This document governs the relationship between you and MTV when you use any of our mobile/SMS/WAP Site services. MTV'S MOBILE/SMS/WAP SERVICE 1 DEFINITIONS "Distributor" means any Network Operator, aggregator or other third party that may provide the Service to you on our behalf; "Information" means all material delivered by us through our mobile and/or SMS and/or WAP Site services; "Network Operator" means a mobile telephone network operator; "Service(s)" means any mobile/SMS/WAP Site service provided by us (whether alone or in conjunction with your Network Operator); "we", "us", "our" means MTV Networks Australia Limited of 4-16 Yurong St, East Sydney NSW Australia 2010 "you", "your", "yourself" means you, the service end user; and "WAP Site" means the WAP site accessed via a mobile phone. 2 COST 2.2 Your Network Operator may charge you a browsing and downloading fee for your use of the WAP site so please check with your Network Operator for these costs. 2.2 Charges for the relevant Service will be deducted from your available credit time if you are a pre-pay customer or will appear on your monthly statement if you are a pay monthly customer. You must always obtain the permission of the person paying the bill for the relevant mobile device before using any Service. 3 REVERSE BILLED PREMIUM RATE SERVICES 3.2 Where we use reverse billed premium rate services we will notify you of the likely charge for receiving such content/message from us. The charge will be between a specified price range depending on your Network Operator and the Network Operator may also charge an additional standard messaging cost. Please consult your Network Operator for further details of its standard messaging costs. 3.3 When requesting a Service via SMS message, the return SMS message will usually give you details of how to withdraw from that particular Service. The withdrawal message may be charged at your Network Operator's standard messaging rates. 4 DISCLAIMER OF WARRANTIES/PROMISES 4.2 As such, components of the Service(s) are supplied to us and/or to you directly by third parties and we can make no promises, express or implied as to such elements of the Service(s), including without limitation, its accuracy, relevance or quality. The Service(s) is/are subject to the limitations of the enabling technology on which it/they rel(ies)(y) and may be adversely affected by network performance and other technological or operational factors beyond our control such as congestion, network coverage, dropped connections and the performance of your mobile device. 4.2 In relation to those components of the Service(s) under our control, we will always seek to uphold the rights that you are entitled to at law including your right to receive a satisfactory service from us and we will seek to correct any errors or omissions that are brought to our attention. Other than in respect of these rights, the Service(s) is/are provided on an "as is" or "as available" basis and we make no promises or representations, whether express or implied, in relation to the Service(s), including but not limited to implied promises or conditions of completeness and accuracy. 4.3 Where the Service(s) is/are provided to you directly by a Distributor, the take up and use of th(is)(ese) Service(s) by you may be subject to the Distributors own terms and conditions. However, you will remain bound by these terms and conditions to us where applicable and in the event of a conflict between the Network Operator's terms and conditions and these terms and conditions, these terms and conditions shall prevail. 4.4 You acknowledge that subject to 4.2 above: (a) it is technically impossible to provide the Services free of faults and that we do not undertake to do so; (b) faults may lead to temporary unavailability of one (1) or more of the Services; (c) the results that may be obtained from the use of the Service(s) may include inaccuracies or typographical errors; and (d) the operation of the Services may be adversely affected by conditions and performances outside our control, including without limitation, transmission and telecommunications links between us and you, between different parts of our company, and between us and other systems and networks. 4.5 In addition to 4.4 above, We will not be liable to you for failures, defects or delays in the delivery of the Service(s) which are caused by any of the following: (a) you have provided an incorrect phone number, incorrect spelling or other incorrect information in connection with the Service(s); (b) your mobile device does not support the Service(s); (c) your message mailbox is full and has no memory to receive a download of the Service(s); (d) your mobile device is out of range or cannot be contacted for any other reason; (e) you accidentally erase a Service provided to you; or (f) your failure to comply with the instructions for use of the Service(s) as explained by us and/or your Distributor. 