Terms & Conditions

These Terms & Conditions ("Agreement") govern use of the Shadylizard.com website ("Website") and the services related to such website. The services offered by Media Breakaway, LLC ("Media Breakaway") include the Website and any other services, features, content or applications offered from time to time by Media Breakaway in connection with the Website and its affiliated sites, interactive computer service and online properties (collectively, the "Services"). By using the Services you agree to be bound by this Agreement. You must be at least thirteen (13) years old to use the Services. By providing any information to Media Breakaway through the Website or your mobile phone, you represent to Media Breakaway that you are thirteen (13) years of age or older. If you are between thirteen (13) and seventeen (17) years old, you represent that you have received parental permission and consent to use the Services, including, but not limited to completing the registration process. Florida residents must be at least eighteen (18) years old to use the Services.

This Agreement also incorporates by reference the terms and conditions of the Media Breakaway Privacy Policy. This Agreement may be amended from time to time in Media Breakaway's discretion and pursuant to applicable law. Amended versions of this Agreement will be effective upon posting on the Website. YOU AGREE TO REVIEW THIS AGREEMENT FROM TIME TO TIME AND AGREE THAT ANY SUBSEQUENT ACCESS TO OR USE BY YOU OF THE SERVICES FOLLOWING CHANGES TO THE AGREEMENT SHALL CONSTITUTE YOUR ACCEPTANCE OF ALL SUCH CHANGES. IF YOU DO NOT AGREE WITH OR CANNOT COMPLY WITH THE TERMS OF THIS AGREEMENT YOU MUST EXIT THE WEBSITE IMMEDIATELY AND MUST NOT PROVIDE ANY INFORMATION TO MEDIA BREAKAWAY OR ANY LINKED THIRD PARTY OR USE ANY OF THE SERVICES OR PRODUCTS OFFERED OR PROVIDED ON THE WEBSITE.

Website Service and Billing Information

Additional carrier charges may apply. Text messaging capability is required for all services. Web-enabled handsets are required to download multimedia content (e.g. ringtones, wallpapers, games, etc.) from Service Providers (defined below).

By entering your cell phone number on the Website, you consent to the provision of your information to one of our service providers ("Service Providers"), chosen at our discretion, for fulfillment of the service. The Service Provider will then send a text message containing a PIN code to your phone number, and you also consent to the receipt of this message. Service Provider terms and conditions, including offer details, will be posted on the PIN code submit page to which you will be directed after you have submitted your cell phone number. If your phone or carrier does not support multimedia content, including all Alltel, Nextel and Boost customers, the PIN code submit page will offer you a subscription to receive text services for a monthly fee instead of multimedia content. By entering the PIN code on the PIN submit page, you acknowledge you are subscribing to the service offered by the Service Provider and that you will be billed by the Service Provider. Unless noted otherwise in the Service Provider terms and conditions, AT&T users will be billed monthly on their service bill at $19.99, Sprint, T-Mobile, Verizon Wireless, Alltel, Cellular One, Nextel, and Virgin Mobile users are billed monthly on their mobile service bill at $9.99 per month and Boost Mobile users will have $6.99 per month deducted from their prepaid balance on their mobile service bill. You may cancel at any time by replying with the word STOP in a text message.

Cancellation of the Services

Any message you may receive as a result of submitting your cell phone number on the Website comes from the applicable Service Provider and NOT from the Website. If you want to stop receiving messages from your Service Provider, you must cancel your subscription. You may do this by either texting STOP in response to the initial confirmation message sent to you or by contacting your Service Provider. If you no longer have the initial text message, here is a representative list of the different Service Providers:

Termination by Media Breakaway

You acknowledge and agree that Media Breakaway, in its sole discretion, may suspend, discontinue or refuse any and all current and future access to or use of any portion of the Services at any time without notice to you in the event Media Breakaway reasonably believes that you have breached this Agreement. You acknowledge and agree that Media Breakaway shall have no liability or responsibility to you for termination, suspension or discontinuation of your access or use in the event you breach this Agreement.

Problems Receiving Ringtones

If you have any difficulties with any service to which you subscribe or any content download from such a service, please contact your applicable Service Provider.

Refund Policy

Any fees charged to you are billed by your applicable Service Provider, and NOT from this Website. Please consult the applicable Service Provider terms and conditions for the refund policy which may apply to you.

Links

The Website contains hypertext links to the web sites of Service Providers and other third parties (collectively, "Third Parties"). Such links and are provided for your convenience and reference only and the inclusion of a link to a web site does not imply any endorsement of the services or the site, its contents, or its sponsoring organization. Media Breakaway does not control these Third Parties and is not responsible for the privacy practices, terms and conditions, or the content of such other Third Party web sites. If you decide to access any Third Party website, you do so entirely at your own risk, and you agree to be subject to any such Third Party's terms and conditions and privacy policies. Media Breakaway does not operate or control in any respect any information, software, products or services available on such Third Party web sites and is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to the information contained in such sites.

You are solely responsible for any dealings with Third Parties (including advertisers) listed in or accessible via the Services, including the delivery of and payment for goods and services.

