Happy 2nd Birthday, Inc. (“Happy 2nd Birthday,” “we,” “us,” or “our”) welcomes you to www.happy2ndbirthday.com (the “Web Site”). These Terms of Service contain the terms and conditions that govern all use of our Web Site and Services (as defined below), including all content, services and/or products available on or through our Web Site. These Terms of Service apply to all users, customers, and visitors of our Web Site (“Consumers”). Please read these Terms of Service carefully before using our Web Site or any webpage that links to our Web Site, such as Happy 2nd Birthday microsites or social media web sites, including but not limited to Facebook, Google, Instagram, Twitter, or YouTube.
REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE HAPPY 2ND BIRTHDAY’S SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, BROWSE OR OTHERWISE USE THE WEB SITE OR HAPPY 2ND BIRTHDAY’S SERVICES.
Happy 2nd Birthday may, in its sole discretion, elect to suspend or terminate access to, or use of our Services to anyone who violates these Terms.
Definitions Account the primary means for accessing, purchasing, and using Happy 2nd Birthday’s Services and/or products online or in stores; Authorization the set of rights and privileges on the Web Site selected by a Consumer to provide consent to perform an action or service; Consumer Data files and any other digital data, information, or personal information which is subjected to the Happy 2nd Birthday’s Services or otherwise collected from Consumers on our Web Site; Guidelines additional guidelines or rules applicable to specific features, applications, products, or services which may be posted from time to time on the Web Site or otherwise made available by Happy 2nd Birthday; Services the Web Site, and any applications, including all content, services and/or products available on or through Web Site or applications; Happy 2nd Birthday Happy 2nd Birthday, Inc., a corporation established under the laws of the State of California (United States of America); Special Terms any particulars, specifications and conditions by which the parties have agreed to deviate from these Terms; Consumer(s) a natural person using Happy 2nd Birthday’s Services, including visiting or purchasing products from the Web Site; Web Site the compilation of all web documents (including images, php and html files) made available via www.happy2ndbirthday.com or its sub domains or domains with identical names under other top domains and owned by Happy 2nd Birthday.
- AUTHORITY TO ENTER INTO THESE TERMS WITH HAPPY 2ND BIRTHDAY
The use of our Services is subject to acceptance of these Terms. To accept these Terms, a person must have the legal capacity to do so. In the case of an individual, the individual must be at least 18 years of age or have valid authorization from his/her legal representative or custodian. In the case of a legal entity, the entity must be duly incorporated and in good standing.
The Terms are accepted as soon as one of the following occurs first:
- A Consumer creates an Account in order to login or purchase products off of our Web Site; or
- Upon the moment a Consumer gains access to our Services, the use of which is not dependent on creating an Account.
You may not, without Happy 2nd Birthday’s prior written consent, access the Happy 2nd Birthday’s Services if you are a competitor of Happy 2nd Birthday (i) for production purposes, (ii) to monitor the availability, performance or functionality of Happy 2nd Birthday’s Services or Web Site, or (iii) for other benchmarking or competitive purposes.
Once accepted, these Terms remain effective until terminated as provided for herein.
- MODIFICATIONS TO TERMS
Happy 2nd Birthday reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes on or through the Web Site. Please check these Terms periodically for changes. Your continued use of the Web Site or Services after such changes have been posted as provided above constitutes your binding acceptance of such changes. Such amended Terms will automatically be effective upon the earlier of (i) your continued use of the Web Site or Services, or (ii) 30 days from posting of such modified Terms on or through the Web Site. Notwithstanding the foregoing, the resolution of any dispute that arises between you and Happy 2nd Birthday will be governed by the Terms in effect at the time such dispute arose.
- OUR RESPONSIBILITIES
4.1. Provision of Happy 2nd Birthday’s Services. Happy 2nd Birthday will (a) make our services, content, products, and Consumer Data available to a Consumer pursuant to these Terms, (b) provide applicable standard support for our Services at no additional charge, and/or upgraded support (for an additional charge, if applicable), (c) use commercially reasonable efforts to make the our Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Happy 2nd Birthday shall give advance electronic notice as provided in the Guidelines), and (ii) any unavailability caused by circumstances beyond Happy 2nd Birthday’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack.
