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TERMS OF USE

TERMS OF USE

Acceptance of Terms

These Terms of Use govern your use of the applications, games, and other services (collectively the “Service”) available on, or offered by, Birthdays (“Birthdays” or “we”) on the web, Facebook (“Social Networking Site”), or any mobile device. These Terms of Use apply to all users of the Service, including users who are also contributors of content, information and other materials to the Service.  Any access, browsing or use of the Service constitutes your agreement to follow and be bound by these Terms of Use without modification, and all other operating rules, policies and procedures that may be published from time to time by Birthdays.  If you do not agree to these Terms of Use, you are not permitted to access, browse or use the Service.  The Terms of Use are personal to you, and are not assignable, transferable or sub-licensable by you.

Changes to the Terms of Use

We reserve the right, at our discretion, to update or revise these Terms of Use at any time. We will post such changes to these Terms of Use, and these additional or revised terms will become part of the agreement.  Please check this Terms of Use document periodically for changes. Your continued use of the Service constitutes your binding acceptance of these Terms of Use, including any changes or modifications made by Birthdays as referenced above.

Using or Accessing the Birthdays Service

Affirmative action is required to use or access the Service. Your use or access of the Service, however, shall not impose any duty on Birthdays to provide you any particular service or access to any Service.

You agree that you (a) have provided true, accurate, current, and complete information to the Social Networking Site and Birthdays in connection with any use or access of the Service; and (b) will maintain and update this information to keep it true, accurate, current, and complete.  We reserve the right to terminate your access to the Service in the event we learn or believe any information provided may be false, inaccurate, not current, or incomplete.

If any unauthorized person obtains access to the Service as a result of any act or omission by you, you shall use your best efforts to ascertain the source and manner of acquisition and shall fully and promptly brief us. You shall otherwise cooperate and assist in any investigation relating to any such unauthorized access.

Service is made available only to users thirteen (13) years of age or older, consistent with the policies of the Social Networking Site and these Terms of Use. 

Birthdays's use of the information provided in connection with the Service or by the Social Networking Site will be used solely in connection with the operation of the Service and consistent with the Privacy Policy set forth below.

Content

Although the Service has been compiled in good faith, no representation is made as to the completeness or accuracy of the information it contains. The information contained on the Service may be incomplete, may contain errors, or become out-of-date. Birthdays makes no commitment and expressly disclaims any duty to update any of the content on the Service. Birthdays reserves the right to add, modify, or delete any information on the Service at any time.

Limitations on Your Use

You agree to abide by all applicable local, state, national, and international laws and regulations in using the Service, and not to use the Service for any purpose that is prohibited by the Terms of Use. You agree not: to (a) use Service for illegal purposes; (b) use Service in any manner which violates the rights of a third party, including without limitation intellectual property rights; (c) use the Service to post or otherwise communicate material which is unlawful, harassing, libelous, privacy invading, abusive, threatening, harmful, vulgar, pornographic, obscene, indecent, confidential, proprietary or otherwise objectionable, (d) use the Service for any commercial purpose; (e) post any links to any external Internet website that are obscene or pornographic or to post or otherwise communicate commercial advertisements, chain letters, pyramid schemes, encoded binary files, job offers or listings or personal ads; (f) use Service  to provide materials which contain viruses or other contaminating or destructive features; (g) impersonates any person or entity, including any employee or representative of a third party; (h) cheat or copy in any form with respect to any Services offered; or (h) create an account or provide any other information under false pretenses, with false or incomplete information, or to mislead others.

Additionally, you shall not:  (a) take any action that imposes or may impose (as determined by Birthdays in its sole discretion) an unreasonable or disproportionately large load on Birthdays’s (or its third party providers’) infrastructure; (b) interfere or attempt to interfere with the proper working of the Service or any activities conducted in connection with the Service; (c) bypass any measures Birthdays may use to prevent or restrict access to the Service; or (d) provide any information, including but not limited to email addresses or telephone numbers of friends, if you do not own or have permission to use.

The Service is provided only for your own personal use.

Your Agreement to User Conduct Rules and Regulations

Birthdays is not responsible for reviewing or authorizing content and materials freely posted in publicly accessible, interactive areas of the Service, such as Chat, Message Boards, and Profiles. Acceptance of Birthdays's Terms of Use constitutes your agreement to abide by any Conduct Rules or Regulations posted, as well as the restrictions and responsibilities outlined in these terms of use. You agree to take full responsibility and liability for the accuracy and appropriateness of any of your posted content, and any consequences that may arise from posting in public areas of the Service.

