Terms and conditions

Terms of Use: November, 2007 These are the Terms and Conditions that you must follow if you use the Web service provided by www.cellyspace.com (“Cellyspace.com”, the “Web site”), the Cellyspace Desktop Tools (the “Software”) or any Cellyspace WAP Service (the “Wap Site”) for Content and Messaging services (collectively, the “Service”). Your use of the Service indicates your acceptance of these terms and conditions. If you cannot comply, do not complete the registration process or attempt to access the Service. All references to "you" or "your" refer to the individual, group, association or enterprise as it applies to the registration for or actual use of the Services. Ownership of the Service This Service is owned and operated by Skycore, LLC. (“Skycore”). All content included on the Web site and the Software is protected by U.S. and international copyright laws and is owned by the respective copyright holder. “Skycore,” “Instant Imager” “Cellyspace” and the Skycore logo are trademarks of Skycore. You may not use our trademarks without our written permission. Third party trademarks are the trademarks or registered trademarks of their respective owners. Access to the Services You must be at least 13 years of age to use the Service. You are responsible for obtaining access to the Service. Such access may involve third party fees (such as standard access to the Internet through an Internet service provider; access to and the costs incurred for sending and receiving mobile messages or data; and for mobile carrier airtime, WAP and SMS charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements, if any. In addition, you must provide and are responsible for all equipment necessary for access to the Services, such as a PC or mobile phone. The Service and any subscriptions are not transferable, such that you may not authorize other persons or entities to use your account. General Representations and Warranties By using the Service, you represent and warrant that: Your Registration Data is correct, and you will promptly notify us of any changes in your Registration Data. None of the Content provided by you which is related to this Agreement is or shall breach or infringe the rights of any third party (including copyrights, trademarks, patents, privacy or other personal or proprietary rights). You are fully authorized to enter into, and perform according to, the terms and conditions of this Agreement. You will not use the Web site or Software in any manner that is (i) pornographic, obscene, threatening or abusive in nature; (ii) likely to defame any third party. You acknowledge that your use of our Services is at your own risk Content Recipient's License and Additional Warranties You acknowledge and agree that the Content made available as part of the Service is owned by the applicable Content Provider or his/her/its licensor, and is protected by intellectual property laws.   By using the Service, the Content Provider hereby grants and you hereby accept, a limited, non-exclusive, non-transferable, revocable right and license to download and use the Content on a 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 Content 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 Content downloaded on your mobile device, and no rights are granted to you by this Agreement in the Content Provider's Intellectual Property or any other rights in respect of the Content downloaded on your mobile device. Content Provider's License and Additional Warranties You represent and warrant that you are the owner, agent or authorized licensee of all right, title and interest in and to any intellectual property, proprietary rights or other rights relating to intangible property which is used, developed, comprising, embodied in, or practiced in connection with any of the Content you upload to the Site. You must be legally able to license the Content, and the Intellectual Property contained therein, whether you elect to offer the Content for no charge or for a Premium (fee) through and in the Service. Without limiting any other remedies, we may terminate your account if you are found to have in any way engaged in fraudulent activity in connection with the services.  Such fraudulent activity includes, but is not limited to, providing inaccurate registration data or alleging to be the owner or licensor of Content found to be the intellectual property of another individual or entity that has not authorized you to make such Content available for sale or performance. By displaying, creating or publishing (making content "Public", whether free or for a Premium) any Content, messages, text, files, images, photos, video, sounds, profiles, works of authorship, or any other materials (collectively, "Content") on or through the Services, you hereby grant to Cellyspace.com, a non-exclusive, fully-paid and royalty-free, worldwide license (with the right to sublicense through unlimited levels of sublicenses) to use, copy, modify, adapt, translate, publicly perform, publicly display, store, reproduce, transmit, distribute and sell such Content on and through the Services on your behalf. This license will terminate at the time you remove such Content from the Services. Notwithstanding the foregoing, a back-up or residual copy of the Content posted by you may temporarily remain on the Cellyspace.com servers after you have removed the Content from the Services. You further agree to pay for all royalties, fees, and any other monies owing any person by reason of any Content posted by you to or through the Services. The Services contain Content of Cellyspace.com ("Cellyspace.com Content") such as logos or service marks. Cellyspace.com Content is protected