Effective Date: 01/01/2014
Lifetime Wishes, LLC (“Lifetime Wishes” or “LTW”) provides the www.lifetimewishes.com website and associated services, Content and Confidential Information (defined below) appearing thereon (collectively, the “Website”). This Terms of Service agreement (“Agreement”) sets forth the conditions that all users of the Website agree to be bound and sets forth a legally binding agreement between you (the “User” or “You”) and Lifetime Wishes, a Delaware limited liability company, regarding the Website. The Website also provides access to certain Third Party Content as discussed below.
ACCEPTANCE OF TERMS OF SERVICE
YOU UNDERSTAND THAT YOU HAVE A DUTY TO READ THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT BY CHECKING THE “I HAVE READ AND AGREE TO THE LIFETIME WISHES TERMS OF SERVICE” BOX, OR BY OTHERWISE ACCESSING THE WEBSITE, YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT CONTAINS INFORMATION ABOUT YOUR RIGHTS, REMEDIES, AND DUTIES. YOU ARE PROHIBITED FROM USING THE WEBSITE IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT.
Lifetime Wishes retains the right to change the terms of this Agreement at any time and in its sole discretion. Should the terms of this Agreement change, the Effective Date of this Agreement will change as well. Your continued use of the Website after a change in the Effective Date of this Agreement will constitute your manifestation of assent to any changes.
You warrant that You are of sound mind and competent to agree to the terms of this Agreement, and that your use of the Website does not violate any law, regulation, ordinance, statute, or treaty that is applicable to individuals located in the jurisdiction in which You live. You further warrant that You are not prohibited from entering into this Agreement by the terms of any preexisting agreement. If You are accessing the Website on behalf of a governmental organization, non-governmental organization, or business entity, You warrant that You are an authorized agent of said organization or entity and that You have the authority to bind said organization or entity to the terms of this Agreement.
You further warrant and agree that (1) You are the person accessing the Website; (2) all information that You provide to Lifetime Wishes or the Website is true, accurate and correct; (3) You will not use any robot, spider or other automated device, or manual process to monitor or copy, in whole or in part, the Website or any third party content or information available on or through the Website; and (4) You will not use any device, software or other means to interfere or attempt to interfere with the proper working of the Website, or that may damage, harm or harass Lifetime Wishes, its employees, Users, or any system, data, personal information or Confidential Information contained on the Website.
COPYRIGHT POLICY AND LIABILITY FOR CONTENT
You acknowledge and agree that the Website is an interactive computer service as those terms are defined under Section 230 of the Communications Decency Act. Lifetime Wishes will not be considered a speaker or publisher of any information provided by a third party to the Website, regardless of whether Lifetime Wishes chooses to remove, suspend, change, or amend such information.
The Website is copyright © 2015-2016 Lifetime Wishes. Lifetime Wishes will use reasonable efforts to respond to all duly issued notifications of alleged copyright infringement regarding the Website that are sent to Lifetimes Wishes’ designated copyright agent pursuant to 17 U.S.C. § 512.
All notices alleging copyright infringement must contain the following:
- The physical or electronic signature of a person authorized to act on behalf of the copyright owner;
- Specific identification of the copyrighted works alleged to have been infringed;
- The location of the copyrighted works on the Website;
- The contact information of the notifying person(s) or entity, such as an address, telephone number, fax number, or email address;
- A statement that the notifying person(s) or entity has a good faith belief that the use of the allegedly infringing content is not authorized by the copyright owner, its agent, or the law; and
- A statement, under penalty of perjury, that the information in the notification is accurate and that the notifying person(s) or entity is authorized to act on behalf of the copyright owner.
