TERMS OF SERVICE
WELCOME TO BLUEMEDIA. BEFORE YOU USE OUR SERVICE, YOU MUST READ THESE TERMS OF SERVICE ("TERMS") CAREFULLY.
BY USING OUR SERVICE, YOU AGREE TO THESE TERMS OF SERVICE; IF YOU DO NOT AGREE; DO NOT USE THE SERVICE.
BLUEMEDIA reserves the right, at its sole discretion, to change, modify, add or remove portions of these TERMS, at any time. It is your responsibility to check these TERMS periodically for changes.
1. Description of Services
BLUEMEDIA provides downloadable mobile entertainment, such as ringtones, games, graphics, news and other information data through bluetooth (Bluetooth HotSpots), its on-line (World Wide Web) and SMS (Short Message Service) services (the "Service"). The Service may also include access to products and services of independent third parties. After proper registration and payment, you will be permitted to download to compatible mobile phones and other compatible devices certain Downloads through the Service.
2. Contracts, Registration and Access
In order to use the service you must be 18 years of age or older or have bill payers permission.
Contracts for our Service. Unless otherwise expressly indicated, no information presented in the Service or in connection with any products and services shall be deemed as a binding offer by BLUEMEDIA but as an invitation for you to order. The contract for the Subscription Service between you and BLUEMEDIA shall be deemed concluded when BLUEMEDIA upon your request, has provided you with access to the Service (such access may be based on a personal username and password generated for that purpose or on other data that BLUEMEDIA deems sufficient for your identification). Contracts for the products and services of BLUEMEDIA and independent third parties which are made available through the Service, shall be deemed concluded when BLUEMEDIA or the third party has accepted your order for the same or has provided you with the product or service pursuant to your order.
Assignment. You may not assign or transfer in any other way the contract or any of your contractual rights. BLUEMEDIA shall have the right to assign its rights and obligations under this contract and any receivables based on this contract to a third party upon written notice to you, provided such assignment is made under terms not less favourable to you than those in these TERMS. After a notice concerning the transfer of receivables, payments shall be valid only when made to the new service provider.
Contracts for Products and Services of Third Parties. The Service may also include access to products and services of independent third parties either directly or via links to sites operated by third parties. Where reasonably possible, BLUEMEDIA shall indicate the products and services as third party content. Even though they may be co-branded with BLUEMEDIA and therefore include BLUEMEDIA's trademarks, the contracts for products and services provided by third parties are concluded directly between you and the third party. BLUEMEDIA SHALL NOT BE A PARTY TO, OR IN ANY WAY RESPONSIBLE FOR, ANY TRANSACTION CONCERNING PRODUCTS OR SERVICES MADE AVAILABLE FROM SUCH THIRD PARTIES OR FOR ANY CONTENT OR INFORMATION PRESENTED IN CONNECTION WITH ANY PRODUCTS OR SERVICES OF THRID PARTIES.
Access. Hard - and Software. In order to use the Service, you must have a mobile communications subscription or otherwise have access to the Service on the network in which BLUEMEDIA provides Services, and pay any service fees associated with such access. In addition, you must provide all equipment and software necessary to make such connection, including a mobile hand set or other access device and ensure that they are in working order and suitable for use in connection with the Service. You are responsible for ensuring that equipment and software do not disturb or interfere with BLUEMEDIA's operations. Any equipment or software causing interference shall be immediately disconnected from the Service. If any upgrade in a service requires changes in your equipment or software, you must effect these changes at your own expense. BLUEMEDIA shall inform you of any such alterations in the Service in advance. Unless explicitly stated otherwise, any new or additional features that augment or enhance the current Services, including the release of new services, shall be subject to these TERMS.
