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FUNPHONIA TERMS AND CONDITIONS OF USE AGREEMENT
Effective November 30, 2006
This agreement ("Agreement") is a contract between you and Funphonia.com. ("FUNPHONIA"). By visiting or using the FUNPHONIA web site (www.Funphonia.com) or by or by using Ringtones Subscription services (collectively, the "Services" or "FUNPHONIA Services"), you agree to be bound by the following terms and conditions (the "Terms of Service" or "Terms").
Age Restrictions:
Use of Funphonia is limited to people at least thirteen (13) years of age. Users aged between 13 and 17 must receive parental permission to complete the registration process and to download content.
1. THE FUNPHONIA SERVICE & BILLING INFORMATION
The FUNPHONIA Website offers downloadable mobile entertainment, such as ringtones, graphics, Text Message Services, applications and games (collectively, the "Downloads"). These Downloads are available for purchase through the Funphonia Subscription Service.
The Ringtones Subscription Services - By registering for a Ringtones Subscription Service you authorize FUNPHONIA to bill your mobile telephone invoice or your credit card the monthly subscription fee until you cancel your Subscription. Billing is made on a 30-day cycle, beginning on the first day following sign-up. FUNPHONIA will not refund any fees following a cancellation. You agree that normal carrier (WAP, MMS, GPRS, and SMS) and other charges may apply.
By purchasing a Ringtones Subscription, you agree to receive promotional communications, which may be delivered by SMS and including our weekly newsletter. You may unsubscribe from promotional email communications by clicking here.
Right to Change Fees - FUNPHONIA reserves the right to change fees and will provide you with reasonable notice of any such change. If you do not agree to the new fees, you will have 10 days from such notice to cancel your Ringtones Subscription.
Expiration of License - FUNPHONIA's rights to make available certain Downloads may expire. In such event, FUNPHONIA will cease delivering a playback license. FUNPHONIA will not refund any portion of your fees, but you may contact customer support at support@Funphonia.com to receive replacement credit.
FUNPHONIA's current rates are:
Funphonia Ringtones Subscription Service - $9.99/mo. for 10 download credits
Help - Text 'HELP' to 94337 for text information on your Funphonia Subscription Service.
2. CANCELLATION & TERMINATION
Cancellation - You can cancel your FUNPHONIA Ringtones Subscription Service at any time by sending a text message from your mobile device containing only the word 'STOP' to the shortcode 94337. Cancellation for subscribers will take effect immediately and all unredeemed credits will be forfeited. Services are not pro-rated for mid-month cancellations. FUNPHONIA will send a text message to your phone confirming the cancellation. If you have any questions about cancellation please contact our customer service at support@funphonia.com. FUNPHONIA will not refund any fees following a cancellation.
Termination - FUNPHONIA reserves the right, in its sole discretion, to suspend or terminate your access to FUNPHONIA at any time without notice in the event that FUNPHONIA reasonably suspects that you have breached any provision of these Terms. No portion of your fees will be refunded following a termination and FUNPHONIA shall have no liability or responsibility to you.
Disputes - Your sole right and remedy with respect to any dispute with FUNPHONIA is to cancel your account.
3. ACCEPTABLE USE OF FUNPHONIA
By downloading and using the FUNPHONIA Subscription Services, you agree that FUNPHONIA grants you a non-exclusive, non-transferable, revocable right to use the Site for your own non-commercial use. Your use of the FUNPHONIA Services means that you also agree to the following acceptable use policies:
Personal Use Only - The Service is for your personal use. You understand and agree that you may not resell, transmit or re-transmit, broadcast or re-broadcast or make any commercial use of the Service.
Registration and your Personal Information - In order to use FUNPHONIA, you must register and provide certain relevant personal information ("Personal Information"). FUNPHONIA will use your personal information in accordance with its Privacy Policy.
Objectionable or Explicit Content - FUNPHONIA is not responsible for any content or materials constituting all or part of any Download or any other aspect of the Service that you might find objectionable.
Intellectual Property Rights - The Downloads made available as part of the Service are owned by FUNPHONIA, its licensors, partners and affiliates and are protected by U.S. intellectual property laws. By using the FUNPHONIA Services you understand and agree to abide by U.S. intellectual property laws.
"Bots", Hacking and Other Unauthorized Use - Users of FUNPHONIA may not attempt (or authorize, encourage or support others' attempts) to gain unauthorized access to any FUNPHONIA Services, user accounts or computer networks through hacking, password mining or any other means, or to reverse engineer, decrypt, break or otherwise alter or interfere with the Service in any way. You may not use any web robots (bots'), web crawlers, data-mining, or similar applications to gather and extract data from FUNPHONIA. The discovery of any such attempts by FUNPHONIA may result in criminal prosecution.
4. THIRD PARTY CONTENT APPEARING ON THE FUNPHONIA SITE
Links and Advertisements - The FUNPHONIA website contains links to and advertisements for websites operated by third parties. FUNPHONIA is not responsible for the availability, content or the practices of these other sites. Your activities with any third-party advertisers are solely between you and such third-party. You agree that FUNPHONIA and its affiliates are not responsible for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content, goods or services available through third party sites.
