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Welcome to the User Agreement for ukabobs.com, uKabobs LLC, company (the "Agreement"). This Agreement describes the terms and conditions applicable to your use of services or features available under the domain www.ukabobs.com (the "Site"). Throughout this Agreement, "we", "our", "us" or "uKabobs" refers to uKabobs, LLC., its affiliates, employees, directors, officers, agents and representatives. "You" or "your" refers to any individual or entity gaining access to the Site by any means. Do not use this site if you do not agree with all the terms and conditions specified within this agreement.
You must read, agree with and accept all of the terms and conditions contained in this Agreement and the Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference, before you may become a user of the Site.
This Agreement may be modified from time to time and those modifications shall be effective upon the new agreements being posted on the uKabobs.com website. You agree to be bound by any changes to this Agreement when you use or access the Site after any such modification is posted. By electronically accepting this agreement you accept all terms and conditions outlined in the agreement. Should the site not meet your needs or you become dissatisfied with the website or services provided, your only recourse is to discontinue the use of the site.
1. The uKabobs Service
uKabobs provides an international marketplace for downloadable digital content for use on mobile devices (e.g. mobile multimedia content such as electronic greeting cards, animations, videos pictures, ringtones, music, and games) ("Content") provided by users of the Site who wish to sell such Content to other users of the Site (the "Service"). You may access and use the Site as a user interested in selling your Content and/or you may access and use the Site as a user interested in purchasing the Content posted by another user. Certain terms and conditions pertaining to Selling Users and Purchasing Users differ and are described below. uKabobs makes no representation as to compatibility of your mobile device or the mobile device of any designated recipient you identify with our website.
2. Access to Services
a) In order to use the Service as a Selling User, you must have a registered account from the Site. Visitors will provide specific information required during the purchasing process and by default will be considered registered as a Purchasing User. If you register for the Service, you agree to: (i) provide valid, accurate and complete information about yourself as required by the registration form and (ii) maintain and promptly update the your registration data to keep it true, accurate, current and complete. uKabobs 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) should we find or suspect the Registration Data you provided is inaccurate or misleading. You acknowledge and agree that we may rely on the Registration Data to send you important information and notices regarding your account and the Service. You acknowledge and agree that uKabobs LLC., shall have no liability associated with or arising from your failure to maintain accurate Registration Data, including, but not limited to, (i) your failure to receive critical information about the Service; (ii) failure to receive critical information regarding your account; (iii) failure to receive payments for the items you have posted to the site after they have been sold. Furthermore you agree that uKabobs is authorized to verify such Registration Information.
b) Once registered, you will be required to establish an account and obtain a username and password. You authorize us to process any and all account transactions initiated through the use of your username and password. You are solely responsible for any unauthorized use of your username and password. You acknowledge and agree that you are responsible for any unauthorized activities, charges and/or liabilities made through the use of your username and password. In no event will we be liable for the unauthorized use or misuse of your username and/or password.
3. Selling Users
a) You represent and warrant that you are the owner 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 are 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 post and make the Content for sale on the uKabobs.com site.
b) You are obligated to comply with the pricing schedules established on the Site for your specific content. uKabobs reserves the right to change pricing schedules as required.
c) Without limiting any other remedies, we may suspend or terminate your account and/or this Agreement if you are found (by conviction, settlement, insurance or escrow investigation, or otherwise) to have engaged in fraudulent activity in connection with the Site. Such fraudulent activity includes, but is not limited to, providing inaccurate information during the registrationi process or alleging to be the owner or licensor of Content found to be the intellectual property of an individual or entity that has not authorized you to make such Content available for sale on the uKabobs site.
d) By submitting the Content to uKabobs.com, you hereby grant uKabobs a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and distribute in any media format and through any media channel. You also hereby grant each user of the uKabobs Website a non-exclusive license to access your Content through the Ukabobs.com site, and to view or distribute such Content under the Terms of this Agreement. The foregoing license granted by you terminates once you remove or delete Content from the uKabobs.com website.
e) uKabobs will electronically transfer funds due you for royalty payments for the sale of your Content from the uKabobs.com website on a quarterly basis or as requested. Email sales@ukabobs.com for the latest payment percentages. Funds will be transferred to the account information you provide during the registration process. For additional information regarding reimbursement for sales, please refer to the FAQ section of uKabobs.com/ Currently a 40% royalty is being paid to authors and contributors to uKabobs.com. Please note the 40% royalty is paid based on item price less overhead.