4.2. Protection of Consumer Data. Happy 2nd Birthday will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Consumer Data, as described in the Guidelines. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Consumer Data by Happy 2nd Birthday personnel except (a) to provide Happy 2nd Birthday’s Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.4 (Compelled Disclosure) below, or (c) as a Consumer expressly permits in writing.
- USING HAPPY 2ND BIRTHDAY’S SERVICES
5.1 Establishing an Account. Certain features, functions, parts or elements of the Happy 2nd Birthday’s Services can be used or accessed only by holders of an Account. The person who wishes to create an Account must:
- complete the login and account information form on the Web Site; and
- accept these Terms by clicking “Sign up” or other similar button
Each such Consumer shall be subject to the restrictions set forth in these Terms.
If Happy 2nd Birthday is not certain if a Consumer has been granted Authorization, Happy 2nd Birthday may, in its sole discretion, prevent such Consumer from accessing the Happy 2nd Birthday’s Services.
The Consumer associated with an Account must provide Happy 2nd Birthday with true, accurate, current, and complete information about the Consumer.
5.2 Logging into an Account. Happy 2nd Birthday shall provide Consumer with a username and password (“Login Credentials”) to be used to log in to its Account unless the Consumer uses a guest sign-on feature to log in. Each Consumer is responsible for keeping confidential all login credentials associated with an Account. Consumers must promptly notify Happy 2nd Birthday:
- of any disclosure, loss or unauthorized use of any Login Credentials;
- of any termination of a Consumer’s right for any reason.
5.3 Termination of Account. A Consumer may terminate these Terms at any time as provided in Section 17. If a Consumer chooses to do so, Happy 2nd Birthday shall permanently delete the Account within six months of the effective date of the termination.
The following provisions are applicable only if you use Happy 2nd Birthday’s Services through an Account or guest login, or if you purchase products directly from Happy 2nd Birthday.
6.1 Payment Card Authorization. Happy 2nd Birthday may seek pre-authorization of a Consumer’s payment card account prior to his/her purchase of Happy 2nd Birthday’s Services or products in order to verify that the card is valid and has the necessary funds or credit available to cover the purchase. You will authorize such payment card account to pay any amounts described herein, and authorize Happy 2nd Birthday to charge all sums described in these Terms to such card account. You agree to provide Happy 2nd Birthday updated information regarding your payment card account upon Happy 2nd Birthday’s request and any time the information earlier provided is no longer valid.
6.2 Direct Debit Payments. In some markets Happy 2nd Birthday may, if Consumer elects and Happy 2nd Birthday allows for, request that Consumer complete a direct debit mandate to enable direct debit payments. In such cases Happy 2nd Birthday shall comply with all applicable national rules and regulations related to direct debit payments.
- CONSUMER DATA
- the Consumer does not create, transmit, display or make otherwise available any Consumer Data that violates the terms of these Terms, the rights of Happy 2nd Birthday, other Consumers or persons, or is harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful; and
- the Consumer associated with the Account has the necessary rights to use the Consumer Data, including to insert it onto Happy 2nd Birthday’s Services, and process it by means of the Account.
7.2 No Guarantee of Accuracy. Happy 2nd Birthday does not guarantee any accuracy with respect to any information contained in any Consumer Data, and strongly recommends that you think carefully about what you transmit, submit or post to or through the Happy 2nd Birthday’s Services. You understand that all information contained in Consumer Data is the sole responsibility of the person from whom such Consumer Data originated. This means that Consumer, and not Happy 2nd Birthday, is entirely responsible for all Consumer Data that is uploaded, posted, transmitted, or otherwise made available through Happy 2nd Birthday’s Services, as well as for any actions taken by Happy 2nd Birthday or other Consumers as a result of such Consumer Data.