by copyright, trademark, patent, trade secret and other laws, and Cellyspace.com owns and retains all rights in the Cellyspace.com Content and the Services. Cellyspace.com hereby grants you a limited, revocable, non-sublicensable license to display the Cellyspace.com Content solely in connection with the Services. Carrier Charges to the Content Recipient Content Providers and Content Recipients acknowledge and agree that regardless of whether Content is offered free or for a Premium by the Content Provider, the Content Recipient may be charged by their Carrier for SMS, MMS or data airtime based on their service plan effective on receipt of the Content. This is referred to in the industry as “Standard Rates Apply”. Use of Keycodes If you choose to make your content “Public”, whether as Premium (for sale) or Standard (free to recipient), the Services include an option to create a user-generated keycode for each Content file or to use a randomly generated keycode, both of which are unique to your Content. User-generated keycodes are only exclusive to the registrant if the keycode is actively used for Services. If a unique keycode is inactive for 60 to 90 days the registrant will receive an email notification to their registered email account with instructions on how to maintain their user-generated keycode. If the keycode remains inactive following the allotted time period in the email notification, your user-generated keycode will be replaced by a random keycode and the user-generated keycode will become immediately available for other content providers. Cellyspace.com owns and retains all rights to all keycodes, whether user-generated or randomly generated by the Services. Cellyspace.com hereby grants you a limited, revocable, non-sub-licensable license to display the Cellyspace.com keycode solely in connection with the Services. You must not use keycodes representing registered trademarks or infringe the rights of any third party, including copyrights, privacy or other personal or proprietary rights, unless you are the registered owner of such trademarks or rights. Your keycode selection is at your own risk for infringement and, in addition to the rights and obligations of this Agreement, is subject to immediate forfeit in the event that the registered owner formally protests your use of their trademark. Cellyspace Credits Delivery of content or messaging requires the use of Cellyspace Credits. All purchases of such Credits are final and non-transferrable. Unused Credits remain in your Account providing a) your Account is active; b) your Account is not terminated for cause; or c) you do not intentionally elect to close your Account. Closing Accounts & Credit Balance Active Accounts You may elect to close your Account at any time. Within 60 days of your election to close your Account, Skycore will cause PayPal to transfer to you the amount represented by the then-current Value ("Value") of your Cellyspace Credits, whether purchased or earned, less a one-time closing fee of up to $25.00/US. In no case shall the closing fee incurred be greater than the total Value of your Account’s Credit balance. Inactive Accounts Cellyspace Registration, Composing Tools, Publishing Tools and Broadcast Tools and the storage of content and messaging in the Storage MMBox (up to 20MB) are free Services to active Accounts. To maintain an active Account, you must simply log-on to Cellyspace.com with your username and password (“Log-on”) at least once during a consecutive 12 month period. If you Account is inactive for 11 months or more, Cellyspace.com will send an email to the address registered in your Account explaining how to maintain active status. Should you then not Log-On to Cellyspace.com within 30 days, your account status will be deemed inactive. For good and valuable consideration and for the maintenance of Cellyspace Services for your Account, including but not limited to maintaining keycodes and storing content while inactive, should your Account be inactive for at least 12 months you agree that a one-time fee of up to $25.00/US will be deducted from the balance of your Credits, whether purchased or earned. Simultaneously your account will be closed and within 60 days Skycore will cause the closing balance of the Value of your Credits to be transferred to you via PayPal. In no case shall the closing fee incurred be greater than the total Value of your Account’s Credit balance. All transfers will be made in U.S. Dollars net of all PayPal transaction fees and currency conversion rates, if any. Skycore's sole responsibility in transferring funds to your PayPal account is limited to the actual transfer of Redeemable funds to the PayPal “Email Address” specified on your Cellyspace.com MY ACCOUNT profile page. Prices The price of any feature will be the price specified in the Web site. The price may change from time to time with or without notice and at Skycore's sole discretion especially because of, but not limited to, fluctuations in currencies and/or delivery fees charged to Skycore. The prices will not change for your subscriptions once a subscription has been paid for. Skycore reserves the right to cancel your subscription with advance notice. By purchasing the Service you warrant that you are the authorized purchaser, their agent or have the permission of the authorized purchaser. Refunds will not be issued based upon inaccuracies represented by the purchaser. Delivery to Recipient Delivery of Services will be made directly to a mobile phone. Delivery is conditional on the Mobile Operator, Service Plan and Phone of the Content Recipient. The Content Recipient's mobile phone must be a Services-certified handset on a Services-compatible