Revised Effective July 18, 2005

IMPORTANT - THE FOLLOWING TERMS AND CONDITIONS ARE A LEGALLY BINDING AGREEMENT AND BY USING THIS WEBSITE OR SELECTING THE YES OPTION WHEN YOU DOWNLOAD ANY MATERIAL FROM QTONES, YOU ARE INDICATING THAT YOU ACKNOWLEDGE AND AGREE TO BE BOUND BY THESE TERMS.

Welcome to Qtones! This agreement ("Agreement") is a contract between you and Qtones, Inc. (d/b/a Qtones) and governs your use of this web site (“Qtones Website”) and all Downloads (as defined below) from Qtones (collectively, the "Service"). By accepting this Agreement, you represent that (a) you read and understood this Agreement and agree to be bound by its terms and conditions, (b) you are the person or entity responsible for the wireless account associated with the mobile number provided, (c) you are responsible for all services used through that wireless account, and (d) you are at least 18 years of age or if you are under 18, you must get the consent of your parent or guardian to obtain Downloads and Qtones will be entitled to conclude that you have obtained such consent if you proceed with a Download. 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 download process by clicking on “CANCEL”.

NOTICE
Qtones 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.Qtones.com/terms.html. If you do not agree to be bound by (or cannot comply with) the Agreement as amended, you agree that your sole remedy is to cease using the Service by texting “STOP” to 40100. Your continued use of the Service constitutes your agreement to be bound by the amended Agreement.

DESCRIPTION OF SERVICE The Service is available via supported wireless devices, making available to you downloadable mobile entertainment, such as ringtones, voice mail, games and graphics (collectively, the "Downloads").

USE OF SERVICE You agree that you will not allow unauthorized individuals to use your account as identified by your cellular phone number. You agree to indemnify and hold Qtones, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, harmless for any improper, unauthorized or illegal uses of your account.

Qtones shall be entitled to rely on the assumption that the person or entity responsible for the wireless account for mobile handset to which content is downloaded is responsible for all use of the Service through that wireless account. Qtones will not issue refunds to persons or entities claiming that they did not authorize the use of their wireless account to receive a Download.  If you are under 18, you must get the consent of your parent or guardian to obtain Downloads. Qtones will be entitled to conclude that you have obtained such consent if you proceed with a Download.

You acknowledge and agree that certain Downloads accessible via the Service will only be supported by certain types of wireless device that will support that type of Download. For example, to download a polyphonic ringtone, you must have a wireless device that (a) supports polyphonic ringtones, (b) supports text messaging, and (c) has a plan that supports wireless Internet access. *Verizon Wireless users need to have PIX capable phones, internet-enabled is not required! Similarly, to download a monophonic ringtone, your wireless device must support monophonic ringtones and your plan must support text messaging. If you attempt to download any Download that cannot be supported by your wireless device, you agree that you will not be entitled to any refunds or credits. If you fail to receive a Download because of network congestion or unavailability, you may contact Qtones at failed@Qtones.com, and Qtones will redeliver such Download. In no event will Qtones provide any refunds to you for the inability to download any Downloads.

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 Qtones promptly of any such unauthorized use(s) or attempt(s). You understand and acknowledge that the Downloads made available as part of the Service are owned by Qtones, its business partners, affiliates and/or licensors, as applicable, and are protected by intellectual property laws. Qtones 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.

In such event, Qtones can no longer grant to you the license or rights necessary for you to play back any such Downloads after the end of the period in which such rights expire, your rights to use the applicable content shall expire upon notice from Qtones. If Qtones is unable to make any previously granted rights available to you, Qtones will not be obligated to refund any portion of your fees, but you may contact customer support to receive an agreed upon replacement Download, if available.

Please direct any questions concerning the Service or any other Qtones-related issue, to a Qtones customer service representative by e-mail at: support@Qtones.com.

CHARGES / BILLING
Agreement to Pay. By completing the download process, you authorize your wireless carrier to charge appropriate fees directly to your wireless service bill.
Other charges may apply.

Taxes. You agree that your wireless carrier is authorized to collect any applicable taxes and impose any applicable premium surcharges that may apply to the use of certain features of the Service.

Electronic Contracts. Qtones 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 Qtones, 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 Qtones 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 Qtones for Downloads; that arrangement is addressed in the Agreement to Pay section above.

OBJECTIONABLE OR EXPLICIT CONTENT
Qtones is not responsible to you for any content or materials contained in all or part of any Download or any other aspect of the Service that you might find objectionable.

INTERNATIONAL CONSIDERATIONS
Currently, the Service is only available to residents of the United States and Canada. 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. and Canada. You agree to abide by U.S., Canadian and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a national destination or person prohibited under such laws.

