IMPORTANT READ CAREFULLY: PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE COMPLETING THE PROCESS OF CREATING YOUR MSTORE. THESE TERMS AND CONDITIONS AND THE TERMS AND CONDITIONS FOR THE MSTORE PLAN SELECTED BY YOU (COLLECTIVELY, THIS “AGREEMENT”) IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND XINGTONE, INC. (“XINGTONE”). BY COMPLETING THE MSTORE REGISTRATION PROCESS OR OTHERWISE POSTING CONTENT (E.G., MUSIC CLIPS, IMAGES, VIDEO CLIPS, ETC.) ON THE XINGTONE WEBSITE, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK ON THE BUTTON BELOW ACCEPTING THIS AGREEMENT.
XINGTONE RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO CHANGE, MODIFY, ADD OR REMOVE PORTIONS OF THIS AGREEMENT AND/OR YOUR MSTORE SELECTED PLAN AT ANY TIME. IT IS YOUR RESPONSIBILITY TO CHECK THE TERMS IN THIS AGREEMENT AND YOUR MSTORE SELECTED PLAN PERIODICALLY FOR CHANGES. FOR CHANGES THAT XINGTONE BELIEVES ARE MATERIAL CHANGES, XINGTONE WILL SEND AN EMAIL TO YOU SUMMARIZING THE CHANGE. IF YOU DO NOT AGREE WITH THE CHANGE, YOU MAY TERMINATE THIS AGREEMENT BY WRITING TO XINGTONE. YOUR CONTINUED USE OF YOUR MSTORE FOLLOWING THE POSTING OF CHANGES TO THIS AGREEMENT OR YOUR MSTORE SELECTED PLAN WILL MEAN THAT YOU ACCEPT AND AGREE TO THE CHANGES.
1. DEFINITIONS.
The term “Content” means any content provided by You, including without limitation audio content (e.g., music), images and videos for inclusion on a Mobile Content Store.
The term “Mobile Content” means a “true-tone” ringtone created by Xingtone from audio Content and modifications to other Content created by Xingtone, all for posting or inclusion on Mobile Content Stores.
The term “Mobile Content Store” means any Internet portal, web page or website hosted by Xingtone that is accessible through the Internet through which customers may listen to and purchase Your Mobile Content. The term Mobile Content Store includes Your mStore and other Mobile Content Stores that include Your Mobile Content as described in Section 4.8 (Other Mobile Content Stores).
The term “Your mStore” means the Mobile Content Store that is framed by Your Frame (as defined below).
2. MOBILE CONTENT STORES.
2.1 Domain Name/URL for Mobile Content Stores. Xingtone will host and maintain Mobile Content Stores at the URL “yourname.mstore.xingtone.com”, other than Your Frame which is hosted by You. You may create link on Your website to such URL. You must register Your own URL for Your website.
2.2 Your Frame. Xingtone will provide to You the ability to download extractable HTML code for a “frame” on Your website. You are responsible for customizing the frame to give it the look and feel of Your website. Once this customization is completed, the frame will be used to frame each page of Your mStore (“Your Frame”) at the URL “yourname.mstore.xingtone.com” on Your website. You are responsible for the contents of Your Frame and the look and feel of Your Frame on Your website. Your Frame is subject to Xingtone’s reasonable approval prior to launch of Your mStore.
2.3 Required Elements of Your Frame. Your Frame must include (i) the slogan “Powered by Xingtone” or similar graphical images and slogans, determined by Xingtone, (ii) a link to the Xingtone authorized carriers and wireless devices and (iii) a link to the Xingtone privacy policy and a link to the Xingtone terms of use applicable to visitors to Your mStore. Xingtone will host the privacy policy and terms of use. Such slogan(s) and links will be placed within Your Frame above the fold in a conspicuous manner determined by Xingtone. You will not remove or alter such slogan(s) or links or the placement thereof on Your Frame. If You breach the foregoing obligation, Xingtone may disable Your mStore. Xingtone may, upon email notice to You, make reasonable modifications to the foregoing mandatory elements of Your Frame.
