THIS DOCUMENT CONTAINS THE LICENSE
AGREEMENT FOR
THE INSTANT RINGTONES SOFTWARE
UPDATED
AS OF DECEMBER 15, 2005
CAREFULLY
READ THE FOLLOWING LICENSE AGREEMENT.
BY
CLICKING I AGREE, YOU ARE AGREEING TO DOWNLOAD THE INSTANT RINGTONES SOFTWARE.
YOU
SHOULD READ THESE TERMS CAREFULLY. IF
YOU DECIDE TO DOWNLOAD OR INSTALL, REGISTER FOR, OR USE THE INSTANT RINGTONES
SOFTWARE, YOU MUST CLICK ON THE "YES" BUTTON. BY CLICKING THE "YES" YOU ARE
CONSENTING TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT AS THOUGH YOU
SIGNED A WRITTEN COPY OF THIS AGREEMENT.
IF YOU DO
NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CLICK THE
"YES" BUTTON AND DO NOT USE INSTANT RINGTONES SOFTWARE.
This
agreement is subject to following terms and conditions.
INSTANT
RINGTONES SOFTWARE END USER LICENSE AGREEMENT
This End
User License Agreement (the "Agreement") is a legal agreement between
you and SKYHORN.COM, INC ("SKYHORN.COM"). By downloading, installing,
accessing or using the INSTANT RINGTONES SOFTWARE ("Software") or any
products or software or content from websites owned or operated by SKYHORN.COM,
you agree to the following terms and conditions. IF YOU ARE NOT 18 YEARS OR
OLDER, ARE NOT AUTHORIZED TO INSTALL THIS SOFTWARE, OR YOU DO NOT AGREE WITH
THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL, ACCESS OR USE INSTANT
RINGTONES SOFTWARE.
1. Scope
of License. SKYHORN.COM grants to you a non-exclusive, limited license to
download, install and use the Software on a single computer, including a
workstation, terminal or other digital electronic device (hereafter a
"Computer") solely for the purpose of accessing SKYHORN Media and third
party provided software and services available through SKYHORN.COM's website or
servers, or the websites and servers of SKYHORN.COM's business associates for
your personal non-commercial purposes.
2.
Restrictions. You may not modify, reverse-engineer, decompile, disassemble, or
otherwise discover the source code for the Software in any way. You do not have
the right to create derivative works of the Software, and you agree not to
attempt, or allow others to attempt, to reverse engineer Software and/or modify
the Software source code. Any and all modifications or enhancements to the
Software shall be the sole property of SKYHORN.COM. You further agree not to
access SKYHORN.COM or SKYHORN.COM's business associate services or software
application by any means other than the interface provided by SKYHORN.COM or
such business associate. You understand that SKYHORN.COM, in its discretion,
may modify, discontinue, or suspend your right to access SKYHORN.COM or any
part thereof at any time. Your installation of the Software indicates your
acceptance of potential future updates and/or upgrades to the Software. You
agree not to redistribute, rent, lend, assign, transfer or lease the Software.
4.
Proprietary Rights. You agree that the Software is licensed, not sold to you.
You agree that the Software belongs to SKYHORN.COM, including all intellectual
and proprietary rights, unless otherwise specified. Title and related rights in
content or materials provided by means of SKYHORN.COM are the property of the
applicable content owner and are protected by applicable law. The license
granted under this Agreement gives you no rights to such content or materials.
SKYHORN.COM reserves all rights in the Software not expressly granted to you in
this Agreement.
5. Your
Representations and Warranties. You represent and warrant that you are the
owner of the Computer on which the Software is or will be installed, and you
have the right to install the Software on the Computer. You agree not to use
the Software in a manner prohibited by law, or in violation of any contractual
provision by which you are bound. You agree to comply with all applicable laws,
rules and regulations in your use of the Software.
6.
Electronic Signatures and Agreements. You acknowledge and agree that by
clicking on the button or link labeled "CLICK HERE TO ENTER",
"SUBMIT", "DOWNLOAD", "I ACCEPT" or such similar
links or buttons as may be designated by SKYHORN.COM to download the Software
or access Content provided by SKYHORN.COM to accept the terms and conditions of
this Agreement, you are submitting a legally binding electronic signature and
are entering into a legally binding contract. You acknowledge that your
electronic submissions constitute your agreement and intent to be bound by this
Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances
or other laws, including without limitation the United States Electronic
Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign
Act") or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC
SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF
NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH
THE SERVICES. Further, you hereby waive any rights or requirements under any
statutes, regulations, rules, ordinances or other laws in any jurisdiction
which require an original signature or delivery or retention of non-electronic
records, or to payments or the granting of credits by other than electronic
means.
7. Access
and Interference. You agree that you will not use any robot, spider, other
automatic or manual device or process to interfere or attempt to interfere with
the proper working of the Software.
