OINK TERMS OF SERVICE
Effective Date: August 20, 2014
PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY
BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SITE AND SERVICES.
Introduction and Overview
It’s important that you read the entire Terms that follow; but, here are some of the more significant points that we want to bring to your initial attention (click on section references for details, which terms and not the headings or summaries govern) in the event you are on a smart phone or other device with a small screen. Capitalized terms have the meanings given to them where defined in these Terms.
• Each time you use the Service, the Terms and any applicable Additional Terms (defined below) then posted apply. Any updates to them will apply to you; so you should check back each time you return for any updates.
• Click here for a summary of each section of these Terms. You may click on the topic for full details.
• You may only use the Content (defined below) on the Service in connection with your permitted activities on the Service and not in an offline environment or in connection with another site or service. (Section 1 and Section 3) You grant us a broad license to content you submit or post. (Section 2)
• As permitted by law, many types of disputes that may arise in connection with your access to and use of the Service are subject to mandatory arbitration – which includes your waiver of a right to a jury trial. (Section 13)
• We are providing the Site and Service to you on an “as-is” basis, without any warranty of any kind, and our liability to you in connection with your use of the Service is very limited. Many other limitations and disclaimers relate to your use of the Service. (Sections 15 & 16 and Section 17)
If You Want to Use This Service,
then carefully read these entire Terms (including all linked to details), as they constitute a written agreement between you and Oink and they affect your legal rights and obligations. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. ONLY INDIVIDUALS 13 AND OLDER MAY OPEN AND REGISTER FOR A PRIMARY ACCOUNT (AS DEFINED IN SECTION 4 BELOW). YOUTH UNDER THE AGE OF 13 MAY NOT OPEN A PRIMARY ACCOUNT; ONLY PARENTS OR LEGAL GUARDIANS MAY OPEN AND REGISTER THEIR YOUTH FOR A SUB ACCOUNT (AS DEFINED IN SECTION 4 BELOW). YOUTH UNDER 13 MAY USE MOST OF THE SITE TO WHICH THESE TERMS ALSO APPLY, WITHOUT AN ACCOUNT.
Each time you access and/or use the Service (other than to simply read these Terms), you agree to be bound by and comply with these Terms and any applicable Additional Terms then posted. Therefore, do not use the Service if you do not agree.
The business realities associated with operating the Service are such that, without the limitations that are set forth in these Terms -- such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and our arbitration of certain disputes – Oink would not make the Services available to you.
These Terms are posted in interactive format to ease your review, especially using smart phones and other devices with small screens. It is important that you read and understand these entire Terms before using the Service. To ease review, each section below includes a brief introductory summary and a link to the full explanation. Please note that the complete provisions, and not the headings or summaries shall govern. You can click on the headings and “More” buttons to be taken to the full explanation. Any capitalized terms that appear, but are not defined in the introduction, have the meanings given to them elsewhere in the Terms.
1. Service Content, Ownership, Limited License, and Rights of Others
We only grant you a limited revocable license to use the Service for your own non-commercial use subject to rules and limitations. More
2. Content You Submit and Community Usage Rules
You grant us a broad license, which we may sublicense, to the content you submit, which you represent you have the right to allow us to use. You, however, retain ownership of and responsibility for, your content. Use of our Service is subject to community usage rules, to which you agree, and we have the right to manage our Service to keep its content appropriate. More
3. Service and Content Use Restrictions
Your use of our Service is subject to certain restrictions designed to protect the Service and our users. We may change or discontinue our Service in whole or in part. More
You may open, revise and close your accounts and setup and change profiles. More
5. Payment Method; Payment Transactions; Prohibited Uses; Refunds; and Gift Cards
In order to fully utilize the Service, a Primary Account Holder must set up one or more Payment Methods to enable Payment Transactions. Use of Accounts is subject to restrictions. Refunds and gift cards are subject to conditions. More
6. Procedure For Alleging Copyright Infringement
Users may not post content they do not own or control, and may be suspended or terminated if they do so. Copyright owners may give us notice of infringement as detailed in this section, and we will respond in accordance with applicable law. More
7. Procedure For Alleging Infringement of Other Intellectual Property
You can also give notice of trademark and other infringements that you think occur on the Service. More
8. Notices, Questions and Customer Service
Click here to contact us for customer service or questions. You agree we may provide you notices, including of new terms and conditions, by posting notice on the home page or by other reasonable means, such as to the e-mail you provided, as further set forth in Section 18 . More
9. Product Specifications; Pricing; Typographical Errors
Terms may change and errors may occur. Consult applicable Additional Terms regarding each product. More
10. Links By You To the Service
You may link to our Service, subject to some basic requirements. More
11. Third-Party Services; Advertisements; Dealings With Third Parties
We are not responsible for third parties or their content, advertisement(s), apps or sites. [For instance, our payment widget may be integrated into third-party sites and apps that we do not control. Similarly, we may make ads and third-party content or services available to you on or via our Service, which we also do not control. This may include the ability to register or sign in to our Services using Facebook Connect or other third party tools, and to post content on third party sites and services using their plug-ins made available on our Services.] Use caution when dealing with third parties. More
12. Wireless [and Location-Based] Features
Wireless carrier charges may apply to use of the Service via wireless networks or Devices [geo-location details] for which you will be responsible. Our Services may include location-based features that use geo-location tools to identify where you are. More
13. Dispute Resolution
To the extent permitted by applicable law, you agree to arbitrate most disputes and waive jury trial and class actions. More
14. Other Dispute Resolution Where Arbitration Is Not Available