5 LIMITATION OF LIABILITY 5.2 Other than as set out in 5.1 and to the extent permitted by law, we shall not be liable in contract, tort, negligence, statutory duty or otherwise, for any loss or damage whatsoever arising from or in any way connected with this Contract or the use or performance of the Service(s) in respect of any: (a) loss of business; (b) loss of profits, business interruption, loss of business information; or (c) any other pecuniary loss Nor shall we be liable to you for any damage to your mobile or other device or loss of data that results from your use of the Service(s) and we cannot guarantee that any files that you download are free from viruses, contamination or destructive features. 5.3 Subject always to 5.1 and 5.2 above, our total liability arising out of or in connection with the Service(s) and/or this Contract shall be limited in aggregate to 150% of the price you have paid for the relevant Service(s) from us. 6 RIGHTS GRANTED/ RIGHTS RESERVED 6.2 If you send any material to us, you thereby grant us an irrevocable, unconditional, worldwide royalty free licence to use such material or any part of it in perpetuity in any and all media and in any manner we may determine in our sole discretion. Furthermore you thereby consent to us doing any act or omitting to do any act that but for that consent would be an infringement of any moral rights or other similar rights you may have in such material. 6.3 All rights not expressly granted are reserved to us and our licensors as appropriate. 7 USER CONDUCT (a) for any unlawful purpose; (b) in any way so that the Service(s) is/are interrupted, damaged, rendered less efficient or the functionality of the Service(s) is/are in any way impaired; (c) in any way that may damage or disrupt your or another user's mobile device; (d) for the transmission of any computer viruses or any harmful or deleterious files or programs; (e) to transmit, post or otherwise make available any material which is defamatory, offensive, racist, or of an obscene or menacing character, or in such a way as to cause annoyance, inconvenience or needless anxiety; (f) as a means to threaten, stalk, harass, abuse, or otherwise insult other users or to collect or store personal data about other users; (g) in a manner which constitutes a violation or infringement of any person, firm or company's rights (including, but not limited to, rights of copyright or confidentiality); (h) in a manner that may cause harm to yourself or your property or another person or their property; (i) to transmit any material for the purposes of publicity, promotion and/or advertising without our prior written consent unless such transmission has been specifically requested by another user of a Service; (j) to create a false identity for the purpose of misleading others as to the identity of the sender or the origin of a message, including, but not limited to impersonating an MTV employee, manager, host or another user; or (k) to transmit, post or otherwise make available any solicited or unauthorised advertising, promotional materials, "junkmail", "spam", "chain letters", "pyramid schemes" or any duplicative or unsolicited messages. 7.2 You agree to comply with any age restrictions notified to you in respect of any given Service. 8 PARENTAL RESPONSIBILITY 9 COMPENSATION 9.2 You will fully compensate and defend us against all claims, liability, damages, costs and expenses, including legal fees, arising out of any breach of this Contract or any use of the Service(s) or the Information by you. 9.3 You acknowledge that we have limited control over the nature and content of Information transmitted or received by you or others who use the Service(s) and that we do not examine in any way the use to which you put the Service(s). The way in which you use the Service(s) is at your risk and you agree to fully compensate us against any claims or legal proceedings arising in connection with your use of the Service(s) that are brought or threatened against us by any other person. 10 INTELLECTUAL PROPERTY 11 SUSPENSION AND TERMINATION 11.2 Where applicable, you may withdraw from a Service at any time. If you subscribe to a Service via our website(s), you can click on the "Update Profile" link when logged in on the website(s) and amend your profile accordingly. If you request a Service by sending us an SMS message, the message you receive confirming your request will give you details of how to withdraw from that Service. 12 COMPETITIONS AND GAMES 13 USER PRIVACY 14 CHANGES TO THIS CONTRACT AND THE SERVICE 14.2 We also reserve the right to change and update the Service(s) from time to time although your attention is drawn to your right of termination at any time. 15 SEVERABILITY 16 NO WAIVER 17 CHOICE OF LAW AND JURISDICTION These Terms and Conditions were last updated on 21 May 2007. |