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The phling! service is a community-based mobile music service that Oxy Systems develops, markets and operates. To reach the largest market effectively, Oxy partners in certain markets with mobile wireless network operators. Using phling!, users are connected to all the music, podcasts, and pictures stored on their PCs, to friends and to everyone in the phling! community, all from the mobile phone. Users use the mobile phone to listen to their music anywhere, anytime without having to first synchronize with their PC. Users can read and submit song reviews, find out who is listening to what, browse user profiles, and stay in touch by posting messages to friends’ bulletin boards. Through the phling! service, users are able to discover new music through the community. Oxy Systems operates the Oxy Products as services that users may pay for on a subscription or per-use basis.
Oxy Systems respects copyright and other laws and we require that all of our users agree that they will not use the Oxy Products to infringe the intellectual property or other rights of others.
To enhance the music discovery process for phling! users, Oxy Systems has created the Mobile Music Promotion Program as a collaboration of Oxy Systems with owners of music content. The Mobile Music Promotion Program enables users to find and listen to a range of music that artists, musicians, record companies and other content owners make available to them through the phling! service. For the content owners, the Program is an opportunity to reach a mobile music community, to promote their music, and to get feedback from that community.
For Oxy Systems to be able to operate the Mobile Music Promotion Program, Oxy Systems must be authorized by the content owners through license of copyrighted works. For example, a license to modify such content is required to transcode music files to a format that can be played on a mobile handset. A license to publicly perform such content is required for us to allow users to listen to that music. The attached agreement includes the license, terms and conditions required for the Mobile Music Promotion Program.
The Mobile Music Promotion Program provides for listening by the user on the mobile handset of the content posted by content owners. No permanent copies of the music are made on the handset. There are no additional charges to the user for listening to this content.
In the future, Oxy Systems may offer the user the ability to download and make a copy of the content on the user’s PC and/or the mobile handset. Your content would be available for such download only with your authorization.
In the future, Oxy Systems may implement a feature that would allow users to purchase content in the Mobile Music Promotion Program. This agreement does not authorize Oxy Systems to sell your content and Oxy Systems will not do so in the future without your express permission and authorization. The terms and conditions including financial terms would be included in such future agreement.
Now, Therefore, in consideration of the foregoing and the mutual covenants contained herein, the parties hereto agree as follows:
In this Agreement, the following terms shall have the designated meanings:
1.1"Agreement" shall mean this document and all Exhibits attached hereto.
1.2"Effective Date" shall mean the date this Agreement is executed by both parties.
1.3"Oxy Products" means Oxy Systems’ software, whether preinstalled, on a medium, or offered by download, and all documentation related thereto, Oxy Systems’ services, Oxy Systems’ websites (including, without limitation, those web sites accessible via the following URLs: http://www.phling.com and http://www.oxysys.com), all other software, features, tools, web sites, and services provided by or through Oxy Systems and Oxy Systems’ third-party vendors and all content made available by Oxy Systems and/or its vendors and licensors including by or through the Oxy Systems websites, products and services (the “Oxy Systems Content”).
1.4"Licensed Content" shall mean the music and other media that Licensor provides to Oxy Systems for the purposes of providing to the phling! community through Oxy Products.
1.5"Posting" means that you are making Licensed Content available by uploading that content to Oxy Products, making that content available directly from your computer to users of Oxy Products, or in other way publishing or presenting that content to users of Oxy Products.
2.1Licensor hereby grants to the Licensee a limited license to use, copy, modify, translate, publish, broadcast, publicly perform, publicly display, reproduce, and distribute Licensed Content solely on and through the Oxy Products.
2.2The license is non-exclusive, fully-paid and royalty-free, sub-licensable and worldwide. This license does not grant Oxy Systems the right to sell your Content, nor does the license grant Oxy Systems the right to distribute your Content outside of the Oxy Products. This license will terminate at the time Licensor removes Licensed Content from Oxy Products. If Licensed Content has been posted to Oxy Products and requires that we remove such Licensed Content, we will make good efforts to do so in a timely manner after notification by you and the license will terminate only after Licensed Content is removed.
