THUMBPLAY TONES TERMS AND CONDITIONS OF USE AGREEMENT
Effective October 11, 2013
Thanks for using Thumbplay Tones! This agreement ("Agreement") is a contract between you and Thumbplay Ringtones, LLC ("THUMBPLAY TONES" or "Thumbplay Tones"). By visiting or using the THUMBPLAY TONES web site (http://www.thumbplaytones.com), using the Thumbplay Tones Widgets or by completing the registration process to use the THUMBPLAY TONES Subscription services (the "Services" or "THUMBPLAY TONES Services"), you agree to be bound by the following terms and conditions (the "Terms of Service" or "Terms"). Notwithstanding the foregoing, your use of the Thumbplay Music™ software application is governed by the Thumbplay® Music Terms and Conditions, which is owned and operated by an unaffiliated entity.
The THUMBPLAY TONES Services are not directed to individuals under the age of 18 and you must be at least eighteen (18) years of age to use the THUMBPLAY TONES Services. By providing information to THUMBPLAY TONES through the account registration page for new customers or any other part of the THUMBPLAY TONES site, you represent to THUMBPLAY TONES that you are 18 years of age or older.
If you do not agree to be bound by (or cannot comply with) any of the terms and conditions of this Agreement, do not continue the registration process or attempt to access any part of the Services. THUMBPLAY TONES reserves the right to deny registration of any individual to the THUMBPLAY TONES Services and to deny access to this website to any individual.
1. THE THUMBPLAY TONES SERVICES & BILLING INFORMATION
The rates and fees associated with the use of the THUMBPLAY TONES Services will be provided to you at the time you choose to make a purchase via the Services. Any such fees shall be due immediately and are non-refundable except as permitted during the Refund Period (as described below in this Section), unless otherwise indicated to you in writing by THUMBPLAY TONES. Other third party charges, such as from your carrier, may apply when you register for and/or use any Services. Please review your agreement with your carrier or contact your carrier for more details. All fees are subject to change upon notice of such change in fees prior to the new fees taking effect. You will be asked to either opt-in to such fee change in which case your subscription will continue at the new price, or if you do not opt-in your subscription will be terminated at the end of the then-current billing period.
On the Services you may receive credits ("Credits") that you may redeem for Downloads (defined below) as described in these Terms of Service. Unless otherwise stated in these Terms of Service, any unused Credits at the end of any month will not be carried over to any future period and you will lose your right to access or use those unused Credits. THUMBPLAY TONES has the right to set the terms and conditions for, modify and/or eliminate the right to receive, use and/or redeem Credits in the Services as it may determine in its sole discretion.
Refund Policy. If you purchase the Premium Membership and are not satisfied with the Service for any reason during the first 90 (ninety) days after commencement of the Service (“Refund Period”) or if you cancel your Premium Membership within the Refund Period, then you may receive a refund of the fees that you paid for the particular Premium Membership for one billing period only – i.e. one month’s fees. You will not receive a refund of any other fees paid for the Premium Membership. You may notify us to cancel the Premium Membership and request a refund: by telephone at 1-877-848-6299 or by email to firstname.lastname@example.org which email must include the subject line "Refund Request". Refunds will be issued via check and sent to a mailing address you designate upon requesting your refund. Termination and refund as set forth in this Section are your sole and exclusive remedies in the event that you are not satisfied with any Services. Once the Refund Period has ended all fees (including those fees paid for the Refund Period) are non-refundable for any reason, including but not limited to technical issues or interruptions with the Services.
The THUMBPLAY TONES Services include downloadable mobile entertainment, such as ringtones and graphics (collectively, the "Downloads"). You may purchase the Downloads through the Thumbplay Tones Subscription Services where you will receive multiple Downloads according to a specified schedule ("Subscription" or "Subscription Service"). Once fully registered and after making payment or being subscribed to the Services, you will be permitted to download to compatible devices the Downloads you requested.
You must have an internet-enabled cell phone or device in order to access the THUMBPLAY TONES Subscription Services. Message and data rates and taxes may apply to any content you obtain from THUMBPLAY TONES. THUMBPLAY TONES is not responsible for any surcharges you incur from your cell phone or internet service provider as a result of the use of the THUMBPLAY TONES website or Services. Note that in the event you do not have a data plan with your carrier, you will likely be charged extra data charges by your carrier in accordance with the rates set forth in your agreement with your carrier. Thumbplay Tones recommends that all THUMBPLAY TONES users sign up for unlimited data plans.