4. Purchasing Users
a) You acknowledge and agree that the Content made available as part of the Service is owned by the applicable Selling User or his/her/its licensor, and is protected by intellectual and/or copyright laws. By using the Service, the Selling User hereby grants and you hereby accept, a limited, non-exclusive, non-transferable, revocable right to a single (1) download and use the non-source code version of the Content on a compatible mobile device solely for a) your own personal non-commercial use; b) for distribution to a recipient of your choice for their personal non-commercial use. You further acknowledge that should you distribute Content to a delegated recipient, that is, someone other than yourself, you represent and warrant that you do so with the knowledge that they will welcome and accept the Content you have asked the Site to distribute to them. Further you 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 or rights in any form is granted to you for the Content downloaded on your mobile device, and no rights are granted to you by this Agreement regarding copyright or intellectual property rights or any other rights in respect of the Content downloaded on your mobile device.
b) You acknowledge and understand that uKabobs will make every attempt to distribute the Content you purchase to the mobile device you designate during the purchasing process. You further acknowledge should uKabobs not be able to deliver the Content to the designated mobile device either due to mobile device incompatibility, the lack of WIFI and/or Internet access available on the designated device, or other elements not within uKabobs control, that uKabobs will attempt to deliver the content to an associated email address that you provide during the purchasing process. You acknowledge this is not a subscription service. You will be charged once for each download. Once the service(s) is accepted via and SMS response from your cell phone, FEES WILL NOT BE REFUNDED. Fees are subject to change at any time without notice. You are liable for any Fees incurred by including any additional costs charged by your carrier. Standard usage charges for SMS, MMS and other charges, including third party charges and/or taxes may apply (please check with your carrier). All charges will be billed on your wireless service
bill and/or deducted from your prepaid balance.
c) Without limiting any other remedies, we may suspend or terminate your account and/or this Agreement if you are found (by conviction, settlement, insurance or escrow investigation, or otherwise) to have engaged in activity which violates this agreement, or any other fraudulent or illegal activity in connection with the Site. Such fraudulent or illegal activity includes, but not limited to, providing inaccurate registration information or violating the provisions of Section 4(a).
d) By making a purchase from ukabobs.com that is billed to a cell phone account, you confirm you are the owner of the phone or have permission of the owner to incur these charges.
e) You acknowledge and understand that uKabobs will distribute promotional material to you should you indicate that you will accept such promotional material on uKabobs.com website. Further you understand and acknowledge that uKabobs may append promotional material to the end of Content which may be distributed to you or your delegated recipient.
If you are not the owner of the wireless phone you intend to use for your participation in our services including receiving Content, you should always obtain the permission from the owner before participating. If you are under 18 you should get parental permission and consent.
5. Miss Use
(a) Please report any miss use of the uKabobs.com website to compliance@ukabobs.com. uKabobs is fully aware of the copyright laws both within the United States and abroad. We will not willfully or knowingly post or have content posted on the uKabobs.com website that infringes on United States and/or International Copyright laws. uKabobs holds each user/author/contributor who posts Content to the uKabobs.com website responsible the protecting the copyright laws within the U.S. and Internationally. USERS. AUTHORS, CONTRIBUTORS SHOULD NOT POST CONTENT FOR WHICH THEY DO NOT HOLD THE COPYRIGHT.
(b) uKabobs 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. As a provider of a marketplace for downloadable intellectual property, Company is only a venue and is not liable for any statements, representations, or Content provided by its users in any community or group forum or personal home page.
