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Terms and Conditions | Privacy Policy

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Effective October 19, 2011

Welcome to the Flycell Inc. ("Flycell") Canadian website (the "Site") where you will find descriptions of products and services offered by Flycell ("Services").

The following are terms of a legal agreement between you and Flycell ("we", "us", or "our"). By accessing, browsing, using and/or submitting to the Site, you acknowledge that you have read, understood, and agree, to be bound by these terms and any amendments thereto (the "Terms of Use"), the terms of our Privacy Policy, and the terms and conditions of the products and services sold on the Site, which are incorporated by reference into these Terms of Use, and to comply with all applicable laws and regulations.

Flycell may at any time amend, supplement or modify the terms of these Terms of Use, and will post a copy of such amended Terms of Use. You must be over the age of legal majority in the jurisdiction where you reside to obtain and use the Flycell Services. By providing information to Flycell through the account registration page for new customers or any other part of the Flycell Site, you represent to Flycell that you are over the age of legal majority. If you are under the legal majority, you represent that you received parental permission both to complete the registration process and to download content to your cell phone and that your parents/guardians remain responsible for your purchase and use of the Services.

If you do not agree to be bound by (or cannot comply with) any of the terms and conditions of these Terms of Use, do not continue the registration process or attempt to access any part of the Services. Flycell reserves the right to deny registration of any individual to the Flycell Services and to deny access to any Site.

DESCRIPTION OF SERVICES

The Services are available at websites on the world wide web owned and/or operated by Flycell or its affiliates (the "Flycell Sites") and includes everything on the Flycell Sites that may exist from time to time, including, without limitation, downloadable mobile entertainment, such as ringtones, wallpaper, games and graphics (collectively, the "Downloads"). The Services also allow you to participate in Flycell's online social networking website. PLEASE NOTE THAT THE SOCIAL NETWORKING WEBSITE IS FREE OF CHARGE BUT ALL OTHER SERVICES, INCLUDING THE DOWNLOADS, ARE PAID SERVICES. Once properly registered and after making proper payment, you will be permitted to download to compatible wireless telephones and other compatible devices certain Downloads through the Services. Through the Services, you will also be able to create buddy lists, sample streaming versions of certain Downloads and send messages, content and information to other members, subscribers and third parties through one or more means (the "Messaging Systems"). We make no representation as to compatibility of your wireless phone with our Flycell Sites.

YOUR REGISTRATION OBLIGATIONS

In order to use the Services, you must register and provide certain information (e.g., name, country or territory of residence and billing information) to Flycell ("Registration Data"). You agree that you will use the Services only in the country where you currently reside. You agree to provide current, complete and accurate Registration Data at the time you register and that you will update your Registration Data as necessary to keep it current, complete and accurate in the "My Account" area of the Flycell Website. Flycell will use your Registration Data in accordance with its Privacy Policy, which you should review at www.flycell.com. Please review this Privacy Policy before you complete the registration process or attempt to use or access the Services. All terms and conditions provided in the Privacy Policy and hereby recited and incorporated into these Terms of Use. All capitalized terms not defined herein shall have the meanings ascribed to them in the Privacy Policy.

You agree that you will not allow others to use your member name, password and/or account. You agree to indemnify and hold harmless Flycell, its partners, parents, subsidiaries, agents, affiliates and/or licensors as applicable, for any improper, unauthorized or illegal uses of your member name, password and/or your account. This includes illegal, unauthorized or improper use by anyone to whom you have given permission to use your member name, password and/or account.

PROBLEMS RECEIVING RINGTONES

If you order a Download or other product and you are unable to download the product, please let us know immediately by filling out our Support Form located at www.flycell.com. If we don't hear from you within seven (7) days from the first date that the download was initially attempted, you will have been deemed by us to have successfully received the Download.

REFUND POLICY

A refund will be issued if there is a technical issue (such as but not including corrupt files, system errors, or other unforeseen difficulties) that results in your inability to receive your Download. If, however, you choose a phone or carrier we do not support, if you do not have text messaging and/or Internet enabled on your phone, or if you are simply dissatisfied with the actual product that has been correctly delivered, then you shall not be entitled to a refund.