2.4 Cross-Links. In order to achieve traffic to Your mStore, You must include a reasonably prominent link to Your mStore on Your website and You must otherwise promote Your mStore. If You do not include such a link on Your website or otherwise promote Your mStore, Xingtone may cease making Your mStore and Your Mobile Content available via the Internet. Your mStore will contain a link, displayed with reasonable prominence, to the Xingtone website at www.xingtone.com or such other website specified by Xingtone (the “Xingtone Site”). Xingtone may, but has no obligation to, provide a link from the Xingtone Site to Your website and/or Your mStore.
2.5 Hosting. Xingtone will host Your Mobile Content on the Mobile Content Stores and maintain the Mobile Content Stores in the same manner as Xingtone hosts and maintains other content for other mobile content stores.
2.6 Fulfillment. Except as provided herein, Xingtone will provide all billing, customer service, and transaction fulfillment in connection with the Mobile Content sold on or through the Mobile Content Stores. Delivery of purchased Mobile Content will generally be initiated by a text message or other message sent by Xingtone to the customer ordering the Mobile Content. All of Xingtone’s rules, policies and operating procedures, as the same may be changed from time to time by Xingtone, shall apply to customers’ purchase of Mobile Content from the Mobile Content Stores. Customers must receive mobile phone services from a carrier approved by Xingtone and must have a cell phone approved by Xingtone in order to receive Mobile Content from the Mobile Content Stores. The list of approved carriers and cell phones are set forth on Xingtone’s website and must also be included on Your mStore. Xingtone may change and update such lists from time to time as posted on the Xingtone Site and/or Your mStore.
2.7 mStore Plan Descriptions. You will select an mStore plan from the plans offered by Xingtone (“Your mStore Selected Plan”). A current description of each mStore plan can be found on the Xingtone Site, including (i) the amount of Mobile Content You may include on Your mStore, (ii) the applicable hosting fee payable by You to Xingtone, (iii) the revenue sharing terms as more particularly described below, and (iv) the maximum number of free deliveries of Your Mobile Content from Your mStore that Your customers may make per month and the fees due Xingtone if such number is exceeded. The terms of Your mStore Selected Plan as described on the Xingtone Site are incorporated into this Agreement by this reference. Xingtone may change the terms of the Xingtone plans from time to time.
2.8 Advertising Programs. Xingtone may participate in the Google AdSense Program or successor program and in similar programs with third parties for the publication of Google or other text and image ads on the Xingtone hosted portions of Your mStore (“Ad Programs”).
3. MOBILE CONTENT.
3.1 Selection and Delivery of Mobile Content. You have the discretion to select the Mobile Content to be offered through Mobile Content Stores. You will post Your Content at the Xingtone website in accordance with Xingtone’s then-current specifications and requirements. Each posting of Content must include the then-current information required by Xingtone, including without limitation (i) information about the artist, (ii) the title for each piece of Content, (iii) graphical elements for the Mobile Content listing on the Mobile Content Stores (e.g. logos, album covers, images, etc) preferably in Photoshop format (.psd files) and (iv) any other information requested by Xingtone about the Content.
3.2 Rights. As to any Content provided by You to Xingtone to create Mobile Content, You will, at Your expense, obtain, procure and pay for the Rights to modify the Content to create Mobile Content and to reproduce, offer, sell, distribute, transmit and deliver such Mobile Content to customers via the Mobile Content Stores, including the right to allow Xingtone to do each of the foregoing. “Rights” means and is intended to be construed broadly to include any and all rights, permissions, clearances, licenses, releases, consents and approvals that are necessary for You and for Xingtone (i) to modify any Content (including without limitation sound recordings and musical works) to create Mobile Content, (ii) to reproduce, distribute and transmit Mobile Content to customers, (iii) to allow customers to listen to Mobile Content during visits to the Mobile Content Stores and (iv) to allow customers to play the Mobile Content on the customer’s wireless devices as a ringtone, including without limitation all master use rights, rights, permissions, licenses, releases, consents, approvals and master and publishing rights from artists, labels, publishers, permission rights organizations (PROs) and licensing societies (e.g., ASCAP and BMI), as applicable.
