IMPORTANT - YOU SHOULD READ THE FOLLOWING TERMS AND CONDITIONS. PLEASE BE AWARE THAT BY VIEWING ANY PART OF THIS WEBSITE, OR BY PURCHASING ANY ITEMS FROM IT, YOU ARE THEREBY ACCEPTING ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT
Welcome to Birdtones/Wildtones. This agreement ("Agreement") is a contract between you and Wildsight Productions, Inc. ("WPI") and governs your use of the Birdtones and Wildtones websites, all Downloads (defined below) and all your activity on the Messaging Systems (defined below) (collectively, the "Service"). The Birdtones and Wildtones websites mean this web site, as accessed by any of the following domain names: Wildtones.com, Wildtones.net, Birdtones.net, Birdtones.com; however, the Birdtones and Wildtones Websites do not refer to any other web site linked to or from this web site. By completing the registration process and accepting this Agreement, you represent that (i) you have read and understood this Agreement and agree to be bound by its terms and conditions and (ii) you are at least 18 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 attempt to access the Service.
WPI may from time to time amend, supplement or modify the terms of this Agreement, and will post a copy of such amended Agreement at http://www.wildtones.net/terms.html. If you do not agree to be bound by (or cannot comply with) the Agreement as amended, your only remedy is to cancel your Birdtones or Wildtones subscription and/or account. You will be deemed to have accepted the Agreement as amended immediately after the amended agreement is posted or if you continue to use the Service; all other terms of this Agreement will continue in effect.
DESCRIPTION OF SERVICE
The Service is available at the Birdtones and Wildtones Websites and includes everything on the site that may exist from time to time. Part of the Service makes available to you downloadable mobile entertainment, such as ringtones, so-called "wallpapers", games and graphics (collectively, the "Downloads"). Once properly registered and after making proper payment, you will be permitted to download to compatible wireless telephones and other compatible devices certain Downloads through the Service. Through the Service, you may also be able to create buddy lists, sample streaming versions of certain Downloads and send messages, content and information to other members, subscribers and third parties through one or more means (the "Messaging Systems").
YOUR REGISTRATION OBLIGATIONS
You agree that you will not allow others to use your member name, password and/or account.
You agree to indemnify and hold WPI, its partners, parents, employees, officers, owners, subsidiaries, agents, affiliates and/or licensors, as applicable, harmless for any improper, unauthorized or illegal uses of your member name, password and/or your account. This includes illegal, unauthorized or improper use by anyone to whom you have given permission to use your member name, password and/or account.
USE OF SERVICE
Service . You may use the Service only in accordance with the terms and conditions of this Agreement and any amendments as well as any additional terms that may be presented in connection with any particular feature or function of the Service from time to time.
The Service is for your personal use. You understand and agree that you may not transmit or re-transmit, broadcast or re-broadcast or make any commercial use of the Service, including the Downloads. For example, you may not copy or distribute the Service or the Downloads in any manner not expressly authorized by the Service.
You may not attempt (or authorize, encourage or support others' attempts) to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Service, including the Downloads. You agree to advise WPI promptly of any such unauthorized use(s) or attempt(s).
Downloads . You understand and acknowledge that the Downloads made available as part of the Service are owned by WPI, its business partners, affiliates, licensees and/or licensors, as applicable, and are protected by intellectual property laws. WPI grants you a limited, non-exclusive, non-transferable, revocable right to download the Downloads to your compatible device solely for your own non-commercial use. You understand and agree that you may not download, reproduce, modify, display, perform, transfer, distribute or otherwise use the Downloads except as expressly provided in this Agreement. You understand and agree that you may not authorize, encourage or allow any Downloads used or obtained by you to be reproduced, modified, displayed, performed, transferred, distributed or otherwise used by any other party, and you agree that you will take all reasonable steps to prevent any unauthorized reproduction and/or other use of them.
Loss of Rights by WPI. WPI's rights to make certain Downloads available to you may expire. In such event, WPI will not deliver to you the license necessary to play back any such Downloads after the end of the period in which such rights expire. If WPI ceases making any such rights available, WPI will not refund any portion of your fees, but you may contact customer support to receive appropriate replacement rights.
Customer Support. Please direct any questions concerning the Service or any other WPI, Birdtones, or Wildtones-related issue, to a Birdtones/Wildtones customer service representative by e-mail at: firstname.lastname@example.org.
CHARGES / BILLING
Agreement to Pay. By completing the registration process, you authorize WPI to charge the appropriate fees to your designated credit card or directly to your mobile telephone invoice, as selected by you, and if you select a monthly fee subscription plan, you authorize the continued billing each month until you cancel such subscription. If any of your billing information changes (e.g., new credit card number, new address or email address, new Phone Number or service, etc.), you must update that information in the "My Account" area of the Birdtones or Wildtones Website, as applicable. If you cancel your account or subscription for any reason, WPI will not refund any of your fees paid to date. Monthly subscribers are billed on a 30-day cycle, which begins on the first day you sign up for the subscription and ends 30 days thereafter (each, a "Subscription Month"). Your credit card or telephone bill will be charged on the first day of each Subscription Month.