7.3 Unlawful Consumer Data. Happy 2nd Birthday is not obliged to pre-screen, monitor or filter any Happy 2nd Birthday or acts of its processing by the Consumer in order to discover any unlawful nature therein. However, if such unlawful Consumer Data or the action of its unlawful processing is discovered or brought to the attention of Happy 2nd Birthday or if there is reason to believe that certain Consumer Data is unlawful, Happy 2nd Birthday has the right to:
- notify the Consumer of such unlawful Consumer Data;
- deny its publication on the Web Site or its insertion to Happy 2nd Birthday’s Services;
- demand that the Consumer bring the unlawful Consumer Data into compliance with these Terms and applicable law;
- temporarily or permanently remove the unlawful Consumer Data from the Web Site or Account, restrict access to it or delete it.
If Happy 2nd Birthday is presented convincing evidence that the Consumer Data is not unlawful, Happy 2nd Birthday may, at its sole discretion, restore such Consumer Data, which was removed from the Web Site or Account or access to which was restricted.
In addition, in the event Happy 2nd Birthday believes in its sole discretion Consumer Data violates applicable laws, rules or regulations or these Terms, Happy 2nd Birthday may (but has no obligation) remove such Consumer Data at any time with or without notice.
Without limiting the generality of the preceding sentence, Happy 2nd Birthday complies with the Digital Millennium Copyright Act, and will remove Consumer Data from its Services upon receipt of a compliant takedown notice.
7.4 Compelled Disclosure. Happy 2nd Birthday may disclose a Consumer’s confidential information to the extent compelled by law to do so. In such instance, Happy 2nd Birthday will use commercially reasonable efforts to provide Consumer with prior notice of the compelled disclosure (to the extent legally permitted) and Consumer shall provide reasonable assistance, at its cost, if Consumer wishes to contest the disclosure. If Happy 2nd Birthday is compelled by law to disclose a Consumer’s confidential information as part of a civil proceeding to which Happy 2nd Birthday is a party, and Consumer is not contesting the disclosure, Consumer will reimburse Happy 2nd Birthday for its reasonable cost of compiling and providing secure access to that confidential information.
8.1 Use Happy 2nd Birthday Services. Subject to these Terms, Happy 2nd Birthday grants Consumer and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to use the Happy 2nd Birthday’s Services to:
- collect, store and organize Consumer Data;
- modify and delete Consumer Data;
- customize the standard features of Happy 2nd Birthday’s Services;
- receive reasonable help and guidance and from Happy 2nd Birthday regarding the use of Happy 2nd Birthday’s Services.
8.2 Technical Support. Happy 2nd Birthday shall provide reasonable technical support to Consumer at the reasonable request of the Consumer. Happy 2nd Birthday shall respond to enquiries of support from a Consumer utilizing the contacts set forth below as soon as reasonably possible. Responding to enquiries of Consumers who have accepted these Terms but do not have an Account may be less expedient, or may not occur at all.
The contacts for all enquiries of support are:
- built-in notification or support application or page on the Web Page, or
- e-mail: email@example.com
8.3 Modifications to Services. Happy 2nd Birthday reserves the right to modify Happy 2nd Birthday’s Services or any part or element thereof from time to time without prior notice, including, without limitation:
- rebranding Happy 2nd Birthday’s Services at its sole discretion;
- ceasing providing or discontinuing the development of any of Happy 2nd Birthday’s Services or part or element of the Services temporarily or permanently;
- taking such action as is necessary to preserve Happy 2nd Birthday’s rights upon any use of the Happy 2nd Birthday’s Services that may be reasonably interpreted as violation of Happy 2nd Birthday’s intellectual property rights, distribution of Internet viruses, worms, Trojan horses, malware, and other destructive activities or illegal activity.
As applicable, Consumer may be notified of such modifications when logging in to the Account. Modifications, including change in applicable prices for Happy 2nd Birthday’s Services or products, will become effective thirty (30) days before the effective date of such modification.