If, and to the extent that, arbitration is not a permitted form of dispute resolution pursuant to the mandatory laws of your country of residence, then you agree that the provisions of Section 14 shall apply to the resolution of any disputes or claims. More
15. Disclaimer of Representations and Warranties
We disclaim most warranties and provide the Service “As Is”. More
16. Limitations of Our Liability
Our liability is greatly limited as more fully explained in this section. More
17. Waiver of Injunctive Or Other Equitable Relief
You waive equitable or injunctive relief. More
18. Updates To Terms
These Terms and applicable Additional Terms posted on the Service at each time of use apply to that use, and the Terms may be prospectively updated as our Service evolves. Posting of new Terms on the Service is notice to you thereof. More
19. General Provisions
You agree to various other terms and conditions, which you should read here, including regarding (a) our control and discretion; (b) the law that governs these Terms; (c) your indemnity of us; (d) accessing the Service from outside of the United States; (e) restriction on the Service for those in countries subject to U.S. export controls; (f) enforcement and interpretation of these Terms; (g) communications with us; (h) investigations, cooperation with law enforcement; (i) limit on assignment and delegation of rights and obligations; (j) how waivers may be made; (k) special terms for U.S. government users; (l) CA consumer rights; and (m) your responsibility for your connectivity and access. More
20. Terms Applicable For Apple iOS
There are some other things you should know if you are accessing or using the Service through an Apple Device. More
Full Details of Terms of Service
1. Service Content, Ownership, Limited License, and Rights of Others
A. Content . The Service contains a variety of: (i) materials and other items relating to Oink and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including "Oink", “QuickConnect”, “Youth Empowered. Parent Approved.,” “PiggyPick,” “Parent Match,” “Parent Playback,” and other related designs, graphics, logos, page headers, button icons, scripts, and service names are trademarks, registered trademarks or trade dress of Oink (collectively, “ Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
B. Ownership . The Service (including past, present, and future versions) and the Content are owned or controlled by Oink and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Service is the property of Oink or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Oink owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.
C. Limited License . Subject to your strict compliance with these Terms Oink and the applicable Additional Terms, grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to (i) download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) and/or print one copy of the Content for your personal, non-commercial use only, and (ii) to use certain Content that we may from time to time make available on the Service explicitly for you for use as part of your User-Generated Content (defined below) (“Oink Licensed Elements”), but only for such purposes as may be explicitly stated at the time that the Licensed Elements are made available on the Service; but we and our licensors and certain other third parties, as the case may be, retain ownership of such Oink Licensed Elements. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Oink’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content and/or Oink Licensed Elements, subject to certain applicable Additional Terms.
D. Rights of Others . In using the Service, you must respect the intellectual property and other rights of Oink and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. Oink respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Service, then please see Section 6 and Section 7 below.
E. Reservation of All Rights Not Granted As To Content and Service . These Terms and any applicable Additional Terms include only narrow, limited grants of rights to Oink Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Oink and its licensors and other third parties. Any unauthorized use of any Oink Content or the Service for any purpose is prohibited.
2. Content You Submit and Community Usage Rules
A. User-Generated Content .
(i) General . Oink may now or in the future offer users of the Service the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Service (collectively, “submit”) content (collectively, but excluding Oink Licensed Elements included therein, “User-Generated Content”). Oink may allow you to do this through forums, blogs, message boards, social networking environments, content, creation tools, gameplay, social communities, e-mail, the Oink Wishlist and other communications functionality. Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.
In your communications with Oink, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “ Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you post on or send to us via the Service are deemed User-Generated Content and licensed to us as set forth below. In addition, Oink retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. Oink’s receipt of your Unsolicited Ideas and Materials is not an admission by Oink of their novelty, priority, or originality, and it does not impair Oink’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
(iii) License to Oink of Your User-Generated Content . Except as otherwise described in any applicable Additional Terms (such as a contest’s official rules), which specifically govern the submission of your User-Generated Content), you hereby grant to Oink, and you agree to grant to Oink , the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. In order to further effect the rights and license that you grant to Oink to your User-Generated Content, you also hereby grant to Oink, and agree to grant to Oink, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 2(A)(iii).
(iv) Oink’s Exclusive Right to Manage Our Service . Oink may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and Oink may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including without limitation, the content restrictions set forth below in the Rules (defined in Section 2(B)). Such User-Generated Content submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Service or elsewhere.
(v) Representations and Warranties Related to Your User-Generated Content . Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside, are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content, (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant Oink the rights to it that you are granting by these Terms and any applicable Additional Terms, all without any Oink obligation to obtain consent of any third party and without creating any obligation or liability of Oink; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to Oink’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate these Terms (including the Rules) or any applicable Additional Terms, or cause injury or harm to any person.