Refunds and Exchanges. All Items for sale are available on the website where you can listen to the sounds and preview the images before purchasing. Please select carefully as no refunds or exchanges are given.
Right to Change Fees. All fees are subject to change upon notice from WPI. WPI will provide you with reasonable notice of such change. If you do not accept the new fees (which will be applicable on a prospective basis only), you will have 10 days from such notice to cancel your subscription and/or your account.
Taxes. WPI reserves its right to collect applicable taxes and impose premium surcharges for certain features of the Service.
Electronic Contracts. WPI may include in the Service the ability for you to make electronic purchases. You acknowledge and agree that any submissions you make for electronic purchases constitute your intent and agreement to be bound by the terms of and to pay for such purchases. You may withdraw your consent to enter into such electronic agreements by giving written notice to WPI, but if you do so, you will not thereafter be able to make any electronic purchase(s). To the extent that such electronic purchases are offered to you by a third party, you acknowledge that WPI shall not be responsible or liable to you for the products or services purchased. The provisions of this paragraph do not apply to your agreement and arrangements to pay fees to WPI for Downloads; that arrangement is addressed in the Agreement to Pay section above.
OBJECTIONABLE OR EXPLICIT CONTENT
WPI is not responsible to you for any content or materials constituting all or part of any Download or any other aspect of the Service that you might find objectionable.
General. The Service may feature Messaging Systems that 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 Birdtones and/or Wildtones members and subscribers and third parties. WPI has the right but not the obligation to monitor and edit or remove any activity or content in such Messaging Systems. WPI 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 the Messaging Systems.
Restrictions. You may not use the Service (or any part of it, including but not limited to the Messaging Systems) to upload, post, transmit, display, perform or otherwise make available to other subscribers, members or third-parties any messages, content or materials that are illegal, obscene, threatening, defamatory or invasive of privacy; violate (intentionally or unintentionally) a contractual, fiduciary or confidentiality obligation or duty you have to any third party; infringe intellectual property or other third-party rights; harm minors in any way; comprise or contain software viruses or other computer code designed to interfere with the functionality of any computer systems, software or hardware; interfere with or disrupt the Service (including the flow of dialogue or other exchange of information in any Messaging System) or any networks or servers connected to or by the Service; constitute unsolicited bulk email, political campaigning, commercial solicitation, chain letters, pyramid schemes, mass mailings, or any form of spam; or violate (intentionally or unintentionally) any applicable local, state, national or international law. In addition, you may not use a false email address, impersonate any person or entity (including but not limited to other subscribers, members and employees of WPI, its affiliates, licensees or licensors), or otherwise mislead other subscribers, members or third parties as to your identity or to the origin of a message or content. You understand and agree that any 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 use of the Service is solely your responsibility.
WPI's Rights. 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 WPI, its partners, parents, subsidiaries, agents, affiliates, licensees and/or licensors, as applicable, for all claims resulting from content, messages, materials and the like that you supply.
In addition to the above, you acknowledge and agree that WPI 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 faith 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 party's rights; or to protect the rights, property or personal safety of WPI, its business partners, affiliates, licensors and/or licensees, any other WPI subscriber or member, or the general public.
Currently, the Service is only available to residents of the United States. You understand and acknowledge that you may not sign up for, access, or attempt to access or use the Service from countries outside of the U.S. You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission, the Messaging Systems or otherwise, any content or software subject to restrictions under such laws to a national destination or person prohibited under such laws.
General. The Service, including the Downloads, and portions of them, may contain or comprise copyrighted and/or proprietary subject matter. Your rights with respect to your use of the same are governed by all the terms and conditions of this Agreement, all applicable laws, including but not limited to intellectual property laws, and any applicable end-user license agreements. For the avoidance of doubt, your use of the Service and the Downloads is under license; you will not obtain any ownership interest in any of them through this Agreement or otherwise.
Notices. WPI respects the intellectual property rights of others, and it expects you to do the same. If you know of or suspect that any use of the Service or the Downloads constitutes copyright infringement, please send a notice to customer service at Birdtones or Wildtones by email to email@example.com The notice must contain the following information: (a) a physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner's behalf; (b) description of the copyrighted work(s) that is/are allegedly being infringed; (c) the location of the allegedly infringed work(s); (d) your current contact information (e.g. address, Phone Number, and email address); (e) a statement that you have a "good faith belief" that the use of the complained-of copyrighted work(s) is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you signed under penalty of perjury that all the information you provide in the notice is accurate and that you are the copyright owner or a person authorized to act on the copyright owner's behalf (all of this collectively is a "Notice").
WILDTONES ®, all trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with the Service are the property of WPI and/or its affiliates, licensors and/or licensees. You may not copy, display or use any of these marks without prior written permission of the mark owner.
