SHOUT! Custom Case Terms of Service
Effective Date: March 24, 2014
This Terms of Service (“TOS”) contains the terms and conditions that govern your use of Global Cellular, Inc.’s (“GCI”) SHOUT! Custom Case Service (as described in Section 1 below) and your use of the SHOUT! Card (as described in Section 2 below). This TOS describes your rights, responsibilities, and what you can expect from the SHOUT! Custom Case Service and the SHOUT! Card. Use of the SHOUT! Custom Case Service and the purchase, use or acceptance of a SHOUT! Card constitutes your acceptance of and agreement to this TOS.
GCI reserves the right to add, delete, and/or modify any of the terms and conditions contained in this TOS, at any time and in its sole discretion. You should check the TOS regularly for updates. You can determine when the TOS were last revised by referring to the “Last Revised” legend at the top of this page. Any changes in the TOS take effect upon posting and apply to use of the Shout! Custom Case Service as of the date of posting. Each time you access or use the Shout! Custom Case Service, whether through www.cellairis.com or the Cellairis iTunes App (collectively the “Website”), you signify your acceptance of the then-current TOS. If the then-current TOS is unacceptable to you, your only recourse is not to use the SHOUT! Custom Case Service. Your use or continued use of the SHOUT! Custom Case Service following posting of a new or revised TOS will constitute binding acceptance of the changes.
- 1. The SHOUT! Custom Case Service: The SHOUT! Custom Case Service enables users to select images or designs for reproduction or to upload images or designs to be reproduced on cases and covers of select wireless devices (collectively the “Products”). Users of the SHOUT! Custom Case Service may create and purchase individual Products for their own use. Products can be shipped only to the 50 United States and the District of Columbia. The SHOUT! Custom Case Service is only compatible with iPhone 4, 4S, 5, 5C, 5S, iPod Touch 5; iPad 2 and 3; iPade mini; Samsung Galaxy S3 and S4.
- 2. SHOUT! Cards:
- 2.1. A SHOUT! Card can be purchased at participating Cellairis retail stores while supplies last.
- 2.2. Redemption: A Shout! Card can be redeemed for one (1) Product offered for sale through the Shout! Design Your own Case Program. If the retail price of the Product you select is $39.99 or less, no additional fees are required to redeem the Shout! Card. If the retail price of the Product you select is greater than $39.99, you can redeem the Shout! Card only upon payment of that portion of the price that exceeds $39.99 and any applicable sales tax.
- 2.3. You may be required to pay sales tax if the Product you select is offered for sale at a retail price greater than $39.99.
- 2.4. Products will be shipped using Standard Ground shipping at no additional cost. Other shipping methods may be available upon payment of additional shipping costs.
- 2.5. SHOUT! Cards are single-use cards and are not issued to customers in a specified or denominated amount. A SHOUT! Card does not store any value electronically and value cannot be electronically added to or subtracted from a SHOUT! Card.
- 2.6. A SHOUT! Card cannot be redeemed or exchanged for any other merchandise or service offered by GCI. A SHOUT! Card cannot be redeemed or exchanged for cash.
- 2.7. SHOUT! Cards do not expire. Redemption of a SHOUT! Card is subject to the availability of Products and the SHOUT! Custom Case Service. In the event that GCI stopping offering the Products or otherwise terminates the SHOUT! Custom Service before you redeem your Shout! Card, you shall be entitled to a refund of the purchase price of your SHOUT! Card in accordance with Section 2.11 of this TOS.
- 2.8. Protect your SHOUT! Card. GCI is not responsible for unauthorized use, loss, theft or damage of a SHOUT! Card. Resale is strictly prohibited.
- 2.9. If you have any questions regarding the purchase or use of a SHOUT! Card; please contact customer service at 888-516-2856.
- 2.10. You may assign your SHOUT! Card to a third party for their personal use prior to the redemption of the card. Any such assignee shall be subject to and legally bound by the TOS.
- 2.11. You may obtain a refund for the purchase price of an unredeemed SHOUT! Card only through the GCI corporate office. You cannot obtain a refund for an unredeemed SHOUT! Card from a Cellairis retail store or the on-line store. To obtain a refund for an unredeemed SHOUT! Card; send the card and the store receipt for the card to 6485 Shiloh Road, Building B-100, Alpharetta, Georgia 30005, Attn: Customer Service.
- 3. Use of the SHOUT! Custom Case Service.
- 3.1. Eligibility. GCI will only knowingly provide the SHOUT! Custom Case Service to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the SHOUT! Custom Case Service only under the supervision of a parent or legal guardian who agrees to be bound by this TOS. The SHOUT! Custom Case Service is not intended for children under the age of 13. If you are a parent or guardian and believe GCI may have inadvertently collected personal information from your child, please notify GCI immediately by sending an email to email@example.com.
- 3.2. Compliance with TOS and Applicable Law. You must comply with all of the terms and conditions of this TOS and all applicable laws, regulations and rules when you use the SHOUT! Custom Case Service.
- 3.3. Your License to Use the SHOUT! Custom Case Service.
