Terms of Use

FACECAKE MARKETING TECHNOLOGIES, INC.

TERMS OF USE

PLEASE NOTE: Your access to and use of this Mini Application are subject to these Terms of Use (“TOU”), as well as all applicable laws and regulations. Please read these TOU carefully. If you do not accept and agree to be bound by any of these TOU, you are not authorized to access or otherwise use this Mini Application or any information, content, Services or Software contained on this Mini Application. Your access to and use of this Mini Application constitute your acceptance of and agreement to abide by each of these terms and conditions set forth below without modification. These TOU may be changed, modified, supplemented or updated by FaceCake from time to time without advance notice by posting here and you will be bound by any such changed, modified, supplemented or updated TOU if you continue to use this Mini Application after such changes are posted. Unless otherwise specifically indicated, any new Products and Services, Content and Software added to this Mini Application will also be subject to these TOU effective upon the date of any such addition. You should periodically visit this page to determine the current TOU to which you are bound.

1.         The Services. This Mini Application provides users with access to an online collection of information and materials and certain online services (“Services”). These materials may include applications and forms and other information related to certain products and services (“Products and Services”) offered by FaceCake or otherwise associated with FaceCake. The Mini Application also contains text, pictures, graphics, logos, button items, images, works of authorship, and other content (collectively with all information and material about Products and Services, “Content”), and may provide access to certain proprietary software used in connection with navigating and utilizing the functionality offered through this Mini Application (“Software”).

2.         Use of the Mini Application.

        (a)        Eligibility. This Mini Application is intended for use only by users who are at least 13 years of age and who reside in the United States. FaceCake makes no representation that the Content, Information, Products, Services or Software are available for use outside of the United States. Any use of the Services, Content and Software is prohibited where it is not allowed by law.

        (b)        Compliance with TOU and Applicable Law. You must comply with all of the terms and conditions of this TOU, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the Services and the Mini Application.

        (c)        Your License to use the Mini Application and the Service. FaceCake hereby grants you a limited license to access and make personal use of this Mini Application, but not to modify it, or any portion of it, except with express written consent of FaceCake. This license does not include any resale or commercial use of this Mini Application or its Contents or Software; any collection and use of any product listings, descriptions, or prices; any derivative use of this Mini Application or its contents; or any use of data mining, robots, or similar data gathering and extraction tools. This Mini Application or any portion of this Mini Application may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without the express written consent of FaceCake. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of FaceCake or its affiliates without FaceCake’s express written consent. You may not use any meta-tags or any other “hidden text” utilizing any of FaceCake name(s) or service marks or its affiliates without the express written consent of their owners. Any unauthorized use terminates the permission or license granted by FaceCake.

        (d)        Copyright. Except as otherwise expressly stated, all Content and Software appearing on this Mini Application are the copyrighted work of FaceCake, its affiliates or third party content suppliers and are protected by U.S. and international copyright laws. The compilation (meaning the collection, arrangement and assembly) of all Content and Software is also the exclusive property of FaceCake or its affiliates and is protected by U.S. and international copyright laws.

        (e)        Trademarks and Service Marks. Certain trademarks, including “FACECAKE”, are the registered service marks of FaceCake. The name of this Mini Application, FaceCake logos, all page headers, custom graphics, and button icons are service marks, trademarks, logos, and/or trade dress of FaceCake or its affiliates. All other trademarks, service marks, trade dress, product names, company names or logos, whether registered or not, on the Mini Application are the property of their respective owners. In addition to complying with all applicable laws, you agree that you will not use any such trademarks, service marks, trade dress, or other logos from this Mini Application without the prior written authorization of FaceCake.

        (f)        Proprietary Software. Any Software accessible through this Mini Application is the property of FaceCake or its suppliers and is protected by U.S. and international patent, trade secret, and copyright laws and international treaties. Any use of the Software by you other than as required to navigate and to utilize the intended functionality offered through this Mini Application is prohibited. You agree not to copy, distribute, publicly display, alter, modify, decompile, disassemble, reverse engineer or otherwise attempt to discover the source code of the Software. Further, you agree not to access the Services or Content by any means other than the interface provided by FaceCake through this Mini Application for your use in accessing the Services and Content.

