Terms of Service
Terms of Service:
Please read this Agreement carefully before accessing or using the Website. By accessing or using any part of the web site, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access the Website or use any services. If these terms and conditions are considered an offer by Hearts Whimsy, acceptance is expressly limited to these terms. The Website is available only to individuals who are at least 13 years old.
- Your heartswhimsy.com Account and Site. If you create a blog/site on the Website, you are responsible for maintaining the security of your account and blog, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the blog. You must not describe or assign keywords to your blog in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and Hearts Whimsy may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause Hearts Whimsy liability. You must immediately notify Hearts Whimsy of any unauthorized uses of your blog, your account or any other breaches of security. Hearts Whimsy will not be liable for any acts or omissions by You, including any damages of any kind incurred as a result of such acts or omissions.
Responsibility of Contributors. If you operate a blog, comment on a blog, post material to the Website, post links on the Website, or otherwise make (or allow any third party to make) material available by means of the Website (any such material, "Content"), You are entirely responsible for the content of, and any harm resulting from, that Content. That is the case regardless of whether the Content in question constitutes text, graphics, an audio file, or computer software. By making Content available, you represent and warrant that:
- the downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
- if your employer has rights to intellectual property you create, you have either (i) received permission from your employer to post or make available the Content, including but not limited to any software, or (ii) secured from your employer a waiver as to all rights in or to the Content;
- you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;
- the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
- the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
- the Content is not pornographic, does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party;
- your blog is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, other blogs and web sites, and similar unsolicited promotional methods;
- your blog is not named in a manner that misleads your readers into thinking that you are another person or company. For example, your blog's URL or name is not the name of a person other than yourself or company other than your own; and
- you have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by Hearts Whimsy or otherwise.
By submitting Content to Hearts Whimsy for inclusion on your Website, you grant Hearts Whimsy a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your blog. If you delete Content, Hearts Whimsy will use reasonable efforts to remove it from the Website, but you acknowledge that caching or references to the Content may not be made immediately unavailable.
Without limiting any of those representations or warranties, Hearts Whimsy has the right (though not the obligation) to, in Hearts Whimsy's sole discretion (i) refuse or remove any content that, in Hearts Whimsy's reasonable opinion, violates any Hearts Whimsy policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in Hearts Whimsy's sole discretion. Hearts Whimsy will have no obligation to provide a refund of any amounts previously paid.
Payment and Renewal.
By selecting a product or service, you agree to pay Hearts Whimsy the one-time and/or monthly or annual subscription fees indicated (additional payment terms may be included in other communications). Subscription payments will be charged on a pre-pay basis on the day you sign up for an Upgrade and will cover the use of that service for a monthly or annual subscription period as indicated. Payments are not refundable.
Unless you notify Hearts Whimsy before the end of the applicable subscription period that you want to cancel a subscription, your subscription will automatically renew and you authorize us to collect the then-applicable annual or monthly subscription fee for such subscription (as well as any taxes) using any credit card or other payment mechanism we have on record for you. Upgrades can be canceled at any time by submitting your request to Hearts Whimsy in writing.
- General Terms.
- Fees; Payment. By signing up for a Services account you agree to pay Hearts Whimsy the applicable setup fees and recurring fees. Applicable fees will be invoiced starting from the day your services are established and in advance of using such services. Hearts Whimsy reserves the right to change the payment terms and fees upon thirty (30) days prior written notice to you. Services can be canceled by you at anytime on thirty (30) days written notice to Hearts Whimsy.
- Support. If your service includes access to priority email support. "Email support" means the ability to make requests for technical support assistance by email at any time (with reasonable efforts by Hearts Whimsy to respond within 1 business day) concerning the use of the VIP Services. "Priority" means that support takes priority over support for users of the standard or free heartswhimsy.com services. All support will be provided in accordance with Hearts Whimsy standard services practices, procedures and policies.
- Responsibility of Website Visitors. Hearts Whimsy has not reviewed, and cannot review, all of the material, including computer software, posted to the Website, and cannot therefore be responsible for that material's content, use or effects. By operating the Website, Hearts Whimsy does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Website may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The Website may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. Hearts Whimsy disclaims any responsibility for any harm resulting from the use by visitors of the Website, or from any downloading by those visitors of content there posted.