5. REFERRAL PROGRAMS
Funphonia may from time to time offer you the opportunity to earn rewards by referring friends to subscribe to Funphonia ("Referral Program"). By participating in a Referral Program, you agree to receive certain related communications from Funphonia.
You may not submit multiple email addresses to Funphonia in an attempt to earn falsely any reward as part of the Referral Program, and rewards will only be given in return for new referred subscribers. Credit for referrals can only be given out for those referrals who participate using their unique referral link. You may not use Spam to obtain referrals nor barter, sell or trade for referrals or offer completions. Funphonia does not guarantee delivery time on any rewards earned, nor does it guarantee receipt of any rewards.
Funphonia reserves the right to modify at any time the methods through which rewards are earned and to disqualify you at any time from participation in a Referral Program if you do not comply with any of these guidelines. All information collected from you in a Referral Program shall be subject to the Funphonia Privacy Policy.
6. FUNPHONIA PROPRIETARY RIGHTS
General - All content in the Service or on the FUNPHONIA website, such as the Downloads, Subscriptions, text, graphics, logos, button icons, images, data compilations, and software, is the property of FUNPHONIA or its content suppliers and protected by United States and international copyright and other intellectual property laws. Your rights with respect to your use of the same are governed by these Terms, all applicable laws, including but not limited to intellectual property laws, and any applicable end-user license agreements.
7. GENERAL TERMS
Entire Agreement - These Terms constitute the entire agreement between the parties with respect to your use of the Service or any part thereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral.
FUNPHONIA's Remedies - Following unauthorized use of the Service or the Downloads, FUNPHONIA its affiliates and/or licensors, shall have the right to immediate injunctive relief against you, in addition to other remedies available at law and in equity.
Indemnity - By using the FUNPHONIA Services, you agree to indemnify and hold FUNPHONIA and its affiliates, harmless for any violation or against any third party claim, damages or demand, including reasonable attorneys' fees, relating to or arising out your use of the Service, your violation of these Terms, or your violation of any rights of another party.
8. DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY
DISCLAIMER OF WARRANTIES:
BY USING THE FUNPHONIA SERVICES YOU EXPRESSLY UNDERSTAND AND AGREE THAT: THE FUNPHONIA SERVICES, AND ALL DOWNLOADS, MATERIALS, INFORMATION, PRODUCTS AND SERVICES ARE PROVIDED "AS IS" WITH NO WARRANTIES BY FUNPHONIA OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS. FUNPHONIA EXPRESSLY DISCLAIMS ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
FUNPHONIA DOES NOT GUARANTEE THAT THE SERVICE, THE DOWNLOADS OR THE SUBSCRIPTIONS WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO THE FUNPHONIA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. FUNPHONIA DISCLAIMS ANY RESPONSIBILITY FOR THE DELETION OR FAILURE TO STORE ANY CONTENT.
YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE FUNPHONIA SERVICES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR MOBILE PHONE, MOBILE PHONE SERVICE OR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA. YOU WILL NOT HOLD FUNPHONIA AND/OR THE FUNPHONIA ENTITIES RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU USING THE SERVICE INCLUDING, BUT NOT LIMITED TO, ANY INFECTIONS OR CONTAMINATIONS OF YOUR DEVICES YOU USE TO ACCESS THE SAME OR TO TRANSFER DOWNLOADS 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 FUNPHONIA AND/OR THE FUNPHONIA ENTITIES AS APPLICABLE. FUNPHONIA AND THE FUNPHONIA ENTITIES DISCLAIM ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE FUNPHONIA SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED BY THE FUNPHONIA SERVICES.
LIMITATION OF LIABILITY:
UNDER NO CIRCUMSTANCES, SHALL FUNPHONIA BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE, THE DOWNLOADS AND/OR THE SUBSCRIPTION.
UNDER NO CIRCUMSTANCES SHALL FUNPHONIA BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF, RELIANCE ON, OR THE INABILITY TO USE, THE DOWNLOADS OR SERVICES, OR FROM THE INTERRUPTION, NON-PERFORMANCE, SUSPENSION, OR TERMINATION OF THE FUNPHONIA SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), EVEN IF FUNPHONIA AND/OR THE FUNPHONIA ENTITIES AS APPLICABLE, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE FOREGOING, FUNPHONIA OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DELAY, INTERFERENCE OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OR CONDITIONS BEYOND ITS REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION, FIRE OR OTHER CASUALTY OR ACCIDENT, INTERNET FAILURES, TELEPHONE EQUIPMENT FAILURES, ACTS OF GOD, SEVERE WEATHER CONDITIONS, WAR OR OTHER VIOLENCE, OR ANY LAW, ORDER, PROCLAMATION, REGULATION, ORDINANCE, DEMAND OR REQUIREMENT OF ANY GOVERNMENTAL AGENCY.
9. CHANGE IN TERMS AND CONDITIONS AND FUNPHONIA SERVICES
FUNPHONIA may modify or terminate its Services from time to time, for any reason, and without notice or liability to you, any other user or any third party. We reserve the right to revise these Terms of Service by updating this posting. Please review these Terms of Service from time to time so that you will be apprised of any changes.
10. CONTACT INFORMATION
CALL US FOR HELP: 1-888-600-2470
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