The Subscription Services - By registering for a Subscription Service you authorize your mobile network provider to bill your mobile phone bill for the monthly subscription fee or deduct such fee from your prepaid balance. Monthly Subscription plans are billed the Subscription fee each month until you cancel the Subscription. 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 (your "Billing Cycle"). Your billing method will typically be charged on the first day of each Billing Cycle. You agree that message and data rates may apply. Unused Credits do not roll-over to the next month.
You agree that if any attempt to bill you for your Subscription fails for any reason, including non-payment by you or errors on the part of your mobile telephone company, your mobile network provider may re-bill you for any outstanding fees. Subscription credits may not be provided until billing is successful.
Text Message Communications - You expressly agree that, as part of the service provided by THUMBPLAY TONES, you will receive communications from THUMBPLAY TONES by text message (SMS), You may stop receiving text messages by clicking here, or following the opt-out instructions in the text message. You may receive your password confirmation text message multiple times until you complete the sign-up process. If you would like to stop receiving the password confirmation text messages, please email us at email@example.com.
Thumbplay Ringtones, LLC. and/or its Affiliates may deliver messages (e.g., SMS text messages) related to Services you have ordered to your mobile phone. These may include (without limitation) responses to messages you send to us (e.g. if you text STOP or HELP), delivery of content that you have requested (e.g., ringtones, daily jokes, etc.), or messages related to the status of your account with us (e.g., confirmation of your order, notification of up-coming renewals, etc.). Thumbplay Ringtones, LLC. may present advertisements and promotional materials on or through the Website, but will not deliver marketing messages to your mobile phone without your prior express written consent. Your participation in any promotional event is subject to any applicable Rules associated with that event as described on the Website. Other third party charges, such as from your Carrier, may apply when you participate in such an event. Please review your agreement with your Carrier or contact your Carrier for more details. Your correspondence or business dealings with, or participation in promotions of, any third-party advertisers on or through the Website, 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 Thumbplay Ringtones, LLC. nor its Affiliates shall be responsible or liable, directly or indirectly, 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 Website.
Right to Change Fees - All fees are subject to change upon notice from your mobile network provider (with respect to fees billed to your mobile phone bill). If you do not agree to the new fees, you will have 10 days from such notice to cancel your Subscription.
Taxes - Your mobile network provider reserves the right to collect applicable taxes for certain features of the Services.
Expiration of License - Please note that access to Downloads not saved to your mobile device may terminate from time to time in the event that THUMBPLAY TONES' rights to make available to you certain Downloads expires. In such event, any such downloads available via the "My Locker" section of the Services will no longer be accessible. THUMBPLAY TONES will cease delivering a playback license to you after the end of the period in which such rights expire. You may contact customer support at firstname.lastname@example.org to receive replacement credit in the event your Download expires.
Help - Text 'HELP' to 48000 for text information on your THUMBPLAY TONES Subscription Service.
2. CANCELLATION & TERMINATION
If you have the Thumbplay Tones Subscription Service, you can cancel by sending a text message from your mobile device containing only the word(s) 'STOP' or 'STOP SUB' to the shortcode 48000.
Cancellation for subscribers will take effect immediately and all unredeemed credits will be forfeited. Services are not pro-rated for mid-month cancellations. THUMBPLAY TONES will send you a text message confirming the cancellation. If you have any questions about cancellation please contact our customer service at email@example.com.
Share Service - The THUMBPLAY TONES Share Service has been discontinued. As of June 29th, 2009, user data stored as part of the Share Service is no longer available. THUMBPLAY TONES assumes no liability with respect to information uploaded by users, or loss of information caused by user's failure to backup personal data as part of the Share Service. If you have any other questions regarding the THUMBPLAY TONES Share Service, please contact a customer service representative by e-mail at: firstname.lastname@example.org.
Termination - THUMBPLAY TONES reserves the right, at its sole discretion, to terminate your permission to access and use your THUMBPLAY TONES account and/or the THUMBPLAY TONES website for any reason at any time without notice, including in the event that THUMBPLAY TONES reasonably believes that you have breached or acted inconsistently with any provision of the Terms. You acknowledge and agree that THUMBPLAY TONES shall have no liability or responsibility to you for termination or suspension of your access or use.