- Content Posted on Other Websites. We have not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which heartswhimsy.com links, and that link to heartswhimsy.com. Hearts Whimsy does not have any control over those non-Hearts Whimsy websites and webpages, and is not responsible for their contents or their use. By linking to a non-Hearts Whimsy website or webpage, Hearts Whimsy does not represent or imply that it endorses such website or webpage. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Hearts Whimsy disclaims any responsibility for any harm resulting from your use of non-Hearts Whimsy websites and webpages.
- Copyright Infringement and DMCA Policy. As Hearts Whimsy asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by heartswhimsy.com violates your copyright, you are encouraged to notify Hearts Whimsy in accordance with Hearts Whimsy's Digital Millennium Copyright Act ("DMCA") Policy. Hearts Whimsy will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. Hearts Whimsy will terminate a visitor's access to and use of the Website if, under appropriate circumstances, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of Hearts Whimsy or others. In the case of such termination, Hearts Whimsy will have no obligation to provide a refund of any amounts previously paid to Hearts Whimsy.
- Intellectual Property. This Agreement does not transfer from Hearts Whimsy to you any Hearts Whimsy or third party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with Hearts Whimsy. Hearts Whimsy, heartswhimsy.com, the heartswhimsy.com logo, and all other trademarks, service marks, graphics and logos used in connection with heartswhimsy.com, or the Website are trademarks or registered trademarks of Hearts Whimsy or Hearts Whimsy's licensors. Other trademarks, service marks, graphics and logos used in connection with the Website may be the trademarks of other third parties. Your use of the Website grants you no right or license to reproduce or otherwise use any Hearts Whimsy or third-party trademarks.
- Advertisements. Hearts Whimsy reserves the right to display advertisements on your blog unless you have purchased an ad-free account.
- Attribution. Hearts Whimsy reserves the right to display attribution links such as 'Blog at heartswhimsy.com,' theme author, and font attribution in your blog footer or toolbar.
- Partner Products. By activating a partner product (e.g. theme) from one of our partners, you agree to that partner's terms of service. You can opt out of their terms of service at any time by de-activating the partner product.
- Domain Names. If you are registering a domain name, using or transferring a previously registered domain name, you acknowledge and agree that use of the domain name is also subject to the policies of the Internet Corporation for Assigned Names and Numbers ("ICANN"), including their Registration Rights and Responsibilities.
Changes. Hearts Whimsy reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Website following the posting of any changes to this Agreement constitutes acceptance of those changes. Hearts Whimsy may also, in the future, offer new services and/or features through the Website (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.
Termination. Hearts Whimsy may terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your heartswhimsy.com account (if you have one), you may simply discontinue using the Website. Notwithstanding the foregoing, if you have a paid services account, such account can only be terminated by Hearts Whimsy if you materially breach this Agreement and fail to cure such breach within thirty (30) days from Hearts Whimsy's notice to you thereof; provided that, Hearts Whimsy can terminate the Website immediately as part of a general shut down of our service. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
- Disclaimer of Warranties. The Website is provided "as is". Hearts Whimsy and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Hearts Whimsy nor its suppliers and licensors, makes any warranty that the Website will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, the Website at your own discretion and risk.
- Limitation of Liability. In no event will Hearts Whimsy, or its suppliers or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to Hearts Whimsy under this agreement during the twelve (12) month period prior to the cause of action. Hearts Whimsy shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
- Indemnification. You agree to indemnify and hold harmless Hearts Whimsy, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys' fees, arising out of your use of the Website, including but not limited to your violation of this Agreement.
- Miscellaneous. This Agreement constitutes the entire agreement between Hearts Whimsy and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Hearts Whimsy, or by the posting by Hearts Whimsy of a revised version. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Website will be governed by the laws of the San Jose, USA, excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in San Jose, CA. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. ("JAMS") by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in San Jose, CA, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys' fees. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Hearts Whimsy may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.