Effective October 9th, 2012
IMPORTANT: BY PROCEEDING WITH THE COMPLETION OF YOUR PURCHASE OF A SERVICE PACKAGE OR PRODUCT ITEM (THE "PURCHASE PROCESS") YOU AGREE WITH THE FOLLOWING TERMS AND CONDITIONS AND ACCEPT THE TERMS OF THIS AGREEMENT AS SET FORTH BELOW. PLEASE READ CAREFULLY.
Welcome to 101 Distribution. This agreement (the "Agreement") is a contract between you and 101 Distribution ("101D ") and governs your use of the 101D Websites (defined below), all downloads (defined below) and all your activity on the www.101d.com and www.arena.com Websites (hereafter, collectively, the "Service"). This Agreement constitutes a legally binding agreement between you and 101D
The 101D Website means this web site, as accessed by the following domain names: www.101d.com; and www.101distribution.com along with the commerce storefront www.arena.com. As such websites may be amended from time to time, as well as any co-branded websites.
The 101D Website is offered and made available only to users 13 years of age or older. Users at least 13 years of age but under 18 years of age should obtain parental permission to use the 101D Website. If you are not yet 13 years old, you must discontinue use of the 101D Website immediately because by using or attempting to use the 101D Website, you certify that you are at least 13 years of age.
By clicking yes on the acceptance buttons located throughout the 101D Website, you warrant and represent that (i) you have read and understood this Agreement and agree to be bound by its terms and conditions; (ii) you are at least 18, or are under 18 but at least 13 and have parental permission; (iii) you are the owner of the Device (as defined below) whose phone number you are entering, or if you do not own the Device you have explicit permission from the owner of the Device to use the Device and to enter the phone number for such Device; and (iv) you are a resident of the U.S. If you do not agree to be bound by (or cannot comply with) any of the terms and conditions of this Agreement, do not complete the Purchase Process or attempt to access the Service. Your continued use of the Service indicates your knowledge and acceptance of this Agreement and any subsequent modifications, as may be posted here from time to time. All purchases must be approved by the account holder.
101D reserves the right at any time and from time to time to amend, supplement or modify the terms of this Agreement (the "Amendments"). We will post or display notices of material Amendments on the 101D Website. Once 101D posts such Amendments on the 101D Website, these Amendments become effective immediately and if you continue to use the 101D Website after they become effective it will signify your agreement to bound by such Amendments.
DESCRIPTION OF SERVICE
The Service is available at the 101D Website and includes everything on the 101D Website that may exist from time to time. If you have a mobile handset or internet enabled Device that supports content downloads, part of the Service makes available to you downloadable mobile entertainment for delivery to your Device, such as music, ringtones, wallpaper and graphics (collectively, the "Downloads"). You will be permitted to send mobile content to your compatible wireless telephones or other compatible devices owned and controlled by you (or for which you have explicit permission to do so from the owner) (the "Device"). We make no representation as to compatibility of your Device with the 101D Website and the Service and you acknowledge and agree that 101D shall have no liability for the compatibility or non-compatibility of your Device with the 101D Website and the Service. You acknowledge and agree that you may not transmit, broadcast, upload 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 otherwise attempt to (or otherwise authorize, encourage or support other attempts to) circumvent, re-engineer, decrypt, break or otherwise alter or interfere with the Service, including but not limited to Download(s).
In order to use the Service, you must have all internet capabilities enabled for your Device or otherwise have access to a mobile communications network for which 101D makes the Service available 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, desktop computer 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 does not disturb or interfere with 101D's operations. Any equipment or software causing interference shall be immediately disconnected from the Service and 101D shall have the right to immediately terminate this Agreement. If any upgrade in or to the Service requires changes in your equipment or software, you must effect these changes 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.
You agree that we may rely on the Device Data to provide the Service, including, without limitation, billing for the Service through your Carrier. You acknowledge and agree that 101D shall have no liability associated with or arising from your failure to maintain current Device Data, including, but not limited to, your failure to receive critical information.
You agree to indemnify and hold harmless 101D, its partners, employees, officers, directors, parents, subsidiaries, agents, contractors, suppliers, affiliates and/or licensors (the "Affiliates") from any improper, unauthorized or illegal uses of the Device Data or the Device by anyone.
USE OF SERVICE
You may use the Service only in accordance with the terms and conditions of this Agreement and any Amendments as well as any additional terms that may be presented from time to time in connection with any particular feature or function of the Service. The Service is for your non-commercial, non-exclusive, non-transferable, non-assignable limited personal use. Mobile content will be delivered to the mobile handset on which the user opted into the service from.
