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Terms of Service

  1. Acceptance of Terms
  2. Spoonjack, LLC ("Spoonjack") welcomes you to Whooptones ("Service"). Spoonjack provides the Service to you subject to the following Terms of Service ("TOS"), which may be updated by us from time to time without notice to you. You can review the most current version of the TOS at any time at: http://www.whooptones.com/info/terms/. In addition, when using the Service, you and Spoonjack shall be subject to any posted guidelines or rules applicable to the Service, which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into TOS.

  3. Description of Service
  4. The Service provides you the ability to make local and domestic long distance telephone calls using touch-tone telephones by dialing various access numbers made available on its Website (www.whooptones.com) ("Website"), entering a Personal Identification Number ("PIN") and dialing the called party. During such calls, it also provides you the ability to initiate playback of sounds such that all parties on a call may hear them. It also provides you the ability to record calls. In addition, you may create, store, and access sounds. You may keep these sounds for your private use, or publish them to others. You may assign private and published sounds to trigger events and otherwise create arrangements for use during calls. You may keep these arrangements solely for your own private use, or publish them to others known or unknown registered or unregistered with the Service. These services do not require you to change your current telephone service provider(s) in order to use the services.

    You also understand and agree that the Service may include certain communications from the Service, such as service announcements, and administrative messages, and that these communications are considered part of the Service and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, shall be subject to the TOS. You understand and agree that the Service is provided "AS-IS" and that Spoonjack assumes no responsibility for the deletion, or failure to store any user communications, content, or personalization settings. You also understand and agree that the Website may include advertisements and that these advertisements are necessary for Spoonjack to provide the service. You are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or telephone access charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service.

  5. Your Registration Obligations
  6. In consideration of your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Spoonjack has reasonable grounds to suspect that such information is untrue, inaccurate not current or incomplete, Spoonjack has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof) without reimbursement. Spoonjack. is concerned about the safety and privacy of all its users, especially children. You must be over the age of 13 in order use this service.

  7. Privacy Policy
  8. Registration Data and certain other information about you is subject to our Privacy Policy. For more information, see our full privacy policy at http://www.whooptones.com/info/privacy/. You understand that through your use of the Service you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing, and use.

  9. Opening an Account
  10. In order to become a customer of the Service, you must first complete an application form on the Website. As part of the application, you will provide the Service with a unique Username, Password, phone number, and PIN. The Service will then send you an electronic notification (in the form of an e-mail message) requesting you to confirm your registration. On confirmation, the Service will open an account. In order to place calls using the service, you must purchase credits for a preset dollar value. Upon confirmation of your purchase, your balance will be adjusted accordingly.

  11. Member Account, Password and Security
  12. You will receive a password, personal identification number (PIN) and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password, PIN, and account and are fully responsible for all activities that occur under your password, PIN, or account. You agree to (a) immediately notify Spoonjack, within one calendar day, of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Spoonjack cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.

  13. Access Numbers
  14. To place calls using the Service, you must dial a toll free number, optionally enter an additional access number, and then enter your PIN and destination telephone number. Before you use any local access number, check with your local telephone service provider to ensure that no toll charges are associated with calls to that local access number. Spoonjack will not reimburse you for any extra charges assessed by your local phone company as a result of dialing one of the Service's access numbers.

  15. Payment
  16. The Service is provided on a prepaid basis only. As you use the Service, your Account will be debited accordingly. No services will be provided if your Account does not have a sufficient balance to cover the cost of the Service.

  17. Recharging Account
  18. In the event you want to use the Service in such a way that the cost exceeds the remaining balance in your Account, you may access the Website and recharge (or supplement) your Account by purchasing additional service in non-refundable, preset dollar values.

  19. Rates
  20. The Service rates are listed on the Website and are incorporated by reference herein. You are responsible for checking all applicable rates/promotions before making any call using the Service. Subject to the provisions of Section 11 below, Spoonjack reserves the right, at its sole discretion, to modify its rates at any time and/or to offer special promotions. The Service rate structure is clearly outlined in the Service Website. In addition, though it is not the intent of Spoonjack to raise its rates at any point in the future, should market conditions or factors outside of Spoonjack's control cause its costs or wholesale rates to some or all destinations to go up, Spoonjack reserves the right to adjust its rates accordingly.

