Terms and Conditions
Effective June August 1, 2022
By agreeing to these Terms, you expressly agree to the arbitration of all Disputes as further described below. Any controversy, allegation, or claim that arises out of or relates to the Service, these Terms, or any additional terms, whether heretofore or hereafter arising (collectively, a “Dispute”), except for any controversy, allegation or claim that arises out of or relates to our actual or alleged intellectual property rights (an “Excluded Dispute”), shall be finally resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and that these Terms do not permit class arbitration, or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitrator or arbitral panel may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the arbitration provisions will remain in force.
- Your Access to the Service
- Permitted Use and Restrictions
- User Accounts and Security
- User Design Services
- Terms of Sale and Payments
- Submitted Content
- DMCA Notice
- Idea Submissions
- Intellectual Property Rights
- Mobile Messaging Terms and Conditions
- Third-Party Sites and Services
- Notice for California Residents Pursuant to California Civil Code Section 1789.3
- Warranty Disclaimer
- Limitation of Liability
- Communication Between Us
- Governing Law
- Dispute Resolution
- Additional Important Terms
- Changes to These Terms
- Contact Information
Your Access to the Service
- Internet Access. When using the Service on your mobile, laptop, desktop, or other device (your “Device”), you acknowledge and agree that you are responsible for (i) maintaining Internet access for your Device and (ii) any Internet connection and telecommunications fees and charges that you incur.
- Your Device. JoyMail is not responsible for the operation of your Device. You are responsible for ensuring the system functions of your Device are in working order when accessing the Service, including, but not limited to screen display operation features of your Device.
- No Guarantee. Access to the Service may be suspended temporarily and without notice (i) in the event of system failure, (ii) for maintenance or repair, (iii) where we reasonably suspect there has been a breach of these Terms, (iv) for reasons reasonably beyond our control, or (v) as otherwise explained in these Terms.
- Account Holders. You agree to maintain accurate, complete, and up-to-date information in your account. Your failure to maintain accurate, complete, and up-to-date account information, may result in your inability to fully access or use our Service.
Permitted Use and Restrictions
- License Grant. Subject to the terms and conditions of these Terms, JoyMail hereby grants you a limited, non-exclusive, personal, non-transferrable, non-sublicensable, non-assignable license to access and use the Service (including updates and upgrades that replace or supplement it in any respect and which are not distributed with a separate license, and any documentation) solely for your personal use on a Device that you own or control. We reserve all other rights, which are not granted in these Terms.
- Use Restrictions. You may not access or use the Service in any way that is not expressly permitted by these Terms. You may not: (i) cause, permit or authorize the modification, copy, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service; (ii) sell, assign, rent, lease, or grant rights in the Service, including, without limitation, through sublicense, to any other person or entity; or (iii) use the Service for any unlawful, prohibited, abnormal or unusual activity as determined by JoyMail in its sole discretion.
- Eligibility. In order to register an account, you must be an individual at least 18 years of age and able to enter into legally binding contracts. Individuals aged 13 and over, but under the age of 18, may utilized the Service only with the involvement, supervision, and approval of a parent or legal guardian, under such parent or legal guardian’s account and otherwise subject to these Terms. Individuals under the age of 13 are not permitted to utilize the Service.
- Investigations. We may, but are not obligated to, monitor, or review our Service at any time. If we become aware of any possible violations by you of these Terms, we reserve the right to investigate such violations, and we may, at our sole discretion, immediately terminate your license to use the Service pursuant to Section 18 (Termination) below.
- Violation of these Terms. You must not use (or permit a third-party to use) the Service: (i) in any unlawful manner, for any unlawful purpose, or to act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Service or any operating system used by the Service; (ii) in a way that could damage, disable, overburden, impair or compromise our systems or security, or interfere with other users; (iii) to collect or harvest any information or data from the Service or our systems or attempt to decipher any transmissions to or from the servers running the Service; (iv) via use of a robot, spider, or other automated device to monitor or copy the Service or any information provided by the Service; (v) to send, knowingly receive, upload, download, use or re-use any material which does not comply with these Terms; or (vi) to transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam). You acknowledge and agree that you are solely responsible, and JoyMail has no responsibility or liability to you or any other person or entity for, any breach by you of these Terms or for the consequences of any such breach.
