TERMS AND CONDITIONS
WELCOME TO JESTA DIGITAL GMBH ("COMPANY")! BEFORE YOU USE OUR SERVICE, YOU MUST READ THESE TERMS AND CONDITIONS ("TERMS") CAREFULLY.
BY USING OUR SERVICE, YOU AGREE TO THESE TERMS AND CONDITIONS; IF YOU DO NOT AGREE; DO NOT USE THE SERVICE.
1. Description of Services
COMPANY provides downloadable mobile entertainment content, such as ringtones, games, graphics, news and other information data through its on-line (World Wide Web) and SMS (Short Message Service) services to certain compatible mobile devices (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 certain Products through the Service to compatible mobile phones and other compatible devices.
2. Registration and Access to the Service
(a) Access to the Service. In order to use the Service you must be 16 years of age or have bill payer's permission. The contract is void where prohibited. In order to use the Service, you must also have a mobile communications subscription with a participating carrier or otherwise have access to a mobile communications network for which Company makes the Service available, and pay any service fees associated with any such access. In addition, you must provide all equipment and software necessary to connect to the Service, including, but not limited to, a mobile handset or other mobile access device that is in working order and suitable for use in connection with the Service. You are responsible for ensuring that your equipment and/or software do not disturb or interfere with Company's operations. Any equipment or software causing interference shall be immediately disconnected from the Service and Company shall have the right to immediately terminate this Agreement. If any upgrade in or to the Service requires changes in your equipment or software, you must effect these changes at your own expense. Unless explicitly stated otherwise, any new or additional features that augment or enhance the current Service, including the release of new products and services, shall be subject to the terms and conditions of this Agreement.
(b) Contracts for our Service. COMPANY is offering its services as individual downloads or as a bundle of credits for a defined number of individual downloads on a renewable subscription basis. 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 COMPANY, but as an invitation for you to order. The contract for the ongoing Subscription Service between you and COMPANY shall begin when COMPANY, 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 COMPANY deems sufficient for your identification). Access to the Service can be provided by delivering to you downloadable mobile entertainment content of the content category you subscribed to (e.g. by delivering a ringtone or an info news - SMS) or by enabling you to download the product (e.g. by delivering a WAP-Push link or a PIN for download of the downloadable mobile entertainment content on COMPANY website) or by providing access to the mobile entertainment content (e.g. by enabling MSISDN for this product). The subscription period is one week or one month depending on the type of the subscription contract. The Subscription contract and the subscription period will be renewed each week or month as applicable and a new subscription fee shall become due for the new subscription period. The subscription contract shall remain in effect until terminated and/or canceled by you or COMPANY according to Section 8 of these Terms. Contracts for the products and services of COMPANY and independent third parties which are made available through the Service shall begin when COMPANY or the third party has accepted your order for the same or has provided you with the product or service pursuant to your order. The contract will remain in effect until terminated by you or Company according to Section 8 of these Terms.
The monthly subscription contracts include a certain defined number of credits which entitle you to download, receive and/or access that defined number of individual downloads of mobile entertainment content for a monthly flat fee. After entering into your subscription contract, every month COMPANY will transfer download credits to your account. The type and number of credits you are entitled to is dependent on the type of subscription you choose. The provision of credits and the making available of the possibility to download, receive and/or access mobile entertainment content is offered for a flat fee. The monthly flat fee shall become due every week/month your subscription contract is valid irrespective of whether or not you actually download any content during any particular subscription period; the consideration for the monthly flat fee shall solely be the monthly provision of the right to download, receive and/or access downloadable mobile entertainment content, in other words the making available of the respective download-, WAP- and SMS service credits. The number of credits for downloads shall be reduced by actual downloaded mobile entertainment content, in other words the download of mobile entertainment content is evaluated as redemption of one or more credits and thereby reduces the total number of downloadable mobile entertainment content you are entitled to download, receive and/or access with your subscription contract during that particular subscription period. Depending on the type of your subscription contract, if you do not use/redeem all your credits within the subscription period (1 week or 1 month), the unused credits will either (a) be rolled over into the next subscription period and remain in your account until used/redeemed or until expiration or termination of your subscription contract or (b) will expire at the end of the respective subscription period. If you download mobile entertainment content in excess of the amount allowed by your selected subscription contract, then you agree to pay the applicable COMPANY retail rate for such additional downloads.
