LAST MODIFIED: NOVEMBER 2020
1. YOUR USE OF OUR SITES AND APPS
You may access and use our Sites and Apps solely for your personal, noncommercial use (or for commercial use with the prior and express written consent of Send Heirloom). Except as expressly authorized hereunder, our Sites and Apps may not be reproduced, duplicated, copied, sold, resold, visited, reverse-engineered or otherwise exploited for any commercial purpose without our prior written authorization. We reserve the right to alter or discontinue our Sites and Apps, in whole or in part, at any time in our sole discretion.
Subject to and conditioned upon your compliance with these Terms, we grant to you a non-exclusive, non-transferable, limited right and license, without right of sublicense, to access and use our Sites and Apps, including any images, text, graphics, sounds, data, links and other materials incorporated into our Sites and Apps (other than your User Submitted Materials as defined below), solely as made available by us and solely for your own personal purposes. Except as expressly authorized by these Terms, you may not use, reproduce, distribute, modify, transmit or publicly display any portion of our Sites and Apps or create derivative works of any portion of our Sites and Apps without our written consent. While using any of our Sites and Apps, you agree not to:
- Access or attempt to access videos or images that are not your images or accounts that you do not own, unless given permission by the video or image subject (or, in the case of a minor, the video or image subject's parent or legal guardian);
- Defame, abuse, harass, stalk, threaten or otherwise violate the rights of others, including, without limitation, others' privacy rights or rights of publicity;
- Impersonate any person or entity or use any fraudulent, misleading or inaccurate email address or other contact information;
- Restrict or inhibit any other user from using any of our Sites and Apps, including, without limitation, by means of "hacking" or defacing any portion our Sites and Apps;
- Violate any applicable laws or regulations;
- Upload to, transmit through, or display on any of our Sites and Apps (a) any material that is unlawful, fraudulent, threatening, abusive, harassing, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party's intellectual property or other rights; (b) any confidential, proprietary or trade secret information of any third party; or (c) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by us);
- Engage in spamming;
- Transmit any software or other materials that contain any viruses, worms, trojan horses, defects, or other destructive items;
- Modify, adapt, translate, distribute, reverse engineer, decompile or disassemble any portion of our Sites and Apps;
- Remove any copyright, trademark or other proprietary rights notices contained in or displayed on any portion of our Sites, Apps and Products;
- Display nudity;
- Upload videos or photographs of people who have not given permission for their videos or photographs to be uploaded; and
- Post objectionable material, such as material containing hate or malicious content or illegal acts or offers for adult services, or material inciting or advocating terrorism or violence.
If you fail to comply with the above rules, such failure will constitute a violation of these Terms, and in addition to any other rights or remedies we may have, we may immediately terminate your access to and use of our Sites and Apps. Some features of our Sites and Apps may enable you to send and receive transmissions. You acknowledge that we have no responsibility or liability for any transmissions, and/or any content included in such transmissions, sent or received by you. We reserve the right, in our sole discretion and at any time, to set limits on the number and size of any transmissions sent by or received through our Sites and Apps and/or the amount of storage space available for transmissions or for any feature made available through our website.
Before using any of our mobile applications ("App" or "Apps"), we may ask you to install a valid copy of the Apps on your mobile device, register for an account, input your account information into the Apps as requested, and meet certain hardware and connection requirements which may change as the Apps evolves. You are responsible for any internet connection fees and/or mobile carrier charges that you incur when accessing or using Apps. Should you uninstall an Apps from your mobile device, you may not be able to use all or some of the features of the Apps. While we attempt to accurately render a preview of videos to be sent in our Apps, we cannot guarantee that the video will arrive specifically as depicted on the App; there may be differences in color reproduction, resolution, cropping, scale, orientation, duration, encoding parameters, sound/volume quality, beginning time, and end time. Portions of the video or videos may be omitted from the final shipped Product for technical, logistical, or any other reason at our sole discretion.