USE OF SERVICES

You may use the Services only in accordance with these Terms of Use and any amendments as well as any additional terms that may be presented in connection with any particular feature or function of the Services from time to time. You may only use the Services for your personal and non-commercial use. You understand and acknowledge that the Downloads made available as part of the Services are owned by Flycell, its parents, subsidiaries, agents, affiliates and/or licensors as applicable, and are protected by Canadian and other international intellectual property laws. Flycell grants you a limited, non-exclusive, non-transferable, revocable right to license and transfer the Downloads to your compatible device solely for your own non-commercial use. You understand and agree that you may not download, reproduce, modify, display, perform, transfer, distribute or otherwise use the Downloads except as expressly provided in these Terms of Use. You agree that you will take all reasonable steps to prevent any unauthorized reproduction and/or other use of downloads. When you buy a product or service from Flycell, we will charge you the price that is advertised at that time. We may periodically change the advertised price at our sole discretion.

You may Pay-by-Phone using any of the following carriers: Bell, Rogers, Virgin Mobile and SaskTel and such other carriers as may be available from time to time. By making a purchase from Flycell that is billed to a cell phone account, you confirm you are the owner of the phone or have permission of the owner to incur these charges.

If you are not the owner of the wireless phone you intend to use for your participation in our Services, you must always obtain the permission from the owner before participating. If you are under the age of majority in your jurisdiction you must obtain parental permission and consent. Flycell's rights to make certain Downloads available to you may cease. In such event, Flycell will not deliver to you the license necessary to play back any such Downloads after the end of the period in which such rights expire. If Flycell ceases making any such rights available, Flycell will not refund any portion of your fees, but you may contact customer support to the address below to receive appropriate replacement rights.

CHARGES / BILLING

By completing the registration process, you authorize Flycell to charge the appropriate fees (including taxes or premium surcharges) to your mobile telephone invoice, as selected by you, and if you select the monthly fee subscription plan, you authorize the continued billing each month until you cancel such subscription. Please note that additional message & data rates may apply. If your billing information changes (e.g., new cell phone number or change of carrier), you must update that information in "My Account." If you cancel your account or subscription for any reason, Flycell will not refund any of your fees paid to date. Monthly subscribers are billed on a 30-day cycle, which begins on the first day you sign up for the subscription and ends 30 days thereafter (each, a "Subscription Month"). We will issue a charge to your cell phone invoice on the first day of each Subscription Month.

The charges will be billed to your wireless phone bill or deducted from your prepaid balance. You confirm you are the owner of the phone or have permission of the owner to incur these charges. If you are under the age of the majority in the jurisdiction where you live, you confirm that you have parental permission and consent to incur these charges. You understand that you will be charged these fees regardless of whether you complete your Downloads. Please do not proceed to reply to the opt in message unless you have read, understand, and agree to these terms and conditions.

Single channel Horoscope text alerts are available by sending the applicable keyword (ZOD ARI, ZOD TAU, ZOD GEM, ZOD CAN, ZOD LEO, ZOD VIR, ZOD LIB, ZOD SCO, ZOD SAG, ZOD CAP, ZOD AQU, or ZOD PIS) to number 69999. Upon subscription, you will receive one horoscope text alert message per day at a price of $.50 per Horoscope text alert message received. Charges will be billed to your mobile phone bill. Please note that additional message & data rates may apply. You will continue to be billed until you cancel the service. Bell users: An additional $1 network fee may apply. Service not available to TELUS users.

For more information on single channel Horoscope text alerts, customers can text HELP or AIDE or INFO to 69999 or can contact Customer Care at 1-800-580-0017. Customers can stop or cancel the Horoscope text alert service at any time by sending the word STOP in a text message to number 69999 or by contacting Customer Care at 1-800-580-0017. Single channel text alert subscriptions will be canceled immediately upon request.

All fees are subject to change upon notice from Flycell. Flycell will send you a text describing the change in the fees to which you will have to reply confirming you accept the change. If you do not reply, the applicable Service will be terminated.

