mobile entertainment content (ringtones, games, graphics, news and other information) data via SMS, MMS, WAP, BREW, internet and other means of mobile content delivery to certain compatible mobile devices (the "Service"). Our Service is designated for your personal use on the mobile device designated during the Download. You also agree that you must not broadcast, upload, transmit 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) decrypt, break, circumvent, re-engineer or otherwise alter or interfere with the Service, including, but not limited to, any Download(s).
2. Access to Service / Registration
(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 made available for the service of TuneClub, as well as any carrier services necessary to download content (e.g., T-Mobile's T-ZonesTM services), 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 hand set 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. TuneClub reserves the right to immediately disconnect from its service any equipment or software causing interference. TuneClub shall have the right to immediately terminate this Agreement. Any upgrade in or to the Service requiring changes in your equipment or software, will be 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) Subscription Plans. Company is offering through its Service a bundle of credits for a defined number of individual downloads per content category on a monthly subscription basis. Additional credits can be purchased on a non-subscription basis. The details of the plans (the number of Downloads available as part of a particular Subscription Plan, the renewal period of a particular Subscription Plan, etc.) are incorporated into this Agreement by this reference and form part of the terms & conditions of this Agreement. After you have signed up for a Subscription Plan(s), you may view the details of your plan at "My TuneClub" after you entered your cell phone number and your password, or contact our help desk at 866-408-9586.
The Subscription Plan between you and Company shall begin when Company, upon your request, has provided you with access to the Service (such access may be based on your cell phone number and password generated for that purpose or on other data). Access to the Service can be provided by delivering to you downloadable mobile entertainment content or by enabling you to download the product (e.g., by delivering a WAP-Push link or a PIN for download of the downloadable mobile entertainment content on Company website) or by providing access to the mobile entertainment content (e.g., by enabling MSISDN for this product). The subscription period is 1 month. The Subscription Plan and subscription period will be renewed each month and a new subscription fee shall become due for the concerned subscription period. The Subscription Plan shall remain in effect until terminated and/or cancelled by you or Company according to Section 4. of this Agreement.
The TuneClub Subscription Plans charges a monthly flat fee and includes a certain defined number of credits that entitle you to download, receive and/or access a defined number of individual downloads of mobile entertainment content . After entering into your Subscription Plan, every month Company will transfer download credits to your account. The number of credits you are entitled to is dependent on the type of Subscription Plan you choose. The provision of credits and the making available of the possibility to download, receive and/or access mobile entertainment content is offered for a flat fee. The monthly flat fee shall become due every month irrespective of whether or not you actually download any content during any particular subscription period; the consideration for the monthly flat fee shall solely be the monthly provision of the right to download, receive and/or access downloadable mobile entertainment content, in other words the making available of the respective download-, WAP- and SMS credits. The number of credits for downloads shall be reduced by actual downloaded mobile entertainment content, in other words the download of mobile entertainment content is evaluated as redemption of one or more credits and thereby reduces the total number of downloadable mobile entertainment content you are entitled to download, receive and/or access during that particular subscription period. In case you do not use/redeem all your credits within the subscription period (1 month), the unused credits will expire at the end of the respective subscription period. However, refilled credits that were additionally purchased after using up all plan-included credits, do roll over. If you download mobile entertainment content in excess of the amount allowed by your selected plan, then you will have the choice to purchase additional credits on a non-subscriptional basis. For USD 6.99* you can purchase 15 additional credits per refill. This can be done up to twice a month. T-Mobile customers cannot refill their credits.
For non-T-Mobile customers:By subscribing to one of our plans you get access to ringtones, games, wallpapers and special offers. You get access to these contents by choosing between two purchase options:
* Casual plan for a monthly subscription of USD 6.99* (15 credits) or
* All Star subscription plan for a monthly subscription of USD 9.99* (30 credits).
Each plan allows you to redeem the credits against our games for 5 credits per content, premium content for 3 credits and other content for 1 credit within the respective subscription period. The credits you need for each item can be seen when you click on the desired item.Games are currently not supported for Verizon wireless customers!
For T-Mobile customers:
By subscribing to one of our plans you get access to ringtones, games, wallpapers and special offers. You get access to these contents by choosing between two purchase options:
* Casual plan for a monthly subscription of USD 6.99* (5 credits) or
* All Star subscription plan for a monthly subscription of USD 9.99* (8 credits).
Each plan allows you to redeem the credits against any of our content for 1 credit each.
(c) License to Download. 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, modify, perform, transfer, 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 entertainment 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 entertainment content downloaded on your mobile device.
This Agreement will terminate immediately, without notice, if you fail to comply with any term or condition of this Agreement. Upon a termination of this Agreement, you agree to immediately remove all downloaded mobile entertainment content from your wireless communications device.
