I. Terms of Service
Effective date: This Terms of Service is effective and was last updated as of August 13th, 2012
A. The We Heart It website (the "Website") is owned and operated by WHI, Inc. ("We Heart It", “we”, “us” or "our"). By accessing or using the services on our Website (the "Services") users of the Website and the Service (the "users" or "you") agree and acknowledge to be bound by these Terms of Service (the "Terms"). The Terms govern any information, tags, messages, graphics or other materials uploaded, downloaded, or appearing as a result of the use of the Services (collectively, the "Content"). By accessing or using the Services, you agree to be bound by these Terms.
B. Although We Heart It (“we”, “us” or “our”) may attempt to notify you when major changes are made to these Terms, you should periodically review the most up-to-date version. We may, at our sole discretion, modify or revise these Terms and policies at any time by giving notice on the Website, and you agree to be bound by such modifications or revisions. Nothing in these Terms shall be deemed to confer any third-party rights or benefits.
II. User Accounts
A. Creation of a User Account.
a. In order to create a user account on the Website (a “User Account”), you must (i) agree to be bound by these Terms, (ii) provide a valid email address, and (iii) provide any other information required during the registration process. You are responsible for providing complete and accurate information when registering for a User Account. You are responsible for maintaining the security of the User Account and password. You are also responsible for all content that is posted to the Website using the User Account we provide to you, as well as any other activity originating from the User Account we provide to you. By creating an account, you hereby agree to comply with all applicable law. We reserve the right to deny registration of any individual and to deny access to our Services to any individual. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in the User Account we provide to you.
B. Suspension and Termination of Account and Service.
a. Generally, accounts created with us will be considered active until we receive a user request to deactivate or delete them; however, we reserve the right to terminate any account that has been inactive for 180 days.
b. We reserve the right to limit, suspend, terminate, modify, or delete (i) the User Account we provide to you or (ii) your access to our services or portions thereof (including any Content you or other users submit) for any reason, including if you are, or we suspect that you are, failing to comply with any of these terms (including, without limitation, the “prohibited actions” set forth in Section V below) or for any actual or suspected illegal or improper use of the service, with or without notice to you. In the event of any of the above, we reserve the right to reassign your User Name.
c. We also reserve the right to stop offering and/or supporting the Service or any part of the Service at any time either permanently or temporarily, at which point your use of the Service or a part thereof will be automatically terminated or suspended.
d. We will not provide refunds, benefits or other compensation to users in connection with our exercise of any of our rights hereunder.
e. You may cancel any User Account registered to you at any time by following the instructions here.
III. General Terms
A. You are responsible for your use of the Website and Services, for any content you post using the Services, and for any consequences or liability arising therefrom. Other users of the Services will be able to view the Content you post, or display. You should only provide Content you are comfortable sharing under these Terms.
B. The Services may include advertisements targeted to users, Content or queries made through the Services, or other information. The types and extent of advertising by us on the Services are subject to change. In consideration for us granting you access to and use of the Services, you agree that we and our third party providers and partners may place such advertising on the Services or in connection with the display of Content or information from the Services whether submitted by you or others.
C. The Services that we provide are always evolving and the form and nature of the Services may change from time to time without prior notice to you. In addition, we may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally and may not be able to provide you with prior notice. We also retain the right to create limits on use and storage at our sole discretion at any time without prior notice to you.
IV. User posted and third party content
A. We do not review new Content prior to it being posted on the Website. By transmitting Content to our server you guarantee us that you have the right to make this Content available for use. You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party rights (including rights to publicity and privacy), unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant We Heart It all of the license rights granted herein.
B. Any use or reliance on Content posted using the Services or obtained by you through the Services is at your own risk
C. We do not guarantee, support or represent the completeness, reliability, truthfulness or accuracy of any Content appearing on the Website. You understand that by using the Services, you may be exposed to Content you may find offensive, inaccurate or otherwise inappropriate, deceptive or in some cases, mislabeled. We expressly disclaim any liability for any Content, including, but not limited to, any errors or omissions within any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services.
E. We reserve the right to limit or terminate the Services, remove hosted content and take technical and legal steps to bar users from the Website if we believe them to be in violation of these Terms. If you feel that any Content currently posted on the Website is in violation of these Terms, please click on the “Report this Entry” link next to the non-compliant Content and follow the instructions provided.