Flycell may include in the Services the ability for you to make electronic purchase(s). You acknowledge and agree that any submissions you make for electronic purchase(s) constitute your intent and agreement to be bound by the terms of and to pay for such purchase(s). You may withdraw your consent to enter into such electronic agreements by giving written notice to Flycell but if you do so, you will not thereafter be able to make any electronic purchase(s). To the extent that such electronic purchases are offered to you by a third party, you acknowledge that Flycell shall not be responsible or liable to you for the products or services that you may purchase, whether through the Site any other Flycell Site. Flycell does not make any representation or warranty for any third party product or service.

OBJECTIONABLE OR EXPLICIT CONTENT

Flycell is not responsible to you for any content or materials constituting all or part of any Download or any other aspect of the Services available from the Site or Flycell Sites that you might find objectionable or contain explicit sexual content.

You understand that all information, data, text, files, graphics, links, music, photographs, software, sound, video, messages, communication or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. Accordingly, you, not Flycell, are entirely responsible and liable for all activities conducted through your Account. Flycell does not control the Content posted or transmitted in any way via the Services and, as such, does not guarantee the accuracy, integrity, or quality of such Content. You understand that by using this Services you may be exposed to Content that is offensive, indecent, or objectionable. Under no circumstances will Flycell, its partners, parents, subsidiaries, agents, affiliates and/or licensors be liable in any way for any Content, including but not limited to, any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the user of any Content posted, emailed, sent via SMS or otherwise transmitted via the Services and Flycell expressly disclaims all responsibility for such Content. Listed below are some, though not all, violations that may result in Flycell terminating your Account. You agree not to do any of the following while using the Services:

  • Harass, "stalk", threaten, embarrass or cause distress or discomfort to another Flycell participant, user, or other individual or entity;
  • Upload, post, email, SMS, or otherwise transmit via the Services any Content that Flycell considers to be unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable;
  • Upload, post, email, SMS, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit functionality of any computer software or hardware or telecommunications equipment;
  • Upload, post, email, SMS, or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, privacy or other intellectual proprietary rights ("Rights") of any party;
  • Cause any screen in the Services to "scroll" faster than other users are able to type to it or any action to a similar disruptive effect;
  • Impersonate in the Services any person, including but not limited to, a Flycell official, forum leader, guide or host;
  • Disrupt the normal flow of dialogue within the Services or otherwise act in a manner that negatively affects other participants;
  • Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted via the Services;
  • Collect or store personal data and information about other users; intentionally or unintentionally violate any applicable local, provincial, national or international law, including but not limited to any regulations having the force of law while using or accessing the Services or in connection with your use of the Services in any manner;
  • Post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation in the Services.
  • Provide or send any Content which may be harmful or detrimental to Flycell, its partners and carriers, or which violates any restriction or policy established by Flycell, including these Terms of Use.

Flycell is not responsible to you for any Content or materials constituting all or part of any Download or any other aspect of the Services that you might find objectionable or contain explicit sexual content.

CONTENT SUBMITTED BY USERS

Flycell does not claim any ownership of Content that you make publicly available on the Services, or otherwise upload, post or transmit for inclusion in publicly accessible portions of the Services. When you post such Content, you grant Flycell a worldwide, royalty-free and non-exclusive, perpetual and irrevocable license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display the Content for the purpose for which such Content was submitted or made available. This license terminates when Flycell removes such Content from the Services. You understand and agree, however, that Flycell may retain copies, but not display, perform, or distribute, server copies of Content that has been deleted or removed.

Flycell may offer contests or promotions encouraging users to upload Content for judging or prizes. Content uploaded for a contest or promotion is subject to the terms of the specific contest or promotion.

Please carefully consider the information you post on the Site and that you provide to other Users. Your Site profile must not include the following items: telephone numbers, street addresses, last names, and any photographs containing nudity, or obscene, lewd, excessively violent, harassing, sexually explicit or otherwise objectionable subject matter. Flycell accepts no responsibility or liability for any inaccurate, inappropriate, offensive or sexually explicit material that may be provided by other Flycell members. If you become aware of misuse of the Flycell Services by any person, please contact customer supports at Flycell.com immediately.

