- BINDING EFFECT. THIS IS A BINDING AGREEMENT BETWEEN YOU AND CELEBRATION WISHES, INC., A CALIFORNIA CORPORATION, WITH AN ADDRESS AT 627 8TH AVENUE, SAN DIEGO, CA 92101 (““CELEBRATION WISHES” OR “WE” OR “US” OR “OUR”). BY CLICKING ON THE “ACCEPT” BUTTON, YOU AGREE TO BECOME A PARTY TO AND TO ABIDE BY THE TERMS OF THIS END USER AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT CLICK ON “ACCEPT” AND DO NOT ACCESS OR OTHERWISE USE THE CELEBRATION WISHES INTERNET PLATFORM (THE “SERVICE”), INCLUDING OUR WEB PAGES AND MOBILE DEVICE APP (COLLECTIVELY, THE “SITE”). SELECTING “ACCEPT” WILL BE THE LEGAL EQUIVALENT OF YOUR SIGNATURE ON A WRITTEN CONTRACT, AND BE EQUALLY BINDING. YOU MUST AGREE TO THIS AGREEMENT IN ORDER TO BE ABLE TO USE USE THE SERVICE, WHETHER ON OUR SITE OR ON OUR PARTNERS’ WEBSITES THROUGH WHICH WE HAVE HOSTED OR OTHERWISE MADE ACCESSIBLE THE SERVICES (THE “PARTNER SITES”).
This Agreement is entered into as of the date that you accept it ("Effective Date").
Celebration Wishes reserves the right to change or modify this Agreement at any time and in our sole discretion. If we make changes to this Agreement, we will provide you with notice of such changes through the Service or by updating the “Last Modified” date at the beginning of this Agreement. By continuing to access or use the Site or Service, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review this Agreement frequently to ensure that you understand the terms and conditions that apply when you access or use the Site or Service and when you redeem funds that were collected in connection with your use of the Service. If you do not agree to the revised Terms, you may no longer access or use the Site or Service.
“Credit Card Fee” means the Fee charged by the credit card or payment processor that will be incurred by any User that uses a credit card to make a purchase on the Site or through the Services.
“End User Host” means a User of the Service, whether through the Site or a Partner Site, accepts this Agreement and sets up an account with login credentials to create a Registry.
“Fees” means, amounts payable for certain aspects of the Service, including, but not limited to, Credit Card Fees and Service Fees. The applicable Fees for desired transactions will be set forth on and disclosed through the Service.
“Gift Funds” means monetary amounts purchased by a Gift Giver in connection with an End User Host’s Registry.
“Gift Giver” means any individual who purchases Gift Funds through the Service.
“Intellectual Property Rights” means copyright, trademark, trade secret and all other intellectual and proprietary rights.
“Mobile Device App” means Celebration Wishes’ mobile application that provides access to its Service.
“Registry” means the Celebration Wishes gift registry and related free website set up by an End User Host.
“Service Fee” means the Fee charged by us on all gift transactions as set forth on and through the Service.
“User” means any person who accesses and uses the Site or Service, including End User Hosts, Gift Givers and other users.
“User Content” means any communications, images, sounds, and all the material, data, and information that is uploaded or transmitted through the Site or the Service by a User, including but not limited to IP addresses and personal information.
“Web Pages” means the full and mobile versions of the website located at www.celebrationwishes.com.
- SERVICE LICENSE. Subject to all of the terms and conditions herein, Celebration Wishes grants you a non-exclusive, non-transferable, revocable limited license to access and use the Service, through the Site or a Partner Site, solely for your own personal purposes. You agree not to use the Service for any other purpose. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the Service, including but not limited to payment of all third party fees associated therewith. The term of your license shall commence on the Effective Date and shall end upon your or Celebration Wishes’ termination of this Agreement. The Service will not be available for use by you once this Agreement is terminated.