(d) Cell phone number and Password. If you opt to register for the Service on our Website, you may be required to establish an account and obtain a password. You authorize us to process any and all account transactions initiated through the use of your cell phone number and password. You are solely responsible for maintaining the confidentiality of your cell phone number and password and must immediately notify us of any unauthorized use of your cell phone number and password. You acknowledge and agree that you are responsible for any unauthorized activities, charges and/or liabilities made through the use of your cell phone number and password. In no event will we be liable for the unauthorized use or misuse of your cell phone number and/or password.
(e) Registration Data. By registering for the Service on our Website, you agree to: (i) provide complete, accurate and true information about yourself 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 rely on the Registration Data to 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. You further agree that we (ourselves or through third party service providers) are authorized to verify such Registration Data.
(f) Third Party Products and Services. We may make available and / 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.
(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. Except for termination made in accordance with Section 4. of this Agreement, we will cancel your Subscription Plan and reimburse any pre-paid fees related to such Service, If the Service, or any part thereof, for which you subscribe is permanently discontinued or cancelled by Company.
3. Fees
You agree to pay your mobile device operator the monthly fee that corresponds to the Subscription Plan 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. TuneClub will provide you with reasonable notice of such change. If you do not accept the new fees (which will be applicable on a prospective basis only), you will have 14 days from the date of such notice to cancel your subscription plan and/or your account effective at the end of the calendar month. Except as otherwise expressly noted, all fees are due immediately and are non-refundable, except as otherwise expressly noted.
For non-T-Mobile customers:By subscribing to one of our plans you get access to ringtones, games, wallpapers and special offers. You get access to these contents by choosing between two purchase options:
* Casual plan for a monthly subscription of USD 6.99* (15 credits) or
* All Star subscription plan for a monthly subscription of USD 9.99* (30 credits).
Each plan allows you to redeem the credits against our games for 5 credits per content, premium content for 3 credits and other content for 1 credit within the respective subscription period. The credits you need for each item can be seen when you click on the desired item.
For T-Mobile customers:
By subscribing to one of our plans you get access to ringtones, games, wallpapers and special offers. You get access to these contents by choosing between two purchase options:
* Casual plan for a monthly subscription of USD 6.99* (5 credits) or
* All Star subscription plan for a monthly subscription of USD 9.99* (8 credits).
Each plan allows you to redeem the credits against any of our content for 1 credit each.
4. Cancellation / Termination of Services
In order to cancel your Subscription Plan, either send a text message with the text "STOP" to 32915 or such other number as may be designated on our Website, or contact 866-408-9586. Alternatively you can log in to "My TuneClub" and cancel your plan there or write an e-Mail to our customer support (support@tuneclub.com). Please make sure to state your cell phone number. The termination shall become effective immediately.
You agree that Company, at its sole discretion, may at any time terminate your use of the Service and Subscription Plan(s) or individual services provided via the Service and/or change its content offering made available through the Service, if Company believes that you have violated or acted inconsistently with this Agreement. 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. If you cancel your account or Subscription Plan for any reason, Company will not refund any of your fees paid to date, except as expressly provided in this Agreement.
5. 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.
Except as otherwise stated herein, all right, title and interest in and to any intellectual property, proprietary rights or other rights related to intangible property which are developed, used, comprising, embodied in, or practiced in connection with any of the Service ("Company Intellectual Property Rights") are owned by the Company’s licensors or itself, and you agree to make no claim of interest in or ownership of any such Company Intellectual Property Rights.
6. Indemnification
You acknowledge and agree to release, indemnify, defend and hold harmless Company, its parent company, subsidiaries, affiliates, officers, directors, shareholders, contractors, agents, employees, licensors and assigns from all liabilities, damages, claims, costs and expenses, including reasonable attorneys' fees, made by any third party due to or arising out of or in connection with (a) the breach by you of your representations and warranties set forth herein and (b) your use of the Service.
7. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES
YOU UNDERSTAND, ACKNOWLEDGE 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 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. OUR SERVICE IS MADE AVAILABLE "AS IS" AND "AS AVAILABLE" WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND OR ANY GUARANTY OR ASSURANCE THE SERVICE WILL BE AVAILABLE OR PERFORM AS DESCRIBED. WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. 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.
