THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
The App is available only to individuals aged 13 years or older, and only available to United States residents. If you are 13 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it. If you are under the age of 13, you may use the App only with the consent of your parent or guardian. If you reside outside of the United States you will not be able to download the App.
We reserve the right, in our sole and absolute discretion, to deny you access to the App, or any portion of the App, including by closing or disconnecting your account, without notice and without reason.
2. COMMUNITY GUIDELINES
Cardsy is a unique, multi-media greeting, messaging, and gift giving tool. The App is meant to be a positive and fun tool. Please note, however, that some of the Content (as defined below), including User Content (as defined below), may be of an adult nature, and may contain profanity or material that some may find offensive. By using the App, you acknowledge that you may encounter mature content, and that use of the App is at your own risk.
Our community, like any community, functions best when our users follow a few simple rules. By accessing the App, you agree to comply with these community guidelines (the “Community Guidelines”) and that:
You will not upload, post, e-mail, transmit, or otherwise make available any User Content (as defined below) that:
infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity); or
discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.
You will comply with all applicable laws in your use of the App and will not use the App for any unlawful purpose;
You will not access or use the App to collect any market research for a competing business;
You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
You will not interfere with, or attempt to interrupt the proper operation of, the App through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any Content (as defined below), data, files, or passwords related to the App through hacking, password or data mining, or any other means;
You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the App;
You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the App;
You will not use any robot, spider, scraper, or other automated means to access the App for any purpose without our express written permission;
You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
If you find something that violates our Community Guidelines, please let us know, and we will review it.
3. USER NAME; PASSWORD; UNIQUE IDENTIFIERS
If you wish to create an account on the App, you will be prompted to create a user name (“User Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you logs-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each User Name and corresponding Password can be used by only one user. You are solely responsible for the confidentiality and use of your User Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the App using one or more of them. You will promptly inform us of any need to deactivate a Password or User Name, or change any Unique Identifier. We reserve the right to delete or change your Password, User Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action.
Access to, and usage of, the App is free of charge.
The App may require data access, and the provider of such data access (e.g., network operator, wireless carrier, etc.) for your device may charge you data access and other fees in connection with your use of the App, including, without limitation, wireless carrier messaging and other communication, messaging, and data fees and charges, as applicable. You shall be responsible, at your sole cost and expense, for obtaining and paying for wireless access, and under no circumstances will Cardsy be responsible for any such data access fees or charges in connection with your use of the App.
5. INTELLECTUAL PROPERTY
The App is protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in this Agreement, Cardsy and our licensors exclusively own all right, title, and interest in and to the App, including all associated intellectual property rights. You will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the App.
The App contains material, such as videos, photographs, software, text, graphics, images, sound recordings, and other material provided by or on behalf of Cardsy (collectively referred to as the “Content”). The Content may be owned by us or third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws.
You may view all Content for your own personal, non-commercial use. No other use is permitted without the prior written consent of Cardsy. Cardsy and its licensors retain all right, title, and interest, including all intellectual property rights, in and to the Content. You must retain all copyright and other proprietary notices contained in the original Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose.
If you violate any part of this Agreement, your permission to access the Content and the App automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of Cardsy (the “Cardsy Trademarks”) used and displayed on the App are registered and unregistered trademarks or service marks of Cardsy. Other company, product, and service names located on the App may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Cardsy Trademarks, the “Trademarks”). Nothing on the App should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Cardsy Trademarks inures to our benefit.
Elements of the App are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
If you decide to use the App, subject to your compliance with the terms and conditions of the Agreement, Cardsy grants you a limited, non-exclusive, non-transferable, revocable right for you to install, access, and use the App on your device solely for your personal use in connection with the services provided via the App. We reserve all rights in the App not expressly granted to you in this section.
6. USER CONTENT; LICENSES
The App allows you to post and upload content such as images, videos, comments, and other media (collectively, “User Content”). When you create or post User Content on the App, you expressly acknowledge and agree that there is no confidentiality or privacy with respect to such User Content, including, without limitation, any personally identifying information that you may make available. If you choose to send such User Content to certain friends and contacts, you understand and agree that any friend, contact, or other recipient of your User Content is under no restrictions to maintain such User Content as private or confidential, and may share your User Content with third parties including, without limitation, via text message, email, and social media widgets, without restriction. YOU, AND NOT Cardsy, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR USER CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE APP.