8.
Disclaimer of Warranty. USE OF THE SOFTWARE, SKYHORN.COM's WEBSITE, OR ANY
CONTENT, IS AT YOUR OWN RISK. SKYHORN.COM AND ITS BUSINESS ASSOCIATES PROVIDE
THE SOFTWARE ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OR TITLE OR
NON-INFRINGEMENT OR THAT THE SOFTWARE IS FREE FROM DEFECTS, MERCHANTABLE OR FIT
FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL
PART OF THIS AGREEMENT. The above exclusions may not apply in jurisdictions
that do not allow the exclusion of certain implied warranties.
9.
Limitation of Liability. IN NO EVENT WILL SKYHORN.COM NOR ITS EMPLOYEES,
DISTRIBUTORS, DISTRIBUTEES, SUPPLIERS, BUSINESS ASSOCIATES, ADVERTISERS,
DIRECTORS OR AGENTS (COLLECTIVELY "AFFILIATES") BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE,
INSTALLATION OR THE INABILITY TO USE THE SOFTWARE, INCLUDING, BY WAY OF
ILLUSTRATION AND NOT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF
INFORMATION, LOST OPPORTUNITY OR OTHER PECUNIARY LOSS, EVEN IF SKYHORN.COM OR
ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY
EVENT, SKYHORN.COM's ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE
PRICE PAID FOR THE LICENSE TO USE THE SOFTWARE, REGARDLESS OF THE FORM OF THE
CLAIM. THE PERSON USING THE SOFTWARE BEARS ALL RISKS AS TO THE QUALITY AND
PERFORMANCE OF THE SOFTWARE. Some states or jurisdictions do not allow the
exclusion or limitation of liability for consequential or incidental damages,
in such states or jurisdictions, SKYHORN.COM's liability shall be limited to
the extent permitted by law.
10.
Voluntary Use and Right to Uninstall. You understand that you are using INSTANT
RINGTONES SOFTWARE voluntarily and you may uninstall INSTANT RINGTONES SOFTWARE
at any time.
11.
Termination. SKYHORN.COM may terminate this Agreement at any time for any
reason, with or without prior notice. You may terminate this Agreement at any
time by uninstalling the SOFTWARE from your Computer and by destroying all
SKYHORN.COM programs and materials.
12.
Export Controls. Licensed Materials and the underlying information and
technology may not be downloaded or otherwise exported or re-exported (i) into
(or to a national resident of) COUNTRIES or any other country to which the U.S.
has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list
of Specially Designated Nationals or the U.S. Commerce Department's Table of
Deny Orders. By downloading or using the SOFTWARE, you are agreeing to the
foregoing and you represent and warrant that you are not located in, under the
control of, or a national or resident of such country or on any such list, and
that you will otherwise comply with all applicable export control laws.
13.
Applicable Law; Jurisdiction And Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas and the Federal
Arbitration Act, without giving effect to any principles of conflicts of laws,
and you hereby consent to the personal jurisdiction of the state and federal
courts of Texas.
14.
Arbitration. You and SKYHORN.COM agree that any and all disputes and claims
relating in any way to this Agreement (including the arbitrability of any claim
or dispute and the enforceability of this paragraph), with the exception set
forth in the next paragraph, shall be submitted to and resolved by means of
confidential arbitration conducted in the State of Texas, City of Austin. The
arbitration shall be conducted under the then prevailing Commercial Arbitration
Rules of the American Arbitration Association ("AAA"). You and
SKYHORN.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. The arbitrator's award shall be binding and may be entered
as a judgment in any court of competent jurisdiction. This Agreement will not
be governed by the United Nations Convention of Contracts for the International
Sale of Goods, the application of which is hereby excluded. 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 user of the
Service, whether through class arbitration proceedings or otherwise. However,
to the extent you have in any manner violated or threatened to violate
SKYHORN.COM intellectual property rights, SKYHORN.COM may seek injunctive or
other appropriate relief in any state or federal court in the State of Texas,
and you consent to exclusive jurisdiction and venue in such courts.
15.
General. This Agreement constitutes the entire understanding and agreement
between you and SKYHORN.COM with respect to the subject matter hereof. This
Agreement may be amended only by a written document signed by you and
SKYHORN.COM. If any provision of this Agreement shall be held to be invalid,
illegal, or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not be in any way affected or impaired thereby.
SKYHORN.COM shall not be liable for any delay or failure in performance under
this Agreement or interruption of service resulting from acts of God, civil or
military authority, war, labor disputes, materials provided by third parties,
or any cause beyond the reasonable control of SKYHORN.COM. Except as described
herein, you may not assign this Agreement without our consent.
A
printable version of this End User License Agreement is available at this URL:
http://www.monkeybongo.com/EULA.html
VERSION:
5.2
EFFECTIVE
DATE: December 15, 2005
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