TERMS OF USE

 

1. Your Acceptance 

BY USING OR VISITING THIS WEBSITE (together with all Content available through the Hotbirthdays.com domain name and other sites owned, operated or controlled by Hotbirthdays, the "Website"), OR SUBMITTING CONTENT TO THIS WEBSITE, , “YOU” the user have entered into an User Agreement (“Agreement”) with Hotbirthdays.com ("Hotbirthdays," "we," "us," or "our") and YOU FURTHER SIGNIFY YOUR ASSENT TO (1) THESE TERMS OF USE (the "Terms of Use"), AND (2) Hotbirthdays'S PRIVACY POLICY at http://info.Hotbirthdays.com/company/privacy_policy.html. In addition, if you submit Content through the Studio Program, or use the Connect Program, you signify your assent to their additional Terms of Use. These Terms of Use apply to all users of the Website. If you do not agree to these Terms of Use, the Privacy Policy, or the Terms of Use for the Studio Program or Connect Program, then please do not use the Website.

2. Links 

The Website may contain links to third party websites that are not owned or controlled by Hotbirthdays. Hotbirthdays is not affiliated with those websites, has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Hotbirthdays will not and cannot censor or edit the content of any third-party site. By using the Website, you expressly release Hotbirthdays from any and all liability arising from your use of any third-party website. Accordingly, we encourage you to be aware when you have left the Website and to read the terms and conditions and privacy policy of each other website that you visit.

3. Website Access 

1. Hotbirthdays hereby grants you permission to use the Website, provided that: (i) your use of the Website is solely for your personal, noncommercial use; (ii) you will not copy, distribute or modify any part of the Website without Hotbirthdays's prior written authorization; (iii) you will not send unsolicited or unauthorized advertisements, spam, chain letters, etc., (iv) you will not transmit any Content which contains software viruses, or other harmful computer code, files or programs; (v) you will not disrupt servers or networks connected to the Website; and (vi) you comply with these Terms of Use.

2. In order to access some features of the Website, you will have to create an account. You may never use another's account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Hotbirthdays immediately of any breach of security or unauthorized use of your account. You will be liable for any use made of your account or password and the losses of Hotbirthdays or others due to such unauthorized use. Hotbirthdays will not be liable for your losses caused by any unauthorized use of your account.

3. You agree not to use or launch any automated system, including without limitation, "robots," "spiders," and "offline readers," that accesses the Website in a manner that sends more request messages to the Hotbirthdays servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Hotbirthdays grants the operators of public search engines permission to use spiders to copy materials from the Website for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. Hotbirthdays reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names or e-mail addresses, from the Website, nor to use the communication systems provided by the Website for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Website with respect to their User Submissions (as defined below).

4. Hotbirthdays has the right to terminate your access to the Website, in its sole discretion, immediately and with or without cause.

4. Intellectual Property Rights 

The content on the Website, including all User Submissions, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos and interactive features ("Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Hotbirthdays. Content on the Website is provided to you "AS IS" for your information and personal use only and may not be used, copied, distributed, transmitted, broadcast, displayed, sold, licensed, reverse engineered, de-compiled, or otherwise exploited for any other purposes whatsoever without Hotbirthdays's prior written consent. Hotbirthdays reserves all rights not expressly granted in and to the Website. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security-related features of the Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Website.

5. User Submissions 

1. The Website facilitates the submission of cards or other Content by you and other users ("User Submissions") and the hosting and publishing of such User Submissions. You understand that whether or not such User Submissions are published, Hotbirthdays does not guarantee any confidentiality with respect to any User Submissions. Hotbirthdays has complete discretion whether to display your User Submission on the Website.

2. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. You represent and warrant that: (i) you own or have the necessary rights and permissions to use and authorize Hotbirthdays to use all copyright, trademark or other proprietary rights in and to any User Submissions to enable inclusion and use thereof as contemplated by the Website and these Terms of Use; and (ii) you have the written consent and/or permission of each and every identifiable individual person in the User Submission to use their name or likeness as contemplated by the Website and these Terms of Use.