Flycell reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to restrict, suspend, or terminate your access to all or any part of the Services at any time, for any or no reason, with or without prior notice, and without liability. Flycell expressly reserves the right to remove your profile and/or restrict, suspend, or terminate your access to any part of Services if Flycell determines, in its sole discretion, that you pose a threat to Flycell and/or its users.

PROHIBITED ACTIVITY/CONTENT

The following is a partial list of the kind of Content that is illegal or prohibited to post on or through the Services. Flycell reserves the right to investigate and take appropriate legal and other action against anyone who, in Flycell's sole discretion, violates these terms, including without limitation, removing the offending communication from the Services and terminating the membership of such violators. Prohibited Content includes, but is not limited to Content that, in the sole discretion of Flycell:

  1. 1. is offensive and/or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
  2. 2. harasses or advocates harassment of another person;
  3. 3. exploits people in a sexual or violent manner;
  4. 4. contains nudity, violence, or offensive subject matter or contains a link to an adult website;
  5. 5. solicits personal information from minors;
  6. 6. provides any telephone numbers, street addresses, last names, URLs or email addresses;
  7. 7. promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
  8. 8. promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
  9. 9. involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
  10. 10. contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
  11. 11. furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
  12. 12. solicits passwords or personal identifying information for commercial or unlawful purposes from other Site users;
  13. 13. involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; or
  14. 14. includes photographs of another person that you have posted without that person's consent.

Prohibited activity includes, but is not limited to:

  1. 1. criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
  2. 2. advertising to, or solicitation of, any member to buy or sell any products or services through the Services. You may not transmit any chain letters or junk email to other members. It is also a violation of these rules to use any information obtained from the Services in order to contact, advertise to, solicit, or sell to any member without their prior explicit consent;
  3. 3. covering or obscuring the banner advertisements on your personal profile page, or any Flycell page via HTML/CSS or any other means;
  4. 4. any automated use of the Site or any other Flycell web properties;
  5. 5. interfering with, disrupting, or creating an undue burden on the Services or the Site;
  6. 6. attempting to impersonate another person or otherwise using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account;
  7. 7. selling or otherwise transferring your profile;
  8. 8. displaying an advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity on or through the Services or the Site; or
  9. 9. using the Services in a manner inconsistent with any and all applicable laws and regulations.


MESSAGING SYSTEMS

The Services features messaging systems that include text message capabilities and may from time to time contain other features that allow you to exchange messages, content and other information with other Flycell members and subscribers and third parties. Flycell has the right but not the obligation to monitor and edit or remove any activity or content it finds objectionable in such messaging systems. Flycell takes no responsibility and assumes no liability for any content, materials, messages and the like that you or any other subscribers, members or third parties post or send over the messaging systems. The text message content is for entertainment purposes only.

By posting messages, inputting data, or engaging in any other form of communication through the Services, you represent and warrant that you own or otherwise control all applicable rights to the Content that you post, upload, transmit or display; that the Content is accurate; that use of the Content that you supply does not violate third-party rights and will not cause injury to any person or entity. You will fully indemnify and hold harmless Flycell, its partners, parents, subsidiaries, agents, affiliates and/or licensors as applicable, for all claims resulting from Content that you supply through the Site, the Services or otherwise to Flycell, including all claims that the Content infringes the intellectual property rights of any third party.

In addition to the above, you acknowledge and agree that Flycell may store and/or disclose, as applicable, any such Content that it is required to do so by law, or has a good faith belief that such storage or disclosure is reasonably necessary to comply with court orders or other legal processes; to enforce these Terms of Use; to respond to any claims that such Content (or your use of the same) violates any third party's intellectual party or other rights; or to protect the rights, property or personal safety of Flycell, its parents, subsidiaries, agents, affiliates and/or licensors, any other Flycell, subscriber or member, or the general public.

PRIVACY

For additional information regarding Flycell's use of personal information collected in connection with the Services, please refer to Flycell's Privacy Policy.

