Terms & Conditions
55SMS & Victory Link USA Terms and Conditions
Terms & Conditions
WELCOME TO 55SMS.com (“Site”). This Site is operated as part of Victory Link USA LLC (“55SMS” or “Company”) and materials on the Site are owned by 55SMS or by third parties and posted on the Site by virtue of a license, grant or some other form of agreement between 55SMS and the third party. These Terms of Service (“Terms”) constitute a legal agreement (“Agreement”) between you and 55SMS; please read them carefully. You must be at least 13 years of age to use the 55SMS Service. If you are between the age of 13 and 18 you represent that you have received permission from your parent/guardian to complete the registration process on our Site and to download content to your mobile device.
By completing the registration process on our Site or any successor website thereto (which includes entering your mobile phone number and submitting the PIN number sent to your phone) OR by downloading mobile content to a mobile device (each a “Download”), you (1) represent that you are at least 13 years of age and (i) are the account holder or (ii) have the permission of the account holder of a participating mobile communications carrier to sign-up for and use the 55SMS Service on behalf of the account holder; and (2) agree on behalf of the account holder and yourself to be bound by these terms and conditions of this Agreement. If you access the Service through another website, please review these terms and conditions on that website or other posted guidelines as they may apply to your use. Any questions or comments regarding, or problems with, this Site should be sent to the Site Administrator at siteadmin@55SMS.com.
In this Agreement, “you” and “your” refer to each customer (including the subscriber of a participating mobile communications carrier on whose behalf you are entering into this Agreement) and his or her agents, and “we”, “us” and “our” refer collectively to 55SMS and 55SMS.com. This Agreement explains our obligations to you, and your obligations to us in relation to the 55SMS Service.
Company reserves the right to modify these Terms , in whole or in part, at any time. Changes to these Terms will be effective when posted. Your use of the Site, your subscription to a new Subscription Package Plan and/or if you maintain your existing Subscription Package Plan shall evidence your acceptance of the changes to these Terms and shall constitute your agreement to be bound thereby.
Â» 1. Description of 55SMS Service
55SMS provides downloadable mobile entertainment content, such as ringtones, games, graphics, alerts, news and other information data via the Internet, SMS, MMS, WAP, BREW, IVR and other means of mobile content delivery to certain compatible mobile devices (the “Service” or the “55SMS Service”). You acknowledge and agree that the Service is for your personal use on the mobile device designated during the Download or Registration. You agree that you may not transmit, broadcast, upload to any computer or mobile device, create derivative works of, or make commercial use of the Service, including, but not limited to, any Download(s). You may not, or attempt to (or otherwise authorize, encourage or support others’ attempts to) circumvent, re-engineer, decrypt, break or otherwise alter or interfere with the Service, including, but not limited to, any Download(s). Please note that the 55SMS Service is not compatible with all mobile devices. Please check our Web Site for details concerning content availability for certain devices.
Â» 2. Registration and Access to Service
(a) Access to the Service. In order to use the Service, you must have a mobile communications subscription with a participating carrier or otherwise have access to a mobile communications network for which 55SMS makes the Service available (e.g. a prepaid plan) as well as any carrier services necessary to download content (access to your carrier’s data plan), 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 55SMS’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.
Text Message Communications. You expressly agree that, as part of the 55SMS Service, you will, from time to time, receive communications from 55SMS via text message (SMS), including our promotional newsletters or other information about the Service. You may stop receiving promotional text messages by emailing your request to opt-out, along with your cell phone number, to unsubscribe-sms@55SMS.com (the email must be sent from your registered email account associated with your mobile number), or following the opt-out instructions in the text message. You may not opt out of service-related text messages. Please note that you may receive your password confirmation text message multiple times until you complete the sign-up process.
Email Communications. If you provide us with an email address, you agree to receive promotional and account related email communications from 55SMS. You may unsubscribe from promotional email communications by unsubscribing here or by sending an email to unsubscribe-email@55SMS.com.
(b) Subscription Package Plans and Individual Downloads. When you sign up for a Subscription Package Plan, purchase Individual Downloads or use the Service in any way, standard messaging rates and the terms and conditions of your carrier service agreement will apply. Please note that the Service and/or Individual Downloads may not be available for use on all mobile devices. Check with your carrier service provider for details. If you Download an item of content that is not supported for use on your mobile handset, 55SMS will offer such content in a comparable format.
(i) Subscription Package Plans. Company is offering through its Service a bundle of credits for a defined number of individual Downloads on a renewable subscription basis depending on the 55SMS plan you choose (the “Subscription Package Plan(s)”). To view the Subscription Package Plans Company offers, please review the 55SMS plans & pricing page. The details of the plans (the number of credits or Downloads available as part of a particular Subscription Package Plan, the renewal period of a particular Subscription Package Plan, etc.) are incorporated into this Agreement by this reference and form part of the terms of this Agreement. All terms and conditions of this Agreement shall govern the Subscription Package Plans. After you have signed up for a Subscription Package Plan(s), you may view the details of your plan under “My Package” at My 55SMS after you input your cell phone number and your password.