(c) Responsibility for Your Conduct. You shall remain solely liable for the Content you offer, sell, purchase or transmit to the Service. You agree to indemnify and hold uKabobs harmless from any claim, action, demand, loss, or damages (including reasonable legal fees) made or incurred by any third party arising out of or relating to your conduct, your violation of this Agreement, or your violation of any intellectual property or other rights of a third party.
6. Other Copyright and Intellectual Property Terms
a) 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 any of the Service ("uKabobs Intellectual Property Rights") are owned by us or our Selling Users, and you agree to make no claim of interest in or ownership of any such uKabobs Intellectual Property Rights. You acknowledge that no title to the uKabobs 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.
b) If you believe that your work has been copied and posted on the Site in a way that constitutes copyright infringement, or your intellectual property rights may have otherwise been violated, please provide our copyright agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Site; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agents, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Our copyright agent for notice of claims of copyright infringement can be reached as follows: compliance@ukabobs.com. UKabobs.com will remove an infringing posting within 48 hours of notification.
7. Privacy
Use of the Site and/or the Service is governed by our Privacy Policy (http://www.uKabobs.com)
8. Interruptions or Discontinuation of Service
We reserve 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.
9. Indemnification
You agree to release, indemnify, defend and hold harmless uKabobs, LLC., its affiliates, officers, directors, shareholders, contractors, agents, employees, licensors and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys' fees, made by and third party due to or arising out of or in connection with (a) your use of the Service, and (b) the breach by you of your representations and warranties set forth herein.
10. Warranty Disclaimer
(a) YOU AGREE THAT YOUR USE OF THE UKABOBS WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, UKABOBS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF. UKABOBS MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONSIN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE UKABOBS WEBSITE. UKABOBS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE UKABOBS WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND UKABOBS WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
(b) You warrant that you are fully authorized to enter into, and perform according to, the terms and
conditions of this Agreement.
(c) You warrant that you will not utilize the service to knowingly distribute content to designated recipients for the purposes of harassment or any illegal action. Further you represent and warrant that the designated recipients of the Content distributed by the service are willing to accept the Content without recourse to uKabobs.
11. Limitation of Liability
IN NO EVENT SHALL UKABOBS, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE UKABOBS WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER ORNOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT UKABOBS SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
The Website is controlled and offered by uKabobs from its facilities in the United States of America. uKabobs makes no representations that the uKabobs Website is appropriate or available for use in other locations. Those who access or use the uKabobs Website from other jurisdictions do so at their own volition and are responsible for compliance with local law.
12. General Provisions
(a) Notices. We shall serve notices related to this Agreement by posting them on the Site or by sending them to the e-mail address you have given to us or as a text message to your mobile telephone number associated with your account. Notices posted on the Site 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. If you wish to communicate with us regarding the Service or your account, please use the Contact link (http://www.uKabobs.com/html/contacts.jsp) on the Site and include your username and the mobile telephone number associated with your account in your communication.
(b) 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 conditions will remain in full force and effect.
(c) Entire Agreement. This Agreement is accepted upon your use of the Site and is further affirmed by you becoming a Selling User and/or Purchasing User of the Service. You agree that this Agreement constitutes the entire, complete and exclusive agreement between you and us regarding the Service and supercedes 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.
(d) 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.
(e) Governing Law. The Terms of Use and any use of the site shall be governed in all respects by, and construed in accordance with the laws of the State of New Jersey and shall be subject to the exclusive jurisdiction of the Courts of the state of New Jersey. In the event that any provision of the Terms of Use shall be declared invalid, the entire Terms of Use shall not fail on its account, and that provision shall be severed, with the balance of the Terms of Use continuing in full force and effect
(f) Disputes. If there is any dispute about or involving the Site and/or the Service, by using the Site, you agree that the dispute shall be governed by the laws of the State of New Jersey and shall be
subject to the exclusive jurisdiction of the Courts of the state of New Jersey.
(g) Waiver. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by our authorized representative. Our remedies 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 rights 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.
(h) Survival. In the event this Agreement terminates as provided herein, Sections 3(a,c,d), 4, 6, 9, 10 and 11 of this Agreement shall survive such expiration or termination. |
