TONE TERMS OF USE

These Terms of Use (as may be updated by Tone from time to time) (the “Agreement”) is between you (“User”) and Tone Mobile LLC (“Tone”). Tone provides the Tone software applications, which include content delivery and messaging software applications (each, a “Tone App”) and related services (the “Applications”). The Applications are provided to User solely for use in compliance with the terms and conditions of this Agreement. BY CLICKING “I ACCEPT” OR CARRYING OUT ANY SIMILAR ACTION TO ACCEPT THIS AGREEMENT, USER ACKNOWLEDGES AND AGREES TO THESE TERMS AND CONDITIONS. 

User expressly acknowledges and agrees:

  • SCOPE. User is granted a limited, non-exclusive, non-transferrable revocable license to use the Applications, but only for personal, non-commercial use on supported mobile devices that User owns or controls. 
    • User shall not:
      • sell, rent, lease, lend, redistribute, or charge for use of the Applications in any manner;
      • copy, reproduce, modify, reverse engineer, attempt to derive the source code of, disassemble, decompile, or create derivative works of the Applications;
      • use the Applications in any unauthorized manner whatsoever, attempt to gain unauthorized access to the Applications or portions of the Applications, or interfere or disrupt the performance of the Applications including but not limited to, by trespass or burdening network capacity;
      • use the Applications to send or store any viruses, Trojan horses, worms, or other harmful software code, scripts or programs;
      • use the Applications to publish or submit any material that is obscene, libelous, defamatory, disparaging, harassing, threatening, hateful, ethnically offensive, unlawful, or otherwise encourages conduct that would constitute a criminal offense, gives rise to civil liability, violates the rights of any other party, violates any law or that is otherwise inappropriate;
      • use the Applications to publish or submit any misrepresentation or falsehood that could damage Tone or any third party; or
      • launch any automated system, including without limitation, load testers, offline readers, robots, or spiders that send more requested messages through the Applications in a given period of time than a human can reasonably produce.
    • User is will comply with any applicable laws, rules, and regulations, anywhere in the world the Applications are used, when using the Applications. Tone is not in any manner responsible for any use by User that does not comply with any applicable laws, rules, and regulations or does not comply with this Agreement.
    • With the exception of User Content (as defined below), Tone and its third party licensors own the intellectual property rights for the Applications and all content and materials available through use of the Applications or has a valid right from a third party to use content and materials available through use of the Applications. User will not use the Applications or any content or materials available through use of the Applications in any manner except as specifically permitted by this Agreement. Unless expressly stated, no part of the Applications or any content or material available through use of the Applications may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way. Any modification of the materials or use of the materials for any other purpose is a violation of Tone’s or the applicable third party’s intellectual property rights and proprietary rights. The use of any such material(s) on any other application, website or computer network without Tone’s written consent is strictly prohibited. User’s use of the trademarks, service marks, graphics and logos on the Applications in any manner other than as authorized in this Agreement, or as authorized in writing by Tone, is strictly prohibited. Tone reserves all rights not expressly granted to User.
  • THIRD PARTY CONTENT
    • Content, including but not limited to, text, photographs, images, audio sequences, and music recordings, including User Content provided by other users of the Applications, may be available through the Applications (“Third Party Content”). Tone is not responsible, in any manner, for Third Party Content, including but not limited to the accuracy, validity, copyright or other intellectual property right compliance, legality, decency, quality or any other aspect of the Third Party Content. Third Party Content does not represent the views or opinions of Tone. When User accesses Third Party Content, any applicable third party terms and conditions apply, including the third party’s privacy policies.
    • User may encounter Third Party Content or other content that User may deem offensive, objectionable or indecent, however User’s use of the Applications is at User’s sole risk and Tone will not have any liability for any claims, damages, or other liability arising from or related to Third Party Content or third party websites, or for any other materials, products, or services of third parties.
  • USER CONTENT
    • The Applications allow User to submit or send text, photos, videos and other communications (collectively, the “User Content”). This User Content may be hosted, shared or published as part of the Applications, and may be visible to any other users of the Applications who have User’s mobile phone number in their mobile device, regardless of such other user’s location. regardless of whether such User Content is published or not, TONE WILL CONSIDER USER CONTENT NON-CONFIDENTIAL AND NON-PROPRIETARY AND WILL BE UNDER NO OBLIGATION TO MAINTAIN THE CONFIDENTIALITY OF ANY INFORMATION CONTAINED IN SUCH USER CONTENT.
    • User is solely liable for User’s own User Content, including, but not limited to any and all liability arising from or related to publishing it. User represents and warrants that User has all necessary right, title, interest, license, or permission to use and to authorize Tone to use the User Content; and User has all necessary written permission to use every identifiable person’s name or likeness in User Content. User further represents and warrants that neither the User Content nor the use of such User Content as permitted in this Agreement will infringe upon or violate the rights of any person or entity, any applicable laws, or the terms of this Agreement. 