3. ACCEPTABLE USE OF THUMBPLAY TONES
By downloading and/or using the THUMBPLAY TONES Services, you agree that THUMBPLAY TONES grants you a non-exclusive, non-transferable, revocable right to use the THUMBPLAY TONES Services on your compatible device for your own personal, non-commercial use only. Your use of the THUMBPLAY TONES Services means you also agree to the following acceptable use policies:
Personal, Non-Commercial Use Only - The Thumbplay Tones Services are for your personal, non-commercial use only. You understand and agree that you may not resell, transmit or re-transmit, broadcast or re-broadcast or make any commercial use of the Services, including the Downloads, Subscriptions, and Widgets. For example, you may not copy or distribute the Downloads, Subscriptions or, Widgets in any manner not expressly authorized by Thumbplay Tones. If you want to make commercial use of the THUMBPLAY TONES Services, you must enter into an agreement with THUMBPLAY TONES to do so in advance. Please contact us for more information. In any event, you understand and acknowledge that your rights with respect to the Downloads, Subscriptions, or Widgets will be limited by copyright law and other applicable laws.
Objectionable or Explicit Content - THUMBPLAY TONES may contain content or materials that you may find objectionable. THUMBPLAY TONES does not warrant, and makes no guarantee or representation, that you will not find all or part of any Download or Subscription to be objectionable. Parents should use appropriate parental discretion in determining whether you want to authorize minor children to access the Services.
International Use - THUMBPLAY TONES is hosted in the United States and is intended only for use in the United States. You agree that you will use the Services only in the United States. At this time, THUMBPLAY TONES' Services are not available to overseas visitors.
Intellectual Property Rights - The Downloads, Widgets and Applications made available as part of the Services are owned by THUMBPLAY TONES, its licensors, partners and affiliates and are protected by U.S. intellectual property laws. Without limiting the generality of the foregoing, you do not receive any rights to any patents, copyrights, trade secrets, trademarks or other intellectual property rights relating to or in the Downloads, Widgets, or any accompanying documentation. By using the THUMBPLAY TONES Services you understand and agree to abide by U.S. intellectual property laws and agree not to reproduce, modify, scrape, cache, frame, display, perform, transfer, distribute, create derivative works from, or otherwise use the Services except as authorized in this Agreement, and agree not to authorize, encourage or allow such use by any other party. You agree not to make any use of the Services that would infringe the copyright therein. You agree that you will take all reasonable steps to prevent any unauthorized reproduction and use of the Downloads, or Widgets. All rights not expressly granted to you under this Agreement are reserved by Thumbplay Tones.
"Bots", Hacking and Other Unauthorized Use - You will not use the Downloads, Subscriptions, Widgets, or other Services to engage in or allow others to engage in any illegal activity. Users of THUMBPLAY TONES may not attempt (or authorize, encourage or support others' attempts) to (i) gain unauthorized access to any THUMBPLAY TONES Services, user accounts or computer networks through hacking, password mining or any other means, or to reverse engineer, decompile, decrypt, break, disassemble, derive the source code of, modify, or create derivative works from; or (ii) unlawfully use, copy, modify, alter, or transfer, electronically or otherwise; or (iii) redistribute, sell, rent, lease, sublicense, or otherwise transfer rights to, whether in a stand-alone configuration or as incorporated with other software code written by any party except as expressly permitted in these Terms; (iv) decrypt, break or otherwise alter or interfere with the Services, including the Downloads (or any security component of the Downloads), Widgets or, Subscriptions. You may not use any web robots (bots'), web crawlers, data-mining, or similar applications to submit, gather and extract data from, or otherwise use the THUMBPLAY TONES Services. You agree to advise THUMBPLAY TONES promptly of any such unauthorized use(s) or attempt(s). You may not interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services, or act in a manner that negatively affects the ability of other users to use the Services.
You will not use the Services to engage in any activity that will violate the rights of third parties, including, without limitation, through the use, public display, public performance, reproduction, distribution, or modification of communications or materials that infringe copyrights, trademarks, publicity rights, privacy rights, other proprietary rights, or rights against defamation of third parties.
You will not transfer the Services, or utilize the Services in combination with third party software authored by you or others to create an integrated software program which you transfer to unrelated third parties.
Customer Support - Please direct any questions concerning the Service or any other THUMBPLAY TONES-related issue, to a THUMBPLAY TONES customer service representative by e-mail at: email@example.com.