VIOLATION OF INTELLECTUAL PROPERTY RIGHTS
If WPI (a) receives a Notice alleging that you have engaged in infringing behavior or (b) reasonably suspects that your use of the Service or the Downloads violates WPI's or others' intellectual property rights, WPI may, in its sole discretion, suspend or terminate your account with or without notice to you. If WPI suspends or terminates your account under this paragraph, it shall have no liability or responsibility to you, and WPI will not refund any portion of your fees charged to date.
In addition to the restrictions set forth above, you acknowledge and agree that you may not copy, distribute, sell, resell or exploit for any commercial purposes, any portion of the Service (or any Downloads accessible on or through the Service), or your user name or password.
PROMOTIONS AND ADVERTISING
WPI and/or its business partners may present advertisements and promotional materials on or through the Service. Your participation in any WPI 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 WPI 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 parties on the Service.
LINKS TO THIRD-PARTY SITES
The Service may present links to retailers and/or other third-party websites not owned or operated by WPI. These links are provided only as a convenience to you. Neither WPI nor its business partners are responsible for the availability of these outside sites or their contents. You understand and agree that neither WPI nor its business 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
WPI reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice to you. You agree that neither WPI nor its affiliates or licensors shall be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
You understand and agree that any unauthorized use of the Service or the Downloads would result in irreparable injury to WPI and/or its affiliates or licensors for which money damages would be inadequate, and in such event WPI its affiliates and/or licensors, 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 WPI, its affiliates and/or licensors may have under separate legal authority, including but not limited to, any claim for intellectual property infringement.
You agree to indemnify and hold harmless WPI and its agents, employees, representatives, licensors, directors, affiliates, parents and subsidiaries from and against any and all claims, actions, demands, causes of action and other proceedings arising from or concerning your use of the Service, including the Messaging Systems and the Downloads (collectively "Claims"), and to reimburse them on demand for any losses, costs, judgments, fees, fines and other expenses they incur (including attorneys' fees and court costs) as a result of any Claims.
TERMINATION, CANCELLATION AND PLAN CHANGES
Except as set forth above with respect to inadvertent charges, in the event that your account or subscription is terminated or canceled, WPI will not refund any fees.
If you are a monthly subscriber, you may also wish to change to a different plan, where available, than the one to which you may then be subscribed. If you choose to upgrade your plan, you will be charged the difference between the current and upgraded plan for the then-current Subscription Month. If you choose to downgrade your plan, you will be charged the lesser amount for the new plan during the next Subscription Month.
You understand and agree that your use of the Service and the Downloads is at your own sole risk. THE SERVICE AND THE DOWNLOADS ARE PROVIDED "AS IS" AND WITHOUT WARRANTY BY WPI OR ITS AGENTS, EMPLOYEES, PARENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS (THE "WPI ENTITIES"), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, WPI AND THE WPI ENTITIES, AS APPLICABLE, 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 DOWNLOADS WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE. WPI AND/OR THE WPI 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 DOWNLOADS WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. YOU WILL NOT HOLD WPI AND/OR THE WPI ENTITIES, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING THE SERVICE OR USING THE SERVICE, AND/OR THE DOWNLOADS 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 WPI AND/OR THE WPI ENTITIES AS APPLICABLE.
UNDER NO CIRCUMSTANCES SHALL WPI AND/OR THE WPI ENTITIES AS APPLICABLE, BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE AND/OR THE DOWNLOADS.
PLEASE BE AWARE THAT YOU ARE RESPONSIBLE FOR TELLING US WHICH HANDSET YOU HAVE, AND WPI AND/OR THE WPI ENTITIES ASSUME NO RESPONSIBILITY IF YOU INCORRECTLY DESIGNATE YOUR HANDSET OR PURCHASE CONTENT OR MATERIALS THAT DO NOT WORK ON IT OR ARE INAPPROPRIATE TO IT.
UNDER NO CIRCUMSTANCES SHALL WPI AND/OR THE WPI ENTITIES AS APPLICABLE, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING 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 DOWNLOADS, EVEN IF WPI AND/OR THE WPI ENTITIES AS APPLICABLE, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL 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 SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, WPI AND/OR THE WPI 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.
LAW AND LEGAL NOTICES
This Agreement and any other terms or documents referred to herein represent your entire agreement with WPI with respect to your use of the Service. You understand and agree that, except as expressly set forth herein, this Agreement is not intended to confer and does not confer any 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. WPI's 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 New York , excluding its conflicts-of-law rules, govern this Agreement and your use of the Service, including the Messaging Systems and the Downloads. You expressly agree that the courts in the State of New York, New York County have exclusive jurisdiction over any claim or dispute with WPI or relating in any way to your account or your use of the Service, the Messaging Systems or the Downloads. You further agree and expressly consent to personal jurisdiction over you in the federal and state courts of New York County in connection with any such dispute including any claim involving WPI or its partners, parents, licensors, affiliates, subsidiaries, employees, contractors, officers, directors or suppliers.