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Terms of Use

The following is a legal agreement between Painted Moon Studios, Inc. (“PMS”, “we”, “us”, or “our”) and “you”, the user of the happy heART cards application and website (the Application). By downloading or using the application you acknowledge that you have read, understand, and agree to be bound to these terms of service (“Terms”) of electronic cards. THIS AGREEMENT CONTAINS PROVISIONS THAT LIMIT OUR LIABILITY TO YOU. PLEASE READ THIS AGREEMENT IN ITS ENTIRETY. If you do not agree to these Terms, please do not use the Application.

The Application is operated by Painted Moon Studios, Inc.
Our address is 221 Beach Road Suite 130, Sarasota, Florida 34242.

Your Use of the Application — For U.S. and International

PMS hereby grants you a limited non-exclusive license to use the materials, features and services provided by PMS in this Application (collectively the “Materials”) soley for your personal, non-commercial use, subject to the Terms. No other use of the Application or Materials is authorized. This right ends when you no longer have access to the Application or receive the benefit of the services. To the maximum extent permitted by law, hacking or reverse engineering the Application or Materials or posting of Materials other places is strictly prohibited, except as a function of the Application. The products, technology, or process described or used on this Application may be the subject of intellectual property rights reserved by Painted Moon Studios, Inc. or other third parties. Except for the limited license granted above, nothing contained herein confers to you in any manner, whether by implication, estoppel or otherwise, any license, title, or ownership of or to any intellectual property right of PMS or any third party.

As a user of the Application, you undertake in relation to all content, photos, images and other materials that: You have obtained the consent of all individuals in the content, photos, images and that uploading images onto the Application will not infringe the privacy of any individual; and (2) You have obtained the consent of all individuals in the content, photos and images and that uploading the images onto the Application and any subsequent publication of such content, photo, images does not infringe the intellectual property rights of any third party.

Copyright Information

All of the Material available on the Application is copyright ©2014, Painted Moon Studios, Inc. or used under license.

Acceptable Use Policy

PMS has adopted the following Acceptable Use Policy in order to assure that the Application is used in a lawful and appropriate manner. While PMS does not ordinarily monitor the content that users send, it reserves the right to investigate reports of misuse of its Application and to protect its property and assets. By using the Application, you agree to this Policy. The following conduct is prohibited: Sending harassing, abusive, or threatening messages or any messages that cause or are intended to cause annoyance, inconvenience or needless anxiety;sending obscene, indecent or pornographic messages or images; sending defamatory or libelous messages; sending viruses or other harmful, disruptive, or destructive files; attempting to steal passwords or credit card information; sending messages that may in any way infringe the intellectual property rights of third parties; sending messages in connection with a criminal offence under the applicable national laws or regulations or against public order or applicable ethical standards and codes; sending messages that in any way could breach or could potentially breach a legal duty to a third party (including a duty of confidentiality) or that in any way infringe or could potentially infringe a person's right to privacy; sending messages that in any way promote discrimination or is likely to incite hatred; sending messages in furtherance of unlawful, criminal, or fraudulent activity; or attempting to conceal or misrepresent the identity of the sender.

Violations of the PMS’ Acceptable Use Policy will not be tolerated and may result in the sender being blocked from sending additional Cards on the service.

PMS RESERVES THE RIGHT IN ITS SOLE DISCRETION TO DISCLOSE TO THIRD PARTIES, INCLUDING PRODUCT RECIPIENTS, THEIR COUNSEL, OR LAW ENFORCEMENT AUTHORITIES, RELEVANT INFORMATION ABOUT A COMMUNICATION, INCLUDING, BUT NOT LIMITED TO, THE SENDER NAME, ACCOUNT INFORMATION, MEMBER AND COOKIE NUMBERS, TRANSMISSION DATA, PAST AND SUBSEQUENT SERVICE USE, AND ANY OTHER INFORMATION DEEMED NECESSARY BY PMS TO ADDRESS PAST VIOLATIONS OF THE ACCEPTABLE USE POLICY AND TO PREVENT FUTURE VIOLATIONS. THESE DISCLOSURES MAY BE MADE WITH OR WITHOUT PRIOR NOTICE TO YOU. BY USING THE SERVICE, YOU IRREVOCABLY CONSENT TO SUCH DISCLOSURES.

Spam

You may not use the Application to send content to mailing lists to which you do not have full rights or to send unsolicited bulk or commercial messages. In addition, the use of automated scripting-type programs that automate the process of sending or viewing any of the Materials is strictly prohibited. PMS reserves the right to limit, in its sole discretion and without prior notice to you, the number of cards or messages that you may send using the Application or the number of recipients to which you send such cards or messages. You are solely responsible for your actions and communications undertaken or transmitted using the Application.
Neither we nor our affiliates exercise editorial control over your transmissions; however, we do reserve the right to review your uploads and transmissions to the extent permissible in order to ensure compliance with these Terms.

