I. YOUR USE OF OUR SITES AND APPS
You may access and use our Sites and Apps solely for your personal use. Except as expressly authorized hereunder, our Sites and Apps may not be reproduced, duplicated, copied, sold, resold, visited, reverse-engineered or otherwise exploited for any commercial purpose without our prior written authorization. We reserve the right to alter or discontinue our Sites and Apps, in whole or in part, at any time in our sole discretion.
Subject to and conditioned upon your compliance with these Terms, we grant to you a non-exclusive, non-transferable, limited right and license, without right of sublicense, to access and use our Sites and Apps, including images, text, graphics, sounds, data, links and other materials incorporated into our Sites and Apps (other than your User Submitted Materials as defined below), solely as made available by us and solely for your own personal purposes. Except as expressly authorized by these Terms, you may not use, reproduce, distribute, modify, transmit or publicly display any portion of our Sites and Apps or create derivative works of any portion our Sites and Apps without our written consent. While using any of our Sites and Apps, you agree not to:
Defame, abuse, harass, stalk, threaten or otherwise violate the rights of others, including, without limitation, others' privacy rights or rights of publicity;
Impersonate any person or entity or use any fraudulent, misleading or inaccurate personal information, including, without limitation, email addresses or other contact information;
Restrict or inhibit any other user from using any of our Sites and Apps, including, without limitation, by means of "hacking" or defacing any portion our Sites and Apps;
Violate any applicable laws or regulations, including, without limitation, any publicity, privacy, or intellectual property laws of the United States or any other country, as applicable;
Upload to, transmit through, or display on any of our Sites and Apps (a) any material that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes or misappropriates our or any third party's intellectual property or other rights; (b) any confidential, proprietary or trade secret information of any third party; or (c) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by us);
Engage in spamming;
Transmit any software or other materials that contain any viruses, worms, trojan horses, defects, or other destructive items;
Modify, adapt, translate, distribute, reverse engineer, decompile or disassemble any portion of our Sites and Apps;
Remove any copyright, trademark or other proprietary rights notices contained in, associated with, or displayed on any portion of our Sites and Apps;
Display adult nudity or inappropriate child nudity;
Upload photographs of people who have not given written authorization or permission for their photographs to be uploaded to a share site; or
Post objectionable material, including, without limitation, material containing hate or malicious content or offers for adult services, or material inciting or advocating terrorism or violence.
If you fail to comply with the above rules, such failure will constitute a violation of these Terms, and in addition to any other rights or remedies we may have and do hereby reserve, we may immediately terminate your access to and use of our Sites and Apps and/or your use of any services or features provided through our Sites and Apps.
Some features of our Sites and Apps may enable you to send and receive transmissions. You acknowledge that we have no responsibility or liability for any transmissions, and/or any content included in such transmissions, sent or received by you. You represent that you have the right to send and/or receive such transmissions, including the content therein, without violating the rights of any third party. We reserve the right, in our sole discretion and at any time, to set limits on the number and size of any transmissions sent by or received through our Sites and Apps and/or the amount of storage space available for transmissions or for any feature made available through our website.
II YOUR MEMBER ACCOUNT
You may create a member account with any of our Sites and Apps by registering your name, providing certain information about yourself, and creating a password. You agree that you will provide complete, current and accurate information about yourself as requested, and that you will keep that information up to date. You are responsible for safeguarding the confidentiality of your username and password that you use to access your member account on our Sites and Apps. You agree not to disclose your username or password to any third party, or otherwise enable their use of the same. YOU AGREE THAT YOU ARE SOLELY AND FULLY RESPONSIBLE FOR ANY ACTIVITIES OR ACTIONS TAKEN UNDER YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH ACTIVITIES OR ACTIONS. You will immediately notify us of any unauthorized use of your account on any of our Sites and Apps.
In order to create a member account with any of our Sites and Apps, you must be at least 18 years of age. You represent to us that you are at least 18 years old. If you are not, you do not have authorization or permission to set up an account with any of our Sites and Apps, and we reserve all rights and remedies we may have against you.
