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TERMS OF SERVICE

The mySMSstore website ("Website") is a site owned and operated by MySMS.Inc, its subsidiaries, affiliates and/or agents (hereinafter collectively referred to as "mySMSstore").

The following describes the terms and conditions on which mySMSstore offers you the access and use of the services in this Website (hereinafter referred to as "TOS") and shall be read together with the Website Terms of Access. In the event of a conflict between the TOS and the Website Terms of Access, the former shall prevail.

Please read the terms and conditions of this TOS carefully.

1.0 DESCRIPTION OF SERVICE

    The service provided by mySMSstore enables anyone who create or develop content ("Artist") to set up an online store ("mySMS Storefront") and thereafter submit their content including but not limited to ringtones, images, photos, java games, music, wallpaper, RSS feeds and other text based listings ("Products") for upload on their mySMS Storefront specifically for the display and sale of the Artists' Products to mobile users in Malaysia via SMS in accordance with the terms herein.

    The sale of an Artist's Products shall be made by mySMSstore for and on behalf of the Artist via SMS to all and any mobile users in Malaysia with the following operators, Maxis, DiGi and Celcom ("End Users") subject to and in accordance with this TOS.

    The services provided shall collectively be referred to as "Service".

    The word "content" as used herein means any and all information, advise, opinion, statement, information, data, content, materials, documents, text, photographs, audio, video, sounds, music, illustrations, graphics, logos, functions, processes and the like that are submitted to mySMSstore via the Service.


    2.0 REGISTRATION TO THE SERVICE

    The Service is only made available to Malaysian citizens residing in Malaysia of at least 18 years of age.

    In order to use the Service, you would need to go through a simple registration process where you will be required to provide certain personal information (e.g. your identification card number, e-mail address, residential or business address, your Malaysian mobile number, etc) (collectively referred to as "Registration Data") to mySMSstore.

    You shall provide true, accurate, current and complete information about yourself when registering to the Service and shall be responsible for updating the Registration Data from time to time.

    By completing the registration process and accepting this TOS, you represent that (i) you have read and understood this TOS and agree to be bound by its terms and conditions and (ii) you are at least 18 years of age.

    If you do not agree to be bound by (or cannot comply with) any of the terms and conditions of this TOS, do not check the acceptance box below and do not continue the registration process or attempt to access any part of the Service.

    mySMSstore reserves the right, at any time, to modify, alter, or update this TOS, and you agree to be bound by such modifications, alterations, or updates once they are posted on this Website. You can review the most current version of the TOS at any time at www.mysmsstore.com.my

    mySMSStore will use your Registration Data in accordance with its privacy policy ("Privacy Policy") at http://mysmsstore.com.my/cp/privacypolicy.jsp

    Please review this Privacy Policy before you complete the registration process or attempt to use or access any part of the Service.

    Notwithstanding anything herein, mySMSstore reserves the right to refuse registration to the Service where it believes that false, inaccurate or incomplete Registration Data has been provided or for any other reason.

    3.0 ACCESS TO THE SERVICE

    Upon your successful registration to the Service, mySMSstore shall provide you with access to the Service purely for the purpose of utilising the Service to enable you to create your own mySMS Storefront for the submission of your Products for upload and display by mySMSstore to enable the purchase and/or subscription of such Products by End Users via SMS.

    You shall be responsible for the security and confidentiality of all passwords, username, etc (collectively referred to as "Access Codes") required to access and use the Service. You shall not disclose or transfer your Access Codes to any other person or entity and shall immediately notify mySMSstore immediately if you believe your Access Codes have been or may be obtained or used by any unauthorised person or entity.

    Notwithstanding the foregoing, you shall be responsible for all access and use of the Service via the utilisation of your Access Codes whether by you or a third party (authorised or otherwise).

    You hereby undertake to comply with all requirements and guidelines as may be provided by mySMSstore from time to time in relation to your access to the Service and use thereof as well as any amendments thereto.

    4.0 SETTING UP YOUR MYSMS STOREFRONT

    In order to display your Products for the purchase and/or subscription by End Users, you would need to create and set up your own mySMS Storefront by using mySMSstore's storefront templates and choose a storefront name ("Store Name"), the type of Products that you would be selling (e.g. Mobile Downloads, Mobile Text "On Demand") and an online storefront sub domain name (e.g. www.artiststorefront.mySMSstore.com.my).

