TERMS OF USE AGREEMENT:
Please read carefully. This agreement is a legally binding agreement between you and Smaktones.com By accessing and using this site and the services that Smaktones.com has to offer, you are indicating that you have read this agreement, that you understand it, and that you consent to be bound by all of its terms and conditions. If you do not agree with all of the following terms and conditions, please exit the site.
By completing the registration process and accepting this agreement, you acknowledge that you have read and understood this agreement and agree to be bound by its terms and conditions and that you are at least 13 years of age. If you do not agree to be bound by or cannot comply with any of the terms and conditions of this agreement, do not check the acceptance box below and do not continue the registration process or continue to use the website.
NOTICES:
We reserve the right to change or modify these terms and conditions at any time. Such changes shall take affect immediately upon posting of such changes. Please review terms and conditions periodically. If you do not agree with these terms and conditions your only choice is to cancel your subscriptions or account with Smaktones.com If you donÕt opted out with these changes within 30 dayÕs of the posting of changes you will be deemed to have accepted the agreement, and all other terms of this agreement shall continue in effect
All songs by music and lyrics are solely owned by Smaktones.com and their partners. All trademarks are owned by Smaktones.com and their partners and any use of their likeness must have written permission from Smaktones.com and their partners.
DESCRIPTION AND USE OF SERVICE:
The service is available at Smaktones.com which includes anything on the site, ringtones, wallpaper, games, and graphics. Once registered and any applicable payments have been made you will be permitted to download to compatible wireless telephones and other compatible devices.
All software, designs, text, images, ringtones, and ringtones samples, artwork, games, screensavers, and graphics or other copyrightable elements, and trademarks, service marks and trade names from the website are sole property of Smaktones.com and their business partners, are protected by intellectual property laws, including without limitation, pursuant to U.S. And international copyright and trademark laws. Subject to the terms of any applicable end user agreement applicable for any such materials, Smaktones.com grants you a limited, non exclusive, non transferable, revocable right to download the materials, or, in the case of non downloadable materials, to stream such materials, to you compatible device solely for your own non commercial use. All rights not expressly granted to you are reserved. For the avoidance of doubt, your use of the service and the materials is under license; you will not obtain any ownership interest in any of them through this agreement or otherwise.
You agree not to use, download reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, transmit, broadcast or circulate any material to any third party, without the express prior written consent of Smaktones.com. The source code to the materials contains Smaktones.com and itÕs licensorsÕ confidential and trade secret information, and you shall at all time take reasonable steps to protect the confidentiality of such information. You further agree that you will not disassemble, decompile, reverse engineer the material (except to the extent that this restriction is expressly prohibited by law). You understand and agree that you may not authorize encourage or allow any materials used or obtained by you to be reproduced, modified, displayed, performed, transferred, distributed or otherwise used by any other party, and that you agree that you will take all reasonable steps to prevent any unauthorized reproduction and/or other use of the materials. Any unauthorized or prohibited use may subject the offender to civil liability and criminal prosecution under applicable federal and state laws.
You may not: (1) frame or link to the service or materials except as expressly permitted in writing by Smaktones.com; (2) permit other individuals to use the materials; (3) sell, rent, lease, or otherwise assign any rights to the material or service to any third party; (4) remove any proprietary notices or labels on the material or service; (5) use the material or service in conjunction with any device or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction; (6) use the material or service for any commercial or illegal purpose or to harm minors in any way; (7) use the material or service to invade the privacy of, or obtain personal information about, any service account holder or user, or to obtain a list of service account holders or users; (8) copy, modify, erase or damage any information contained on the Smaktones.com, or any third party servers; (9) use the material or service to violate any legal right of any third party, including any publicity or privacy right, copyright, other intellectual property right, or any contractual, fiduciary or confidentiality obligation or duty, or to take any action that is harassing, libelous, defamatory, abusive, threatening, harmful or otherwise objectionable; (10) use the material or service to post or transmit any unsolicited advertising, campaigning or promotional materials; (11) access or use any password protected, secure or non public areas of the service except as specifically authorized in writing by Smaktones.com ( unauthorized individuals attempting to access these areas of the service may be subject to prosecution); (12) distribute any software viruses or other computer code designed to interfere with the functionality of any computer systems, software or hardware; (13) use any data mining, robots, or similar data gathering, spoofing, or extraction tools in connection with the materials or service; or (14) mislead other subscribers, members or third parties as to your identity or the origin of a message or content.
