LICENCE TERMS AND CONDITIONS - APPLICABLE WORLDWIDE EXCEPT WHERE WE PUBLISH SPECIFIC TERRITORIAL TERMS AND CONDITIONS
These terms and conditions ("Terms") set out important information regarding the rights, obligations and the restrictions that may apply to you as a user ("User") when you access our websites at http://www.mycolorscreen.com or http://www.themerapp.com ("Website") and/ or access, use or download the Themer digital application or any MyColorScreen application, including but not limited to Simple RSS Widget, Simple Dialer Widget, Simple Calendar Widget, Media Utilities (“Applications") and any services offered in conjunction with the Applications ("Services") as they are made available on various digital media devices, such as PDAs, cell phones, handheld devices or PCs, ("Devices"), and networks, such as those of mobile operators, internet service providers or cable operators ("Networks"). The Applications facilitate the use of Services, which generally permit customization of a user’s digital media device—both by altering the look of the device’s homescreens and altering and augmenting the functionality of the homescreens.
The Website, Applications and the associated Services, where not specifically provided otherwise, are supplied by SS Digital Media, LLC ("we", "us" and "our" as appropriate). We are a limited company incorporated in the Commonwealth of Pennsylvania.
Any translations of these Terms are provided as a courtesy to you and the definitive text of these Terms is the English (US) version.
If you wish to use our Website, the Applications and/ or the Services (collectively referred to as "Themer") you must agree to be bound by these Terms, as set out below, and all and any applicable laws regarding your use of Themer. You must also pay any charges for the Services which may be applicable.
IF ANY OF THESE TERMS ARE UNACCEPTABLE TO YOU OR IN THE EVENT THAT ANY FUTURE CHANGES TO THESE TERMS ARE UNACCEPTABLE TO YOU, DO NOT USE THEMER. YOUR CONTINUED USE OF THEMER (INCLUDING, BUT NOT LIMITED TO, THE DOWNLOADING OF THE APPLICATION OR ANY APPLICATION UPGRADES AND/ OR USE OF THE SERVICES) NOW, OR FOLLOWING THE POSTING OF NOTICE OF ANY CHANGES IN THESE TERMS, WILL BE DEEMED ACCEPTANCE BY YOU OF THESE TERMS AND ANY SUCH CHANGES, OR MODIFICATIONS. YOU AGREE TO USE THEMER ONLY FOR PURPOSES THAT ARE LEGAL, PROPER AND IN ACCORDANCE WITH THESE TERMS AND ANY LOCAL BINDING POLICIES OR GUIDELINES.
IMPORTANT: BY DOING ANY OF THE FOLLOWING ACTS YOU AGREE TO BE BOUND BY THESE TERMS:
To use Themer, you must be aged 13 or older. Additionally, if you are under 18, you must get the permission of your parent or guardian and the person who pays your mobile phone bills (if different) and get them to agree to these Terms on your behalf before you use Themer and before you provide any personal information to us. Also, to use some of the Services you may be asked to register with us and provide certain personal details. See the section on privacy below regarding what we do with this information.
You represent and warrant that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms and have obtained all necessary third-party consents, licences and permissions necessary to enter into and fully perform your obligations under these Terms. In the event you are reading these terms to provide permission to a minor to use Themer, you also represent and warrant that you have the full authority to act on behalf of the service user and that you are either more than 18 years of age and contracting for yourself or are the parent or guardian of the person who will use the Services and are entering into this contract to cover their usage. In any case, you affirm that you are, or the person who will use Themer (where you are the parent or guardian of that person) is, over the age of 13, as the Services are not intended for children under 13. If you are under 13 years of age, then please do not use Themer. If you are the parent or guardian of a person under the age of 13 then please do not let that person use Themer. Your access to the Services may be deleted or blocked without warning if it is found that you are misrepresenting your age or the age of the person using Themer. In this case your membership account and all related data may also be deleted without warning. Your access to the Services is solely for your personal use, and you must not authorize others to use your account.