  21. Email Notification
  22. You are responsible for maintaining a current and operational email address and for reading email from the Service so that we can notify you of updates to the Service and any customer account information.

  23. Billing Increments
  24. Charges for telephone calls are measured in half minutes. All fractions of a minute are rounded up to the next half minute (e.g., a call which lasts 25 seconds will be charged for one half minute). Timing on calls begins when the call is answered by the called party. Timing terminates when the calling party hangs up or the Service's network receives an "on hook" signal from the terminating carrier. Spoonjack will not, and is not obligated to, provide refunds for any calls made using its service.

  25. Billing Information
  26. Spoonjack does not send invoices to its customers. Instead, you have confidential access to your billing information - for the current month and at least the prior three months - on the Website. You are responsible for printing out your monthly statements, and Spoonjack will not provide monthly invoices other than those available online.

  27. Billing Disputes
  28. You must notify Spoonjack by e-mail of any disputed charges within thirty (30) days of the charge being posted to your Account. Spoojack will attempt to resolve all disputes within thirty (30) days of being notified of a dispute. To the extent Spoonjack determines, at its sole discretion, that a billing adjustment is warranted, your Account will be credited accordingly. If you fail to notify Spoonjack of a billing dispute as noted above, you will waive all rights to bring any claim regarding the disputed charges.

  29. Toll Free Surcharges
  30. Spoonjack reserves the right to charge a surcharge for calls made from the following locations: (1) Payphones, (2)Hotels, (3)Dormitories, (4) Hospitals, and (5) Other commercial phone lines. This surcharge would cover charges imposed by the Federal Communications Commission to compensate owners for the use of their facilities to originate a phone call.

  31. Government Taxes
  32. Spoonjack reserves the right to pass any new government taxes, fees or surcharges on to customers by changing its rates.

  33. Ownership of Account
  34. Spoonjack recognizes that the person whose name is listed on the Account is the sole owner of the Account, even where payment on the Account is made using the credit card of a parent or other person.

  35. Cancellation
  36. You may discontinue service at any time upon notice (either electronic or written) to Spoonjack. We will then shut down access to your Account. You will not be entitled to any refund of the unused balance in your Account if you discontinue service. Additionally, you will remain responsible for payment of all charges for services rendered up through the date you discontinue service.

  37. Expiration Policy
  38. Your PIN and remaining balance will expire four (4) months from the date of sign up or last recharge on the Account. If you request an extension of the expiration period from Spoonjack (either written or electronic) prior to the expiration of the four (4) month period, Spoonjack may, at is sole discretion, attempt to provide you with an extension of the expiration date of your Account balance and your PIN. All extensions will be confirmed by Spoonjack via e-mail. Spoonjack is not obligated to provide you with such an extension nor is Spoonjack obligated to refund any remaining balance left in your Account.

  39. Member conduct
  40. You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not Spoonjack, are entirely responsible for all Content that you upload, post, transmit or otherwise make available via the Service. Spoonjack does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Spoonjack be liable in any way for any Content, including but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted, or otherwise made available via the Service.

    You agree to use the Service only for lawful purposes. You agree to not use the Service to (please not that this list is intended to be illustrative and not exhaustive; other uses may violate the TOS and Spoonjack. remains the sole and final arbiter of acceptable usage of the Service):

    1. upload, post, or otherwise transmit any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable material of any kind, including but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law. In particular, depending on the state in which you are located or the person you are calling is located, you may violate state law by recording a telephone conversation without informing the other party.
    2. Harm minors in any way;
    3. Impersonate any person or entity, including, but not limited to, a Spoonjack official, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
    4. Forge headers or otherwise manipulate identifiers of voice or data transmissions in order to disguise the origin of any Content transmitted through the Service;
    5. Upload, post, or otherwise transmit or make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information, learned or disclosed as part of employment relationships or under nondisclosure agreements);
    6. Upload post, or otherwise transmit or make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
    7. Upload, post, or otherwise transmit or make available any unsolicited or unauthorized advertising, promotional materials, "spam" calls, "pyramid schemes," or any other form of solicitation.
    8. Upload post, or otherwise transmit or make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
    9. Interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
    10. Intentionally or unintentionally violate any applicable local, state, national or international law;
    11. Provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
    12. "stalk" or otherwise harass another; and/or
    13. Collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through l above.