YOU UNDERSTAND AND AGREE, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER WE NOR OUR PARENT, SUBSIDIARIES, AFFILIATES, SUCCESSORS OR ASSIGNS NOR OUR OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, REPRESENTATIVES, ADVERTISERS, SPONSORS, BUSINESS OR PROMOTIONAL PARTNERS, WIRELESS OR MOBILE CARRIERS, OPERATIONAL SERVICE PROVIDERS OR SUPPLIERS, SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY CLAIM, LOSS OR DAMAGE, DIRECT OR INDIRECT, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER IN CONNECTION WITH, AS A RESULT OF OR ARISING FROM OUR SERVICE, REGARDLESS OF THE FORM OF ACTION, THE LEGAL THEORY OR BASIS OF THE CLAIM AND WHETHER OR NOT ANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
You agree if you have a dispute with us or are dissatisfied with any aspect of our Service or any of the terms and conditions of your agreement with us, termination of your subscription plan, registration and use of our Service is your sole right and exclusive remedy, even if that right or remedy is deemed to fail of its essential purpose. You acknowledge and agree we have no other obligation, liability or responsibility to you or any other party. Under no circumstances shall we have any obligation to refund any monies actually paid by you for the Service.
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. IF ANY LIMITATION ON REMEDIES, DAMAGES OR LIABILITY IS PROHIBITED OR RESTRICTED BY LAW, WE SHALL REMAIN ENTITLED TO THE MAXIMUM DISCLAIMERS AND LIMITATIONS AVAILABLE UNDER THIS AGREEMENT, AT LAW AND/OR IN EQUITY, HOWEVER, IN NO EVENT SHALL OUR LIABILITY TO YOU FOR DAMAGES OR OTHERWISE EXCEED ONE HUNDRED DOLLARS (US $100), NOTWITHSTANDING ANY CLAIM THAT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 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, . EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED. 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.
AS SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES OR CERTAIN LIMITATIONS ON DAMAGES AND REMEDIES, ACCORDINGLY SOME OF THE EXCLUSIONS AND LIMITATIONS DESCRIBED IN THIS AGREEMENT MAY NOT APPLY TO YOU.
8. Privacy
Company may pass on your personal information, financial information and or demographic and usage information to your cell phone service provider to secure collection of fees and such information collected by Company may be stored and processed in Germany or any other country in which Company or its agents maintain facilities. By using the Service, you consent to any such transfer of information outside of your country. Your personal information, financial information and demographic information will be deleted no later than six months after termination of your subscription. Company may store your information beyond this date if that is required by law or contract. You acknowledge and agree that TuneClub may collect and process "personal information" (i.e. information that could be used to contact you, such as full name, postal address, phone number or e-mail address), "financial information" (i.e. credit card numbers, bank account information or passwords) or "demographic and usage information" (i.e. information that you submit, or that we collect, that is neither personal information nor financial information but necessary for the proper functioning and billing of our Service, such as the date regarding the start and end and the extent of your usage of the service), in connection with the Service.
9. Miscellaneous
(a) Notices And Announcements. Except as expressly stated otherwise herein, all notices to Company shall be in writing and delivered via overnight courier or certified mail, return receipt requested to:
Burda Wireless GmbH
Arabellastraße 23
81925 München
Germany
Company shall serve notices related to this Agreement by posting them on the Website or by sending them to the postal address or e-mail address you have given to Company or as a text message to your mobile telephone number associated with your account. Notices sent by mail shall be deemed received seven days after they were sent. Notices posted on the Website or sent by e-mail or as a text message shall be deemed received on the weekday following the day when they were posted or sent.
(b) Law that applies: Your use of our Service and these Terms of Use, shall be governed, construed and enforced under the laws of the State of New York applicable to contracts made, executed and wholly performed in New York. You unconditionally and irrevocably submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in the State and County of New York and you shall not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, inconvenient forum or otherwise. These Terms of Use shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, which is expressly excluded and you also expressly agree to exclude the applicability of the Uniform Computer Information Transactions Act. A printed copy of these Terms of Use and of any notice in electronic form shall be admissible in any judicial or administrative proceedings to the same extent and under the same conditions as other business documents and records originally generated and maintained in printed form.
IN ANY CLAIM, ACTION OR PROCEEDING TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, RELATING TO YOUR USE OF OUR SERVICE, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
(c) 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.
(d) Severability. You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible, consistent with applicable law, consistent with the original intentions of the parties; and the remaining terms and provisions will remain in full force and effect.
(e) 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.
(f) 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.
(g) Survival. In the event this Agreement terminates as provided herein, Sections 2(b), 2(e), 5, 6, 7 and 9 of this Agreement shall survive such expiration or termination.
10. Acknowledgement 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 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.
YOU ACKNOWLEDGE YOU HAVE READ AND UNDERSTAND THESE TERMS OF USE, AGREE TO BE BOUND BY AND FULLY COMPLY WITH ALL THE TERMS AND CONDITIONS DESCRIBED HEREIN.
*Other charges may apply (transportation costs) depending on your carrier/contract.