TERMS OF SALE
The following Terms of Sale apply to your use of all websites, mobile applications, and other products and services owned, controlled, operated or hosted (whether now or in the future) by Datevitation Inc. dba Datevitation and/or its corporate affiliates, including but not limited to Datevitation.com, SillyWise.com, and all related applications and services (collectively the “Datevitation Sites”).
Terms of Sale
Last Updated: September 1, 2015
These Terms of Sale are subject to change by Datevitation from time to time. In the event of such changes, we will post the changes on the Datevitation Sites and/or notify you via email. Also, we may ask you to review and consent to the changes at the time of your next account login or at the time of your next purchase on or through any of the Datevitation Sites. Changes to these Terms of Sale shall apply to any purchases made after such notice and consent. Please review these Terms of Sale prior to each purchase so you will understand the terms applicable to such transaction. If you do not agree to these Terms of Sale, do not make any purchases on or through the Datevitation Sites.
PLEASE READ THESE TERMS OF SALE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.
You must be a Datevitation Member to access certain goods, services and content offered on the Datevitation Sites, such as the Datevitation Premium Content Services described in Section 1.4 below (collectively “Membership-based Features”). With respect to any Membership-based Features, you acknowledge and agree that, by making such features accessible to members in general, Datevitation will have fully satisfied its obligation to deliver or otherwise provide such features to you (and/or to your intended authorized recipients), regardless of your or your recipients’ failure or inability to use such features.
1.1 Non-Trial Memberships
If you register to become a Datevitation Member, we will charge you the applicable membership fee for the applicable membership term using your selected payment method, at the time of purchase. Datevitation guarantees satisfaction of all non-trial annual membership sales. If you are not satisfied with non-trial annual Membership you can request a cancellation within thirty (30) days from the date your payment has been accepted and processed and you will receive a full refund of the payment. Please note that your access to the Membership-based Features will cease immediately following such refund. NO REFUND will be given, whether in whole or in part, for monthly memberships or if you request a cancellation more than 30 days after your payment for an annual membership has been accepted and processed. You may turn off the auto-renewal at any time for Non-Trial Memberships, but NO REFUND will be given, whether in whole or in part, and your access to the Membership-based Features will continue only for the remainder of the non-trial annual membership term.
1.2 Membership Renewals
On some Datevitation products, your membership will automatically be renewed at the end of the membership term unless: (i) you turn off the auto-renew feature prior to the expiration date of your then existing membership; or (ii) you request a cancellation within thirty (30) days from the date your renewal payment has been accepted and processed (in which case you will receive a full refund of the renewal payment). NO REFUND will be given, whether in whole or in part, if you request a cancellation more than 30 days after your renewal payment has been accepted and processed, and your access to the Membership-based Features will continue only for the remainder of the renewed membership term. To cancel your membership renewal, please go to the “My Account” section of the Datevitation Site(s) where you have a membership account.
1.3 Trial Periods
In order to allow customers an opportunity to “sample” our products and services, occasionally we offer trial periods during which you will have the ability to cancel your membership within a stated period of time and receive a full refund. If you do not cancel during the trial period, you will automatically be converted into a non-trial member upon expiration of the trial period. If you cancel after the trial period has ended, NO REFUND will be given, whether in whole or in part, and your access to the Membership-based Features will continue only for the remainder of the non-trial membership term. To cancel your trial membership, please go to the “My Account” section of the Datevitation Site(s) where you have a trial membership account.
1.4 Datevitation Premium Content Services
Membership is required to access certain parts of Datevitation’s service that allows you to create digital greeting cards and personalized media using certain content, including without limitation, audio, audiovisual and/or still images (as the service may permit) from Datevitation’s library (the “Datevitation Premium Content”), to personalize such Datevitation Premium Content (in certain instances), and to share such Datevitation Premium Content with others, all to the extent permitted by Datevitation (the “Datevitation Premium Content Services”). Unless otherwise noted, you will have access to your Datevitation Premium Content for a minimum of two (2) weeks upon creation, unless earlier removed by you or your recipient. All Datevitation Premium Content from Datevitation’s library that is offered as part of the Datevitation Premium Content Services constitute part of Datevitation’s proprietary content, and your use thereof is subject to your compliance with the Datevitation Terms of Service. In addition, any messages that you include with your Datevitation Premium Content must comply with all terms and conditions regarding User Materials and User Conduct as set forth in the Datevitation Terms of Service. For the avoidance of doubt, the Datevitation Premium Content Services are services (notwithstanding any use of the terms “purchase,” “buy,” “sell,” “order” or the like on the Datevitation Sites or in these Terms of Sale), and neither you nor your recipient obtains or retains any rights or ownership interest of any kind in or to any Datevitation Premium Content, and neither you nor your recipient may reproduce, distribute, transfer, modify, create derivative works or otherwise use such content in any manner other than as expressly authorized by Datevitation. All use of the Datevitation Premium Content Services is for your personal, non-commercial use only.
1.5 Datevitation’s Right to Terminate
Datevitation reserves the right to terminate your membership at any time for any breach or violation by you of the Datevitation Terms of Service. In the event of such termination, you will not be entitled to any refund of any unused portion of the membership fee previously paid by you.