(vi) Enforcement . Oink has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at Oink’s cost and expense, to which you hereby consent and irrevocably appoint Oink as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
B. Community Usage Rules . As a user of the Service, you are bound by our Community Usage Rules (“Rules”) which are here to help you understand the conduct that is expected of members of the Site’s and/or Service’s online communities (“Communities”). Your participation in the Communities is subject to all the Rules which may be found here.
C. Alerting Us of Violations . If you discover any content that violates these Terms and/or Rules, then you may report it to email@example.com. For alleged infringements of intellectual property rights, see Sections 6 and 7 , below.
3. Service and Content Use Restrictions
A. Service Use Restrictions . You agree that you will not: (i) aside from your purchase of goods or services offered for sale by Oink or its affiliates, use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Oink; (iv) to the maximum extent permitted by applicable law, reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Oink, or other users of the Service; (vi) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the User-Generated Content; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including e-mail addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (ix) otherwise violate these Terms or any applicable Additional Terms.
B. Content Use Restrictions . You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content (other than to the extent of your permitted use of the Oink Licensed Elements, if applicable); (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any applicable Additional Terms or with the prior written consent of an officer of Oink or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
C. Availability of Service and Content. Oink may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in Oink’s sole discretion, and without advance notice or liability.
D. Reservation of All Rights Not Granted as to Content and Service . These Terms and any applicable Additional Terms include only narrow, limited grants of rights to make use of Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Oink and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited.
4. Opening and Terminating Accounts
1 A Sub Account may include a Youth, where the Youth has not registered as a Primary Account Holder.
C. By using the Service and opening a Primary Account, a Primary Account Holder represents and warrants that: (a) all Account opening, registration and other information submitted is truthful, accurate, current and complete; (b) they will maintain the accuracy of such information by updating and revising it promptly; (c) if applicable, they are the parent or legal guardian of any Youth for whom they create a Sub Account; and (d) all Primary Account Holders and Sub Account Holders use of the Service will not violate any applicable law or regulation or be for any fraudulent undertaking. You authorize us to make any inquiries, either directly or through third parties, that we consider necessary to validate your Account information, including engaging third parties to provide such services as age and identity verification on the Service. You may open an account without providing a Payment Method, but no Merchant transactions shall occur until such Payment Method has been verified and/or authorized. In connection therewith, you agree that we may authorize a pending charge using the Payment Method, and require confirmation of such amount prior to activating the applicable Payment Method. We reserve all rights to take legal action against anyone who misrepresents personal information or is otherwise untruthful about their or a Youth’s identity, and to suspend use of the Service or cancel an Account, in whole or in part, established using inaccurate or incomplete information. Notwithstanding the foregoing, you acknowledge that we cannot guarantee the accuracy of any information submitted by any user of the Service, nor any identity information about any particular user. Primary Account Holders are required to create (a) an Oink User ID and Password for access to their Account, and (b) if applicable, a Sub Account User ID and Password to enable their registered Youth to use the Service for checkout and payment at participating Merchants.
D. If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration for the Primary Account and/or each Sub Account (or we may send you an e-mail notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive. We may reject the use of any password, username, or e-mail address for any other reason in our sole discretion; (ii) You will provide true, accurate, current, and complete registration information about yourself and any Youth for which you establish a Sub Account in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your Account and any associated passwords, and usernames – whether or not you authorized the activity, including, any activities related to any Youth Profile Sub Account you establish; (iv) You are solely responsible for maintaining the confidentiality of your passwords and for restricting access to your Device so that others may not access any password protected portion of the Service using your name, the name of your Youth, and any associated usernames or passwords; (v) You will immediately notify us of any unauthorized use of your Account and any associated passwords or usernames, or any other breach of security; and (vi) You will not sell, transfer, or assign your account or any account rights.
E. We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.
F. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any applicable Additional Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.
G. Terminating Your Account. You may terminate these Terms by closing your Primary Account at any time. You may also close any Sub Account without terminating your Primary Account at any time upon notice to us, and your Primary Account will remain active. Upon closure of a Primary Account and/or Sub Account, any pending transactions associated with that Account and/or Sub Account may be cancelled. We may terminate the Service and close your Primary Account or close or suspend any associated Sub Account for any reason at any time upon notice to you. If a Primary Account is terminated, any Sub Account associated with that Primary Account will terminate concurrently and automatically. Without limiting the foregoing, we may suspend the Service and access to your Account if (a) you have violated the terms of this Agreement, (b) you pose an unacceptable fraud risk to us, or (c) you provide false, incomplete, inaccurate, or misleading information (including without limitation any registration information) or otherwise engage in fraudulent or illegal conduct. We will not be liable to you for compensation, reimbursement, or damages on account of expenditures or commitments in connection with your use of the Service, or for any termination or suspension of the Service. Any termination of your Account does not relieve you of any obligations to pay any fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in these Terms and/or any applicable Additional Terms. In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of these Terms and/or any applicable Additional Terms, the following sections of these Terms survive and remain in effect in accordance with their terms upon the termination of this these Terms and/or your Account: 5, 13 through 17.
