End User License Agreement
THIS END USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN YOU AND FIVE SMOOTH STONES, LLC PLEASE READ IT CAREFULLY BEFORE COMPLETING THE DOWNLOAD AND INSTALLATION OF THE SOFTWARE. USING THE SOFTWARE PROVIDES A LICENSE TO USE THE SERVICES WITHIN AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT INSTALL THE SOFTWARE.
"End User(s)" at all times means customer and user of the Services mentioned herein;
"EULA" means End User License Agreement;
"Five Smooth Stones" refers to Five Smooth Stones, LLC , its affiliates, brand names, trade names, and operating names under which it provides services;
"Services" refers to the products and services provided under license pursuant to this agreement;
"Software" means the executable code for the software, graphics, and other content and associated documentation (if any) downloaded by You for use;
"Intellectual Property" means the Software, design, concepts, trade secrets, and any pending or granted patents related to the Services;
"Content" refers to text, images, audio clips, video clips, and other materials accessed through the use of the Services.
"Handheld Product" refers to any type of communication device, generally, but not necessarily, of a handheld size, which is capable of running the Software.
Conditions of License
Five Smooth Stones hereby grants You a personal, non-exclusive, non-transferable right to install the Software on a Handheld Product and use the Software only on the Handheld Product on which You install the Software. It is agreed and understood by the End User that this EULA contains within it certain conditions of license for use of the Services by a single End User. It is further agreed and understood that such conditions are not exhaustive and that Five Smooth Stones, LLC may from time to time impose further conditions outside of this EULA.
The use of the Services provided under this agreement are intended for entertainment and general use by End Users and the public, and are not, without the express consent of Five Smooth Stones , intended for resale. End Users further acknowledge that Five Smooth Stones shall have the right, if, in its sole discretion, it is determined that the Services are not being used for such use, to terminate the Services pursuant to section 9. of this EULA.
RSS Feeds and Data Transfers
Pursuant to section 3. of this EULA, Five Smooth Stones reserves the right to, and may, restrict the transfer of data to individual End Users resulting from the use of the Software. Further, Five Smooth Stones may terminate the use of the Services if it is determined that use of the same contravenes any section of this EULA. With respect to data transfers, the End User agrees that any fees, charges, rates and the like incurred by the End User from a third party such as a carrier in the use of the Services are not included in the rates and fees identified in section 5. of this EULA. For greater certainty, Five Smooth Stones will not be responsible for any fees or charged to End Users by third parties as a result of the use of the Services.
Rates and License Fees
Use of the Services under this EULA are permitted only under license which must be renewed on an annual basis, and, for greater certainty, must at all times be purchased and paid in full by the End User for the duration of the license at the rates determined by Five Smooth Stones, if any. Five Smooth Stones reserves the right to change these rates from time to time as it may deem necessary. Five Smooth Stones will not be responsible to refund purchase price of the software if not available for any reason.
By using the Services, You give Five Smooth Stones permission to collect information about you as an anonymous user for the purpose of calculating aggregate statistics. You authorize Five Smooth Stones to use information you provide to personalize the information we deliver to you and to use your demographic information when calculating aggregate customer data. As a registered subscriber, you give Five Smooth Stones and our agents permission to send you notices related to the subscription Services to which you subscribe.
The Software is protected by US and international copyright laws. You may not copy, reproduce, distribute, modify or in any other manner duplicate the Software, in whole or in part, except to the extent that copying naturally results from the authorized use of the Software or results in the course of making regular back-ups of the Handheld Product on which the Software is installed. Five Smooth Stones makes claim of copyright to any and all material associated with the design of the Services, as well as any and all material within the Five Smooth Stones website. Further, Five Smooth Stones will at all times endeavor to respect the copyright claims associated with any Content accessed and / or viewed through the use of the Services.
All photos, video, sound bites and images used on this site are either the creation of Five Smooth Stones, LLC development, submitted by the public or are believed to be free for use in the public domain. If you own a copyright to a photo, video, sound bite or image on our site and you object to our use of it, please contact us so that we may remove it from the site/mobile devices.
All audio and video clips on our site are small snippets of an overall larger copyrighted work, and our use of them is protected as Fair Use by section 107 of the Copyright statute. In particular:
The vast majority of our text is submitted by users, and some text on the site has been copied from Wikipedia under the GNU Free Documentation License. If you feel that you hold a copyright to any significant portion of text appearing on this site and you object to our use of it, please contact us so that we may remove it from the site.
- Any such clips, being very short in duration, do not comprise any substantial or significant portion of the overall copyrighted work
- The use of such clips does not effect any damage upon the copyright holder, nor does it present any potential market competition to the copyright holder
For more information about copyright policy please see the copyright page.
Acceptable Use of Services
In accordance with section 3. of this EULA, the End User agrees not to use the Services in an manner constituting or encouraging conduct that would constitute a criminal offence or give rise to civil liability. The End User also agrees not to transmit data or Content which is protected by copyright, or other intellectual property rights, or derivative works thereof, without obtaining permission of the copyright holder. The End User further agrees not to use the Services in a manner which is contrary to law or netiquette, or which would adversely impact use of the Services or the Internet by other users, including the posting or transmitting of information or software containing viruses or other disruptive components.
Termination of Services
Five Smooth Stones reserves the right at all times to terminate the Services provide under license pursuant to this agreement without either notice or cause.
