The following is a legal agreement between AG Interactive, Inc., ("AG," "we," "us," or "our") and "you," the user of the Just Wink application and website (the "Application"). By downloading or using the Application, you acknowledge that you have read, understand, and agree to be bound to these terms of service ("Terms") and to comply with all applicable laws and regulations. The purpose of the Application is to allow the sending of electronic cards or other messages or any other content (the "Cards"). THIS AGREEMENT CONTAINS WARRANTY DISCLAIMERS AND OTHER PROVISIONS THAT LIMIT OUR LIABILITY TO YOU. PLEASE READ THIS AGREEMENT IN ITS ENTIRETY. If you do not agree to these Terms, please do not use the Application.
The Applications is operated by AG. We are registered in Delaware and have our registered office at One American Road, Cleveland, Ohio, 44144.
AG hereby grants you a limited non-exclusive license to copy and use the materials, features, and services provided by AG in this Application (collectively the "Materials") solely for your personal, non-commercial use, subject to these Terms. No other use of the Application or Materials is authorized. This right ends when you no longer have access to the Application or receive the benefit of the services. To the maximum extent permitted by law, hacking or reverse engineering the Application or Materials or posting of Materials other places is strictly prohibited, except as permitted as a function of the Application.
The products, technology, or processes described or used on this Application may be the subject of intellectual property rights reserved by AG or other third parties. Except for the limited license granted above, nothing contained herein confers to you in any manner, whether by implication, estoppel or otherwise, any license, title, or ownership of or to any intellectual property right of AG or any third party.
As a user of the Application, you undertake in relation to all content, photos, images and other materials that you upload to the Application that:
(i) You have obtained the consent of all individuals in the content, photos, images and that uploading those images onto the Application will not infringe the privacy of any individual; and
(ii) You have obtained the consent of all individuals in the content, photos, images and that uploading the images onto the Application and any subsequent publication of such content, photos, images does not infringe the intellectual property rights of any third party.
If you reside in the United Kingdom, Australia and New Zealand in order to permit you to send any Cards to a recipient, you warrant that the following information is correct:
(i) all information provided on registration is true and accurate in all material respects; and
(ii) prior to sending the Card, the recipient has provided his or her consent to you allowing you to submit the e-mail address or mobile phone number and other personal details on our Application.
All of the Material available on the Application is copyright © 1998-2013, AGC LLC or used under license. AG currently utilizes copyrighted materials from various individuals and entities. Copyright notices for such material are set forth wherever the licensed material appears in the Application.
AG has adopted the following Acceptable Use Policy in order to assure that the Application is used in a lawful and appropriate manner. While AG does not ordinarily monitor the content that users send, it reserves the right to investigate reports of misuse of its Application and to protect its property and assets. By using the Application, you agree to this monitoring.
The following conduct is prohibited:
sending harassing, abusive, or threatening messages or any messages that cause or are intended to cause annoyance, inconvenience or needless anxiety;
sending obscene, indecent or pornographic messages or images;
sending defamatory or libelous messages;
sending viruses or other harmful, disruptive, or destructive files;
attempting to steal passwords or credit card information;
sending messages that may in any way infringe the intellectual property rights of third parties;
sending messages in connection with a criminal offence under the applicable national laws or regulations or against public order or applicable ethical standards and codes;
sending messages that in any way could breach or could potentially breach a legal duty to a third party (including a duty of confidentiality) or that in any way infringe or could potentially infringe a person's right to privacy;
sending messages that in any way promote discrimination or is likely to incite hatred;
sending messages in furtherance of unlawful, criminal, or fraudulent activity; or
attempting to conceal or misrepresent the identity of the sender.