3.3 Performing Rights Organizations (PROs). If You are a member of a performing rights organization (PRO) as specified at the end of this Agreement, then Xingtone will withhold from Your Account (as defined below) the fees due the PRO and Xingtone will pay Your PRO the fees due the PRO. If You are not a member of a PRO, then Xingtone will not withhold such payments and will not pay the PRO. You represent that the information provided by You to Xingtone is complete and accurate regarding whether You are a member of a PRO.
3.4 Restricted Mobile Content. You will not post any Content for purposes of Xingtone creating Mobile Content if such Content or the modification, reproduction, hosting, distribution, performance and transmission of the Mobile Content will violate any law or any Rights of any third party, including, without limitation, contractual rights, copyrights, trademark rights and/or other intellectual property, personal, publicity or privacy rights. Xingtone shall have the right, in its discretion, to reject any Content or Mobile Content that is objectionable to Xingtone (including without limitation any Content or Mobile Content that violates any law or any rights of any third party, is provided in breach of this Agreement or that is unlawful, harassing, vulgar, harmful, abusive, obscene, pornographic, indecent, threatening, libelous, slanderous, hateful, discriminatory, defamatory, false, misleading or otherwise objectionable). You shall not post any Content which is objectionable as described above. Xingtone shall have the right to review, play, listen or perform all Content and Mobile Content to determine if it is otherwise objectionable, but is under no obligation to do so. Xingtone shall have the right to cease displaying and offering any such Mobile Content on Mobile Content Stores.
3.5 Your Removal of Mobile Content. It is Your responsibility to remove Mobile Content from Your mStore if that Mobile Content is objectionable or has a status change such that it is no longer legal to sell such Mobile Content or You lose such rights. You must remove any such of Your Mobile Content on Your own and cannot rely on notifications to Xingtone to remove such Mobile Content. In addition, You shall send written notice to Xingtone of such fact.
3.6 Parental Advisory Labeling. The parties shall cooperate in implementing any applicable parental advisory labeling as requested by either party in writing.
4. MOBILE CONTENT PRICING; COMPENSATION AND PAYMENT TERMS.
4.1 Mobile Content Prices on Your mStore and Xingtone’s Revenue Share. Subject to the terms in this Agreement, You have the discretion to set the retail price paid by customers for the Mobile Content listed on Your mStore. All prices for Mobile Content must be in U.S. Dollars. You agree to pay Xingtone the greater of $0.50 or the percentage set forth in Your Selected Plan for each transaction involving the sale of Your Mobile Content from Your mStore, other than transactions involving free Mobile Content delivered to customers as described in Section 4.2 (Free Mobile Content and Fees due Xingtone).
4.2 Free Mobile Content and Fees due Xingtone. Subject to the terms in this Agreement, You may elect to make some Mobile Content on Your mStore available to customers free of charge for the purpose of promoting Your Mobile Content. The number of free deliveries of Mobile Content from Your mStore may be limited, as described in Your mStore Selected Plan. If the number of such free deliveries exceeds such limit, then You agree to pay Xingtone a fee for such excess, as described in Your mStore Selected Plan. If Xingtone concludes that You have sold any such free Mobile Content, then Xingtone may disable this feature in Your mStore.
4.3 Working with an Aggregator. If You are working with a Content aggregator (e.g., The Orchard, IODA, IRIS, etc.) that also has a relationship with Xingtone (an “Aggregator”), then notwithstanding the terms in Section 4.3 (Collection of Fees and Your Account) (i) Xingtone will not deposit into Your Account any fees or amounts, (ii) Xingtone will not owe You any fees, royalties or amounts under this Agreement for customers that order Your Mobile Content from Your mStore and (iii) Xingtone will pay to the Aggregator the application revenue sharing amount from the amounts paid by such customers as described in Xingtone’s agreement with such Aggregator and Xingtone shall be entitled to retain the balance. In such event, the Aggregator will be responsible for paying You for Your Mobile Content ordered from Your mStore, subject to the terms in Your agreement with the Aggregator. In the event that Xingtone’s contractual relationship with the Aggregator terminates such that Xingtone no longer pays the Aggregator a share of the price for Your Mobile Content ordered from Your mStore, then the terms in this paragraph shall no longer apply.