5. Payment Method; Payment Transactions; Prohibited Uses; Refunds; and Gift Cards
A. Payment Method. As set forth above, Primary Account Holders are required to provide us with all necessary information for the Payment Method that will be used to pay for the purchase of goods, products or services from approved participating Merchants that are either (a) within the limits set in the Sub Account(s) or elsewhere in their Account or (b) subsequently approved by a Primary Account Holder in response to an email or other communication from Oink, that are initiated by a registered Youth or Primary Account Holder (a “Payment Transaction”). We may use the services of one or more third party, hosting providers, processors and/or financial institutions (each a "Processor") to process a Payment Transaction initiated through the Service. BY PROVIDING PAYMENT METHOD INFORMATION, PRIMARY ACCOUNT HOLDER EXPRESSLY AUTHORIZES VIRTUAL PIGGY, ITS AGENTS, SERVICE PROVIDERS AND PROCESSORS TO CHARGE OR DEBIT THE PAYMENT METHOD FOR ALL PAYMENT TRANSACTIONS. Your authorization will remain in full force and effect while you maintain your Account and for any Payment Method listed, unless you change your Payment Method or close your Account. We may delay, suspend or refuse to process a Payment Transaction if we suspect the Payment Transaction is unauthorized, fraudulent, suspicious or otherwise unusual based on prior transaction activity or other fraud controls. We are not responsible for any fees or interest charged directly by your card issuer. Except for our limited role in processing Payment Transactions, we are not involved in any underlying transaction between you or any person using your Account and a participating Merchant using the Service. We are not a bank and do not offer banking services.
B. Prohibited Uses; Unauthorized Account Activity . You and any of your Sub Account Holder(s) may not use the Services to engage in activities that may be illegal for minors under federal and/or state or local laws; including, but not limited to, the purchase of alcohol, tobacco or adult oriented content. We reserve the right to limit or close an Account if we believe that the Account is associated with any prohibited use. If you believe that there is an error or unauthorized Payment Transaction or activity associated with your Account, you should contact us immediately at firstname.lastname@example.org or such other customer service contact address posted on the Service.
C. Products Purchased Using The Service; Refunds . When you or your Sub Account Holder(s) use the Service, we will process the Payment Transaction for a Merchant. You hereby acknowledge that is an agent in processing your Payment Transaction. We make no claims as to and shall not be held responsible for the safety, quality, reliability, legality, or fitness for a particular purpose of products and services offered by Merchants and purchased using the Service, nor do we make any claims as to the accuracy of information provided by Merchants about a product or service. We do not guarantee a Merchant's ability to deliver a product or service. Please refer to the Merchant's terms of service or sale for more information about their warranties and responsibilities to you. When an order is made using our Service, the Merchant may not accept the order. You agree not to hold liable for any damages resulting from the rejection of an order placed with a Merchant. We may not process a charge from your Payment Method when a Merchant rejects your order. The Merchant, and not Oink, is responsible for refunding or compensating you for defective, damaged, or returned items. Please refer to the Merchant’s refund and return policy for whether and how returns, refunds, and cancelled orders will be accepted and processed.
D. Our Store And Gift Cards . In accordance with this Agreement, Users agree that any transactions made on the shop.oink.com store, including the purchase of gift cards, shall be bound by the Additional Terms located on such portion of the Service. Oink shall not be responsible for the use of the gift card after its purchase through the store, except as set forth in the applicable Additional Terms. Any further use of the gift card shall be governed by the applicable terms and conditions of the respective issuer and merchant.
6. Procedure For Alleging Copyright Infringement
A. DMCA Notice . Oink asks our users to respect the intellectual property rights of others. It is our policy to respond appropriately to clear notices of alleged copyright infringement, as set forth more fully below. In Oink’s sole discretion, Oink may remove content that may be infringing on another person’s intellectual property rights with or without notice to the potential infringer. In accordance with the U.S. Digital Millennium Copyright Act (“DMCA”) and other applicable law, Oink has adopted a policy of terminating, in appropriate circumstances and at Oink’s sole discretion, users who are deemed to be repeat infringers. If we remove or disable access in response to a DMCA Notice (as defined below), we will make a good faith attempt to contact the owner or administrator of the affected site or content so that they may make a counter-notification.
If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following: (i) a legend or subject line that says: “DMCA Copyright Infringement Notice”; (ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Service on which the material appears); (iv) your full name, address, telephone number, and e-mail address; (v) a statement by you 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 the law; (vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and (vii) your electronic or physical signature.
Oink will only respond to DMCA Notices that it receives by mail, e-mail, or facsimile at the addresses below:
By Mail: Virtual Piggy, Inc., 1221 Hermosa Ave., Suite 210, Hermosa Beach, CA 90254, Attention: Ashley Kent, Legal Counsel
By E-Mail: email@example.com
By Phone: (310) 634-1246
Oink may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Oink may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Without limiting Oink’s other rights, Oink may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website owned or operated by Oink. See Section 4 , above.
