You represent that you are 18 years of age or older and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms. In any case, you affirm that you are over the age of 13, as the Heyzap Service is not intended for children under the age of 13. If you are using or opening an account on the Heyzap Service on behalf of a company, entity, or organization (collectively ”Subscribing Organization”), then you represent and warrant that you: (1) are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms and (2) agree to be bound by these Terms on behalf of such Subscribing Organization.
3. Individual Features and Services
When using the Heyzap Service, you will be subject to any additional posted guidelines or rules applicable to specific services, and features which may be posted from time to time (the ”Guidelines”). All such Guidelines are hereby incorporated by reference into the Terms.
4. Modification of the Terms
Smart Balloon reserves the right, in its sole discretion, to change, modify, add, or remove portions of these Terms at any time and from time to time without specific notice to you other than through posting such modified terms on the Website. Please check these Terms and any Guidelines periodically for changes. The most current and controlling Terms and Guidelines are posted on the Website and indicate the date last modified. Your continued use of the Heyzap Service after the posting of changes constitutes your binding acceptance of such changes.
5. Heyzap Service Access
- 1 Access. Smart Balloon grants you permission to use the Heyzap Service as set forth in these Terms, provided that: (i) you use the Heyzap Service solely for your personal, private, noncommercial use; (ii) you do not copy, publicly display or distribute any part of the Heyzap Service in any medium without Smart Balloon‘s prior written authorization; (iii) you do not alter or modify any part of the Heyzap Service other than as may be reasonably necessary to use the Heyzap Service for its intended purposes; (iv) you do not engage in any of the prohibited uses described below; and (v) you will otherwise fully comply with these Terms. The Heyzap Service is controlled and offered by Smart Balloon from its facilities in the United States of America. Smart Balloon makes no representations that the Heyzap Service is appropriate or available for use in other locations, and access to the Website from territories where the content on the Website may be illegal is prohibited. Those who access or use the Heyzap Service from other jurisdictions do so at their own risk and are solely responsible for compliance with local laws. 5.2 Fees. Certain functions on the Heyzap Service may now or in the future have fees associated with them. When you use a function that has a fee you will have an opportunity to review and accept the fees that you will be charged based on our stated fees, which we may change from time to time. Heyzap may choose to temporarily change the fees for Heyzap‘s services for promotional events or new services, and such changes are effective immediately upon posting on the Website. Any changes for recurring fees on the Heyzap Services that are not temporary or promotional will be effective thirty (30) days after the posting of notice of such new fees on the Website. Unless otherwise stated, all fees are in U.S. Dollars.
6. Ownership; Proprietary Rights
The Heyzap Service is owned and operated by Smart Balloon. The content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Heyzap Service that are provided by Smart Balloon (”Heyzap Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Heyzap Materials do not include User Submissions (defined below) or any other content owned by and submitted by Users to the Heyzap Service. All Heyzap Materials contained on the Heyzap Service are the property of Heyzap or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names contained in the Heyzap Materials or on the Heyzap Service are proprietary to Heyzap or its affiliates and/or third-party licensors. Except as expressly authorized by Heyzap, you agree not to sell, license, distribute, copy, modify, publicly perform, publicly display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Heyzap Materials. Heyzap reserves all rights not expressly granted in these Terms. You shall not acquire any right, title or interest to the Heyzap Materials, except for the limited rights set forth in these Terms.
The Heyzap Service may, from time to time, host online contests for prizes and may determine your score and/or eligibility for a prize (a ”Contest”). The rules for a Contest will be identified in the Guidelines for such Contest. Prizes will typically be non-cash prizes, and will be identified in posted Guidelines.