You understand, acknowledge and agree that the Service, including, without limitation, all 101D Website and Service software, content, design, text, images, photographs, illustrations, audio and video material, artwork, graphic material, databases, proprietary information and all copyrightable or otherwise legally protectible elements of the Service and the 101D Website, including, without limitation, the "look and feel" of the Service and 101D Website, all trademarks, service marks and tradenames (individually and/or collectively, the "Material") are the property of 101D and/or its Affiliates. You understand, acknowledge and agree that the Service, including, without limitation, the 101D Website and the Downloads (for supported handsets only) made available as part of the Service, are owned by 101D, and/or its Affiliates, and are legally protected, without limitation, under U. S. Federal and State laws, as well as applicable foreign laws, regulations and treaties. Unless the context or service clearly requires otherwise or we explicitly say so in writing, the term "the Service" includes the Material as well. You must not alter, delete or conceal any copyright notices or other intellectual property notice contained on the Service, including notices on any Material you download, transmit, display, print or reproduce from the 101D Website and/or the Service. 101D hereby grants to you a limited, non-exclusive, non-transferable, revocable right to download the Downloads to your compatible Device solely for your own non-commercial, non-exclusive, non-assignable, non-transferable and limited personal use and for no other purposes. You understand, acknowledge and agree that you shall not, nor will you allow any third party (whether or not for your benefit) to, download, reproduce, modify, create derivative works from, display, publish, perform, transfer, broadcast, distribute or otherwise use the Service, including, without limitation, the 101D Website and/or the Downloads except as expressly provided in this Agreement. You agree that you will take all reasonable steps to prevent any unauthorized reproduction and/or other use of the Service including, without limitation, the 101D Website and/or the Downloads. Any unauthorized or prohibited use of the Service and/or the Material may subject you to civil liability, criminal prosecution, or both, under applicable federal, state and local laws.
101D's rights to make certain Downloads available to you may expire. In such event, 101D does not grant to you the license necessary to play back any such Downloads after the end of the period in which such rights expire. If 101D ceases making any such rights available, 101D will not refund any portion of your fees, but you may contact customer support at the address below to receive appropriate replacement Downloads, at 101D's sole discretion.
OBJECTIONABLE OR EXPLICIT CONTENT
You and the owner of the Device acknowledge and agree that 101D is not liable to anyone for any content or materials constituting all or part of any Download or any other aspect of the Service that anyone might find objectionable or contain explicit sexual content, and you and the owner of the Device release 101D from any and all liability related thereto.
101D respects the intellectual property rights of others, and it expects you to do the same. If you know of or suspect that any use of the Service or the Downloads constitutes copyright infringement, please promptly send a notice to the 101D customer service representative by email at: email@example.com / 602-357-3288.
If 101D (a) receives a notice alleging that you have engaged in infringing behavior or (b) reasonably suspects that your use of the Service including, without limitation, the Downloads violates 101D 's or others' intellectual property rights, 101D may, in its sole discretion, suspend or terminate your use with or without notice to you. If 101D suspends or terminates your 101D use under this paragraph, you acknowledge and agree that 101D shall have no liability or responsibility to you, and 101D will not refund any portion of your fees paid to date.
All trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with the Service (the "Marks") are the property of 101D and/or its Affiliates. You may not copy, display or use any of these Marks without the prior written permission of 101D, at its sole discretion.
INTELLECTUAL PROPERTY RIGHTS
Except as otherwise set forth herein, all right, title and interest in and to any intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with the Service and/or the 101D Website ("101D Intellectual Property Rights") are owned by 101D and/or its Affiliates, and you agree to make no claim of interest in or ownership of any such 101D Intellectual Property Rights. You acknowledge and agree that no title to the 101D Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the Service and/or the 101D Website, other than the rights expressly granted in this Agreement.
In addition to the restrictions set forth above, you acknowledge and agree that you may not copy, distribute, sell, resell or exploit any portion of the Service and/or the 101D Website including, without limitation, any Downloads accessible on or through the Service.
PROMOTIONS AND ADVERTISING
101D and/or its Affiliates may present advertisements and promotional materials on or through the Service and the 101D Website. Your participation in any such 101D promotional event is subject to any additional terms and conditions associated with that event as described on the 101D Website, as may be applicable. Your correspondence or business dealings with, or participation in promotions of, any third-party advertisers on or through the Service and the 101D Website, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third-party. You acknowledge and agree that neither 101D nor its Affiliates shall be responsible or liable, directly or indirectly, for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties on the Service and/or the 101D Website.
LINKS TO THIRD-PARTY SITES
The Service and the 101D Website may present links to retailers and/or other third-party websites not owned or operated by 101D (the "Third Party Websites"). These links are provided only as a convenience to you. Neither 101D nor its Affiliates are responsible for the availability of such Third Party Websites or their contents. You understand and agree that neither 101D nor its Affiliates are responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site. You should direct any concerns regarding these Third Party Websites to those sites' administrators.
MODIFICATIONS TO SERVICE
101D reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service and the 101D Website (or any part thereof) without notice to you at 101D's sole discretion. You agree that neither 101D nor its Affiliates shall be liable to you or to any third party for any modification, suspension or discontinuance of the Service and/or the 101D Website.