3.1Licensor represent and warrants that (i) Licensor owns all the rights to this Licensed Content or is authorized to act on behalf of that owner(s) to use and distribute this Licensed Content on the Oxy Products, including the legal authority to authorize reproduction, distribution, modification, public display, communication to the public and/or public performance of copyrighted works, and (ii) this Licensed Content does not and will not infringe any copyright or any other third-party right nor violate any applicable law or regulation and does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. Licensor agrees to pay for all royalties, fees, and any other monies owing any person by reason of any Licensed Content posted by you to or through the Oxy Products.
3.2Oxy Systems may delete any Content that in the sole judgment of Oxy Systems violates this Agreement or which may be offensive, illegal or violate the rights, harm, or threaten the safety of any person. Oxy Systems assumes no responsibility for monitoring the Oxy Products for inappropriate Content. If at any time Oxy Systems chooses, in its sole discretion, to monitor the Oxy Products, Oxy Systems nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
3.3Licensor shall defend, indemnify and hold harmless Licensee from all costs, expenses, damages, suits and other proceedings incurred by Licensee, its officers, directors, employees or agents in connection with any claim that the Licensed Content infringes any copyright, patent or other proprietary rights of third parties.
4.1This Agreement incorporates the Terms and Conditions attached in Exhibit 1, which are applicable for all users of Oxy Products and are available on our website, www.phling.com. A disclaimer of warranties and limitation of liability of Oxy Systems is included in Exhibit 1.
4.2This Agreement may be assigned by Licensee including any licenses and rights, without the prior written consent of Licensor.
4.3The rights and obligations of the parties under Sections 3, 4 and 5 hereof shall survive any termination of this Agreement.
4.4The validity, construction and performance of this Agreement shall be governed by the laws of the Commonwealth of Massachusetts, USA and the parties hereto submit to the exclusive jurisdiction of the state and federal courts located in the Commonwealth of Massachusetts with respect to any matters relating to this Agreement.
4.5This Agreement is the entire agreement between Licensor and Licensee relating to the Licensed Content. If any provision of this Agreement is held invalid, all other provisions shall remain valid unless such validity would frustrate the purpose of this Agreement.
4.6No modification to this Agreement is binding, unless in writing and signed by a duly authorized representative of each party.
These Terms and Conditions were last updated on August 31, 2007.
Oxy Systems, Inc. (herein referred to as “Oxy Systems”, “we”, “us”, or “our”) provides and makes available the Oxy Products (as defined below) subject to these Terms and Conditions. Please read these Terms and Conditions carefully. By accessing or using any Oxy Products, you acknowledge that you have read, understood, and agree to be bound by these Terms and Conditions.
If you do not wish to be bound by these Terms and Conditions, you are not authorized to use the Oxy Products.
For purposes of these Terms and Conditions, the term "Oxy Products" means Oxy Systems' Software (as defined herein), whether preinstalled, on a medium, or offered by download, and all documentation related thereto, Oxy Systems' services, Oxy Systems' websites (including, without limitation, those web sites accessible via the following URLs: http://www.phling.com and http://www.oxysys.com), all other software, features, tools, web sites, and services provided by or through Oxy Systems and Oxy Systems' third-party vendors and all content made available by Oxy Systems and/or its vendors and licensors including by or through the Oxy Systems websites, products and services (the “Oxy Systems Content”).
Oxy Systems may change the Terms and Conditions at any time and in its sole discretion. The modified Terms and Conditions will be effective immediately upon posting and you agree to the new posted Terms and Conditions by continuing your use of the Oxy Products. Oxy Systems will provide at least 30-days' notice before any material changes take effect. If you do not agree with the modified Terms and Conditions, your only remedy is to discontinue using the Oxy Products and cancel your registration.
