EGREETINGS USER AGREEMENT Effective Date: September 30, 2013
The following is the Egreetings User Agreement ("Agreement") between Egreetings.com Network, Inc., a Delaware corporation and subsidiary of AGCM, Inc., , with offices at One American Road, Cleveland, Ohio 44144 ("Egreetings," "we," "us," or "our") and "you," the user. This Agreement applies to the Egreetings websites (including, without limitation, www.egreetings.com) and related mobile applications (any, an "App") that post this Agreement, and any available interactive features, downloads, applications/apps, widgets or other outlets that post or include a link to this Agreement (collectively, the "Platforms"). This Agreement applies to your use of the Platforms, regardless of whether accessed via computer, mobile device or otherwise. By accessing, browsing and/or using the Platforms, you acknowledge that you have read, understand, and agree to be bound by the terms of this Agreement and to comply with all applicable laws and regulations.
If you access one of our Apps on or through one of Apple Inc. ("Apple")'s platforms, such as the App Store or an iOS device (any, an "Apple Platform"), you and Egreetings acknowledge that (a) you enter into this Agreement with Egreetings only, and not with Apple, (b) Apple is not a party to this Agreement, and (c) Egreetings, not Apple, is responsible for the App.
THE TERMS OF THIS AGREEMENT CONTAIN WARRANTY DISCLAIMERS AND OTHER PROVISIONS THAT LIMIT OUR POTENTIAL LIABILITY TO YOU. PLEASE READ THIS AGREEMENT IN ITS ENTIRETY. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE DO NOT USE ANY OF THE PLATFORMS.
By using the Platforms, you warrant and represent that (a) you are 18 years of age or older or the age of majority in the jurisdiction where you reside; or (b) that your parent or legal guardian has reviewed this Agreement and agrees to its terms. If you (or your parent or legal guardian) do not agree to the terms of this Agreement, you must immediately discontinue use of the Platforms (including uninstalling the App). You further warrant and represent that all information you provide to us when you use the Platforms is and will remain complete and accurate.
The Platforms include all materials that are included in or are otherwise a part of the Platforms (including past, present and future versions of the Platforms), including, without limitation: graphics; layout; text; instructions; images; trademarks; logos; service marks; audio; videos; designs; ringtones; wallpapers; games; contests and sweepstakes; voting; technology; applications; artwork; information; data; designs; compilation; advertising copy; domain names; any and all copyrightable material (including source and object code); the "look and feel" of the Platforms; the compilation, assembly and arrangement of the materials of the Platforms; and all other materials related to the Platforms (collectively, "Materials"). Subject to your strict compliance with this User Agreement, Egreetings hereby grants to you a limited, personal, revocable, noncommercial, nonexclusive, non-assignable, and nontransferable license to access and view the Materials (excluding source and object code, other than as made available to access and use via standard web browsers to enable display on your device); and, if you use one of our Apps on an Apple Platform, to use the App as permitted by the Usage Rules set forth in the App Store Terms of Service. No other use of the Platforms or Materials is authorized.
The products, technology, or processes described or used on the Platforms may be the subject of intellectual property rights owned or licensed by Egreetings or other third parties. Except for the limited license granted above, nothing contained in this Agreement or anywhere else on the Platforms confers to you in any manner, whether by implication, estoppel or otherwise, any license, title, or ownership of or to any intellectual property right of Egreetings or any third party. Egreetings reserves all rights not expressly granted by this Agreement. When you use the Platforms, you must: (a) keep intact all copyright, trademark and other proprietary notices; (b) make no modifications to the Platforms or Materials; and (c) not copy or adapt any object code associated with the Platforms, reverse engineer, modify or attempt to discover any source code associated with the Platforms (nor allow or assist any third party to do so).