B. Counter-Notification . If access on the Service to a work that you submitted to is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information: (i) a legend or subject line that says: “DMCA Counter-Notification”; (ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Service from which the material was removed or access to it disabled); (iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (iv) your full name, address, telephone number, e-mail address, and the username of your account; (v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and (vi) your electronic or physical signature.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
7. Procedure For Alleging Infringement of Other Intellectual Property
If you own intellectual property other than copyrights and believe that your intellectual property other than copyright has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice to the addresses set forth above that includes: (a) a legend or subject line that says: “Intellectual Property Infringement Notice” and (b) all the other information required for the DMCA notice above, except describing the other intellectual property alleged to have been infringed.
We will act on such notices in our sole discretion. Any user of the Service that fails to respond satisfactorily to Oink with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
8. Notices, Questions and Customer Service
If you have a question regarding using the Service, you may contact Oink Customer Support by sending an e-mail to firstname.lastname@example.org or calling our toll-free phone number at (855) 203-1747. You acknowledge that the provision of customer support is at Oink’s sole discretion and that we have no obligation to provide you with customer support of any kind. We may provide you with customer support from time to time, at our sole discretion, provided that you have created an account and that you submit your customer support inquiries using such account.
9. Product Specifications; Pricing; Typographical Errors
We do our best to describe every product or service offered on this Service as accurately as possible. However, we are human, and therefore we do not warrant that product specifications, pricing, or other content on the Service is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications, Oink shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to cancellation, we will issue a credit to your account in the amount of the charge. Applicable Additional Terms may apply. If a product you purchased from Oink is not as described, your sole remedy is to return it in unused condition, complete and undamaged, in the original packaging to the Merchant in accordance with its respective terms and conditions.
10. Links By You To the Service
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Service, so long as: (a) the links only incorporate text, and do not use any Trademarks, (b) the links and the content on your website do not suggest any affiliation with Oink or cause any other confusion, and (c) the links and the content on your website do not portray Oink or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Oink. Oink reserves the right to suspend or prohibit linking to the Site for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
11.Linked-To Websites; Advertisements; Dealings with Third Parties
A.Third-Party Services; Advertisements . The Service may contain links to third-party sites that are not owned, controlled or operated by Oink, and the Service may also include links to third-party ads, tools, plug-ins and/or other content on the Service that link third-party sites (collectively, “Third-Party Services”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with Oink. This may include the ability to register or sign in to our Services using Facebook Connect or other third party tools, and to post content on third party sites and services using their plug-ins made available on our Services. We may also host our content, apps and tools on Third-Party Services. Oink may have no control over the content, operations, policies, terms, or other elements of Third-Party Services, and Oink does not assume any obligation to review any Third-Party Services. Oink does not endorse, approve, or sponsor any Third-Party Services, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, Oink is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such sites. Finally, Oink will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these Third-Party Services. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Third-Party Services. OINK DISCLAIMS ALL LIABILITY IN CONNECTION THEREWITH.
B. Dealings with Third Parties . Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Third-Party Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Oink disclaims all liability in connection therewith.
C. When checking out with Oink on Facebook, Facebook will include an additional fee on each transaction. This additional fee is adjusted based on the purchase price, but is a minimum of thirty-five cents ($0.35). This fee is not controlled by Oink, but by Facebook. Any transaction made through Facebook shall be governed by the Facebook terms of Service at https://www.facebook.com/legal/terms. Use of your Oink Account is subject to Oink’s Terms and Conditions located at http://www.oink.com/terms-of-service.
12. Wireless Features
A. Wireless Features. The Service may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service (the “Wireless Notifications ”), and download applications to your wireless Device (the “Wireless App”) (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features, for which you are responsible. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues. Account information and features may be limited when using the Wireless Features.
B. Terms of Wireless Features . You agree that some of the Wireless Features for which you are registered may send communications via such features or apps to your Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Service for Wireless Notifications, then you agree to notify Oink of any changes to your wireless contact information (including phone number) and update your accounts on the Service to reflect the changes. To stop any SMS text subscriptions from Oink at any time, send a text message with STOP, END or QUIT to the program's mobile short code. Alternatively you may also log into your Account and change your notification settings. Your Device must have text messaging capability to use any Wireless Notifications. To stop using other Wireless Features, you may need to update your Account settings and/or delete the Wireless App from your Device. By opting into any Wireless Features you represent that you are the owner of the Device and that you are at least eighteen years old. To contact us, you may send an email to email@example.com, or call 610-825-8805 or text HELP to the program’s mobile short code.
13. Dispute Resolution
Certain portions of this Section 13 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Oink agree that we intend that this Section 13 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 13 can only be amended by mutual agreement. Where arbitration is not permitted by the mandatory laws in your country of residence, or where the parties have not otherwise agreed to arbitration in accordance with applicable laws, the provisions of Section 14 shall apply to all relevant disputes between you and us.