Using Your Own Content, Photos, or Images

PMS allows you to create your own digital cards by uploading your own photos, artwork and other materials. You are subject to the conditions outlined in these Terms. When you upload photos or images to the Application you are indicating that you own the photo or image or have full rights to its use in accordance with these Terms. You are also indicating that the photos or images you upload do not depict any obscene, pornographic, or illegal materials.

Mobile Cards

When you send a Card via your mobile phone, standard messaging and data rates may apply. In addition, the recipient of your card may also be subject to messaging or data charges from their mobile carrier depending on their messaging plan. By sending a Card via mobile phone, you agree that you are the account holder or have: the account holder's permission to send the Card. In order to send Cards via mobile phone, PMS uses the messaging application on the sender's device: for this reason, you cannot block or stop the receipt of Cards except by blocking the sender's number. Please contact your service provider for instructions on how to do this.

In addition to the other restrictions and limitations contained in these Terms, PMS is not responsible for failures in delivery of Cards via mobile phone as a result of any
technical issues. For instance, PMS is not responsible if your Card is not delivered because:
- the recipient declines delivery,
- the recipient is on an unsupported carrier,
- the recipient's phone cannot display messages,
- the recipient's plan does not provide for messaging,
- the recipient's carrier is unable to deliver messages to them,
- the recipient's network connection is interrupted during message delivery.
There may be other reasons for a delivery failure as well. PMS will not give refunds for Cards that are not delivered due to technical issues that PMS is not responsible for.

Warranty Restriction; Limitation Of Liability

To the maximum extent permitted by law, the materials, information, and services provided on this application are provided "as is" without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. There is no warranty against
interference with your enjoyment of any materials, information, or services (including, but not limited to, any data, text, images, sounds, or computer programs (including collections and compilations of them)) or against infringement. PMS is not responsible for any failure of cards sent through the service to reach their intended
recipients or to reach such recipients on the date specified by the sender. The materials available on the application are subject to change without notice. PMS takes no responsibility or assumes any liability for any content uploaded or otherwise transmitted by you or any third party, or for any mistakes, defamation, slander,
libel, omissions, falsehoods, obscenity, pornography, indecency, lewdness, harassment, threats, abuse, or profanity you may encounter in using the application. You agree to hold harmless PMS and its affiliates and parties with whom PMS has contracted for purposes of hosting or maintaining this application from all claims based upon communications or materials made available by you on the application.

Indemnification

You hereby indemnify, defend and hold harmless PMS and its affiliates, and all officers, directors, owners, agents, content providers, licensors and licensees (collectively, the "Indemnified Parties") from and against any and all liability and costs, including, without limitation, reasonable attorneys' fees, incurred by the Indemnified Parties in connection with any claim arising out of any breach by you or any user of your account of these Terms. You must cooperate as fully as reasonably required in defense of any such claim. PMS reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

Enforcement by PMS

In the event PMS determines, in its sole discretion, that you have violated these Terms, PMS has the right to immediately terminate your account (with or without refund), refuse membership, or block the sending or receipt of Cards from our Application, or pursue any other remedies available to it under applicable law.

Governing Law

To the extent permitted by applicable law, this Agreement, and the respective rights and obligations of the parties hereto, are governed by and construed in accordance with the laws of the State of Florida. Any dispute arising between you and PMS will be submitted to binding arbitration in Sarasota, Florida in accordance with the American Arbitration Association's standard rules then in effect for arbitration of commercial disputes.

General

The failure to exercise, or delay in exercising, a right, power or remedy provided by these Terms or by law does not constitute a waiver of that right, power or remedy. If any provision, or part of a provision, of these Term, is found to be illegal, invalid or unenforceable, that provision or part-provision is deemed not to form part of these Terms of use, and the legality, validity or enforceability of the remainder of the provisions of these Terms of use is not affected, unless otherwise required by operation of applicable law. These Terms of use represent an agreement between you as user of the Application and us as service provider, and no other person can enforce any of its provisions. These Terms constitute the entire agreement between you and us in relation to the use of the Application, and replaces and extinguishes all prior agreements, draft agreements, arrangements, undertakings, or collateral contracts of any nature made by the parties, whether oral or written, in relation to such subject matter.

Updates to Terms

PMS has the right to revise these Terms at any time. When we post changes to these Terms, the Application will be updated and you will see the change in the Terms described in the update. By using this Application, you agree to be bound by any such revisions and should therefore periodically visit this Application to determine the then-current Terms to which you are bound.


© Painted Moon Studios, Inc.