2. YOUR MEMBER ACCOUNT
You may create a member account with any of our Sites and Apps by registering your name, providing certain information about yourself, and creating a password. The Sites or Apps you register with may provide single sign-on functionality; this allows us to offer features such as the ability to use your Send Heirloom account credentials across our integrated Sites and Apps where available, and to merge your accounts. You agree that you will provide complete, current and accurate information about yourself as requested, and that you will keep that information up to date. You are responsible for safeguarding the confidentiality of your username and password that you use to access your member account on our Sites and Apps. You agree not to disclose your username or password to any third party. YOU AGREE THAT YOU ARE SOLELY AND FULLY RESPONSIBLE FOR ANY ACTIVITIES OR ACTIONS TAKEN UNDER YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH ACTIVITIES OR ACTIONS. You will immediately notify us of any unauthorized use of your account on any of our Sites and Apps. In order to create a member account with any of our Sites and Apps, you must be at least 18 years of age. You represent to us that you are at least 18 years old. If you are not, please do not set up an account with any of our Sites and Apps.
3. MAKING PURCHASES
Your placement of an order through our Sites or Apps is an offer to purchase the Product(s) and/or Service(s) ordered and we may accept your order by processing your payment and shipping the final Product(s). Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. For any reason, we may decline to accept your order or any part of your order. No order will be considered accepted by Send Heirloom until the final Product(s) has been shipped to you. If some of the Products in your order are temporarily out of stock, we will ship the available Products only and notify you of any Products that cannot be fulfilled. If we decline to accept your order, we will attempt to notify you at the email address you provided. We further reserve the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Your order will be deemed accepted by Send Heirloom upon our delivery of the final Product(s) that you have ordered. We may require additional verifications or information before accepting any order. All Products shall be deemed accepted by you upon shipment, and title to, and risk of loss of, the Products passes to you when Send Heirloom provides the Product(s) to a common carrier. Any estimated shipping date provided by Send Heirloom is based on the date that Send Heirloom receives your order from you, Product availability and payment processing time, and does not include transit time.
Descriptions, images, references, features, content, specifications, Products, price and availability of any Products or Services are subject to change without notice, and our current prices can be found on our Sites and Apps. We make reasonable efforts to accurately display the attributes of our Products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any Products or Services on our Sites and Apps at a particular time does not imply or warrant that these Products or Services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased through our Sites and Apps. By placing an order, you represent that the Products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any Product or Service; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all purchase(s) before, during, or after the purchase is made; and/or to refuse to provide any user with any Product or Service.
The Products we offer are made to order, and we reserve the right to charge your payment account method immediately when you place your order for such Products. Title and risk of loss for any purchases pass to you upon our delivery to our carrier. We reserve the right to ship partial orders (at no additional cost to you). Any and all delivery estimates are approximate and items may arrive both before and after their advertised arrival or shipment dates.
4. THIRD-PARTY SITES, SOFTWARE AND SERVICES
YOU AGREE THAT YOUR USE OF THIRD PARTY SITES, SOFTWARE AND SERVICES INCLUDING, WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH SITES, SOFTWARE AND SERVICES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES, SOFTWARE AND SERVICES.
We will have the right, at any time and in our sole discretion, to block links to our Sites and Apps through technological or other means without prior notice.