User Accounts and Security
- User Accounts. To use certain features of the Service, you may be required to create a JoyMail account and provide us with a username, password, and certain other information about yourself. You are solely responsible for the information associated with your account and anything that happens related to your account. You agree to provide true, accurate, current, and complete information as requested by any forms and maintain and update such information to keep it true, accurate, current, and complete.
- Account Security. Maintaining account security is very important. You are solely responsible for maintaining the confidentiality of your account passwords. You agree to notify JoyMail immediately if you become aware of any unauthorized use of your password or your account.
- Account Sharing or Transfers. Accounts are registered to you personally and may not be sold, traded, gifted, or otherwise transferred at any time under any circumstances. You may not share your account with, or disclose your password to, anyone else.
- Fees. You agree to pay all applicable fees and taxes incurred by you or anyone using your account. YOU ACKNOWLEDGE YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
- Account Deletion by You. You may delete your account at any time. You may delete your account by contacting us at the information in Section 24 (Contact Information) below. When you delete your account, JoyMail may maintain a copy of the information in our records to allow you to re-activate your account (if you later wish to do so) and otherwise to comply with our legal and regulatory obligations. Certain information, such as chat history and greeting card designs that you have created, are retained by us and may be available to other users.
- Account Deletion by Us. JoyMail may terminate your account at any time for any reason or no reason, including if: (a) JoyMail determines that you are (i) in breach of or otherwise acting inconsistently with these Terms or (ii) engaging in fraudulent or illegal activities or other conduct that may result in liability to JoyMail; (b) JoyMail determines it is required by law to terminate your account; or (c) JoyMail decides to stop providing the Service or critical portions of the Service. When terminating your account, JoyMail may delete the account and the information in it. You have no ownership rights to your account.
User Design Services
- User-Design Services. You may use the Service to design custom cards, letters, envelopes, and similar items (each a “User-Designed Item”) (collectively, the “User Design Services”). By using the User Design Services, you agree that you are solely responsible (pursuant to Section 7 (Submitted Content) of these Terms) for the images, graphics, text, and any other content you submit to us for the User-Designed Item. JoyMail does not claim ownership of any of the content of your User-Designed Items. With respect to User-Designed Items, you hereby grant us a perpetual, irrevocable, non-terminable, transferable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive, and transferable license to use, reproduce, distribute, prepare derivative works of, display, modify, copy, and perform the content and your name, image, and/or likeness as contained in any User-Designed Item, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service. You hereby represent, warrant, and covenant that any content you provide does not include anything (including, but not limited to, text, graphics, or images) to which you do not have the full right to grant the license specified in this Section 5 (User Design Services).
- Design Templates. JoyMail may provide design templates for greeting cards, letters, envelopes, and similar goods (each a “Design Template”). You acknowledge and agree that all intellectual property rights in the Design Templates, whether registered or unregistered, belong to us or our licensors. JoyMail hereby grants you a limited, non-exclusive, personal, non-transferrable, non-sublicensable, non-assignable license to access and use the Design Templates solely for personal use as part of the User Design Services. We reserve all other rights, which are not granted in these Terms.
Terms of Sale and Payments
- Billing Policies. If you choose, at your sole discretion, to purchase goods, you acknowledge that you will be required to provide a current, valid, accepted method of payment (“Payment Method”) and you agree that we may charge your Payment Method. You also understand that all payments must be in U.S. dollars. JoyMail uses authorized third parties for the purpose of processing your transactions, credit card authorizations, and shipping. By submitting Payment Method details to us or our third-party processors, you grant (or otherwise authorize) JoyMail the right to store and process your information with such third parties. You agree that JoyMail will not be responsible for any failures of such third parties to adequately protect your information.