Violations of the AG's Acceptable Use Policy will not be tolerated and may result in the sender being blocked from sending additional Cards on the service. AG RESERVES THE RIGHT IN ITS SOLE DISCRETION TO DISCLOSE TO THIRD PARTIES, INCLUDING PRODUCT RECIPIENTS, THEIR COUNSEL, OR LAW ENFORCEMENT AUTHORITIES, RELEVANT INFORMATION ABOUT A COMMUNICATION, INCLUDING, BUT NOT LIMITED TO, THE SENDER NAME, ACCOUNT INFORMATION, MEMBER AND COOKIE NUMBERS, TRANSMISSION DATA, PAST AND SUBSEQUENT SERVICE USE, AND ANY OTHER INFORMATION DEEMED NECESSARY BY AG TO ADDRESS PAST VIOLATIONS OF THE ACCEPTABLE USE POLICY AND TO PREVENT FUTURE VIOLATIONS. THESE DISCLOSURES MAY BE MADE WITH OR WITHOUT PRIOR NOTICE TO YOU. BY USING THE SERVICE, YOU IRREVOCABLY CONSENT TO SUCH DISCLOSURES.
You may not use the Application to send content to mailing lists to which you do not have full rights or to send unsolicited bulk or commercial messages. In addition, the use of automated scripting-type programs that automate the process of sending or viewing any of the Materials is strictly prohibited. AG reserves the right to limit, in its sole discretion and without prior notice to you, the number of cards or messages that you may send using the Application or the number of recipients to which you send such cards or messages.
You are solely responsible for your actions and communications undertaken or transmitted using the Application. Neither we nor our affiliates exercise editorial control over your transmissions; however, we do reserve the right to review your uploads and transmissions to the extent permissible in order to ensure compliance with these Terms.
AG may feature on its Application, in its newsletters, or in its e-mail communications to you links to third-party web Applications. These may appear in the form of text links, advertisements, banners, buttons, integrated gift services, digital cash, digital gift certificates, or otherwise. The goods and services available through these links are offered by independent companies, which are not affiliated in any way with AG Interactive, Inc., or American Greetings Corporation. To the maximum extent permitted by law, AG makes no representations as to the quality, fitness, workmanship, value, appropriateness, or reliability of the merchandise available or the solvency or financial viability of any advertiser. AG will not reimburse or indemnify you for any losses you may incur as a result of transactions with any AG advertiser. Users are advised to use discretion in selecting companies to do business with online.
There may be circumstances where access to the Application is provided by a link located at another web application. Neither AG nor its affiliates makes any representations or give any warranties with respect to any information contained in or at these other Applications and neither AG nor its affiliates are liable for any damages or injury arising from the content of these other applications. Neither AG nor its affiliates endorses the individuals, companies, or other similar entities, or any products or materials associated with such individuals, companies, or other similar entities, that provide a link to this Application.
AG may allow you to create your own Cards by uploading your own photos, artwork and other materials. If we do and you do so, you are subject to the conditions outlined in these Terms. When you upload photos or images to the Application you are indicating that you own the photo or image or have full rights to its use in accordance with these Terms. You are also indicating that the photos or images you upload do not depict any obscene, pornographic, or illegal materials.
When you upload material to the Application and use it to create a Card, your material will be used for the transmission of your Card; however, we may also use such material in the course of performing testing, training or archiving of our and our affiliates' systems and hereby expressly reserve the right to do so.
By purchasing photo cards or other paper products, you are subject to the conditions outlined in these Terms. When you upload photos or images to the Application you are indicating that you own the photo or image or have full rights to its use. You are also indicating that the photos or images you upload do not depict any obscene, pornographic, or illegal materials.
You also agree that, by clicking the "Next" button, you accept the card as it appears on the screen. You also understand that AG takes no responsibility for misspellings, misalignment, typographical errors, or other user-generated errors. Please note that AG will not provide refunds for paper cards that contain user-generated errors. If you have concerns about the craftsmanship of the paper card, please contact Customer Care at 877-798-9842.
When you send a Card via your mobile phone, standard messaging and data rates may apply. In addition, the recipient of your card may also be subject to messaging or data charges from their mobile carrier depending on their messaging plan.