Please direct any questions concerning the service or any other Smaktone.com customer service representative by email at help@smaktones.com.
PURCHASE AND REGISTRATION:
During the registration process to use the service, you may be requested to provide personal information ( e.g., name, telephone number, e-mail address, country or territory of residence, credit card and billing information), and you agree to provide true, accurate, current and complete information about yourself as prompted by such process. If you open an account and any of your personal information changes (e.g., new credit card number, expiration date, new address, or email address, new phone number, or service, etc.), you must update that information in your account on the website. Smaktones.com will use your personal information in accordance with its privacy policy. Please review our privacy policy before you complete the purchase or registration process or attempt to use or access the service. You agree that you will not allow others to use your member name, password and/or account. You agree to indemnify distributors and/or licensors, as applicable, harmless for any improper use by anyone to whom you given permission to use your member name, password and/or account.
CHARGES AND PAYMENTS:
Payment and Taxes. The price of any services will be the price specified at the time of your purchase. Prices for all service exclude all applicable taxes and telecommunication charges, unless otherwise indicated. The the extent permissible by law, you agree to be responsible for any such applicable taxes and telecommunication charges. By completing the purchase and completing the registration process, you authorize Smaktones.com and your telecommunications carrier, to charge the applicable fees to your designated credit card or directly to your mobile telephone invoice, as selected by you or indicated in the transaction. If you cancel your subscription to Smaktones.com or choose not to use Smaktones.com (in whole or in part) for any reason, Smaktones.com will not refund any fees paid to date, or unused credits. You must be careful when reviewing and entering information during the purchase and registration process. Smaktones.com will not refund any fees paid, or unused credits, nor otherwise be liable to you, in the event that you own a handset that is incompatible with the Smaktones.com service, or if you select the wrong handset or wireless provider in the purchase or registration process. Additionally, Smaktones.com will not refund any fees paid, or unused credits, nor otherwise be liable to you, if Smaktones.com ceases to offer the Smaktone.com service for any reason, if you change your handset and the Smaktone.com services are no longer available on your new handset, if you lose or break your handset and/or lose or destroy any data or content on the handset, if your wireless provider ceases to offer the Smaktones.com services, or if you change wireless providers to one that does not offer the Smaktones.com services. Smaktones.com reserves the right to collect applicable taxes and impose premium surcharges for certain features of the service. Note that your use of certain operator networks to access the service may result in third-party charges from your carrier or other entities, and that you are responsible for all such charges. Standard and/or other carrier charges may apply. Right to change fees. All fees are subject to change upon notice from Smaktones.com. Smaktones.com will provide you with reasonable notice of such changes. If you do not accept the new fees, you will have ten days from such notice to cancel your account. Subscriptions. Use of particular materials, website or services may require opening a subscription account. Subscriptions may be available on a one time or monthly basis. Subscriptions are subject to direct billing by your telecommunications carrier. If you purchase a monthly subscription, your billing account with your carrier will be charged at the time of purchase for your first month of use. Your billing account with your carrier will automatically be charged monthly pursuant to the regular billing procedures of your carrier for the use of the subscription, until you cancel your subscription or it is otherwise terminated as provided in this agreement. You may cancel your subscription at any time by contacting your carrier. If your subscription requires a minimum commitment period, you will be responsible for all charges for the entire minimum commitment period. If you cancel your subscription, you will not be refunded any remaining portion of your subscription fees already billed to your billing account with your carrier, including any minimum commitments.
OBJECTIONABLE OR EXPLICIT CONTENT:
Smaktones.com is not responsible to you for any content of materials constituting all or part of any material of any other aspect of the service that you might find objectionable.