Upon receipt of a notice of infringement, Lifetime Wishes will undertake reasonable steps to contact the poster of the allegedly infringing content so that the poster may issue a counter-notification. All counter-notifications must contain the following:
- Identification of the specific materials that have been removed from the Website;
- The contact information of the notifying person(s) or entity, such as an address, telephone, fax number, or email address;
- A statement, under penalty of perjury, that the notifying person(s) or entity has a good faith belief that the content was removed as a result of mistake or misidentification;
- A statement that the notifying person(s) or entity has consent to the jurisdiction of the federal district court in which the notifying person(s) or entity address is located or, if outside of the United States, that the notifying person(s) or entity has consent to the jurisdiction of the federal courts where your service provider is located;
- A statement that the notifying person(s) or entity will accept service of process from the notified party; and
- The notifying person’s(s) or entity’s physical or electronic signature.
All notices of infringement and counter-notifications may be sent to email@example.com.
Lifetime Wishes will promptly terminate without notice the accounts of users that are determined by Lifetime Wishes to be “repeat infringers,” i.e., the user has been notified of infringing activity more than twice.
LIFETIME WISHES ACCOUNT
Lifetime Wishes may allow You to register an account for continued services (“Registered Account”), which may provide You with access to additional features of the Website. You understand that You bear the ultimate responsibility for any and all access to your Registered Account, whether authorized or unauthorized. You agree to hold harmless and indemnify Lifetime Wishes for any damages that may arise out of or in relation to the use of your Registered Account. You also understand and agree that You bear the ultimate responsibility for backing up any User Generated Content that You submit to Lifetime Wishes or the Website.
Lifetime Wishes may provide an online tool permitting You to designate an individual (an “executor”) to access Your Registered Account after Your death. All Registered Accounts, these Terms of Service, and the Lifetime Wishes Website and associated services, are subject to the Revised Uniform Fiduciary Access to Digital Assets Act, California Probate Code § 870 et seq.
Lifetime Wishes is a service provider granting You access to the Website . Lifetime Wishes charges certain fees when purchasing services or Third Party Content from Lifetime Wishes. All payments for memberships, products, services, information, Third Party Content or otherwise, offered through the Website are non-refundable unless explicitly stated otherwise. All memberships, products, services, and information purchased through the Website are subject to the same terms and conditions as the Website, including, but not limited to, the same license terms. Additionally, the purchase of Third Party Content through the Website are subject to the terms and conditions of such third parties. You hereby authorize Lifetime Wishes’ payment processing agent to charge your credit card (or other approved payment facility). Lifetime Wishes may automatically bill your payment method each year on the calendar day corresponding to the commencement of your paying membership to the Website’s services. In the event your membership to the Website’s services began on a day not contained in a given month, Lifetime Wishes may bill your payment method on a day in the applicable month or such other day as Lifetime Wishes deems appropriate. Lifetime Wishes may pre-authorize your payment method in anticipation of membership or service-related charges. Additionally, in the event You do not cancel your service prior to renewal, Lifetime Wishes may charge your payment method automatically for the purposes of renewing your membership to the Website’s services. You further agree to pay all fees and charges on time, and Lifetime Wishes may terminate or disable your access to the Website or your Account if You fail to pay any amount owing to Lifetime Wishes when due. You agree that You will pay all costs of collection, including legal fees, incurred by Lifetime Wishes.
You agree to pay all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with your use of the Website. All costs and fees are quoted and payable in United States Dollars, and You acknowledge and agree that Lifetime Wishes is not responsible for any foreign transaction fees or other fees charged to You by your financial institution or Lifetime Wishes’ payment processor. You agree that You will not initiate any chargebacks to Lifetime Wishes unless otherwise authorized by Lifetime Wishes in writing. You understand and agree that You will be responsible and required to pay for any costs associated with any chargebacks that You have initiated against Lifetime Wishes.
In the event You dispute the amount or validity of any payments made under this Agreement, You must notify Lifetime Wishes within ten (10) days of any such dispute. You understand that your failure to notify Lifetime Wishes of any dispute within ten (10) days will constitute your express waiver of any claims related to the disputed payment.
OWNERSHIP OF WEBSITE CONTENT AND PROPRIETARY RIGHTS
Lifetime Wishes owns or has licensed rights to the Website and all of its Content, including but not limited to its text, software, scripts, graphics, photos, videos, files, images, sounds, selection and arrangement, look and feel, and interactive features.