3. You retain all of your ownership rights in your User Submissions. However, by submitting the User Submissions to Hotbirthdays, you hereby grant Hotbirthdays, in addition to any other rights which it has pursuant to any other program established by Hotbirthdays, a worldwide, non-exclusive and transferable license to use, copy, prepare derivative works of (including without limitation, to rename, edit, shorten, split the cards into different segments, and use the entire card or segments as part of compilations), display, and perform the User Submissions in connection with the Website and Hotbirthdays's (and its successor's) business, including without limitation to grant access to the Website to third parties to view the User Submission (and derivative works thereof). You may notify Hotbirthdays to remove the User Submission from the Website, and Hotbirthdays will do so within a reasonable time period, at which point the foregoing license to Hotbirthdays will terminate other than with respect to usages by Hotbirthdays prior to such removal.

4. You also hereby grant each user of the Website or other viewer of the User Submission a non-exclusive right to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions, all for non-commercial and personal use.

5. You agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the User Submission and to grant Hotbirthdays all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage Hotbirthdays or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; or (iv) misidentify yourself in submitting the User Submission or misstate your true identity. Hotbirthdays does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Hotbirthdays expressly disclaims any and all liability in connection with User Submissions.

6. You understand that when using the Website, you will be exposed to User Submissions from a variety of sources, and that Hotbirthdays is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you may have against Hotbirthdays with respect thereto, and agree to indemnify and hold Hotbirthdays, its owners, affiliates, employees, agents and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Website. You acknowledge that access to certain Content which may be available through the Website and which depict violence, or contain images of nudity, sexual acts, or other sexual material ("Mature Content") is permitted only if you are over the minimum age applicable in your jurisdiction (often but not necessarily 18 or 21).

7. You understand, acknowledge and agree that by using the website and/or sending/ receiving ecards/ invitations, you will receive the following email communications:

  • Notification emails related to ecard/ invitation sending/ receiving/ viewing.
  • Reminder emails related to your unviewed ecards/ invitations.
  • Newsletters and Special Promotional Offers every week.
  • Notification emails for Upcoming Events/ Birthday/ Anniversary of your contacts.
  • Emails related to your registration with Hotbirthdays Connect.
  • Any other emails related to your activities on Hotbirthdays from time to time.

You also consent, permit and allow us to send invites on your behalf to your contacts to update their Birthdays/ Anniversaries while sending an ecard.

You may opt-out from receiving such emails at any time by clicking on the unsubscribe links provided in the respective emails.

You may opt-out from receiving Newsletters/ Special Promotional Offers by entering your details at the following link :http://nl.Hotbirthdays.com/unsubscribe

You can also un-subscribe notifying us by e-mail at support@Hotbirthdays.com and we will remove you from our mailing list promptly.

6. Digital Millennium Copyright Act

Hotbirthdays respects the intellectual property rights of others, and requests you to do the same. Hotbirthdays does not permit copyright infringing activities and infringement of intellectual property rights on its Website or related services, and Hotbirthdays will remove all Content if properly notified that such Content infringes another's intellectual property rights. Hotbirthdays reserves the right to remove Content without prior notice. Hotbirthdays will also terminate a User’s account if the User is determined to be a repeat infringer of copyright. Hotbirthdays may remove such Content and/or terminate a User's account due to a violation of these Terms of Use at any time, without prior notice and at its sole discretion.

If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
  • Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
  • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Hotbirthdays's Copyright Agent for Notice of claims of copyright infringement can be reached as follows:


Please also note that under Section 512(f) of the US Copyright Act any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

You acknowledge that if you fail to comply with all of the requirements of this Section 6, your DMCA notice may not be valid.
Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) 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 material in your Content, you may send a counter-notice containing the following information to the Copyright Agent:

  • Your physical or electronic signature;
  • Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
  • A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
  • Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in New York, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Hotbirthdays may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it 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 be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Hotbirthdays's sole discretion.

