Mig33 Terms and Conditions

by **carelyn** Mon Dec 24, 2007 1:34 pm

Project Goth, Inc.
mig33 Terms of Use

We, Project Goth, Inc., provide you with the mig33 website, the mig33 software, and the mig33 services only in accordance with these Terms of Use (the "Agreement"). By using the mig33 website, downloading the mig33 software or using the mig33 services, you represent and warrant that you have read and understood and agree to be bound by the terms of this Agreement.

1. USE REQUIREMENTS AND RESTRICTIONS

1.1. Services Provided. Subject to the terms of this Agreement, we may provide you with the mig33 website at www.mig33.com, as well as with certain connectivity software and services as may be made available by us from time to time.

1.2. Requirements. You acknowledge that: (a) in order to use the mig33 software and services you must have a mobile phone that is compatible with our services (refer to www.mig33.com for details); (b) you are responsible for ensuring that suitable wireless coverage for data transmission services is available in the area(s) in which you intend to use the services; and (c) the availability and performance of the mig33 software and services is dependent on the memory, storage and other limitations of your mobile phone as well as the quality and speed of your connection with your wireless carrier.

1.3. Prohibited Actions. You shall comply with all applicable laws and regulations and refrain from violating any third-party rights in connection with this Agreement. Without limiting the generality of the foregoing, you must not: (a) use the mig33 website, software, or services to, or in any way that would, violate any applicable law or regulation, any contract (including, without limitation, wireless service contracts), or any other third-party rights; (b) violate, interfere with, damage or compromise the mig33 website, software, or service, or any other person's copy of the mig33 software or their mobile phone; (c) remove any proprietary notices from the mig33 software or any copies thereof; (d) cause, permit or authorize the modification, creation of derivative works, translation, or copying of the mig33 software; (e) sell, sublicense, assign, rent, lease, act as a service bureau, or grant rights in the mig33 website, software, or services to any other person except with our prior written consent and/or pursuant to the provisions of Section 5 regarding our Merchant Program; (f) decompile, disassemble, reverse engineer, or hack the mig33 website or software, or circumvent any encryption, technical protection or security methods implemented by us with respect to the mig33 website or software and/or data transmitted, processed or stored by us or by other users, except to the extent expressly permitted by mandatory provisions of applicable law that cannot be contractually derogated from, but then only with 30 days' prior written notice to us; or (g) attempt to do anything or induce or enable others to do or attempt to do anything prohibited by this Section 1.3.

1.4. Prohibited Content. Without limiting the generality of Section 1.3 hereof, you must not use, or knowingly or negligently allow any other person to use, the mig33 website, software, or services to develop, generate, transmit or store information that: (a) infringes any person's intellectual property or other proprietary rights; (b) is defamatory, harmful, abusive, obscene or hateful; (c) in any way obstructs or otherwise interferes with the normal performance of another person's use of the website, software, or service; (d) is an unsolicited commercial communication not permitted by law; (e) constitutes harassment, nuisance or a violation of privacy or threatens anyone; (f) impersonates any other person, or steals or assumes any person's identity (whether a real identity or online nickname or alias); (g) is prohibited under applicable law; or (h) may jeopardize the operation of a phone network or knowingly or negligently allow any other person to do so. We assume no liability for the content of any message or any other communication or response submitted by you or any other person through our services or otherwise and you shall indemnify and hold harmless us and our affiliates, related bodies corporate, officers, directors, employees, agents, and service providers (collectively, our "Related Parties") from any loss or damage we or our Related Parties may suffer as a result of such message, communication or response. We reserve the right, but are under no obligation, to monitor content transmitted through our website, software, or service, and reserve the right to prevent transmission of content that we deem illegal, infringing, or otherwise inappropriate.

2. ACCOUNTS

2.1. Account Tied to Mobile Number. The account you are opening by accepting this Agreement is tied to the mobile phone number you enter during the sign-up process. If your mobile phone number changes you must establish a new account to be able to use the mig33 services from that new number. Your account is not transferable between mobile phone numbers.

2.2. Credits. You can load credits onto your account through any of the accepted payment methods described on www.mig33.com. Credits are used to pay for the charges described in Section 3. Credits are non-refundable and cannot be converted into or redeemed for cash.

2.3. Credit Expiration. If you do not incur any activity for using the services for a period of 30 days, any credit balance on your account will expire.

2.4. Users with Several Accounts. If you have more than one account we may, at our option, suspend or terminate all of your accounts with us if you are in breach of your obligations under this Agreement with respect to any account. If you are in arrears in payment of any of your accounts, we may recover any amounts outstanding on any of your accounts from any of your other accounts that have credit balances.

2.5. Updating Information. You must notify us of any change in your address or other details you supply us. If we ask you for information about you or your account for the purpose of operating the service, you must provide it to us.

3. CHARGES AND PAYMENT

3.1. mig33 Charges. Our price list (which may be updated from time to time) is available on www.mig33.com and contains all charges for our services. You are responsible for all charges on your mig33 account, regardless of whether or not they were incurred by you personally, unless you can demonstrate that the charges were incurred by an unauthorized person after you have requested that we suspend your account due to loss or theft of your mobile phone and/or account information and we have confirmed in writing that we have processed your request.