2. A la Carte Purchases
No membership is necessary to purchase virtual goods, physical goods, gift subscriptions, or material offered on a pay-per-download basis on the Datevitation Sites. For purchases of a la carte virtual goods, physical goods or pay-per-download material, we will bill you on an order-by-order basis, i.e., we will charge the purchase amount to your specified credit card/debit card when you click submit on the order or download page. For the avoidance of doubt, neither the term “physical goods” nor the term “pay-per-download material” will include online, streaming use of the Datevitation Premium Content described in Section 1.4 above (except for special orders and as otherwise noted by Datevitation).
2.1 Physical Goods
All physical goods purchased on or through the Datevitation Sites will be shipped FOB Shipping Point. Title to such goods passes from Datevitation to you upon shipment. Subject to our return and exchange policies set forth in this Section 2.1, all purchases of physical goods on or through the Datevitation Sites are final, non-cancelable and non-refundable. You may return the following items within ten (10) days of delivery for a refund of the purchase price actually paid by you, subject to the terms and conditions set forth below: (i) new, unopened items in their original containers or packaging; and (ii) defective or damaged items, or items delivered due to an error by Datevitation (each, a “Faulty Item”). However, we DO NOT accept returns of the following: (i) items returned more than 10 days after delivery; (ii) items that have been opened, unless it is a Faulty Item; (iii) items that have obvious signs of use; or (iv) damaged items where damage occurred after your receipt of the item or during the return shipping. Except for Faulty Items, a twenty-percent (20%) restocking fee may be applied to your return and you will be responsible for paying the return shipping costs. To return any item, you must call Datevitation’s customer service first for a return authorization number, and NO return will be accepted without a return authorization number.
In lieu of a refund, you may exchange a Faulty Item for the same item, provided that you return the Faulty Item with an exchange request within ten (10) days of delivery. Unfortunately, we cannot accept exchange of a Faulty Item for a different item. If you wish to purchase a different item, you may return the Faulty Item for a refund and place a new order for the item you wish to purchase.
2.2 Gift Subscriptions
A gift subscription has a term of five (5) years from the date it is issued. IF AND TO THE EXTENT A GIFT SUBSCRIPTION IS NOT USED WITHIN FIVE (5) YEARS FROM THE DATE IT IS ISSUED, THE GIFT SUBSCRIPTION EXPIRES.
2.3 Pay-Per-Download Material
With respect to any a la carte virtual good or pay-per-download material that you purchase on or through the Datevitation Sites, you acknowledge and agree that, upon making such material available to you (or to your intended authorized recipients) for download, Datevitation will have fully satisfied its obligation to deliver or otherwise provide such material, regardless of your or your recipients’ failure or inability to view, play, use or store such material. All purchases of a la carte virtual goods and pay-per-download material on or through the Datevitation Sites are final, non-cancelable and non-refundable, and no such material is returnable or exchangeable (except as expressly otherwise provided in these Terms of Sale or as otherwise determined by Datevitation in its sole discretion). For the avoidance of doubt, a la carte virtual goods and pay-per-download material is provided for your personal, non-commercial use only and remains the exclusive property of Datevitation.
3. Membership Enhancements
We may offer enhancements related to your membership and/or a la carte purchase options. For example, we may offer an ad-free membership, a membership that includes bonus content, or the ability to download digital video files to your desktop for an additional fee. Such membership enhancements may be added for an additional NON-REFUNDABLE fee and may be cancelled at any time (provided that you will continue to have access to your purchased enhancements for the duration of your basic membership). You may renew your basic membership and choose not to renew your membership enhancements, but you may not renew membership enhancements without a basic membership.
4. General Provisions
4.1 Purchase Qualifications; Account Security
To make any purchase on or through the Datevitation Sites (including, without limitation, purchase of memberships, a la carte virtual goods, physical goods, gift subscriptions, and/or pay-per-download material), you must be a Registered User (as defined in the Datevitation Terms of Service) and comply with these Terms of Sale (including the Datevitation Terms of Service). You acknowledge that you are responsible for maintaining the security of, and restricting access to, your account and password, and you agree to accept responsibility for all purchases and other activities that occur under your account. Datevitation sells its products and services only to those who can legally make purchases with a credit card/debit card. If you are under 18 years of age (but not younger than 13), you may make purchases on or through the Datevitation Sites only with the consent and supervision of a parent or guardian. No one under 13 is allowed to make any purchase on any of the Datevitation Sites or Datevitation Services. Datevitation reserves the right to refuse or cancel any customer order or terminate any customer account with Datevitation, at any time in its sole discretion (except as prohibited by law).
4.2 Payment Method and Terms
We accept Visa, MasterCard, American Express, and Discover credit cards and certain debit cards, as forms of payment. By submitting an order on or through the Datevitation Sites, you authorize Datevitation, or its designated payment processor, to charge the purchase amount (and in the event of a membership renewal, you authorize Datevitation, or its designated payment processor, to automatically charge the renewal amount) to the credit card/debit card account you specified. No purchase will become effective unless and until your payment has been accepted and processed. Datevitation reserves the right to report, investigate and prosecute to the fullest extent required or permitted under applicable law, any fraudulent, unauthorized or otherwise unlawful use of any credit card or debit card by any person on or through the Datevitation Sites.