POSTING AND MESSAGES:
Smaktones.com may enable messaging systems that could include text message capabilities and may from time to time contain other features that allow you to exchange messages, content and other information with other Smaktones.com members and subscribers and third parties. Smaktones.com has the right but not the obligation to monitor and edit or remove any activity or content in such messaging systems. Smaktones.com takes no responsibility and assumes no liability for any content, materials, messages and the like that you or any other subscribers, members or third parties post or send over such messaging systems. You understand and agree that nay loss or damage of any kind that occurs as a result of the use of any messages, content or material that you upload, post, transmit, display or otherwise make available through your us of the service is solely your responsibility. By posting messages, inputting data, or engaging in any other form of communication through the service, you represent and warrant that you own or otherwise control all applicable rights to the content, materials, messages and the like that you post, upload, transmit or display; that the content, materials, messages and the like are accurate; that use of the content, materials, messages and the like that you supply does not violate third party rights and will not cause injury to any person or entity; and that you will indemnify Smaktones.com, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for all claims resulting from content, messages, materials and the like that you supply. Smaktones.com neither endorses nor is responsible for the accuracy or reliability of Êany opinion, advice, information, or statement made on or in connection with the service by Êanyone other than authorized Smaktones.com employees acting in their official capacities. In addition to the above, you acknowledge and agree that Smaktones.com may store and/or disclose, as applicable, any such content, messages or material it is required to do so by law, or has a good Smaktones.com belief that such storage or disclosure is reasonably necessary to comply with court orders or other legal processes; to enforce this agreement; to respond to any claims that such content (or your use of the same) violates any third partyÕs rights; or to partners, affiliates, licensors and/or licensees, any other Smaktones.com subscriber or member, or the general public.
PRIVACY:
For additional information regarding Smaktones.com use of information collected in connection with the service, please refer to Smaktones.com privacy policy.
COPYRIGHT AGENT:
The entertainment industry depends upon copyright law to enable those people that develop and distribute creative works to get fairly compensated for their work. Unauthorized copying or distribution of copyrighted material is an infringement of the copyright holderÕs rights.
TRADEMARK:
Except as expressly set forth in this agreement, all trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with the service and materials are the property of Smaktones.com and/or their partners. You may not copy, display or use any of these marks without prior written permission of Smaktones.com
VIOLATION OF INTERECTUAL PROPERTY RIGHTS:
If Smaktones.com (1) receives a notice alleging that you have engaged in infringing behavior or (2) reasonably suspects that your use of the service or the materials violate Smaktones.com or other intellectual property rights, Smaktones.com may, in its sole discretion, suspend or terminate your account with or without notice to you. If Smaktones.com suspends or terminates your account under this paragraph, it shall have no liability or responsibility to you, and Smaktones.com will not refund any portion of your fees charged to date.
PROMOTIONS AND ADVERTISING:
Smaktones.com and itÕs partners may present advertisements and promotional materials on or through the service. Your participation in any Smaktones.com promotional event is subject to the terms and conditions associated with that event. Your correspondence or business dealings with, or participation in promotions of, any third party advertisers on or through the service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You agree that neither Smaktones.com nor its business partners shall be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third party on the service.
LINKS TO THIRD PARTY SITES
Smaktones.com may present links to retailers and/or other third party websites not owned or operated by Smaktones.com. These links are provided only as a convenience to you. Neither Smaktones.com nor itÕs partners are responsible for the availability of these outside sites or their contents. You understand and agree that neither Smaktones.com nor itÕs partners are responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site. You should direct any concerns regarding these third party sites to those sites administrators.
MODIFICATIONS TO SERVICE:
Loss of Rights by Smaktones.com. Smaktones.com rights to make certain materials available to you may expire. In such event, Smaktones.com will not deliver to you the license necessary to play back any such materials after the end of the period in which such rights expire. If Smaktones.com ceases making any such rights available, Smaktones.com will not refund any portion of your fees, but you may contact customer support to receive appropriate replacement rights. Modification. Smaktones.com may, without liability or obligation, in its sole discretion and at any time: (1) make modifications to the materials and/or service and without providing you with notice; and/or (2) require you to use modified materials and/or service in order to have continued access to the service and materials. The modifications may result in certain materials being unavailable, or incompatible with certain devices, and/or over the networks of certain carriers and service providers. Smaktones.com may terminate or modify your right to use any materials previously downloaded by you upon providing you with written notice, which may be made by means of a posting on the website. Upon Smaktones.com giving such notice, you shall promptly cease the use of, and destroy, all copies of the specified materials, or otherwise modify your usage as directed by Smaktones.com. You agree that neither Smaktones.com nor its partners shall be liable to you or to any third party for any modification, suspension or discontinuance of the service or materials.