EMAILS AND SMS MESSAGES

By registering for a Flycell account, you agree that we may send you the following types of email communications: welcome emails, our weekly newsletter, account status updates and promotional content and solicitations. You may opt-out of receiving our email newsletter via the unsubscribe links in each email. You can also opt-out of specific types of email communications through your account settings. Our Services feature the distribution of content to your cellular phone, and by registering for a Flycell account, you agree to receive SMS messages to your phone, including messages regarding Services you request, account status updates, and occasional SMS newsletters. You will also have the opportunity to opt-in and receive surveys and promotional content by our affiliates. You may opt out of our SMS newsletter by sending an email or by responding to the SMS newsletter indicating that you would like to unsubscribe.

COPYRIGHT INFORMATION

Flycell respects the intellectual property rights of others, and it expects you to do the same. If you know of or suspect that any use of the Services or the Downloads constitutes copyright infringement, please immediately send a notice to Flycell's at legal@flycell.com.

TRADEMARKS

All trade-marks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with the Services are the property of Flycell and/or its partners, parents, subsidiaries, agents, affiliates, and/or licensors. You may not copy, display or use any of these marks without the prior written permission of Flycell.

NO RESALE

In addition to the restrictions set forth above, you acknowledge and agree that you may not copy, distribute, sell, resell or exploit for any commercial purposes, any portion of the Services (or any Downloads accessible on or through the Services), or your user name or password.

PROMOTIONS AND ADVERTISING

Flycell and/or its business partners may present advertisements and promotional materials on or through the Services. Your participation in any Flycell promotional event is subject to the terms and conditions associated with that event. Your correspondence or business dealings with, or participation in promotions of, any third-party advertisers on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third-party. You agree that neither Flycell, Inc. nor its business partners shall be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties on the Services.

LINKS TO THIRD-PARTY SITES

The Services may contain links to retailers and/or other third-party websites not owned or operated by Flycell. These links are provided only as a convenience to you. Neither Flycell nor its parents, subsidiaries, agents, affiliates and/or licensors are responsible for the availability of these outside sites or their contents. You should carefully read all terms of use and privacy policies on any linked sites you access as you will be bound by such terms of use and privacy policies. You understand and agree that neither Flycell nor its parents, subsidiaries, agents, affiliates and/or licensors are responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site. You should direct any concerns regarding these third-party sites to those sites' administrators.

MODIFICATIONS TO SERVICES

Flycell reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice to you. You agree that neither Flycell nor its partners, parents, subsidiaries, agents, affiliates and/or licensors shall be liable to you or to any third party for any modification, suspension or discontinuance of the Services.

REMEDIES

You understand and agree that any unauthorized use of the Services or the Downloads would result in irreparable injury to Flycell and its partners, parents, subsidiaries, agents, affiliates and/or licensors for which money damages would be inadequate. In such event Flycell, its affiliates and/or licensors, as applicable, shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against you. Nothing contained in this paragraph or elsewhere in these Terms of Use shall be construed to limit remedies or relief available pursuant to statutory or other claims that Flycell nor its, partners, parents, subsidiaries, agents, affiliates and/or licensors may have under separate legal authority, including but not limited to, any claim for intellectual property infringement.

INDEMNITY

You agree to indemnify and hold harmless Flycell and its agents, employees, representatives, licensors, licensees, affiliates, parents and subsidiaries from and against any and all claims, actions, demands, causes of action and other proceedings arising from or concerning your use of the Services, including the messaging systems and the Downloads (collectively "Claims"), and to reimburse them on demand for any losses, costs, judgments, fees, fines and other expenses they incur (including reasonable legal fees and court costs) as a result of any Claims.