The Oxy Products are intended for general audiences thirteen years of age and older. You represent and warrant that you have adequate legal capacity to enter into binding agreements such as these Terms and Conditions. Some Oxy Products may require the user to register and provide information to Oxy Systems, such as mobile telephone number, name, e-mail address, gender, date of birth, zip code (the "Registration Information"). If you register for any Oxy Product, you agree to provide accurate and complete Registration Information and you agree to keep such information current.
The Oxy Systems' Privacy Policy explains how Oxy Systems collects and uses information and the choices you have with that information. You consent to Oxy Systems using your registration information and other information collected by Oxy Systems under the terms of the Oxy Systems' Privacy Policy.
By registering with or using Oxy Products, you consent to the collection and use of your personal information and the transfer of this information to the United States or other countries for the processing and storage by Oxy Systems. Additionally, you agree that Oxy Systems may use the registered mobile telephone number, or other similar technologies, to authenticate you on Oxy Products, help store your registration and transaction-related information, and enable you to take advantage of offerings from Oxy Systems and its affiliated providers.
You also agree that Oxy Systems may at times store all or part of your buddy list to enable certain buddy screen name dependent features. Additionally, you agree that Oxy Systems may download application information from the device running one or more Oxy Products for diagnostic, troubleshooting, and bug fixing purposes.
You are responsible for all activity made by you or anyone (including your family and friends) that you allow to use your Oxy Systems account and any Oxy Products registered in your name. You agree to keep confidential the passwords associated with your account. You agree to indemnify and hold harmless Oxy Systems for losses incurred by Oxy Systems or another party due to someone else using your account or password as a result of your failure to keep your account information confidential.
You are responsible for obtaining your own Internet access, and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Oxy Products, and all charges related thereto. Any mobile or fixed line telephone or other communications charges incurred by you to access or use Oxy Products are your responsibility. Also, your carrier, such as a wireless carrier, may charge service fees for alerts, text messaging (including receiving/sending instant messages and e-mail), web browsing, and other services that require the use of airtime and wireless data services. Check with your carrier to verify the fees that may apply to you.
You may use Oxy Products for lawful purposes only. You may not post on or transmit through community areas (e.g., bulletin boards, mblog pages, chat, e-mail, instant messaging products) or other means any material that (1) violates or infringes in any way upon the rights of others, (2) is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, indecent or otherwise objectionable, (3) encourages conduct that would constitute a criminal offense, (4) gives rise to civil liability, (5) violates [any policies posted in any community areas] or (6) otherwise violates any law. You also may not undertake any conduct that, in Oxy Systems' judgment, restricts or inhibits any other user from using or enjoying the Oxy Products, including without limitation the community areas.
Oxy Systems is not required to pre-screen User Content available on the Oxy Products, including the content of any messaging that occurs on or through the Oxy Products, although Oxy Systems reserves the right to do so in its sole discretion. Oxy Systems is not liable for User Content. Oxy Systems reserves the right to remove User Content that, in its sole judgment, does not meet its standards or does not comply with these Terms and Conditions, but Oxy Systems is not responsible for any failure or delay in removing such material.
If User Content appears on any Oxy Product which you believe is illegal or which you believe invades your privacy, Oxy Systems encourages you to contact us at abuse@oxysys.com. To allow us to consider such claims, please provide your full name, complete identification of the material complained of, any information known to you regarding the circumstances surrounding the material, an explanation of why you feel the material is illegal or is an invasion of your privacy, and a means for us to contact you. Oxy Systems will make a reasonable effort to consider your claim and provide a response that addresses the questionable User Content within five business days of receiving your communication. Information you provide during this process may be shared with third parties in pursuit of the questionable User Content and/or in any legal proceedings.
Oxy Systems respects copyright and other laws. Oxy Systems requires all users of Oxy Products to comply with copyright and other laws. Oxy Systems does not, by the supply of Oxy Products, authorize you to infringe the copyright or other rights of third parties.
As a condition of use of the Oxy Products, you agree that you must not use the Oxy Products to infringe the intellectual property or other rights of others, in any way. The unauthorized reproduction, distribution, modification, public display, communication to the public or public performance of copyrighted works is an infringement of copyright.
