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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