8. User Submissions
- 1 General. The Heyzap Service may now or in the future permit the submission and posting or linking of pictures, sound recordings and audiovisual works, text, chat, commentary or any other content submitted by you and other users (”User Submissions”), and the hosting, sharing, public performance or public display of such User Submissions. User Submissions are displayed for entertainment and informational purposes only and are not controlled by Smart Balloon. Smart Balloon does not guarantee any confidentiality with respect to any User Submissions. You understand that all User Submissions are the sole responsibility of the person from whom such User Submission originated. This means if you upload User Submissions to the Heyzap Service, you, and not Smart Balloon, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit or otherwise make available through the Heyzap Service. 8.2 No Obligation to Publish. Smart Balloon makes no representations that it will publish or make available on the Heyzap Service any User Submissions, and reserves the right, in its sole discretion, to refuse to allow any User Submissions on the Heyzap Service. 8.3 License Grant by You to Smart Balloon. You shall retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to Smart Balloon, you hereby grant Smart Balloon and its affiliates, sublicensees, partners, designees, and assignees a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicenseable, and transferable license, throughout the universe, to use, reproduce, distribute, modify, transcode, adapt, prepare derivative works of, publicly display, publicly perform, and otherwise exploit your User Submissions in connection with the Heyzap Service and Smart Balloon‘s (and its successor‘s) business, including, without limitation, for promoting and redistributing part or all of the Heyzap Service (derivative works thereof) in any media formats and through any media channels now known (including but not limited to mobile platforms) or hereafter discovered. By way of example and not limitation, you grant Smart Balloon the right to use your User Submissions or portions thereof in any online game and for advertising and promotional purposes, without any compensation to you. You grant Smart Balloon and its affiliates, sublicensees, partners, designees, and assignees, the right to use the name and/or likeness that you submit in connection with such User Submission if they choose, without compensation or need for your prior approval. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions. You also hereby grant to each User of the Heyzap Service a non-exclusive license to access your User Submissions through the Heyzap Service, and to use, reproduce, distribute, prepare derivative works of, publicly display, and publicly perform such User Submissions as permitted by the functionality of the Heyzap Service and these Terms, as amended from time to time. By accepting any prize from Smart Balloon for participation in any Contest, you hereby grant Smart Balloon a nonexclusive, perpetual license to print, publish, broadcast and use, worldwide, in any media and at any time, your name, picture, voice, likeness, and/or biographical information for promotional or related purposes without any additional compensation. 8.4 User Submissions Representations and Warranties. You are solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Smart Balloon to use all patent, trademark, copyright, or other proprietary rights in and to any and all User Submissions to enable inclusion and use of User Submissions in the manner contemplated by Smart Balloon and these Terms, and to grant the rights and license set forth above (including all rights necessary for the use of any works), and (ii) your User Submissions, Smart Balloon‘s use of such User Submissions pursuant to these Terms, and Smart Balloon‘s exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (c) violate any applicable law or regulation; or (d) require the payment of royalties to any third party for the exercise of any rights granted in these Terms, including, by way of example and not limitation, the payment of any royalties to any game copyright owners, so-called mechanical royalties to any game publishers, or any public performance royalties to any performing rights organization. 8.5 User Submissions Prohibited Uses. In connection with your User Submissions, you further agree that you will not: (i) publish falsehoods or misrepresentations that could damage Smart Balloon or any third party; (ii) use any copyrighted content, including, but not limited to, literary works, musical works or sound recordings, owned or controlled by a third party, without obtaining the necessary permissions, licenses and authorizations for the use of such third-party content; (iii) submit material that is unlawful, defamatory, libelous, slanderous, threatening, pornographic, obscene, vulgar, harassing, harmful, hateful, abusive, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; (v) impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; or (vi) post User Submissions that would be harmful to minors in any manner. YOU MAY NOT UPLOAD TO THE Heyzap SERVICE ANY COPYRIGHTED GAMES OR INTERACTIVE CONTENT THAT YOU DO NOT OWN, CONTROL OR HAVE AN EXPRESS WRITTEN LICENSE TO USE ON THE Heyzap SERVICE. IF YOU UPLOAD CONTENT FOR WHICH YOU DO NOT HAVE THE RIGHT OR AUTHORIZATION, THEN YOU MAY BE SUBJECT TO LIABILITY FOR INFRINGEMENT DAMAGES. 8.6 Content Disclaimer. You understand that when using the Heyzap Service, you will be exposed to User Submissions from a variety of sources, and that Smart Balloon is not responsible for the accuracy, integrity, quality, legality, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Smart Balloon with respect thereto. Smart Balloon does not endorse any User Submission or any opinion, recommendation, or advice expressed therein. Under no circumstances will Smart Balloon be liable in any way for or in connection with any User Submissions, including, but not limited to, for any inaccuracies, errors or omissions in any Content, any intellectual property infringement with regard to any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise displayed or transmitted via the Heyzap Service. By accessing or using any User Submissions through the Heyzap Service, you waive any and all claims against Smart Balloon that you may have arising out of or relating to such User Submissions.
