PLEASE READ THE FOLLOWING CAREFULLY BEFORE DOWNLOADING AND/OR USING THE APP.
By clicking the “accept” or “ok” button, or downloading, installing and/or using the Happy B’day! mobile software application (together with its Content, Marks, tools and services, the “App“) you expressly acknowledge and agree that you are entering into a legal agreement with Happy B’day! (“Happy B’day!“, “we“, “us” or “our“), and have understood and agree to comply with, and be legally bound by, the terms and conditions of this End User License Agreement (“Agreement“). You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. If you do not agree to be bound by this Agreement please do not download, install and/or use the App.
1. Ability to Accept. The App is only intended for individuals aged thirteen (13) years or older. If you are under 13 years please do not download or use the App. If you are between 13 and 18 years of age, then you must review this Agreement with you parent or guardian before downloading or using the App to make sure that you and your parent or guardian understand its terms and conditions and agree to them.
2. License. Subject to the terms and conditions of this Agreement, Happy B’day! hereby grants you a personal, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable license (“License“) to: (i) install and use the App on a mobile telephone, device or tablet (each a ” Device“) that you own or control; and (ii) access and use the App on that Device in accordance with this Agreement and any applicable Usage Rules (defined below).
3. Usages Rules. If you are downloading the App from a third party mobile device platform or service provider (“Distributor“), please be aware that the Distributor may have established usage rules which also govern your use of the App (“Usage Rules“). We specifically refer to the Usage Rules of certain Distributors below in the section entitled “Distributor Requirements and Usage Rules”, but other Usage Rules may be applicable depending on where the App has been downloaded from. You acknowledge that, prior to downloading the App from a Distributor, you have had the opportunity to review and understand, and will comply with, its Usage Rules. The Usage Rules that are applicable to your use of the App are incorporated into this Agreement by this reference. You represent that you are not prohibited by any applicable Usage Rules and/or applicable law from using the App; if you are unable to make such a representation you are prohibited from downloading and/or using the App.
4. License Restrictions. You agree not to, and shall not permit any third party to: (i) sublicense, redistribute, lease, lend or rent the App; (ii) except as permitted herein, make the App available over a network where it could be used by multiple devices at the same time; (iii) except as permitted herein or by applicable law, disassemble, reverse engineer, decompile, decrypt, or attempt to derive the source code of the App; (iv) copy (except for back-up purposes), improve, modify, or create derivative works of the App or any part thereof; (v) circumvent, disable or otherwise interfere with security-related features of the App or features that prevent or restrict use or copying of any Content (defined below) or that enforce limitations on use of the App; (vi) use the App to transmit any Content which contains software viruses, or other harmful computer code, files or programs; (vii) use or launch any automated system (including without limitation, “robots” and “spiders”) in connection with, or to access, the App; (viii) use the App to breach a third party’s privacy rights; (ix) use the communications systems provided by the App to send unauthorized and/or unsolicited commercial communications; (x) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in or displayed on or via the App; (xi) use the Happy B’day! name, logo or trademarks without our prior written consent; and/or (xii) use the App to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches this Agreement.
5. Your Use of the App in a Vehicle. If you are using the App in a vehicle, you agree to: (i) comply with all applicable traffic laws; and (ii) subject to the foregoing, if you are the driver, not to use the App unless your vehicle is stationary and legally parked.
6. Intellectual Property Rights.
6.1. The App is licensed, and not sold, to you under this Agreement and you acknowledge that Happy B’day! and its licensors retain all title, ownership rights and Intellectual Property Rights (defined below) in and to the App (and its related software). All references in this Agreement to the App include: (i) the Content and Marks (defined below), (ii) its software, including the source and object code therein; and (iii) its tools and services. We reserve all rights not expressly granted herein to the App. “Intellectual Property Rights” means any and all rights, titles and interests in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, whether foreign or domestic.
6.2. The content on the App, including without limitation, the text, information, documents, descriptions, products, software, graphics, photos, sounds, videos, interactive features, and services (collectively, the “Content“) and the trademarks, service marks and logos contained therein (” Marks“), are the property of Happy B’day! and/or its licensors and may be protected by applicable copyright or other intellectual property laws and treaties. Content on the App is provided to you “as is” and solely for your personal use and may not be used, copied, modified, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without Happy B’day!’s prior written consent. If you download or print a copy of the Content you must retain all copyright and other proprietary notices contained therein. “Happy B’day!”, the Happy B’day! logo, and other marks are Marks of Happy B’day! or its affiliates. All other trademarks, service marks, and logos used on the App are the trademarks, service marks, or logos of their respective owners.