The Subscription Package Plan 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 such as your mobile telephone number). 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 message) 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 for each plan is set forth in the 55SMS Plans and Pricing Page. The Subscription Package Plan and subscription period will be renewed each month and a new subscription fee shall become due for the concerned subscription period. The Subscription Package Plan shall remain in effect until terminated and/or cancelled by you or Company according to Section 8 of this Agreement.
The 55SMS Subscription Package Plans include a certain defined number of credits that entitle you to download, receive and/or access that defined number of individual downloads of mobile entertainment content for a periodic flat fee. After entering into your Subscription Package Plan, 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 Package Plan 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 periodic flat fee shall become due for every Subscription period irrespective of whether or not you actually download any content during any particular subscription period; the consideration for the periodic flat fee shall solely be the periodic provision of the right to download, receive and/or access downloadable mobile entertainment content, in other words the making available of the respective download and SMS 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 during that particular subscription period. Depending on the type of your subscription, if you do not use/redeem all your credits within the subscription period (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 Package Plan 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 plan, then you will be prompted to purchase an additional Subscription Package Plan and be responsible for the additional applicable periodic plan fee or purchase Individuals Downloads, as applicable.
(ii) Individual Downloads. Company may offer through its service individual Downloads for one-time non-recurring charges (“Individual Downloads”). The price by content type for Individual Downloads, if any, will be listed on the 55SMS plans & pricing page. The details of the Individual Downloads are incorporated into this Agreement by this reference and form a part of this Agreement. All terms and conditions of this Agreement shall govern any Individual Downloads.
(c) Registration Data. If you opt to register for the Service, you do so on our Site. If you register for the Service, you agree to: (i) provide true, accurate and complete information about yourself as prompted by the registration form (“Registration Data”) and (ii) 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). You acknowledge and agree that we may send you important information and notices regarding your account and our Services and you may not opt-out of your receipt of service related messages. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate Registration Data, including, but not limited to, your failure to receive critical information about the Service or your account. You further agree that we (ourselves or through third party service providers) are authorized to verify such Registration Data.
(d) Username and Password. If you opt to register for the Service on our Site, you may be required to establish an account and obtain a username and password. You authorize us to process any and all account transactions initiated through the use of your username and password. You are solely responsible for maintaining the confidentiality of your username and password and must immediately notify us of any unauthorized use of your username and password. You acknowledge and agree that you are responsible for any unauthorized activities, charges and/or liabilities made through the use of your username and password. In no event will Company be liable for the unauthorized use or misuse of your username and/or 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.
(e) Access without Registration. Company may provide you with access to some Services without you registering as a user, such as sign-up via SMS or via Individual Download purchases. In each such case your identification is based on means of identification that we deem appropriate, such as your mobile telephone number.
(f) 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 right and license to download and use the object code version of 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, duplicate, modify, perform, transfer, post, distribute, sell, create derivative works of or otherwise use or make available the Download(s) except as expressly provided in this Agreement. No license is granted to you by this Agreement in the human readable code, known as the source code, of the mobile content downloaded on your mobile device, and no rights are granted to you by this Agreement in any patents, copyrights, trade secrets, trademarks or any other rights in respect of the mobile content downloaded on your mobile device.
This Agreement will terminate immediately, without notice, if you fail to comply with any term or condition of this Agreement. Upon a termination of this Agreement, you agree to immediately remove all downloaded mobile entertainment content from your wireless communications device.
(i) Interruptions or Discontinuation of Service. Company reserves the right at any time and from time to time to modify, suspend, discontinue or permanently cancel the Service, or portions thereof, with or without notice to you. If the Service, or any part thereof, for which you subscribe is permanently discontinued or canceled by Company we will cancel your Subscription Package Plan and reimburse any pre-paid fees related to such Service, except for termination made in accordance with Section 8 of this Agreement.
(i) Third Party Products and Services. We may make available or provide access to products and services of independent third parties either directly or via links to websites operated by such third parties. Such products or services shall be purchased and/or obtained directly from such third party. You acknowledge and agree that 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 THIRD PARTIES.
Â» 3. Privacy
Â» 4. Indemnification
You agree to release, indemnify, defend and hold harmless 55SMS, its parent companies, subsidiaries, and affiliates, together with their respective officers, directors, shareholders, contractors, agents, employees, licensors and assigns from and against all liabilities, claims, damages, costs and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with (a) your use of the Site and its Service; (b) your failure to use the Site; (c) your breach or alleged breach of this Agreement; (d) your breach or alleged breach of the copyright, trademark, proprietary or other rights of third parties , and (e) the breach by you of your representations and warranties set forth herein.