9. Monitoring User Submissions; Removal of Content
Smart Balloon does not control User Submissions and does not have any obligation to monitor such User Submissions for any purpose. If at any time Smart Balloon chooses, in its sole discretion, to monitor User Submissions, Smart Balloon nonetheless assumes no responsibility for the User Submissions, no obligation to modify or remove any inappropriate User Submissions, and no responsibility for the conduct of the User submitting any User Submissions. You acknowledge that Smart Balloon may or may not pre-screen User Submissions, but that Smart Balloon and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any User Submission that is available via the Heyzap Service. Without limiting the foregoing, Smart Balloon and its designees may, at any time and without prior notice, remove any User Submission that in the sole judgment of Smart Balloon violates these Terms or is otherwise objectionable, or for any other reason, with or without notice and with no liability of any kind. You agree that you must evaluate, and bear all risks associated with the use of any User Submissions or other Content, including any reliance on the accuracy, completeness, usefulness or legality of such User Submission.
10. Prohibited Uses
- 1 As a condition of your use of the Heyzap Service, you hereby represent and warrant that you will not use the Heyzap Service for any purpose that is unlawful or prohibited (including, without limitation, the prohibitions in this Section 10) by these Terms. Users are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, gaming, the internet, technology, data, email, or privacy. 10.2 You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Heyzap Service, use of the Heyzap Service, access to the Heyzap Service, or Content obtained through the Heyzap Service, for any purpose other than for your personal, private purposes. 10.3 You agree not to defame, harass, abuse, threaten, stalk or defraud Users of the Heyzap Service, or collect, or attempt to collect, personal information about Users or third parties without their consent. 10.4 You agree not to intentionally interfere with or damage, impair or disable the operation of the Heyzap Service or any User‘s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code. 10.5 You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Heyzap Service, features that prevent or restrict the use or copying of any part of the Heyzap Service, or features that enforce limitations on the use of the Heyzap Service. 10.6 You agree not to attempt to gain unauthorized access to the Heyzap Service, or any part of it, other accounts, computer systems or networks connected to the Heyzap Service, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Heyzap Service or any activities conducted on the Heyzap Service. 10.7 You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Heyzap Service. You agree neither to modify the Heyzap Service in any manner or form, nor to use modified versions of the Heyzap Service, including (without limitation) for the purpose of obtaining unauthorized access to the Heyzap Service. 10.8 You agree that you will not use any robot, spider, scraper, or other automated means to access the Heyzap Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Heyzap Service. 10.9 You agree not to utilize framing techniques to enclose any trademark, logo, or other Smart Balloon Materials without our express written consent. You agree not to use any meta tags or any other “hidden text” utilizing Smart Balloon‘s name or trademarks without our express written consent. 10.10 You agree not to deep-link to the Heyzap Service and will promptly remove any links that Smart Balloon finds objectionable in its sole discretion. You agree not to use any Smart Balloon logos, graphics, or trademarks as part of the link without our express written consent. 10.11 You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Heyzap Service. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures. 10.12 You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Heyzap Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. 10.13 You agree not to modify, adapt, translate or create derivative works based upon the Heyzap Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. 10.14 You agree not to impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity. 10.15 You agree not to take any action that may undermine any Contest, content rating or comment systems (such as displaying, importing or exporting information off the Heyzap Service, using information on the Heyzap Service for purposes unrelated to the Heyzap Service, or improperly manipulating or using Contests, ratings and comment systems). 10.16 You agree not to rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer any of the licenses granted herein or any Smart Balloon Materials. 10.17 You agree not to manipulate, abuse, or display behavior that may be interpreted as the use of unfair methods with respect to any Contest or the Heyzap Service in any way, including, but not limited to, the opening and/or use of multiple accounts, the use of unauthorized or altered software or hardware to assist play, intentionally poor play in certain games in order to achieve a broader competitive advantage (i.e. “sandbagging”).
11. Account Information
In order to access some features of the Heyzap Service, you will have to create an account. You hereby represent and warrant that the information you provide to Smart Balloon upon registration and, at all other times, will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times. You acknowledge, consent and agree that Smart Balloon may access, preserve and disclose your account information and User Submissions if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to a claim that any User Submission violates the rights of third parties; (d) to respond to your requests for customer service; or (e) protect the rights, property or personal safety of Smart Balloon, its Users and the public.
When you register you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you will immediately notify Smart Balloon. You may be liable for the losses incurred by Smart Balloon or others due to any unauthorized use of your account.
13. Dealings with Advertisers
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Heyzap Service are solely between you and such advertiser. YOU AGREE THAT Smart Balloon WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE Heyzap SERVICE.
14. Links and Third Party Content
Smart Balloon or third parties may provide links on the Heyzap Service to other sites or content (“Reference Sites”). Smart Balloon has no control over such Reference Sites or content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Reference Sites or content linked to by the Heyzap Service. Smart Balloon provides links to you only as a convenience, and the inclusion of any link on the Heyzap Service does not imply our affiliation, endorsement, or adoption of the linked site or any information therein. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK. When you leave the Heyzap Service, our terms and policies no longer govern. You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.