3.2. Negative Balances. In order to use our services, your account must have a sufficient credit balance. If you have a negative balance on your account due to credit card chargebacks or for any other reason, we may, at our option, either send you a bill for your use of our services or deduct the amount owed from your credit balance when you next recharge your account or from the credit balance on any other account held by you. In the interim, we may suspend your account. If we send you a bill and you do not pay the bill by the due date, we may terminate the Agreement immediately pursuant to Section 10. You agree to reimburse us for any costs we incur in recovering any overdue amounts from you.

3.3. Wireless Carrier Charges. In addition to any mig33 charges, you are responsible for any payments to your wireless carrier to enable you to use our services and/or any charges by your wireless carrier resulting from the use of our services.

3.4. Taxes. You are responsible for, and agree to pay or reimburse us for, any and all taxes incurred in connection with your use of our services.

4. INTELLECTUAL PROPERTY RIGHTS

4.1. Limited License to mig33 Software. Subject to your compliance with this Agreement, we grant you a personal, limited, non-exclusive, non-sublicenseable, non-assignable, royalty-free license to download, install and use the mig33 software on one mobile phone for your sole use and for the sole purpose of using the mig33 services and not for any other purpose.

4.2. Retention of Rights. We retain all intellectual property rights (including, without limitation, rights protected by laws relating to copyright, patents, trade secrets and trademarks) relating to the mig33 website, software, and services, the design or operation thereof, any modification or enhancements thereto, and any other technical information relating to the provision thereof ("Intellectual Property Rights"). You must not do anything that would jeopardize, damage, limit or interfere with our Intellectual Property Rights or our interest in them. No license is granted under this Agreement except the limited licenses pursuant to Sections 4.1 and 5.2 hereof.

5. MERCHANT PROGRAM

5.1. Merchant Program Features. You have the option, at no additional charge, to register for our Merchant Program. If you are registered for our Merchant Program, you will receive a discount on mig33 credits per our current price list and may freely transfer credit balances on your accounts to other users and/or convert your credit balances, in whole or in part, into vouchers and pre-paid cards.

5.2. Limited Trademark License. If you are registered for our Merchant Program, we grant you a personal, limited, non-exclusive, non-sublicenseable, non-assignable, royalty-free license to use the mig33 name and associated images (collectively, the "Licensed Mark") solely for the purpose of selling and offering for sale credit balances, vouchers, and/or prepaid cards for third parties in your own name and for your own account, and for no other purpose. In using the Licensed Mark, you agree that you will not purport or imply that you are our employee, partner, joint venturer, authorized representative, or otherwise in a position to make legally binding statements or declarations on our behalf.

5.3. Regulatory Compliance. Without limiting the generality of Section 1.3(a) hereof, you agree to monitor and comply with all applicable regulatory requirements imposed by your jurisdiction or any other jurisdiction with respect to your participation in the Merchant Program, including, but not limited to, any requirement to obtain a license as a reseller of telecommunications services.

by **carelyn** Mon Dec 24, 2007 1:34 pm

6. DISCLAIMER OF WARRANTY

THE MIG33 WEBSITE, SOFTWARE, AND SERVICES ARE PROVIDED "AS IS", AND WE DO NOT REPRESENT OR WARRANT THAT THE MIG33 WEBSITE, SOFTWARE, OR SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE, OR WILL OPERATE WITHOUT DATA LOSS, NOR DO WE WARRANT ANY PARTICULAR QUALITY OF THE WEBSITE, SOFTWARE, OR SERVICES.

7. LIMITATION OF LIABILITY

7.1. LIMITED LIABILITY. WE AND OUR RELATED PARTIES ARE NOT LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), UNDER STATUTE OR OTHERWISE FOR ANY LOSS OF OR DAMAGE TO BUSINESS OR REPUTATION, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF OPPORTUNITY, LOSS OF ADVANTAGE, LOSS OF USE OF ANY SOFTWARE OR DATA, LOSS OF USE OF ANY MOBILE PHONE OR OTHER EQUIPMENT, LOSS OF USE OF THE SYSTEM ON WHICH THE MIG33 WEBSITE, SOFTWARE OR SERVICES ARE USED, OR INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE, EVEN IF WE OR OUR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE. IN NO EVENT SHALL OUR LIBILITY AND THE LIABILITY OF OUR RELATED PARTIES TO YOU EXCEED THE AMOUNT PAID OR PAYABLE BY YOU FOR YOUR USE OF OUR SERVICES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF SUCH LIABILITY.

7.2. Events Beyond Our Control. We and our Related Parties are not liable for any delay or default in performance under this Agreement caused by an event beyond our reasonable control, including but not limited to, war, accident, act of God, industrial action, embargo, or a delay, failure or default by you, your wireless carrier, or any other supplier of goods or services to us or to you.

7.3. External Links. Without limiting the generality of the foregoing, the mig33 website may contain hyperlinks to websites operated by third parties, including, but not limited to, advertisers and sponsors, over which we have no control. You acknowledge that we are not responsible or liable for the availability of such linked sites, or for content, advertising, products or other materials that may be available on such linked sites.