6.3. Happy B’day! and you acknowledge that in the event of any third party claim that the App or your possession and use of the App infringes that third party’s Intellectual Property Rights, Happy B’day!, and not the applicable Distributor, shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim.
6.4. Portions of the App include third party software that may be subject to the terms and conditions imposed by the licensors of that third party software (“Third Party Terms“). A list of the third party software and related Third Party Terms is available at www.happybdayapp.com/open-source-compliance. If there is a conflict between any Third Party Terms and the terms of this Agreement, the Third Party Terms shall prevail in connection with the related third party software.
7. b’day wishes.
7.1. The App (i) permits you to send or post messages and greetings (which may include Content) to your friends and contacts (” b’day wish(es)“), and (ii) provides you with different methods for doing so. Such methods may include sending a b’day wish to your friend’s email account and/or posting a b’day wish to a public part of a Third Party Site (defined below). Depending on your chosen method for sending or posting a b’day wish, you acknowledge that it may be available to one or many recipients. Please be aware that if you choose to post a b’day wish to a Third Party Site, then your post may include a link which allows the recipients of that post, as well as any third party that clicks on the link, to view your b’day wish on a webpage of our website at www.happybdayapp.com (together with its sub-domains, the ” Site“).
7.3. You agree not to send a b’day wish that: (i) is unfair or deceptive under the consumer protection laws of any jurisdiction; (ii) is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner or licensee of such rights; (iii) creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement; (iv) impersonates another person; (v) is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise dishonest, inaccurate, inappropriate, malicious or fraudulent; (vi) involves theft or terrorism; (vii) constitutes an unauthorized commercial communication; (viii) contains the contact information or any personally identifiable information of any third party unless you have first obtained the express consent of said third party to include their contact information or personally identifiable information in your b’day wish; and/or (ix) breaches this Agreement.
9. Disclosure . We reserve the right to access, read, preserve, and disclose any information that we obtain in connection with the App as we reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, (ii) enforce this Agreement, including investigation of potential violations thereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to your user support requests, or (v) protect the rights, property or safety of Happy B’day!, its users or the public.
11. Information Description. We attempt to be as accurate as possible. However, we cannot and do not warrant that the Content available on the App is accurate, complete, reliable, current, or error-free. We reserve the right to make changes in or to the Content, or any part thereof, in our sole judgment, without the requirement of giving any notice prior to or after making such changes to the Content.
12.1. You agree to pay the License fee, if any, prior to downloading the App. Any such fee will be displayed on the App or on the Distributor website at the time of downloading. You may also have the option to purchase additional App features by using the tools that we make available in the App. The prices for any such features are displayed in the App. Any of the foregoing payments shall be done through the Distributor that you originally downloaded the App from. You agree: (i) to only provide valid and current information for yourself; (ii) that we may use the services of Distributors to process transactions on our behalf; and (iii) except as expressly set forth herein (or any applicable Usage Rules), all purchases and subscriptions are final and non-refundable.
12.2. Your use of the App may require and utilize internet connection or data access. To the extent that any such third party service provider or carrier charges for internet or data usage are applicable, you agree to be solely responsible for those charges. In addition, if you choose to send an MMS or SMS through the App, then you understand and agree that you may be charged your telecommunications carrier’s messaging, data and other rates and fees for doing so.
13. Share With Your Friends Service. The App includes an invitation service that enables you to invite your friends and contacts to download and use Happy B’day! (the ” Share With Your Friends Service“). If you choose to participate in the Share With Your Friends Service, you acknowledge and agree: (i) to only send invitations to your friends and contacts that you know; (ii) not to misrepresent your relationship with Happy B’day! or make any warranty or representation on behalf of Happy B’day!; and (iii) to comply at all times with this Agreement and applicable law.
14. Warranty Disclaimers.
THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. HAPPY B’DAY! DOES NOT WARRANT THAT THE APP WILL OPERATE ERROR-FREE, THAT THE APP IS FREE OF VIRUSES OR OTHER HARMFUL CODE or that HAPPY B’DAY! will correct any errors in the APP. YOU AGREE THAT HAPPY B’DAY! WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES, HARM, DAMAGE, OR LOSS TO YOU OR ANY THIRD PARTY, WHETHER WITHIN OR WITHOUT THE SCOPE OF THE APP’S INTENDED OR CONVENTIONAL PURPOSE, THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING, WITHOUT LIMITATION, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS, OR IN CONNECTION WITH ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS. YOUR USE OF THE APP IS ENTIRELY AT YOUR SOLE DISCRETION AND RISK.
15. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL HAPPY B’DAY! OR OUR AFFILIATES AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, ASSIGNS AND AGENTS, OR ANY DISTRIBUTOR, BE LIABLE FOR ANY LOSS OF MONEY, PROFITS, DATA, GOODWILL, OR REPUTATION, OR ANY SPECIAL, INDIRECT, DIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT ARISE UNDER THIS AGREEMENT OR THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE APP EVEN IF HAPPY B’DAY! OR ANY DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, AND WITHOUT LIMITING THE GENERALITY OF THIS SECTION TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT HAPPY B’DAY!’S TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES AND LOSSES UNDER THIS AGREEMENT, OR IN CONNECTION WITH YOUR USE OF, OR INABILITY TO USE, THE APP, SHALL NOT IN ANY CIRCUMSTANCE EXCEED THE AMOUNT ACTUALLY PAID BY YOU, IF ANY, TO HAPPY B’DAY! FOR USING THE APP WITHIN THE SIX (6) MONTHS PRECEDING THE DATE OF BRINGING A CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
16. Indemnity. You agree to defend, indemnify and hold harmless Happy B’day! and our affiliates, and our respective officers, directors, employees, licensors, assigns and agents, and any Distributor, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from: (i) your use of, or inability to use, the App, including, without limitation, your use and importing of Third Party Content from Third Party Sites; (ii) your violation of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) your b’day wishes and your interaction with another App user or third party. Without derogating from or excusing your obligations under this section, Happy B’day! reserves the right (at its own expense), but is not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by you. You agree not to settle any matter subject to an indemnification by you without first obtaining our express written approval.
17. Government Use. If you are a part of an agency, department, or other entity of the United States Government (“Government”), the use, disclosure or transfer of the App is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulations as applied to military agencies. The App is a “commercial item”, “commercial computer software” and “commercial computer software documentation”. In accordance with such provisions, any use of the App by the Government shall be governed solely by this Agreement.
18. No Obligation. Except as required by applicable law, Happy B’day! is not obligated to maintain or support the App. Both Happy B’day! and you acknowledge that the applicable Distributor has no obligation to provide you with any maintenance and support services with respect to the App.
19. Relationship with Distributor. Both Happy B’day! and you acknowledge that: (i) this Agreement is concluded between Happy B’day! and you only; (ii) as between Happy B’day! and Distributor, Happy B’day! is solely responsible for the App and the content thereof; and (iii) notwithstanding the foregoing, the applicable Distributor and its subsidiaries are third party beneficiaries of this Agreement, and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
20. Product Claims. Unless expressly stated otherwise in the applicable Usage Rules, Happy B’day!, and not a Distributor, is solely responsible for addressing any questions, comments or claims relating to the App and your possession and use thereof, including but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. If you have any questions, complaints, or claims regarding the App, please contact us at:
21. Export Laws. You agree to comply fully with all applicable export laws and regulations to ensure that neither the App nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
22. Updates and Upgrades. Happy B’day! may from time to time provide updates or upgrades to the App (each a “Revision“), but is not under any obligation to do so. Such Revisions will be supplied according to Happy B’day!’s then-current policies, which may include automatic updating or upgrading without any additional notice to you. You consent to any such automatic updating or upgrading of the App. All references herein to the App shall include Revisions. This Agreement shall govern any Revisions that replace or supplement the original App, unless the Revision is accompanied by a separate license agreement that governs the Revision.
24. Assignment. This Agreement, and any rights and licenses granted, or obligations imposed, hereunder, may not be transferred, assigned, or delegated by you but may be transferred, assigned, or delegated by Happy B’day! without restriction or notification.
25. Modification. We reserve the right to modify this Agreement at any time by sending you an in-App notification and/or publishing the revised Agreement on the App. Such change will be effective ten (10) days following the foregoing, and your continued use of the App thereafter means that you accept those changes.
27. Distributor Requirements and Usage Rules.
27.1. Apple. If you downloaded the App from the Apple, Inc. (“Apple“) App Store, then: (i) the License granted herein is limited to your use of the App on an Apple iPhone, iPod Touch, iPad, or other Apple-branded product that you own or control and that runs the iOS; and (ii) your use of the App is also subject to the Usage Rules established by Apple, including those set forth in the Apple App Store Terms of Service, effective as of the date that you enter into this Agreement. You acknowledge and agree that in the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price you paid for the App, if any, to you; and that to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Happy B’day!’s sole responsibility. By downloading and using the App, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. By entering into this Agreement you hereby waive, to the extent legally permitted, any applicable law requiring that this Agreement be localized to meet your language or other local requirements. To the extent that the foregoing is not permitted, you agree to be bound by the standard Apple Licensed Application End User License Agreement which is part of the Apple App Store Terms of Service, at www.apple.com/legal/itunes/us/terms.html#SERVICE (as amended from time to time).
Last updated: 24 May 2012