        (g)        Connection Requirements. You are responsible for providing and maintaining, at your own risk, option and expense, any hardware, software and communication lines required to access and use this Mini Application, and FaceCake reserves the right to change the access configuration of this Mini Application at any time without prior notice.

        (h)        Third Party Services. This Mini Application may contain hyperlinks to other sites owned and operated by parties other than FaceCake. Such hyperlinks are provided only for ready reference and ease of use. We do not control such websites and cannot be held responsible for their content or accuracy and do not endorse these sites unless we specifically so state. In the event this Mini Application provides hyperlinks to other websites that are not owned, operated or maintained by FaceCake or its affiliates, you acknowledge and agree that FaceCake is not responsible for and is not liable for the content, products, services or other materials on or available from such websites. Any such websites are likely to set forth specific TOU and privacy policies that you should review.

        (i)         Password Accounts, Passwords, and Security. If you have been given the option to open an account or register on this Mini Application which will provide you with access to password-protected portions of the Mini Application and you elect to do so, you must complete the registration process by providing us with current, complete and accurate information as prompted by the applicable registration form, and choose a password. You are entirely responsible for maintaining the confidentiality of your password and account and for any and all activities that occur under your account. You agree to (a) immediately notify FaceCake of any unauthorized use of your account or any other breach of security of which you become aware, and (b) exit completely from your account at the end of each online session. FaceCake will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by FaceCake or another party due to someone else using your account or password. You may not use anyone else's account at any time, without the permission of the account holder.

3.         Rules for Use of the Mini Application.

            (a)        Prohibited Use. Any use or attempted use of this Mini Application (i) for any unlawful, unauthorized, fraudulent or malicious purpose, or (ii) that could damage, disable, overburden, or impair any server, or the network(s) connected to any server, or (iii) interfere with any other party's use and enjoyment of the Mini Application, or (iv) to gain unauthorized access to any other accounts, computer systems or networks connected to any server or systems through hacking, password mining or any other means, or (v) to access systems, data or information not intended by FaceCake to be made accessible to a user, or (vi) attempt to obtain any materials or information through any means not intentionally made available by FaceCake, or (vii) any use other than the business purpose for which it was intended, is prohibited.
In addition, in connection with your use of the Mini Application, you agree you will not:

        a) Upload or transmit any message, information, data, text, software or images, or other content (“Material”) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable, or that may invade another's right of privacy or publicity;

        b) Create a false identity for the purpose of misleading others or impersonate any person or entity, including but not limited to any FaceCake representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;

        c) Upload or transmit any Material that you do not have a right to reproduce, display or transmit under any law or under contractual or fiduciary relationships (such as nondisclosure agreements);

        d) Upload files that contain viruses, trojan horses, worms, time bombs, cancel-bots, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property of another;

        e) Upload or transmit any unsolicited advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation, commercial or otherwise;

        f) Violate any applicable local, state, national or international law;

        g) Upload or transmit any Material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party;

        h) Delete or revise any Material posted by any other person or entity;

        i) Manipulate or otherwise display the Mini Application by using framing, mirroring or similar navigational technology or directly link to any portion of the Mini Application other than the main homepage, www.facecake.com, in accordance with the Limited License and Mini Application Access outlined above; or

        j) Register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any Product or Service if you are not expressly authorized by such party to do so; or

        k) Harvest or otherwise collect information about others, including e-mail addresses.

FaceCake reserves the right to take whatever lawful actions it may deem appropriate in response to actual or suspected violations of the foregoing, including, but not limited to, the suspension or termination of the user's access and/or account. FaceCake may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong. Except as may be expressly limited by the Privacy Policy, FaceCake reserves the right at all times to disclose any information as FaceCake deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or Materials, in whole or in part, in FaceCake's sole discretion.

            (b)        No Modification. Except as otherwise expressly stated herein, you may not alter, modify, copy, distribute (for compensation or otherwise), transmit, display, perform, reproduce, reuse, post, publish, license, frame, download, store for subsequent use, create derivative works from, transfer, or sell any information or Content obtained from this Mini Application, in whole or in part, including any text, images, audio, and video in any manner, without the prior written authorization of FaceCake or any applicable third party suppliers. Any unauthorized use of text or images may violate copyright laws, trademark laws, the laws of privacy and publicity, and applicable regulations and statutes. Neither FaceCake nor its affiliates warrant or represent that your use of Content, Services, Software or any other materials displayed on this Mini Application will not infringe rights of third parties.

