The web site available at www.CelebCalls.com, and all linked pages ("Site"), are owned and operated by 10Acious Inc ("Company"), and may only be accessed and utilized by you ("Subscriber") under the following terms and conditions (the "Agreement"):
Subject to the terms and conditions of this Agreement, Company may offer to provide certain services, as described more fully on the Site, and which may be utilized by Subscriber through the processes provided on the Site or through the use of a phone or other communication device ("Services"), solely for Subscriber's own personal, non-commercial use, and not for the use or benefit of any third party. Services shall include, but not be limited to, communication and voice messaging services and any other services Company performs for or on behalf of Subscriber, as well as the offering of any Content (defined below) on the Site. Company may change, suspend or discontinue the Services at any time, including the availability of any feature, service, or content. Company may also impose limits on certain features and services or restrict Subscriber's access to parts or all of the Services without notice or liability. Company reserves the right, at its discretion, to modify this Agreement at any time by posting a notice on the Site, or by sending Subscriber a notice via email or other form of written notice. Subscriber shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Services by Subscriber following such notification constitutes Subscriber's acceptance of the terms and conditions of this Agreement as modified. Company retains all right, title and interest in and to the Services and all related intellectual property rights (including, without, limitation, all rights related to telephone numbers and text codes that may be provided for use in connection with the Services and the like), and Subscriber is only granted the limited right to use the Services in accordance with this Agreement.
Subscriber certifies to Company that if Subscriber is an individual (i.e., not a corporation), Subscriber is thirteen years of age or older. Subscriber also certifies that it is legally permitted to use the Services and access the Site, and takes full responsibility for the selection and use of the Services and access of the Site. This Agreement is void where prohibited by law, and the right to use the Services and access the Site is revoked in such jurisdictions.
Subscriber shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Site or otherwise use the Services, including, without limitation, hardware devices, software, and other internet, wireless, broadband, phone or other communication device connection services. Subscriber shall be responsible for ensuring that such equipment or ancillary services are compatible with the Services and Subscriber shall be responsible for all charges incurred in connection with use of the Services in connection with all such equipment and ancillary services, including any fees charged for airtime usage and/or sending and receiving "Messages" (as defined below) or related notifications.
The Site and its contents and the Services are intended solely for the use of Company Subscribers and may only be used in accordance with the terms of this Agreement. All materials displayed, distributed or performed on the Site or through the use of the Services (including, but not limited to text, software, scripts, graphics, photos, sounds, music, videos, logos, interactive features and the like, also known as "Content") are protected by copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. Subscriber shall abide by all copyright notices and trademark, information, and other restrictions contained in any Content accessed on the Site or through the Services. Subscriber may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided herein), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part. Subscriber may not utilize the Content in any way other than as expressly provided in this Agreement. Subscriber shall not store any significant portion of any Content in any form. Copying or storing of any Content for other than personal, noncommercial use is expressly prohibited without prior written permission from Company, or from the copyright holder identified in such Content's copyright notice. The Site is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other intellectual property laws. Subscriber may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided in this Section of the Agreement), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part. The foregoing restrictions with respect to Content do not apply to Subscriber's own Messages.
The Company may now or in the future permit Subscriber to utilize the Services to enable audio, text, video, voice or other communications submitted by Subscriber to be delivered, hosted, shared, performed or otherwise published to other Company Subscribers (or third parties known to Subscriber) that have consented to receive such communications from Subscriber ("Messages"). Subscriber understands and acknowledges that Company does not guarantee the confidentiality, transmission, or accuracy with respect to any Messages. Subscriber warrants, represents and agrees that it will not contribute any Messages that are infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise in violation of any law or right of any third party. Company reserves the right to reject or disable access to any Messages at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Messages or if Company is concerned that Subscriber may have breached the immediately preceding sentence), or for no reason at all. As between Company and Subscriber, Subscriber shall retain ownership rights in all Messages; however, Subscriber hereby grants Company a worldwide, nonexclusive, royalty-free, sublicenseable and transferable license to reproduce, distribute, display, and perform the Messages in connection with Subscriber's use of the Services, Site and Company's (and its successor's) business. Subscriber also acknowledges and agrees that the Service (now or in the future) will enable Message recipients to forward, save, delete, or reply to that message much like any voicemail or email system and Subscriber hereby consents thereto. Company does not endorse any Messages or any opinion, recommendation, or advice expressed therein, and Company expressly disclaims any and all liability in connection with Messages.