- SITE LICENSE. Subject to all of the terms and conditions herein, Celebration Wishes hereby grants you a limited, non-transferable, revocable, terminable, non-exclusive license, without the right to sublicense, to use the Site solely to access and use the Service and solely for your own personal purposes. The term of your license shall commence on the Effective Date and shall end upon your or Celebration Wishes’ termination of this Agreement. Certain features of the Site will not be available for use by you once this Agreement is terminated.
- USER OBLIGATIONS. You are entirely responsible for maintaining the confidentiality of your login credentials to use the Service. You may not use the login credentials of another User at any time nor provide your credentials to any other person. You agree to notify us immediately of any unauthorized use of your login credentials.
- RESTRICTIONS. The Site and Service are copyrighted by Celebration Wishes. You acknowledge that the Site and Service (and their respective structures, organization, and source code) constitute valuable trade secrets of Celebration Wishes. Accordingly, you must not: (a) copy, modify, adapt, alter, translate, port or create derivative works of the Site, Service or other Celebration Wishes materials; (b) permit third parties to use the Site or Service using your login credentials; (c) sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer the Site or Service; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for or any other proprietary information or trade secrets from the Site or Service; (e) remove, alter, or obscure any proprietary notices (including, without limitation, any copyright and trademark notices) of Celebration Wishes or its licensors and suppliers from the Site or Service; (f) disseminate performance-related information relating to the Site or Service; or (g) otherwise use, reproduce, display or copy the Site or Service. You shall be exclusively responsible for the supervision, management, and control of your use of the Site.
- ACCEPTABLE USE POLICY. You will only use the Service and Site in accordance with Celebration Wishes’ published guidelines and policies. You agree that you will not, under any circumstances, do any of the following: (a) use, design, or assist in the design of cheats, exploits, automation software, bots, hacks, mods or any unauthorized third party software designed to modify or interfere with the Service or any Site experience; (b) disrupt, overburden, or aid or assist in the disruption or overburdening of any computer or server used to offer or support the Service or the enjoyment of the Service by any other person; (c) institute, assist, or become involved in any type of attack, including but not limited to distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service; (d) attempt to gain unauthorized access to the Service, accounts registered to others or to the computers, servers, or networks connected to the Service by any means other than the user interface provided by Celebration Wishes, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service; (e) engage in any act that Celebration Wishes deems to be in conflict with the spirit or intent of the Service, including, but not limited to, circumventing or manipulating this Agreement, our application rules, application mechanics or policies; (f) use the Service, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation; (g) post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive; (h) post any information that contains nudity, excessive violence, or offensive subject matter or that contains a link to such content; (i) attempt to, or harass, bully, abuse, or harm, or advocate or incite harassment, abuse or harm of another person, group, including Celebration Wishes employees; (j) make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including but not limited to a Celebration Wishes employee; (k) solicit or attempt to solicit personal information from other Users; (l) collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service; (m) create an account or access the Service if you are under the age of 13; (n) fail to monitor your account to restrict use by minors or fail to deny access to children under the age of 13; (o) You accept full responsibility for any unauthorized use of the Service by minors in connection with your account. End User Hosts are responsible for any Fees that become due for any unauthorized use of the Service by minors in connection with the End User Host’s account and such amounts shall become immediately due and owing; (p) use the Service if you are located in a country embargoed by the United States or if you are on the U.S. Treasury Department’s list of Specially Designated Nationals.
- OWNERSHIP; RESERVATION OF RIGHTS. You agree that Celebration Wishes shall own and retain all right, title, and interest to the Site and to the Service, to enhancements, improvements, and derivatives, and to all Intellectual Property Rights related thereto. Except as expressly licensed to you herein, Celebration Wishes on its behalf and on behalf of its licensors reserves all right, title and interest in the Site, the Service and all associated copyrights, trademarks, and other Intellectual Property Rights therein. These licenses are limited to the Intellectual Property Rights of Celebration Wishes and its licensors in the Site and the Service and does not include any rights to other patents or Intellectual Property Rights. Notwithstanding anything to the contrary herein, all rights not specifically granted in the licenses set forth above shall be reserved and remain always with Celebration Wishes.