V. Prohibited actions
A. You agree that you will not:
- Take any actions with respect to your use of the Website that are unlawful, false, misleading, harmful, threatening, embarrassing, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, deceptive, fraudulent, invasive of another’s privacy, hateful, or contains explicit or graphic descriptions, accounts or photographic depictions of sexual or violent acts;
- Transmit any Content that victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of any impermissible classification, including, but not limited to posting discriminatory, racist or xenophobic Content;
- Transmit any Content that includes images or videos portraying realistic images of people or animals being killed or maimed, shot, stabbed, tortured or injured;
- Transmit any Content that infringes any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;
- Transmit any Content that you do not have a right to transmit under any law or under any contractual or fiduciary relationship;
- Transmit any Content that encourages excessive consumption of alcohol or illegal substances, or encourages minors to consume alcohol or smoke cigarettes;
- Transmit or post web links to any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of the Website, the Service, or any system or computer our Visitors and Users access the Website from;
- Interfere with or disrupt the Website or servers or networks linked to the Website, or disobey any requirements, procedures, policies, or regulations of networks linked to the Website;
- Violate any applicable local, state, national, or international law;
- Transmit any Content that includes images or videos of children, without first obtaining the consent of their parent to post such Content;
- Transmit any Content, or take any other actions with respect to your use of the Website, that would constitute, or would otherwise encourage, criminal conduct or conduct that could give rise to civil liability;
- Send unsolicited messages to Users (Spam) for commercial purposes;
- Use the Website for commercial purposes without our prior written consent;
- Solicit other guests of the Website to become members of any commercial on-line service or other group or organization without first obtaining our express written consent; or
- Transmit any Content that encourages thinspiration, depression, suicide, self harm, eating disorder, drug use or any behavior that can negatively influence other users.
VI. Digital Millennium Copyright Act
A. DMCA Take-Down Notices. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a written notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information (see 17 U.S.C 512(c)(3) for further detail):
- A signature (physical or electronic) of a person who has been authorized by the owner of the allegedly infringed right to act on their behalf
- Identification of the copyrighted work or other intellectual property that has allegedly been infringed;
- Identify the material on the Website that alleged to be infringing, with enough detail so that we are able to locate it on the website. Providing a URL or URLs is the most effective method of identifying such material;
- A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the information provided in the notice is accurate, and under penalty of perjury, that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner.
To expedite our ability to process your request, such written notice should be sent to our designated agent via our online copyright complaint form below. You will need a We Heart It account in order to utilize this tool.
If you prefer to contact us via postal mail or email you may do so here: Copyright Agent, We Heart It, 1442 A Walnut Street #200, Berkeley, CA 94709-1405, USA, Email: firstname.lastname@example.org
B. We Heart It’s designated Copyright Agent to receive notifications of claimed infringement is: Neil Berkman.
C. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to We Heart It customer support at email@example.com. You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid.
D. Counter-Notices. If you believe that your content that has been removed from the Website is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your content or materials, you may send a counter-notice containing the following information to our copyright agent using the contact information set forth above:
- Your physical or electronic signature;
- A description of the content that has been removed and the location at which the content appeared before it was removed;
- A statement that you have a good faith belief that the content was removed as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in the State of New York, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
E. If a counter-notice is received by our copyright agent, We Heart It may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may (in We Heart It’s discretion) be reinstated on the Website in 10 to 14 business days or more after receipt of the counter-notice.
VII. Account termination policy
We will terminate a user’s access to the Service if, under appropriate circumstances, the user is determined to be a repeat infringer. We reserve the right to decide whether Content violates these Terms for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, or excessive length. We may at any time, without prior notice and at our sole discretion, remove such Content and/or terminate a user’s account for submitting such material in violation of these Terms.
You hereby agree to defend, indemnify and hold us, our business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents (collectively, the “Indemnified Parties”) harmless from and against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that (i) arises from any alleged breach by you of this Agreement or any representations, warranties and/or covenants contained herein, (ii) arises from the Content or effects of any messages you distribute using our Service, or (iii) otherwise arises from or relates to your use of our Service. In addition, you acknowledge and agree that the Indemnified Parties have the right to seek damages when you use our Service for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.
IX. Electronic communications
You consent to receive communications from us electronically. We will communicate with you by e-mail to your registered email address or by posting notices on this site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
We Heart It provides access to portions of its site and services via RSS feeds; for the purposes of these terms, such access constitutes use of the Website and services. We ask that you use these features respectfully. You may not use these or any other features or the Website itself to allow the display of a substantial portion of the We Heart It database or reproduce, duplicate or copy the Website. We reserve the rights to change these features at any time and to disable access to the feeds and the API at any time for any reason.
XI. Governing law; Dispute resolution
A. In order to expedite and control the cost of disputes, you and We Heart It agree that any legal or equitable claim relating to these Terms (referred to as a “Claim”) will be resolved as follows:
Informal Resolution. You and We Heart It agree that we will first try to resolve any Claim informally. Accordingly, neither of us may start a formal proceeding for at least 30 days after one of us notifies the other of a Claim in writing. We Heart It will send its notice to your email address. You will send your notice to firstname.lastname@example.org.