Proprietary Rights

The content available on the Website, including without limitation, text, information, documents, scripts, graphics, photos, organization, design, compilation, look and feel, illustrations, artwork, video, music, images, software, sounds, games, interactive features and all trademarks, service marks and logos or other works or materials (collectively, "Content") are owned by or licensed to Media Breakaway and/or a Third Party provider(s) and are protected under copyright, trademark and other intellectual property and proprietary rights laws. You must keep intact, and may not remove or alter any Content or any copyright or other proprietary notices available via the Website, and you may not display or reproduce the Content other than with the prior written consent of Media Breakaway.

Forms, Registration and Passwords

If any of the Services require you to open an account, register or provide certain information, you agree to complete the account initiation, registration or other process by providing Media Breakaway with current, complete and accurate information as requested by any forms. You acknowledge and agree that any login, identifier, PIN or password issued in connection with the Services (each, a "Password") is confidential information. You must maintain the confidentiality of any Password, and you may not disclose such Password to any other person or entity or permit any other person or entity to access the Services using such Password. You agree to notify Media Breakaway immediately of any unauthorized use of any Password or any other breach of security of which you are aware. You may not use any Password that is not issued directly to you or approved by Media Breakaway.

Prohibited Activities

You may not use the Services in a manner inconsistent with any and all applicable laws, rules and regulations. The Services are for your personal and non-commercial use only. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, Content, products or services obtained from the Services. Content owned by Media Breakaway's licensors may be subject to additional restrictions.

Warranty Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MEDIA BREAKAWAY PROVIDES THE WEBSITE, SERVICES AND CONTENT, STRICTLY ON AN "AS IS" BASIS, FOR YOUR USE AT YOUR OWN RISK, AND HEREBY EXPRESSLY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MEDIA BREAKAWAY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES, CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (i) ANY ERRORS, MISTAKES, OR INACCURACIES, (ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (v) ANY BUGS, VIRUSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES, AND/OR (vi) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. MEDIA BREAKAWAY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND MEDIA BREAKAWAY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES.

Limitation on Liability

IN NO EVENT SHALL MEDIA BREAKAWAY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF MEDIA BREAKAWAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MEDIA BREAKAWAY'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE LESSER OF TEN U.S. DOLLARS OR AMOUNT PAID, IF ANY, BY YOU TO MEDIA BREAKAWAY FOR THE SERVICES GIVING RISE TO THE ACTION. THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE WEBSITE, THE CONTENT, AND ANY SERVICES OR INFORMATION OFFERED THROUGH THE WEBSITE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIVE REMEDY SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES AND/OR THE EXCLUSION OF CERTAIN REMEDIES, IN SUCH JURISDICTIONS, YOU AGREE THAT THE LIABILITY OF MEDIA BREAKAWAY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.

Disputes

The Services are hosted in the United States. Any dispute hereunder shall be governed by the laws of the State of Colorado, USA, without regard to conflict of law provisions. You agree to exclusive personal jurisdiction and venue in the state and federal courts of the United States located in the State of Colorado, City of Denver and waive any objection based on inconvenient forum. You agree that: (i) the Website and the Services shall be deemed solely based in Colorado; and (ii) the Website shall be deemed a passive website that does not give rise to personal jurisdiction over Media Breakaway, either specific or general, in jurisdictions other than Colorado. You further agree that service of any process, summons, notice or document by U.S. registered mail to your address shall be effective service of process for any action, suit or proceeding in the state and federal courts located in the State of Colorado, with respect to any matters to which it has submitted to jurisdiction as set forth above.

Indemnity

You agree to indemnify and hold Media Breakaway, its parent, subsidiaries, and affiliates, and their respective members, officers, agents, partners and employees, harmless from any loss, liability, claim or demand, including reasonable attorneys' fees, due to or arising out of (i) your acts or omissions concerning the Services and the Website; (ii) any breach of this Agreement including any representations and warranties made herein; and (iii) your violation of any third party right including without limitation any claim of defamation, invasion of privacy, right of publicity, unfair competition, infringement of a third person's intellectual property or other proprietary rights relating to your use of the Services or Website. Media Breakaway reserves the right to participate in such defense and settlement with its own counsel at its own expense. In no event shall you enter into any settlement that purports to bind Media Breakaway without Media Breakaway's prior written consent. Media Breakaway shall provide you reasonably prompt notice of any such claim and shall reasonably cooperate with you in the defense and/or settlement of such claim at your sole expense.

Trademarks

Shadylizard.com, the Media Breakaway logo, and other marks, logos and titles are registered and/or common law trade names, trademarks or service marks (collectively "Marks") of Media Breakaway or its licensors. All other products, company names or other trademarks or service marks appearing on the Website are the property of their respective owners. Nothing contained in the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Mark displayed on the Services without prior written permission of Media Breakaway or the respective owners.

Other

This Agreement constitutes the entire agreement between the parties regarding the use of the Services and the Website and supersedes all prior or contemporaneous communications between the user and Media Breakaway with respect to the Website and the Services. The failure of Media Breakaway to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. If any provision of this Agreement is deemed unlawful, void or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. Any aspect of the Services is void where prohibited by law.

Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.

Survival. Any obligation of the parties relating to limitations on liability and indemnification shall survive termination or expiration of this Agreement.

Interpretation. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either party by reason of its drafting.

A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Please contact us at: legalnotices@mediabreakaway.com with any questions regarding this Agreement.

I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.