- Product Availability. The products displayed through the Service can be ordered and delivered only within the United States. All prices displayed through the Service are quoted in U.S. dollars and are exclusive of taxes and delivery charges. We cannot guarantee the availability of a particular product at any particular time, and we reserve the right to change and/or cancel our merchandise offerings through the Service, without notice, at any time.
- Personal Use. Unless you are authorized retailer, all products sold by or received from JoyMail are intended to be used for personal purposes only, and you may not sell or resell any products you purchase or otherwise receive from JoyMail.
JoyMail reserves the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products to be provided to you that may result in a violation of these Terms, as determined by JoyMail in its sole discretion.
- User-Designed Items Errors and Replacements. You are responsible for the final checkout and review of the User-Designed Items within the JoyMail shopping cart. It is your responsibility to perform a final proof of your User-Designed Item for any spelling, date, alignment, or other related issues before the User-Designed Item is completed and sent for printing. User-Designed Items will only be considered for replacement if there are printer-generated physical defects in the final, delivered User-Designed Item. For avoidance of doubt, JoyMail’s sole liability for a User-Designed Item is replacement of a User-Designed Item in the event of a printer-generated physical defect in the final, delivered User-Designed Item.
- Returns. Except as set out in Section 6(d), we do not accept returns of User-Designed Items. For other items, if you are not satisfied with a product within 10 days, we accept returns of new, unused goods. By submitting a return to us or our third-party processors, you grant (or otherwise authorize) JoyMail the right to store and process your information with such third parties. You agree that JoyMail will not be responsible for any failures of such third parties to adequately protect your information.
- Risk of Loss. All products (including cards) purchased from or via the Service are transported and delivered by an independent carrier not affiliated with, or controlled by, JoyMail. Title to products (including cards) purchased on the Service, as well as the risk of loss for such products (including cards), pass to the recipient when JoyMail or our supplier delivers these items to the carrier.
- JoyMail is not the source of, does not verify or endorse, and takes no responsibility for the content submitted in the chat function, submitted in connection with the User Design Services, or any material submitted or made available through the Service via any function that allows a user to message, post, create, or share content (the “Submitted Content”). Submitted Content is entirely the responsibility of the person from whom such content originated. Submitted Content may be protected by intellectual property rights owned by third parties. You are responsible for the content you choose to communicate and access using the Service. In particular you are responsible for ensuring that you do not submit material that (a) is protected by copyright, contains trade secrets or otherwise is subject to third-party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner; (b) is false or is a misrepresentation; (c) is offensive, unlawful, harmful to minors, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; or (d) impersonates another person. JoyMail may in its sole discretion block, prevent delivery of, or otherwise remove Submitted Content as part of its effort to protect the Service or its customers, or otherwise enforce these Terms. Further, JoyMail may, in its sole discretion, remove such content and terminate your account if you submit any content that is in breach of these Terms.
- JoyMail does not claim ownership of any of your Submitted Content. With respect to all of your Submitted Content, you hereby grant JoyMail a perpetual, irrevocable, non-terminable, transferable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive, and transferable license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform the Submitted Content or any part of the Submitted Content in connection with the Service and JoyMail’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any and all media formats and through any and all media channels. You also hereby grant each user of the Service a non-exclusive license to access your Submitted Content through the Service while the Submitted Content is made available through the Service. You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything (including, but not limited to, text, images, music, or video) to which you do not have the full right to grant the license specified in this Section 7 (Submitted Content).