    In choosing your Store Name and your storefront's sub domain, you shall ensure that the name chosen by you:
    (a) does not infringe any registered or unregistered trademark or any other intellectual property rights of a third party,
    (b) is in no event scandalous, indecent, obscene or offensive, whether directly or indirectly,
    (c) is not for any illegal and/or unlawful purposes, and
    (d) does not infringe the rights of any party and is valid and in compliance with all relevant applicable laws.

    Without derogation of your obligation above, mySMSstore shall have the right to reject a Store Name or a storefront's sub domain name where it believes that the same is not compliant with the above requirements or for any other reason.

    Notwithstanding the foregoing, you agree that you shall nevertheless be responsible for the Store Name and storefront sub domain name chosen by you at all times.

    5.0 SUBMISSION OF PRODUCTS

    Upon creation of your mySMS Storefront, you can proceed to submit your Product subject to the requirements and conditions for submission of Products as stated in this TOS.

    In the process of submitting the Product, you shall also create and assign a Request Code, Title and Tag for each Product.

    A Request Code shall be the text which is to be typed in the SMS to request the Product and shall be subject to such limitation as to characters, numbers etc as may be stipulated by mySMSstore from time to time.

    The Title shall be the title which is to be displayed in relation to the Product, whereas the Tag is to be used as a way to associate similar Products whereby several Tags can be assigned to each Product (e.g. Top 10, Cars, Popular, etc).

    In creating and assigning your Request Code, Title and Tag you shall ensure that the Request Code, Title and Tag chosen by you comply with the requirements as stipulated in Paragraph 4: (a) - (d) above.

    Without derogation of your obligation above, mySMSstore shall have the right to reject a Request Code, Title or Tag where it believes that the same is not compliant with the above requirements or for any other reason.

    Notwithstanding the foregoing, you agree that you shall nevertheless be responsible for the Request Code, Title and Tag chosen by you at all times.

    6.0 CONDITIONS FOR SUBMISSION OF PRODUCTS

    mySMSstore respects the intellectual property of others, and we ask you to do the same.

    All Products submitted for upload on the mySMSstore therefore must belong to you and you must have all necessary rights and authorisation to provide the same to mySMSstore for upload and display on your mySMS Storefront to enable the purchase of the same by End Users, in accordance with the terms herein.

    Where so requested by mySMSstore you shall provide mySMSstore will all necessary documentation as may be necessary to evidence such ownership or authorisation.

    You will be solely responsible for ensuring that all Products submitted for upload are in compliance with the content guidelines and all applicable laws, regulations, rules and codes, including but not limited to The Malaysian Communications And Multimedia Content Code (collectively the "Guidelines"), and you will pay all costs associated with its creation thereof, including but not limited to any compensation owed to third parties and any royalties or similar payments that are or may become due to any third party, such as all payments under licenses for third-party material in your Product (if any).

    Further you shall be responsible for ensuring that all Products submitted for display via the Service shall be fit for its purpose, of a merchantable quality and complies with all laws and requirements in relation to the protection of consumers and the sale of goods. The Product shall also be subject to such limitation as to size, characters, etc as may be stipulated by mySMSstore from time to time.
    You acknowledge and agree that your responsibility for ensuring compliance of Products with the Guidelines and requirement above shall remain so notwithstanding mySMSstore's upload of the same on to your mySMS Storefront and sale of the same via SMS.
    As such, you shall be responsible for any legal implication/ramifications or damages that may occur as a result of making the Product available on your mySMS Storefront.

    7.0 UPLOAD OF YOUR PRODUCTS

    mySMSstore will upload Products submitted by you via the Service subject to the terms herein.

    You acknowledge that although you shall remain responsible for ensuring that all Products submitted for upload via the Service are in compliance with the Guidelines and requirements herein, mySMSstore shall have the right but not the obligation to ensure that all such Products are in fact compliant.

    Where mySMSStore discovers or reasonably believes that a Product is not or may not be compliant with the Guidelines or requirements herein, mySMSstore reserves the right to reject such Product submitted for upload or otherwise remove an uploaded Product.