7. Warranty Disclaimer 

YOU AGREE THAT YOUR USE OF THE WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, Hotbirthdays, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF. Hotbirthdays MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE'S CONTENT AND ASSUMES NO LIABILITY FOR ANY (I) MISTAKES OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR USE OF THE WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT ON OR VIA THE WEBSITE. Hotbirthdays DOES NOT WARRANT, ENDORSE OR ASSUME RESPONSIBILITY FOR ANY CONTENT, OR PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE OR FEATURED IN ANY ADVERTISING, AND Hotbirthdays WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

8. Limitation of Liability 

IN NO EVENT SHALL Hotbirthdays, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) CONTENT, INCLUDING ANY MISTAKES OR INACCURACIES THEREIN, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT ON OR VIA THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Hotbirthdays IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

YOU SPECIFICALLY ACKNOWLEDGE THAT Hotbirthdays SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

9. Indemnity 

You agree to defend, indemnify and hold harmless Hotbirthdays, its affiliates, and their respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney's fees) arising from: (i) your use of the Website; (ii) your violation of these Terms of Use; (iii) your violation of the terms which apply to your User Submission; (iv) your violation of any third party right, including without limitation any copyright, property, publicity or privacy right; or (v) any claim that one of your User Submissions caused damage to a third party. This defense and indemnification obligation will survive these Terms of Use and your use of the Website.

10. International use 

The information or services provided on or through the Hotbirthdays Platforms themselves are not intended for distribution to or use directly, indirectly or otherwise, by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. We control and operate the Hotbirthdays Platforms from offices located in the United States and make no representations or warranties whatsoever that the information, products or services available through the Hotbirthdays Platforms are appropriate or legal for use or access in other locations. Anyone using the Hotbirthdays Platforms from other locations does so on their own initiative and is solely responsible for compliance with United States' and local laws regarding online conduct and acceptable content, if and to the extent such laws apply. We reserve the right to limit the availability of the Hotbirthdays Platforms or any portion of the Hotbirthdays Platforms, to any person or entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit and/or deny access to the quantities of any content, program, product, service or other feature that we provide. Software related to or made available by the Hotbirthdays Platforms may be subject to United States laws and/ or export controls.

Thus, no software from the Hotbirthdays Platforms may be directly and/ or indirectly downloaded, transmitted, sent, delivered, exported or re-exported: (a) into a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (b) by or to any person listed on any U.S. Government list of prohibited or restricted persons. By downloading any software related to the Hotbirthdays Platforms, you expressly represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.

11. Ability to Accept Terms of Use 

You affirm that you are either more than 18 years of age or possess legal parental or guardian consent to enter into these Terms of Use, and to comply with these Terms of Use. In any case, you affirm that you are over the age of 13, as the Website is not intended for children under 13. If you are under 13 years of age, then please do not use the Website-there are lots of other great web sites for you. Talk to your parents about what sites are appropriate for you.

12. Assignment 

These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Hotbirthdays without restriction.

13. General 

You agree that: (i) the Website shall be deemed solely based in New York; and (ii) the Website shall be deemed a passive website that does not give rise to personal jurisdiction over Hotbirthdays, either specific or general, in jurisdictions other than the State of New York. These Terms of Use shall be governed by the internal substantive laws of the State of NY, without respect to its conflict of laws principles. Any claim or dispute between you and Hotbirthdays that arises in whole or in part from the Website or these Terms of Use shall be decided exclusively by a federal or state court of competent jurisdiction located in New York. These Terms of Use, together with the Privacy Policy at http://info.Hotbirthdays.com/company/privacy_policy.html and any other legal notices published by Hotbirthdays on the Website, shall constitute the entire agreement between you and Hotbirthdays concerning the Website. If any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. No waiver of any term of this these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and a party's failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision. Hotbirthdays reserves the right to amend these Terms of Use at any time and without notice, and it is your responsibility to review these Terms of Use for any changes. Your use of the Website following any amendment of these Terms of Use will signify your assent to and acceptance of its revised terms. YOU AND Hotbirthdays AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE Hotbirthdays WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.