- You acknowledge and agree that: (i) by using the Service, you may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent, or otherwise objectionable and you do so at your own risk; (ii) you are solely responsible for, and JoyMail has no responsibility to you or any third party for any Submitted Content that you create, submit, post or publish on or through the Service; (iii) JoyMail does not guarantee any confidentiality with respect to your Submitted Content; and (iv) JoyMail is not responsible for any Submitted Content provided by third parties that you may have access to through your use of the Service and all Submitted Content is the responsibility of the person from whom such Submitted Content originated. You acknowledge and agree that (y) JoyMail has no control over and is not responsible for the use of Submitted Content by its users, including any user that has downloaded Submitted Content to a personal device; and (z) JoyMail may not be able to remove Submitted Content that is downloaded onto a user’s Device. JoyMail does not endorse any Submitted Content, or any opinion, recommendation or advice expressed therein, and expressly disclaims any and all liability in connection with Submitted Content.
- You acknowledge that JoyMail has the right to screen your Submitted Content but has no obligation to do so. At JoyMail’s sole discretion, any Submitted Content may be included in the Service in whole or in part in modified form. In addition, JoyMail and its designees shall have the right, but not the obligation, in their sole discretion to refuse or remove any Submitted Content that is available via the Service that violates these Terms or is otherwise objectionable including, but not limited to, being unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or violating any party’s intellectual property.
- You acknowledge that your Submitted Content is your sole responsibility. You agree that, under no circumstances, will JoyMail be liable in any way for any Submitted Content, including, but not limited to, any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Service.
- We have adopted a policy that provides for the suspension and/or termination of any user who is found to have infringed on the rights of us or of a third party, or otherwise violated any intellectual property laws or regulations. Our policy is to investigate any allegations of copyright infringement brought to our attention.
Take-Down Notice. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want us to delete, edit, or disable, the material in question, you must provide us with all of the following information (as required by the United States Digital Millennium Copyright Act’s (“DMCA”) Online Copyright Infringement Liability Limitation Act) to our designated copyright agent set forth below:
- A physical or electronic signature of the copyright owner or the person authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed;
- Identification of the copyrighted work (or works) claimed to have been infringed;
- Identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material (providing URLs in the content of an email is the best way to help us locate content quickly);
- Information reasonably sufficient to permit us to contact you, including your address, telephone number, and e-mail address at which you may be contacted;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, the person authorized to act on the copyright owner’s behalf, or the law; and
- A statement made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or you are authorized to act on the copyright owner’s behalf.
See 17 U.S.C 512(c)(3) for further information.
For this notification to be effective, you must provide it to our Designated Agent by email at firstname.lastname@example.org
Mailing DMCA notices may delay the processing of your request. Only copyright complaints should be sent to the Designated Agent. No other communications will be accepted or responded to.
If you fail to comply with all of the requirements above, your DMCA notice may not be valid and not be acknowledged. Once proper notice is received by the Designated Agent, it is our policy:
- To remove or disable access to the infringing material;
- To notify the content provider, member, or user that we have removed or disabled access to the material; and
- That repeat offenders will have the infringing material removed from the system and that we will terminate such content provider’s, member’s, or user’s access to the Service.
Counter-Notice. If you believe that the material that was removed or to which access has been disabled is either not infringing, or you believe that you have the right to post and use such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, you must send a counter-notice containing the following information to the Designated Agent:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- Your name, address, and telephone number; and
- A statement that you consent to the jurisdiction of the federal district court in the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which you may be found and that you will accept service of process from the person who provided the initial notification of alleged infringement.
If a counter-notice is received by the Designated Agent, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member, or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at our discretion.
- The Service is controlled and offered by JoyMail in the United States. JoyMail makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service form other jurisdictions do so at their own volition and are responsible for compliance with local law.
- We welcome feedback from our users and appreciate your comments regarding our Service. However, our company policy does not permit us to accept or consider ideas, suggestions, proposals, or materials (“Submissions”) that we have not specifically requested. This policy is intended to help us, and our customers avoid future misunderstandings when new products or services developed internally by our employees might be similar or even identical to a customer’s idea.
Intellectual Property Rights
- Trademarks. The JoyMail name and logo are trademarks and service marks of JoyMail. You do not have the right to use any of our trademarks, service marks or logos, and your unauthorized use of any of these may be a violation of federal and state trademark laws.