15. Availability of Service
Smart Balloon may make changes to or discontinue any of the media, web communities, products, or services available within the Heyzap Service at any time, and without notice. The media, products, or services on the Heyzap Service may be out of date, and Smart Balloon makes no commitment to update these materials on the Heyzap Service.
16. User Disagreements
You are solely responsible for your involvement with other Users. If you have a dispute with one or more Users, you release Smart Balloon (and Smart Balloon‘s officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (including, but not limited to, actual, special, consequential and punitive) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
- 1 Smart Balloon. You agree that Smart Balloon, in its sole discretion and for any or no reason, may terminate any User or User account (or any part thereof) you may have on the Heyzap Service or your use of the Heyzap Service, and remove and discard all or any part of your account or any User Submission, at any time, with or without notice. Smart Balloon may also in its sole discretion and at any time discontinue providing access to the Heyzap Service, or any part thereof, with or without notice. You agree that any termination of your access to the Heyzap Service or any account you may have or portion thereof may be effected without prior notice, and you agree that Smart Balloon shall not be liable to you or any third-party for any such termination, including for the unavailability of any User Submissions (including those uploaded by you). Smart Balloon does not permit unlawful, infringing, fraudulent or otherwise illegitimate activities on the Heyzap Service, and reserves the right to terminate access to the Heyzap Service, or halt, suspend, or terminate prizes (whether proposed, pending or past) in cases of actual or suspected fraud, violations of these Terms or other laws or regulations. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Smart Balloon may have at law or in equity.
18. Indemnification; Hold Harmless
You agree to indemnify and hold harmless Smart Balloon, and its parent, subsidiaries, affiliates or any related companies (including those which share substantially common ownership), its suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney‘s fees) arising out of (i) your use or misuse of the Heyzap Service; (ii) your User Submissions, including Smart Balloon‘s reproduction, distribution, public performance, public display, modification, editing, adaptation, or other exploitation of your User Submissions consistent with these Terms; (iii) your breach or other violation of these Terms including any representations, warranties and covenants herein; (iv) your violation of the rights of any other person or entity, including, but not limited to, claims that any User Submission infringes or violates any third party intellectual property rights, including any claims for the payment of so-called mechanical royalties, public performance royalties, or any other royalties claimed by any owner of any rights in any User Submission. Smart Balloon reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Smart Balloon. Smart Balloon will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
19. Disclaimers; No Warranties
YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 19, THE TERM Smart Balloon INCLUDES Smart Balloon‘s OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, LICENSORS, AFFILIATES AND SUBCONTRACTORS. 19.1 No warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Smart Balloon, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Smart Balloon OR THROUGH THE Heyzap SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. 19.2 “As is” and “As available” and “With All Faults.” YOU EXPRESSLY AGREE THAT THE USE OF THE Heyzap SERVICE IS AT YOUR SOLE RISK. THE Heyzap SERVICE (FOR CLARITY, INCLUDING WITHOUT LIMITATION ANY CONTESTS, INFORMATION, STATISTICS AND OTHER CONTENT PROVIDED BY Smart Balloon), USER SUBMISSIONS AND ANY THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE Heyzap SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.. 19.3 Platform Operation and Content. Smart Balloon, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE Smart Balloon MATERIALS, USER SUBMISSIONS, Heyzap SERVICE, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE Heyzap SERVICE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. Smart Balloon MAKES NO REPRESENTATIONS OR WARRANTIES, IMPLICIT OR EXPLICIT, AS TO YOUR LEGAL RIGHT TO PARTICIPATE IN ANY CONTEST OFFERED ON THE Heyzap SERVICE NOR SHALL ANY PERSON AFFILIATED, OR CLAIMING AFFILIATION, WITH Smart Balloon HAVE AUTHORITY TO MAKE ANY SUCH REPRESENTATIONS OR WARRANTIES. 19.4 Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE Heyzap SERVICE (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
20. Limitation of Liability and Damages
- 1 Limitation of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL Smart Balloon OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE Smart Balloon MATERIALS AND USER SUBMISSIONS ON THE Heyzap SERVICE OR ANY REFERENCE SITES, THE Heyzap SERVICE ITSELF, OR ANY OTHER INTERACTIONS WITH Smart Balloon, EVEN IF Smart Balloon OR A Smart Balloon AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, Smart Balloon‘S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. 20.2 Limitation of Damages. IN NO EVENT SHALL Smart Balloon OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS‘ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE Heyzap SERVICE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID Smart Balloon IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY. 20.3 Reference Sites. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN Smart Balloon AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE Heyzap SERVICE OR RECEIVED BY YOU THROUGH ANY REFERENCE SITES.