            (c)        Monitoring. FaceCake neither actively monitors general use of this Mini Application under normal circumstances nor exercises editorial control over the content of any third party's website, electronic mail transmission, news group, or other material created or accessible over or through this Mini Application. FaceCake has no liability or responsibility to users for performance or nonperformance of such activities. FaceCake reserves the right to expel users and prevent their further access to the Mini Application for violating these TOU or the law and the right (but not the obligation) to remove communications that are abusive, illegal or disruptive. However, FaceCake does reserve the right to monitor such use at any time as it deems appropriate and to remove any materials that, in FaceCake's sole discretion, may be illegal, may subject FaceCake to liability, may violate these TOU, or are, in the sole discretion of FaceCake, inconsistent with FaceCake's purpose for the Mini Application.

        (d)        No Editorial Control. To the extent that any of the Content included in the Mini Application is provided by third party content providers, FaceCake has no editorial control or responsibility over such Content. Therefore, any opinions, statements, services or other information expressed or made available by third party suppliers on this Mini Application are those of such third party suppliers. FaceCake does not represent or endorse the accuracy or reliability of any opinion, statement or other information provided by any third party, or represent or warrant that your use of the Content displayed on this Mini Application or referenced content or service providers will not infringe rights of third parties not owned by or affiliated with FaceCake. You acknowledge that any reliance on material posted by other users will be at your own risk. Statements posted on the Mini Application by other users shall not be attributable to FaceCake, nor shall FaceCake have any liability or responsibility in connection with such postings.

        (e)        Privacy Policy. By entering into these TOU, you agree to FaceCake’s collection, use and disclosure of your personal information accordance with the FaceCake Privacy Policy.

        (f)        Modification and Interruption to Services. FaceCake may, at its discretion, modify or discontinue any of the Services, Products and Services, Content or Software, or any portion thereof, with or without notice. Neither FaceCake nor its affiliates will be liable to you or any third party for any modification or discontinuance of any of the Services, Products and Services, Content or Software. Your use of this Mini Application means you acknowledge and accept that FaceCake does not guarantee continuous, uninterrupted or secure access to our Mini Application and operation of our Mini Application many be interfered with or adversely affected by numerous factors or circumstances outside of our control.

4.         Submission of Information to the Mini Application. When you submit information via this Mini Application, including questions, comments, suggestions, ideas, images, and other information (“Submissions”) – with the exception of any personal data or information you submit (which shall be maintained in accordance with our Privacy Policy), you grant FaceCake permission to use such Submissions for marketing and other promotional purposes. You agree that FaceCake will have no obligation to keep any Submissions confidential and you will not bring a claim against FaceCake based on “moral rights” or the like arising from FaceCake’s use of a Submission.

5.         Representations and Warranties.

        (a)        Mutual Representations and Warranties. You represent and warrant to FaceCake and FaceCake represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under these TOU, (ii) the execution and performance of your or its obligations under these TOU do not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) these TOU are a legal, valid and binding obligation of the party entering into these TOU, enforceable in accordance with their terms and conditions.

        (b)        By You. You represent and warrant to FaceCake that, in your use of the Service, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to FaceCake that: (i) there are no claims, demands or any form of litigation pending or, to the best of your knowledge, threatened with respect to any of your Submissions; (ii) FaceCake will not be required to make any payments to any third party in connection with its use of your Submissions, except for the expenses that FaceCake incurs in providing the Service; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Submissions will not cause injury to any third party; and (iv) your Submissions does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.