- Ownership. Except for your Submitted Content, you acknowledge that all intellectual property rights in the Service, whether registered or unregistered, including but not limited to rights in graphics, logos, “look and feel,” trade dress, structure, organization, code, Submitted Content belong to other users, and all other content in the Service and compilation thereof, anywhere in the world, belong to us or our licensors and are valuable trade secrets and confidential information of JoyMail, and are protected by intellectual property laws. Except for your Submitted Content, you acknowledge and agree that JoyMail, and/or its licensors, own all right, title, and interest in and to the Service, including all intellectual property, industrial property, and proprietary rights recognized anywhere in the world at any time and that the Service is protected by U.S. and international copyright laws. Further, you acknowledge that the Service may contain information that JoyMail has designated as confidential, and you agree not to disclose such information without JoyMail’s prior written consent. Nothing posted on the Service grants a license to any JoyMail trademarks, copyrights, or other intellectual property rights, whether by implication, estoppel or otherwise. You should assume that everything you see or read on the Service is proprietary information protected by copyright or trademark unless otherwise noted and may not be used except with the written permission of JoyMail. When accessing the Service, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Service is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property.
Mobile Messaging Terms and Conditions
- By agreeing to these Terms or using the Service, you also agree to receive communications from us, including via email, text message (to the extent permitted by applicable law), calls, push notifications, browser notifications, and in-App messages. Communications from us may include responses to your inquiries, operational communications concerning your account and/or orders, requests for feedback, or marketing materials.
- If you wish to opt-out of promotional emails, you can unsubscribe from our promotional email list by following the unsubscribe options in the promotional email itself or selecting the opt-out box in your user account. To no longer receive push notifications, in your mobile phone’s Settings app, you can disable notifications for the App.
- User Opt-In. The Program allows users to receive SMS/MMS mobile messages by affirmatively opting-into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program and you acknowledge and agree that your information may be shared with third-party service providers who help us administer the Program. By participating in the Program, you agree to receive auto-dialed or prerecorded marketing mobile messages at the phone number associated with your opt-in. While you consent to receive messages sent using an auto-dialer, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “auto-dialer”). Message and data rates may apply.
- User Opt-Out. If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP to any mobile message from JoyMail in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt-out. You understand and agree that the foregoing options are the only reasonable methods of opting-out. You also understand and agree that any other method of opting-out, including, but not limited to, texting words other than the word STOP or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting-out.
- Duty to Notify and Indemnify. If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt-Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these Terms. You further agree that, if you discontinue the use of your mobile telephone number without notifying JoyMail of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by JoyMail, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and Agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs. YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
- Program Description: Without limiting the scope of the Program, users that opt-in to the Program can expect to receive messages concerning the marketing and sale of products, services, and events.
- Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with JoyMail.
- MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
- Our Disclaimer of Warranty: The Program is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of JoyMail’s control.
- Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your device capabilities for specific text messaging instructions.
Third-Party Sites and Services
- The Service may contain links to or allow you to share content directly with other third-party websites (“Third-Party Sites”). You acknowledge that we have no control over the Third-Party Sites and are not responsible for their contents and/or availability. We do not assume any liability for your use of any of the foregoing, which use you acknowledge and agree shall be at your own risk.
- These links are provided to you for convenience only and do not constitute an endorsement or approval by us of the organizations that operate such websites, the content, or other material contained in the Third-Party Sites, and we have no association with their operators. Your use of the Third-Party Sites will be governed by their terms and conditions and privacy policies (if any) (“Third-Party Terms”). It is your responsibility to read and comply with Third-Party Terms.
Notice for California Residents Pursuant to California Civil Code Section 1789.3
- Under California Civil Code Section 1789.3, California users of an electronic commercial service receive the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at 800-952-5210.