21. Limitations by Applicable Law; Basis of the Bargain
- 1 Limitations by Applicable Law. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS TERMS OF SERVICE APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED. 21.2 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT Smart Balloon HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND Smart Balloon, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND Smart Balloon. YOU ACKNOWLEDGE AND AGREE THAT Smart Balloon WOULD NOT BE ABLE TO PROVIDE THE Heyzap SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
22. Digital Millennium Copyright Act
- 1 General. Smart Balloon respects the rights of copyright owners. Infringing content may not be submitted to the Heyzap Service. 22.2 User Submissions. If you upload a User Submission that contains a work, you must be the owner of such works or have all required rights, licenses, consents, and permissions to use such works on the Heyzap Service and grant the rights contained in these Terms. Your failure to own or obtain such rights may subject you to liability. 22.3 Copyright Owner Rights. If you are a copyright owner or an agent thereof, and you believe any content submitted to and hosted on the Heyzap Service infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (”DMCA”) by providing Smart Balloon‘s Designated Copyright Agent with the following information in writing:
1. a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; 2. identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Heyzap Service are covered by a single notification, a representative list of such works on the Heyzap Service; 3. identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Smart Balloon to locate the material; 4. information reasonably sufficient to permit Smart Balloon to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; 5. a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (for example, “I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law.”); and 6. a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is/are allegedly infringed by the aforementioned content.”). Please consult your legal counsel (or see 17 U.S.C. § 512) to confirm these requirements and your compliance therewith. It is Smart Balloon‘s policy to respond to notices of alleged infringement that comply with the DMCA. In addition, Smart Balloon will promptly terminate without notice the accounts of Users that are determined by Smart Balloon to be “repeat infringers.” If Smart Balloon receives more than three takedown notices regarding a User‘s User Submissions, then that User will be considered a repeat infringer and their account will be terminated. Smart Balloon‘s Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows: Attention: Copyright Agent, 2140 Taylor St. Apt 306, San Francisco, CA 94133 or by electronic mail at copyright@Heyzap.com. For clarity, only DMCA notices should go to the Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Smart Balloon customer service through legal@Heyzap.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. 22.4 Counter Notification. If you believe that your User Submission 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 law, to submit the User Submission to the Heyzap Service, then you may send a counter notification containing the following information to Smart Balloon‘s designated Copyright Agent: 1. Your physical or electronic signature 2. Identification of the User Submission that was removed or to which access has been disabled and the location at which the content appeared before it was removed or access to it was disabled; 3. A statement under penalty of perjury that you have a good faith belief that your User Submission was removed or disabled as a result of mistake or misidentification of the User Submission to be removed or disabled; and 4. Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Santa Clara County, California, 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, then Smart Balloon may send a copy of the counter notice to the original complaining party informing that person or entity that Smart Balloon may replace the removed User Submission or cease disabling access to it in ten business days. Unless the copyright owner files an action seeking a court order against the User submitting the User Submission, the removed User Submission may be replaced, or access to it restored, in ten to fourteen business days or more after receipt of the counter notice, at Smart Balloon‘s sole discretion.
- 1 Notice. Smart Balloon may provide you with notices, including those regarding changes to Smart Balloon‘s Terms, by email, regular mail or postings on the Heyzap Service. Notice will be deemed given twenty-four hours after email is sent, unless Smart Balloon is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Heyzap Service. In such case, notice will be deemed given three days after the date of mailing. 23.2 Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. 23.3 Dispute Resolution. Generally, if a dispute arises between Smart Balloon and you, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Smart Balloon agree that the parties will resolve any claim or controversy at law or equity that arises out of this Agreement or the Heyzap Service (a “Claim”) in accordance with one of the subsections below or as you and we otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
1. Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Smart Balloon must be resolved by a court located in Santa Clara County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Santa Clara County, California for the purpose of litigating all such claims or disputes. 2. Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. 3. Improperly Filed Claims. All claims you bring against Smart Balloon must be resolved in accordance with this Section 23.3 (Dispute Resolution). All claims filed or brought contrary to this Section 23.3 (Dispute Resolution) shall be considered improperly filed. Should you file a claim contrary to this Section 23.3 (Dispute Resolution), Smart Balloon may recover attorneys‘ fees and costs up to $1000, provided that Smart Balloon has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim. 23.4 Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Smart Balloon to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your electronic mail address and a request for this information.