If the Consumer does not accept the modification, the Consumer shall notify Happy 2nd Birthday before the effective date of the modification, and these Terms will terminate on the effective date of the modification. The Consumer’s continued use of Happy 2nd Birthday’s Services, or any part or element thereof, after the effective date of a modification shall indicate its consent to the modifications. Happy 2nd Birthday shall not be liable to the Consumer or to any third person for any modification, suspension or discontinuance of Happy 2nd Birthday’s Services, or any part or element thereof.
- DATA PROCESSING CONTRACT
Consumer hereby instructs Happy 2nd Birthday to process the data as described in these Terms.
9.1 Subject matter and nature of processing. Happy 2nd Birthday provides Services where the Consumer, as the data controller, can collect, store and organize the personal data of data subjects determined by the Consumer.
9.2 Duration. Happy 2nd Birthday will process data on behalf of the Consumer until the termination of Happy 2nd Birthday’s Services in accordance with these Terms. Upon termination, Happy 2nd Birthday will store the Consumer’s data for a period of six months, should the Consumer wish to reopen the Account to resume the use of Happy 2nd Birthday’s Services or to export Consumer Data, unless instructed otherwise by the Consumer. Happy 2nd Birthday deletes or returns all the personal data to the controller after the end of the provision of services relating to processing and deletes existing copies unless Union or Member State law requires storage of the personal data.
9.3 Parties’ rights and obligations. Consumers’ rights and obligations regarding Consumer Data are provided in sections 4 through 10 of these Terms. Happy 2nd Birthday ensures that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. Happy 2nd Birthday undertakes to make available to the controller all information necessary to demonstrate compliance with their obligations and to allow for and contribute to audits, including inspections, conducted or mandated by the Consumer as the data controller.
10.1 Prohibited Activities. Consumer may use Happy 2nd Birthday’s Services and any part or element thereof only in the scope, with the means and for purposes as identified in these Terms and applicable law. By way of example, Consumer may not:
- use Happy 2nd Birthday’s Services or any part or element thereof to commit a crime, breach any applicable law or entice or invite others to carry out such illegal actions;
- copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile Happy 2nd Birthday’s Services or any part or element thereof, or attempt to extract the source code thereof, unless (i) it is expressly allowed under applicable law, and (ii) to the extent that Happy 2nd Birthday is not permitted by that applicable law to exclude or limit the foregoing rights;
- use Happy 2nd Birthday’s Services or any part or element thereof unless it has agreed to these Terms.
10.2 Certain Uses Require Happy 2nd Birthday Consent. The Consumer may not, without Happy 2nd Birthday’s prior express written consent (e-mail, fax, Skype, etc.):
- sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant access or make Happy 2nd Birthday’s Services available in whole or in part to any third persons;
- use Happy 2nd Birthday’s Services or any part or element thereof in a scope, with means or for purposes other than those for which their functionality was created;
- use Happy 2nd Birthday’s Services or any part or element thereof by means of programs that send them automatic enquiries or requests, unless such program has been made available by Happy 2nd Birthday;
- INTELLECTUAL PROPERTY RIGHTS
12.1 Happy 2nd Birthday’s Intellectual Property Rights in Happy 2nd Birthday’s Services. Happy 2nd Birthday’s Services, Happy 2nd Birthday’s products, Happy 2nd Birthday’s trade names and trademarks, and any parts or elements thereof are solely and exclusively owned and operated by Happy 2nd Birthday and its third-party vendors and hosting partners. Happy 2nd Birthday’s Services and product are protected by copyright, trade dress, patent, trade secrets, and trademark laws, international conventions and treaties, and all other relevant intellectual property and proprietary rights laws. Happy 2nd Birthday, its affiliates, and licensors, retains all rights, titles and interests in Happy 2nd Birthday’s Services, Happy 2nd Birthday’s products, and Happy 2nd Birthday’s trade names and trademarks, and any parts or elements. Your use of Happy 2nd Birthday’s Services and products, and any parts or elements does not grant to you any ownership right or intellectual property rights therein. Any commercial or promotional distribution, publishing or exploitation of Happy 2nd Birthday’s Services and/or products is strictly prohibited unless you have received the express prior written permission from Happy 2nd Birthday or the otherwise applicable rights holder. Happy 2nd Birthday reserves all rights to its Services, products, and trade names and trademarks not expressly granted in the Terms.