III MAKING PURCHASES
Descriptions, images, references, features, content, specifications, products, price and availability of any products or services are subject to change without notice, and our current prices can be found on our Sites and Apps. We make reasonable efforts to accurately display the visual attributes of our products and content, including the applicable colors, designs, symbols, portrayals, depictions, graphics, etc.; however, the actual visual attributes you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such visual attributes. The inclusion of any content, products or services on our Sites and Apps at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use or sale of any item or content offered, obtained, or purchased through our Sites and Apps. By placing an order for products or content, or offering an a product or item of content, you represent that the products or contents will be used or offered only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any content, product or service; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all purchase(s); and/or to refuse to provide any user with any content, product or service.
Title and risk of loss for any purchase of tangible goods will pass to you upon our delivery to our carrier. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any such order that is partially shipped may be charged at the time of shipment.
IV CONTESTS AND SWEEPSTAKES
V MOBILE APPLICATIONS
Before using any of our mobile applications ("App" or "Apps"), we may ask you to install a valid copy of the App on your mobile device, register for an account (e.g., a member account), input your personal and/or account information into the App as requested, and meet certain hardware, software, and connection requirements which may change as the App evolves. You are responsible for any internet connection fees and/or mobile carrier charges that you incur when accessing or using an App. Should you uninstall an App from your mobile device, you may not be able to use all or some of the features of the App. We use reasonable efforts to accurately display the attributes of any photographs or other content in products that you order or provide through our Apps, including the colors of those photographs or other content; however, the actual color you see is dependent upon your mobile device, and as such we cannot guarantee that your mobile device will accurately display such colors, nor that the products you order through our Apps will have the same color or hue that you observed through the App on your mobile device.
SUBSCRIPTION MAGAZINE APPS
Our Apps for the Recently subscription services (also referred to herein as a "Subscription Magazine App") offer you an opportunity to have photos from your smartphone or other device shipped to you in a photo magazine book on a periodic basis. By purchasing, downloading, using, or receiving a Subscription Magazine App (including The Recently App), you agree to these Terms. If you do not agree with these Terms, you may not use any subscription services offered through any Subscription Magazine Apps.
Services provided through Subscription Magazine Apps, which may start with a free trial, will continue month-to-month unless and until you cancel your subscription or we terminate it. Your device must be able to support the Subscription Magazine Apps you use, and you must provide us with current, valid, accepted method of payment (as such may be updated from time to time, "Payment Method") to use Subscription Magazine Apps. We will bill the monthly subscription fee to your Payment Method. The monthly subscription price may include shipping and handling, but does not include any applicable taxes. We may change the price for the subscription from time to time, and will communicate any price changes to you. Price changes will take effect at the start of the next subscription period following the date of the price change. By continuing to use Subscription Magazine Apps, after the price change takes effect, you accept the new price. If you reside in a country that is part of the European Union and have purchased a subscription, you have the right to change your mind and receive a full refund within fourteen (14) days of purchase (the "Cooling-off Period"), but only if you have not logged in or otherwise redeemed or started to consume it. Any cancellation of your Subscription Magazine App, or any subscriptions associated therewith, will take effect the day after the last day of the current subscription period. However, if you cancel your payment and/or terminate the Terms after the Cooling-off Period is over (where applicable), and/or before the end of the subscription period, we will not refund any fees already paid to us, to the fullest extent permitted under applicable law.
In certain jurisdictions, gift subscriptions for our Apps, or services provided through our Apps, may be available for purchase, which are one time use cards and are only redeemable for the Apps or services in countries where the service is offered in the currency denominated on the gift subscription. Gift subscriptions are assigned a fixed monetary value (e.g., $25 USD). The entire value of the gift subscriptions will be applied to your Subscription Magazine App account upon redemption. Gift subscriptions are not refundable (whether cash or otherwise), except to the extent required by applicable law. Gift subscriptions cannot be used to purchase other gift subscriptions, and cannot be reloaded, resold or transferred for value. Gift subscriptions will expire in the time period specified on the gift subscription. Title to the gift subscription and the risk of loss, destruction or deterioration pass to the purchaser upon purchase. We are not responsible for any gift subscriptions that are lost, stolen, destroyed or used without your permission. In the event a gift subscription is non-functional, your sole remedy, and our sole liability, will be the replacement of such gift subscription.