You retain all copyrights and other intellectual property rights in and to your own User Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) your User Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised.
If you submit User Content to us, each such submission constitutes a representation and warranty to Cardsy that such User Content is your original creation (or that you otherwise have the right to provide the User Content), that you have the rights necessary to grant the license to the User Content under the prior paragraph, and that it and its use by Cardsy and its content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates our Community Guidelines.
7. COMMUNICATIONS WITH AND SUBMISSIONS TO US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, ratings, feedback, questions, comments, suggestions, and the like, we shall be free to use any ratings data, ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
8. NO WARRANTIES; LIMITATION OF LIABILITY
YOU ACKNOWLEDGE THAT Cardsy DOES NOT REPRESENT OR WARRANT THAT THE CONTENT AND ANY OTHER DATA OR INFORMATION PROVIDED THROUGH THE APP WILL BE ACCURATE OR COMPLETE.
YOU ACKNOWLEDGE THAT THE APP MAY CONTAIN BUGS, ERRORS, AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM FAILURES. CONSEQUENTLY, THE APP AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE APP OR CONTENT WILL OPERATE ERROR-FREE OR THAT THE APP, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE APP OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES, NOT ATTRIBUTABLE TO PERSONAL INJURIES, THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SITE, THE SERVICES, OR THE CONTENT SHALL BE LIMITED TO FIFTY UNITED STATES DOLLARS (US $50).
SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
9. EXTERNAL SITES
The App may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites, unless we have otherwise provided that they are endorsements, such as suggested curated gifts which may include links to the products or services of our advertising or promotional partners. The content of such External Sites (whether or not endorsed by Cardsy) is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
10. REPRESENTATIONS; WARRANTIES; AND INDEMNIFICATION
(a) You hereby represent, warrant, and covenant that:
You own or have the necessary licenses, rights, consents, and permissions to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights in and to your User Content and any other works that you incorporate into your User Content, and all the rights necessary to grant the licenses and permissions you grant hereunder;
Use of your User Content in the manners contemplated in this Agreement shall not violate or misappropriate the intellectual property, privacy, publicity, contractual, or other rights of any third party; and
You shall not submit to the App any User Content that violates our Community Guidelines set forth above or any other term of this Agreement.
(b) You agree to defend, indemnify, and hold us and our owners, members, officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your misuse of the Content or the App; and/or (iii) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
11. COMPLIANCE WITH APPLICABLE LAWS
The App is based in the United States and is only available to United States residents. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the App or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
12. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the App, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the App at any time without prior notice or liability. Sections 4-18 and Section 20 shall survive the termination of this Agreement.
13. DIGITAL MILLENNIUM COPYRIGHT ACT
Cardsy respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
Send Bundle LLC
c/o Lowenstein Sandler LLP
One Lowenstein Drive
Roseland, NJ 07068
Attention: Leah Satlin, Esq.
If you believe that your work has been copied on the App in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the App where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) 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; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
14. CONTROLLING LAW
This Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.
15. BINDING ARBITRATION
In the event of a dispute arising under or relating to this Agreement, the Content, or the App (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 16 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
16. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
17. EQUITABLE RELIEF
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York, Borough of Manhattan for purposes of any such action by us.
18. COMMUNICATIONS DECENCY ACT NOTICE
Cardsy is a provider of “interactive computer services” as defined under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation, libel, product disparagement, and other claims arising out of any User Content is limited as described therein. We are not responsible for any User Content. We neither warrant the accuracy of the User Content nor exercise any editorial control over User Content, nor do we assume any legal obligation for editorial control of User Content or liability in connection with User Content, including any responsibility or liability for investigating or verifying the accuracy of any User Content.
19. DOWNLOADING THE APP. We make the App available through the Apple App Store. The following terms apply when you download the App from Apple’s App Store. These terms are in addition to all other terms contained in the Agreement.
You acknowledge and agree that (i) the Agreement is concluded between you and Cardsy only, and not Apple; and (ii) Cardsy, not Apple, is solely responsible for the App and content thereof. Your use of the App must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
In the event of any failure of any of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the applicable App to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. As between Cardsy and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Cardsy.
You acknowledge that, in the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, as between Cardsy and Apple, Cardsy, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App against you as a third-party beneficiary thereof.
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.