6.         Disclaimers, Exclusions, and Limitations.

        (a)        DISCLAIMER OF WARRANTIES. Information contained on this Mini Application has been prepared by FaceCake as a convenience to its users and is not intended to constitute advice or recommendations upon which a user may rely. FaceCake has used reasonable efforts in collecting, preparing and providing quality information and material, but makes no warranty or guarantee about the accuracy, completeness, or adequacy of the information contained in or linked to this Mini Application or any other Site, Applicaton or Mini Application maintained by FaceCake. Users relying on information from this Mini Application do so at their own risk. Product specifications and other information have either been provided by third parties or collected from publicly available sources. The information and descriptions contained herein are not intended to be complete descriptions of the Products and Services, but are provided solely for general informational purposes. Should you purchase a product from FaceCake or a third party, the terms and conditions applicable to that transaction will govern such purchase, and your use of this Mini Application does not affect that purchase in any manner. FACECAKE PROVIDES THE MINI APPLICATION AND SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. FACECAKE DOES NOT REPRESENT OR WARRANT THAT THE MINI APPLICATION, SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. FACECAKE MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOU, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.

        (b)        EXCLUSION OF DAMAGES. FACECAKE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SERVICE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

        (c)        LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THESE TOU OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THESE TOU, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THESE TOU EXCEED THE AMOUNT PAID OR PAYABLE BY YOU TO FACECAKE DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY.

7.         Indemnification. You will indemnify and hold FaceCake and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the “Parties”) harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought against any of the Parties alleging that you have breached any of these TOU. If you have to indemnify FaceCake under this Section, FaceCake will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without FaceCake's express written permission.

8.         Termination.

        (a)        Termination. FaceCake may suspend or terminate your use of the Site or Service if it believes, in its sole and absolute discretion, that you have breached a term of these TOU.

        (b)        Survival. These TOU will survive indefinitely unless and until FaceCake chooses to terminate them.

        (c)        Effect of Termination. If you or FaceCake terminates your use of the Mini Application or the Service, FaceCake may delete any Submissions or other materials relating to your use of the Service on FaceCake's servers or otherwise in its possession and FaceCake will have no liability to you or any third party for doing so.

9.         Notice. All notices required or permitted to be given under these TOU will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to FaceCake, you must use the addresses at the bottom of these TOU. If FaceCake provides notice to you, FaceCake will use the contact information provided by you to FaceCake. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy this requirement.

10.       Third Party Purchases Governed by Separate Agreement. The terms and conditions governing your purchase of any goods or services from any third party companies represented in this Mini Application shall be governed by a separate agreement duly executed between you and the supplier of such goods or Services, including FaceCake, as applicable.

11.       Dispute Resolution and Governing Law.

THIS MINI APPLICATION CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES

Any controversy or claim arising out of or relating to these TOU, our Privacy Policy, or use of this Mini Application shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, except that, to the extent you have in any manner violated or threatened to violate FaceCake’s or any member of FaceCake's intellectual property rights, FaceCake may seek injunctive or other appropriate relief in any of the state or federal courts located within the county of Los Angeles, in the State of California, USA, and you consent to exclusive jurisdiction and venue in such courts. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Los Angeles, in the State of California, USA, and claims regarding the judgment of the arbitrator (including entry of judgment on the arbitration award) may be brought and shall be subject to the exclusive jurisdiction of the state and federal courts located within the county of Los Angeles, in the State of California, USA, and you waive any jurisdictional, venue, or inconvenient forum objections to such courts. Either you or FaceCake may seek any interim or preliminary relief from a state or federal court of competent jurisdiction in Los Angeles, in the State of California, USA, as may be necessary to protect the rights or property of you or FaceCake pending the completion of arbitration.

FaceCake’s Mini Application is operated and provided in the State of California. As such, FaceCake is subject to the laws of California, and such laws will govern this TOU, without giving effect to any choice of law rules.

12. Miscellaneous. These TOU will be binding upon each party hereto and its successors and permitted assigns. These TOU will not be assignable or transferable by you without the prior written consent of FaceCake. These TOU (including all of the policies and other Agreements described in this TOU, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under these TOU will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and FaceCake are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these TOU. The invalidity or unenforceability of any provision of these TOU will not affect the validity or enforceability of any other provision of these TOU, all of which will remain in full force and effect.

13. Contacting Us.

If you have any questions about these TOU, please contact us by sending an email to privacy@facecake.com or write us at:

FaceCake Marketing Technologies, Inc.
22287 Mulholland Hwy, Suite 97
Calabasas, CA 91302

Last modified: December 27, 2010