5. SOCIAL MEDIA AND OTHER SERVICES
While using our Services, you have the option of granting us access to your account(s) with certain third-party social media and other services, such as Facebook, Instagram, Google Photos, Flickr, Twitter, and others (each, an "SNS"). Provided an SNS permits this, we can capture and make available on the Sites and through the Apps the videos and photos and other content that you have stored in your account(s) with such SNSs ("SNS Content"). By granting us access to your SNS Content, you understand that we will access, make available and store (if applicable) your SNS Content so that it is available on the Sites and through our Apps. We are not responsible for any SNS Content stored on an SNS that you choose to make available on the Sites and through our Apps. Depending on the SNS you choose and subject to the privacy settings you have set in your SNS account(s), personally identifiable information that you post to your SNS account(s) will be available on the Sites and through our Apps. Please note that if an SNS account becomes unavailable or SNS terminates our access to your SNS account(s), any SNS Content from that SNS may no longer be available on the Sites and through our Apps. You have the ability to disable the connection between the Sites and Apps and your SNS account(s), at any time, by accessing the "Settings" section of the Sites and Apps. PLEASE NOTE THAT YOUR RELATIONSHIP WITH EACH SNS, INCLUDING YOUR RIGHTS WITH RESPECT TO ANY CONTENT THAT YOU PROVIDE TO AN SNS AND THE STORAGE OF SUCH CONTENT, IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS.
6. MATERIALS SUBMITTED BY CUSTOMER
Any materials submitted by you, including, without limitation, photographs, videos, images, text, graphics and other materials (collectively, "User Submitted Materials") are subject to the following terms and conditions:
- You will retain ownership of such User Submitted Materials, and you grant us and our designees a worldwide, non-exclusive, transferable, royalty-free, perpetual irrevocable right and license, with right of sublicense (through multiple tiers), to use, reproduce, distribute (through multiple tiers), create derivative works of and publicly display such User Submitted Materials solely in connection with the production or provision of any Product or Service you request or to show you how your User Submitted Materials would appear in our Products or Services.
- Please note that, while you retain ownership of your User Submitted Materials, any packaging, template or layout in which you arrange or organize such User Submitted Materials through tools and features made available through any of our Sites and Apps are not proprietary to you, and the rights to such template or layout will remain with us.
- You represent and warrant that you own or otherwise possess all necessary rights with respect to the User Submitted Materials, and that the User Submitted Materials do not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trademark, trade secret right or other intellectual property or other property right of any third party, and that the User Submitted Materials are not unlawful, fraudulent, threatening, abusive, hateful, libelous, defamatory, obscene, confusingly similar to brands or branded products sold by others or otherwise objectionable.
- You consent to the use of your likeness, and you have obtained the written consent, release, and/or permission of every identifiable individual who appears in User Submitted Materials to use such individual's likeness, for purposes of using and otherwise exploiting the User Submitted Materials in the manner contemplated by these Terms, or, if any such identifiable individual is under the age of eighteen (18), you have obtained such written consent, release and/or permission from such individual's parent or guardian (and you agree to provide to us a copy of any such consents, releases and/or permissions upon our request). If you do submit a submission that contains the likeness of an identifiable individual under the age of eighteen (18), we strongly encourage you not to include any identifying information (such as the individual's name or address) with such User Submitted Materials.
- You agree that we may (but are not obligated to) filter any User Submitted Materials (including, without limitation, deleting or replacing expletives or other harmful or offensive language), refuse to use any User Submitted Materials (including, without limitation, suspending processing and shipping of any order relating to any User Submitted Materials) and/or disclose any User Submitted Materials and the circumstances surrounding the use thereof, to any third party in order to provide the applicable Products or Services, to enforce these Terms or to comply with legal obligations or governmental requests.
- User Submitted Materials that violate these Terms may be removed from our Sites and Apps; provided, however, that we have no obligation to remove User Submitted Materials in response to user reports or requests. We are not responsible for, and will have no liability for, the removal, non-removal or loss of any User Submitted Materials from our Sites and Apps. We recommend you keep back-up copies of your User Submitted Materials on your hard drive or other personal system.
7. CONTESTS AND SWEEPSTAKES
8. COPYRIGHT AND TRADEMARK ISSUES
While we are not obligated to review User Submitted Materials for copyright or trademark infringement, we are committed to protecting copyrights and trademarks and expect users of our Sites and Apps to do the same. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the internet infringes their rights under U.S. copyright law. If you believe in good faith that any material used or displayed on or through our Sites and Apps infringes your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on our Sites and Apps; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has 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 (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.copyright.gov for details. DMCA notices and counter-notices regarding our Sites and Apps, or notices concerning trademark use in personalized Products we make or in our Sites and Apps, should be sent to: DMCA Designated Agent Caitlin Stulberg, firstname.lastname@example.org and 4200 Wisconsin Ave., NW, #106-274, Washington, D.C., 20016.