4. THIRD PARTY CONTENT APPEARING ON THE THUMBPLAY TONES SITE
THUMBPLAY TONES Promotions - From time to time THUMBPLAY TONES may provide users with the opportunity to participate in promotional events sponsored by third party advertisers or affiliates. Your participation in any THUMBPLAY TONES promotional event is subject to the terms associated with that event. Your participation in these promotions and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the sponsoring third-party. You agree that neither THUMBPLAY TONES nor its affiliates shall be responsible or liable for any loss or damage of any sort incurred as the result of the promotions or as the result of the presence of such third parties on the Services.
5. THUMBPLAY TONES PROPRIETARY RIGHTS
General - Your use of the Services is under license; you will not obtain any ownership interest in any of the Services through this Agreement or otherwise. All content in the Services or on the THUMBPLAY TONES website, such as the, Downloads, Subscriptions, Widgets, text, graphics, logos, button icons, images, data compilations, and software, is the property of THUMBPLAY TONES or its content suppliers and protected by United States and international copyright and other intellectual property laws. The compilation of all content on this site is the exclusive property of THUMBPLAY TONES and protected by U.S. and international copyright 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.
Trademark Information - All trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with the Services are the property of THUMBPLAY TONES and/or its affiliates, licensors and/or licensees. Without THUMBPLAY TONES' prior permission, you agree not to display or use the THUMBPLAY TONES' marks in any manner, including but not limited to handbills or posters. You agree that you will not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Downloads, Widgets, or any accompanying documentation.
6. GENERAL TERMS
Applicable Law - These Terms of Service and your use of the Services, including the Downloads, Widgets, and Subscriptions, will be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of law principles. You expressly consent that the state or federal courts of San Francisco County, California shall have exclusive jurisdiction and venue over any dispute arising out of or relating to these Terms or any claim involving THUMBPLAY TONES or its partners, parents, licensors, affiliates, subsidiaries, employees, contractors, officers, directors or suppliers, and you hereby covenant that you will not bring suit in any other jurisdiction.
Severability of Terms - If for any reason a court of competent jurisdiction finds any provision or portion of the Terms of Service to be 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 remainder of the Terms of Service will continue in full force and effect.
Assignment of Terms - These Terms may not be assigned by any user of THUMBPLAY TONES. These Terms may be assigned by THUMBPLAY TONES and shall inure to the benefit of THUMBPLAY TONES, its successors and assigns.
No Right of Survivorship or Transferability - You agree that your Thumbplay Tones account, including any optional profiles you may create, is non-transferable and any rights to your account or the contents thereof terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
THUMBPLAY TONES' Remedies - You agree that any unauthorized use of the Services or the Downloads would result in irreparable injury to THUMBPLAY TONES and/or its affiliates or licensors for which money damages would be inadequate. In such event THUMBPLAY TONES 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. Nothing contained in these Terms shall be construed to limit remedies or relief available pursuant to statutory or other claims that THUMBPLAY TONES, its affiliates and/or licensors may have, including but not limited to, any claim for intellectual property infringement. For the avoidance of doubt, the licensors of content to Thumbplay Tones are intended beneficiaries of this Agreement and shall have the right to enforce this Agreement against you. Such licensors of content reserve all rights under law and in equity.
Indemnity - By using the THUMBPLAY TONES Services, you agree to indemnify and hold THUMBPLAY TONES, its affiliates, partners employees, directors, successors and assigns, 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 Services, including the Downloads, the Widgets, Subscriptions, and Applications, your violation of these Terms, or your violation of any rights of another party.