    Notwithstanding the above, mySMSstore shall have the general right to reject Products submitted for upload via the Service for any reason without any liability to you.

    Once a Product has been uploaded, your Product shall, subject to the activation of your mySMS Storefront, be displayed on your mySMS Storefront and ready to be purchased by End Users in accordance with the terms herein.

    No changes can be made to the Product or the description or the pricing thereof once such Product has been uploaded. Any changes shall be effected by the submission of a new Product incorporating the change or the amended description or pricing in accordance with the procedures as stipulated in the Website.

    All Products uploaded and displayed on your mySMS Storefront are made available for public viewing, and may be indexed and reproduced by third-party search engines and directories. mySMSstore does not have control over any Product taken from this Website by third-party sites or search engines.

    8.0 PURCHASE TRANSACTION

    All purchase of Products displayed via the Service shall be made via SMS utilising the short code 32088 ("Short Code").

    End Users wanting to purchase the Product would only need to SMS your unique Request Code and send it to 32088 and the Product will be sent via SMS to the End User.

    The right to utilise the Short Code is that of mySMSstore and as such you acknowledge and agree that the sale of your Products to End Users via this Service and the use of the Short Code shall be made by mySMSstore for and on your behalf in accordance with the Terms and Conditions of Sale as displayed at your mySMS storefront.

    9.0 COPYRIGHT AND OWNERSHIP OF PRODUCTS

    To enable mySMSstore to provide you with this Service and to sell your Product to End Users for and on your behalf, you hereby agree to the transfer of all your copyright to the Product together with the ownership of the Product to mySMSstore.

    You hereby warrant that you have all necessary right to grant such transfer to mySMSstore.

    In return mySMSMstore shall grant you a royalty-free, worldwide, nonexclusive, right and license in such Product.

    mySMSstore shall retain the ownership of the Product until such time that the Product is removed from your mySMS Storefront or your access to mySMSstore is terminated for any reason, wherein the copyright and ownership of the Product shall be reassigned back to you by mySMSstore subject to you granting mySMSstore a worldwide, royalty-free, non-exclusive, sublicensable and transferable rights and licenses to host, cache, store, archive, index or otherwise use the Product in relation to the Service other than for the sale thereof to End Users or any other party.

    10.0 GUIDELINES IN RELATION TO PRODUCTS AND USE OF SERVICE

    You must use the Service in a manner that respects the rights of mySMSstore and third parties and in accordance with the Guidelines and all applicable law.
    As an Artist, you may not submit for upload a Product that is generally offensive or inappropriate and is in breach of the Guidelines.

    Without derogation of the generality of the foregoing, you shall meet the following guidelines before submitting the Product to be uploaded by mySMSstore and/or using the Service provided by this Website:

    (a) All Registration Data and any other information provided via your Access Codes to mySMSstore shall be true, accurate and complete;

    (b) All content provided via the Service including Products submitted by you for upload on mySMSstore shall not:

    (i) contain any unlawful, obscene, vulgar, abusive, harassing, infringing, harmful, threatening, defamatory, sexually explicit, profane, hateful, inciting racial hatred or ethnicity, or otherwise objectionable language of any kind;
    (ii) contain or infer any libelous, defamatory or slanderous matter of any kind;
    (iii) be otherwise illegal or unlawful or against public policy;
    (iv) infringe the rights of a third party, including but not limited to, copyrights, trademarks, patents, trade secrets, and rights of privacy and publicity;
    (v) contain any adult material, including but not limited to, graphic images, written images, or reference or links thereto;
    (vi) be designed to harass, threaten, or abuse others in any way;
    (vii) infringe the The Malaysian Communications And Multimedia Content Code

    (c) You shall in your access and use of this Website and the Service provided herein conduct yourself in a way which does not infringe the terms and conditions of this TOS and the Terms of Access of this Website.

    11.0 REMOVAL OF PRODUCTS/TERMINATION OF ACCESS

    Removal of the Products shall be made by you in accordance with the instructions as provided in the Website.

    You acknowledge and agree that all Products removed from your mySMS Storefront shall be archived by mySMSstore subject to the terms herein.