network, turned on, configured and capable of receiving the Content, including any associated text messages, and, as appropriate, allow playback or storage of ringtones and MMS. To facilitate receipt on as many phones as possible, the Content Provider must compose their Content within the guidelines specified by the Services. While Skycore's delivery technology is advanced and standardization between carriers and handset manufacturers is improving, due to the lack of industry standardization, evolving technology and that there are literally thousands of different handsets in use and hundreds of different carriers globally, you agree that your Content may not be received visually or audibly as intended or as shown in the Cellyspace Preview or, in some cases, it may not appear at all. Refunds If Content has not been delivered to the intended mobile phone, you must notify Skycore Customer Support within 3 days of your original request-to-send or original request-to-receive the Content. Refunds are handled in the following two ways depending on whether the Content is offered as free or as Premium Content to the Recipient. Non-Premium Content When sending non-Premium Content using your Cellyspace Credits, whether for private use or as Public Standard (i.e. free to the recipient), upon confirmation that Content has been delivered from Cellyspace to the carriers the Content will be considered delivered and Cellyspace Credits deducted accordingly. Delivery receipts to the carriers are listed for each account and can be reviewed online through the HISTORY link. In some cases, even though the Content is delivered to the Carriers, the Content may not reach its recipient as intended due to the factors noted above in Delivery to Recipient. Since those factors are largely out of Cellyspace's control, Cellyspace will not refund Credits except at its sole discretion. Content Providers are encouraged to alert Cellyspace to delivery problems they may encounter. Your feedback will help identify delivery issues and Cellyspace will apply best efforts to facilitate delivery whenever possible. Premium Content Intended recipients of Premium Content who do not receive purchased Premium Content must notify their carrier directly. Carriers verify delivery of Premium Content through their network and bill the recipient accordingly, adding the Premium charges to the recipient's monthly service bill. Therefore, it is only through the carrier that a refund request for non-delivery can be issued. However, in the event that the Content is not delivered visually or audibly as expected or as intended, once Content delivery has been confirmed by the carrier no refunds will be issued. In all cases where the Content Provider has violated the Terms and Conditions for the use of Cellyspace Services no refunds will be issued, whether delivery has been confirmed or not. Password You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Skycore Customer Support immediately of any unauthorized use of your account or any other breach of security. Skycore will not be liable for any loss that you may incur as a result unauthorized use of your password or account, either with or without your knowledge. You are responsible for any liabilities due to the unauthorized use of your account. Payouts for Content Provider’s PUBLIC Content Make Public When you elect to make your Content “Public” you authorize Cellyspace to perform, sell and deliver your Content on your behalf. You are solely responsible for all promotional activity for your content. Cellyspace does not promote Content through our Services. Public Premium and Public Standard You may elect to have your Content sold for a fixed fee (“Premium” Public) or delivered to the recipient without a premium charge (“Standard” Public). If you decide to charge a Premium, upon successful delivery of your content to the appropriate carrier, your Earnings page will reflect the transaction as Pending Credits which can be used for future Cellyspace Services. Alternatively, you may opt to receive a cash payment to your PayPal account once your individually registered account Convertible Credits reach a value of $50.00/US. Earning Credits, Earning Money Cellyspace does not invoice or collect Premiums directly from recipients. In all cases where a Premium is charged, the Carriers invoice the recipient on their monthly phone bill as an itemized charge. Cellyspace receives periodic reports from the participating carriers indicating premium transactions and any adjustments necessary; from these reports Cellyspace.com transfers the appropriate number of Credits from Pending status to Convertible status. Adjustments represent refunds issued to recipients and are shown as “Chargebacks” on your online EARNINGS page. For billing and connectivity services, the carriers generally keep approximately 50% of the Premium fee. The balance of the Premium fee is shared between Cellyspace.com and your account as the Content Provider. The number of Credits you can earn for each Premium category is shown on the online PAYOUTS page. The value of all Credits is subject to change without notice, with the cash redemption value based on the then current values as indicated on the online PRICING page. There is no charge to your Credits for Content delivery when the content is sold as Premium. Delivery Receipt There are literally thousands of different handsets with many different interfaces & screen sizes. Adding to the complexity is the current lack of standards between the hundreds of Carriers globally. Cellyspace’s advanced composing, transcoding and delivery technology is the result of several years of R&D and testing, with continuous improvements being made by