ASSENT: By installing the computer files containing this software,
you agree that this Agreement is a legally binding and valid contract,
agree to abide by the intellectual property laws and all of the terms and conditions
of this Agreement, and further agree to take all necessary steps
to ensure that the terms and conditions of this Agreement are not violated by
any person or entity under your control or in your service.
OWNERSHIP OF SOFTWARE: The Licensor and/or its affiliates or
subsidiaries own certain rights (that may exist from time to time in this or
any other jurisdiction, whether foreign or domestic) under patent law, copyright
law, publicity rights law, moral rights law, trade secret law, trademark
law, unfair competition law or other similar protections, (regardless
of whether or not such rights or protections are registered or perfected
and regardless of whether such rights accrue to Licensor directly or by an express
or implied license) (the "Intellectual Property Rights")
in the computer software together with any related documentation (including design,
systems and user) and in other materials for use in connection with the
computer software all as contained in this application when and as installed
from the computer files provided to you by Licensor (collectively, the
"Licensed Works"). ALL INTELLECTUAL PROPERTY RIGHTS IN AND TO THE LICENSED
WORKS ARE AND SHALL REMAIN IN LICENSOR. All rights not expressly licensed
to you in this License Agreement are expressly reserved by Licensor.
NO COMMERCIAL USE: This License Agreement grants you the right
to use the Licensed Works for personal use only. Commercial use of the Licensed
Works or of the work products resulting from their use is not permitted
under this License Agreement.
RESTRICTIONS:
(a) You are expressly prohibited from copying, modifying, merging,
selling, leasing, redistributing, assigning, or transferring in any matter,
the Licensed Works or any portion thereof.
(b) You may make a single copy of the files provided to you related
to the Licensed Works only as required for backup purposes.
(c) You are also expressly prohibited from reverse engineering,
decompiling, translating, disassembling, deciphering, decrypting,
or otherwise attempting to discover the source code of the Licensed
Works as the Licensed Works contain proprietary material of Licensor and/or
other third-party licensors. You may not otherwise modify, alter, adapt,
port, or merge the Licensed Works.
(d) You may not remove, alter, deface, overprint or otherwise
obscure Licensor patent, trademark, service mark, logo or copyright notices.
(e) You agree that the Licensed Works will not be shipped, sent,
transferred or exported into any other country, or used in any
manner prohibited by any government agency or any export laws, restrictions
or regulations.
(f) You may not publish or distribute in any form of electronic
or printed communication the materials within or otherwise related to Licensed
Works, including but not limited to the object code, documentation, help
files, examples, and benchmarks.
g) You may not use the Licensed Works to infringe the rights
of others.
h) You may use the Licensed Works with only one phone number
assigned to a phone you either own or personally control and you will not
attempt to defeat this limitation.
TERM: This Agreement is effective until terminated. You may terminate
this Agreement at any time by uninstalling the Licensed Works and destroying
all copies of the Licensed Works. Upon any termination, you agree
to uninstall the Licensed Works and return or destroy all copies of the Licensed
Works, any accompanying documentation, and all other associated materials.
GOVERNING LAW: This License Agreement shall be governed by the
laws of the State of California and by the laws of the United States, excluding
their conflicts of law principles:
LICENSOR'S WARRANTIES AND DISCLAIMER:
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN A WRITTEN AGREEMENT
BETWEEN LICENSOR AND YOU, THE LICENSED WORKS ARE PROVIDED "AS IS"
WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY THAT
(i) THE LICENSED WORKS WILL MEET YOUR REQUIREMENTS, (ii) THE USE OF THE
LICENSED WORKS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii)
THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE LICENSED WORKS
WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF THE LICENSED WORKS WILL
MEET YOUR EXPECTATIONS, AND/OR (v) ANY ERRORS IN THE LICENSED WORKS WILL
BE CORRECTED. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES OR DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED
WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF CALIFORNIA
LAW IS NOT HELD TO APPLY TO THIS AGREEMENT FOR ANY REASON, THEN IN JURISDICTIONS
WHERE WARRANTIES, GUARANTEES, REPRESENTATIONS, AND/OR CONDITIONS
OF ANY TYPE MAY NOT BE DISCLAIMED, ANY SUCH WARRANTY, GUARANTEE, REPRESENTATION
AND/OR WARRANTY IS: (1) HEREBY LIMITED TO THE PERIOD OF EITHER (A) THIRTY
(30) DAYS FROM THE DATE OF INSTALLING THE FILES CONTAINING THE LICENSED
WORKS OR (B) THE SHORTEST PERIOD ALLOWED BY LAW IN THE APPLICABLE JURISDICTION
IF A THIRTY (30) DAY LIMITATION WOULD BE UNENFORCEABLE; AND (2) LICENSOR'S
SOLE LIABILITY FOR ANY BREACH OF ANY SUCH WARRANTY, GUARANTEE, REPRESENTATION,
AND/OR CONDITION SHALL BE TO PROVIDE YOU WITH A NEW COPY OF THE
LICENSED WORKS.
IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE TO YOU
OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES
OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION,
THOSE RESULTING FROM LOSS OF USE OF ANY MACHINE, COMPUTER OR TELEPHONIC
DEVICE, DATA OR PROFITS, WHETHER OR NOT LICENSOR HAD BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, ON ANY THEORY OF LIABILITY ARISING OUT OF OR
IN CONNECTION WITH THE USE OF THE LICENSED WORKS. SOME JURISDICTIONS PROHIBIT
THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THESE
LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF
ANY LIMITED REMEDY.
YOUR WARRANTIES: You expressly agree and represent that, as to
your use of the Licensed Works with respect to other works such as audio files,
such other works and your use of them will not infringe upon the rights
of any third party under copyright or any other intellectual property
rights such as trademark, patent or publicity and privacy rights. You will
defend and indemnify Licensor against any claims arising out of any breach
of your warranty and representation and in connection therewith Licensor
shall be entitled to retain counsel of its own choice at your expense.
YOUR ASSUMPTION OF RISK: Xingtone intends to protect the privacy of
information that you send to Xingtone and will not share it with others
except in pursuit of its legitimate business interests and except in
response to an order issued by a court of competent jurisdiction. However,
you understand that both the Xingtone software and the use of the Xingtone
website involve the use of computer software and hardware which can be
invaded and attacked in ways which could result in others obtaining
information from Xingtone and without Xingtone's consent. You agree to
assume that risk and to hold Xingtone harmless of and from any claim for
damages, fees, costs or expenses occasioned by such an event.
SEVERABILITY: In the event any provision of this License Agreement
is found to be invalid, illegal or unenforceable, the validity, legality
and enforceability of any of the remaining provisions shall not in
any way be affected or impaired and a valid, legal and enforceable provision
of similar intent and economic impact shall be substituted therefore.
ENTIRE AGREEMENT: This License Agreement sets forth the entire
understanding and agreement between you and Xingtone, LLC supersedes all prior
agreements, whether written or oral, with respect to the Licensed Works, and
may be amended only in a writing signed by both parties.
Xingtone, LLC
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User Agreement