(a) GCI and its affiliates or their respective licensees solely and exclusively own all intellectual property and other rights, title and interest in and to the SHOUT! Custom Case Service, except as expressly provided for in these TOS. For example and without limitation, GCI owns or is the licensee of the trademark CELLAIRIS in word and stylized form and of certain technology used in providing the SHOUT! Custom Case Service. You will not acquire any right, title, or interest therein under this TOS or otherwise to any intellectual property owned by or licensed to GCI.
(b) GCI grants you a limited revocable license to access and use the SHOUT! Custom Case Service for the purpose described in Section 1, subject to your compliance with this TOS. If you use the SHOUT! Custom Case Service in a manner that exceeds the scope of this license or you breach this TOS, GCI may revoke the license granted to you.
- 4. General Rules.
- 4.1. Prohibited Use. You may only use the SHOUT! Custom Case Service as expressly permitted herein. You may not engage in any conduct that is likely to cause harm to the SHOUT! Custom Case Service or GCI. Specifically, but not by way of limitation, you may not: (i) interfere with the SHOUT! Custom Case Service by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the SHOUT! Custom Case Service; (iii) collect electronic mail addresses or other information from third parties by using the SHOUT! Custom Case Service; (iv) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain GCI’s name or trademarks; (vii) engage in any activity that interferes with another user’s ability to use or enjoy the SHOUT! Custom Case Service; or (viii) assist or encourage any third party in engaging in any activity prohibited by this TOS.
- 4.3. Ordering Policies. If you purchase Products, you agree to do so in accordance with any ordering policy established by GCI. Title to the Products you purchase passes to you when the Products are delivered to the common carrier.
- 5. Custom Cases General Rules and License.
- 5.1. Objectionable Material & Prohibited Content. By using the SHOUT! Custom Case Service you agree not to upload content, including, without limitation, designs or images (collectively “Content”) that infringes or violates someone else’s rights or otherwise violates the law. Examples of prohibited Content include:
– Content that may infringe on or violate the rights of a third party.
– Content that signifies hate towards another group of people.
– Hate and/or racist terms.
– Inappropriate Content or nudity that is not artistic in nature.
– Content that exploits images or the likeness of minors.
– Obscene and vulgar comments and offensive remarks that harass, threaten, defame or abuse others
– Content that depicts violence, is obscene, abusive, fraudulent or threatening
– Content that glamorizes the use of illegal substance or drugs
The list outlined above should NOT be construed as an exhaustive list of offensive material but rather as a general guideline.
GCI RESERVES THE RIGHT, AT OUR SOLE DISCRETION, TO REJECT ANY CONTENT THAT WE DEEM AS OBJECTIONABLE.
- 5.2. Delivery of Content. You will upload or deliver to GCI all Content that you want to use with the SHOUT! Custom Case Service in accordance with the applicable instructions. GCI may, in its sole and exclusive discretion, determine whether any Content complies with such instructions and is satisfactory for use with the SHOUT! Custom Case Service.
- 6. Reservation of Rights.
- 6.1. Monitoring. GCI reserves the right, but does not assume the obligation, to monitor your use of the SHOUT! Custom Case Service. If GCI determines, in its sole and absolute discretion, that you or another GCI user will breach a term or condition of this TOS or that such transaction is inappropriate, GCI may cancel such transaction without any liability to you or any third party.
- 6.2. Modification of the Service. GCI reserves the right to modify the organization, structure or “look and feel” of the SHOUT! Custom Case Service, and may change, suspend, or discontinue any aspect of the SHOUT! Custom Case Service at any time without any liability to you or any third party. GCI shall have complete discretion over the features, functions, prices and other terms and conditions on which the SHOUT! Custom Case Service is offered to GCI users.
- 7. Submissions: When you submit Content, questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information (“Submissions”), you grant GCI permission to use such Submissions in whole or in part without any compensation. You agree that GCI will have no obligation to keep any Submissions confidential. You will not bring a claim against GCI based on “moral rights” or the like arising from GCI’s use of a Submission. Without limiting the foregoing, by making a Submission, you grant GCI and its affiliates, licensees, assignees and designees (the “GCI Parties”) an irrevocable, assignable, transferable, fully sublicensable (through multiple levels of sublicensees), perpetual, world-wide, royalty-free, fully paid-up, non-exclusive license, in the GCI Parties’ sole discretion, to:
- 7.1. Use such Submissions, in all media existing now or created in the future, as the GCI Parties deem necessary to enable you to use the SHOUT! Custom Case Service to create, produce, and purchase Products, including without limitation, sublicensing the rights that you grant the GCI Parties in this subsection to a third party subcontractor only for purposes of providing the SHOUT! Custom Case Service, processing your order, and producing and shipping your Products.