You agree that you will not sell, resell, copy, transfer, reverse engineer, disassemble, decompile, create derivative works of, or allow third-party access to the Platforms, that you will not use, post, transmit, or introduce any device, software, or routine which interferes or attempts to interfere with the operation of the Platforms, and that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Platforms. You will use the Platforms solely for your own personal use and will not make the Platforms available to any third party for any reason. You further agree that you will not, including by use of any robot, scraper, or other data mining technology or process, frame, mask, extract data or other materials from, copy or distribute any portion of the Platforms (except as may be a result of standard search engine or Internet browser usage).
When you use the Site, you must: (a) keep intact all copyright and other proprietary notices; (b) make no modifications to the Site or any content available through the Site; and (c) not allow or assist any third party (whether or not for your benefit) to copy or adapt any object code associated with the Site, nor reverse engineer, modify or attempt to discover any source code associated with the Site. You also agree that you will not, including by use of any robot, scraper, or other data mining technology or process, frame, mask, extract data or other materials from, copy or distribute any portion of the Site (except as may be a result of standard search engine or Internet browser usage).
Egreetings grants you the limited, revocable permission, subject to the restrictions in this Agreement, to engage in the following personal uses of Materials that include the ability to share Materials with others ("Social Distribution"): (a) sending Materials to friends or acquaintances at no charge; (b) posting and displaying a copy of Materials on a personal website; or (c) posting and displaying a copy of the Materials on a third party website that permits users to post content, so long as the posting is allowed pursuant to the third party website's terms and conditions and policies, and provided that the third party website does not charge for access to those materials or associate those materials with products, services or advertising. If you engage in Social Distribution, you agree that you will not post any performance claims about an Egreetings product or service through your Social Distribution and that only Egreetings may make claims, promises or statements on behalf of Egreetings about its products and services. You also agree that you will not imply that you and Egreetings or any Egreetings brand are affiliated in any way or that Egreetings approves of your Social Distribution. Except as otherwise permitted by this Agreement or expressly in writing by Egreetings, you may not make any use of or license, distribute, reproduce, or otherwise exploit any part of the Materials. Egreetings may, and reserves the right to, revoke Egreetings's permission for Social Distribution at any time and for any reason, and you agree to immediately cease Social Distribution upon notice of revocation and to comply with any terms we post in connection the Social Distribution of Materials.
Egreetings may allow you to upload your own photos, artwork, text and other materials ("User Content") to the Platforms. If we do and you do so, you are subject to the conditions outlined in this Agreement. When you upload User Content to the Platforms, you are representing and warranting that you own the User Content or have full rights to its use in accordance with this Agreement. You are also representing and warranting that the User Content you upload does not violate the Acceptable Use Policy as discussed below. As a user of the Platforms, you also represent and warrant in relation to the User Content that:
• You have obtained the consent of any and all individuals mentioned or pictured in the User Content;
• Uploading the User Content onto the Platforms will not infringe the privacy of any individual or violate any applicable law; and
• Uploading the User Content onto the Platforms and any subsequent publication of such User Content does not infringe the intellectual property rights of any third party.
The Platforms may offer features and services that are available to you via your mobile phone or other mobile device. These features and services may include, without limitation, the ability to upload User Content to the Platforms, receive messages (e.g., SMS and MMS messages, in-App messages, and on-device notifications) from the Platforms, download applications to your mobile phone or device, or access the Platforms features (collectively, the "Mobile Features"). We may charge you for Mobile Features. Also, standard messaging, data and other fees may be charged by your carrier. Fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues. If you have registered for Mobile Features, you agree to notify us of any changes to your mobile number and update your account(s) on the Platforms to reflect any such changes.
Egreetings has adopted the following Acceptable Use Policy in order to ensure that the Platforms are used in a lawful and appropriate manner. While Egreetings does not ordinarily monitor your use of the Platforms, it reserves the right to investigate reports of misuse of the Platforms and its services, to protect Egreetings' property and assets, and to otherwise exercise Egreetings' traditional editorial functions. You are prohibited from transmitting the following to, on, or through the Platforms:
• Material or User Content that you do not have the legal right to use, or that otherwise violates another person's intellectual property rights;
• Harassing, abusive, or threatening messages or User Content;
• Obscene or pornographic messages, images, or User Content;
• Defamatory or libelous messages or User Content;
• Viruses or other harmful, disruptive, or destructive files; or
• Illegal or fraudulent messages or User Content, or that which promotes illegal or fraudulent conduct.