Users are entirely responsible for their conduct and for ensuring that it complies with all applicable laws, including, without limitation, copyright and data protection laws. In the event a user fails to comply with any such laws, such a user may be exposed to civil and criminal liability, including possible fines and imprisonment.
If you believe that your work or the work of another has been copied and is accessible on an Oxy Product in a way that constitutes copyright infringement, please contact Oxy Systems at copyright@oxysys.com. In your email you must provide the following information:
Upon receiving your complaint, Oxy Systems may remove or stop distributing and/or making available User Content and/or Oxy Systems Content that you believe infringes your copyright. In addition, Oxy Systems may terminate the account of the customer who appears to be infringing your intellectual property rights.
Oxy Systems, its vendors and Oxy Product users who lawfully post or otherwise make available for distribution content such as information, software, games, communications, photos, video, graphics, music, sound and other materials ("User Content") on Oxy Products own the property rights to that User Content.
User Content and Oxy Systems Content may be protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and Oxy Systems Content also may have security components that protect digital information only as authorized by Oxy Systems or its vendors. You agree that you will not take any action to interfere with Oxy Systems' or its vendors' and/or licensors' ownership of or rights in the Oxy Systems Content and you will not attempt to circumvent any mechanisms for preventing the unauthorized reproduction or distribution of the Oxy Systems Content.
You may use Oxy Systems Content only for personal, non-commercial purposes. You may be given the opportunity to download certain User Content and/or Oxy Systems Content such as music and photos, but you may do so only to the extent as authorized for that particular Oxy Systems Content and only for your personal noncommercial use. You may not use the User Content and/or Oxy Systems Content in a manner that exceeds the rights granted for your use of the Content, which includes unauthorized copying or distribution of the User Content and/or Oxy Systems Content or creating an unauthorized derivative work of the same.
You may only post or otherwise make available for distribution User Content that you created or which the owner of the User Content has given you. You may not post or otherwise make available for distribution User Content that is illegal or that violates these Terms and Conditions. By posting or submitting User Content on any Oxy Product, you represent and warrant that (i) you own all the rights to this User Content or are authorized to use and distribute this User Content on the Oxy Product and (ii) this User Content does not and will not infringe any copyright or any other third-party right nor violate any applicable law or regulation.
Although you or the owner of the User Content retain ownership of all right, title and interest in Content that you post to any Oxy Product, Oxy Systems owns all right, title and interest in any compilation, collective work or other derivative work created by Oxy Systems using or incorporating this User Content. In addition, by posting or otherwise making available User Content on an Oxy Product, you grant Oxy Systems, its parent, affiliates, subsidiaries, assigns, agents and licensees the irrevocable, perpetual, worldwide right to reproduce, display, perform, distribute, excerpt, adapt, modify to the extent necessary to make available and/or compatible with a mobile handset, and promote all or any portion of such User Content in any medium. You waive any right to privacy in all such User Content. You waive any right to inspect or approve uses of any such User Content or to be compensated for any such uses.
All trademarks appearing on the Oxy Products (the “Trademarks”) are the property of their respective owners, including, without limitation, Oxy Systems. Nothing within the Oxy Products shall be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark displayed on the Oxy Products, without the prior permission of Oxy Systems or the applicable third party Trademark owner, for each specific use. The Trademarks may not be used to disparage Oxy Systems and/or the applicable third party rights holder, any of their products or services, or in any other manner which in our reasonable judgment, may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any other website is prohibited unless establishment of such a link is approved in advance by Oxy Systems in writing. All goodwill generated from the use of any Oxy Systems Trademarks inures to our benefit.
phling! and the phling! logo are registered trademarks of Oxy Systems, Inc. Third party trademarks, trade names, product names, and logos may be trademarks or registered trademarks of their respective owners.