Â» 5. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO ANY DOWNLOAD(S), IS SOLELY AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR MOBILE DEVICE OR LOSS OF DATA THAT MAY RESULT FROM YOUR USE OR DOWNLOAD. YOU AGREE THAT THE SERVICE IS PROVIDED ON AN “AS IS,” AND “AS AVAILABLE” BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT COMPANY SHALL HAVE NO LIABILITY TO YOU, OR TO ANY THIRD PARTY, FOR ANY MODIFICATION, SUSPENSION, DISCONTINUANCE OR TERMINATION OF THE SERVICE, OR ANY PART THEREOF. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
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 PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH SERVICE 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 SERVICE) 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 STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW IN SUCH STATES.
Â» 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.
Â» 7. Fees
The amount of the periodic fees for the Subscription Package Plan to the Service are identified and available as described above in Section 2(b). You agree to pay your mobile device operator the periodic fee that corresponds to the Subscription Package Plan you select in accordance with the fees in effect at the time of your order. Unless otherwise indicated, the charges shall be invoiced on the bill from your participating mobile communications carrier or will be deducted from your pre-paid balance. All fees 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 will have fourteen (14) days from the date of such notice to cancel your Subscription Package Plan and/or your account effective at the end of the calendar month. All fees are due immediately and are non-refundable, except as otherwise expressly noted.
Â» 8. Termination and Cancellation of Services
To cancel your Subscription Package Plan, send a text message with the text “STOP” to 95555, or such other number as may be designated on our Site, or go to “My plans” under My 55SMS after you input your cell phone number and password on the Website, send an e-mail to siteadmin@55SMS.com or contact 1-877-77-55SMS (1-877-775-5767). The termination shall become effective immediately but you will still be liable for any new fees that were not cancelled within the time period specified in Section 7 of this Agreement.
You agree that Company, at its sole discretion, may at any time terminate your use of the Service and Subscription Package Plan(s) or individual services provided via the Service, if Company believes that you have violated or acted inconsistently with this Agreement. You further agree that Company has the right to immediately terminate your use of, or access to, this Site at any time if Company decides at its sole discretion that you have breached any term or condition of this Agreement or any relevant law, rule or regulation or you have engaged in conduct that 55SMS considers to be inappropriate or unacceptable.
You agree that upon termination of your access to the Service under any provision of this Agreement, 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 Package Plan for any reason, Company will not refund any of your fees paid to date, except as expressly provided in this Agreement.
Â» 9. Company’s Unsolicited Submissions Policy
Company does not knowingly accept unsolicited submissions including, without limitation, submissions of scripts, story lines, articles, fan fiction, characters, drawings, information, suggestions, ideas or concepts. Companyâ€™s policy is to simply delete any such submission without reading it or forwarding it to other Company staff. Therefore, any similarity between an unsolicited submission and any elements in any Company creative work including, without limitation, a film, series, story, title or concept would be purely coincidental.
If unsolicited submissions are sent to Company via this Site, however, these submissions become the property of Company and may be used, copied, sublicensed, adapted, transmitted, distributed, publicly performed, published, displayed or deleted as Company sees fit. You agree that you are not entitled to any compensation, credit or notice whatsoever and that by sending an unsolicited submission you waive the right to make any claim against Company, its parents or affiliates relating to unsolicited submissions, including, without limitation, unfair competition, breach of implied contract or breach of confidentiality.
Â» 10. Miscellaneous Provisions
(a) Notices And Announcements. Except as expressly provided otherwise herein, all notices to Company shall be in writing and delivered via overnight courier or certified mail, return receipt requested to:
c/o Victory Link USA LLC
2077 Center Ave, Apt 22D
Fort Lee, NJ 07024
Attention: Website Administrator
Our customer service department can be reached at 1-877-77-55SMS (1-877-775-5767) or siteadmin@55SMS.com.
Company shall serve notices related to this contract by posting them on the Website 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 telephone number associated with your account. Notices sent by mail shall be deemed received seven days after they were sent. Notices posted on the Website 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) Copyright Infringement:
If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Service; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. 55SMS’s Copyright Agent for notice of claims of copyright infringement can be reached as follows:
c/o Victory Link USA LLC
2077 Center Ave, Apt 22D
Fort Lee, NJ 07024
Attention: Copyright Agent
Phone: 1-877-77-55SMS (1-877-775-5767)
(b) Severability. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
(c) Entire Agreement. You agree that this Agreement constitutes the entire, complete and exclusive agreement between you and us regarding the Service and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement.
(d) Assignment And Resale. Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. You agree not to resell the Service or any portion thereof.
(e) Governing Law. This Agreement is governed in all respects by and construed in accordance with the laws of the State of New Jersey without given effect to any principles of conflicts of law. You agree to submit to the exclusive jurisdiction of the courts of the State of New Jersey for any resolution of any dispute, action or proceeding arising in connection with this Agreement or your use or non-use of the Site, and you further irrevocably waive any right you may have to trial by jury in any such dispute, action, or proceeding. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
(f) Waiver. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of Company. The remedies of Company under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach.
(g) 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.
(h) Survival. In the event this Agreement terminates as provided herein, Sections 2(b), 2(d), 2(f), 4, 5, 6 and 9and 10 of this Agreement shall survive such expiration or termination.
Effective Date: July, 2009