    You acknowledge and agree that mySMSstore may at its sole and absolute discretion and without prior notice to you remove any content provided or Product uploaded via the Service where the Product has been in display for a period beyond a reasonable display period as may be determined by mySMSstore from time to time or where mySMSstore believes or has reasons to believe that such Product is not in compliance with the Guidelines and this TOS, without liability to you or any third party and without giving any further reasons thereto.

    Without derogation to the generality of the foregoing, in the event that mySMSstore is notified of any allegedly infringing, defamatory, damaging, offensive, objectionable or otherwise illegal Product, mySMSstore may, without prior notice, in its sole and absolute discretion, investigate and subsequently remove such Product.

    You further acknowledge and agree that mySMSstore may at its sole and absolute discretion and without prior notice to you, terminate your access to the Service, and remove any content provided or Product uploaded via the Service, for any reason whatsoever, including but not limited to where mySMSstore believes or has reasons to believe that you have acted in breach of the Guidelines or this TOS, without liability to you or any third party and without giving any further reasons thereto.

    12.0 MARKETING AND ADVERTISEMENT OF PRODUCTS

    You understand that mySMSstore shall have the right but not the obligation to promote, market and advertise your Product.

    Any advertisement and promotion made by you in relation to your Products and this Service shall be in made in accordance with all applicable laws and shall at all times be made in such a way or manner that will not bring mySMSstore and the Service into disrepute in any way. Without derogation of the generality of the foregoing, you shall not use "spam," "blast-faxes" or recorded telephone messages to market or sell Products or attempt to deliberately subvert the results of the mySMSstore directory or search engine with false, misleading, or unnecessarily repetitive information.

    You shall in all advertisements and promotions of your Products and this Service expressly state that the purchase by End Users of the said Products shall be subject to the Terms and Conditions of Sale as stipulated in this Website and shall in all instances provide the link thereto.

    mySMSstore allows you to relocate your mySMS Storefront at other locations such as your own website, your mySpace page, etc as a means of advertising your Products and the Service.

    All mySMS Storefront that has been relocated shall not be amended or changed in any way and shall not provide a link to any other website other than as expressly allowed by mySMSstore.

    You hereby agree to delete your mySMS Storefront which has been relocated to other locations upon request by mySMSstore where your access to the Service is terminated pursuant herein or for any other reason.

    13.0 PRICING OF PRODUCTS AND REVENUE SHARING

    The fees/subscription payable by the End User for the purchase of a your Product shall be incorporated by the relevant mobile operator in the End Users mobile bill for a postpaid subscription or shall be immediately deducted out of the End Users telephone card for a prepaid subscription.

    You understand and agree however that a percentage of the fees/subscription shall be retained by mySMSstore as well as paid to the relevant mobile operator and to the provider of the IPX service which mySMSstore utilises in the provision of the Service. This percentage shall differ based on the rates of each mobile operator.

    For more information on this please refer to your report overview once you have created your store, or contact our customer service as per the details provided herein.

    You may monitor your earnings in relation to the purchase by End Users of your Products by accessing your mySMS Storefront via the Service. Earnings displayed however may not take into account non-payment of mobile bills by End Users or non-payment by the mobile operator and IPX operator of the applicable percentage of the revenue for any reason.

    You understand and agree therefore that although mySMSstore shall use its reasonable endeavour to display current and accurate earnings of an Artist and their Products, mySMSstore provides no guarantee as to the currency and accuracy of the same or that the said displayed earnings shall represent the actual amount to be paid to the Artist.

    Payment of your earnings pursuant herein shall be subject at all times to the receipt of payment from the End Users and of mySMSstore's receipt of the applicable percentage of the revenue from the relevant Mobile and IPX operator.

    Payment to you of your share of the fees/subscription shall be made via cheque or such other method as mySMSstore deems appropriate and suitable from time to time within sixty (60) days of your reaching or exceeding the minimum amount of RM 100 ("Payment Threshold)", or as may be stipulated by mySMSstore from time to time.

    You acknowledge and agree that no payment shall be due and owing to you from mySMSstore where your earnings do not reach the said Payment Threshold.

    Cheques shall be issued in the name of the Artist based on your registration information (as may be amended or updated from time to time pursuant herein) and not to any other person unless specifically requested by the Artist and expressly agreed to by mySMSstore.