Registration and Registration Data. Upon your request, BLUEMEDIA may register you as a user and provide you with access to the Service by allocating you a personal username and password. BLUEMEDIA may need to change usernames allocated to certain of its Services and reserves the right to do so (you will be informed if this is necessary). The same procedure may apply to products and services made available through the Service. You are solely responsible for maintaining the confidentiality of any possible password and account. In exchange for your use of the Service (in addition to the payment of applicable fees) you agree to: (a) provide true, accurate and complete information about yourself as prompted by the registration form ("Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If BLUEMEDIA has reasonable grounds to suspect that the Registration Data is untrue, inaccurate or incomplete, BLUEMEDIA 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). Prior to any such withdrawal BLUEMEDIA shall temporarily withdraw the Service and notify you of the grounds on which the Service has been withdrawn. If the position has not been rectified within 14 working days of the notice such withdrawal will be made permanent.
Access without Registration. BLUEMEDIA may provide you with access to some Services without you registering as a user. In that case your identification is based on other means of identification that BLUEMEDIA deems appropriate. Identification is typically based on data identifying your Subscription, such as your mobile phone number or mobile Bluetooth ID number. You agree that such information may be collected and disclosed to BLUEMEDIA and used in accordance with section 5.
Interruptions or Discontinuation of Service. BLUEMEDIA may suspend the Service for repair, maintenance, and/or upgrade work. In such event, BLUEMEDIA shall aim at keeping the said interruption short and at causing as little inconvenience to you as reasonably possible. BLUEMEDIA reserves the right to modify or discontinue, temporarily or permanently, individual services provided by it or third parties via the Services, or the Services themselves. If a service is or the Services are to be permanently discontinued by BLUEMEDIA it will notify you of this fact and reimburse any pre-paid fees.
3. Privacy
BLUEMEDIA is committed to your privacy. You acknowledge that BLUEMEDIA collects and processes Registration Data and information on your use of the Service including the personally identifiable information contained therein, if required to do so in order to comply with any valid legal process or governmental request, or as otherwise provided in these TERMS. Personal information collected by BLUEMEDIA may be stored and processed in IRELAND or any other country in which BLUEMEDIA or its agents maintain facilities. By using the Service, you consent to any such transfer of information outside of your country.
4. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES
YOU UNDERSTAND THAT YOUR USE OF THE SERVICE AND THE DOWNLOAD OF CONTENT IS AT YOUR OWN SOLE RISK AND THAT YOU MUST COMPLY WITH THE INSTRUCTIONS GIVEN BY BLUEMEDIA.
THE SERVICES ARE PROVIDED "AS IS" AND WITH NO WARRANTIES WHATSOEVER BY BLUEMEDIA OR ITS AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES; LICENSORS; BUSINESS PARTNERS AND/OR SUPPLIERS OTHER THAN THE WARRANTIES PROVIDED IN THESE TERMS AND REQUIRED BY THE LAW APPLICABLE TO THESE TERMS. THERE IS NO WARRANTY THAT THE SERVICE OR THE DOWNLOADS WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE. BLUEMEDIA DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR THE CONTENT WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. YOU WILL NOT HOLD BLUEMEDIA RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING THE SERVICE OR USING THE SERVICE, AND/OR THE DOWNLOADS INCLUDING, BUT NOT LIMITED TO, ANY INFECTIONS OR CONTAMINATIONS OF YOUR DEVICES YOU USE TO ACCESS THE SAME. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO BLUEMEDIA.
BLUEMEDIA WILL NOT BE RESPONSIBLE FOR NON-COMPLIANCE THESE TERMS WHERE SUCH NON-COMPLIANCE RESULTS FROM MATTERS BEYOND BLUEMEDIA'S REASONABLE CONTROL.
UNDER NO CIRCUMSTANCES SHALL BLUEMEDIA 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 AND/OR THE CONTENT, EVEN IF BLUEMEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTIAL OR CONSEQUENTIAL DAMAGES, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS 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, BLUEMEDIA 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 IN RESPECT TO ANY ONE EVENT OR A SERIES OF TWO OR MORE RELATED EVENTS EXCEED EUR 450.