From time to time, other types of promotional codes may be available, including those provided as part of a third party promotion. Promotional codes may be redeemed as described in the specifics of the promotion. Promotional codes can only be used once, cannot be redeemed for cash, and may be subject to certain restrictions as determined by us in our sole discretion. If you received a promotional code through an offer by a third party, additional conditions may apply.
We may offer trials of our Apps, for a specified period without payment (a "Trial"). We reserve the right, in our absolute discretion, to determine your eligibility for a Trial, and to withdraw or to modify a Trial at any time without prior notice and with no liability. For some Trials, we will require you to provide a Payment Method to start the Trial. At the end of such Trials, we may automatically start to charge you for the Apps, beginning on the first day following the end of the Trial, on a recurring monthly basis. By providing a Payment Method in conjunction with the Trial, you agree to this charge. You will not receive a notice from us that your Trial has ended or that the paying portion of your subscription has begun. If you do not want this charge, you must cancel your App, or the subscription associated therewith, by contacting customer service at email@example.com, before the end of the Trial.
The monthly subscription fee for our Apps will be billed at the beginning of the paying portion of your subscription and each month thereafter unless and until you cancel your subscription. We automatically bill your Payment Method each month on the calendar day corresponding to the commencement of your paying subscription. Subscription fees are fully earned upon payment. We reserve the right to change the timing of our billing, in particular if your Payment Method has not successfully settled. We may contact you via e-mail if there is a problem with your Payment Method, or you can view this information at any time from within the App. You may also contact customer service at firstname.lastname@example.org at any time with any billing questions. In the event your paying subscription began on a day not contained in a given month, we may bill your Payment Method on a day in the applicable month or such other day as we deem appropriate. For example, if you started your Subscription Magazine App on January 31st, your next payment date will likely be February 28th, and your Payment Method would be billed on that date.
Payments are nonrefundable and there are no refunds or credits for partially used subscriptions. Following any cancellation, access to the subscription and/or the App, will be terminated immediately. At any time, and for any reason, we may provide a refund, discount, or other consideration ("credits"). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.
We will make reasonable efforts to keep our Apps operational. However, certain technical difficulties or maintenance may, from time to time result in temporary interruptions. We reserve the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of our Apps, with or without notice, all without liability to you for any interruption, modification, or discontinuation of the Apps or any function or feature thereof. You understand and agree that we have no obligation to maintain, support, upgrade, or update our Apps.
Our Apps are developed by, for, or on behalf of us and are designed to enable your Subscription Magazine App ready device to upload and create photo magazines. This software and your ability to upload photos may vary by device and medium, and functionalities may also differ between devices. By using our Apps, including using The Recently App, you acknowledge and agree to receive, without further notice or prompting, updated versions of the Apps and related third-party software. If you do not accept the foregoing terms, do not use our Apps. We do not take responsibility or otherwise warrant the performance of these devices, including the continuing compatibility of the device with our Subscription Magazine Apps. If your Subscription Magazine Apps ready device is sold, lost or stolen, it is your sole responsibility to cancel the Apps immediately. If you fail to cancel your Subscription Magazine Apps, you will be responsible for recurring monthly charges until cancellation. Your sole and exclusive remedy for dissatisfaction with a Subscription Magazine Apps photo magazine is to obtain a reprint or credit (to be determined at our sole discretion), and your sole and exclusive remedy for dissatisfaction with our Apps, is to stop using the Apps.
The Recently App is licensed, and not sold, to you for your personal use only, and we retain ownership of all copies and versions of App software applications even after installation on your device. We may assign these or any part of them without restrictions. You may not assign them or any part of them, nor transfer or sub-license your rights under this license, to any third party. We may terminate or restrict your use of our Apps without compensation or notice if you are, or if we suspect that you are in violation of any of these Terms or engaged in illegal or improper use of the Apps.