A. First – Try To Resolve Disputes and Excluded Disputes . To the fullest extent permitted by applicable law, if any controversy, allegation, or claim arises out of or relates to the Service, the Content, your User-Generated Content, these Terms, or any applicable Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute ”), or to any of Oink’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 13(D)), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 13(A). Your notice to us must be sent to: Virtual Piggy, Inc., 1221 Hermosa Avenue, Suite 210, Hermosa Beach, CA 90254, Attention: Ashley Kent, Legal Counsel. For a period of sixty (60) days from the date of receipt of notice from the other party, Oink and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Oink to resolve the Dispute or Excluded Dispute on terms with respect to which you and Oink, in each of our sole discretion, are not comfortable.
B. Binding Arbitration . If we cannot resolve a Dispute as set forth in Section 13(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND OINK (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE SERVICE. The Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between Oink and you regarding these Terms (and any Additional Terms) and the Service. Oink and you agree, however, that California or federal law shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Oink regarding these Terms and the Service, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to California’s choice of law principles.
A Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Oink consent to in writing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Oink to pay a greater portion or all of such fees and costs in order for this Section 13 to be enforceable, then Oink will have the right to elect to pay the fees and costs and proceed to arbitration
C. Limited Time To File Claims . TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 13(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
D. Injunctive Relief . To the fullest extent permitted by applicable law, the foregoing provisions of this Section 13 will not apply to any legal action taken by Oink to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User-Generated Content and/or Oink’s intellectual property rights (including such Oink may claim that may be in dispute), Oink’s operations, and/or Oink’s products or services.
E. Small Claims Matters Are Excluded From Arbitration Requirement . Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Section 13(G).
F. No Class Action Matters . To the fullest extent permitted by applicable law, disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 13(B)(i) holds that this restriction is unconscionable or unenforceable, then our agreement in Section 13(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 13(G).
G. Federal and State Courts in Los Angeles . Except to the extent that arbitration is required in Section 13(B), and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Los Angeles County, California. Accordingly, you and Oink consent to the exclusive personal jurisdiction and venue of such courts for such matters.
14. Other Dispute Resolution Where Arbitration Is Not Available
This Section 14 applies to all users of the Service, if, and only to the extent that, the mandatory laws in your country of residence do not permit arbitration of Disputes in accordance with Section 13 or the parties have not otherwise agreed to arbitration if required by applicable law.
A. Section 14 Disputes . To the fullest extent permitted by applicable law, if any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the Service, the Content, these Terms, whether heretofore or hereafter arising or to any of Oink’s actual or alleged intellectual property rights (collectively, a “Section 14 Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Section 14 Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 14.A. Your notice to us must be sent to: Virtual Piggy, Inc., 1221 Hermosa Ave., Suite 210, Hermosa Beach, CA 90254, Attn: Ashley Kent, Legal Counsel. Subject to applicable law, for a period of sixty (60) days from the date of receipt of notice from the other party, Oink and you will engage in a dialogue in order to attempt to resolve the Section 14 Dispute, though nothing will require either you or Oink to resolve the Section 14 Dispute on terms with respect to which you and Oink, in each of our sole discretion, are not comfortable.
B. Jurisdiction . The parties agree that the state or federal courts in Los Angeles County, California shall have non-exclusive jurisdiction of any Section 14 Dispute, unless otherwise required by applicable laws of your jurisdiction of residence.
C. Governing Law . To the maximum extent permitted by the mandatory laws in your country of residence, these Terms and any Section 14 Dispute arising out of or in connection with it or its subject matter or formation (including non-contractual disputes), will be governed by, and construed in accordance with, the laws of the State of California, without regard to its conflicts of law provisions.
D. Limited Time to File Claims . TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A SECTION 14 DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 14.A) WITHIN ONE (1) YEAR AFTER DISCOVERY OF THE SECTION 14 DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
E. Injunctive Relief . The foregoing provisions of this Section 14 will not apply to any legal action taken by Oink to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User-Generated Content and/or Oink’s intellectual property rights (including such Oink may claim that may be in dispute), Oink’s operations, and/or Oink’s products or services.
15. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, Virtual Piggy, Inc. and its direct and indirect parents, subsidiaries, affiliates, and each of their respective officers, employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “ Oink Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
(a) the Service (including the Content and the User-Generated Content);
(b) the functions, features, or any other elements on, or made accessible through, the Service;
(c) any products, services, or instructions offered or referenced at or linked through the Service;
(d) security associated with the transmission of your User-Generated Content transmitted to Oink or via the Service;
(e) whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
(f) whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable;
(g) whether any defects to or errors on the Service will be repaired or corrected;
(h) whether your access to the Service will be uninterrupted;
(i) whether the Service will be available at any particular time or location; and
(j) whether your use of the Service is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN APPLICABLE ADDITIONAL TERMS PROVIDED BY A OINK PARTY, OINK PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable, and you may have additional rights.
16. LIMITATIONS OF OUR LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY VIRTUAL PIGGY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages of any kind, including without limitation loss of profits, that are directly or indirectly related to:
(a) the Service (including the Content and the User-Generated Content);
(b) your use of or inability to use the Service, or the performance of the Service;
(c) any action taken in connection with an investigation by Oink Parties or law enforcement authorities regarding your access to or use of the Service;
(d) any action taken in connection with copyright or other intellectual property owners or other rights owners;
(e) any errors or omissions in the Service’s technical operation; or
(f) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Oink Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you, and you may have additional rights.