- COPYRIGHTS. All title and copyrights in and to the Site and the Service are owned by Celebration Wishes or its licensors. The Site and the Service are protected by copyright laws and international treaty provisions. Therefore, when using the Site and Service, you agree to obey the law and to respect the Intellectual Property Rights of others. Your use of the Site and Service is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights.
- USER INTERACTIONS. You are solely responsible for your interactions with other Users and any other parties with whom you interact through the Service or the Site. If you have a dispute with one or more Users, you release Celebration Wishes (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including, but not limited to, damages for loss of profits, goodwill, use or data. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor.” If you are a resident of another state, you hereby waive any similar provision in your state law applicable to releases.
- REMOVAL. We may, at our sole discretion and without further notice to you, remove your User Content or prohibit you from using the Site or Service unless otherwise agreed in writing.
- CONTESTS. Celebration wishes and our partners may sponsor contests that you may enter. Your participation in these contests is entirely optional. From time-to-time we request information from Users via surveys. Participation in survey completion is completely voluntary such that Users may decide whether or not to disclose information requested by a survey. Information requested may include contact information (such as name and shipping address), and demographic information (such as zip code and age). Contact information will be used to notify winners of contests and award prizes. Contests will have additional terms. Please read contest terms and conditions before entering.
- FEES. A Service Fee will be charged on all Gift Funds transactions and may be the responsibility of the Gift Giver or End User Host. The party responsible for the Service Fee will be determined at the sole discretion of the End User Host at the time of his or her Registry creation. During the account sign up process, End User Host will choose whether he or she prefers to subtract the Service Fee from the Gift Funds amount before redeeming the Gift Funds or have the Gift Giver pay the Service Fee at the time of gifting. See FAQ’s for description of how the Service Fee is used. The Credit Card Fee will be the obligation of Gift Giver at the time of gifting.
- CREDIT CARD DISPUTE POLICY. If any Gift Funds are disputed by the Gift Giver with their credit card company and the Gift Funds have been transferred from Celebration Wishes to End User Host, the End User Host is responsible for returning the disputed Gift Funds to Celebration Wishes. If Gift Funds are disputed by the Gift Giver with their credit card company before the Gift has been transferred to the intended End User Host, then any Fees charged to Celebration Wishes by the credit card company (typically in an amount of $15.00) will be deducted from the Gift Funds amount. So long as Gift Funds have not been transferred to End User Host and remain in dispute, such disputed amount will be ineligible for transFer to End User Host if and until the dispute is resolved. YOUR ACCESS TO AND USE OF THE SERVICE’S GIFTING FEATURE IS CONDITIONAL ON YOUR AGREEMENT TO THIS CREDIT CARD DISPUTE POLICY.
- GIFT FUNDS REDEMPTION. End User Hosts will accrue Gift Funds within their respective Celebration Wishes account. Celebration Wishes will store and manage the Gift Funds for each End User Host until such End User Host initiates a transfer by making a request for redemption of Gift Funds. When submitting a Gift Funds redemption request to Celebration Wishes, the End User Host will indicate whether he or she wants the Gift Funds delivered via gift card, direct funds transfer (ACH) or check. The delivery time and fees associated with each Gift Funds transfer method shall be as follows:
|Gift Funds Request Method
|Gift Card Marketplace
|CW Gift Card
|Direct Funds Transfer (ACH)
- RETURN POLICY. In the event that a Gift Giver needs to reverse their contribution of Gift Funds for any reason, Celebration Wishes will refund the Gift Giver 100% of the Gift Funds upon receipt of the Gift Funds from the End User Host if already redeemed, or within one business day if the Gift Funds have not been redeemed by End User Host. We will not charge anything additional to process a refund, but we will not return any Fees associated with the original transaction(s). This policy does not apply to duplicate transactions and voids.