Even where there is no limit imposed in the Application on the number of themes that can be applied, you nevertheless, agree to use the Services fairly. This service is meant for noncommercial use only.
If you breach the usage policy, we may cease to provide our Service to you without further notice. In that event we may, but are not obliged to, inform you by an SMS message or other suitable means, free of charge, that you have breached the usage policy.
When you register on the Website or within the Application, we automatically create a profile for you. In the future we may choose to make these profiles public for the purposes of sharing themes among users. By choosing to make your profile public, your username and any themes you’ve created, as well as all material you post on your profile, will become visible to any visitor to the Website and/ or the Application. No other personal data is made public by us. Themer is available for your personal use only and you may not use Themer for any commercial purposes. We may restrict or terminate your access to Themer, at any time, without notice, if you are in breach of these Terms.
We may change, suspend or discontinue any aspect of Themer at any time, including the availability of any feature, database and/ or content. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without liability. Such changes will be notified with reasonable notice, where they are material and where practicable, and you will have the opportunity to terminate the service should you not accept the new Terms. Where these changes or suspensions would amount to a complete termination of the Services you may be entitled to a refund of the reasonable part of any charges paid by you.
Continued use of the Application and/ or Services may require a download of new releases of software with different functionality and that may have different license terms.
You agree not to misuse Themer and, in particular, you agree that you will not: (i) post or distribute any offensive, obscene or otherwise inappropriate material which may cause offence to others on grounds of race, religion, ethnicity or sex; (ii) post or distribute any material that is unlawful or which threatens or encourages illegal activities or which harms the rights of others; (iii) post or distribute material which is not your own; (iv) post or distribute any material which infringes the copyright, trademark, patent, trade secret or other intellectual property or proprietary rights of any other party; (v) post or distribute any unsolicited advertising material, 'junk mail', 'spam', 'chain letters', or 'pyramid schemes'; (vi) defame, harass or stalk others or encourage such behaviour; (vii) harm, or attempt to harm, minors in any way; (viii) impersonate any person or entity or create a false or misleading identity; (ix) access, or attempt to access, the accounts of others; (x) breach, or attempt to breach, our security measures, or penetrate or attempt to penetrate our computer software, hardware, electronic communication system, or telecommunications systems; (xi) collect, attempt to collect, or use other members' personal information; (xii) engage in any activity which adversely affects the ability of other people or systems to use the Themer or the internet generally; (xiii) cause any nuisance or cause the operation of Themer to be jeopardized or impaired; (xiv) post or distribute any material that contains any form of software virus or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (xv) modify, adapt, translate, or reverse engineer any portion of Themer or its contents, or use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Website and/or Application, save only to the extent permitted by applicable law; or (xvi) use Themer for any improper, unlawful or immoral purpose.
Where we collect location-based information, we will generally do it on an anonymous basis for the improvement of our Application or Services. You consent to our use of anonymous location based services information collected from you.
Where we collect location-based information that is personally identifiable we will give you options to manage your disclosure of this information within our Application or on your Device. Depending on your version of Themer and the functionalities available on your Device you may benefit from advanced options to manage the disclosure of location-based information.
Where this technology is used in conjunction with any Third Party Applications or Sites further information on usage policies and options management shall be available from such third parties. It is your responsibility to find, read and understand the usage policies of these services, get fully familiar with all the available disclosure options and manage these in a way that fits your purposes.
As a separate issue, you may receive contextual advertising from us. Please see the Section on ADVERTISING
Themer may enable you to use functionalities of Third Party Applications and/ or to link to Third Party Sites that are not owned or controlled by us. Content, products and services that are part of any Third Party Applications and/ or Sites to which we may connect (including but not limited to, social networking sites, sites on which you can view content and from which you can make purchases, or record a geographic location that you find yourself in) are subject to the terms and conditions of the relevant application and/ or website. We have no control over and are not responsible or liable for any matters relating to your dealings with such third parties.