REMEDIES:
You understand and agree that nay unauthorized use of the website and itÕs service or materials would result in irreparable injury to Smaktones.com and itÕs partners for which money damages would be inadequate, and in such event Smaktones.com and itÕs partners, as applicable, shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against you. Nothing contained in this paragraph or elsewhere in this agreement shall be construed to limit remedies or relief available pursuant to statutory or other claims that Smaktones.com and its partners may have under separate legal authority, including but not limited to, any claim for intellectual property infringement.
INDEMNITY:
You agree to indemnify, defend and hold harmless, Smaktones.com, its partners, and affiliates, and each of their respective officers, directors, employees, agents, representatives, and third party providers from and against all claims, actions, demands, causes of action, and other proceedings, and all losses, expenses, fees, fines, damages and costs, including reasonable attorneyÕs fees and court costs, arising out of or relating to your breach of this agreement or improper use of the service or materials. Smaktones.com reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with Smaktones.com in asserting any available defense.
TERMINATION, CANCELLATION AND PLAN CHANGES:
Smaktones.com may in its sole discretion terminate this agreement or suspend you account at any time with or without notice to you in the event that you breach ( or Smaktones.com reasonable suspects that you have breached) any provision of this agreement. If Smaktones.com terminates this agreement, or suspends your account for any of the reasons set forth in this paragraph, it shall have no liability or responsibility to you, and Smaktones.com will not refund any portion of your fees. You understand and agree that your cancellation of your account is your sole right and remedy with respect to any dispute with Smaktones.com. This includes, but is not limited to, any dispute related to or arising out of: (1) any term of this agreement or Smaktones.com enforcement or application of the same; (2) any policy or practice of Smaktones.com, including its privacy policy, or Smaktones.com enforcement or application of these policies; (3) the materials; (4) your use of and/or ability to access and use the service; and (5) the amount or type of fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods. You can cancel your account by delivering notice to Smaktones.com at help@smaktones.com. Except as set forth above with respect to inadvertent charges, in the event that your account is terminated or canceled, Smaktones.com will not refund any fees.
DISCLAIMERS:
You understand and agree that your use of the service and the materials is at your own sole risk. Smaktones.com is not responsible or liable for any infections or contamination of your systems, or delays, inaccuracies, errors, or omissions arising out of your use of the service or materials or with respect to the information and material contained on the website. The entire risk as to the quality, accuracy, adequacy, completeness, correctness and validity of any material rests with you. THE SERVICE AND THE MATERIALS ARE PROVIDED ÒAS ISÓ AND ÒAS AVAILABLE,Ó AND WITHOUT WARRANTY BY SMAKTONES.COM ÊOR ITÕS PARTNERS, EMPLOYEES, PARENTS, SERVICE PROVIDERS AND/OR SUPPLIERS (THE SMAKTONES.COM ENTITIES), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, SMAKTONES.COM AND THE SMAKTONES.COM ENTITIES, AS APPPLICABLE, EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NONINFRINGEMENT. THERE IS NO WARRANTY THAT THE SERVICE OR THE MATERIALS WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO THE SAME WILL BE UNINTERRUPTED OR ERROR FREE. SMAKTONES.COM AND/OR THE SMAKTONES.COM ENTITIES, AS APPLICABLE, DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR THE MATERIALS WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. YOU WILL NOT HOLD SMAKTONES.COM AND/OR THE SMAKTONES.COM ENTITIES, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING THE SERVICE OR USING THE SERVICE, AND/OR THE MATERIALS INCLUDING, BUT NOT LIMITED TO, ANY INFECTIONS OR CONTAMINATIONS OF YOUR DEVICES YOU USE TO ACCESS THE SAME OR TO TRANSFER MATERIALS THAT MAY RESULT FROM THAT USE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO SMAKTONES.COM AND/OR THE SMAKTONES.COM ENTITIES AS APPLICABLE. UNDER NO CIRCUMSTANCES SHALL SMAKTONES.COM AND/OR THE SMAKTONES.COM ENTITIES AS APPLICABLE, BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE AND/OR THE MATERIALS.