You also may not use the Platforms to:
• Steal passwords or credit card information, nor attempt to do so;
• Conceal or misrepresent the identity of the sender or uploader, nor attempt to do so;
• Advertise or promote a product or service except those provided on the Platforms (e.g., pyramid schemes and multi-level marketing schemes are prohibited);
• Misrepresent yourself or impersonate any other person, user, or company;
• Publicly share or disseminate any other person's personal information (including, without limitation, address, phone number, email address, credit card number, or any other information that may be used to track, contact, or impersonate that individual); or
• Damage the Platforms or anyone's computer.
In addition, if you use one of our Apps on an Apple Platform, you acknowledge and agree that your use of the App is also subject to Apple's Usage Rules as set forth in the iTunes Store Terms and Conditions, and that you must also comply with any applicable third-party terms of agreement when using the App.
All of the Materials available on the Platforms are subject to copyright or are used by us under license from the copyright holder. Egreetings currently utilizes copyrighted materials from various individuals and entities. Copyright notices for such material are set forth wherever such licensed material appears on the Platforms.
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to Egreetings' Designated Agent (identified below). THE FOLLOWING INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING THE SERVICE PROVIDER REFERENCED BELOW THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. ALL OTHER INQUIRIES (e.g., REQUESTS FOR TECHNICAL ASSISTANCE OR CUSTOMER SERVICE, REPORTS OF EMAIL ABUSE, AND PIRACY REPORTS), WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS.
Written notification must be submitted to our Designated Agent at the following:
Egreetings.com Customer Support
AG Interactive, Inc.
One American Road
Cleveland, Ohio 44144
Email address: email@example.com
To be effective, pursuant to Title 17, United States Code, Section 512(c)(3)(A), any copyright infringement notification must include all of the following:
• An electronic or physical signature of the owner or of the person authorized to act on behalf of the owner of the copyright interest;
• A description of the copyrighted work that you claim has been infringed, and a description of the infringing activity including of where the material which you claim is infringing is located on the Platforms sufficient to allow us to locate the material;
• Identification of the location where the original or an authorized copy of the copyrighted work exists, for example the URL of the website where it is posted or the name of the book in which it has been published, your address, telephone number, and e-mail address;
• A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
• A statement by you made and signed under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
We may, in appropriate circumstances and at our discretion, disable or terminate the accounts of users who may be repeat infringers.
Counter-Notice: If you believe that User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your User Content, you may send a counter-notice containing the following information to the Copyright Agent:
• Your physical or electronic signature;
• Identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled;
• A statement that you have a good faith belief that the User Content was removed or disabled as a result of mistake or a misidentification of the User Content; and
• Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Ohio, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Egreetings may send a copy of the counter-notice to the original complaining party informing that person that Egreetings may restore the removed User Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the User Content provider, the removed User Content may be restored in 10 to 14 business days or more after receipt of the counter-notice, at Egreetings' sole discretion.
