BY DOWNLOADING THE APPLICATIONS, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATIONS AND DELETE THEM FROM YOUR MOBILE DEVICE.
To register, you must enter your email address and password. You may not select an email address that is used by someone else, and it cannot be indecent, or otherwise offensive, or be used in any way that violates the Agreement. You may not provide false information during the registration process.
You will have the ability to send postcards to those you designate (ÒDesignated RecipientsÓ). You will have the ability to upload photograph and voice content in connection with the Services. The postcards created through use of the Services may remain on Company or third party servers indefinitely. However, Company cannot and does not guarantee the availability of a postcard for any particular period of time, and postcards may remain on the Company servers or third party servers even after you delete your account.
You will also have the ability to invite others to create and send postcards to your Designated Recipients by sending them a unique access code. This will allow these users to create and send postcards to your Designated Recipients. You will retain control over the content they send to your Designated Recipients when using an access code.
Maintaining account security is very important. Company takes commercially reasonable steps to keep the Applications secure, however security is not guaranteed. Security also depends on you. You should not reveal your password to anyone. Your account is at risk if you let someone use it inappropriately and your account is subject to termination if you or anyone using your account violates the Agreement. You should also take care to only send access codes to those you trust, as they will have the ability to send postcards to your Designated Recipients.
You agree to immediately notify Company of any unauthorized use of your account or password. You are fully and solely responsible for all activity on your account, even if such activities were not committed by you, including activities committed by those whom receive an access code from you. Company will not be liable for any losses or damage arising from unauthorized use of your account or password, and you agree to indemnify and hold Company harmless for any improper or illegal use of your account. This includes illegal or improper use by someone to whom you have given permission to use your account. We do not police for, and cannot guarantee that we will learn of or prevent, any inappropriate use of the Services.
2. Limitations on Use of the Services. You agree that you will not use the Services in any manner that: Posts, stores, transmits, offers, or solicits anything that contains the following, or that you know contains links to the following or to locations that in turn contain links to the following: (a) Material that Company determines to be offensive; (b) Material that is defamatory, harassing or threatening; (c) Pornography; (d) Any virus, worm, Trojan horse, or other harmful or disruptive component; (e) Anything that encourages conduct that would be considered dangerous, a criminal offense, give rise to civil liability, violate any law or regulation or is otherwise inappropriate; or (f) Restricts or inhibits use of the Applications; (g) Uses any account or password without prior permission; (g) Obtains or solicits another personÕs password or other personal information under false pretenses; Impersonates another user or otherwise misrepresents yourself in any manner, whether to another user, to us, or otherwise; (h) Violates the legal rights of others, including defaming, abuse, stalking or threatening users; (i) Infringes (or results in the infringement of) CompanyÕs or any third partyÕs intellectual property rights, moral rights, or other rights; (j) Is (or you reasonably believe to be illegal, fraudulent, or unauthorized, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves (or you reasonably believe to involve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material; (k) Does not comply with all applicable laws, rules, or regulations, including obtaining all necessary permits, licenses, registrations, etc. In the case of any proposed or actual transaction, ÒapplicableÓ refers to both your own location and to location(s) of all other parties to the transaction; or would cause Company to be in violation of any law, ordinance, rule, regulation or treaty, or to infringe any right of any third party; (l) Publishes falsehoods or misrepresentations that may damage Company or any third party; (m) Manipulates identifiers, forges headers or other data in order to disguise the origin of content transmitted through the Website or to manipulate your presence on the Services; (n) Disrupts, interferes or harms the Website, servers or networks; or (o) Imposes an unreasonably or disproportionately large load on CompanyÕs infrastructure.
3. Report Abuse. If you believe any Applications users violate this Agreement, please contact us at firstname.lastname@example.org..
4. License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive and nontransferable license to download, install and use the Applications for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with this Agreement.
(a) copy the Applications, except as expressly permitted by this Agreement;
(b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Applications;
(c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Applications or any part thereof;
(d) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Applications, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Applications or any features or functionality of the Applications, to any third party for any reason, including by making the Applications available on a network where it is capable of being accessed by more than one device at any time;
(f) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Applications.
6. Reservation of Rights. You acknowledge and agree that the Applications are provided under license, and not sold, to you. You do not acquire any ownership interest in the Applications under this Agreement, or any other rights thereto other than to use the Applications in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Company reserves and shall retain its entire right, title and interest in and to the Applications, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
8. Geographic Restrictions. The Applications are based in the state of California in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the features of the Applications outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Applications from outside the United States, you are responsible for compliance with local laws.
9. Updates. Company may from time to time in its sole discretion develop and provide Applications updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
(a) the Applications will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Applications or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Applications and be subject to all terms and conditions of this Agreement.
(a) The term of Agreement commences when you download the Applications and will continue in effect until terminated by you or Company as set forth herein.
(b) You may terminate this Agreement by deleting the Applications and all copies thereof from your Mobile Device.
(c) Company may terminate this Agreement at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(d) Upon termination:
(i) all rights granted to you under this Agreement will also terminate; and
(ii) you must cease all use of the Applications and delete all copies of the Applications from your Mobile Device and account.
(e) Termination will not limit any of Company's rights or remedies at law or in equity.
(f) Any suspension, termination, or cancellation shall not affect your obligations to Company under this Agreement (including but not limited to ownership, intellectual property, indemnification, and limitation of liability), which by their sense and context are intended to survive such suspension, termination, or cancellation.
11. Disclaimer of Warranties. THE APPLICATIONS ARE PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATIONS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATIONS WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATIONS OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATIONS.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
13. Indemnification. You agree to indemnify, defend and hold harmless Company and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including [reasonable] attorneys' fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement. Furthermore, you agree that Company assumes no responsibility for the content you submit or make available through this Application.
14. Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application available outside the US.
15. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
16. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Application that is not covered by the arbitration provision set forth herein shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in San Francisco, California. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
17. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
18. Binding Arbitration. You and Company agree that, except as provided below, all disputes, controversies and claims arising from or related to this Agreement (each a ÒClaimÓ), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the ÒJAMS RulesÓ) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth herein and the JAMS Rules, the terms herein will control and prevail. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act. Except as otherwise provided in these Terms, (a) you and Company may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitratorÕs decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law. The arbitration will be conducted in San Francisco, California.
19. Class Action Waiver. You and Company agree that any arbitration shall be limited to the Claim between Company and you individually. YOU AND COMPANY AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
20. Exceptions to Arbitration. You and Company agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of your or CompanyÕs intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such courtÕs jurisdiction in lieu of arbitration.
22. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.