You are responsible for any and all applicable sales, use and other taxes, duties, and governmental fees and charges payable in connection with your purchase made on or through the Datevitation Sites. If you do not pay such taxes or fees on a transaction, you will be responsible for such taxes or fees in the event that they are later determined to be payable on such sale, and Datevitation reserves the right to collect or withhold such taxes or fees from you at any time.
4.4 Product and Service Availability; Errors
Datevitation may revise, discontinue or modify products or services offered on or through the Datevitation Sites, at any time without prior notice to you, If a product or service offered by you is or becomes unavailable, Datevitation may decline or cancel your order (and issue you a refund if you have paid for the order), with no further liability or obligation to you. If a product or service offered by you is or becomes unavailable, Datevitation may, in its sole discretion, offer to substitute your order with another product or service of equal or greater value, and will make such substitution only with your written or recorded consent.
While we strive to eliminate errors on the Datevitation Sites, we do not warrant that all products, services, information and content offered on the Datevitation Sites will be accurate, complete, reliable, current, or error-free. Unless expressly otherwise noted, all products, services, information and content offered on the Datevitation Sites are provided “as is” without warranty of any kind. In the event of an error by Datevitation in processing or delivering your order, Datevitation may, at its election: (i) correct such error and revise your order accordingly if necessary (including charging the correct price and billing you for any undercharged amount or refunding to you any overcharged amount, as the case may be); or (ii) cancel your order affected by the error and issue a refund of the purchase amount actually paid by you for such order. By placing an order on or through the Datevitation Sites, you acknowledge and agree that, in the event of an error by Datevitation in processing or delivering your order, your sole remedy is to cancel your order and return the physical goods delivered (if any) for a refund of the purchase amount actually paid by you, all subject to Datevitation’s cancellation, return and refund policies set forth in these Terms of Sale.
ANY WARRANTY ON PRODUCTS OR SERVICES PURCHASED THROUGH ANY OF THE DATEVITATION SITES ARE PROVIDED BY THE ORIGINAL MANUFACTURER ONLY AND NOT BY DATEVITATION. DATEVITATION ITSELF MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS OR SERVICES SOLD ON ANY OF THE DATEVITATION SITES.
ALL PRODUCTS AND SERVICES ON THE DATEVITATION SITES ARE PROVIDED OR SOLD "AS-IS" AND DATEVITATION DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DATEVITATION CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF PRODUCTS OR SERVICES. DATEVITATION DOES NOT REPRESENT OR WARRANT THAT PRODUCTS, SERVICES OR ANY PART THEREOF, ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT PRODUCTS OR SERVICES THAT ARE DOWNLOADED FROM THE SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH CONTENT OR MATERIALS AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES.
Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Datevitation.
4.7 Limitation on Liability
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, IN NO EVENT WILL DATEVITATION OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION FOR ANY LOST PROFITS OR LOST DATA, ARISING FROM YOUR PURCHASE OR USE OF ANY PRODUCTS OR SERVICES ON THE DATEVITATION SITES, EVEN IF DATEVITATION IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, DATEVITATION’S AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO DATEVITATION FOR THE PURCHASE OR USE OF ANY PRODUCT OR SERVICE ON THE DATEVITATION SITES, BUT IN NO CASE WILL DATEVITATION’S TOTAL LIABILITY TO YOU EXCEED $200.00.
CERTAIN STATE LAWS 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 MAY HAVE ADDITIONAL RIGHTS.
4.8 Governing Law; Venue and Jurisdiction
You agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern your use and purchase of products and services and these Terms of Sale, and any dispute of any sort that might arise between you and Datevitation or any of our affiliates. With respect to any disputes or claims not subject to arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in the Los Angeles County, California, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in the Los Angeles County, California.
YOU AND DATEVITATION AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS OF SALE OR THE SALE OF ANY PRODUCT OR SERVICE BY DATEVITATION SHALL BE FINAL AND BINDING ARBITRATION, except that, to the extent that either party has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's patent, copyright, trademark or trade secret rights, such other party may seek injunctive or other appropriate relief.
Arbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA's Supplementary Procedures for Consumer Related Disputes ( the "AAA Consumer Rules") (collectively the "AAA Rules"). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). If such costs are determined to be excessive in a consumer dispute, Datevitation will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF SALE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SITE OR ANY DATEVITATION PRODUCTS OR SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to any products or services purchased by you on or through any of the Datevitation Sites be instituted more than one (1) year after the cause of action arose.
You agree to indemnify and hold Datevitation, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney's fees, arising out of or in connection with your purchase or use of any products or services offered on any of the Datevitation Sites, or any violation of these Terms of Sale or of any law or the rights of any third party.
For customer support, please send us a message via the Contact page, or send an email to email@example.com for DATEVITATION inquiries or firstname.lastname@example.org for SILLYWISE inquiries.