PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Use of Our Service
Wishfinity provides a place for family and friends to come together and exchange wishes with each other.
This is a contract between you and Wishfinity. You must read and agree to these terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Wishfinity, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. In order to register for an account, we may, at our discretion, require that you sign up through a third-party service provider, such as Facebook. Any use or access to the Service by anyone under 13 without their parent or legal guardian’s express consent is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Wishfinity.
B. WISHFINITY SERVICE.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by the features of the Service. Wishfinity reserves all rights not expressly granted herein in the Service and Wishfinity Content (as defined below). Wishfinity may terminate this license at any time for any reason or no reason.
C. WISHFINITY ACCOUNTS.
Your Wishfinity account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users, and these different accounts may have different functionalities available to them. If you open an account on behalf of your child or ward (or give your consent for such account to be created), then (a) “you” includes both you and your child or ward; and (b) you represent and warrant that you are legally authorized to grant any and all rights granted under this Agreement. By connecting to Wishfinity with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
Unless you are a parent or guardian managing your child or ward’s account, you may never use another User’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Wishfinity immediately of any breach of security or unauthorized use of your account. Wishfinity will not be liable for any losses caused by any unauthorized use of your account.
You may control your User profile and how you interact with the Service by changing the settings in your Profile Pages. By providing Wishfinity your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt-out or change your preferences in your Profile Pages. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
D. SERVICE RULES.
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to Wishfinity servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Wishfinity grants the operators of public search engines revocable permission to use spiders to copy publically available materials from Wishfinity.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You are solely responsible for your interactions with other Wishfinity Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Wishfinity shall have no liability for your interactions with other Users, or for any User’s action or inaction.
2. User Content
Some areas of the Service allow Users to post or provide content such as profile information, videos, images, music, comments, questions, and other content or information, including but not limited to any wishes you post on the Service (any such materials a User submits, posts, displays, or otherwise makes available on the Service is referred to as “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours; however, by providing or sharing User Content through the Service, you agree to allow others to view, edit, and/or share your User Content in accordance with your settings and this Agreement. Wishfinity has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current or (ix) violates any school or other applicable policy, including those related to cheating or ethics. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. Wishfinity reserves the right, but is not obligated, to reject and/or remove any User Content that Wishfinity believes, in its sole discretion, violates any of these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
A. You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
B. You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
C. Your User Content and Wishfinity’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
D. Wishfinity may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
E. To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
Wishfinity takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Wishfinity shall not be liable for any damages you allege to incur as a result of or relating to any User Content.
3. User Content License Grant
By posting or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Wishfinity a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, 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 and Wishfinity’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 media formats and through any media channels.
4. Mobile Software
A. MOBILE SOFTWARE.
We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. Wishfinity does not warrant that the Mobile Software will be compatible with your mobile device. You may use mobile data in connection with the Mobile Software and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Wishfinity hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one Wishfinity account on one mobile device owned or leased solely by you, for your personal use.
You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that Wishfinity may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Wishfinity or its third-party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof).
Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Wishfinity reserves all rights not expressly granted under this Agreement. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Software will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and Wishfinity Service.
B. MOBILE APPLICATION MARKETPLACES.
The following applies to any Mobile Software you acquire from the iTunes Store, the Android Market, or any other similar marketplace for mobile applications (“Sourced Mobile Software”): You acknowledge and agree that this Agreement is solely between you and Wishfinity, not the proprietor of such marketplace (each a “Proprietor”), and that Proprietor has no responsibility for the Sourced Mobile Software or content thereof. Your use of the Sourced Mobile Software must comply with the applicable terms of service for the marketplace from which you downloaded the Sourced Mobile Software. You acknowledge that Proprietor has no obligation whatsoever to furnish any maintenance and support services with respect to the Sourced Mobile Software. In the event of any failure of the Sourced Mobile Software to conform to any applicable warranty, you may notify Proprietor, and Proprietor will refund the purchase price for the Sourced Mobile Software to you; to the maximum extent permitted by applicable law, Proprietor will have no other warranty obligation whatsoever with respect to the Sourced Mobile Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Wishfinity as provider of the software. You acknowledge that Proprietor is not responsible for addressing any claims of you or any third party relating to the Sourced Mobile Software or your possession and/or use of the Sourced Mobile Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Sourced Mobile Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Wishfinity as provider of the software. You acknowledge that, in the event of any third-party claim that the Sourced Mobile Software or your possession and use of that Sourced Mobile Software infringes that third party’s intellectual property rights, Wishfinity, not Proprietor, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Wishfinity acknowledge and agree that Proprietor, and Proprietor’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Sourced Mobile Software, and that, upon your acceptance of the terms and conditions of this Agreement, Proprietor will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Sourced Mobile Software against you as a third-party beneficiary thereof.
5. Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Wishfinity Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Wishfinity and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Wishfinity Content. Use of Wishfinity Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Wishfinity under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Wishfinity does not waive any rights to use similar or related ideas previously known to Wishfinity, or developed by its employees, or obtained from sources other than you.
6. WishBits and Related Transactions
Wishfinity allows Users to receive and purchase non-convertible virtual currency for use in the Service ("WishBits") and to redeem those WishBit for the purchase of eligible Products (as defined below) we sell through Wishfinity. Wishfinity makes two types of WishBits available: WishBit you purchase from us or receive as a gift or award from another User ("Purchased WishBits") and WishBit we give you for promotional purposes ("Promotional WishBits"). WishBits are represented in the Service as your Wallet ("Wallet"). The Wallet displays your WishBits Balance.
A. PROMOTIONAL WISHBITS.
All WishBits that you do not pay for (other than WishBits you receive as a gift or an award from another User) are Promotional WishBits. This includes any WishBits we give you in connection with your purchase of Products, your use of the Service, or any other promotional activity.
B. PURCHASING WISHBITS.
When you make a purchase of WishBits, you agree to provide a valid funding instrument to load money into your electronic value balance (your “WishBits Balance”). When you have successfully completed this funding transaction, the purchased WishBits will appear in your WishBits Balance and be available for use on the Service as a payment method, gift, or award.
- (1) Age. WishBits may only be purchased by Wishfinity Users who are at least 18 years old.
- (2) Funding Your WishBits Purchase. We want to make WishBits convenient, so we allow you to fund your WishBits purchase transactions using credit cards and debit cards. All WishBit purchase transactions on the Service are processed using a third-party payment processor. You acknowledge and agree that Wishfinity is not liable or responsible for any breaches of credit card or debit card security by such third party processor. When you provide a funding instrument to us, you confirm that you are permitted to use that funding instrument. When you fund a transaction, you authorize us (and our designated payment processor) to charge the full amount to the funding instrument you designate for the transaction. You also authorize us to collect and store that funding instrument, along with other related transaction information. If you pay by credit or debit card, we may obtain a pre-approval from the issuer of the card for an amount, which may be as high as the full price of your purchase. We will bill your card at the time you load funds for your Wishfinity transaction, or shortly thereafter. If you cancel a transaction before completion, this pre-approval may result in those funds not otherwise being immediately available to you. If you fund a payment by debit card and your load transaction results in an overdraft or other fee from your bank, you alone are responsible for that fee. You agree to pay all charges incurred by users of your credit card, debit card, or other method of payment.
- (3) Auto-Purchase. If you sign up for Auto-Reward we will bill your funding instrument in the amount of $26.00 each time your WishBits Balance reaches 0, and replenish your WishBits Balance with 200 WishBits. You can cancel Auto-Reward at any time on your Billing page.
- (4) Restrictions. WishBits cannot be resold or redeemed for cash, except to the extent required by law. Promotional WishBits cannot be transferred to anyone and Purchased WishBits cannot be transferred to anyone outside the Service. We may limit the number of WishBits you can purchase or receive within certain periods of time, or implement other restrictions on the receipt or use of WishBits. If we give you Promotional WishBits in connection with your purchase of a Product and you later return or receive a WishBit refund for that Product, we may revoke those Promotional WishBits. If you have already used those WishBits, we may deduct the same number of other Promotional Coins or Purchased Coins from your account or charge your credit card or other payment instrument for any Products you purchased using those WishBits.
- (5) No Refunds. You may cancel your Wishfinity account at any time. However, you understand and agree that In the event your Wishfinity account is cancelled, suspended or terminated for any reason, except where required by law, Wishfinity will not issue you a refund or accept returns of Purchased WishBits. All purchases of WishBits are final. If you believe any Purchased WishBits were not properly credited to your WishBits Balance, please contact Wishfinity customer service for assistance. If we offer discounts on the purchase of WishBits, we may modify or discontinue those discounts at any time without notice to you.
- (6) No Account Fees or Expiration. Purchased WishBits are not subject to account maintenance, dormancy fees, or similar fees and do not expire. However, WishBit balances are subject to our Unclaimed Property provision below. Promotional WishBits expire one year after the later of the date we give them to you or the date you last purchased or redeemed WishBits. When you make a purchase with WishBits, any Promotional WishBits you have will be applied first, followed by your Purchased WishBits.
- (7) Unclaimed Property. If you leave a WishBits Balance unused for the period of time set forth by your state, country, or other governing body in its unclaimed property laws, or if you delete your account and leave a WishBits Balance, or if we deactivate your account and you do not meet any conditions necessary to reinstate it within six (6) months, we may process your WishBits Balance in accordance with our legal obligations, including by submitting funds associated with your WishBits Balance to the appropriate governing body as required by law.
- (8) No Deposits. Wishfinity is not a bank and WishBits are not real currency or any type of financial instrument, so WishBit Balances are not deposits and they do not earn interest. WishBit Balances are not insured by the Federal Deposit Insurance Corporation, the Financial Services Compensation Scheme, or any other entity or insurance scheme, whether governmental or private.