VI WEB ADDRESSES (URLS)
As part of our services, such as those offered through our Recently, Inc. Sites, including share sites, we may provide you with access to and use of certain personalized pages and the corresponding web addresses (URLs) you choose. However, we do not guarantee the availability of any particular web page or URL, and we reserve the right, at any time and in our sole discretion, to reclaim, suspend, terminate and/or transfer any such web page or URL. In such cases, we may, at our option, provide you with another web page and URL.
VII CUSTOM DESIGN SERVICES
One or more of our brands may offer you the opportunity to engage with our designers ("Custom Design Services") to create a Custom Design for a specific product ("Custom Designed Product"). By using the Custom Design Services, you agree you are solely responsible (pursuant to Section 1 of these Terms) for the materials you submit to us for the Custom Designed Product. You grant us a fully paid, worldwide, non-exclusive right and license to use your owned or licensed copyrights, logos, insignia, trademarks, and other artistic designs contained in the specific materials submitted to us for the purpose of providing the Custom Design Services and the Custom Designed Product. You represent that you own, and you will continue to own and retain all rights, title and interest in and to your trademarks, copyrights and other intellectual property contained in the materials you submit to us for the Custom Designed Product. We will own and retain all rights, title and interest in and to the final Custom Design and the Custom Designed Product. We will grant you a fully-paid, worldwide, non-exclusive right and license to use the Custom Designed Product, provided you have paid for the Custom Design Services in full. By using the Custom Designed Services and/or the Custom Designed Product, you expressly acknowledge and agree with these Terms. You agree that you are not obtaining any intellectual property ownership rights from us in the final Custom Design or the Custom Designed Product. You may request the Custom Design be applied to any of our current product offerings. In each such instance, you further grant us a fully paid, worldwide, non-exclusive right to sublicense (through multiple tiers) any and all of the materials you submitted to us for the Custom Design or the Custom Designed Product. For other products, we may provide you with an electronic version of the Custom Design for your personal use, subject to our sole discretion and an additional fee may apply. If you would like to make changes to the Custom Design or Custom Designed Product, our customer service representatives are available to assist you.
VIII THIRD-PARTY SITES, SOFTWARE AND SERVICES
Other sites may provide links to our Sites and Apps with or without our authorization. We do not endorse such sites, and are not and will not be responsible or liable for any links from those sites to our Sites and Apps, any content, advertising, products or other materials available on or through such other sites, or any loss or damages incurred in connection therewith.
YOU AGREE THAT YOUR USE OF THIRD PARTY SITES, SOFTWARE AND SERVICES INCLUDING, WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH SITES, SOFTWARE AND SERVICES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES, SOFTWARE AND SERVICES.
We will have the right, at any time and in our sole discretion, to block links to our Sites and Apps through technological or other means without prior notice.
IX SOCIAL MEDIA AND OTHER SERVICES
While using our services, you have the option of granting us access to your account(s) with certain third-party social media and other services, such as Facebook, Instagram, Flickr, Twitter, SmugMug, Google Plus and others (each, an "SNS"). Provided an SNS permits this, we can capture and make available on the Site and through the Apps the photos and other content that you have stored in your account(s) with such SNSs ("SNS Content"). By granting us access to your SNS Content, you understand that we may access, make available and store (if applicable) your SNS Content so that it is available on our Sites and through our Apps. We are not responsible for any SNS Content stored on an SNS that you choose to make available on our Sites and through our Apps. Depending on the SNS you choose and subject to the privacy settings you have set in your SNS account(s), personally identifiable information that you post to your SNS account(s) may be available on the Site and through our Apps. Please note that if an SNS account becomes unavailable or SNS terminates our access to your SNS account(s), any Content from that SNS may no longer be available on our Sites and through our Apps. You have the ability to disable the connection between our Sites and Apps and your SNS account(s), at any time through our Sites and Apps. PLEASE NOTE THAT YOUR RELATIONSHIP WITH EACH SNS, INCLUDING YOUR RIGHTS WITH RESPECT TO ANY CONTENT THAT YOU PROVIDE TO AN SNS AND THE STORAGE OF SUCH CONTENT, IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS.