Other than Third Party Content or proprietary rights licensed from third parties, Lifetime Wishes is the owner of all intellectual property rights in the Website and all information, content, text, graphics, design, compilation, selection and arrangement of elements, organization, software, and other content that make up, appear on, or are accessible via the Website and/or the Website, including without limitation all copyrighted works, patents, trademarks, service marks, trade dress and trade names (the “Content”). You acknowledge that certain Content available on the Website is protected by copyright laws and treaties around the world, and trademark, patent, moral rights or other intellectual property rights of Lifetime Wishes or its licensors. Except as expressly provided herein, nothing within the Website or its Content shall be construed as conferring any right or license to You under any of Lifetime Wishes’ or its licensors’ intellectual property rights, whether by estoppel, implication, waiver or otherwise. All rights not expressly granted in this Agreement are expressly reserved to Lifetime Wishes.
Except for the User Generated Content that You provide, the Website and its associated Content and Third Party Content, may not be used, modified, copied, dissected, cropped, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold or offered for sale, in any form or by any means, in whole or in part, without the prior written consent of Lifetime Wishes.
Lifetime Wishes’ trademarks, service marks, design marks, trade names, and logos including but not limited to LIFETIME WISHES™; NO LOVED ONES LEFT BEHIND™ and the Dandelion Logo™, are registered or common law trademarks, service marks, design marks, trade names, or logos under the laws of the United States. You understand and agree that You may not use the trademarks, service marks, designs, or logos of Lifetime Wishes, or any colorable imitation thereof, as an indicator of source, as a part of a domain name, or in any way that is likely to cause confusion, or to suggest an affiliation with Lifetime Wishes, or to unfairly compete with Lifetime Wishes without the prior written consent of Lifetime Wishes. You also acknowledge that technology embodied in the Website is the subject of a pending patent application.
AGREEMENT TO MAINTAIN CONFIDENTIALITY
You recognize that in viewing the Website and its Content that You will have access to Confidential Information that is protected from unauthorized use and disclosure. “Confidential Information” means and refers to the any information, technical data or know-how, including, but not limited to, that which relates to research, products, services, customers, markets, software, hardware, systems, developments, inventions, processes, designs, drawings, engineering, trade secrets, marketing or finances owned by or relating to Lifetime Wishes or the Website, that is non-public or not generally known.
You agree that You will not directly or indirectly use, copy, reproduce, distribute, alter, reverse engineer, modify, create derivative works, broadcast or publicly display any Confidential Information without the prior express written consent of Lifetime Wishes. In addition, You agree to hold the Confidential Information in strict confidence, to use all reasonable precautions to prevent the unauthorized disclosure of the Confidential Information by any person or entity, and not to use any Confidential Information for any purpose other than your viewing of the Website and its Content for the sole purpose of using the Website in accordance with the terms of this Agreement.
You acknowledge and agree that the unauthorized use or disclosure of the Confidential Information would cause irreparable harm to Lifetime Wishes. Accordingly, You agree that Lifetime Wishes will have a right to obtain an immediate injunction against any breach or threatened breach of your confidentiality obligations under this Agreement, as well as the right to pursue any and all other rights and remedies available at law or in equity for such a breach. Your confidentiality obligations under this Agreement will remain in effect in perpetuity, or until such time as the Confidential Information, or any part thereof, becomes public through no fault or action taken by You, or any person or entity at your request or on your behalf.