TERMINATION, CANCELLATION AND PLAN CHANGES

Flycell reserves the right, in its sole discretion, to immediately terminate your use of the Services or suspend your account at any time with or without notice to you should you be in any violation of these Terms of Use. If Flycell terminates these Terms of Use, or suspends your account it shall have no liability or responsibility to you, and Flycell will not refund any portion of your fees. You understand and agree that your cancellation of your account is your sole right and remedy with respect to any dispute with Flycell. This includes, but is not limited to, any dispute related to or arising out of: (1) any term of these Terms of Use or Flycell's enforcement or application of the same; (2) any policy or practice of Flycell, including its Privacy Policy, or Flycell's enforcement or application of these policies; (3) the Downloads or the messaging systems; (4) your use of and/or ability to access and use the Services; and (5) the amount or type of fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods. You can cancel your account by delivering notice to Flycell at support@flycell.ca or help@flycell.ca. Cancellation for subscribers will take effect at the end of the Subscription Month during which you deliver notice to Flycell. If you are a subscriber who cancels his or her account near the end of the Subscription Month and cell phone bill is charged for the next month's fee, please contact support@flycell.ca or help@flycell.ca to have that charge refunded.

DISCLAIMERS

WARRANTIES AND LIMITATIONS ON LIABILITY

We represent and warrant that (i) once downloaded by you, the Downloads will operate until removed by you or a person to whom you have given access to the mobile telephone to which the Downloads were delivered; and (ii) we are authorized to license you to use the Downloads for your personal use on your mobile telephone as described herein. Because you have chosen the Downloads or other products and have had the opportunity to review them prior to purchase, we accept no liability if the Downloads are in any way found to be of unsatisfactory quality or otherwise not suitable for your particular purpose.

THE SERVICES, PRODUCTS, MATERIALS, INFORMATION AND SITE, INCLUDING BUT NOT LIMITED TO SERVICES, PRODUCTS, MATERIALS AND INFORMATION SUPPLIED BY THIRD PARTIES THROUGH FLYCELL, ARE PROVIDED ON AN "AS-IS", "AS-AVAILABLE" BASIS WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATION AND WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTY, NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE WITH REGARD TO OUR CONTENT, INFORMATION, PRODUCTS, OR SERVICES PROVIDED HEREUNDER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE FURTHER DISCLAIM THAT OUR SERVICES WILL BE FREE FROM BUGS, DEFECTS, OR ERRORS OR THAT THE SERVICES WILL BE ACCESSIBLE WITHOUT INTERRUPTION.

IN NO EVENT SHALL WE BE LIABLE TO YOU UNDER THIS AGREEMENT FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INFORMATION OR MATERIAL OF ANY KIND, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE, AND INJURY TO PROPERTY IN CONNECTION WITH, ARISING OUT OF, OR AS A RESULT OF THE SERVICES, THE SITE, THE MATERIALS, THE PRODUCTS, ANY CONTENT, OR BREACH OF ANY REPRESENTATION AND WARRANTY OR OTHER TERM OF THIS TERMS OF USE. SUCH LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES.

Our entire liability for any claim concerning its performance or nonperformance in connection with these Terms of Use or the conduct of the parties in furtherance hereof under any legal theory, whether contract, tort, product liability, breach of implied duty or otherwise shall be limited to the amount charged for the Downloads. If you have any questions or comments, please let us know by completing our Support Form and submitting it to support@flycell.ca.

LAW AND LEGAL NOTICES

These Terms of Use and any other terms or documents referred to herein represent your entire agreement with Flycell with respect to your use of the Services and the Site. You understand and agree that, except as expressly set forth herein, these Terms of Use are not intended to confer and does not confer any rights or remedies upon any person other than the parties to these Terms of Use. If any part of these Terms of Use 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. Flycell's failure to pursue any available claim or defense pursuant to these Terms of Use or otherwise will not be a waiver of such claim or defense. The headings used in these Terms of Use are for convenience only, and will have no effect on the interpretation or legal enforceability of the terms herein. The laws of the Province of Ontario and the federal laws of Canada, excluding its conflicts-of-law rules, govern these Terms of Use and your use of the Services and the Site, including the messaging systems and the Downloads. The United Nations Convention on the International Sale of Goods is explicitly excluded from this agreement. You expressly agree that the courts in the Province of Ontario have exclusive jurisdiction over any claim or dispute with Flycell or relating in any way to your account or your use of the Services, the Site, the messaging systems or the Downloads.

Please direct any questions concerning the Services or any other Flycell related issue, to a Flycell customer service representative by e-mail at: support@flycell.ca or help@flycell.ca.

Copyright 2011 © Flycell, Inc.