"E-GREETINGS" and the Egreetings.com bubble trademark logo are registered service trademarks owned by AGCM, Inc. ("Trademarks"). Use of any Egreetings trademarks as meta-tags for search engines, as keywords to trigger sponsored advertising, or in any other manner not expressly authorized by Egreetings, is strictly prohibited. The Platforms are neither endorsed, nor sponsored by, nor affiliated with the National Academy of Recording Arts & Sciences, Inc. or Apple Inc. GRAMMY and the gramophone and speaker logo are registered trademarks of the National Academy of Recording Arts & Sciences, Inc., and APPLE, the Apple logo, iTunes, and other Apple trademarks, service marks, graphics, and logos used in connection with the iTunes Service are trademarks or registered trademarks of Apple and/or Apple Inc. in the U.S. and/or other countries. All rights reserved. If you believe that any content on the Platforms violates your exclusive rights other than copyrights, please provide Egreetings at least the following information: (a) your physical or electronic signature; (b) identification of the material that you claim is infringing your exclusive rights and information reasonably sufficient to permit us to locate the material; (c) an explanation of the exclusive rights that you own/have and why the you believe the content infringes those rights that is sufficient for us to evaluate your complaint; and (d) your accurate contact information. Please send your complaint to: firstname.lastname@example.org. In the event of any third party claim that one of our Apps available on an Apple Platform or your possession of an App available on an Apple Platform infringes on that third-party's intellectual property rights, as between Egreetings and Apple, Egreetings will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You may not use the Platforms to send electronic messages, cards, or other content to mailing lists or to any person to which you do not have full rights or to send unsolicited bulk or commercial messages. In addition, the use of automated scripting-type programs that automate the process of sending or viewing any of the Materials is strictly prohibited. Egreetings reserves the right to limit, in its sole discretion and without prior notice to you, the number of electronic messages or cards or the amount of other content that you may send using the Platforms or the number of recipients to whom you send such cards, messages, or other content. You are solely responsible for your actions and communications undertaken or transmitted using the Platforms and your account with Egreetings. Neither we nor our affiliates exercise editorial control over your transmissions; however, we do reserve the right to review your uploaded User Content and transmissions in order to ensure compliance with this Agreement.
You may choose, at your sole and absolute discretion and risk, to use applications that enable interactions between the Platforms and a third-party website or online service (each, an "Application"), such as linking your profile on any of the Platforms with a third-party website or enabling you to "like" a product or "share" content on other websites. Such Applications may interact with, connect to or gather and/or pull information from and to your profile on the Platforms. By using such Applications, you acknowledge and agree to the following: (i) if you use an Application to share information relating to any of your accounts on the Platforms, you are consenting to the information about your account being shared; (ii) your use of an Application may cause personally identifying information to be publicly disclosed and/or associated with you, even if Egreetings has not provided such information; and (iii) your use of an Application is at your own option and risk, and you will hold Egreetings harmless for the sharing of information relating to any of your accounts on the Platforms that results from your use of an Application. You must read all log-in boxes and other pop-up boxes closely for notices about sharing your account information with, through or by any other means identified on an Application.
Egreetings may feature on the Platforms, in its newsletters, or in other communications to you, links to third-party websites, social media platforms, or other services. These may appear in the form of text links, advertisements, banners, buttons, integrated gift services, digital cash, digital gift certificates, or otherwise. Accordingly, you expressly acknowledge and agree that we are in no way responsible or liable for your use of any such third party sites or online features. Your use of such services is subject to the terms and conditions established by such third parties. THE INFORMATION, CONTENT, AND PRODUCTS (INCLUDING GOODS AND SERVICES) AVAILABLE THROUGH ANY THIRD-PARTY LINKS ARE OFFERED BY INDEPENDENT ENTITIES, WHICH ARE NOT AFFILIATED IN ANY WAY WITH EGREETINGS, EGREETINGS.COM, AGCM, INC., OR AMERICAN GREETINGS CORPORATION. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT EGREETINGS IS NOT RESPONSIBLE OR LIABLE TO YOU IN ANY WAY FOR YOUR USE OF THIRD-PARTY SITES. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND THROUGH THE PLATFORMS, INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES, AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. EGREETINGS WILL NOT REIMBURSE OR INDEMNIFY YOU FOR ANY LOSSES YOU MAY INCUR AS A RESULT OF TRANSACTIONS WITH ANY THIRD PARTY. There may be circumstances where access to the Platforms is provided by a link located at another website. Neither Egreetings nor its affiliates makes any representations or give any warranties with respect to any information contained in or at these other sites and neither Egreetings nor its affiliates shall be liable for any damages or injury arising from the content of these other sites. Neither Egreetings nor its affiliates endorses the individuals, companies, or other similar entities, or any products, services or materials associated with such individuals, companies, or other similar entities, that provide a link to the Platforms.