- You agree to indemnify and hold us and our affiliates, and their respective business partners, licensees, licensors, officers, directors, employees, and agents (the “Indemnified Parties”) harmless from and against any and all claims, demands, losses, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorneys' fees and costs), arising out of or in connection with: (a) your use of the Service; (b) your breach or violation of any of these Terms; or (c) your violation of the rights of any third party. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, which shall not excuse your indemnity obligations. In such event, you shall provide the Indemnified Parties with such cooperation as is reasonably requested by the Indemnified Parties.
- WE PROVIDE THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO GUARANTEE THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. WE HAVE NO OBLIGATION TO CORRECT ANY BUGS, DEFECTS OR ERRORS IN THE SERVICE OR TO OTHERWISE SUPPORT, DEVELOP OR MAINTAIN THE SERVICE. While we take reasonable precautions to prevent the existence of computer viruses and/or other malicious programs, we accept no liability for them. We also make no promises or guarantees, whether express or implied, that the content included on the Service is accurate, complete, or up to date.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL CONDITIONS, WARRANTIES, REPRESENTATIONS AND OTHER TERMS, WHICH MAY APPLY TO THE SERVICE (INCLUDING OUR PRODUCTS) WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES WITH RESPECT TO THE SERVICE (INCLUDING OUR PRODUCTS) AND ALL INFORMATION AND CONTENT INCLUDED ON THE SERVICE.
- No information or advice obtained through the Service, or affirmation by us, by words or actions, shall constitute a warranty.
- Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
Limitation of Liability
- IN NO EVENT SHALL THE INDEMNIFIED PARTIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS, ANY BREACH OF SECURITY OR ANY DAMAGE TO YOUR DEVICE, LOST DATA, PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES ARISING OUT OF YOUR USE OF OR RELIANCE ON THE SERVICE OR YOUR INABILITY TO ACCESS OR USE THE SERVICE) ARISING FROM, RELATING TO, OR IN ANY WAY CONNECTED WITH THE USE OR THE PERFORMANCE OF THE SERVICE (including our products) OR THESE TERMS, ARISING AND WHETHER FRAMED IN CONTRACT OR TORT, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF JOYMAIL, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Your sole remedy for dissatisfaction with the Service including, without limitation, content offered on the Service, is to stop using the Service (including our products). Such limitation shall also apply with respect to damages incurred by reason of services or products received through or advertised in connection with the Service or any links on the Service, as well as by reason of any information or advice received through or advertised in connection with the Service or any links on the Service. Such limitation shall also apply with respect to damages incurred by reason of any content posted by a third-party or conduct of a third-party on the Service.
- In the event the foregoing exclusion of liability is determined, in whole or in part, to be invalid or unenforceable, then the Indemnified Parties’ liability arising in connection with the Service or under these Terms whether in contract, tort (including negligence) or otherwise, shall not exceed, under any circumstances, the greater of: (i) the total amount paid for the Service in the preceding 30 days, or (ii) One Hundred Dollars ($100). You agree that any claim or cause of action arising under these Terms or the performance or non-performance of the Service must be brought within one year after such claim or cause of action arises or be forever barred.
- THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, JOYMAIL’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON JOYMAIL’S GOVERNING LAW PROVISION SET FORTH BELOW.
- IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, IN PART: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
- We may terminate these Terms and/or terminate your permission to use the Service immediately, without prior notice or liability, if (a) you commit any breach of these Terms, (b) we discontinue the Service, or (c) we are prevented from providing the Service for any reason.
- Furthermore, we reserve the right to change, edit, suspend, delete, and/or cancel any part of the Service and/or your access to it at any time with or without notice to you: (i) if required by law, or (ii) due to an event beyond our control.
- On termination of these Terms for any reason: (x) all rights granted to you under these Terms will cease immediately, (y) you must immediately cease all activities authorized by these Terms (including your use of the Service), and (z) you acknowledge that we may restrict your access to the Service. Sections 3, 11–12, and 15–22 will survive any termination or expiration of these Terms.