Cellyspace, Carriers and handset manufacturers. However, delivery of the Content cannot be guaranteed, whether in whole or part, with or without the intended visual or audio result. We make no representations or warranties that all carriers, handsets or recipient’s rate Plans will have the ability to support SMS, MMS, WAP, Premium SMS such that the content will be delivered as intended or, in some cases, delivered at all. For Premium content, therefore, we can only issue Credits to your account when the Carriers confirm that the recipient has received and paid for the Content. Cellyspace reserves the right to adjust your account in parallel to adjustments, errors or omissions made by Cellyspace or the carriers. Credits Converted and Transfer Credits or cash amounts due to you, if any, in connection with Premium Services will be determined solely by Cellyspace based on collected funds from the carriers and compliance with the Terms and Conditions of the Service. Pending Credits represent Credits earned but without confirmation from the carriers. This is updated every 24 hours. Convertible Credits represent Credits confirmed and able to be transferred as Credits to your Cellyspace account or redeemed for cash. There is no minimum for transferring Convertible Credits to your Cellyspace account however you must have a Convertible Credit value of at least $50.00 USD to have your funds transferred to your PayPal account. Cellyspace’s sole responsibility in transferring funds to your PayPal account is limited to the actual transfer of Redeemable funds to the PayPal “Email Address” specified on your Cellyspace MY ACCOUNT profile page. All payments will be made in U.S. Dollars net of all PayPal transaction fees and currency conversion rates, if any. Taxes You are responsible for tax reporting and payments to the appropriate tax authorities, including any and all applicable taxes or charges imposed by any government entity in connection with your use of Cellyspace Services. In the USA, the IRS (Internal Revenue Service of the US Government) requires that anyone being paid more than $600 USD by a US company must fill out either a W-9 (US citizens) or a W-8 (international citizens) form for tax purposes. As you approach $600 USD in earnings, Cellyspace will send the appropriate form to your Cellyspace profile email address. You will need to fill it out and return it in order to continue to receive payments. Directions for returning the completed form will be included in the message. Once we've received the form we will send you a confirmation message and you will continue to be paid as usual. At the end of the year, you will receive a 1099 form for your annual tax reporting purposes. The 1099 includes the W-9/W-8 details you’ve submitted plus a total earnings amount for the prior calendar year, a copy of which is also sent to the IRS. Changes & Modifications to the Service Cellyspace reserves the right to change its pricing and/or payment structure at any time, with or without prior notice, especially, but not limited to, circumstances beyond our control. Whenever possible, Cellyspace will give at least thirty (30) days' prior notice of any such change (unless required by law to provide more than thirty (30) days notice). Cellyspace will send an email to the address in your Account regardless of whether immediate or prior notice. Skycore reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. Skycore shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. Disputes and Termination If Skycore terminates your account for cause: (a) Skycore shall have no liability or responsibility to you, and will not refund any portion of your paid credits or subscription fees; (b) if you sell your Content for a Premium and have earned Cellyspace Credits or funds, Skycore will not give further payouts for sales made on your behalf as a result of that cause; and, (c) in the sole discretion of Skycore, should the cause be significant, deemed possible fraud or a repeat offense, all earned Cellyspace Credits may be terminated immediately and all future payouts denied. You understand and agree that your cancellation of your account is your sole right and remedy with respect to any dispute with Skycore. This includes, but is not limited to, any dispute related to or arising out of: (1) any term of this Agreement or Skycore enforcement or application of the same; (2) any policy or practice of Skycore, including its Privacy Policy, or Skycore enforcement or application of these policies; (3) the Content; (4) your use of and/or ability to access and use the Service; and (5) the amount or type of fees, surcharges, applicable taxes, billing methods, payouts, or any change to the fees, applicable taxes, surcharges, payouts or billing methods. General Disclaimers OUR WEB SITE, ITS CONTENT AND ANY SOFTWARE ACCESSIBLE THEREIN ARE PROVIDED TO YOU ON AN “AS IS” BASIS. WE MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW. Although we use reasonable efforts to ensure the accuracy of the content of our Web site, we make no representations or warranties as to the accuracy, correctness, or reliability of the content. Further, we make no representations or warranties that the Software and/or any functional aspects of our Web site will be uninterrupted or error-free. We also make no representations or warranties that your cellular service provider or handset or that of your intended recipient(s) will have the ability to support SMS, MMS, WAP, Premium SMS such that you/they will be able to avail yourself of this service. Furthermore we make no representations that messages and content can be terminated to handsets through a particular operator in a particular country, even if