You may not use Oxy Products including communication tools such as e-mail, instant messaging, bulletin boards, and chat services to send unsolicited bulk communications, including through e-mail or instant messages. Similarly, you may not authorize others to use your account or sub-accounts to send unsolicited bulk communications, or cause unsolicited bulk communications to be sent by someone else. You may not harvest or collect information about Oxy Product users including mobile telephone numbers, and use that information for the purpose of sending unsolicited bulk communications. Any violation of these provisions may result in immediate termination of your registration and further legal action. You agree that Oxy Systems may take any legal and technical remedies to prevent unsolicited bulk communications from entering, utilizing or remaining within Oxy Systems' customer base.
Oxy Systems has the right at any time to change, modify, add to, suspend, or discontinue or retire any aspect or feature of the Oxy Products including, but not limited to, the software, community areas, Content, hours of availability, equipment needed for access or use, the maximum disk space that will be allotted on Oxy System servers on your behalf either cumulatively or for any particular service or the availability of Oxy Products on any particular device or communications service. Oxy Systems has no obligation to provide you with notice of any such changes.
The following license applies only to Software (as defined below) for which a separate license is not required at the time of download and/or use. Oxy Systems and its vendors grant you a personal, non-exclusive, non-transferable limited license to install the software and services distributed by Oxy Systems (including all software and services provided by a third-party vendor for Oxy Systems) in object code form only on a computer or device from which you access the Oxy Products, including all upgrades thereto provided and/or made available by Oxy Systems and/or a third-party vendor (collectively, the "Software") and to use the Software for the sole and exclusive purposes of connecting to and using the Oxy Products in accordance with these Terms and Conditions. You may not sub-license, or charge others to use or access the Software without first obtaining written permission from Oxy Systems. Oxy Systems occasionally may provide automatic upgrades, along with scanning and related services to improve your online experience although these upgrades may not be consistent across all platform and devices. You agree to accept and to take no action to interfere with such automatic upgrades, scanning, and related services.
You may not sell, assign, grant a security interest in or otherwise transfer any right in the Software or incorporate it (or any portion of it) into another product. You may not copy the Software. You may not translate, reverse-engineer or reverse-compile or decompile, disassemble, make derivative works from, or otherwise attempt to discover any source code in the Software. You may not modify the Software or use it in any way not expressly authorized by these Terms and Conditions. You may not obtain the communications protocol for accessing the Oxy Products, or any other Oxy Systems services. Finally, you may not authorize or assist any third party to do any of the things described in this paragraph. You understand that Oxy Systems' introduction of various technologies may not be consistent across all platforms and that the performance and features offered by Oxy Systems may vary depending on your mobile telephone make and model, computer and other equipment.
You may access Oxy Products only through the interfaces and protocols provided or authorized by Oxy Systems. You agree that you will not access Oxy Products through unauthorized means, such as unlicensed software clients, and that you will only use Oxy Products in conjunction with Oxy Systems' authorized products and components.
The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth herein.
The web sites through which the Oxy Products are made available is based in Waltham, MA, USA. We make no claims concerning whether the Oxy Products may be downloaded and/or used outside of the United States. If you access the Oxy Products from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Oxy Products to countries or persons prohibited under the export control laws. By downloading the Oxy Products, you expressly agree that (i) you are not in a country to which the export of the Oxy Products would be prohibited and (ii) you are not a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export or re-export of the Oxy Products.
Third parties may offer from time to time, products, applications or services (collectively, the “Third Party Applications”) to access Oxy Products. Your use of such Third Party Applications will be at your own risk and subject to the terms and conditions of those third-parties. Oxy Systems does not represent and warrant that access and use of Oxy Products through these Third Party Applications will be compatible, uninterrupted, error free, without defects or that you will be able to access the Oxy Products at all times and locations of your choosing. You also agree that Oxy Systems is under no obligation to provide you with any error corrections, updates, upgrade, fixes and/or enhancements to make Oxy Products accessible through these Third Party Applications.