7. DISPUTE RESOLUTION
You and THUMBPLAY TONES agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction with respect to any Dispute related to the actual or threatened infringement, misappropriation or violation of a party's intellectual property or proprietary rights. You acknowledge and agree that you and THUMBPLAY TONES are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and THUMBPLAY TONES otherwise agree, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of this Agreement.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/si.asp?id=3477 and a separate form for California residents at www.adr.org/si.asp?id=3485.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and THUMBPLAY TONES otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and THUMBPLAY TONES submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the Terms of Service of the "Disclaimer of Warranties & Limitation of Liability" section below as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. THUMBPLAY TONES will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, THUMBPLAY TONES will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the "Changes in Terms and Conditions and THUMBPLAY TONES Services" section below, if THUMBPLAY TONES changes this "Dispute Resolution" section after the date you first accepted this Agreement (or accepted any subsequent changes to these Terms of Service), you may reject any such change by sending us written notice (including by email firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the "Last Updated Date" above or in the date of THUMBPLAY TONES's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and THUMBPLAY TONES in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
8. DISCLAIMER OF WARRANTIES
By using the THUMBPLAY TONES Services you expressly understand and agree that: the THUMBPLAY TONES Services, and all downloads, software, materials, applications, information, products and services included in the THUMBPLAY TONES Services are provided "as is" with no warranties by THUMBPLAY TONES or its agents, employees, parents, subsidiaries, affiliates, licensors, business partners and/or suppliers (the "THUMBPLAY TONES entities"). THUMBPLAY TONES and the THUMBPLAY TONES entities expressly disclaim to the fullest extent permitted by law all express, implied, and statutory warranties, including, without limitation, warranties that any software provided is free of defects, viruses, able to operate on an uninterrupted basis, the warranties of merchantability, fitness for a particular purpose, non-infringement of proprietary rights and any warranties arising out of the course of dealing or usage of trade. No use of the Services is authorized hereunder except under this disclaimer.
THUMBPLAY TONES and the THUMBPLAY TONES entities disclaim any warranties that the Services will meet your requirements, or that your access to the same will be uninterrupted or error-free. THUMBPLAY TONES and/or the THUMBPLAY TONES entities, do not warrant, guarantee, or make any representations regarding the use or the results of the use of the Services with respect to the accuracy, operability, availability, security, reliability, timelines, and performance of the THUMBPLAY TONES Services. THUMBPLAY TONES 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 THUMBPLAY TONES 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 THUMBPLAY TONES and/or the THUMBPLAY TONES entities responsible for any damages that result from you using the Services 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 THUMBPLAY TONES and/or the THUMBPLAY TONES entities as applicable. THUMBPLAY TONES and the THUMBPLAY TONES entities disclaim any warranties for services or goods received through or advertised on the THUMBPLAY TONES Services or received through any links provided by the THUMBPLAY TONES Services.
9. LIMITATION OF LIABILITY
Under no circumstances, shall THUMBPLAY TONES and/or the THUMBPLAY TONES entities as applicable, be liable for any unauthorized use of the Services.
Under no circumstances, including, but not limited to, negligence, shall THUMBPLAY TONES or the THUMBPLAY TONES entities be liable for any direct, indirect, special, incidental or consequential damages, including, but not limited to, loss of data or profit, loss of goodwill, work stoppage, computer failure or malfunction, arising out of the use of, reliance on, or the inability to use, the Services, or from the interruption, non-performance, suspension, or termination of the THUMBPLAY TONES Services (including such damages incurred by third parties), or for any damages in excess of the amount paid for the specific item of content giving rise to the applicable claim for damages, even if THUMBPLAY TONES and/or the THUMBPLAY TONES entities as applicable, have been advised of the possibility of such damages. In no event will THUMBPLAY TONES' AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR YOUR USE OF OR INABILITY TO USE THE SERVICES EXCEED FIFTY U.S. DOLLARS ($50).
This limitation shall also apply with respect to damages incurred by reason of advice, information, services or goods received through, or advertised on the THUMBPLAY TONES Services or received through any links provided in the THUMBPLAY TONES Services.
Without limiting the foregoing, THUMBPLAY TONES 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.
Exclusions and limitations - some states or other jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages so the above exclusions may not apply to you. You may also have other rights that vary from state to state and jurisdiction to jurisdiction.
Suggestions - Thumbplay Tones welcomes suggestions for enhancing its Services and any accompanying documentation that may result in computer programs, reports, presentations, documents, ideas or inventions relating or useful to Thumbplay Tones' business. You acknowledge that all title, ownership rights, and intellectual property rights concerning such suggestions shall become the exclusive property of Thumbplay Tones and may be used for its business purposes in its sole discretion without any payment or accounting to you.
10. COPYRIGHT POLICY
Thumbplay Tones respects copyright law and expects its users to do the same. It is Thumbplay Tones' policy to terminate in appropriate circumstances account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Thumbplay Tones' Copyright Policy, for further information.
11. CHANGE IN TERMS AND CONDITIONS AND THUMBPLAY TONES SERVICES
THUMBPLAY TONES 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. Use of this service following a change to the Terms of Service constitutes agreement to the new Terms. If you cannot comply with the amended Terms of Service, your only remedy is to cancel your THUMBPLAY TONES Subscription and/or not use the Services.