By sending a Card via mobile phone, you agree that you are the account holder or have the account holder's permission to send the Card.
In order to send Cards via mobile phone, AG uses the messaging application on the sender's device: for this reason, you cannot block or stop the receipt of Cards except by blocking the sender's number. Please contact your service provider for instructions on how to do this.
In addition to the other restrictions and limitations contained in these Terms, AG is not responsible for failures in delivery of Cards via mobile phone as a result of any technical issues. For instance, AG is not responsible if your Card is not delivered because:
There may be other reasons for a delivery failure as well. AG will not give refunds for Cards that are not delivered due to technical issues that AG is not responsible for.
To the maximum extent permitted by law, the materials, information, and services provided on this application are provided "as is" without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. There is no warranty against interference with your enjoyment of any materials, information, or services (including, but not limited to, any data, text, images, sounds, or computer programs (including collections and compilations of them)) or against infringement. AG is not responsible for any failure of cards sent through the service to reach their intended recipients or to reach such recipients on the date specified by the sender. The materials available on the application are subject to change without notice.
AG and its subsidiaries and affiliated companies, and their respective officers, directors, managers, employees, agents, suppliers, vendors, content providers, licensors, licensees, and other representatives (each an "AG Party" and, collectively, "AG Parties") are not liable for any direct, indirect, special, consequential, punitive, exemplary or incidental damages of any kind whatsoever (including, but not limited to, lost profits or attorneys' fees) in any way due to, resulting from or arising in connection with your access to, inability to access, or use of the Application, or from your reliance on any information provided in or through the Application, even if AG has been advised of the possibility of such damages. This limitation applies to all causes of action in the aggregate including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentation, and any other tort.
In the event the foregoing limitation of liability is held unenforceable or inapplicable, you agree that the AG Parties' aggregate liability will not exceed any sums paid pursuant this agreement. In the United Kingdom, Australia, and New Zealand the greater of the amount paid for the services or $50.00 US Dollars.
The AG Parties take no responsibility and assume no liability for any content uploaded or otherwise transmitted by you or any third party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography, indecency, lewdness, harassment, threats, abuse, or profanity you may encounter in using the application. You agree to hold harmless the AG Parties from all claims based upon communications or materials made available by you on the application.
Nothing in this paragraph limits or excludes our liability for death or personal injury arising from our negligence, nor our liability for fraud or fraudulent misrepresentation, or any other liability which cannot be excluded or limited under applicable law.
The AG Parties make no representation that Materials in this Application are appropriate or available for use in locations outside the United States, the United Kingdom, Australia, and New Zealand, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this Application from other locations do so on their own initiative and are responsible for compliance with local laws.
You hereby indemnify, defend and hold harmless the AG Parties from and against any and all liability and costs, including, without limitation, reasonable attorneys' fees, incurred by the AG Parties in connection with any claim arising out of any breach by you or any user of your account of these Terms. You must cooperate as fully as reasonably required in defense of any such claim. AG reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
In the event AG determines, in its sole discretion, that you have violated these Terms, AG have the right to immediately terminate your account (with or without refund), refuse membership, or block the sending or receipt of Cards from our Application, or pursue any other remedies available to it under applicable law.
To the extent permitted by applicable law, this Agreement, and the respective rights and obligations of the parties hereto, are governed by and construed in accordance with the laws of the State of Ohio. Any dispute arising between you and AG will be submitted to binding arbitration in Cleveland, Ohio in accordance with the American Arbitration Association's standard rules then in effect for arbitration of commercial disputes.
The failure to exercise, or delay in exercising, a right, power or remedy provided by these Terms or by law does not constitute a waiver of that right, power or remedy.
AG has the right to revise these Terms at any time. When we post changes to these Terms the Application will be updated and you will see the change in the Terms described in the update. By using this Application, you agree to be bound by any such revisions and should therefore periodically visit this Application to determine the then-current Terms to which you are bound.