listed on the site. Skycore assumes no responsibility for the timeliness, deletion and/or misdelivery of any communication(s) you send to any third party. Skycore reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Skycore shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. Skycore is not responsible to you for any content or materials constituting all or part of any Content or any other aspect of the Service that you might find objectionable. Nothing in this Agreement grants you or authorizes you to grant to anyone else any right to reproduce, copy or distribute or perform publicly by any means, method or process whatsoever, any copyrighted work. If Skycore (a) receives a Notice alleging that you have engaged in infringing behavior or (b) reasonably suspects that your use of the Service or the Content violates Skycore or others' intellectual property rights, Skycore may, in its sole discretion, suspend or terminate your account with or without notice to you. If Skycore suspends or terminates your account under this paragraph, it shall have no liability or responsibility to you, and Skycore will not refund any portion of your fees charged to date or Premium Content earnings. Cellyspace takes no responsibility and assumes no liability for any Content posted, offered, purchased or sold by you or any third party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Cellyspace is only a venue and conduit and is not liable for any statements, representations, or Content provided by its users in any community, public or personal home page. Limitation of Liability Skycore is not responsible or liable to you for any direct, incidental, consequential, indirect or punitive damages that result from your access to or use of the Software and/or the content on our Web site. By availing yourself of the Web site, Software or related services, you agree to release and hold Skycore and its employees, officers, directors, shareholders, agents, representatives, affiliates and subsidiaries harmless from any and all losses, damages, rights, claims and actions of any kind arising from or related to the Web site, Software or related services, including but not limited to: (a) telephone, mobile phone, electronic, hardware or software, network, Internet or computer malfunctions, failures or difficulties of any kind; (b) failed, incomplete, garbled or delayed computer or telecommunication transmissions; (c) any disruption or corruption of the Web site or related services; (c) any injuries, losses or damages of any kind arising in connection with or as a result of your use of the Web site, Software or related Services, including the potential for malicious software or viruses to be covertly attached to content, messaging or other Services by third parties; (e) any printing or typographical errors in any material associated with the Web site, Software or related services. Indemnification By availing yourself of the Web site, Software, WAP site or related services, you agree to hold harmless, indemnify and defend Skycore against any third-party claims for damages, losses, costs or otherwise, including reasonable attorneys’ fees, arising in any manner whatsoever from your use of the Web site, Software or related services, or your breach of any of these Terms and Conditions and/or any other agreement between you and Skycore. Your obligation to hold harmless, indemnify and defend Skycore as set forth in this paragraph shall survive the termination of any agreement between you and Skycore. Links and Advertising As a convenience, our Web site links to other Web sites or WAP sites which may be of interest to you but may not be under our control. These links do not imply an endorsement by Skycore, and we are not responsible for the availability of or the content contained in any linked sites. You acknowledge that from time to time, Skycore may permit third parties to post advertising and/or promotional materials (collectively, the “Third-Party Content”), within the Service or, with the knowledge of the Content Provider, attached to content. WE MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT WITH RESPECT TO THE THIRD-PARTY CONTENT AND ANY PRODUCTS ADVERTISED BY SUCH THIRD PARTIES TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW. Such third-party content is provided as a convenience to you and may not be under Skycore’s control. Skycore does not endorse the third-party content or the products advertised by the third parties. Additional Terms You are bound by this agreement when you access our Web site, Software and Service until you have destroyed all content and/or software applications that you have downloaded or copied from our Web site. In addition, you are bound by this agreement whether you downloaded or copied the content or software under these terms of this agreement or otherwise. This agreement is governed by the laws of the State of Massachusetts without giving effect to any principles of conflicts of law. Notices of Alleged Copyright Infringement If you believe that material posted on the Web site infringes upon your intellectual property rights: Click here to initiate the DMCA procedure. Click here to report the abuse directly to Customer Support. Contacting Skycore If you have any questions about these Terms and Conditions, you may contact Skycore in writing at: Skycore, LLC, 75 Arlington St. 5th Floor, Boston, Massachusetts 02116. Changes to These Terms and Conditions Skycore reserves the right to change or amend these Terms and Conditions at any time upon prior notice posted on the Web site. Continued use of the Web site after such notification indicates your consent to the changed or amended terms of these Terms and Conditions.