12.2 Consumer Data
- Happy 2nd Birthday may use Consumer Data in an aggregated or anonymized format for research, educational and other similar purposes. Happy 2nd Birthday may not otherwise use or display Consumer Data without Consumer’s written consent. Happy 2nd Birthday respects your right to exclusive ownership of your Consumer Data. Unless specifically permitted by you, your use of Happy 2nd Birthday’s Services does not grant Happy 2nd Birthday the license to use, reproduce, adapt, modify, publish or distribute Consumer Data created by you or stored in your Account for Happy 2nd Birthday’s commercial, marketing or any similar purpose. Consumer expressly grants Happy 2nd Birthday the right to use and analyze aggregate system activity data associated with use of Happy 2nd Birthday’s Services by Consumer for the purposes of optimizing, improving or enhancing the way Happy 2nd Birthday’s Services operate, and to create new features and functionality in connection with Happy 2nd Birthday’s Services in the sole discretion of Happy 2nd Birthday.
- Consumer is solely responsible for its own Consumer Data and the consequences of posting or publishing them on or through Happy 2nd Birthday’s Service. In connection with Consumer Data, Consumer affirms, represents, and warrants that: (i) Consumer either owns its Consumer Data or has the necessary licenses, rights, consents, and permissions to use and authorize Happy 2nd Birthday to display or otherwise use the Consumer Data under all patent, trademark, copyright, trade secrets, or other proprietary rights in and to your Consumer Data in a manner consistent with the intended features of the Happy 2nd Birthday’s Services and these Terms, and to grant the rights and license set forth in Section 11.3(a), and (ii) Consumer Data, Happy 2nd Birthday’s or any Happy 2nd Birthday Licensee’s use of such Consumer Data pursuant to these Terms, and Happy 2nd Birthday’s or any Happy 2nd Birthday Licensee’s exercise of the license rights set forth in Section 11.3(a), do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) violate any applicable law or regulation anywhere in the world; or (c) require obtaining a license from or paying any fees and/or royalties by Happy 2nd Birthday to any third party for the performance of any Happy 2nd Birthday’s Services Consumer has chosen to be performed by Happy 2nd Birthday or for the exercise of any rights granted in these Terms, unless Consumer and Happy 2nd Birthday otherwise agree.
12.3 Feedback. If a Consumer provides Happy 2nd Birthday with any comments, bug reports, feedback, or modifications for Happy 2nd Birthday’s Services (“Feedback”), Happy 2nd Birthday shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into Happy 2nd Birthday’s Services. Consumer (as applicable) hereby grants Happy 2nd Birthday a perpetual, irrevocable, nonexclusive, royalty free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use your Feedback for any purpose. Happy 2nd Birthday shall have the right to modify or remove any Feedback provided in the public areas of the Web Site if Happy 2nd Birthday deems, at its discretion, harmful, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful.
- THIRD-PARTY SITES, PRODUCTS AND SERVICES
Happy 2nd Birthday’s Services may include links to other websites or services (“Linked Sites”) solely as a convenience to Consumers. Unless otherwise specifically and explicitly indicated, Happy 2nd Birthday does not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, Happy 2nd Birthday makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
- DISCLAIMERS; NO WARRANTY
UNLESS OTHERWISE EXPRESSLY STATED BY HAPPY 2ND BIRTHDAY, HAPPY 2ND BIRTHDAY’S SERVICES, HAPPY 2ND BIRTHDAY’S PRODUCTS, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE HAPPY 2ND BIRTHDAY’S SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HAPPY 2ND BIRTHDAY AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY.