THE CONTENT IS THE SOLE RESPONSIBILITY OF THE PERSON FROM WHOM SUCH CONTENT ORIGINATED. UNLESS EXPLICITLY STATED TO THE CONTRARY, BLUEMEDIA DOES NOT CONTROL THE CONTENT POSTED VIA OR MADE AVAILABLE USING THE SERVICE AND DOES NOT WARRANT THE ACCURACY, AVAILABILITY, INTEGRITY, OR QUALITY OF SUCH CONTENT. BLUEMEDIA WILL NOT BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, OTHERWISE TRANSMITTED VIA OR MADE AVAILABLE USING THE SERVICE:
BLUEMEDIA SHALL USE REASONABLE EFFORTS TO SECURE ANY INFORMATION THAT YOU TRANSMIT OR STORE THROUGH THE SERVICE IN ORDER TO PREVENT UNAUTHORISED ACCESS BY THIRD PARTIES. YOU ACKNOWLEDGE, HOWEVER, THAT BLUEMEDIA IS UNABLE TO EXERCISE FULL CONTROL OVER THE SECURITY OF INFORMATION PASSING OVER THE NETWORK UTILISED BY THE SERVICES OR VIA THE SERVICE, AND BLUEMEDIA HEREBY EXCLUDES ALL LIABILITY OF ANY KIND FOR UNAUTHORISED ACCESS TO INFORMATION PASSING OVER THE NETWORK OR VIA THE SERVICE.
BLUEMEDIA IS NOT RESPONSIBLE FOR MAINTAINING ANY SITE OR ADDRESS OTHER THAN ITS OWN AND CANNOT GUARANTEE THE CONTINUNED AVAILABILITY OF ANY OTHER PERSON'S SITE OR ADDRESS. BLUEMEDIA SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY MODIFICATION, SUSPENSION OR DISCONTINUANCE OF THE SERVICE OR ANY PART THEREOF NOT WITHIN ITS REASONABLE CONTROL.
5. Indemnification
You agree to indemnify and hold BLUEMEDIA and its agents, employees, subsidiaries, affiliates, licensors and business partners harmless from any demands, loss, liability, claims or expenses (including attorney fees) made against BLUEMEDIA by any third party due to or arising out of or in connection with your use of the Service.
6. Use of Service and Content
Responsibility for the Use of the Service. You are fully responsible for all activities that occur under your password or account or through your Subscription. That responsibility includes, but is not limited to, the responsibility for any fees for the use of the Service or any products and services made available through the Service. You agree to immediately notify BLUEMEDIA in case you become aware of or suspect unauthorised use of your password or account or Subscription or any other breach of security, and to ensure that you log out of your account at the end of each session. BLUEMEDIA cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
Prohibited Use. You shall not, shall not agree to, and shall not authorize or encourage any third party to use the Service or services available via the Services to (1) upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses, harmful, threatening, tortuous, libellous, invasive of another's privacy, hateful, or otherwise objectionable as reasonably determined by BLUEMEDIA; (2) harm minors in any way; 3) impersonate any person or entity, including, but not limited to, a BLUEMEDIA official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity; (4) upload, transmit or otherwise distribute content that infringes upon another's party intellectual property rights or other proprietary, contractual or fiduciary rights or obligations; (5) upload, transmit or otherwise distribute any unsolicited or unauthorised advertising, promotional materials, "junk mail", "Spam", chain letters, pyramid schemes, or any other form of solicitation, except in those areas (such as shopping rooms) that are designated for such purpose; (6) "stalk" or otherwise harass another; (7) prevent others from using the Service; (8) manipulate identifiers in order to disguise the origin of any Content transmitted through the Service; (9) intentionally or unintentionally violate any applicable local, state, national or international law; (10) copy, distribute, sell, resell or exploit for any commercial purposes, any Portion of the Service (or any Downloads accessible on or through the Service), or your user name or password.