8. INDEMNITY

8.1. General. You agree to indemnify and hold harmless us and our Related Parties, at your expense, against any claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable legal fees and other dispute resolution expenses) incurred by us or our Related Parties arising out of or relating to your breach of any term of this Agreement or any policy or guidelines referred to in it, or use or misuse of the mig33 website, software or services.

8.2. Wireless Carrier Terms. Without limiting the generality of Section 8.1 hereof, you are responsible for ensuring compliance with your wireless carrier's terms and conditions, and you agree to indemnify and hold harmless us and our Related Parties from any loss or damage that we or our Related Parties may suffer as a result of your breach of this Section 8.2.

9. SUSPENSION OF SERVICE[/b]

9.1. Suspension for Any Reason. We may suspend your use of our services, in whole or in part, in our sole discretion without notice at any time and for any reason, including, but not limited to, the following: (a) we decide that our services need maintenance or upgrading; (b) you have not incurred a charge for using the services for 3 months; (c) you or anyone else using your mobile phone, are in breach of this Agreement; or (d) any third party takes action or threatens to take action against us for providing the services.

9.2. Continuing Liability. You remain liable for all charges due under this Agreement throughout the period of any suspension (including, without limitation, any periodic access fees) unless we, in our sole discretion, determine otherwise.

[b]10. TERMINATION

10.1. Termination by You. You may terminate this Agreement at any time and for any reason by notifying us in accordance with Section 11.3. Any credit in your account at the time will be lost.

10.2. Termination by Us. We may terminate this Agreement at any time on 14 days' notice to you. Moreover, we may terminate this Agreement immediately without notice if: (a) you, or any user of your mobile phone, breaches this Agreement; (b) you, or any user of your mobile phone, damages a phone network or puts a phone network at risk or abuses or threatens our staff; (c) you do not pay mig33 charges as required under Section 3; (d) you have not incurred a charge for using the services for 3 months; (e) your credit is zero or negative for 3 months; (f) you become bankrupt or insolvent or make an arrangement with your creditors; (g) your mobile phone network is no longer compatible with our services; (h) your mobile phone number is withdrawn; or (i) we are ordered by any court or government agency to cancel the services or your use thereof.

10.3. Loss of Credits upon Termination. You will lose any credits left on your account at the time of termination of the Agreement. These credits cannot be converted into or redeemed for cash, or applied against any other accounts you have with us.

10.4. Other Consequences of Termination. Upon termination of this Agreement for any reason: (a) you will no longer be able to use the services and you will forfeit any credits remaining on your account; (b) all licenses and rights to use the mig33 software and the services will terminate and you must remove the mig33 software from your mobile phone and delete all copies of the mig33 software in your possession; and (c) we can disable or delete any mig33 software you have installed without notice to you.

10.5. Survival. The provisions of Sections 3, 4, 6, 7, 8, and any other provisions that by their nature should survive, shall survive any termination of this Agreement.

11. GENERAL

11.1. Relationship of the Parties. You acknowledge and agree that nothing in this Agreement, including, but not limited to, registration for our Merchant Program, constitutes an employment agreement or creates or acknowledges an employment relationship between you and us or makes us partners, joint venturers or otherwise participants in a joint undertaking. Our relationship shall at all times be one of independent contractors.

11.2. Amendments. We reserve the right to change or amend the terms of this Agreement at any time. If we do this and the change is to your detriment, we will place a notice on www.mig33.com or notify you by any other means we deem appropriate in our sole discretion. It is your responsibility to check www.mig33.com on a regular basis, including, without limitation, prior to using our website, software, or services. Your continued use of the website, software or services constitutes your acceptance of the revised terms.

11.3. Notices. Notices by you to us hereunder shall be invalid unless made in writing (fax or signed document) to the fax number or mailing address listed on www.mig33.com. Notices by us to you may be made in any manner we deem appropriate in our sole discretion.

11.4. Assignment and Delegation. You must not transfer your account or assign any of your rights or delegate any of your duties under this Agreement without our prior written approval. We may assign any of our rights and delegate any of our duties at any time with or without notice.

11.5. Privacy. The mig33 Privacy Policy on www.mig33.com, which is hereby incorporated into this Agreement, explains how we will handle your personal information.

11.6. Confidentiality. You must keep any information you obtain relating to our software confidential and will not use such information for any purpose that is not specifically provided for in this Agreement or authorized by us in writing.

11.7. Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give it the maximum effect intended. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.

11.8. No Waiver. Our failure or delay to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect our right to later enforce or exercise it.

11.9. Headings. The headings used in this Agreement are intended for convenience of reference only and in no way define, limit or describe the scope or substance of any of its provisions.

11.10. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America. You consent to the jurisdiction of the State and federal courts serving San Mateo County, California, for any and all disputes arising under or in connection with this Agreement.

11.11. Prevailing Language. The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.

by **k-e-e-n** Mon Dec 24, 2007 8:33 pm

Wow thats some lenghty document. Very Happy

Thanks for sharing Inspire.

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