- PARTNER SITES. You may be able to access our Services through a Partner Site and, in that case, you may also be required to agree to additional terms and conditions specific to that Partner Site. Such terms and conditions may set additional restrictions on your use of the Services, including, but not limited to, how you can redeem Gift Funds.
- TRAVEL. We are not a travel agency and do not book travel. Therefore, we are not responsible or liable for any travel arrangements that are made or posted on the Site. For travel that is arranged through the Site, you may change your travel dates through your End User Host account. We are not responsible for any travel that is arranged through a Partner Site.
- USERS OUTSIDE OF THE USA. Users may still access the Site and use the Service if they are outside of the USA. Please note that when an End User Host outside of the USA redeems Gift Funds and requests a check, the check will be in U.S. currency with the cost of postage deducted from the Gift Funds amount. Gift Givers outside of the U.S. may only purchase Gift Funds by credit card. All amounts on the site are quoted in U.S. dollars.
- TAXES. You shall be responsible for all income and other taxes and all applicable duties, levies and fees and similar charges imposed by any federal, state or local government entity on your use of the Site or Service, including, but not limited to, any taxes due on the purchase of Gift Funds, redemption of Gift Funds or on Fees that you pay through the Site. YOU HEREBY CERTIFY THAT ALL GIFT FUNDS RECEIVED ARE SOLELY FOR PERSONAL PURPOSES AND ARE NOT IN EXCHANGE FOR ANY SERVICES OR PRODUCTS. YOU UNDERSTAND THAT IF YOU ARE RECEIVING GIFT FUNDS FOR ANYTHING OTHER THAN PERSONAL PURPOSES YOU MAY BE REQUIRED TO PAY TAXES ON SUCH FUNDS AND THAT WE WILL REQUIRE A W-9 FOR ANY RECEIPT OF GIFT FUNDS IN AN AMOUNT GREATER THAN $599 IN ANY TAX YEAR IN EXCHANGE FOR ANY SERVICES OR PRODUCTS SO THAT WE CAN FILE A 1099-MISC FORM WITH THE UNITED STATES INTERNAL REVENUE SERVICE COVERING SUCH AMOUNTS, AND HEREBY AGREE TO PROMPTLY NOTIFY US IN THE EVENT THAT ANY GIFT FUNDS RECEIVED ARE IN EXCHANGE FOR ANY SERVICES OR PRODUCTS. Furthermore, you agree that we have no obligation to maintain records or provide you with documentation of your transactions with charitable/non-profit organizations for tax reporting purposes.
- SECURITY. Celebration Wishes considered the security of individually identifiable information to be a serious and important matter. When Users submit sensitive information via the website, your information is protected both online and off-line. To protect the security of data, the Site and database servers are hosted in a secured physical and network environment and efforts are made to secure web servers, networks, host operating systems and databases against unauthorized access. Please remember that security measures taken by us are not foolproof; no website can guarantee that information will be protected in all situations. However, we will take all appropriate measures aligned with industry standards to protect the information that you provide to us. When End User Hosts are asked to enter sensitive information at the time of account creation, the information is encrypted for protection. Any sensitive information provided by Users is encrypted. All User information may only be accessed by our employees who need to know the information to perform a specific task (for example, billing clerks and customer service representatives).
- USER COMMUNICATION. Celebration Wishes reserves the right to send service e-mails notifying you of operational or other changes that may affect or change the Site or Service. Please note that you cannot opt out of such service e-mails because these service e-mails provide information critical for the operation of the Site and Service. We will additionally send you marketing e-mails when you opt-in to receive such emails. You can opt in to receive such marketing e-mails by editing your communication preferences. YOU HEREBY GRANT US PERMISSION TO SEND YOU ALL SERVICE AND MARKETING E-MAILS AS DESCRIBED ABOVE.