We respect the intellectual property of others, and we ask our Users to do the same. If you believe that your work has been copied or used in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our copyright agent with the following information ("Notice"): (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (ii) a description of the copyrighted work or other intellectual property that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located; (iv) your address, telephone number, and email address; (v) a 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; and (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 or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf. Any Notice of claims of copyright or other intellectual property infringement must be sent to us at:
SS Digital Media, LLC
15615 Alton Parkway, Suite 320
Irvine, CA 92618
Please note that this procedure is exclusively for notifying us and our affiliates that (a) your copyrighted material has been infringed, (b) you have noticed any defamatory content published via Themer or (c) your personal privacy or that of your family has been violated in a manner that contravenes applicable local laws.
Please choose carefully the words, information, content, messages, text, files, images, photos, sounds, profiles, works of authorship or any other materials you post, upload, link to, publish or display on our Website and/ or through the use of Services and any such content that you provide or make available to other Users through the Website (collectively, "User Content"). You are responsible for all User Content, as set forth below.
By sharing User Content via Themer (and any Third Party Application and/ or Sites), you grant to us during the entire period of protection of your intellectual property rights associated with such content and material, a world-wide, royalty free, non-exclusive license to use, copy, modify, publicly perform, publicly display, translate, reproduce, transmit or distribute, or an equivalent right to use, the User Content via Themer (and any other Third Party Applications and/ or Sites). We require such a license in order to provide certain functionality within Themer (and any Third Party Applications and/ or Sites). This license will terminate at the time the relevant User Content is removed from Themer. You will have the option to remove your User Content from Themer at any time, except in limited circumstances where you contribute User Content to a general section of the Website or to a third party profile, in which case you will not have the option to remove it.
By sharing User Content within Themer (and any Third Party Application and/ or Sites) you warrant that you own all rights in and to the User Content shared by you and that you are not breaching any other party's rights to privacy, publicity rights, copyrights or contractual rights.
Information or User Content provided by other Users may contain inaccurate, inappropriate or offensive material, products or services, and we assume no responsibility or liability for this material. User Content must not be illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, violate any confidentiality agreement or other contract or be otherwise injurious to third parties or objectionable and must not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any User Content. We have the right but not the obligation to refuse to post, remove or edit any posting or submission User Content. We do not actively monitor User Content and take no responsibility and assume no liability for any User Content.
By submitting the User Content to us, you grant us and our affiliates the right to use the username that you submit in connection with such User Content. You grant to us a revocable, non-exclusive, worldwide right and license, or another equivalent right to use, all the trademarks, service marks, trade dress, artwork, names, likenesses and biographical material associated with the User Content, your username, or your account in connection with your use of and our operation of Themer. You are solely responsible for any necessary payments that may become due to any third parties as the result of your posting of or linking to the User Content and our use thereof on the Website.
The following is a partial list of the kind of User Content that is illegal or prohibited on Themer. We reserve the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending User Content from the Website or Services and terminating the access to Themer of such violators. Prohibited User Content includes content that: (i) is obscene, patently offensive, or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (ii) harasses or advocates harassment of another person; (iii) involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing or "spamming"; (iv) consists of information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (v) consists of an illegal or unauthorized copy of a copyrighted work, such as sound recordings, musical compositions and videos in which you do not personally own the copyright or otherwise do not have the necessary authority from the copyright owner(s); (vi) computer programs or links to them or providing information to circumvent manufacturerinstalled copy-protect devices, or infringing materials; (vii) contains restricted or password-only access pages or hidden pages or images (those not linked to or from another accessible page); (viii) provides material that exploits people under the age of 18 or solicits personal information from anyone under 18; (ix) provides instructional information about illegal activities; (x) solicits passwords or personal identifying information for commercial or unlawful purposes from other Users; (xi) involves commercial activities and/ or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (xii) violates anyone's right of privacy; or (xiii) uses any unfair, misleading or deceptive content intended to draw traffic to the profile.