EXCEPT AS MAY BE PROVIDED IN ANY APPLICABLE ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OINK PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID OINK IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A COURT OR TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY OINK OR A MANUFACTURER OF A PHYSICAL PRODUCT.
Residents of the European Union are entitled to the following exclusions to the disclaimers or limitation of liability: Nothing in these Terms shall operate to exclude or limit our liability for death or personal injury caused by negligence; fraud or fraudulent concealment; or any other liability which cannot be excluded or limited under applicable law.
17. Waiver of Injunctive Or Other Equitable Relief
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, USER-GENERATED CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY OINK (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF OINK.
18. Updates to Terms . These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). AS OUR SERVICE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SERVICE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR APPLICABLE ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF ADDITIONAL TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE ADDITIONAL TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted Terms and any applicable Additional Terms each time you use the Service (at least prior to each transaction or submission). The applicable Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously used the Service will continue to apply to such prior use and any specific term to which we previously committed to apply those Terms (if applicable) (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or applicable Additional Terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page, and the e-mail you associated with your Account for notices, all of which you agree are reasonable manners of providing you notice. You can reject any new, revised or applicable Additional Terms by discontinuing use of the Service and related services.
19. General Provisions
A. Oink’s Consent or Approval . As to any provision in these Terms or any applicable Additional Terms that grants Oink a right of consent or approval, or permits Oink to exercise a right in its “sole discretion,” Oink may exercise that right in its sole and absolute discretion. No Oink consent or approval may be deemed to have been granted by Oink without being in writing and signed by an officer of Oink.
B. Applicable Law . These Terms and any applicable Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of California, without regard to its conflicts of law provisions, unless the applicable laws of your jurisdiction of residence require that the laws of such jurisdiction govern, in which case the laws of such jurisdiction are to govern.
C. Indemnity . You agree to, and you hereby, defend, indemnify, and hold Oink Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Oink Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms or any applicable Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Oink Parties’ use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Oink Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Oink Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Oink Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Oink Party.
D. Operation of Service; Availability of Products and Services; International Issues . Oink controls and operates the Service from its U.S.-based offices in the U.S.A., and Oink makes no representation that the Service is appropriate or available for use beyond the U.S.A. If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Service may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Service.
E. Export Controls . Software related to or made available by the Service may be subject to export controls of the U.S.A. To the extent permissible under applicable domestic laws, no software from the Service may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoes (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all applicable trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions, including, without limitation, as set forth in subsections (i) – (iii) above.
F. Severability; Interpretation . If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the applicable Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the applicable Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any applicable Additional Terms, the word will be deemed to mean “including, without limitation”. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.
G. Communications . When you communicate with us electronically, such as via e-mail and text message, you consent to receive responsive communications from us electronically. We will try to promptly respond to all inquiries, but we are not obligated to do so. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
I. Assignment . Oink may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Oink.
J. No Waiver . Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Oink in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
K. U.S. Government Restricted Rights . If you are a U.S. government end user, then this provision applies to you. The Service provided in connection with these Terms has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227-7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer site” and/or “commercial computer site documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212 and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these Terms and shall be prohibited except to the extent expressly permitted by these Terms.
L. California Consumer Rights . Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.
M. Connectivity . You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.
20. Terms Applicable For Apple iOS.
If you are accessing or using the Service through an Apple Device, the following applicable Additional Terms and conditions are applicable to you and are incorporated into the Terms by this reference:
(i) To the extent that you are accessing the Service through an Apple Device, you acknowledge that these Terms are entered into between you and Oink and, that Apple, Inc. (“Apple”) is not a party to these Terms other than as third-party beneficiary as contemplated below.
(ii) The license granted to you in Section 1 of these Terms is subject to the permitted Usage Rules set forth in the App Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Service.
(iii) You acknowledge that Oink, and not Apple, is responsible for providing the Service and Content thereof.
(iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.
(v) To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
(vi) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Oink, Oink, and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Service fails to confirm to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vii) Further, you agree that if the Service, or your possession and use of the Service, infringes on a third party's intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
(ix) When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.]
Gift Card Terms
A. Certain electronic gift cards and/or electronic greeting cards may be viewed, selected and purchased through the Service (“Gift Card Products”). To purchase any Gift Card Products through the Service, subject to the Exceptions in Section B below, you must have a Primary Account or Sub Account, and if a Youth under thirteen (13), you must have a Sub Account associated with a Primary Account. When you or a Sub Account Holder have completed an order, within two (2) business days Oink will charge or debit the Payment Method associated with your Account (as further set forth in Section 5 of the Terms, will produce, or have produced the Gift Card Products, and will send them to the recipients specified by the purchaser. By submitting that information to us, you hereby agree that you authorize us and/or our Processor to charge and/or debit your Payment Method at our convenience but within thirty (30) days of authorization. Pricing for Gift Card Products, is set forth in the Service and is stated in United States Dollars, unless otherwise noted and fees may change from time to time. You agree to pay the price applicable (including any sales taxes and surcharges) as of the time your order is accepted. Oink will automatically bill or debit your Payment Method as part of the order process for such price. YOU, AND NOT OINK, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED OR DEBITED TO YOUR PAYMENT METHOD BY A THIRD PARTY. If Oink does not receive payment from your Payment Method, you agree to pay all amounts due upon demand by Oink or its agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the Gift Card Products. You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use or value-added taxes. Oink may automatically charge and/or withhold the applicable tax for orders to be delivered to addresses within and any states or localities that it deems is required in accordance with our order policy in effect at the time of purchase.