Arbitration. Please read this carefully. It affects your rights. We Heart It and you (such references include our respective predecessors in interest, successors and assigns) agree to arbitrate all disputes and claims arising out of or relating to this Agreement between We Heart It and you. The arbitration shall be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AA Rules”) of the American Arbitration Association (“AA”), as modified by this Agreement, and shall be administered by the AA. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by the terms of this Agreement. Except as otherwise provided for herein, We Heart It will pay all AA filing, administration and arbitrator fees. If, however, the arbitrator finds that either the substance of your claim or the relief sought is improper or not warranted, as measured by the standards set forth in Federal Rule of Civil Procedure 11(b), then the payment of all such fees shall be governed by the AA Rules. In such case, you agree to reimburse We Heart It for all monies previously disbursed by it that are otherwise your obligation to pay under the AA Rules. If the arbitrator grants relief to you that is equal to or greater than the value of your Demand, We Heart It shall reimburse you for your reasonable attorneys’ fees and expenses incurred for the arbitration. You agree that, by entering into this Agreement, you and We Heart It are waiving the right to a trial by jury.
You and We Heart It agree that YOU AND We Heart It MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, and not as a plaintiff or class member in any purported class or representative proceeding. Further, you agree that the arbitrator may not consolidate proceedings or more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding, and that if this specific proviso is found to be unenforceable, then the entirety of this arbitration clause shall be null and void.
Formal Resolution. If we cannot resolve a Claim informally, you and We Heart It each agree to submit to personal jurisdiction in New York and agree that any and all Claims either of us asserts shall be exclusively brought in the appropriate state or federal court in the Southern District of the State of New York, provided that neither you nor We Heart It shall be precluded from filing a Claim in small claims court for disputes within the small claims court jurisdictional level.
Governing Law and Jurisdictional Issues. This Agreement is governed in all respects by the substantive laws of the State of New York and of the United States of America. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. Those who choose to access the Website from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Website from any territory where the content is illegal is prohibited. You may not use or export any of the Website materials in violation of U.S. export laws and regulations.
XII. Disclaimers and limitation of liability
A. No Express or Implied Warranties. OUR WEBSITE AND SERVICE ARE PROVIDED “AS IS” AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OTHER THAN THOSE WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS AS TO HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY DEPENDING ON YOUR PLACE OF RESIDENCE.
WE ARE NOT LIABLE FOR ANY DELAY OR FAILURE TO PERFORM RESULTING FROM ANY CAUSES BEYOND OUR REASONABLE CONTROL. AS SUCH, WE ARE NOT LIABLE FOR ANY ACTS OR OMISSIONS BY ANY OTHER PARTY FURNISHING A PORTION OF OUR. WE DO NOT WARRANT THAT OUR SERVICE WILL BE CONTINUOUS AND UNINTERRUPTED, SECURE OR ERROR OR VIRUS FREE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF OUR SERVICE. USE OF OUR SERVICE AND ANY RELIANCE BY YOU UPON OUR SERVICE IS AT YOUR SOLE RISK. THIS INCLUDES ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE.
B. LIMITATION OF LIABILITY. WE SHALL NOT BE LIABLE TO YOU FOR PERSONAL INJURY, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL OR LOST PROFITS), UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OF SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE RISK OF SUCH DAMAGES. BY ENTERING INTO THIS AGREEMENT, YOU AGREE THAT OUR LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNT OF THE MONTHLY SUBSCRIPTION FEE WE COLLECT FROM YOU.
YOU SPECIFICALLY ACKNOWLEDGE THAT WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR YOUR USE OF OUR WEBSITE, OUR SERVICE OR STORAGE, DISPLAY OR TRANSMISSION OF ANY CONTENT OR FOR YOUR OR ANY THIRD PARTIES’ DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW, THEREBY MINIMIZING OUR LIABILITY TO YOU TO THE LOWEST AMOUNT PERMITTED BY APPLICABLE LAW
A. Suggestions and Feedback. We welcome feedback or inquiries about our services. However, if you elect to provide any feedback or comments of any nature to us, all of such feedback and comments shall be our sole and exclusive property and we will have the right to use such feedback in any manner and for any purpose at our discretion without remuneration, compensation or attribution to you, provided that we are under no obligation to use such feedback.
B. Right to Assign. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned or delegated by us, in whole or in part, without restriction.
C. No Agency. No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind us in any respect whatsoever.
E. Consumer Rights Notice. Under California Civil Code Section 1789.3, California users of the Website and/or Service receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at 1-800-952-5210.
F. For Parents. This Website is not intended for children under the age of 13. Control tools are available from online services and software manufacturers that can help provide a safe online environment for kids. You can find out about software that protects your kids at http://www.ftc.gov/bcp/edu/pubs/consumer/tech/tec08.shtm and at http://kids.getnetwise.org/tools/.
G. Contact Us. If you have any questions, comments or concerns about these Terms and/or the Website, you may send an inquiry to: email@example.com. However, please note that communications made through the Website’s e-mail and messaging system shall in no way be deemed to constitute legal notice to us or any of its officers, employees, agents or representatives, such as where notice to us is required by contract, or any federal, state or local laws, rules or regulations. You may provide legal notice to us here.