    If you fail to provide mySMSstore with accurate and complete contact information in Registration Data and/or the payment due to you remain outstanding for more than 12 months ("Outstanding Payment"), you acknowledge and agree that mySMSstore shall have the right to use and/or dispose the Outstanding Payment as it deems fit including but not limited to contributing the Outstanding Payment to a charitable nonprofit organisation of mySMSstore 's choice.

    14.0 QUERIES AND COMPLAINTS

    You may address all your queries and complaints in relation to the Services to mySMSstore at info@mysmsstore.com.my

    mySMSstore shall use its reasonable endeavours to respond to the queries and resolve any problems or issued as may be raised by you.

    mySMSstore shall handle all End User complaints in relation to your Products. However, you acknowledge and agree that you shall provide your full cooperation with mySMSstore to provide all such materials, answers to queries, replacement Products (where required) and information to mySMSstore without delay and where necessary take such action as may be necessary to resolve any End User complaints.

    15.0 INDEMNITY

    You hereby irrevocably agree to fully indemnify and keep indemnified mySMSstore from all liabilities, claims, losses and expenses, including any legal fess that may be incurred by mySMSstore in connection with or arising from:

    (a) your misuse of this Website and the Service provided herein,
    (b) your breach of these TOS howsoever occasioned, and
    (c) any intellectual property right or proprietary right infringement claim made by a third party against mySMSstore in connection with your use of this Website and the Service provided herein.

    16.0 EXCLUSIONS AND LIMITATION OF LIABILITY

    In addition to any other disclaimers as may be stipulated in the Terms of Access, mySMSstore disclaims all warranties, conditions, guarantees, representations, express or implied with respect to the Service.

    mySMSstore shall not be liable in contract, tort (including negligence) or otherwise for any loss or damage sustained by the Artist or any other party directly or indirectly from the use of the Service including but not limited to loss or damage arising from :

    (a) any defect, delays, interruptions or failures in the provision of the Service;
    (b) any inaccuracies, or errors in any data, information or Products, stored in your mySMS Storefront, the Website or otherwise provided or made available via the Service;
    (c) the failure to activate your mySMS Storefront, upload and display your Products due to limitations of the Service or any failure of the Service or any part thereof for any reason;
    (d) the corruption, loss of or error in any data, information or Products provided to mySMSstore or displayed on your mySMS Storefront for any reason;
    (e) any unauthorised use of the Service and/or intrusion, interference or attack on the Website, Service or your mySMS Storefront by any person, virus, Trojan Horse, worm, macro or other harmful components or deleterious programs or files;
    (f) an Artist's failure, neglect or omission to act in accordance with the terms and conditions of this TOS and any other laws, rules, regulations, policies and guidelines currently in force;
    (g) an event which is beyond the reasonable control of mySMSstore;
    (h) mySMSstore performing and exercising its rights, obligations and discretion pursuant to this TOS; and/or
    (i) the act or omission of any party other than mySMSstore.
    If you become dissatisfied with this Website or and the Service provided herein, your sole remedy shall be to discontinue using and/or accessing the Service.

    17.0 SEVERABILITY

    In the event any portion in this TOS is found to be unlawful or illegal or unenforceable, such portion shall be excluded from this TOS, and such exclusion shall not affect the enforceability, legality and lawfulness of this TOS in any way and the remaining terms shall be separately enforced to the maximum extent permissible so as to effect the intent stated in this TOS.

    18.0 WAIVER

    In the event that mySMSstore fails to or neglects to enforce any terms, provisions or remedies under this mySMSstore for whatever reason, mySMSstore shall neither be construed as having waived its rights to enforce the same nor as having waived its rights to any preceding, continuing, or subsequent breach of the same or any other provisions stated in this TOS.

    19.0 GOVERNING LAW

    This Website and the Service provide herein is governed by the laws of Malaysia and you hereby consent and submit to the exclusive jurisdiction and venue of the courts in Malaysia in all disputes arising out of or relating to the use of this Website and the Service.

    Use of this Website and the Service is unauthorised in any jurisdiction that does not give effect to all provisions of this TOS and/or the Terms of Access.