We reserve the right to deliver advertising to you in conjunction with your use of Themer and utilize the processor bandwidth and storage hardware on your Device for this purpose.
Advertising may be contextual, that is it may be sent to you based on your current location or use of Themer. Any opt out that you send us in relation to direct marketing communications does not apply to such advertising.
We will do our best to offer you a smooth service, but we give no guarantees that Themer will be fault free or that the Services will be uninterrupted. If a fault does occur, please report it to Customer Service and we will attempt to correct the fault as soon as we reasonably can. We will occasionally restrict your access to the Website or to the Services to carry out repairs, maintenance or to introduce new functionality or services and we will endeavor to keep disruption to a minimum.
New Services are subject to a period of testing. This means that a new Service may not perform with complete functionality, may be undergoing testing, may be inconsistently available, may have software "bugs" being fixed by us and may have other issues affecting availability and functionality.
You acknowledge that Themer (and any other applications) licensed by us to you are our property. You are granted a limited, revocable, non-exclusive, non-transferable (without the right to sublicense) license to use Themer or any Third Party Application for the purpose of accessing and using the Services. You agree not to disassemble, de-compile, reverse engineer, or otherwise attempt to gain access to the source code of the Application or Services or any Third Party Application. You will not copy any part of Themer or any Third Party Applications and/ or Sites or make commercial use of, rent, lease, loan, sell, publish, license, sublicense, distribute, assign or otherwise transfer any part of Themer to any person.
You agree to not use Themer to: (i) interfere with, manipulate, or take any actions that may undermine the integrity of any rating system used on the Services; (ii) interfere with or disrupt Themer or servers or networks, or disobey any requirements, procedures, policies or regulations of networks connected to these; (iii) collect or store personal data about other Users of Themer; or (iv) harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any other User without their prior explicit consent.
You will not alter, destroy, obscure, or otherwise remove any copyright or proprietary notices or labels on or embedded within any part of Themer and/ or any Third Party Applications.
You agree to not use Themer or export any portion of it in violation of U.S. export regulations.
You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a "terrorist supporting" country and you are not listed on any U.S. list of prohibited or restricted parties.
Any content provided by us as part of Themer contains copyrighted material, trademarks and other proprietary rights belonging to us and our licensors. All right, title and interest in and to such content vests in us and our licensors. You are granted a limited, revocable, non-exclusive license to display that content as part of the Services solely for your personal use. Except as expressly authorized by us, you may not copy, modify, translate, reproduce, distribute, publish, broadcast, perform, display, sell, assign, lease or sub-license that content, in whole or in part.
YOUR USE OF THEMER IS AT YOUR SOLE RISK. THEMER IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND STATUTORY REMEDIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO WARRANTY THAT (i) THEMER WILL MEET YOUR REQUIREMENTS, (ii) DELIVERY OF ANY PORTION OF THEMER WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THEMER WILL BE ACCURATE, RELIABLE, OR DESIRABLE (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, (vi) ANY PORTION OF THEMER OR ANY OTHER APPLICATION PROVIDED BY US WILL BE OF SATISFACTORY QUALITY, FAULT OR VIRUS FREE OR UNINTERRUPTED OR SATISFY ANY CONDITIONS OF QUALITY AND FITNESS FOR PURPOSE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THEMER SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
Under no circumstances will we or our respective parents, subsidiaries, and affiliates, suppliers and their respective owners, officers, manager, members, agents and employees, be liable to you for loss of profits, business interruptions, loss of business information, loss of business, opportunity or other pecuniary loss, loss of data or any direct, indirect, incidental, consequential, special, exemplary, or punitive damages or losses, whether based in contract, tort or otherwise, arising out of or in connection with use of, or inability to use Themer (and any other applications) which we license to you, any content delivered to you or Themer, whether or not we have been advised of the possibility of such damages or loss.