4.4 Timing of Charge to Customers. Xingtone may elect not to charge customers’ credit cards immediately upon delivery of Mobile Content from Your mStore to customers. Xingtone may initiate a method to charge customers’ credit cards for Mobile Content delivered from Your mStore once a month. If Xingtone delays the collection of prices from customers, Xingtone will also delay the deposit of revenues into Your Account or payment to Your Aggregator until such time as such customer payments have been successfully charged on the customers’ credit cards and received by Xingtone.
4.5 Refunds and Customer Credits for Mobile Content. If a customer experiences a problem receiving Mobile Content from Your mStore, Xingtone will redeliver the Mobile Content without the customer paying any additional amounts, excluding text messaging charges that may or may not be applicable for a particular customer. In such event, Xingtone will not owe You any additional fees for the second or any subsequent re-delivery to such customer experiencing such problem. If Xingtone refunds the price paid by a customer for Mobile Content ordered from Your mStore after Xingtone as deposited into Your Account the amounts specified above for such Mobile Content, then Xingtone will (i) reduce Your Account balance by the amount deposited into Your Account for such Mobile Content, (ii) effectuate the refund to the customer and (iii) not be required to deposit into Your Account any amounts for such Mobile Content. If Your mStore experiences less than a 5% return rate for Mobile Content offered on Your mStore, Xingtone will pay all of the costs of transaction processing of refunds and the re-delivery of the Mobile Content. If Your mStore exceed this 5% threshold, Xingtone may charge Your Account $0.40 for each refunded transaction originating from Mobile Content offered on Your mStore.
4.6 Payments to Xingtone. You hereby authorize Xingtone to withhold from amounts to be deposited into Your Account the fees and other amounts payable to Xingtone under this Agreement. If the amounts received from customers are not sufficient to pay Xingtone the fees and amounts payable to Xingtone, then You authorize Xingtone to automatically charge the amounts owed Xingtone to Your credit card. If the automatic credit card transaction is not successful for any reason, You hereby authorize Xingtone to retain from amounts otherwise to be deposited into Your Account the amount of the fees payable by You to Xingtone. If You fail to pay Xingtone amounts due under this Agreement, then Xingtone may cease hosting Your mStore and may cease making Your Mobile Content available to potential customers. This Section shall survive the termination of this Agreement for amounts owed to Xingtone arising out of activities occurring prior to such termination. Unless Xingtone receives written notification from You, Xingtone may, after the termination of this Agreement, continue to offer and sell Your Mobile Content on Mobile Content Stores to recover any hosting fees or other amounts due under this Agreement.
4.7 Hosting Fees Due Xingtone. You agree to pay Xingtone the monthly hosting fees specified for Your mStore Selected Program. If You have selected and paid for the annual hosting option (if available) and if Xingtone terminates this Agreement without cause prior to the expiration of the applicable annual hosting period, then Xingtone will refund to You a pro-rata portion of the annual hosting fee paid based on the number of months for which Xingtone hosted Your mStore. Xingtone will not have to refund any portion of the Hosting Fee if Your mStore is down or unavailable; unless and only if Your mStore is not available for more than 48 consecutive hours or for more than 96 total hours in a month. In which case, Xingtone will refund 25% of the hosting fee for that particular month.
4.8 Reports; Security. Xingtone will make available to You certain on-line electronic information that Xingtone makes generally available to other artists and participants in Xingtone’s mStore program to enable You to monitor the activity on Your mStore and in Your Account. You may access such information using Your user ID and password. You are solely responsible for maintaining the confidentiality and security of Your user ID and password. You should not reveal Your user ID and password to anyone else. You are entirely responsible for all activities that occur on or through Your user ID and password, and You agree to immediately notify Xingtone of any unauthorized use of Your user ID and password or any other breach of security. Xingtone shall not be responsible for any losses arising out of the unauthorized use of Your user ID and password.
5. PRIVACY
Xingtone will collect certain personal information from You in connection with the creation of Your mStore. Such information is subject to the Xingtone then-current privacy policy as set forth on the Xingtone Site.