LIMITATION OF LIABILITY:
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL SMAKTONES.COM AND/OR THE SMAKTONES.COM ENTITIES AS APPLICABLE, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPEACIAL OR SIMILAR DAMAGES (INCLUDING, WITH LIMITITION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE AND/OR THE MATERIALS, EVEN IF SMAKTONES.COM AND/OR THE SMAKTONES.COM ENTITIES AS APPLICABLE, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SE FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, SMAKTONES.COM AND/OR THE SMAKTONES.COM ENTITIES AS APPLICABLE, SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EXCEED $100. Notwithstanding the foregoing, in no event shall Smaktones.com liability to you for any and all claims, damages, losses, and causes of action (weather in contract, tort or otherwise) exceed the amount paid by you, if any, for accessing the service.
ARBITRATION:
You agree that the exclusive remedy for all disputes and claims relating in any way to, or arising out of, this agreement, the service of materials, or your use of the service or materials (including the arbitrary of any claim or dispute and the enforceability of this paragraph), or to any other alleged act or omission by you or Smaktones.com, shall be determined exclusively by final and binding arbitration. Provided however, that you agree that the terms of this paragraph do not apply to any breach or alleged breach of the ownership or license rights of Smaktones.com or any of its partners with respect to any materials and/or services, or your (or any third party's) misuse of the materials and/or services, and that, in the event of any such breach of alleged breach, Smaktones.com and its partners will be entitled to equitable and injunction relief in addition to all other remedies provided by this agreement of available at law. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") before a panel of three arbitrators and conducted in Los Angeles, California. You and Smaktones.com also agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings. Except as expressly set forth above in this paragraph, you and Smaktones.com may litigate in court only to compel arbitration under this agreement or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrators. To the extent that you have breached or have indicated your intention to breach this agreement in any manner which violates or may violate Smaktones.com or any of it's partners, intellectual property rights, or may cause continuing or irreparable harm to Smaktones.com (including, but not limited to, any breach that may impact Smaktones.com or it's partners intellectual property rights, or a breach by reverse engineering), Smaktones.com may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction. To the fullest extent permitted by applicable law: no arbitration under this agreement shall be joined to an arbitration involving any other current or former licensee of Smaktones.com, whether through class arbitration proceedings or otherwise; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppels effect in any arbitration hereunder (unless determined in another proceeding between you and Smaktones.com); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between you and Smaktones.com).
MISCELLANEOUS:
This agreement and any other terms or documents referred to herein represents you entire agreement with Smaktones.com with the respect to your use of the service and materials. You understand and agree that, except as expressly set forth, herein, this agreement is not intended to confer and does not confer and rights or remedies upon any person other than the parties to this Agreement. If any part of this agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Smaktones.com failure to pursue any available claim or defense pursuant to this agreement or otherwise will not be a waiver of such claim or defense. The headings used in this agreement are for convenience only, and will have no effect on the interpretation or legal enforceability of the terms herein. The laws of the State of California, excluding its conflicts of law rules, govern this agreement and you use of the service and materials. The United Nations Convention of Contracts for the International Sale of Goods will not govern this Agreement, and is hereby expressly excluded. Except for claims or disputes to the extent arbitrated as provided above, you expressly agree that the state and federal courts located in Los Angeles, California have exclusive jurisdiction over any claim or dispute with Smaktones.com or relating in any way to your account or your use of the service or the materials. Except for claims or disputes to the extent arbitrated as provided above, you further agree and expressly consent to personal jurisdiction over you in the federal and state courts located in Los Angeles, California in connection with any such dispute including any claim involving Smaktones.com or its partners, parents, affiliates, employees, contractors, officers, directors or suppliers. This agreement will bind and inure to the benefit of each partyÕs permitted successors and assigns. This agreement is personal to you and may not be transferred, assigned or delegated to anyone. Any attempt by you to assign, transfer or delegate this agreement shall be null and void.