- SEARCH ENGINES. Like any website on the internet, the Site is scanned intermittently by search engines. Celebrationwishes.com does not own the search engines nor are we affiliated with them in any way. All information that is security coded such as banking, credit card, and contact information is not scanned, picked up, accessed, or displayed by any search engine. Information such as names that display on the front of any webpage on the internet may be picked up by search engines. Please do not display your names on the Site if you do not want them seen by a search engine on the internet. You may use your first initial and last name, or a salutation and your name, or a nickname. You are not required to put your full name on the Site at anytime to use it. If you request that your account and name be removed from the Site we will do this at no charge.
- LOG FILES. We use IP addresses to analyze trends, administer the Site and Service, track User movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.
- WARRANTY DISCLAIMER. THE SITE AND SERVICE ARE PROVIDED ON AN “AS IS” BASIS. CELEBRATION WISHES MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SITE ORTHE SERVICE. CELEBRATION WISHES DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE FOREGOING INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. UNDER NO CIRCUMSTANCE SHALL CELEBRATION WISHES BE RESPONSIBLE FOR ANY DAMAGES RESULTING FROM MISUSE, ABUSE OR MOBILE DEVICE MALFUNCTION, OR IF THE SITE OR SERVICE HAS BEEN INSTALLED, USED, MODIFIED OR OPERATED OTHER THAN IN ACCORDANCE WITH AND AS PERMITTED BY THIS AGREEMENT OR WITH RESPECT TO ANY GIFT GIVER OR ITS PURCHASE OF GIFT FUNDS OR ANY END USER HOST AND ITS REGISTRY. CELEBRATION WISHES DOES NOT WARRANT THAT THE SITE OR SERVICE WILL BE ADEQUATE FOR YOUR PURPOSES OR THAT USE OF THE SITE OR SERVICE WILL BE ERROR-FREE, UNINTERRUPTED, VIRUS-FREE, OR SECURE. YOU HEREBY ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES FROM CELEBRATION WISHES OR ANY THIRD PARTY. .
- LIMITATIONS ON LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EXCEPT FOR YOUR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, THAT ARE IN ANY WAY RELATED TO THIS AGREEMENT, THE BREACH THEREOF, THE USE OR INABILITY TO USE THE SITE OR THE SERVICE, ALL ANSWERS OR OTHER RESULTS GENERATED FROM THE USE OF THE SITE OR THE SERVICE, LOSS OF GOODWILL OR PROFITS, LOST BUSINESS HOWEVER CHARACTERIZED AND/OR FROM ANY OTHER CAUSE WHATSOEVER. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. IN ANY CASE, CELEBRATION WISHES’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO U.S. $100.00; BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- TERMINATION. This Agreement and the license granted herein shall automatically terminate without notice upon the occurrence of any of the following: (i) Your breach of any of the terms contained herein, which is not cured within ten (10) days after our notice to you; or (ii) You attempt to use, copy, license, or convey the Site or Service in any manner contrary to the terms of this Agreement or in derogation of our Intellectual Property Rights therein. You can also terminate this Agreement by sending us a notice to such effect. Immediately upon termination of this Agreement, whether or not you receive notice of such termination, the license shall be immediately terminated and you shall not have any further rights to use the Site or Service. All rights and remedies conferred herein shall be cumulative and in addition to all of the rights and remedies available to each party at law, equity or otherwise.