    You acknowledge that Spoonjack may or may not pre-screen Content, but that Spoonjack and its designees shall have the right (but not the obligation in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, Spoonjack and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Spoonjack for the Service or submitted to the Service.

    You acknowledge, consent and agree that Spoonjack may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonable necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Spoonjack, its users and the public.

    You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

    You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Spoonjack and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.

  41. Interstate Nature of Communications
  42. By using the Service, you acknowledge that in using the Service to send electronic communications (including but not limited to placing calls, initiated playback of content, creating and arranging content, and creating and publishing arrangements of content) you will be causing communications to be sent through Spoonjack's computer networks, portions of which are located in California, Texas, Seattle, Miami, and other locations in the United States and portions of which may be located abroad. As a result, even communications that seem to be intrastate in nature can result in the transmission of interstate communications regardless of where you are physically located at the time of transmission. Accordingly, by agreeing to the Terms of Service, you acknowledge that use of the service results in interstate data transmission.

  43. Special Admonitions for International Use
  44. Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

  45. Content Submitted or made available for Inclusion on the Service
  46. Spoonjack does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you publish and make accessible to the general public and/or other known and unknown registered users of the Service, you grant Spoonjack the worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content (in whole or in part) solely for the purposes of providing and promoting the Service.

  47. Indemnity
  48. You agree to indemnify and hold Spoonjack and any of its subsidiaries, affiliates, officers, agents, employees, agents, partners, and licensors harmless from and against any claims, actions, proceedings, expenses, damages and liabilities, including attorneys fees, made by any third party due to, arising out of, or in any way related, Content you submit, post, transmit or otherwise make available through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.

  49. No Resale of Service
  50. You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service (including your ID), use of the Service, or access to the Service.

  51. General Practices Regarding Use and Storage
  52. You acknowledge that Spoonjack may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that messages, comments, or other uploaded Content will be retained by the Service, the maximum number of electronic communications, including, but not limited to calls, messages, and other postings, tat may be sent from or received by an account on the Service, the maximum size and/or duration of any posting or Content that may be submitted to the Service, the maximum disk space that will be allotted on Spoonjack's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time.

    You agree that Spoonjack has no responsibility or liability for the deletion or failure to store any communications or Content maintained or transmitted by the Service. You acknowledge that Spoonjack reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that Spoonjack reserves the right to modify these general practices and limits from time to time.

  53. Modifications to Service
  54. Spoonjack 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. You agree that Spoonjack shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

  55. Modifications to Agreement
  56. Spoonjack may automatically amend this Agreement at any time by (a) posting a revised TOS on the Service Website, and/or (b) sending information regarding the amendment to the email address you provide to Spoonjack. YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THE WEBSITE TO OBTAIN TIMELY NOTICE OF SUCH AMENDMENTS. YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUING TO USE THE SERVICE AFTER SUCH AMENDMENTS HAVE BEEN POSTED OR INFORMATION REGARDING SUCH AMENDMENTS HAS BEEN SENT TO YOU. Otherwise, this Agreement may not be amended except in writing signed by both you and Spoonjack.

  57. Termination
  58. You agree that Spoonjack may, under certain circumstances and without prior notice, (a) immediately terminate your account and access to the Service, and remove associated Content, and/or (b) refuse to allow you to purchase additional access credits to your Account. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you, (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) engagement by you in fraudulent or illegal activities, and/or (h) nonpayment of any fees owed by you in connection with the Services.

    Termination of your account includes (a) removal of access to all offerings within the Service, including those available through the web and telephony interfaces, (b) deletion of your password and all related information, files and private content associated with or inside your account (or any part thereof), and (c) barring further use of the Service. In Spoonjack's sole discretion, it may also include the deletion of any content provided by you and made accessible to other known and unknown registered members and non-members of the Service. Further, you agree that all terminations for cause shall be made in Spoonjack's sole discretion and that Spoonjack shall not be liable to you or any third party for any termination of your account, or access to the Service.