The Platforms may contain or offer sweepstakes, contests, or other promotions, which may be governed by a separate set of official rules and have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read the applicable rules to determine whether your participation, registration or entry will be valid or restricted and to determine the sponsor's requirements of you in connection with the applicable sweepstakes, contest, or promotion.
The Platforms may provide certain content that you may choose to include on your personal web page, blog, page on a social networking site, or similar page ("Personal Page") by pasting into your Personal Page the HTML or other code provided by Egreetings and labeled as embed code (or a similar identifying label) ("Widget"). Egreetings grants you a limited, revocable license, subject to the restrictions in this Agreement, to include the Widget, as provided by Egreetings (without editing) on your Personal Page only. You agree that you will not include or otherwise make available a Widget on a web page or website containing content that is distasteful, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable (in Egreetings' sole opinion). As described in the "Disclaimer of Warranties" section of this Agreement, Egreetings makes no specific warranties about Widgets. Egreetings may discontinue providing the services necessary for the Widgets to operate at any time for any reason without any liability to you. In addition, Egreetings may disable Widgets that you include on any Personal Page if you violate this Agreement (as determined by Egreetings in its sole discretion) or for any or no reason, without any liability to you. You agree that Egreetings's license grant to you to use a Widget on your Personal Page does not provide you with any intellectual property rights, including copyrights, in the materials made available via any Widget. You agree to not sell, lease, hypothecate, transfer, license, distribute, reproduce, encumber or otherwise exploit the content made available in a Widget, in whole or in part, without the express written consent of Egreetings. You agree to include, and not remove or alter, Egreetings's trademark, copyright or other proprietary rights notices, as provided by Egreetings on the Widget. You also agree to not use (or attempt to use) the Widget to display content other than the content provided or intended by Egreetings to be displayed via a particular Widget. Except as expressly stated otherwise, the Widget and any and all content provided through the Widget are subject to this Agreement in their entirety.
THE PLATFORMS (INCLUDING, WITHOUT LIMITATION, THE MATERIALS, INFORMATION, LINKS, MESSAGES, PRODUCTS OR SERVICES PROVIDED ON THE PLATFORMS, WIDGETS, MOBILE FEATURES, SOCIAL DISTRIBUTION, AND WIDGETS) ARE PROVIDED ON AN "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
WITHOUT LIMITING THE FOREGOING, EGREETINGS AND ITS SUBSIDIARIES AND AFFILIATED COMPANIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, SUPPLIERS, VENDORS, CONTENT PROVIDERS, LICENSORS, LICENSEES, AND OTHER REPRESENTATIVES (EACH AN "EGREETINGS PARTY" AND, COLLECTIVELY, "EGREETINGS PARTIES") DO NOT WARRANT THAT YOUR USE OF THE PLATFORMS WILL BE ERROR-FREE, TIMELY, UNINTERRUPTED, OR SECURE; THAT DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE PLATFORMS OR THE SERVER THAT MAKES THE PLATFORMS AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE EGREETINGS PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION ON THE PLATFORMS IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE PLATFORMS IS AT YOUR SOLE RISK. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE PLATFORMS AND YOUR RELIANCE THEREON. NO OPINION, ADVICE, OR STATEMENT OF ANY EGREETINGS PARTY, WHETHER MADE ON THE PLATFORMS, OR OTHERWISE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