UNLESS OTHERWISE EXPRESSLY STATED BY HAPPY 2ND BIRTHDAY AND ITS AFFILIATES DO NOT WARRANT THAT THE HAPPY 2ND BIRTHDAY’S SERVICES AND PRODUCTS, CONSUMER DATA, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE HAPPY BIRTHDAY’S SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT HAPPY 2ND BIRTHDAY’S SERVICES AND PRODUCTS, CONSUMER DATA, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE HAPPY 2ND BIRTHDAY’S SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
UNLESS OTHERWISE EXPRESSLY STATED BY HAPPY 2ND BIRTHDAY AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF HAPPY 2ND BIRTHDAY’S PRODUCTS, HAPPY 2ND BIRTHDAY’S SERVICES, AND HAPPY 2ND BIRTHDAY’S WEB SITE OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree to defend, indemnify and hold harmless Happy 2nd Birthday and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of Happy 2nd Birthday’s Services, Happy 2nd Birthday’s Web Site, Happy 2nd Birthday’s products, and your representations made to Happy 2nd Birthday, its affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. Happy 2nd Birthday reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Happy 2nd Birthday, and you agree to cooperate with such defense of these claims.
- LIMITATION OF LIABILITY
16.1 No Liability: Happy 2nd Birthday shall not be liable to the Consumer for any consequences resulting from:
- any modifications in these Terms, Happy 2nd Birthday’s Services, Happy 2nd Birthday’s products, Happy 2nd Birthday’s Web Site or any part or element thereof (including but not limited to your Account), including any error, permanent or temporary interruption, discontinuance, suspension or other type of unavailability of Happy 2nd Birthday’s Services;
- deletion of, corruption of, or failure to store any Consumer Data;
- use of Consumer Data by the Consumer;
- any disclosure, loss or unauthorized use of the login credentials of Consumer due to Consumer’s failure to keep them confidential;
- the Consumer’s use of the Account or Happy 2nd Birthday’s Services by means of browsers other than those accepted or supported by Happy 2nd Birthday;
- the application of any remedies against the Consumer by Happy 2nd Birthday, for example if the Consumer has committed a crime or conducted a breach of applicable law by using the Happy 2nd Birthday’s Services or any part or element thereof;
- the differences between technologies and platforms used for access, for example if certain features, functions, parts or elements of the Happy 2nd Birthday’s Services are designed for use on a personal computer or laptop and do not function on a mobile platform or a tablet;
- Happy 2nd Birthday’s application of the remedies described in these Terms, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards.
In addition, Happy 2nd Birthday and its affiliates shall not be liable to the Consumer for any claim by any user, person, or third persons against the Consumer arising out of the Consumer’s failure to:
- provide Happy 2nd Birthday with accurate information about the Consumer or Account;
- notify Happy 2nd Birthday of any reasons due to which a Consumer does not have the right to use the Account;
- provide any products or services which it has agreed to provide to such a person or (whether such failure arises as a result of Happy 2nd Birthday’s negligence, breach if these Terms or otherwise);
- ensure the lawfulness of the Consumer Data;
- obtain the necessary rights to use the Consumer Data; or
- abide by any of the restrictions described in these Terms.
16.2 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF HAPPY 2ND BIRTHDAY AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CONSUMER HEREUNDER FOR HAPPY 2ND BIRHTDAY’S SERVICES OR PRODUCTS GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CONSUMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT” SECTION ABOVE.
16.3 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
- TERMINATION OF THESE TERMS
17.1 For Convenience. These Terms may be terminated for convenience upon written notice to the other party as indicated in the “Notice” Section below:
- by the Consumer any time by clicking the “cancellation” link or something similar on the Web Site, when logged in to the Account;
- by Happy 2nd Birthday upon decision to end provision of the Happy 2nd Birthday’s Services; or
- immediately by either party, if proceedings are initiated for the other party’s liquidation or insolvency or a negotiated settlement with the other party’s creditors is concluded or an assignment is made on behalf of the other party for the benefit of creditors.