Company has no special relationship with or fiduciary duty to Subscriber. Subscriber acknowledges that Company has no control over, and no duty to take any action regarding: which users gains access to the Site; what Content or Messages Subscriber accesses or receives via the Site or Services; what effects the Content or Messages may have on Subscriber; how Subscriber may interpret or use the Content or Messages; or what actions Subscriber may take as a result of having been exposed to the Content or any Messages. Subscriber releases Company from all liability for Subscriber having acquired or not acquired Content or Messages through the Site or Services. The Site may contain, or direct Subscriber to sites containing, or Subscriber may receive Messages containing information that some people may find offensive or inappropriate. Company makes no representations concerning any Content or Messages contained in or accessed through the Site or any Services provided, and Company will not be responsible or liable for the accuracy, transmission, copyright compliance, legality or decency of material contained in or accessed through the Site or Services. ALL USE OF THE SERVICES, CONTENT, SITE, MESSAGES, AND ANY SOFTWARE SHALL BE AT SUBSCRIBER'S OWN RISK AND ALL OF THE FOREGOING ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
As a condition to using Services, Subscriber may be required to register with Company and select a pin and/or password and Subscriber name ("Company User ID"). Subscriber shall provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of Subscriber's account. Subscriber may not (i) select or use as a Company User ID a name of another person with the intent to impersonate that person; or (ii) use as a Company User ID a name subject to any rights of a person other than Subscriber without appropriate authorization. Company reserves the right to refuse registration of, or cancel a Company User ID in its discretion. Subscriber shall be responsible for maintaining the confidentiality of Subscriber's Company password. Company will not be liable for any losses caused by unauthorized use of Subscriber's Company User ID, but Subscriber may be liable for the losses of Company or others due to such unauthorized use.
Subscriber will indemnify and hold Company, its parents, subsidiaries, affiliates, officers and employees, harmless, including costs and attorneys' fees, from (i) any claim or demand made by any third party due to or arising out of Subscriber's access to the Site, use of the Services (including the sending or receipt of Messages), the violation of this Agreement by Subscriber, or the infringement by Subscriber, or any third party using the Subscriber's account, of any intellectual property or other right of any person or entity.
IN NO EVENT SHALL COMPANY BE LIABLE WITH RESPECT TO THE SITE OR THE SERVICES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, AND NOTWITHSTANDING ANY DAMAGES THAT SUBSCRIBER MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF COMPANY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY SUBSCRIBER FOR THE USE OF THE SERVICES OR U.S. $50.00. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO SUBSCRIBER.
While Company does currently charge a fee for the use of the Services or Site, some of the Services or use thereof may require Subscriber to pay certain third-party fees. Subscriber shall be responsible for all applicable fees associated with use of the Services, including without limitation, any connection or usage fees incurred for the transmission, receipt, or delivery of Messages. Company shall have no liability to Subscriber for any fees incurred in connection with the Services.
Either party may terminate the Services at any time by notifying the other party by any means. Company may also terminate or suspend any and all Services and access to the Site immediately, without prior notice or liability, if Subscriber breaches any of the terms or conditions of this Agreement. Upon termination of the Subscriber's account, Subscriber's right to use the Services, send or receive Messages, access the Site and any Content will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Subscriber except with Company's prior written consent. This Agreement shall be governed by and construed in accordance with the laws of the commonwealth of Kentucky without regard to the conflict of laws provisions thereof. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Subscriber does not have any authority of any kind to bind Company in any respect whatsoever.