- GOVERNING LAW. This Agreement will be governed by and interpreted in accordance with the law of the State of California without reference to its choice of law rules. This Agreement shall be deemed to be performed in San Diego, CA. Both parties irrevocably submit to the exclusive jurisdiction of the state or federal courts located in San Diego County, CA for enforcement of any arbitral award or for any intermediate equitable relief, and both parties waive any right to object to the exclusive jurisdiction or venue of the courts San Diego County, CA. In the event of any action being filed to enforce an arbitral award, the prevailing party shall be entitled to its reasonable attorneys’ fees and expenses incurred in addition to any other relief to which it is entitled. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. YOU EXPRESSLY AGREE THAT ANY DISPUTE WITH CELEBRATION WISHES IS PERSONAL TO YOU, AND ANY SUCH DISPUTE SHALL ONLY BE RESOLVED BY AN INDIVIDUAL COURT PROCEEDING. NEITHER PARTY AGREES TO CLASS ACTION OR PROCEEDING WHERE A PERSON BRINGS A DISPUTE AS A REPRESENTATIVE OF ANY OTHER PERSON OR PERSONS. NEITHER PARTY AGREES THAT A DISPUTE CAN BE BROUGHT AS A CLASS OR REPRESENTATIVE ACTION ON BEHALF OF ANY OTHER PERSON OR PERSONS. THE PARTIES AGREE THAT A DISPUTE MAY ONLY BE RESOLVED THROUGH AN INDIVIDUAL COURT PROCEEDING AND SHALL NOT BE BROUGHT AS A CLASS ARBITRATION, A CLASS ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING
- DISPUTE RESOLUTION. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF DISPUTES THROUGH MANDATORY ARBITRATION WITH A FAIR HEARING BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION OR REPRESENTATIVE PROCEEDING. THE ENFORCEABILITY OF THIS AGREEMENT IS GOVERNED BOTH PROCEDURALLY AND SUBSTANTIVELY BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. SECTIONS 1-9 (“FAA”), TO THE MAXIMUM EXTENT PERMITTED BY LAW. You agree that any dispute or claim arising out of or in any way relating to this Agreement (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration. Arbitration Procedures. Before commencing arbitration you must first present any claim or dispute to us in writing to allow us the opportunity to resolve the dispute. If the claim or dispute is not resolved within 60 days, you may request arbitration by serving a completed Commercial Demand for Arbitration Form on us and the American Arbitration Association (“AAA“). You can contact the AAA at 800-778-7879 or www.adr.org. The arbitration shall be conducted by the AAA in accordance with its Commercial Arbitration Rules, and, when deemed appropriate by the arbitrator, the AAA’s Supplementary Procedures for Consumer-Related Disputes, except as expressly set forth in this Agreement. There shall be one arbitrator who will be a licensed attorney or a former judge and will have at least 10 years of legal experience in the resolution of commercial disputes. The arbitrator shall be chosen by written mutual agreement of the parties. If, after 7 days, you and we are unable to agree upon an arbitrator, the AAA will appoint the arbitrator. The arbitrator shall apply the substantive law of the state of California, without giving effect to its conflict of law provisions. All face-to-face proceedings shall take place in the State of California. Arbitration is final and binding. In making any award, the arbitrator will be restricted by the “Limitation On Liability” provision in this Agreement and will not have jurisdiction to make an award to any party to the arbitration contrary to the “Limitations on Liability” provision. You expressly agree that the rulings of the arbitrator, including any award, shall be binding, non-reviewable and non-appealable. The party requesting arbitration must pay the applicable AAA filing fee. Each party shall pay its own expenses of the arbitration, including the expense of its own counsel, witnesses, and presentation of evidence at the arbitration. If any party files a judicial or administrative action asserting a claim that is subject to arbitration and another party successfully stays such action or compels arbitration, the party filing that action must pay the other party’s costs and expenses incurred in seeking such stay or compelling arbitration, including reasonable attorneys’ fees. THE PARTIES EXPRESSLY AGREE THAT THERE SHALL BE NO JURY TRIAL OR RIGHT TO A JURY TRIAL, OR RIGHT TO ANY OTHER PROCEEDING TO RESOLVE ANY DISPUTE IN ANY COURT. THE PARTIES ALSO EXPRESSLY AGREE THAT ANY DISPUTE IS PERSONAL TO THEM, AND ANY SUCH DISPUTE SHALL ONLY BE RESOLVED BY AN INDIVIDUAL ARBITRATION. NEITHER PARTY AGREES TO CLASS ARBITRATION OR ARBITRATION WHERE A PERSON BRINGS A DISPUTE AS A REPRESENTATIVE OF ANY OTHER PERSON OR PERSONS. NEITHER PARTY AGREES THAT A DISPUTE CAN BE BROUGHT AS A CLASS OR REPRESENTATIVE ACTION OUTSIDE OF ARBITRATION, OR ON BEHALF OF ANY OTHER PERSON OR PERSONS. THE PARTIES AGREE THAT A DISPUTE MAY ONLY BE RESOLVED THROUGH AN INDIVIDUAL ARBITRATION AND SHALL NOT BE BROUGHT AS A CLASS ARBITRATION, A CLASS ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING.