Credits can only be used to download mobile entertainment content offered by COMPANY.
If you purchased your COMPANY product in a store or directly from COMPANY or a third party, the contract shall be deemed concluded at the time of the purchase of the product.
(c) 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 notify COMPANY immediately in case you become aware of or suspect unauthorized 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. COMPANY cannot and will not be liable for any loss or damage arising from your failure to comply with this Section. You acknowledge and agree that you will not use the Service for any commercial purposes.
(d) Registration and Registration Data. Upon your request, COMPANY may register you as a user and provide you with access to the Service by allocating you a personal username and password. COMPANY 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 COMPANY has reasonable grounds to suspect that the Registration Data is untrue, inaccurate or incomplete, COMPANY 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 COMPANY 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.
(e) Access without Registration. COMPANY 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 COMPANY deems appropriate. Identification is typically based on data identifying your Subscription, such as your mobile phone number. You agree that such information may be collected and disclosed to COMPANY and used in accordance with Section 3.
(f) Assignment. You may not assign or transfer in any other way the contract or any of your contractual rights. COMPANY 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 favorable 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.
(g) License to Download(s). You acknowledge and agree that the Download(s) made available as part of the Service are owned by Company, its affiliate and/or licensors, as applicable, and are protected by intellectual property laws. Company hereby grants, and you hereby accept, a limited, non-exclusive, non-transferable, revocable license to download and use the Download(s) and the Service on a designated compatible mobile device solely for your own personal non-commercial use. You further acknowledge and agree that you may not reproduce, modify, perform, transfer, distribute, sell, create derivative works of or otherwise use or make available the Download(s) except as expressly provided in this Agreement.
(h) Interruptions or Discontinuation of Service. COMPANY may suspend the Service for repair, maintenance, and/or upgrade work. In such event, COMPANY shall aim at keeping the said interruption short and at causing as little inconvenience to you as reasonably possible. COMPANY 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 COMPANY it will notify you of this fact and reimburse any pre-paid fees.
(i) 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 such third parties. Where reasonably possible, COMPANY shall indicate the products and services as third party content. Even though they may be co-branded with COMPANY and therefore include COMPANY's trademarks, the contracts for products and services provided by third parties are concluded directly between you and the third party. COMPANY 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.
You acknowledge that COMPANY collects and processes "personal information"(i.e. information that could be used to contact you, such as full name, postal address, phone number or e-mail address), "financial information" (i.e. credit card numbers, bank account information or passwords) or "demographic and usage information" (i.e. information that you submit, or that we collect, that is neither personal information nor financial information but necessary for the proper functioning and billing of our service, such as date regarding the start and end and the extent of your usage of the service), subject to the rest of this paragraph in order to operate this site. We may pass on your personal information to your mobile phone service provider to secure collection of fees. Further, we may pass on your information to governmental agencies, including but not limited to courts and district attorneys' offices, for legal proceedings and the prevention of crimes. Personal information collected by COMPANY may be stored and processed in Germany or any other country in which COMPANY or its agents maintain facilities. By using the Service, you consent to any such transfer of information outside of your country. Your personal information, financial and demographic information will be deleted no later than six months after termination of your subscription. COMPANY may store your information beyond this date if that is required by law or contract.
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 COMPANY.
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, YOU AGREE THAT COMPANY'S ENTIRE LIABILITY TO YOU OR ANY THIRD PERSON, AND YOUR OR ANY THIRD PERSON'S EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO THE SERVICE(S) PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH SERVICE(S) DURING THE TERM OF THIS AGREEMENT. EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, COMPANY, ITS LICENSORS AND CONTRACTORS (INCLUDING ANY THIRD PARTIES PROVIDING ALL OR PART OF THE SERVICES) SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A COUNTRY DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN, COMPANY'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH COUNTRY.
You agree to indemnify and hold COMPANY, its parent company, subsidiaries, affiliates, officers, agents, directors, contractors, licensors and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney's fees, made by any 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.
6. Intellectual Property Rights
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 ("Company Intellectual Property Rights") are owned by Company or its licensors, and you agree to make no claim of interest in or ownership of any such Company Intellectual Property Rights. You acknowledge that no title to the Company 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.