X MATERIALS SUBMITTED BY USER
Any materials submitted by you, including, without limitation, photographs, videos, images, text, graphics and other materials (collectively, "User Submitted Materials") are subject to the following terms and conditions:
You will retain ownership of such User Submitted Materials, and you grant us and our designees a worldwide, non-exclusive, transferable, royalty-free, perpetual irrevocable right and license, with right of sublicense (through multiple tiers), to use, reproduce, distribute (through multiple tiers), create derivative works of and publicly display such User Submitted Materials solely in connection with the production or provision of any product or service you request or to show you how your User Submitted Materials would appear in our products or services. For example, when you place an order for a product, we will prepare, manipulate (if necessary), and transmit the User Submitted Materials for production, packaging and shipment. Similarly, if you want to share a photo, photo magazine, photo book, or any of your User Submitted Materials with your friends and family, or otherwise make the same available for third party purchase or download, we may accommodate your request by making such content items available for download and/or for use by others to create projects of their own, and/or to purchase products including such content items or elements thereof.
Please note that, while you retain ownership of your User Submitted Materials, any template or layout in which you arrange or organize such User Submitted Materials through tools and features made available through any of our Sites and Apps are not proprietary to you, and the rights to such template or layout will remain with us.
You represent and warrant that you own all right, title and interest in, or otherwise possess all necessary rights with respect to the User Submitted Materials, and that the User Submitted Materials, alone or in combination, do not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trade secret right or other intellectual property or other property right of any third party, and that the User Submitted Materials, alone or in combination, are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable.
You consent to the use of your likeness, and you have obtained the written consent, release, and/or permission of every identifiable individual who appears in User Submitted Materials to use such individual's likeness, for purposes of using and otherwise exploiting the User Submitted Materials in the manner contemplated by these Terms, or, if any such identifiable individual is under the age of eighteen (18), you have obtained such written consent, release and/or permission from such individual's parent or guardian (and you agree to provide to us a copy of any such consents, releases and/or permissions upon our request). If you do submit a submission that contains the likeness of an identifiable individual under the age of eighteen (18), we strongly encourage you not to include any identifying information (such as the individual's name or address) with such User Submitted Materials.
You agree that we may (but are not obligated to) filter any User Submitted Materials (including, without limitation, deleting or replacing expletives or other harmful or offensive language), refuse to use any User Submitted Materials (including, without limitation, suspending processing and shipping of any order relating to any User Submitted Materials) and/or disclose any User Submitted Materials and the circumstances surrounding the use thereof, to any third party in order to provide the applicable products or services, to enforce these Terms or to comply with legal obligations or governmental requests.
User Submitted Materials that violate these Terms may be removed from our Sites and Apps; provided, however, that we have no obligation to remove User Submitted Materials in response to user reports or requests. We are not responsible for, and will have no liability for, the removal, non-removal or loss of any User Submitted Materials from our Sites and Apps. We recommend you keep back-up copies of your User Submitted Materials on your hard drive or other personal system.
XI COPYRIGHT ISSUES
While we are not obligated to review User Submitted Materials for copyright infringement, we are committed to protecting copyrights and expect users of our Sites and Apps to do the same. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any material used or displayed on or through our Sites and Apps infringes your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on our Sites and Apps; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) 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; and (f) 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. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.copyright.gov for details. DMCA notices and counter-notices regarding our Sites and Apps should be sent to our designated agent via email to email@example.com, or via physical mail to:
47 Bergen Street, 3rd Floor
Brooklyn, NY 11201
We may permit you to share your User Submitted Materials with other users, including, without limitation, through user comment functionality, online image share features, public galleries, user forums and blogs (collectively, "Forums"). Some Forum participants may use anonymous screen names and may have no other connection with us or any of our family of brands. A large volume of material is available in our Forums and Forum participants may occasionally post messages or make statements, whether intentionally or unintentionally, that are inaccurate, misleading or deceptive, or provide content that may be objectionable to you. We neither endorse nor are responsible for such messages, statements, or content, or any opinion, advice, information or other utterance made or displayed by third parties, whether such third parties are users of our Sites and Apps or others. The opinions expressed in the Forums reflect solely the opinions of the participants and may not reflect the opinions of us or any of our family of brands. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages or for any results obtained from the use of such information. Under no circumstances will we, our directors, officers, shareholders, employees, contractors, agents, representatives, affiliates, or third party users be liable for any loss or damage caused by your reliance on such information obtained through our Forums. We may, but have no obligation to, monitor the Forums and any materials displayed, transmitted or otherwise made available on or through the Forums or otherwise through our Sites and Apps.