- 7.2. Use, distribute, reproduce, modify, combine, adapt, publish, translate, rent, lease, sell, publicly perform, publicly display and create derivative works of your Submission (in whole or in part), along with your name or any part thereof, your city/town/village of residency, and other information from your user profile, in the GCI Parties’ sole discretion, and to use or incorporate all or any part of your Submission into advertising, promotion, marketing, review, recommendation, research, analysis or other materials in any format or medium now known or later developed. You hereby waive any right to inspect any of the uses described herein and waive, release, and hold the GCI Parties, and each of them, harmless against any and all claims based on privacy, publicity, defamation, misappropriation, intellectual property or other claims relating to any use of your Submission. You further agree to provide an option to the GCI Parties, to be exercised in the GCI Parties’ sole discretion, for them to obtain from you an assignment of all right, title and interest you have or may have and to in your Submission, or any portion thereof, which assignment will be in a form designated by the GCI Parties and will be without payment by the GCI Parties of any compensation. You further agree to execute and deliver to the GCI Parties such other further assignments, instruments and documents as any of the GCI Parties may request from time to time for the purpose of establishing, registering, evidencing, enforcing or defending the GCI Parties’ complete, exclusive, and worldwide ownership of all rights, titles and interests of every kind and nature whatsoever, including all patents, trademarks, copyrights and other intellectual property rights therein in and to the Submission, after they exercise the option described herein, and you hereby constitute and appoint the GCI Parties, and any of them, as your agent and attorney in fact, with full power of substitution, to execute and deliver such assignments, documents and instruments as you may fail or refuse to execute and deliver, this power and agency being coupled with an interest in being irrevocable.
- 8. Representations and Warranties.
- 8.1. Mutual Representations and Warranties. You represent and warrant to GCI and GCI represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under this TOS, (ii) the execution and performance of your or its obligations under this TOS does not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) this TOS is a legal, valid and binding obligation of the party entering into this TOS, enforceable in accordance with its terms and conditions.
- 8.2. By You. You represent and warrant to GCI that, in your use of the SHOUT! Custom Case Service, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or violate any other legal right of any third party, and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to GCI that: (i) there are no claims, demands or any form of litigation pending, or to the best of your knowledge, threatened with respect to any of your Content; (ii) GCI will not be required to make any payments to any third party in connection with its use of your Content, except for the expenses that GCI incurs in providing the SHOUT! Custom Case Service; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Content will not cause injury to any third party; and (iv) your Content does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
- 9. Disclaimers and Exclusions: DISCLAIMER OF WARRANTIES. GCI PROVIDES THE WEBSITE AND SHOUT! CUSTOM CASE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. GCI DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, SHOUT! CUSTOM CASE SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. GCI MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
- 10. Limitation of Liability: LIMITATION OF LIABILITY. GCI WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SHOUT! CUSTOM CASE SERVICE OR THIS TOS, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A BREACH OF A PARTY’S REPRESENTATIONS AND WARRANTIES UNDER THIS TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THIS TOS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS TOS EXCEED THE GREATER OF (i) THE AMOUNT PAID BY GCI TO YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.
- 11. Indemnification: You will indemnify and hold GCI and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the “Parties”) harmless from any damage, loss, or expense (including without limitation, attorneys’ fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought against any of the Parties alleging that you have breached any provision of this TOS through any act or omission. If you have to indemnify GCI under this Section, GCI will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without GCI’s express written permission.
- 12. Termination.
- 12.1. Termination. In its sole discretion, with or without notice to you, GCI may: (i) suspend, limit your access to or terminate your use of the Website and/or the SHOUT! Custom Case Service; (ii) suspend, limit your access to or terminate your account; (iii) remove any of your Content from GCI’s servers and directories; and (iv) prohibit you from using the SHOUT! Custom Case Service.
- 12.2. Survival. Notwithstanding Section 12.1 above, this TOS will survive indefinitely unless and until GCI chooses to terminate this TOS.
- 12.3. Effect of Termination. If you or GCI terminates your use of the Website or the SHOUT! Custom Case Service, GCI may delete any Content or other materials relating to your use of the SHOUT! Custom Case Service on GCI’s servers or otherwise in its possession and GCI will have no liability to you or any third party for doing so.
- 13. Notice: All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to GCI, you must use the following addresses: 6485 Shiloh Road, Bldg. B #100, Alpharetta, Georgia 30005, support@Cellairis.com. If GCI provides notice to you, GCI will use the contact information provided by you to GCI. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy this requirement.
- 14. Dispute Resolution: All disputes arising out of, relating to or connected with these TOS or your use of any part of the SHOUT! Custom Case Service or a SHOUT! Card will be exclusively resolved under confidential binding arbitration held in Fulton County, Georgia before and in accordance with the Rules of the American Arbitration Association, by a sole arbitrator applying Georgia law (without regard for conflicts of law principles). The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. Any action to enforce an arbitrator’s award will be brought in a federal or state court located in Fulton County, Georgia. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and Georgia State courts in Fulton County. Notwithstanding anything to the contrary in this Section 14, GCI may seek equitable relief, including, without limitation, injunctive relief and specific performance, without the requirement of posting a bond or other security or proving money damages are insufficient, from a court of competent jurisdiction.
- 15. Miscellaneous: These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of Georgia without reference to conflict of law principles. This TOS is not assignable or transferable by you without the prior written consent of GCI. This TOS (including all of the policies and other Agreements described in this TOS, which are incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under this TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and GCI are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this TOS. The invalidity or unenforceability of any provision of this TOS will not affect the validity or enforceability of any other provision of this TOS, all of which will remain in full force and effect.