YOU UNDERSTAND THAT BY USING THE PLATFORMS YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN THE JURISDICTION(S) WHERE YOU ACCESS OR USE THE PLATFORMS. THE EGREETINGS PARTIES NEITHER ENDORSE NOR ARE RESPONSIBLE FOR ANY OPINION, ADVICE, INFORMATION, STATEMENT, OR USER CONTENT MADE OR DISPLAYED ON THE PLATFORMS BY THIRD PARTIES (INCLUDING ANY USER OF THE PLATFORMS) AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM SUCH CONTENT OBTAINED ON OR THROUGH THE PLATFORMS. PLEASE REMEMBER THAT IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY AND RELIABILITY OF ANY OPINION, ADVICE, INFORMATION OR STATEMENT AVAILABLE ON THE PLATFORMS. A POSSIBILITY EXISTS THAT THE PLATFORMS COULD INCLUDE INACCURACIES OR ERRORS. ADDITIONALLY, A POSSIBILITY EXISTS THAT UNAUTHORIZED ALTERATIONS COULD BE MADE TO THE PLATFORMS BY THIRD PARTIES. ALTHOUGH WE ATTEMPT TO ENSURE THE INTEGRITY OF THE PLATFORMS, THE EGREETINGS PARTIES MAKE NO GUARANTEES AS TO THE COMPLETENESS OR CORRECTNESS OF THE PLATFORMS. EGREETINGS IS ALSO NOT RESPONSIBLE FOR ANY FAILURE OF ELECTRONIC MESSAGES, CARDS, OE OTHER CONTENT REACHING THEIR INTENDED RECIPIENTS OR TO REACH SUCH RECIPIENTS ON THE DATE SPECIFIED BY THE SENDER. THE MATERIALS AVAILABLE ON THE PLATFORMS ARE SUBJECT TO CHANGE WITHOUT NOTICE.
IN THE EVENT OF ANY FAILURE OF THE APPLICATION TO CONFORM TO ANY WARRANTY NOT EFFECTIVELY DISCLAIMED IN THIS AGREEMENT, YOU MAY, IF YOU ARE USING ONE OF OUR APPS ON THE APPLE PLATFORM, NOTIFY APPLE, AND APPLE WILL REFUND THE PURCHASE PRICE FOR THE APP (IF ANY); AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE AND EGREETINGS WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APP, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO A WARRANTY NOT EFFECTIVELY DISCLAIMED IN THIS AGREEMENT WILL BE EGREETINGS' SOLE RESPONSIBILITY. NOTWITHSTANDING THE FOREGOING, EGREETINGS AND YOU ACKNOWLEDGE THAT APPLE (IF YOU ARE USING ONE OF OUR APPS ON THE APPLE PLATFORM) HAS NO OBLIGATION TO FURNISH ANY MAINTENANCE AND SUPPORT SERVICES WITH RESPECT TO THE APP.
IF YOU ARE USING ONE OF OUR APPS ON THE APPLE PLATFORM, THEN NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, AND SUBJECT TO THESE TERMS, EGREETINGS AND YOU ACKNOWLEDGE THAT AS BETWEEN APPLE AND EGREETINGS, EGREETINGS IS RESPONSIBLE FOR ADDRESSING ANY CLAIMS YOU MAY HAVE RELATING TO THE APP OR YOUR POSSESSION AND/OR USE OF THE APP, INCLUDING, BUT NOT LIMITED TO: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE APP FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.
UNDER NO CIRCUMSTANCES SHALL THE EGREETINGS PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY AND/OR INCIDENTAL DAMAGES) (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR ATTORNEYS' FEES) ARISING OUT OF OR IN ANY WAY RELATING, DIRECTLY OR INDIRECTLY, TO (A) THE PLATFORMS (INCLUDING, WITHOUT LIMITATION, ALL MATERIALS, WIDGETS, MOBILE FEATURES, SOCIAL DISTRIBUTION, APPLICATIONS, AND INFORMATION, PRODUCTS AND SERVICES CONTAINED ON OR AVAILABLE ON OR THROUGH THE PLATFORMS); (B) USER CONTENT; (C) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE PLATFORMS; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE EGREETINGS PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE PLATFORMS; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY MATTERS; (G) ANY ERRORS OR OMISSIONS IN THE TECHNICAL OPERATION OF THE PLATFORMS; OR (H) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, HARDWARE, SOFTWARE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE EGREETINGS PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR DESTRUCTION OF THE PLATFORMS). IN NO EVENT WILL THE EGREETINGS PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
YOUR SOLE REMEDY FOR DISSATISFACTION WITH ANY PORTION OF THE PLATFORMS IS TO STOP USING THE PLATFORMS, AND THE SOLE AND EXCLUSIVE MAXIMUM AGGREGATE LIABILITY OF THE EGREETINGS PARTIES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE THE GREATER OF TEN DOLLARS ($10.00) OR THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO ACCESS THE PLATFORMS.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF EGREETINGS' ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION THE PLATFORMS OR ANY EGREETINGS WEB SITES, MOBILE APPS, PROPERTY, PRODUCT, SERVICE, OR OTHER PLATFORM CONTENT OWNED OR CONTROLLED BY THE EGREETINGS PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY OF THE PLATFORMS, MOBILE APP, PROPERTY, PRODUCT, SERVICE, OR OTHER SITE CONTENT OWNED OR CONTROLLED BY THE EGREETINGS PARTIES.