(a) Fees. The monthly fees for the Subscription Service are available at COMPANY's web site. The monthly fee shall be charged for every subscription period the contract is in effect. You shall pay COMPANY for the Services and the use thereof in accordance with the price lists in force at the time of your order. Unless otherwise indicated, the charges shall be billed according to the billing method agreed upon by you and your mobile operator. Where applicable, the charges can also be paid by using credits, with your credit card, by bank transfer or through your user account. The different payment methods are specified during the order process for the product you chose. COMPANY may also invoice you for the charges of third parties whose products or services are available through the Service if this has been agreed upon with said third party. Such charges shall be invoiced in accordance with the fees of such third parties.
(b) Fee Changes. All fees, including fees for existing subscription contracts, are subject to change upon notice from COMPANY. 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 cancel your subscription and/or your account effective immediately upon termination.
(c) Late Payments. Any past due unpaid amount shall bear an annual interest of four percent (4%) or the highest interest allowed by applicable law, which ever is lower.
8. Termination and Cancellation of Services; Cooling- Off Period
To unsubscribe by text message, text "STOP" to 19 4000, call 1800 024185 or go to "My Clubs" under "My Jamster" on www.jamster.com.au. or send an email to email@example.com. The termination shall become effective immediately upon termination.
You agree that COMPANY, 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 seven days from notice of such breach. COMPANY may cancel all or any of the Services (or individual services provided via the Services) if COMPANY believes that you have violated or acted inconsistently with these TERMS. You agree that upon termination of your access to the Service under any provision of these TERMS, COMPANY 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 COMPANY 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, COMPANY will not refund any of your fees paid to date, except as provided in provision 2 of these TERMS.
CUSTOMER ALSO HAS THE STATUTORY RIGHT TO WITHDRAW FROM THE CONTRACT WITHIN 10 DAYS AFTER THE EFFECTIVE DATE OF THE AGREEMENT ("COOLING-OFF PERIOD"), PROVIDED, HOWEVER, THAT YOUR RIGHT TO WITHDRAWAL IMMEDIATELY TERMINATES IF YOUR FIRST USE OF THE SERVICE OCCURS BEFORE THE END OF THE COOLING-OFF PERIOD. TO WITHDRAW FROM THE AGREEMENT WITHIN THE WITHDRAWAL PERIOD, SEND A TERMINATION NOTIFICATION VIA E-MAIL TO SERVICE@JAMSTER.COM.AU OR VIA POSTAL MAIL TO Jesta Digital GmbH, ADDRESS: Karl-Liebknecht-Str. 32, 10178 Berlin, Germany, WHICH COMMUNICATION MUST CLEARLY STATE YOUR NAME, ADDRESS AND PHONE NUMBER, AND BE POSTMARKED WITHIN THE WITHDRAWAL PERIOD.
9. Miscellaneous Provisions
(a) Notices and Announcements. Except as expressly provided otherwise herein, all notices to Company shall be in writing and delivered to the following address:
Jesta Digital GmbH
COMPANY shall serve notices related to this contract by posting them on the COMPANY web site or by sending them to the postal address or e-mail address you have given to COMPANY 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 COMPANY 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.
(b) Changes of TERMS. YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY COMPANY AT ANY TIME, WHICH CHANGES SHALL BE EFFECTIVE UPON POSTING SUCH CHANGES TO THE WEBSITE. ANY USE OF THE SERVICE AFTER SUCH POSTING SHALL CONSTITUTE ACCEPTANCE OF SUCH CHANGES BY YOU.
(c) Other terms, entire agreement. These TERMS are in addition to any COMPANY 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 COMPANY 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.
(d) 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.
(e) Waiver. COMPANY'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.
(f) Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
(g) Survival. In the event this Agreement terminates as provided herein, Sections 2(c)(h), 4, 5, 6 and 9 of these TERMS shall survive such expiration or termination.
(h) Governing Law and Jurisdiction. This Agreement and your use of the Website and Service shall be governed and construed in accordance with the laws of New South Wales. You further agree that for any matter arising out of or pertaining to this Agreement venue shall be proper in courts and legal tribunals located in Sydney, NSW, Australia.
Jamster Australia is a service of Jesta Digital GmbH
Address: Karl-Liebknecht-Str. 32, 10178 Berlin, Germany