- ASSIGNMENT. You shall not assign or otherwise transfer your rights or obligations under this Agreement to a third party.
- SEVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be deleted and re-interpreted to the extent necessary to comply with law and interpreted and substituted to accomplish the objectives of such provision to the greatest extent possible under applicable law. The remaining provisions of this Agreement will continue in full force and effect.
- FORCE MAJEURE. Other than for your payment obligations, neither party shall be liable for any delay or nonperformance due to acts of God, natural casualties, war, terrorism, material shortages, transportation and communications delays, energy shortages and disruptions, trade embargoes, governmental regulations, strikes, civil unrest and/or other causes beyond the reasonable control of a party (a “Force Majeure Event”). If a Force Majeure Event occurs, the party whose performance is affected shall give the other party written notice within ten (10) days of such occurrence, detailing the circumstances of the Force Majeure Event and an estimate of the anticipated delay in performance. The party whose performance is affected will use commercially reasonable efforts to develop a mutually acceptable work around plan in an attempt to minimize the impact of the Force Majeure Event. Performance shall be promptly resumed upon termination of the Force Majeure Event.
- ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. We shall have the right, at any time and without notice, to add to or modify this Agreement, simply by delivering such amended Terms to you by email at the address provided to Celebration Wishes by you, if applicable, or by posting the changes on the Site. Your access to or use of the Site or Service after the date such amended Terms are delivered to you shall be deemed to constitute acceptance of such amended Terms.
- LEGAL RELATIONSHIP. You hereby acknowledge and agree that you are an independent contractor and are free to choose to participate or not participate in the Service or access of the Site and, if you choose to participate, your scope and frequency of participation, and that you can modify any of the foregoing in your sole discretion. You further acknowledge that Celebration Wishes does not and shall not monitor, direct or participate in your participation or scope and frequency of participation in the Service or access to the Site and that you are free to participate in other endeavors and services without restriction. You hereby further acknowledge and agree that you shall not pursuant to this Agreement be, and shall not be considered, an agent or an employee of Celebration Wishes and that you shall have no right or authority at any time to make any contract or binding promise of any nature on behalf of Celebration Wishes or to hold yourself out as such.
- ELIGIBILITY. The Site and the Service are not intended for users under the age of 18. If you are a minor under the age of 18, you may not use the Site or the Service. Celebration Wishes does not knowingly collect personally identifiable information from users under the age of 13. We are committed to protecting the privacy of children and complying with the Children’s Online Privacy Protection Act (COPPA). Children under age 13 should not send any information about themselves to us. If a child under age 13 submits information through any part of the Site or Service, and Celebration Wishes becomes aware that the person submitting the information is a child, we will attempt to delete this information as soon as possible. Parents are requested to supervise their children’s online activities and consider using available parental control tools to help provide a safe online environment. For additional information about COPPA, visit the U.S. Federal Trade Commission Website at http://www.ftc.gov.
- WARRANTY AND ACKNOWLEDGEMENT. BY CLICKING “ACCEPT” AND ACCESSING THE SITE OR USING THE SERVICE, YOU ACKNOWLEDGE, WARRANT AND AGREE THAT (I) YOU ARE 18 YEARS OF AGE OR OLDER; (II) THE INFORMATION YOU PROVIDE IS TRUE, ACCURATE, COMPLETE AND CURRENT; AND (III) YOU HAVE READ THIS AGREEMENT AND YOU UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU MUST AGREE TO THIS AGREEMENT IN ORDER TO ACCESS THE SITE OR USE THE SERVICE.