6. PROPRIETARY RIGHTS AND LICENSES.
6.1 License to Mobile Content. You hereby grant to Xingtone a non-exclusive, worldwide license (i) to modify the Content provided by You to create Mobile Content, (ii) to reproduce and store the Mobile Content and play, perform and display the Mobile Content when a potential customer visits Mobile Content Stores and desires to listen, play or view the Mobile Content prior to the customer’s purchase of the Mobile Content, (iii) transmit and distribute the Mobile Content to customers via Mobile Content Stores, (iv) sublicense to each customer the right to install a copy of the Mobile Content on the customer’s wireless device and to play, display and perform such Mobile Content on such device and (v) distribute Your Mobile Content to third parties authorized by You to download, reproduce, display, distribute, perform and/or display Your Mobile Content. Other than as technically required in connection with (a) encoding and creating Mobile Content from Content provided by You and (b) to enable the Mobile Content to be deliverable from Mobile Content Stores, Xingtone shall not edit or alter the master recordings or artwork of any Content provided by You. Xingtone may have to shorten Content clips that You provide to fit on customers’ cell phones.
6.2 License to Promote Mobile Content. To enable Xingtone to host and promote Your mStore and Your Mobile Content, You hereby grant Xingtone a nonexclusive, worldwide license to reproduce, use and display Your name, likeness, logos, graphics, branding, trademarks and other marks used by You in connection with the promotion and marketing of Your Content (collectively, “Your Brands”) solely in connection with Xingtone’s hosting and promoting Your mStore and Your Mobile Content, including without limitation use and display on the Xingtone Site and Xingtone’s standard web-based marketing for mobile content generally. If You authorize Xingtone to display Your Mobile Content on other Mobile Content Stores, then the foregoing license includes the right to promote such other Mobile Content Stores. All such uses of Your Brands by Xingtone shall be in accordance with the guidelines provided by You to Xingtone in writing as to the correct usage and specifications for Your Brands. If You notify Xingtone of any incorrect usage of Your Brands, Xingtone will correct such usage as directed by You.
6.3 Ownership of Mobile Content and Brands. Other than the rights expressly set forth in this Agreement, You are and shall remain the owner of all right, title and interest in and to Your Content and Your Brands and all intellectual property rights in each of the foregoing. All benefits, goodwill and rights from the use of Your Brands by Xingtone shall inure to You. This Section shall survive the termination of this Agreement.
6.4 Ownership of mStore Technology. Xingtone is and shall continue to be the owner of all right, title and interest in and to (i) all software, technology, inventions, innovations used by Xingtone in performing its obligations and exercising its rights under this Agreement, including without limitation the software, technology, inventions and innovations related to the construction, hosting and operation of the Mobile Content Stores and the delivery of Mobile Content from Mobile Content Stores to wireless devices and (ii) all intellectual property rights in each of the foregoing. This Section shall survive the termination of this Agreement.
7. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
7.1 Representations and Warranties. You represent and warrant that (i) You have the right to enter into this Agreement, to perform Your obligations hereunder in the manner contemplated by this Agreement and to grant to Xingtone the licenses granted to Xingtone in this Agreement; (ii) this Agreement shall not conflict with any other agreement entered into by You; (iii) You own all right, title and interest in and to Your Brands or have the necessary rights and licenses to Your Brands; (iv) You either own all right title and interest in and to the Content or You have acquired, obtained and cleared all necessary Rights to such Content and the Mobile Content; and (v) You have paid or will pay all fees and royalties owed to third parties for the rights in the Brands and the Rights in the Content and Mobile Content. This Section shall survive the termination of this Agreement.
7.2 Disclaimer of Warranty. XINGTONE DOES NOT MAKE, AND XINGTONE HEREBY SPECIFICALLY DISCLAIMS, ANY AND ALL REPRESENTATIONS AND/OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE MOBILE CONTENT STORES, THE SERVICES PROVIDED BY XINGTONE UNDER THIS AGREEMENT RELATED TO THE MOBILE CONTENT STORES OR THE MOBILE CONTENT, ANY PRODUCT, SERVICE OR INFORMATION THEREON OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. XINGTONE DOES NOT WARRANT THAT THE XINGTONE SITE OR THE MOBILE CONTENT STORES WILL OPERATE UNINTERRUPTED OR ERROR-FREE. This Section shall survive the termination of this Agreement.