Lifetime Wishes hereby grants You a limited, revocable, non-transferable, non-exclusive, non-sublicensable license to use the Website solely for the uses contemplated by this Agreement. Any use of the Website outside of the uses expressly stated in this Agreement is prohibited. Specifically, You are expressly prohibited from republishing, framing, modifying, reproducing, downloading, dissecting, cropping, transmitting, selling, incorporating, making derivative works of, or otherwise using the Website or its associated Content or Third Party Content without the prior written consent of LTW. You are expressly prohibited from using the Website or its Content or Third Party Content for pornographic, defamatory, or other unlawful purposes, using the Website or its Content or Third Party Content in electronic templates used to create electronic or printed products, using the Website or its Content or Third Party Content in physical or digital retail products, such as e-cards, calendars, posters, or screensavers, using the Website or its associated Content or Third Party Content for the purpose of enabling file-sharing of any image files contained therein, or using the Website and its associated Content or Third Party Content in logos, trademarks, service marks, or any other branding or identifiers. You are also expressly prohibited from reverse engineering, decompiling, or disassembling the Website or its Content or Third Party Content, removing any metadata associated with the Website or its Content or Third Party Content, enabling the download of the Website’s Content or Third Party Content on a stand-alone basis, and using any robots, data mining, framing, scraping, hacking, or other data gathering or extraction methods on the Website or its Content or Third Party Content. You agree that You will not make any derivative works of the Website or delete or modify the Website content in any way, including without limitation the removal of any copyright or trademark notification information.
You agree and warrant that You will not use the Website for commercial use without the written consent of Lifetime Wishes. These prohibited commercial uses include but are not limited to the sale of the Website’s Content or Third Party Content, use of the Website’s Content or Third Party Content for the purpose of gaining subscription or advertising revenue, and the use of the Website’s Content or Third Party Content to displace the market for Lifetime Wishes.
You agree that the limited license granted to You will automatically terminate upon breach of any of the terms of this Agreement. Lifetime Wishes reserves the right to terminate your use of the Website, and your Registered Account, and delete any User Generated Content You may have submitted, at any time and in its sole discretion, for any reason including for a breach of this Agreement.
USER GENERATED CONTENT
You hereby provide Lifetime Wishes with an irrevocable, sublicensable, worldwide, perpetual, royalty-free, and non-exclusive license to use any content that You submit to the Website, including but not limited to text, photographs, videos, drawings, or other media files to be used for the purposes of the Website (“User Generated Content”). The purposes of the Website include but are not limited to the uploading, sharing, and consumption and/or storage of digital media files.
You agree and understand that You are giving Lifetime Wishes permission to publish, modify, reproduce, distribute, destroy, or otherwise utilize your User Generated Content for the purposes of the Website. You explicitly agree to waive all moral rights in your User Generated Content, whether or not such moral rights have been asserted anywhere in the world.
You warrant and agree that any User Generated Content that You submit to the Website will not violate or infringe upon the rights of third parties, including patent, copyright, trademark, privacy, publicity, or other personal or proprietary rights. You warrant and agree that any User Generated Content You submit to the Website will not contain defamatory material or any other unlawful material. Lifetime Wishes retains the right to terminate your access to the Website and to delete your Registered Account without notice and in its absolute and sole discretion, including but not limited to for violating the rights of a third party or for defamation of a third party.
You agree and understand that it is your sole responsibility to backup any User Generated Content that You submit to the Website.
You agree that if You provide any ideas, feedback, and/or proposals (“feedback”) to Lifetime Wishes regarding the Website or the associated services, such feedback is not confidential and not proprietary, and You authorize Lifetime Wishes to use that feedback without restriction and without any compensation to You. Accordingly, you hereby grant to Lifetime Wishes an irrevocable, sublicensable, worldwide, perpetual, royalty-free and nonexclusive license to use such feedback in any manner and for any purpose.
Any User Generated Content directed to a user who is associated with a Lifetime Wishes Account may be directed to be disclosed to a designated recipient upon the user’s death using the online tool provided by Lifetime Wishes for making such a designation.
RIGHT TO LIKENESS AND PUBLICITY
You hereby irrevocably grant Lifetime Wishes permission, as well as a world wide, non-exclusive, sublicensable, and perpetual license, to use the your voice, image and likeness in any photograph, video, website, audio-recording, and in any and all of its Website services and for the purpose of providing You the Website’s services. You explicitly waive any right to assert that Lifetime Wishes’ use of your likeness or publicity in your own voice, image, and likeness for the purposes of providing the Website’s services is infringing or unlawful. This waiver of your rights to your likeness and publicity extends to any product or service purchased through the Website that feature your voice, image, or likeness.