Oxy Products may contain links to other web sites, resources and advertisers, which are not under the control of Oxy Systems. Oxy Systems is not responsible for the availability of these external sites nor does it endorse, or is it responsible for, the contents, changes, updates, aesthetics, appeal, suitability to taste or subjective quality of informational content, advertising, products or other materials made available on or through such external sites. Under no circumstances shall Oxy Systems or any of the affiliated providers be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to you in connection with the use of or reliance on any content, goods or services available on such external sites. You should direct any concerns to such external sites' administrator or webmaster. Oxy Systems, Inc. is providing these links to you only as a convenience, and the inclusion of any link does not imply that Oxy Systems, Inc. endorses or accepts any responsibility for the content on such third party sites.
DISCLAIMER OF WARRANTIES. YOUR USE OF THE OXY PRODUCTS AND THE USER CONTENT IS AT YOUR SOLE RISK. THE OXY PRODUCTS AND/OR USER CONTENT ARE PROVIDED "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. SPECIFICALLY, OXY SYSTEMS, ITS AFFILIATES, THEIR RESPECTIVE OFFICES, EMPLOYEES, AGENTS, VENDORS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “OXY SYSTEMS PARTIES”) HEREBY DISCLAIM IMPLIED WARRANTIES THAT THE OXY PRODUCTS AND/OR USER CONTENT ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. THE OXY SYSTEMS PARTIES DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE OXY PRODUCTS AND/OR USER CONTENT WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE OXY PRODUCTS AND/OR USER CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE OXY PRODUCTS AND/OR USER CONTENT WILL BE CORRECTED. THE OXY SYSTEMS PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE OXY PRODUCTS AND/OR USER CONTENT IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. THE OXY SYSTEMS PARTIES DO NOT GUARANTEE THAT USERS WILL BE ABLE TO ACCESS OR USE THE OXY PRODUCTS AT TIMES OR LOCATIONS OF THEIR CHOOSING, OR THAT OXY SYSTEMS WILL HAVE ADEQUATE CAPACITY FOR THE OXY PRODUCTS AND USER CONTENT AS A WHOLE.
LIMITATION OF LIABILITY. THE OXY SYSTEMS PARTIES' ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH OXY SYSTEMS (INCLUDING WITHOUT LIMITATION YOUR USE OF THE OXY PRODUCTS AND/OR USER CONTENT) IS TO DISCONTINUE YOUR USE OF THE OXY PRODUCTS AND USER CONTENT. THE OXY SYSTEMS PARTIES SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGE ARISING FROM YOUR USE OF THE OXY PRODUCTS AND/OR USER CONTENT OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OR REGISTRATION WITH OXY PRODUCTS AND/OR USER CONTENT. THESE EXCLUSIONS FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF THE OXY SYSTEMS PARTIES HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF THE OXY SYSTEMS PARTIES IN SUCH STATE OR JURISDICTION SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. OXY SYSTEMS DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD PARTY PRODUCT OR SERVICE OFFERED THROUGH OXY PRODUCTS AND 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.
You agree to defend, indemnify and hold harmless the Oxy Systems Parties from and against all claims and expenses, including attorneys' fees, arising out of your use of the Oxy Products. Oxy Systems shall provide notice to you of such claim and shall assist you, at your expense, in defending any such claim. Oxy Systems reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In such case, you agree to cooperate with any reasonable request in assisting Oxy Systems in the defense of such matter.
Oxy Systems has the right to terminate your account, the license granted to you hereunder, and/or your access to Oxy Products at any time and for any reason, including, without limitation, if it, in its sole discretion, considers your use to be unacceptable, or in the event of any breach by you of the Terms and Conditions (either directly or through breach of any other terms and conditions or operating rules applicable to you). Oxy Systems may, but shall be under no obligation to, provide you a warning prior to termination of your use of the Oxy Products.
Oxy Systems may from time to time give you the opportunity to purchase or subscribe to products and premium services (collectively, "Premium Services"). You agree that your purchase or subscription of any Premium Service may be subject to additional terms and conditions that will supplement this agreement.
Any trial promotion (such as free trial time or trial access to a Premium Service) must be used within the specified time of the trial. You must cancel your account before the end of the trial period to avoid being charged a membership fee. Please note, however, that even during any free trial or other promotion, you will still be responsible for any purchases and surcharges incurred using your account and that you remain responsible for any telecommunications charges or internet access charges that you may incur while you use a Premium Service.