9. DISCLAIMER OF WARRANTIES
EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THESE TERMS, OUR PRODUCTS AND SERVICES, INCLUDING ALL MATERIALS INCORPORATED THEREIN, ARE PROVIDED "WITH ALL FAULTS" AND ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE AND OUR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES AND AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NOTE: CERTAIN APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. NO STATEMENT OF OURS OR ANY OF OUR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES AND AFFILIATES SHALL CREATE ANY WARRANTY OTHER THAN THOSE EXPRESSLY CONTAINED IN THESE TERMS. We make no warranty that our Products, Services, Sites and Apps will meet your requirements, or that our Products, Services, Sites and Apps will be uninterrupted, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of our Products, Services, Sites and Apps or that defects in the Sites or Services will be corrected. You understand and agree that you will be solely responsible for any damage to your computer or loss of data that results from the download of any material and/or use of any of our Products, Services, Sites and Apps. No advice or information, whether oral or written, obtained by you from us through the Sites, Apps or otherwise will create any warranty, representation or guarantee not expressly stated in these Terms.
10. LIMITATION OF LIABILITY; RELEASE
YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO SELL OUR PRODUCTS AND SERVICES AND PROVIDE ACCESS TO THE SITES AND APPS IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE ENTIRE RISK OF USING THE SITES AND APPS, AS WELL AS OUR PRODUCTS AND SERVICES, REMAINS WITH YOU. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER WE NOR ANY OF OUR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, OR AFFILIATES (THE "SEND HEIRLOOM PARTIES") SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, PROFITS, USE OR DATA), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, EVEN IF THE SEND HEIRLOOM PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATING IN ANY WAY TO OUR PROVISION OF (OR FAILURE TO PROVIDE) PRODUCTS OR SERVICES, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SUBMISSIONS OR DATA, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT THE SEND HEIRLOOM PARTIES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHERMORE, THE SEND HEIRLOOM PARTIES WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED. WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM TRANSACTIONS BETWEEN YOU AND THIRD PARTY MERCHANTS OR FOR ANY INFORMATION APPEARING ON THIRD PARTY MERCHANT SITES OR ANY OTHER SITES LINKED TO OUR SITES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH PRODUCTS IS TO OBTAIN A REFUND, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITES, APPS OR SERVICES IS TO STOP USING THE SITE, APPS OR SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF THE SEND HEIRLOOM PARTIES ARISING OUT OF OR RELATING IN ANY WAY TO OUR PROVISION OF (OR FAILURE TO PROVIDE) PRODUCTS OR SERVICES SHALL BE THE ACTUAL PRICE PAID THEREFORE BY YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SEND HEIRLOOM AND YOU. NOTE: CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
Without limiting the foregoing, under no circumstances will Send Heirloom or our partners be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, pandemics, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties. Some states do not allow exclusion of implied warranties, so these exclusions may not apply in individual cases. You may have additional rights that vary from state to state. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such applicable law.
You hereby release the Send Heirloom Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Sites and Apps and/or our Products and Services, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Sites and Apps and/or our Products and Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."
11. NOTICE FOR CALIFORNIA USERS
This notice is for our California users: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
12. INTELLECTUAL PROPERTY NOTICES
The Sites and Apps along with all Send Heirloom created text, templates, scripts, graphics, interactive features, packaging and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Send Heirloom, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Send Heirloom reserves all rights not expressly granted in and to the Sites and Apps. You agree to not engage in the use, copying, or distribution of anything contained within the Sites and Apps unless we have given express written permission. Our Sites and Apps are © Send Heirloom, Inc. All rights reserved.