8. INDEMNIFICATION.
You hereby agree to indemnify and hold harmless Xingtone, its successors and assigns and each of their customers, officers, employees directors and partners (each, an “Indemnified Party”) from and against any and all claims, suits, demands, causes of action, damages, settlement amounts, costs, expenses, penalties, losses and liabilities (whether under a theory of negligence, strict liability, contract or otherwise) incurred or to be incurred by an Indemnified Party (including but not limited to costs of investigation and reasonable attorneys’ and other third party fees and, to the extent permitted by law, fines, penalties and forfeitures in connection with any proceedings against the indemnified party) arising out of or resulting from (i) a breach of a representation or warranty by You or (ii) the modification or reproduction of any Content or Brands supplied by You or the reproduction, distribution, display, performance or transmission of any Mobile Content or the Brands causes a misappropriation of any trade secret or infringement of any patent, copyright, trademark or other property, privacy, or publicity rights of any third parties arising in any jurisdiction throughout the world. Each Indemnified Party will give notice to the You after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought. The failure of any Indemnified Party to give such notice shall not relieve You of Your obligations under this Section. This Section shall survive the termination of this Agreement.
9. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES WILL XINGTONE BE LIABLE TO THE YOU, UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY AND WHETHER OR NOT XINGTONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, NON-COMPENSATORY OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OR ANY LIMITED REMEDY IN THIS AGREEMENT. IN NO EVENT SHALL XINGTONE’S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY XINGTONE TO YOU DURING THE 12-MONTH PERIOD PRECEDING THE DATE THAT THE CAUSE OF ACTION AROSE. This Section shall survive the termination of this Agreement.
10. TERM AND TERMINATION.
This Agreement shall commence on the date that You accept the terms in this Agreement. Either party may terminate this Agreement for any reason (or no reason) upon thirty (30) days prior written notice. Xingtone may provide such notice to You via email to the email address provided by You during Your registration process. Upon the expiration or termination of this Agreement for any reason, (i) all licenses granted in this Agreement shall terminate and Xingtone shall cease hosting and making available to third parties Your mStore and Your Mobile Content on other Mobile Content Stores and (ii) all amounts owed to Xingtone will be immediately due and payable and Xingtone may collect such amounts as provided in this Agreement.
11. GOVERNING LAW AND FORUM.
This Agreement, any dispute arising under or which is related to this Agreement (whether in contract, tort or otherwise), and the validity, performance and interpretation of this Agreement shall be governed by and construed in all respects under, the laws of the United States of America and the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement shall be the state and U.S. federal courts in Los Angeles, California. Both parties consent to the jurisdiction and venue of such courts. This Section shall survive the termination of this Agreement.
12. GENERAL.
This Agreement may be amended by Xingtone as provided above. This Agreement may not otherwise be amended except in a writing executed by authorized representatives of Xingtone and You. This Agreement and the rights and/or obligations hereunder are not transferable or assignable by You without the prior written consent of Xingtone. Xingtone may assign this Agreement to a third party. This Agreement contains the final and entire agreement of the parties on the subject matter herein and supersedes all previous and contemporaneous verbal or written negotiations, discussions, representations and agreements on the subject matter herein. If any provision of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent, the remainder of the Agreement, or the application of such provision in other circumstances, shall not be affected thereby, and each provision shall be valid and enforced to the fullest extent permitted by law. Xingtone will not be liable for nonperformance or delays, under any circumstances, which occur due to any causes beyond its reasonable control, including without limitation acts of God, wars, riots, strikes, fires, storms, floods, earthquakes, shortages of labor or materials, labor disputes, the failure of any third party Internet or phone service provider, transportation embargoes, terrorism and government action. Each party shall comply with all applicable laws in conducting any activities relating to the subject matter of this Agreement. No term in this Agreement will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed by such party. Any such waiver or consent will not operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach. This Section shall survive the termination of this Agreement.