Some jurisdictions (countries, provinces, states) absolutely prohibit some limitations on liability, disclaimer of warranties or exclusion of direct or consequential damages. In such cases only the above disclaimers, limitations or exclusions may not apply to you to their full extent.
You hereby indemnify and hold harmless, and upon our request, defend, us, our affiliates (and their respective directors, officers and employees) from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys' fees and costs) arising out of any claim, action, or proceeding brought by a third party based on a breach of any warranty, representation, covenant or obligation by you under these Terms. You will reimburse us and our affiliates on demand for any actual payments made in resolution of any liability or claim that is subject to indemnification under this Section, provided that we attempt to obtain your written consent prior to making such payments, such consent not to be unreasonably withheld, delayed or conditioned. We shall promptly notify you of any such claim, and you shall assume control of the defense of such claim upon our request. We shall have the right, at your expense, to participate in the defense thereof under your direction.
Nothing in these Terms shall be construed so as to exclude or limit our liability or that of any third party for death or personal injury as a result of negligence.
Nothing in these Terms affects any mandatory statutory rights that you may have as a consumer, except to the extent permitted by law.
Where we actively promote and sell our products outside of the United States we will endeavor to comply with mandatory local regulations of public policy and consumer protection, but disclaim all and any liability, apart from the liability assumed within these Terms, to the maximum extent permitted by law.
This Application and the features and services accessible via the Application, may be covered, without limitation, by one or more patents.
These Terms are not intended to give rights to anyone except you and us, unless otherwise expressly indicated by us within these Terms. We may assign our rights and obligation under these Terms without your prior consent to any new provider of the Themer.
If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then the provision will be deleted. Any such deletion will not affect the validity and enforceability of any of the other provisions of these Terms.
You may at any time unsubscribe or cancel your Themer account, subscription or any other relationship with Themer which is being governed by these Terms via the cancellation method notified to you at sign up. Please note, however, that Themer will not make any refunds, except in exceptional circumstances involving material breach on our part, and you will remain liable for payment of any part of the Themer Services that you have already used or previously committed to.
We may at any time terminate your account or prevent you from gaining access to Themer. If we terminate your account, we may immediately delete all the files and information on your profile and prevent you accessing your profile. We will use reasonable efforts to give you notice of termination or suspension of access to Themer, but this may not always be possible. We will not be liable to you or to any third party for termination or for any permanent or temporary suspension of any of the Website, Application or Services. In the event you are a paying customer and our Services to you are terminated you may be entitled to a refund of the reasonable part of any charges paid by you.
We will not be liable to you or to any third party for any failure, suspension and/or termination of access to Themer in connection with or arising out of a force majeure event including, without limitation, strikes, lock-outs or other industrial disputes, nuclear accident or acts of God, war or terrorist activity, riot, civil commotion, malicious damage, compliance with any law or government order, rule regulation or direction, accident or breakdown of plant or machinery, fire, flood, storm or default of suppliers, and where they are beyond our reasonable control, any other acts, events, omissions or accidents. We may provide you with notices regarding Themer or these Terms by post to any address you have given us, by email, by SMS message or by postings to the Website.
These Terms and the relationship between you and us shall be governed by the laws of the Commonwealth of Pennsylvania without regard to its conflict of law provisions. You and we agree to submit to the personal and exclusive jurisdiction of the courts of the Commonwealth of Pennsylvania.
"Themer" is a trademark and registered trademark of SS Digital Media, LLC.
We may amend these Terms at any time by posting the amended terms on our Website and/ or by amending the Terms as they are accessed from the Applications on your Device. It is your responsibility to review these Terms from time to time to check if they have been amended. The effective date of each new version the Terms will be included at the top of the Terms page. If you continue to use the Application and/ or Services or you download any content or upgrade any of the Services after we have posted any amended terms that will demonstrate that you accept our updated Terms. Should you not accept these amendments, you may terminate the Services.
If you have any queries regarding us, the Website, Applications and/ or Services, please contact us by email at email@example.com.