THIRD-PARTY CONTENT/INTERMEDIARY LIABILITY
You understand and agree that Lifetime Wishes is an interactive service provider as defined in Sect. 230 of the Communications Decency Act. Lifetime Wishes cannot be held liable or responsible for websites that Lifetime Wishes does not control. Lifetime Wishes will not be liable for content provided by third parties or the content of third party websites linked to or through the Website (collectively, “Third Party Content”). You agree to hold Lifetime Wishes harmless from any and all liability arising out of content submitted to the Website or out of your use of third party websites.
The Website provides access to Third Party Content (still images and video) from Getty Images (US), Inc. (“Licensed Material”), which You may access, select, and download for purposes of incorporating such Licensed Material (and other media) into peer-to-peer video and/or visual mail messages which may have accompanying text and/or audio for personal use according to the terms of this Agreement. Prior to any access to the Licensed Material, You must agree to the terms and conditions set forth in the Getty Images North America Wholesale PPI License Agreement and the standard terms and conditions found at http://www.gettyimages.com/connectterms.
Lifetime Wishes has no duty to monitor content submitted to the Website. You agree and understand that Lifetime Wishes may, in its sole discretion, decide to refuse, monitor, edit, modify, or delete any content submitted to the Website without notice to the submitting party, for any reason including, but not limited to, finding the submitted content to be offensive, harmful, or threatening to the safety of others.
You understand and agree that Lifetime Wishes’ provision of the Website does not imply its approval or endorsement of any content submitted to the Website or the content of third party websites linked through the Website. You acknowledge and agree that You have an obligation to report all inappropriate behavior and/or content to Lifetime Wishes immediately.
When you purchase GettyImages Licensed Material (“Licensed Material”) from LifetimeWishes.com, you are granted a one-year license to use the Licensed Material in unlimited wishes.
* Purchased Licensed Material in wishes created prior to the one-year license expiration will remain visible within wishes in perpetuity.
* The purchased Licensed Material will be stored in your media library for one year from date of purchase.
* After the one-year license expires, you will no longer have access to use the Licensed Material in NEW wishes moving forward, unless you re-purchase the Licensed Material for another one-year term.
Upon registering as a member of LifetimeWishes.com, you agreed to terms and conditions that require you to use GettyImages Licensed Material solely in a manner consistent with the rights and restrictions in the Lifetime Wishes Terms of Service Agreement. Those terms and conditions are expressly incorporated herein and include, but are not limited to:
* Licensed Material may only be used in End User Works created via LifetimeWishes.com Website, for display solely in digital form.
* You may not sell, modify, re-use, re-sell, distribute, display, reproduce or make any other use of Licensed Material.
* No ownership or copyrights to Licensed Material are granted or transferred to You.
Licensed Material may not be used:
* on a stand-alone basis with no other content;
* for pornographic, defamatory or other unlawful purposes;
* in electronic templates used to create electronic or printed products;
* except as provided herein, in physical or digital retail products, such
as calendars, posters, or screensavers;* for the purpose of enabling file-sharing of the image file; or
* in logos, trademarks, services marks or any other branding or identifiers.
If Licensed Material featuring an individual(s) is used in connection with a sensitive, unflattering or controversial subject, You must include a statement that the image is used for illustrative purposes only and the individual is a model.
You may not activate the “right-click” function with regard to Licensed Material, remove any metadata in Licensed Material, circumvent any digital rights management features, or reverse engineer, decompile, or disassemble the Lifetime Wishes Website to enable the download or use Licensed Material on a stand-alone basis.
LIMITATION OF LIABILITY
THE WEBSITE IS OFFERED ON AN AS-IS BASIS. YOU UNDERSTAND AND AGREE THAT LIFETIME WISHES MAKES NO WARRANTIES OF ANY KIND CONCERNING THE WEBSITE, INCLUDING BUT NOT LIMITED TO EXPRESS WARRANTIES, IMPLIED WARRANTIES, STATUTORY WARRANTIES, WARRANTIES FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OR ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE.
SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, THIS EXCLUSION MAY NOT APPLY TO YOU AND YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY TO DETERMINE YOUR RIGHTS AND OBLIGATIONS.
YOU UNDERSTAND AND AGREE THAT LIFETIME WISHES IS NOT RESPONSIBLE FOR ANY USER GENERATED CONTENT, USER OF THE WEBSITE’S CONDUCT, THIRD PARTY ACTIONS, OR ANY CONTENT POSTED BY A THIRD PARTY.
LIFETIME WISHES ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DESTRUCTION OF IDENTITY, UNAUTHORIZED ACCESS TO A REGISTERED ACCOUNT, OR ALTERATION THEREOF.
YOU UNDERSTAND AND AGREE THAT LIFETIME WISHES WILL NOT BE HELD LIABLE TO YOU FOR ANY CLAIMS, DAMAGES, PENALTIES, AWARDS, OR JUDGMENTS THAT ARISE OUT OF OR IN RELATION TO YOUR USE OF THE WEBSITE, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, EXEMPLARY DAMAGES, SPECIAL DAMAGES, OR PUNITIVE DAMAGES. YOU UNDERSTAND AND AGREE THAT LIFETIME WISHES WILL NOT BE HELD LIABLE TO YOU FOR ANY AMOUNT IN EXCESS OF THE AMOUNT THAT YOU PAID TO USE THE WEBSITE, AND IN NO CASE WILL THIS AMOUNT EXCEED $1,000. IF YOU DID NOT PAY TO ACCESS THE WEBSITE, YOU UNDERSTAND AND AGREE THAT YOUR REMEDIES WILL BE LIMITED TO INJUNCTIVE RELIEF ONLY UNLESS OTHERWISE PERMITTED BY LAW.
Lifetime Wishes reserves the right to discontinue the Website at any time, for any reason with or without notice.
You agree that You will hold harmless, defend, and indemnify Lifetime Wishes, including its owners, members, employees, agents, affiliates, directors, officers, attorneys, and board members, from and against all claims, damages, liabilities, penalties, costs, and judgments, including attorneys’ fees, that arise out of or in connection with your use of the Website, your violation of a term or provision of this Agreement, or your violation of the rights of a third party. You agree that your obligation to hold harmless and indemnify Lifetime Wishes will survive the termination or failure of this Agreement and your use of the Website. Your obligation to defend Lifetime Wishes under the terms of this Agreement does not provide You with the right or ability to control Lifetime Wishes’ defense, and Lifetime Wishes reserves the right to control its defense and choose its counsel.
DELEGATION OF DUTIES
Lifetime Wishes reserves the right to delegate any of its duties under this Agreement to any other person, entity, or subcontractor.
DELEGATION OF RIGHTS
Under no circumstances are You permitted to assign or otherwise transfer the rights provided to You by this Agreement.
Failure of Lifetime Wishes to seek relief for your breach of any duty under this Agreement will not waive the right of Lifetime Wishes to seek relief for any subsequent breach.
DISPUTES AND CONTROLLING LAW
You agree that, for all legal and non-legal purposes, the Website is located in the State of California. You agree that the Website is a passive website and that the Website does not give rise to personal jurisdiction over Lifetime Wishes in jurisdictions other than California. This Agreement will be interpreted under and governed by the laws and legal principles of the State of California, without regard to conflicts of laws principles or statutes. Any dispute arising out of or in connection with this Agreement will be decided exclusively by, and venue will exclusively reside in, the federal and/or state courts of Los Angeles County, California.
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR IN RELATION TO THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
If, for any reason, any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall remain valid and unimpaired and will continue in force and effect.
Lifetime Wishes may assign its rights and obligations under these Terms of Service to any person or entity at its sole discretion. Additionally, Lifetime Wishes may assign its rights and obligations under these Terms of Service to any third party in connection with a merger, acquisition, sale of assets, by operation of law, or otherwise.