BY ACCESSING THE PLATFORMS, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The information provided on or through the Platforms themselves are not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. We control and operate the Platforms from offices located in the United States and make no representations or warranties that the information, products or services available through the Platforms are appropriate for use or access in other locations. Anyone using the Platforms from other locations does so on their own initiative and is responsible for compliance with United States' and local laws regarding online conduct and acceptable content, if and to the extent such laws apply. We reserve the right to limit the availability of the Platforms or any portion of the Platforms, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that we provide. Software related to or made available by the Platforms may be subject to United States export controls. Thus, no software from the Platforms may be downloaded, exported or re-exported: (a) into a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a "terrorist supporting" country; and (b) by or to any person listed on any U.S. Government list of prohibited or restricted persons. By downloading any software related to the Platforms, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
In the event Egreetings determines, in its sole discretion, that you have violated this Agreement, Egreetings will have the right to immediately terminate your account (with or without refund), refuse membership, suspend or block access to your use of the Platforms, or block the sending, receiving or uploading of content from the Platforms, or pursue any other remedies available to it under applicable law. Egreetings also reserves the right to investigate suspected violations of this Agreement. Any violation of this Agreement may be referred to law enforcement authorities. Egreetings further reserves the right at any time to modify or discontinue, temporarily or permanently, any of the Platforms with or without notice. You agree that Egreetings will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Platforms. Any provision of this Agreement, which by its terms, ought to survive, shall survive any termination of this Agreement.
Except for disputes relating to the infringement of your or Egreetings' intellectual property (such as trademarks, trade dress, copyright and patents) or where you or Egreetings are seeking a preliminary injunction ("Excluded Disputes"), you agree that all disputes between you and Egreetings (whether or not such dispute involves a third party) with regard to this Agreement, your use of the Platforms, or any Egreetings advertisement or promotion, will be resolved by binding, individual arbitration under the American Arbitration Association's rules for arbitration of consumer-related disputes and you hereby expressly waive trial by jury. Neither you nor Egreetings will participate in a class action or class-wide arbitration for any claims covered by this Agreement. This dispute resolution provision will be governed by the Federal Arbitration Act and, where consistent, Ohio law. The arbitration will be conducted in Cuyahoga County, Ohio, in the English language by three arbitrators appointed in accordance with the American Arbitration Association's Rules. Judgment on the award rendered by the arbitrators may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrators will not have authority to award punitive or exemplary damages. This Agreement is governed by and construed in accordance with the laws of the State of Ohio without giving effect to any principles of conflicts of law. You agree that any action at law or in equity relating to the arbitration provision of this Agreement or the Excluded Disputes will be filed only in the state or federal courts located in Cuyahoga County, Ohio and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
We reserve the right to modify or add to this Agreement at any time without prior notice ("Updated Terms"). You agree that we may notify you of the Updated Terms by posting them on the Platforms so that they are accessible via a link on the home page, and that your use of the Platforms after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review this Agreement before using the Platforms. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Platforms from that point forward.
If you use one of our Apps on the Apple Platform, you acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of this Agreement, and that, upon your entry into this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary.
The waiver by either party of any breach of this Agreement will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of you and Egreetings.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.