You must select a payment method to pay for your fees for any Premium Service and for all purchases made from Oxy Products. You must give Oxy Systems accurate billing and payment information and keep this information up-to-date. You agree to pay Oxy Systems for all charges incurred under your account, including all applicable taxes, fees and surcharges, regardless of whether such charges were incurred by you or someone else using your account. You authorize Oxy Systems to charge your designated payment method for these charges. If Oxy Systems does not receive payment from your designated payment method, you agree to pay all amounts due upon demand by Oxy Systems or its operators along with interest and any applicable collections charges and you further agree that Oxy Systems may suspend your access to the Oxy Products until such time as full payment is received.
Every time you use an Oxy Product, you reaffirm that (i) Oxy Systems (or its designated vendor acting as Oxy Systems' billing agent) is authorized to charge your designated payment method; (ii) Oxy Systems may submit charges incurred under your account for payment; and (iii) you will be responsible for such charges, even if your account is terminated.
You must notify Oxy Systems' customer service about any billing problems or discrepancies within 90 days after they first appear on your Account statement. If you do not bring them to Oxy Systems' attention within 90 days, you agree that you waive your right to dispute such problems or discrepancies.
Fees charged for subscription plans are nonrefundable and due in advance unless provided otherwise in your subscription plan. Under most monthly plans, your payment method will be charged automatically every month until such time that you cancel your subscription or Oxy Systems otherwise terminates your subscription. Also, under most subscription plans, Oxy Systems will automatically renew your subscription and charge your payment method until such time that you cancel your subscription or Oxy Systems otherwise terminates your subscription.
Oxy Systems transacts with its users electronically. WHEN YOU SIGN UP FOR ANY OXY PRODUCT, YOU CONSENT TO RECEIVE ELECTRONICALLY FROM OXY SYSTEMS ANY PRIVACY OR OTHER NOTICES, AGREEMENTS, DISCLOSURES, REPORTS, DOCUMENTS, COMMUNICATIONS, OR OTHER RECORDS (COLLECTIVELY, "NOTICES"). You agree that Oxy Systems generally can send you electronic Notices in either or all of the following ways: (1) to the e-mail address that you provided to Oxy Systems during account creation; (2) to the mobile telephone number that you provided to Oxy Systems during account creation, or (3) Oxy Systems may post Notices on a welcoming screen or top of the screen of the relevant Oxy Product. You agree that certain premium services may also have their own Notice procedures. You can retrieve an electronic copy and a printable version of the Terms and Conditions by clicking on the "Terms Conditions" link on the home page of www.phling.com or http://www.oxysys.com. The delivery of any Notice from Oxy Systems is effective when sent by Oxy Systems, regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. Your only method of withdrawing consent to receive Notices electronically is to terminate any subscriptions, services or other products provided under these Terms and Conditions.
The provisions of these Terms and Conditions addressing disclaimers of representations and warranties, limitation of liability, indemnity obligations, intellectual property, Premium Services and governing law shall survive the termination of these Terms and Conditions, your Premium Services and your registration or account with the Oxy Products.
These Terms and Conditions, and any operating rules for any areas of functionality of the Oxy Products established by Oxy Systems constitute the entire agreement between Oxy Systems and you regarding the subject matter of these Terms and Conditions, and supersede all previous written or oral agreements. In the event of any inconsistency between these Terms and Conditions and any such other terms of use or operating rules of a specific Oxy Product, these Terms and Conditions will supersede such other terms of service or operating rules. The Terms and Conditions shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws rules. You expressly agree that the exclusive jurisdiction for any claim or dispute under the Terms and Conditions and or your use of the Oxy Products resides in the courts located in the Commonwealth of Massachusetts, and you further expressly agree to submit to the personal jurisdiction of such courts for the purpose of litigating any such claim or action. The foregoing provision may not apply to you depending on the laws of your jurisdiction. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