17.2 For Default. These Terms may be terminated for default upon written notice to the other party as indicated in the “Notice” Section below:
- by either party in case of breach of these Terms by the other party, if the breach has not been cured within 30 days of receipt of a notice from the non-breaching party; or
- immediately by either party if the other party breaches its obligations, as applicable under Sections 12 [Intellectual Property Rights] and 15 [Indemnification] of these Terms.
17.3 Effect of Termination. Upon termination of these Terms,
- Happy 2nd Birthday shall deactivate and permanently delete the Account, within six months of the effective date of termination of these Terms. If the Consumer has specifically requested for an earlier deletion of the Account, Happy 2nd Birthday shall fulfill such request within 1 month of its receipt of such request.
- Consumer must:
- stop using and prevent the further usage of the Happy 2nd Birthday’s Services, including, without limitation, the Account;
- pay any amounts owed to Happy 2nd Birthday under these Terms; and
- discharge any liability incurred by the Consumer before under these Terms prior to their termination; and
- The following provisions shall survive the termination of these Terms: Sections 1, 7.4, 10, 11, 12, 14, 15, 16, 18 and 19.
If Happy 2nd Birthday terminates these Terms as a result of an uncured breach by a Consumer, Happy 2nd Birthday is entitled to use the same or similar remedies against any other persons who use Happy 2nd Birthday’s Services in conflict with these Terms. Notwithstanding the foregoing, Happy 2nd Birthday may also apply any other remedies available to it under the applicable law. Upon application of any remedies, the Consumer may lose access or suffer a loss of certain features, functions, parts or elements of the Happy 2nd Birthday’s Services.
If Happy 2nd Birthday has reasonable grounds to believe that the Consumer’s use of Happy 2nd Birthday’s Services, including the Account may harm any third persons, Happy 2nd Birthday has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third persons.
- WHO YOU ARE CONTRACTING WITH
18.1 General. You are contracting with Happy 2nd Birthday, Inc., a California corporation.
18.2 Governing Law and Jurisdiction.
Any dispute arising from or relating to the subject matter of these Terms of Service shall be finally settled by arbitration in San Francisco, California, using the English language in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. These Terms of Service shall be governed by and construed in accordance with the laws of the State of California, without reference to any conflict of law principles. For all purposes of these Terms of Service, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in San Francisco, California. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms of Service, including without limitation, this section.
If any part of this provision is ruled to be unenforceable, then the balance of this provision shall remain in full effect and construed and enforced as if the portion ruled unenforceable were not contained herein.
Use of Happy 2nd Birthday’s Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section.
Notwithstanding the foregoing, you and Happy 2nd Birthday agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either party’s right to (i) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (ii) seek injunctive relief in a court of law, or (iii) to file suit in a court of law to address intellectual property infringement claims.
- GENERAL PROVISIONS
19.1 Relationship of the Parties. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between the Consumer and Happy 2nd Birthday, and the Consumer shall not represent to the contrary, whether expressly, by implication, appearance or otherwise. These Terms are not for the benefit of any third parties.
19.2 Severability. If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible to enforce the intent of the parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.
19.3 Entire Agreement. These Terms are the entire agreement between Consumer and Happy 2nd Birthday regarding Consumer’s use of Happy 2nd Birthday’s Services, Web Site, and/or products and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
19.4 Assignment. Consumer may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without Happy 2nd Birthday’s prior written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing, the Consumer, or its permitted successive assignees or transferees, may assign or transfer these Terms or delegate any rights or obligations hereunder without consent: (1) to any entity controlled by, or under common control with the Consumer, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership of the Consumer, or its permitted successive assignees or transferees.
19.5 No Waiver. Failure of either Party to exercise or enforce any provision of or any of its rights under these Terms shall not be deemed a waiver of future enforcement of that or any other provision or right.
19.6 Notices. Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon either (a) personal delivery, (b) the second business day after mailing, or (c) the day a notice is sent through email, except for notices of termination or an indemnification claim (“Legal Notices”), which shall clearly be identifiable as a Legal Notice.
Last updated: October 15, 2020