Communication Between Us
- If you wish to contact us in writing, or if any condition in these Terms requires you to give us notice in writing, you can send this to us as indicated in Section 24 (Contact Information) at the bottom of these Terms. If we have to contact you or give you notice in writing, we may do so by email or using any other contact details you provide to us.
- These Terms and any matter arising out of or relating to these Terms, and any claim, cause of action, controversy, or matter in dispute between you and us, whether sounding in contract, tort, statute, regulation, or otherwise, shall be governed by the internal laws of the State of California in the United States, consistent with the Federal Arbitration Act, without regard to any choice or conflict of laws principles (whether of the State of California or any other jurisdiction). The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from these Terms.
- User Concerns. Most user concerns can be resolved quickly and to the user’s satisfaction by contacting us at the contact details in Section 24 (Contact Information) below.
- Arbitration Procedures. In the event your concern cannot be resolved informally, you and JoyMail agree that, except as provided in Section 21(e) below, all Disputes, (each a “Claim”), 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 “JAMS Rules”) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section 21 (Dispute Resolution) and the JAMS Rules, the terms in this Section will control and prevail.
Except as otherwise set forth in Section 21(e) below, you may seek any remedies available to you under federal, state, or local laws in an arbitration action. As part of the arbitration, both you and JoyMail will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given, and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms, (i) you and JoyMail 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 (ii) the arbitrator’s 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.
IN THE CASE OF ARBITRATION AND WHERE PERMITTED BY LAW, YOU ARE AGREEING TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. ARBITRATOR DECISIONS ARE ENFORCEABLE AS ANY COURT ORDER AND ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT.
- Location. The arbitration will take place in the County and City of Los Angeles, California unless the parties agree to video, phone, or internet connection appearances.
- Limitations. You and JoyMail agree that any arbitration shall be limited to the Claim between JoyMail and you individually. YOU AND JOYMAIL AGREE THAT (i) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (ii) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (iii) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
- Exceptions to Arbitration. You and JoyMail agree that the following Claims are not subject to the above provisions concerning binding arbitration: (i) any Excluded Dispute; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (iii) 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 court’s jurisdiction in lieu of arbitration.
- Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay the costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
- Severability. You and JoyMail agree that if any portion of this Section is found illegal or unenforceable (except any portion of Section 21(e)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 21(e) is found to be illegal or unenforceable then neither you nor JoyMail will elect to arbitrate any Claim falling within that portion of Section 21(e) found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within County and City of Los Angeles, California, United States of America, and you and JoyMail agree to submit to the personal jurisdiction of that court.
Additional Important Terms
- Assignment. The rights granted to you under these Terms may not be assigned without JoyMail’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
- Severability. If any part of these Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the Terms shall be given full force and effect.
- Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with these Terms, except as otherwise provided in Section 21(f), the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in any legal action relating to these Terms.
- No Waiver. Our failure to enforce any provision of these Terms shall in no way be construed to be a waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by JoyMail of any provision, condition, or requirement of these Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition, or requirement at a later time.
- Equitable Remedies. You acknowledge and agree that JoyMail would be irreparably damaged if the terms of these Terms were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to any breach of these Terms, in addition to such other remedies as we may otherwise have available to us under applicable laws.
- Entire Agreement. These Terms, including the documents referenced in these Terms, constitutes the entire agreement between you and JoyMail with respect to the Service and supersedes any and all prior agreements between you and JoyMail relating to the Service.
- Transfer. We may transfer our rights and obligations under these Terms to another organization, but this will not affect your rights or our obligations under these Terms.
Changes to These Terms
- We reserve the right, at our sole discretion, to amend these Terms at any time. As applicable, we will notify you of material changes to these Terms when you next access the Service (we may also email you about any material changes to these Terms). We reserve the right at any time and from time-to-time to modify or discontinue, temporarily or permanently, the Service (or any part of it) with or without notice.
- If you have any questions or comments relating to the Service or these Terms, please contact us at email@example.com.