You may create, submit, post, display, transmit content or other material using the Service (“User Content”).   Birthdays reserves the right in its sole discretion to delete, move, or edit any User Content that it may determine, in its sole discretion, violates these Terms of Use or is otherwise unacceptable. Birthdays may delete, edit, or reject User Content at any time for any reason without notice to you.  In particular, Birthdays reserves the right to remove content at the request of a third party copyright or other intellectual property owner.  Any User Content you transmit or post using the Service will be treated as non-confidential and non-proprietary. 

You agree and warrant that your User Content is wholly original to you and you exclusively own all the rights to or have all rights to use your User Content.  You further agree that by using the Service, you grant Birthdays the right to convert, copy, display, edit, make derivative works, disclose, sell, sublicense, store, distribute, or otherwise use your User Content in any manner and in all forms or formats available now or in the future without any compensation to you or any other agreement. You represent and warrant that you are authorized to grant all rights set forth in the preceding sentences.

Birthdays will not be held liable for any damages of any kind, including, but not limited to, direct, indirect, incidental, punitive, and consequential damages (a) related to its use or rejection of any User Content; (b) arising from the use of the public posting areas of this Service or using the Service.; and (c) related to your viewing of any content using the Service that you may find offensive.

Indemnification

Your use of the Service constitutes your agreement to defend, indemnify, and hold harmless Birthdays and its affiliated entities, and their employees, contractors, officers, directors, agents and representatives, from any claim or demand, including reasonable attorneys' fees, arising out of your use or misuse of the Service or the use or misuse of contents of the Service by a third party even if using your password.  This Indemnification section of the Terms of Service survives termination of your account with the Service or your use of the Service.

Termination and Modification of the Service

These Terms of Use are effective until terminated. You agree that Birthdays may terminate your access to the Service at any time for any reason without prior notice or liability. Birthdays may change, suspend, modify or discontinue all or any aspect of the Service at any time, including the availability of any feature or game, without prior notice or liability.  If you wish to terminate your access to the Service, you may simply discontinue using the Service. 

Use of the Service on Mobile Devices

Use of the Service on mobile devices may prompt you to use services such as sending a SMS invite or message to a friend that will incur charges from your mobile carrier that will cost you additional money, since standard carrier rates may apply for your use of such features like SMS. In such cases, the Service will attempt to remind you prior to any messages being sent out of the possibility of additional charges. Your decision to use such services like SMS or email are not the responsibility of the Service and any such charges you may incur are not the responsibility of, and not reimbursable by, the Service.

In addition, any purchases made via in-app purchases on mobile devices are final and non-refundable.

Third Party Web Site Services, Links, Advertisements and Offers

The Service may contain links to other World Wide Web Internet sites. The Service also may utilize third party services, advertisements, offers and payment systems.  Birthdays is not responsible for these third party products, services or their contents. The inclusion of such a link does not imply endorsement of the Service or its contents or any association with its operators. Birthdays is not responsible for the accuracy, copyright compliance, legality, decency, or appropriateness of the content, nor the advertising, products, or other materials on such sites. Under no circumstances shall Birthdays be held responsible or liable, directly or indirectly, for any loss or damages caused or alleged to have been caused by use of or reliance on any content, goods, or services available from third parties. Any concerns regarding any third-party website should be directed to its respective site administrator or webmaster.

Limitations on Liability

Birthdays PROVIDES THE SERVICE "AS IS" AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR OTHERWISE IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS TO THE INFORMATION, CONTENT, GAMES OR OTHER MATERIALS MADE AVAILABLE USING THE SERVICE OR AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE.  Birthdays AND ITS AFFILIATES, AND EACH OF THEIR DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES DO NOT WARRANT THAT: (a) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (b) ANY DEFECTS OR ERRORS WILL BE CORRECTED: (c) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS.

YOU ACCEPT ALL RESPONSIBILITY FOR THE INFORMATION, CONTENT AND OTHER MATERIALS YOU POST OR OTHERWISE COMMUNICATE USING THE SERVICE, INCLUDING ALL SMS MESSAGES AND EMAILS SENT AND ANY CHARGES INCURRED. Birthdays SHALL HAVE NO LIABILITY FOR THE ACCURACY OR CONTENT OF THE INFORMATION CONTAINED IN OR THE GAMES ON THE SERVICE, OR FOR DELAYS OR OMISSIONS THEREIN. NOR SHALL Birthdays, ITS AFFILIATES AND EACH OF THEIR DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES, BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES. NOTWITHSTANDING THE ABOVE, YOU AGREE THAT THE MAXIMUM LIABILITY OF Birthdays IN CONNECTION WITH OR ARISING FROM ANY USE OF THE SERVICE, INCLUDING ANY APPLICATIONS OR GAMES, SHALL BE LIMITED TO $200 IN THE AGGREGATE PER USER.

SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, EXEMPLARY, PUNITIVE, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF Birthdays SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

Our Intellectual Property

You acknowledge and agree that all content, design elements, and materials available on this Service are protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws.  No materials from this Service may be copied, reproduced, modified, republished, uploaded, posted, transmitted or distributed in any form or for any means without our prior written permission.  Furthermore, you agree to not sell, license, rent, or create derivative works from such materials or content.  Systematic retrieval of content from the Service to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us is strictly prohibited.

All rights not expressly granted herein are reserved.  Any unauthorized use of the materials appearing on the Service may violate copyright, trademark and other applicable laws.

Except as provided below, Birthdays and its affiliates and licensors retain all right, title and interest in and to the Service, excluding your User Content ("Birthdays Intellectual Property"). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit the Birthdays Intellectual Property, in whole or in party, except as expressly permitted in these Terms of Use or with the prior written consent of Birthdays.  You agree to use the Service only in accordance with these Terms of Use.  You agree not to disassemble, decompile or reverse-engineer any software or other component of the Birthdays website.

Please be advised that any information related to the Service including but not limited to, game scores and player rankings, are the property of Birthdays by operation of these Terms of Use.  Birthdays reserves the right to display, modify, distribute, reproduce, use for promotional purposes, or delete any of this information at any time and for any reason without notice.  Further, as the sole owner of all such content, feedback, opinions, and strategies, Birthdays may elect to utilize such information and to make changes or improvements based on that information without any payment or consideration of any kind to any party who provides information.

Service Administration and Rules for Game Scoring, Virtual Currency, Virtual Goods and Other Virtual Materials

The Service may include the award or your purchase of points, scoring, virtual currency, virtual goods or others items during your participation in games or other programs (“Game Values”).  Game Values are not transferable or eligible for any type of in-kind or cash reimbursement.  Game Values have no in-kind or cash value and are solely for the purposes of the Service including any games.  If your account with the Service is terminated for any reason including if Birthdays terminates the game, your Game Values or any other feature of the Service will no longer exist and are void.  Birthdays may in its sole discretion provide for the transfer of Game Values or any other feature of the Service to another Birthdays game or application.

You have no right to transfer any Game Values except as specifically authorized within the Service under rules established by Birthdays for the Service.  You agree not to buy, sell or otherwise exchange compensation for Game Values except during your active use of the Service in authorized game or program transactions in accordance with specific game or applications rules.

Birthdays in its sole discretion and authority may modify, eliminate, change or otherwise use your Game Values or other features of the Service for any purpose without notice to you.  If we exercise this right, Birthdays is not obligated to compensate you in any manner and will not be liable for any form of damages for such actions.  

You purchase of Game Values or any other feature of the Service for use with the Service will not be refunded or exchanged for any reason.  Such purchases are final on initial purchase.

Disputes with Users of the Service

Birthdays is not obligated to investigate, monitor, mediate or resolve any dispute you may have with another user of the Service although we may undertake such action in its sole discretion.  In the event of a dispute with another user of the Service, you agree (a) to indemnify us from any liability and (b) that we will not be liable, for any type of damages or for any type of claim or demand arising out of or related to any dispute you may have with any other user of the Service.

International Use

Birthdays makes no representation that the Service is appropriate or available for use in locations outside the United States, and accessing the Service from jurisdictions where the Service is illegal in any way is prohibited.

Recognizing the global nature of the Internet, you agree to comply with all applicable local rules and regulations regarding your online conduct. The Service is controlled and operated by our service provider from offices within the United States. We make no representation that the content available at or through the Service or any other program or service offered on or through the Service is appropriate or available for use in other locations, and access to them from territories where the content may be illegal is prohibited. Those who choose to access the Service from other locations do so at their own initiative and risk. By using the Service, you expressly agree that any data you may submit will be collected and stored in servers located within the United States.

Relationship of You and Us When You Use Our Service

No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Use.  Neither party has any authority of any kind to bind the other in any respect. We reserve the right to tweak user flows, game plays, prices of items, etc as we see fit to create the best user experience. We may also discontinue support of an application or game at any time due to resource restrictions.

Jurisdiction and Contract Terms

These Terms of Use are governed by and construed in accordance with the laws of the State of California, excluding conflict of interest laws. You agree to submit to the personal jurisdiction of the courts of the State of California, and the City and County of San Francisco and Alameda County for any cause of action arising out of or relating to the Service, or these Terms of Use. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all previous written or oral agreements between the parties with respect to such subject matter. Birthdays may assign its rights under this Agreement without notice to you. You agree that any cause of action arising out of or relating to Birthdays’s web site must commence within one (1) year after the cause of action arose.