Xingtone 4.0

EULA - End User License Agreement

By installing the Xingtone software ("Software"), you are agreeing to be bound and abide by the notices, terms and conditions set forth below. We may regularly amend these notices, terms, and conditions (this "Agreement") at any time without prior notice by posting new or revised terms of use policies and other documents on the Software or Xingtone web sites. It is important that you check this and other terms and conditions related to use of the Xingtone software from time to time. PLEASE READ ALL APPLICABLE TERMS AND CONDITIONS BEFORE USING THE XINGTONE SOFTWARE. USE OF ANY PART OF THE XINGTONE SOFTWARE CONSTITUTES YOUR ACCEPTANCE OF ALL SUCH NOTICES, TERMS, AND CONDITIONS.

GRANT OF LICENSE: [Xingtone, Inc.] (the "Licensor") grants to you this personal, limited, non-exclusive, non-transferable, non-assignable license solely to use a single copy of the Licensed Works, as defined below, on a single computer for use by you as a single user only in connection with a single telephone device as identified during your registration of this software, and solely provided that you adhere to all of the terms and conditions of this Agreement. The foregoing is an express limited use license and not an assignment, sale, or other transfer of the Licensed Works or any Intellectual Property Rights, as defined below, of Licensor.

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 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 Agreement are expressly reserved by Licensor.

NO COMMERCIAL USE: This 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 Agreement.

NO COPYRIGHT INFRINGEMENT: Licensor respects and is fully committed to protecting the rights of copyright owners. Licensor expects you to take special care to avoid violating copyright laws and regulations. Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of copyright owners’ exclusive rights. As a condition to use the Licensed Works, you must agree that you will not use the Licensed Works to impinge or infringe the intellectual property rights of others in any way.

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 violate 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. In the event you breach any term or condition of this Agreement, your license rights granted hereunder shall automatically terminate.

GOVERNING LAW: This Agreement shall be governed by the laws and in the courts of the State of California and by the laws of the United States, excluding their conflicts of law principles:

LICENSORS 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, REPRESENATION 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) LICENSORS 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 OTHER 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, publicity and privacy rights, or other 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: Licensor intends to protect the privacy of information that you send to Licensor 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 Licensor software and the use of the Licensor 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 Licensor and without Licensors consent. You agree to assume that risk and to hold Licensor 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 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.

ASSIGNMENT: Although fully assignable and transferable by Licensor, you may not transfer or assign this Agreement, or any of your rights or obligations hereunder, to any other person or entity, whether by operation of law or otherwise.

ENTIRE AGREEMENT: This Agreement sets forth the entire understanding and agreement between you and Xingtone, Inc. 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, Inc.