You understand and agree that any unauthorized use of the Service and the 101D Website including, without limitation, the Downloads would result in irreparable injury to 101D and its Affiliates for which money damages would be inadequate, and in such event 101D and/or its Affiliates, as applicable, shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against you. Nothing contained in this paragraph or elsewhere in this Agreement shall be construed to limit the remedies or relief available pursuant to statutory or other claims that 101D or its Affiliates may have under separate legal authority, including but not limited to any claim for intellectual property infringement.
You agree to and do hereby indemnify and hold harmless 101D and its Affiliates from and against any and all claims, actions, demands, causes of action and other proceedings arising from or concerning your use of the Service and the 101D Website, including the Downloads (collectively "Claims"), and agree to reimburse them on demand for any losses, costs, judgments, fees, fines and other expenses they incur (including reasonable attorneys' fees and court costs) as a result of any Claims.
You understand and agree that your use of the Service including, without limitation, the 101D Website and the Downloads is solely at your own risk. THE SERVICE INCLUDING, WITHOUT LIMITATION, THE 101D WEBSITE AND THE DOWNLOADS ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND BY 101D OR ITS AFFILIATES, AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, 101D AND THE AFFILIATES, AS APPLICABLE, EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT. THERE IS NO WARRANTY THAT THE SERVICE INCLUDING, WITHOUT LIMITATION, THE DOWNLOADS AND THE 101D WEBSITE WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO THE SAME WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. 101D AND/OR THE AFFILIATES, AS APPLICABLE, DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE INCLUDING, WITHOUT LIMITATION, THE DOWNLOADS AND THE 101D WEBSITE WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. YOU ACKNOWLEDGE AND AGREE THAT YOU WILL NOT HOLD 101D AND/OR THE AFFILIATES, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING THE SERVICE OR USING THE SERVICE INCLUDING, WITHOUT LIMITATION, THE 101D WEBSITE, AND/OR THE DOWNLOADS INCLUDING, BUT NOT LIMITED TO, ANY INFECTIONS OR CONTAMINATIONS OF YOUR DEVICES YOU USE TO ACCESS THE SAME OR TO TRANSFER DOWNLOADS THAT MAY RESULT FROM THAT USE. YOU ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO 101D AND/OR THE AFFILIATES, AS APPLICABLE.
UNDER NO CIRCUMSTANCES SHALL 101D AND/OR THE AFFILIATES, AS APPLICABLE, BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE INCLUDING, WITHOUT LIMITATION, THE 101D WEBSITE AND/OR THE DOWNLOADS.
UNDER NO CIRCUMSTANCES SHALL 101D AND/OR THE AFFILIATES, AS APPLICABLE, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE INCLUDING, WITHOUT LIMITATION, THE DOWNLOADS AND/OR THE 101D WEBSITE, EVEN IF 101D AND/OR THE AFFILIATES, AS APPLICABLE, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, 101D AND/OR THE AFFILIATES, AS APPLICABLE, SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EXCEED $100.
LAW AND LEGAL NOTICES
This Agreement and any Amendments, terms or documents referred to herein represent your entire Agreement with 101D with respect to your use of the Service including, without limitation, the 101D Website and/or the Downloads. You understand and agree that, except as expressly set forth herein, this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this Agreement and the Affiliates. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
101D's failure to pursue any available claim or defense pursuant to this Agreement or otherwise will not be a waiver of such claim or defense. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of 101D. The remedies of 101D and/or the Affiliates 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.
Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. You agree not to resell or transfer the Service including, without limitation, the Downloads or any portion thereof. The headings used in this Agreement are for convenience only, and will have no effect on the interpretation or legal enforceability of the terms herein.
The laws of the State of Arizona, excluding its conflicts-of-law rules, govern this Agreement and your use of the Service including, without limitation, the 101D Website and the Downloads. You expressly agree that the courts in the State of Arizona have exclusive jurisdiction over any claim or dispute with 101D or relating in any way to your account or your use of the Service including, without limitation, the 101D Website or the Downloads. You further agree and expressly consent to personal jurisdiction over you in Arizona federal and state courts in connection with any such dispute including any claim involving 101D or its Affiliates
Please direct any questions concerning the 101D Website, the Service or any other 101D related issue, to a 101D customer service representative by e-mail at: firstname.lastname@example.org / 602-357-3288. Except as expressly provided otherwise herein, all notices to 101D shall be in writing and delivered via overnight courier or certified mail, return receipt requested to:
101 Distribution, LLC
2375 East Camelback Road, 6th Floor
Phoenix, AZ 85016
101D shall serve notices related to this Agreement by posting them on the 101D Website. Notices posted on the 101D Website shall be deemed received on the weekday following the day when they were posted or sent.
THIS AGREEMENT IS SUBJECT TO CHANGE WITHOUT NOTICE.
Copyright 2012 101 Distribution, LLC. All Rights Reserved.