PRIVACY
For additional information regarding Qtones' use of information collected in connection with the Service, please refer to Qtones' Privacy Policy, a copy of which is available at http://www.Qtones.com/privacyPolicy.asp

COOKIES

Qtones allows the use of cookies, similar to an Internet browser.  This allows any website to set cookies for you when you view any of the website’s content, unless you have disabled cookies. If you have disabled cookies, you may be asked to login each time you access the features and some Qtones services may not function properly. 

COPYRIGHT INFORMATION
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

Qtones 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 Qtones by email to support@Qtones.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").

VIOLATION OF INTELLECTUAL PROPERTY RIGHTS <
If Qtones (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 Qtones' or others' intellectual property rights, Qtones may, in its sole discretion, suspend or terminate your account with or without notice to you. If Qtones suspends or terminates your account under this paragraph, it shall have no liability or responsibility to you, and Qtones will not refund any portion of your fees charged to date.

TRADEMARK
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 Qtones 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.

NO RESALE
In addition to the restrictions set forth above, you expressly 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
Qtones and/or its business partners may present advertisements and promotional materials on or through the Service. Your participation in any Qtones 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 Qtones 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 Qtones. These links are provided only as a convenience to you. Neither Qtones nor its business partners are responsible for the availability of these outside sites or their contents. You understand and agree that neither Qtones 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
Qtones 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 Qtones nor its affiliates or licensors shall be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

REMEDIES
You understand and agree that any unauthorized use of the Service or the Downloads would result in irreparable injury to Qtones and/or its affiliates or licensors for which money damages would be inadequate, and in such event Qtones 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 Qtones, its affiliates and/or licensors may have under separate legal authority, including but not limited to, any claim for intellectual property infringement.

INDEMNITY
You agree to indemnify and hold harmless Qtones and its agents, employees, representatives, licensors, 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 (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
Qtones may in its sole discretion terminate this Agreement or suspend your account at any time with or without notice to you if you breach (or Qtones reasonably suspects that you have breached) any provision of this Agreement. If Qtones terminates this Agreement, or suspends your account for any of the reasons set forth in this paragraph, it shall have no liability or responsibility to you, and Qtones will not refund any portion of any fees paid by you for the use of the Service. You understand and agree that your cancellation of your account is your sole right and remedy with respect to any dispute with Qtones. This includes, but is not limited to, any dispute related to or arising out of: (a) any term of this Agreement or Qtones' enforcement or application of the same; (b) any policy or practice of Qtones, including its Privacy Policy, or Qtones' enforcement or application of these policies; (c) the Downloads; (d) your use of and/or ability to access and use the Service; and (e) the amount or type of fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods.

Qtones will not refund any fees, if it turns out that the requested ringtone is not compatible with your handset. It is your responsibility to test if your phone is compatible with both monophonic or polyphonic version at www.Qtones.com/OrderRingtones.asp.

DISCLAIMERS
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 QTONES OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS (THE "QTONES ENTITIES"), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, QTONES AND THE QTONES 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 OF THIRD PARTY RIGHTS. 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. QTONES AND/OR THE QTONES 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 QTONES AND/OR THE QTONES 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 QTONES AND/OR THE QTONES ENTITIES AS APPLICABLE.

UNDER NO CIRCUMSTANCES SHALL QTONES AND/OR THE QTONES ENTITIES AS APPLICABLE, BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE AND/OR THE DOWNLOADS.

UNDER NO CIRCUMSTANCES SHALL QTONES AND/OR THE QTONES 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 QTONES AND/OR THE QTONES 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, QTONES AND/OR THE QTONES 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 Qtones 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. Qtones’ failure to pursue any available claim or defense pursuant to this Agreement 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 Commonwealth of Virginia, excluding its conflicts-of-law rules, govern this Agreement and your use of the Service. Except for the right of Qtones to apply to a court of competent jurisdiction for a Temporary Restraining Order, a Preliminary Injunction, or other equitable relief to preserve the status quo or prevent irreparable harm pending the appointment of one or more arbitrators, or for Qtones’ right to bring a simple suit for outstanding moneys due Qtones under this Agreement, you expressly agree that the courts in the State of Virginia, Loudoun County have exclusive jurisdiction over any claim or dispute with Qtones or relating in any way to your account or your use of the Service or the Downloads. You further agree and expressly consent to personal jurisdiction over you in the federal and state courts of the Loudoun County in connection with any such dispute including any claim involving Qtones or its partners, parents, licensors, affiliates, subsidiaries, employees, contractors, officers, directors or suppliers.