C. Lost, Damaged and/or Misdirected Gift Card Products. Please place and complete your order carefully. All purchases of Gift Card Products are strictly non-returnable, non-refundable, and non-exchangeable. Please pay extra attention to the recipient email address because you may not alter this after completing a transaction and Oink is not responsible for any misdirection. If you have any questions or problems with your order or the order has not been received within the expected timeframe, please contact us immediately at firstname.lastname@example.org or (855) 203-1747. Please include your order number in all communications for prompt service. All sales are final. There are no exceptions. Gift Card Products are not redeemable or exchangeable for cash.
Please allow up to two (2) business days for Gift Card Product delivery. The risk of loss and title for Gift Card Products pass to the purchaser upon our electronic transmission to the purchaser or recipient, whichever is applicable. Oink is not responsible if a Gift Card Product is lost, stolen, destroyed, misdirected or used without your permission. Oink is not responsible if any Gift Card Product is defaced, damaged or otherwise rendered unsuitable for redemption. If you have lost or misplaced your Gift Card, and the Gift Card balance has not been spent or changed from the original amount, please call (855) 203-1747 or e-mail us at email@example.com and, subject to verification and any applicable Merchant (as defined below) terms and conditions, we will email you another Gift Card.
Notwithstanding the foregoing, Oink must be notified of incorrect orders within thirty (30) days of receipt of the order. If Oink is not contacted within 30 days of the actual or expected date of receipt of an order, the order will be deemed to be satisfactory and accepted by you.
D. As set forth in Section 11 of the Terms, Oink has no control over, and no liability for, any participating merchants and/or issuers’ (collectively, “Merchants”) Gift Card Products, third party websites or other materials. As set forth in Section 11 of the Terms Oink has no control over the content and/or performance of any of the participating Merchants’ sites, third party sites, store-policies, partners or affiliates and their web sites. In addition, Oink makes no guarantees about the accuracy, currency, content, or quality of the information provided by such participating Merchants. Each Merchant’s Gift Card Products are subject to such Merchant’s terms and conditions as set forth in the product description and as may be further set forth on the Merchant’s Gift Card Products and/or their website, and Oink assumes no responsibility for any such third party terms, conditions and restrictions.
Order Acceptance Policy. Receipt of an electronic or other form of order confirmation does not signify Oink’s acceptance of your order, nor does it constitute confirmation of our offer to sell. Oink reserves the right at any time after receipt of your order to accept or decline your order for any reason. Oink further reserves the right any time after receipt of your order, without prior notice to you, to provide a Gift Card Product for less than the amount you ordered, subject to a corresponding price reduction. Your order will be deemed accepted by Oink upon our delivery of the Gift Card Product(s) that you have ordered. We may require additional verifications or information before accepting any order. Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the amount you ordered, your sole and exclusive remedy is either that: (a) Oink will issue a credit to your Payment Method in the amount charged or debited for the cancelled or reduced portion (if your Payment Method has already been charged for the order) or (b) we will not charge or debit your Payment Method for the cancelled portion of the order or the reduced amount. Do not assume that a cancellation or change of an order you have placed with Oink has been effected until you receive a confirmation from Oink. As stated above, you will be responsible for, and your Payment Method may be charged for, the payment of all fees associated with orders already processed or shipped before your cancellation/change request or a request to terminate your order or Account was received.
F. No Responsibility to Sell Mispriced Products or Services. Oink does its best to describe every Gift Card Product offered on this Site as accurately as possible. However, we are human, and therefore we do not warrant that specifications; applicable terms, conditions and restrictions; or pricing on the Service is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the Gift Card Products, Oink shall have the right to refuse or cancel any orders in its sole discretion. If we charged or debited your Payment Method prior to cancellation, we will issue a credit to your Payment Method in the amount of the charge or debit. Additional terms may apply.
G. Modifications to Prices or Billing Terms. The purchase of Gift Card Products through the Service is subject to availability. GIFT CARD PRODUCTS DISPLAYED ON THE SITE MAY NOT BE AVAILABLE AT ALL TIMES AND MAY BE SUBSTITUTED OR DISCONTINUED AT ANY TIME.
H. OINK AND ITS AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY GIFT CARD PRODUCTS SOLD, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT A GIFT CARD CODE IS UNUSABLE, YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH GIFT CARD, SUBJECT TO OUR VERIFICATION THEREOF AND ANY APPLICABLE MERCHANT TERMS AND CONDITIONS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
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