Ownership and Proprietary Rights
Use of the Services under this EULA are provided by license only, and in no way whatsoever, can it be understood, inferred, or otherwise implied that use of the Services constitutes ownership of any kind by the End User of the underlying Software and Intellectual Property associated with the Services. For greater certainty, ownership of the underlying Software and Intellectual Property shall at all times be that of Five Smooth Stones. You acknowledge and agree that the Software may contain valuable trade secrets of Five Smooth Stones and/or licensors of Five Smooth Stones . You agree to hold such trade secrets in confidence and further agree not to remove any proprietary notices, labels or marks from the Software. Except to the extent that Five Smooth Stones is expressly precluded by law from prohibiting these activities, You shall not alter, modify, adapt, create derivative works, decompile, translate, decrypt, deconstruct, disassemble or otherwise attempt to reverse engineer the Software, or permit, authorize or encourage any other party to do the same. This Agreement does not transfer any Intellectual Property or other proprietary rights relating to the Software, including without limitation patents, designs, trademarks, copyright or trade secrets. Five Smooth Stones and Sound Mac-Hine is not obligated to provide refunds for any reason.
Limited Warranty and Disclaimer
THE SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OF ANY KIND. WITHOUT LIMITATION, FIVE SMOOTH STONES DOES NOT WARRANT THE PERFORMANCE, AVAILABILITY, UNINTERRUPTED USE OF OR OPERATION OF THE SERVICES, YOUR CONNECTION TO THE INTERNET, EQUIPMENT, OR ANY SOFTWARE PROVIDED BY FIVE SMOOTH STONES OR THEIR RESPECTIVE LICENSORS, DISTIBUTORS AND PARTNERS. YOU BEAR THE ENTIRE RISK AS TO USE OF THE SERVICES AND ANY SOFTWARE, AND THE AVAILABILITY, ACCURACY, RELIABILITY, TIMELINESS, QUALITY AND PERFORMANCE OF THE SERVICES, EQUIPMENT, AND ANY SOFTWARE AND THE RESULTS OBTAINED FROM USE OF THE SERVICES, EQUIPMENT AND ANY SOFTWARE. FIVE SMOOTH STONES DOES NOT WARRANT THAT ANY DATA OR FILES SENT BY OR TO YOU (WHETHER BY DATA TRANSFERS OR OTHERWISE) WILL BE TRANSMITTED, TRANSMITTED IN UNCORRUPTED FORM, OR TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME. FIVE SMOOTH STONES DOES NOT MAKE EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS (INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SERVICES, EQUIPMENT, ANY SOFTWARE OR ANY MERCHANDISE, INFORMATION OR SERVICE AVAILABLE ON THE INTERNET OR THROUGH THE SERVICES. ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, ARE EXCLUDED TO THE EXTENT PERMITTED BY APPLICABLE LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FIVE SMOOTH STONES OR FROM THE SERVICES CREATES ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Limitation of Liability
IN NO EVENT SHALL FIVE SMOOTH STONES , ITS AFFILIATES, SUPPLIERS, LICENSORS, PARTNERS, AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS AND REPRESENTAITIVES, BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) THE USE OR INABILITY TO USE THE SERVICES OR THE CONTENT, MATERIALS, INFORMATION OR TRANSACTIONS PROVIDED ON OR THROUGH THE SITES, OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICES OR THE CONTENT, MATERIALS, INFORMATION, PRODUCTS, OR SERVICES ON OR AVAILABLE THROUGH THE USE OF RSS FEEDS, EVEN IF FIVE SMOOTH STONES OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You will indemnify and hold harmless Five Smooth Stones and each of its affiliates, licensors, suppliers and agents (and their respective employees, officers, directors and representatives) from and against any claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable legal fees and other litigation expenses) incurred by Five Smooth Stones or each of its affiliates, licensors, suppliers or agents relating to: (a) your breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (b) your use of or inability to use the Services; (c) any content, including personal content, or software submitted, displayed, posted or distributed by you using the Services; or (d) your violation, alleged violation or misappropriation of any intellectual property right or non-proprietary right of a third party.
Any notice or other communication required by this EULA may be in writing or delivered electronically BY EMAIL to Five Smooth Stones or the End User as applicable. Notices delivered will be effective on the date of such delivery.
Sound Mac-Hine is a trademark of Five Smooth Stones and are not to be used without proper acknowledgement. All other trademarks appearing through the use of the Services or the Five Smooth Stones website are the property of their respective owners.
When used in this EULA, the term 'license' shall be deemed to mean 'sublicense' if Five Smooth Stones is the licensee and not the owner of an item of Software. Sections 5, 6, 7, 10, 11, 12, 13, 15 and 16 shall survive termination of this EULA. This EULA constitutes the entire agreement of the parties with respect to the Software, and supercedes all prior communications, agreements and discussions between the parties. This EULA is to be governed by and construed under the laws of the State of New Jersey. Each party hereto irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of the courts of the State of New Jersey as applicable. If any provision of this EULA other than section 11 is void or is declared void, the provision shall be severed from this EULA, which shall otherwise remain in full force and effect. If section 10 is void or declared void, this EULA shall automatically terminate. This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. All questions concerning this EULA shall be directed to: firstname.lastname@example.org. This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written.