General Practices. You acknowledge that BLUEMEDIA may establish general practices and limits concerning the use of the Service (such as maximum number of days that uploaded content will be retained by the Services). You acknowledge that BLUEMEDIA reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that BLUEMEDIA reserves the right to change these general practices and limits at any time, at its sole discretion, without notice.
Intellectual Property Rights You acknowledge and agree that the Service, any software used in connection with the Service ("Software"), and usernames allocated to you contain proprietary and confidential information that is protected by applicable intellectual and industrial property and other laws and which belongs to BLUEMEDIA or third parties. You will not acquire ownership of any intellectual property rights in Software or usernames by virtue of your use of the Services. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorised by BLUEMEDIA, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part. You agree not to access the Service by any means other than through the interface that is provided by BLUEMEDIA for accessing the Service. BLUEMEDIA hereby grants you a license to make a single copy of the Content on the equipment you use to access the Service and to use and display such copy of the content on such equipment for private non-commercial purposes. You agree not to display or use in any manner, the trademarks, trade names or logos used in connection with the Service without BLUEMEDIA's prior written consent.
7. Charges
Fees. Since this is a FREE Service, you would not be charged by BLUEMEDIA. However, usage of the BLUEMEDIA mobile app requires usage of MOBILE INTERNET/ GPRS and so you will be charged by your Network Operator according to your Data package.
Fee Changes. In case of any charges/fees the COMPANY will provide you with reasonable notice of such change. If you do not accept the new fees (which will be applicable on a prospective basis only), you may STOP using the service.
8. Termination and Cancellation of Service
You agree that BLUEMEDIA, at its sole discretion, may at any time terminate your use of the Service or individual services provided via the Services and remove and discard any content within such services, if you remain in breach of this agreement for more than 7 days from notice of such fact.
The contract may be terminated either by you or by BLUEMEDIA. You may terminate by submitting a notice in accordance with Clause 9. To unsubscribe, go to "My Clubs" under "My BLUEMEDIA" on www.BLUEMEDIA.ie or send an email to info@BLUEMEDIA.ie. The termination shall become effective immediately upon termination. BLUEMEDIA may cancel all or any of the Services (or individual services provided via the Services), for lack of use, or if BLUEMEDIA believes that you have violated or acted inconsistently with theses TERMS. You agree that upon termination of your access to the Service under any provision of these TERMS, BLUEMEDIA may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that BLUEMEDIA shall not be liable to you or any third party for any termination of your access to the Service. If you cancel your account or subscription for any reason, BLUEMEDIA will not refund any of your fees paid to date, except as provided in provision 2 of these TERMS.
BLUEMEDIA shall serve notices related to this contract by posting them on the BLUEMEDIA web site or by sending them to the postal address or e-mail address you have given to BLUEMEDIA or as a text message to your mobile phone number. Notices sent by mail shall be deemed received seven days after they were sent. Notices posted on the BLUEMEDIA Web 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.
Changes of TERMS. BLUEMEDIA reserves the right to amend, supplement or modify these TERMS from time to time and will post a copy of such changed TERMS on the BLUEMEDIA web site or send you a notice pursuant to this section. If you do not agree to be bound by (or cannot comply with) the TERMS as amended, your only remedy is to cancel your subscription and/or account. You will be deemed to have accepted the Agreement as amended 14 days after the amended agreement is posted or if you continue to use the Service; all other terms of this Agreement will continue in effect.
OTHER TERMS. ENTIRE AGREEMENT. These TERMS are in addition to any BLUEMEDIA or third party terms and conditions applicable to products and services, which may be posted in connection with such products and services ("Specific Terms"). In case of any discrepancy between the TERMS and such Specific Terms, the latter shall prevail. These TERMS and any other terms or documents referred to herein represent your entire agreement with BLUEMEDIA with respect to your use of the Service. 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.
Severablity. 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.
No Waiver. BLUEMEDIA'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. 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.