- (9) Duty to Notify Wishfinity. If you believe that an unauthorized or otherwise problematic transaction has taken place under your account, you agree to notify us immediately, so that we may take action to prevent financial loss. Unless you submit the claim to us within 30 days after the charge, you will have waived, to the fullest extent permitted by law, all claims against us arising out of or otherwise related to the transaction.
- (10) Limited to U.S. WishBits are currently only available to Users located in the United States. You may not purchase, receive, or redeem Coins if you are outside the United States. "United States" refers to the 48 contiguous states, the District of Columbia, Alaska, Hawaii, Puerto Rico, American Samoa, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands.
C. USE OF WISHBITS
- (1) Awards and Gifts. We may allow you to transfer Purchased WishBits to other Users of the Service for no consideration as an award in recognition of certain achievements or simply as a gift. Upon your submission of a request to transfer a certain number of WishBits from your WishBits Balance to another User through the Service, the specified number of WishBits will be deducted from your WishBits Balance and will appear in the recipient User’s WishBits Balance.
- (2) Redeeming WishBits. From time to time, we may offer products for purchase through the Service (“Products”). Users may redeem WishBits to purchase Products for their own benefit or the benefit of other Users.
- (3) Age. If you are under the age of eighteen (18), you may only redeem WishBits with the involvement of your parent or guardian. Make sure you review these Terms with your parent or guardian so that you both understand all of your rights and responsibilities.
- (4) Pricing. All prices for Products are listed in WishBits. Additional local, federal taxes may apply to your purchase. Estimated tax, shipping and handling fees, if any, will be reviewable prior to submitting your order. You acknowledge and agree that the prices, applicable taxes, and shipping and handling fees provided to you prior to your redemption of any Product(s) are estimates. The final total amount due, including any applicable tax and shipping and handling fees, for any Products will be calculated at the time of redemption.
- (5) Shipping; Risk of Loss. All Products purchased through the Service will be shipped to the address you specify. All Products are transported and delivered to you by an independent carrier not affiliated with, or controlled by, Wishfinity/JOYN Corporation. The time period from order to delivery will vary depending on your location. You may have Products shipped only to addresses located within the United States. Title to products purchased on the Service, as well as the risk of loss for such products, passes to you when Wishfinity or our supplier delivers these items to the carrier.
- (6) Returns and Refunds of Products. All Products are fulfilled by third party suppliers and returns and refunds are managed between the User and said supplier. JOYN Corporation is not responsible for returns or refunds of Products.
- (7) Disclaimer. You understand that Products may contain materials that could be dangerous if handled improperly, and you acknowledge that we are not liable or responsible for any personal injury or property damage arising from any misuse of any Products offered through the Service. You further acknowledge that Products may not be suitable for use by children, and you expressly assume sole liability for providing any individual under the age of eighteen (18) with access to any Products. You hereby agree not to use Products for any illegal purpose, and you assume all liability and responsibility for any action you take that is contrary to any applicable law, rule, or regulation of any territory.
- (8) California Residents. The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
Wishfinity cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
9. DMCA Notice
Since we respect artist and content owner rights, it is Wishfinity’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Wishfinity’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit Wishfinity to contact you, such as your address, telephone number, and, e-mail address;
5. 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, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent: Attn: DMCA Notice JOYN Corporation. Address: 120 Spring St., Pleasanton, CA 94566, Email
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Wishfinity and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Wishfinity’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Wishfinity has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Wishfinity may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
10. Third-Party Links and Information
Wishfinity is a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to amazon.com.
You agree to defend, indemnify and hold harmless Wishfinity and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
12. No Warranty
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WISHFINITY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WISHFINITY, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE WISHFINITY CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
WISHFINITY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WISHFINITY SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND WISHFINITY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
13. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WISHFINITY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL WISHFINITY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WISHFINITY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL WISHFINITY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO WISHFINITY HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WISHFINITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Service is controlled and operated from facilities in the United States. Wishfinity makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
14. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
A. Governing Law.
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM WISHFINITY. For any dispute with Wishfinity, you agree to first contact us and attempt to resolve the dispute with us informally. In the unlikely event that Wishfinity has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless you and Wishfinity agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Wishfinity from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
C. Class Action/Jury Trial Waiver.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WISHFINITY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Wishfinity without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
B. NOTIFICATION PROCEDURES AND CHANGES TO THE AGREEMENT.
C. ENTIRE AGREEMENT/SEVERABILITY.
This Agreement, together with any amendments and any additional agreements you may enter into with Wishfinity in connection with the Service, shall constitute the entire agreement between you and Wishfinity concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
D. NO WAIVER.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Wishfinity’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us with any questions regarding this Agreement.
This Agreement was last modified on November 1, 2016.