XIII DISCLAIMER OF WARRANTIES
EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THESE TERMS, OUR PRODUCTS AND SERVICES, INCLUDING OUR SITES AND APPS, AND ALL MATERIALS INCORPORATED THEREIN, ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE AND OUR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES AND AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NOTE: CERTAIN APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. NO STATEMENT OF OURS OR ANY OF OUR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES AND AFFILIATES SHALL CREATE ANY WARRANTY OTHER THAN THOSE EXPRESSLY CONTAINED IN THESE TERMS.
XIV LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER WE NOR ANY OF OUR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, OR AFFILIATES (THE "RECENTLY, INC. PARTIES") SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, PROFITS, USE OR DATA), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, EVEN IF THE RECENTLY, INC. PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATING IN ANY WAY TO OUR PROVISION OF (OR FAILURE TO PROVIDE) PRODUCTS OR SERVICES, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SUBMISSIONS OR DATA, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT THE RECENTLY, INC. PARTIES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHERMORE, THE RECENTLY, INC. PARTIES WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH PRODUCTS IS TO OBTAIN A REFUND, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH SERVICES IS TO STOP USING THE SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF THE RECENTLY, INC. PARTIES ARISING OUT OF OR RELATING IN ANY WAY TO OUR PROVISION OF (OR FAILURE TO PROVIDE) PRODUCTS OR SERVICES SHALL BE THE ACTUAL PRICE PAID THEREFORE BY YOU. NOTE: CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
XV POLICY FOR IDEA SUBMISSION
Many of our customers are interested in submitting ideas and suggestions for products and services to be used at our Sites and Apps, either independently of, or in conjunction with, our internally developed concepts. We appreciate our customers' interest in improving our Sites and Apps; however, please note that by making such a submission of ideas or suggestions, you agree that any such ideas or suggestions that you submit will be owned by us, and you hereby irrevocably assign any intellectual property rights in such ideas and suggestions to us. If you intend to retain any intellectual property rights in your ideas and suggestions (patent, trade secrets, copyright, trademark, etc.), please do not submit them to us without our prior written approval.
You can inquire regarding such approval by sending a letter to Recently, Inc., Attn: Idea Submission, 47 Bergen Street, 3rd Floor, Brooklyn, NY 11201. If we are interested in pursuing any idea or suggestion of yours, we will contact you. Please note that an additional legal agreement may be required by us in order to evaluate your idea or suggestion.
XVI NOTICE FOR NEW YORK AND CALIFORNIA USERS
This notice is for our New York users: The Consumer Assistance Unit of the Division of Consumer Protection of the New York State Department of State may be contacted by mail at 99 Washington Avenue, Albany, NY 12231, or by telephone at 518-474-8583 or (800) 697-1220.
This notice is for our California users: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
XVII INTELLECTUAL PROPERTY NOTICES
Portions of our Sites and Apps are covered by the U.S. Copyright laws. Our Sites and Apps are ©2015-2017 Recently, Inc. All rights reserved.
All trademarks and service marks on any of our Sites and Apps not owned by us are the property of their respective owners. Recently, Inc. owns the registered trademarks and trademark registration applications listed here: US Reg. No. 4,274,544 (RECENTLY, INC.!); US Reg. No. 4,913,268 (RECENTLY); and US App. Ser. No. 87/220386 (YOUR CAMERA ROLL IN A MAGAZINE). The trade names, trademarks, service marks, logos, slogans, and other marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on any of our Sites and Apps should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.