    • User retains ownership of User Content, but grants Tone a non-exclusive, worldwide, irrevocable, royalty-free, transferable and sub-licensable right and license to use, distribute, display, reproduce, perform, and prepare derivative works of User Content in connection with the Applications and Tone’s business. This license includes, without limitation, Tone promoting or redistributing the Applications (as well as any aspect or portion thereof, or any derivate work thereof) or promoting Tone’s business (as well as any aspect or portion thereof) in any media channel through any media format. User also grants other users of the Applications a non-exclusive license to view, access, and use User Content through the Applications. User waives all moral rights to which User may be entitled under any legislation now existing or enacted in the future in any part of the world relating to the User Content. Where this is not permitted by law, User agrees not to enforce User’s moral rights at any future point in time.
    • The Applications may contain content provided by other users of the Applications. Tone is not responsible and does not control any such content, including but not limited to the accuracy, validity, copyright compliance, legality, decency, quality or any other aspect of such content. In addition, Tone has no obligation to review or monitor and does not approve, endorse or make any representations with respect to any user content. Although Tone is under no obligation to review or monitor User Content, Tone reserves the absolute right to do so in its sole discretion. In addition, Tone reserves the right at all times to alter, edit, refuse to post or remove any User Content from the Applications, in whole or in part, for any reason or for no reason and without notice. 
    • Tone will fully cooperate with any law enforcement authorities, court order or subpoena requesting or directing Tone to disclose the identity of anyone posting User Content.  To the extent Tone can do so by law, we reserve the right to identify any User to third parties and/or disclose any User Content or personal information to any third party claiming that a User Content infringes their intellectual property rights or their right to privacy.  Tone may also disclose such information if Tone believes in good faith that such disclosure is reasonably necessary to protect the rights, property, or personal safety of Tone, its users or the public.
    • Tone reserves the right to remove any User Content, without notice, which violates this Agreement or which Tone reasonably suspects violates any law, rule or regulation. Tone may terminate repeat infringers’ access to the Applications in appropriate circumstances.
  • USER INFORMATION/UNAUTHORIZED USE. In order to use the Applications, User must provide User’s phone number and enter a unique ID code, which will establish User’s “account” through which User may access the Applications. User will not impersonate another person. User will be responsible for all use of User’s account, including unauthorized use by any third party. User agrees to notify Tone by email at support@withtone.com as soon as User becomes aware of, or suspects any unauthorized use of, User’s account. Tone is not responsible, in any manner, for any unauthorized use of User’s mobile device and Tone will not have any liability for any claims, damages, or other liability arising from or related to any such unauthorized use. User may be liable to Tone for losses due to such unauthorized use.
  • TERMINATION/DISCONTINUATION. This Agreement is effective until terminated. Tone may immediately terminate this Agreement and User’s right to access and use the Applications if Tone reasonably suspects that User is not in compliance with any term of this Agreement, if Tone discontinues the Applications, or for any other reason (including repeat minor offenses). Tone reserves the right to discontinue the Applications, or any aspect of the Applications, at any time. Upon any termination or expiration of the Agreement, User shall immediately cease all use of the Applications and destroy any copy of the Applications.
  • UPDATES.  User agrees that Tone may modify or discontinue the Applications at any time, without notice to User. Any modifications or updates to the Applications are considered part of the Applications and are included in the definition of “Applications” as used in this Agreement.
  • INDEMNITY. To the fullest extent permitted by law, User will indemnify, defend, and hold Tone, its officers, directors, employees, agents, affiliates, and licensors harmless from and against any and all claims, losses, damages, costs, liabilities, or expenses (including, but not limited to, attorney’s fees) in any manner arising from or related to: (i) User’s use of the Applications; (ii) User’s violation of any third party right, including without limitation copyright or other intellectual property right or privacy right; (iii) any User Content; or(iv) User’s violation of any term or condition of this Agreement or any law, rule or regulation.
  • NO WARRANTY.  
    • ANY USE OF THE APPLICATIONS IS AT USER’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATIONS, ANY RELATED SERVICES AND ANY THIRD PARTY CONTENT IS PROVIDED ON A STRICTLY “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND TONE DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE APPLICATIONS, RELATED SERVICES AND ANY THIRD PARTY CONTENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
    • TONE ENDEAVORS TO MAINTAIN THE APPLICATIONS AND THEIR OPERATION, BUT IS NOT RESPONSIBLE FOR THE RESULTS OF ANY DEFECTS, INTERRUPTIONS OR ERRORS THAT MAY EXIST IN THE APPLICATIONS OR THEIR OPERATION. AS TO THE OPERATION OF THE APPLICATIONS, TONE EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TONE MAKES NO WARRANTY (I) THAT THE OPERATION OF THE APPLICATIONS WILL MEET USER’S REQUIREMENTS; (II) THAT ACCESS TO THE APPLICATIONS WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS, OR FREE OF DEFECTS OR ERRORS; (III) THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATIONS WILL BE ACCURATE OR RELIABLE; (IV) REGARDING UNAUTHORIZED ACCESS TO OR USE OF ANY AND ALL PERSONAL INFORMATION; OR (V) THAT DEFECTS WILL BE CORRECTED. 
    • NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TONE CREATES ANY WARRANTY.
    • TONE DOES NOT WARRANT OR ASSUME ANY LIABILITY WHATSOEVER FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE APPLICATIONS OR RELATED SERVICES OR BY ANY WEBSITE LINKED OR FEATURED IN ANY THIRD PARTY CONTENT, OTHER THIRD PARTY CONTENT OR OTHER ADVERTISING. TONE IS NOT A PARTY TO AND IS NOT RESPONSIBLE FOR ANY TRANSACTION BETWEEN USER AND THIRD-PARTY PROVIDERS OF PRODUCTS AND SERVICES.
  • LIMITATION OF LIABILITY
    • TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TONE AND TONE’S LICENSORS OR LICENSEES BE LIABLE TO USER OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR ANY OTHER COMMERCIAL OR NON-COMMERCIAL DAMAGES OR LOSSES, INCLUDING, BUT NOT LIMITED TO, IN ANY WAY ARISING OUT OF OR RELATED TO USER’S USE OR INABILITY TO USE THE APPLICATIONS OR RELATED SERVICES; ANY THIRD PARTY CONTENT; ANY CONDUCT OF ANOTHER USER OF THE APPLICATIONS; ANY ERROR; ANY UNAUTHORIZED USE OF THE APPLICATIONS OR RELATED SERVICES; VIRUSES, TROJAN HORSES; BUGS; OR UNAUTHORIZED ACCESS TO ANY PERSONAL INFORMATION OR FINANCIAL INFORMATION, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), HOWSOEVER CAUSED AND EVEN IF TONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    • TONE IS NOT LIABLE FOR ANY THIRD PARTY CONTENT, INCLUDING USER CONTENT OF OTHER USERS, OR FOR ANY LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, ILLEGALITY, INFRINGEMENT OR INTELLECTUAL PROPERTY RIGHTS, ERROR OR INACCURACY CONTAINED IN ANY THIRD PARTY CONTENT.
    • APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS OR EXCLUSIONS SET FORTH IN SECTIONS 8 AND 9 MAY NOT APPLY TO USER. HOWEVER, IN NO EVENT SHALL TONE’S TOTAL LIABILITY TO USER FOR DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT PAID BY USER, IF ANY, FOR ACCESSING THE APPLICATIONS.
  • CONSENT. Only users thirteen (13) years of age or older are permitted to use the Applications, and users under eighteen (18) must have their parent or legal guardian’s permission to use the Applications. If Tone becomes aware that a user is under thirteen (13), Tone will delete such user’s account. User may not use the Applications and may not accept this Agreement if (a) User does not meet the age criteria set forth in the preceding sentence, or (b) User is barred or otherwise legally prohibited from using or accessing the Applications under the laws of the country in which User is a resident. By clicking “I accept”, User represents and warrants that User satisfies the conditions for use of the Applications set forth in clauses (a) and (b) of this Section 10.
  • GOVERNING LAW. The laws of the State of New York, excluding its conflicts of law provisions, govern this Agreement and User’s use of the Applications. To the extent the arbitration provision outlined in Section 12 is not enforceable, User and Tone agree to submit to the exclusive jurisdiction and venue of the courts located in the New York County of the State of New York or the federal courts in the Eastern District of New York. This Agreement constitutes the entire agreement between Tone and User concerning the Applications. If any provision of this Agreement is deemed invalid or unenforceable, the invalid provision shall not affect the validity of the remaining provisions. Tone’s failure to enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. Any cause of action arising out of or related to the Applications must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.  
  • ARBITRATION. User and Tone agree that any claim that either party may have arising out of or relating to this Agreement (including formation, performance, or breach of them), their relationship with each other, or use of the Applications must be resolved through binding arbitration in the City of New York, State of New York, USA, before one arbitrator (to be designated through JAMS) and pursuant to the Comprehensive Arbitration Rules and Procedures of JAMS. The arbitrator’s decision will be binding and may be entered as a judgment in any court of competent jurisdiction. USER AGREES THAT ANY ARBITRATION UNDER THESE TERMS AND CONDITIONS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND USER IS AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
  • ASSIGNMENT. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by User, but may be assigned by Tone without restriction.
  • INFRINGMENT OF USER’S COPYRIGHTS.  If User believes that any User Content of other users, other Third Party Content, or other material provided through the Applications, including through a link, infringes User’s copyright, User may notify Tone of User’s infringement claim in accordance with the procedures set forth in Tone’s copyright policy at www.withtone.com/copyright.
  • PRIVACY POLICY. Tone takes User’s privacy very seriously and will use and protect any personal information User provides to the Applications in accordance with its Privacy Policy at www.withtone.com/privacy