  59. Dealings with Advertisers
  60. Your correspondence or business dealings with, or participation in promotions of, advertisers found 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 advertiser. You agree that Spoonjack shall not 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 advertisers on the Service.

  61. Links
  62. The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Spoonjack has no control over such sites and resources, you acknowledge and agree that Spoonjack is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Spoonjack shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.

  63. Spoonjack's Proprietary Rights
  64. You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Spoonjack or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part. Spoonjack grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree to not modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree to not access the Service by any means other than through the interface that is provided by Spoonjack for use in accessing the Service.

  65. Disclaimer of Warranties
  66. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

    1. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SPOONJACK AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
    2. SPOONJACK AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WIL LMEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
    3. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
    4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SPOONJACK OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
    5. A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE SERVICE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURS OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SERVICE, IMMEDIATELY DISCONTINUE USE OF THE SERVICE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SERVICE: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.

  67. Limitation of Liability
  68. YOU EXPRESSLY UNDERSTAND AND AGREE THAT SPOONJACK AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SPOONJACK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA: (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.

  69. Exclusions and Limitations
  70. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 33 AND 34 MAY NOT APPLY TO YOU.

  71. Force Majeure
  72. Spoonjack shall not be liable for its failure to perform any of its obligations under this Agreement if such failure is the result of a force majeure, including but not limited to acts of God, fire, strikes, explosions, power failure, earthquake, flood, water, labor disputes, terrorism, failure of any satellite or other connecting telecommunications facilities, or any other matter beyond the reasonable control of Spoonjack.

  73. No Third-party Beneficiaries
  74. You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement.

  75. Notice and Consent
  76. Spoonjack may provide you with notices, including those regarding changes to the TOS, by email, regular mail, or postings on the Service. In any matter requiring Spoonjack's prior consent, such consent will be considered given only if made in the foregoing manner by an authorized representative of Spoonjack. Notices given by you to Spoonjack must be given by email or by conventional mail (subject, however, to Spoonjack's verification procedures, as may be established by j2 Global from time to time in its sole discretion, and which may include the requirement that you contact Spoonjack by phone so as to confirm that any such notice was in fact sent by you).

  77. Trademark information
  78. The SPOONJACK, Spoonjack logo, WHOOPTONES, Whooptones logo, PRANKTONES, CRANKTONES, EVOTICONS, PRESS 1 TO FART, PRESS 1 TO BURP, PRESS 1 TO BARK, PRESS 1 TO MOO, PRESS 1 TO LAUGH, PADS, TONES, PADTONES, SCENES trademarks and service marks and other Spoonjack logos and product and services names are trademarks of Spoonjack LLC ("Spoonjack Marks"). Without Spoonjack's prior permission, you agree not to display or use in any manner the Spoonjack Marks.

  79. Notice and Procedure for Making Claims of Copyright or Intellectual Property Infringement
  80. Spoonjack respects the intellectual property of others, and we ask our users to do the same. Spoonjack may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Spoonjack's Copyright Agent the following information:

    1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
    2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
    3. a description of where the material that you claim is infringing is located on the site;
    4. your address, telephone number, and email address;
    5. a statement by you that you have a good faith belief that the dispuited use is not authorized by the copyright owner, its agent, or the law;
    6. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

    Spoonjack's Agent for Notice of claims of copyright or other intellectual property infringement can be reached by emailing copyright@whooptones.com

  81. General Information
  82. Entire Agreement. The TOS constitutes the entire agreement between you and Spoonjack and governs your use of the Service, superseding any prior agreements between you and Spoonjack with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Spoonjack services, affiliate services, third-party content or third-party software.

    Choice of Law and Forum. The TOS and the relationship between you and Spoonjack shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Spoonjack agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Francisco, California.

    Waiver and Severability of Terms. The failure of Spoonjack to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.

    No Right of Survivorship and Non-Transferability. You agree that your account is non-transferable and any rights to your ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.

    Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

    The section titles in the TOS are for convenience only and have no legal or contractual effect.

  83. Violations
  84. Please report any violations of the TOS by email to abuse@whooptones.com.


    Effective Date: Jul. 25, 2006

 
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