XVIII JURISDICTIONAL ISSUES
Our Sites and Apps are controlled and operated from the United States. Our Sites and Apps are not subject to the laws or jurisdiction of any state, country or territory other than that of the United States. We do not represent or warrant that any of our Sites and Apps, products, and/or services or any part thereof is appropriate or available for use in any particular jurisdiction. Those who choose to access our Sites and Apps do so on their own initiative and at their own risk, and are responsible for complying with all applicable laws, rules and regulations. We may limit the availability of our Sites and Apps, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
These Terms are governed by and construed in accordance with the laws of the State of New York, United States of America, without regards to its conflict of law provisions. You agree to submit to the exclusive jurisdiction of any State or Federal court located in Kings County, New York, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts. If any provision of these Terms, or the application thereof to any person, place or circumstance, is held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, such provision shall be enforced to the maximum extent possible, or, if incapable of such enforcement, shall be deemed to be deleted from these Terms, and the remainder of these Terms and such provisions as applied to other persons, places and circumstances will remain in full force and effect. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy. This is the entire agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between us with respect to such subject matter. These Terms are not assignable, transferable or sublicenseable by you except with our prior written consent. These Terms may not be modified or amended except as set forth in the introductory section of these Terms. Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof. If you have any questions or comments regarding these Terms, please contact: firstname.lastname@example.org.
Either you or we may terminate your access to our Sites and Apps and to your account at any time, with or without cause, and with or without prior notice. Without limiting the foregoing, we may terminate your access if you violate these Terms. Upon termination for any reason, your right to access and/or use our Sites and Apps will immediately cease. Upon termination, you will have no further access to, and we may delete, any information, files or materials in or related to your account, including, without limitation, any User Submitted Materials. Upon termination, Recently, Inc. may delete all information, files and materials related to your account, including any User Submitted Materials, and we will have no obligation whatsoever to save or make any such information, files or materials available to you. You agree that we will have no liability whatsoever to you or any other party as a result of a termination of your access our Sites and Apps and to your account and/or as a result of the deletion or loss of any information, files or materials in or related to your account.
XXI ARBITRATION AGREEMENT
If you elect to seek arbitration, you must first send to Recently, Inc., by certified mail, a written Notice of your claim ("Notice"). The Notice to Recently, Inc. must be addressed to: Attn: Legal, Recently, Inc., 47 Bergen Street, 3rd Floor, Brooklyn, NY 11201 ("Notice Address"). If Recently, Inc. initiates arbitration, it will send a written Notice to the email address used for your account. A Notice, whether sent by you or by Recently, Inc., must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Recently, Inc. and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Recently, Inc. may commence an arbitration proceeding.
You may download or copy a form Notice and a form to initiate arbitration at www.adr.org.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Unless Recently, Inc. and you agree otherwise, any arbitration hearings will take place in New York, New York.
If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
YOU AND RECENTLY, INC. AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Recently, Inc. agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
XXII AUTOMATIC RENEWAL
YOUR SUBSCRIPTIONS (INCLUDING RECENTLY APP SUBSCRIPTIONS) AND PAYMENTS TO US WILL AUTOMATICALLY RENEW AT THE END OF THE SUBSCRIPTION PERIOD, UNLESS YOU CANCEL YOUR SUBSCRIPTION BY TAPPING THE CANCEL ACCOUNT BUTTON WITHIN OUR APPS (FOR THE RECENTLY MOBILE APP) OR WE TERMINATE IT BEFORE THE END OF THE CURRENT SUBSCRIPTION PERIOD.
WE SHOULD ALSO NOTE THAT GIFT CERTIFICATES WHEN COMPLETELY USED UP WILL AUTOMATICALLY RENEW AS SUBSCRIBED USERS ON A SUBSCRIPTION PLAN UNTIL THE POINT THAT THEY ELECT TO CANCEL THEIR ACCOUNT.