13. JURISDICTIONAL ISSUES
Our Sites and Apps are controlled and operated from the United States. Our Sites and Apps are not subject to the laws or jurisdiction of any state, country or territory other than that of the United States. We do not represent or warrant that any of our Sites and Apps, Products, and/or Services or any part thereof is appropriate or available for use in any particular jurisdiction. Those who choose to access Send Heirloom do so on their own initiative and at their own risk, and are responsible for complying with all applicable laws, rules and regulations. We may limit the availability of our Sites and Apps, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
These Terms are governed by and construed and enforced in accordance with the laws of the State of Delaware, United States of America, including its statute of limitations, without regards to its conflict of law provisions, and except to the extent preempted by or inconsistent with federal law. You agree to submit to the exclusive jurisdiction of the courts of the State of Delaware and the courts of the United States of America located in the State of Delaware, and waive any jurisdictional, venue or inconvenient forum objections to such courts. If any provision of these Terms, or the application thereof to any person, place or circumstance, will be held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, such provision will be enforced to the maximum extent possible, or, if incapable of such enforcement, will be deemed to be deleted from these Terms, and the remainder of these Terms and such provisions as applied to other persons, places and circumstances will remain in full force and effect. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy. This is the entire agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between us with respect to such subject matter. These Terms are not assignable, transferable or sublicenseable by you except with our prior written consent. These Terms may not be modified or amended except as set forth in the introductory section of these Terms. Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND SEND HEIRLOOM AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, THE PRODUCTS, THE SITES, APPS OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. If you have any questions or comments regarding these Terms, please contact: email@example.com.
Either you or we may terminate your access to our Sites and Apps and to your account at any time, with or without cause, and with or without prior notice. Without limiting the foregoing, we may terminate your access if you violate these Terms. Upon termination for any reason, your right to access and/or use our Sites and Apps will immediately cease. Upon termination, you will have no further access to, and we may delete, any information, files or materials in or related to your account, including, without limitation, any User Submitted Materials. Send Heirloom may delete all information, files and materials related to your account at any time, including any User Submitted Materials, and we will have no obligation whatsoever to save or make any such information, files or materials available to you. You agree that we will have no liability whatsoever to you or any other party as a result of a termination of your access to our Sites and Apps and to your account and/or as a result of the deletion or loss of any information, files or materials in or related to your account.
16. ARBITRATION AGREEMENT
If you elect to seek arbitration or file a small claim court action, you must first send to Send Heirloom, by certified mail, a written Notice of your claim ("Notice"). The Notice to Send Heirloom must be addressed to: Send Heirloom, Inc., 4200 Wisconsin Ave., NW, #106-274, Washington, D.C., 20016 ("Notice Address"). If Send Heirloom initiates arbitration, it will send a written Notice to the email address used for your account. A Notice, whether sent by you or by Send Heirloom, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Send Heirloom and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Send Heirloom may commence an arbitration proceeding or file a claim in small claims court.
You may download or copy a form Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after Send Heirloom receives notice at the Notice Address that you have commenced arbitration, Send Heirloom will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$2,000, in which event you will be responsible for filing fees.
The arbitration will be governed by the Consumer Arbitration Rules (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Unless Send Heirloom and you agree otherwise, any arbitration hearings will take place in the county of your residence.
If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of Send Heirloom's last written settlement offer made before an arbitrator was selected (or if Send Heirloom did not make a settlement offer before an arbitrator was selected), then Send Heirloom will pay you the amount of the award or US$1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
YOU AND SEND HEIRLOOM AGREE THAT EACH 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, unless both you and Send Heirloom agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If any provision of this paragraph is determined to be unenforceable with respect to any claim or any particular remedy for a claim (such as a request for public injunctive relief), then that claim or particular remedy (and only that claim or remedy) must remain in court and Send Heirloom be severed from any arbitration.