JoyGram Terms and Conditions of Use
PLEASE READ THIS AGREEMENT CAREFULLY.
1. Definition of Terms
As used in these Terms and Conditions of Use:
- "Computer" (whether or not capitalized) means a mainframe, desktop, laptop, netbook, tablet, smartphone, or other computer, network device, and any storage device attached thereto in any fashion.
- "Days" (whether or not capitalized) means calendar days.
- "Personal Information" means information that you may provide at the time of registration and/or otherwise, such as name, physical location or address, IP address, email address, date of birth, or similar information that identifies you as a specific individual.
- "JoyGram," "we," "us," or "our" (whether or not capitalized) mean Toozly, LLC, its subsidiaries, and affiliates.
- "JoyGram Affiliate" means persons or entities that have provided products, licenses, and/or services to JoyGram and persons or entities with which JoyGram has entered into an agreement to sublicense and/or to provide JoyGram Products and/or Services to users.
- "JoyGram Products or Services" means the the JoyGram products and mailing service, all other documentation, features, tools, and any other products or services provided by JoyGram or its authorized agents, distributors, and licensees.
- To "Use" or "Using" JoyGram Products or Services means each time you visit the JoyGram website, register with JoyGram, and use the JoyGram website to customize and order a mailing, or request support.
- "You," "yourself", "user," and "customer" (whether or not capitalized) refer to the individual or legal entity registering or registered for or using the JoyGram Products and/or Services.
2. Acceptance of Terms and Conditions of Use; Modification; Cancellation
Each time you Use a JoyGram Product or Service, you affirm
your acceptance of these Terms and Conditions of Use and
agree to comply with them now and throughout the period of
your Use of the JoyGram Products or Services and
thereafter. If you do not agree to these Terms and
Conditions of Use in their entirety, you will not be
authorized to Use JoyGram Products or Services.
JoyGram may change the Terms and Conditions of Use at any time, without prior notice to you, and at its sole discretion. The new or modified Terms and Conditions of Use will be effective immediately after JoyGram publishes them on its websites at https://sendajoygram.com/privacy.
If you do not agree to be bound by JoyGram’s Terms and Conditions of Use as Published by JoyGram from time to time, your sole and exclusive remedy is to discontinue using any JoyGram Products or Services.
3. Requirements for Registration or Use of JoyGram Products
JoyGram Products or Services are intended and offered only
for lawful Use by individuals and/or organizations with the
legal capacity and authority under applicable law to enter
into a contract for such products and/or services. JoyGram
does not offer JoyGram Products and/or Services to minors
or where prohibited by law. By registering for and/or by
Using JoyGram Products and/or Services, you represent and
warrant that you have the legal capacity and authority to
enter into a binding agreement to adhere to the JoyGram
Terms and Conditions of Use, and that you will Use JoyGram
Products and/or Services only in accordance with these
Terms and Conditions of Use and with all applicable laws.
If an individual is registering or Using JoyGram Products
or Services on behalf of an entity or organization, that
individual warrants, represents, and covenants to JoyGram
that such individual is duly authorized to agree to these
Terms and Conditions of Use on behalf of the organization
and to bind the organization to them. If an individual uses
JoyGram Products or Services that are provided by any third
party including any person, entity, or organization, the
individual Using the JoyGram Products and/or Services, by
virtue of such use, agrees that any information the
individual provides to JoyGram (including but not limited
to the individual's Data and Personal Information) will be
accessible to, and may be viewed, changed, and/or deleted
by the person, entity, or organization that provided the
JoyGram Products or Services to the individual.
You agree to provide accurate and complete information when you register for and/or use a JoyGram Product and/or Service, and you agree to keep such information accurate and complete during the entire time that you Use JoyGram Products and/or Services.
We may ask you from time to time to establish a user name and/or password to access or Use the JoyGram Products or Services. You are solely responsible for any consequences arising in whole or in part out of your failure to maintain the confidentiality of your username and/or password.
4. Lawful Use of JoyGram Products or Services
You may not Use JoyGram Products or Services for any
Without limiting the foregoing:
(a) JoyGram Products or Services may not be Used to distribute child pornography and may not be Used in violation of U.S. export control laws or the export or import regulations of other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain licenses to export, reexport, or import as may be required.
(b) You may not Use JoyGram Products or Services if you are a citizen, national, or resident of, or are under control of, the government of Cuba, Iran, Sudan, Libya, North Korea, Syria, or any other country to which the United States has prohibited export. Each time you Use JoyGram Products or Services you represent, warrant, and covenant that:
(i) You are not a citizen, national, or resident of, nor under the control of, any such country to which the United States has prohibited export; (ii) You are not listed on the U.S. Department of Treasury's Lists of Specially Designated Nationals, Specially Designated Terrorists, and/or Specially Designated Narcotic Traffickers, the U.S. Department of State's List of Statutorily Debarred Parties, or the U.S. Department of Commerce's Denied Persons List, Entity List, or Unverified List Table of Denial Orders; (iii) You will neither Use nor allow the JoyGram Software to be Used for any purposes prohibited by United States federal or state law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical, or biological weapons of mass destruction; and (iv) the JoyGram Products and/or Services will not be Used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.
5. Decisions and/or Advice
JoyGram does not monitor and takes no responsibility for the content entered by JoyGram users. JoyGram is unaware of the content entered by its users.
6. Changes to the JoyGram Products or Services
JoyGram has the right at any time to change, modify, add
to, discontinue, or retire any JoyGram Product or Service
and any aspect or feature of the JoyGram Products and/or
Services including, but not limited to hours of
availability, equipment needed for access or Use, or the
availability of JoyGram Products and/or Services on any
particular device or communications service.
While JoyGram plans to provide notice of material changes to the JoyGram Products and/or Services or changes to this Agreement by posting them to https://sendajoygram.com/terms, JoyGram shall have no obligation to provide you with notice of any such changes in any other manner. It shall be your responsibility to check JoyGram’s websites periodically to inform yourself of any such changes.
From time to time, JoyGram may issue new releases, revisions, and/or enhancements to the JoyGram Products or Services available to you free of charge or for a fee. New releases, revisions, or enhancements may be Used only in accordance with the then-current Terms and Conditions of Use and any additional license terms that may accompany them.
These Terms and Conditions of Use (including any documents incorporated by reference) constitute the entirety of the agreement between us and you concerning the subject matters discussed herein. This Agreement supersedes any prior written or oral representations, understandings, or agreements, and may not be modified except by the posting of changes to the JoyGram website(s) at https://sendajoygram.com/terms as provided in this Section 5. No written or oral statement, understanding, representation, or alleged agreement made outside the Terms and Conditions of Use posted to the JoyGram may be used to modify, interpret, add to, supersede, or construe the terms of this Agreement, except by means of a written agreement signed by an officer of JoyGram.
7. JoyGram License to You; Limits
(a) Scope of License. JoyGram grants you a nonexclusive,
nontransferable, limited, and revocable license to Use the
JoyGram Products for your personal or internal business
purposes in accordance with these Terms and Conditions of
Use. We reserve all other rights to the JoyGram Products or
(b) Refunds. Refunds will be offered ONLY in the event that a JoyGram Product is undelivered, as proven by evidence provided by you, as the result of an error by JoyGram. No refunds will be offered in the event of incorrect information provided by you, non-delivery by the United States Postal Service, or any other reason outside of JoyGram’s direct control.
8. Assignment and Delegation by JoyGram
JoyGram may, at its sole discretion, transfer or assign all or any part of its rights in the JoyGram Products or Services, and any license or contract related thereto, and may delegate all or any portion of its duties, if any, under any such JoyGram Products or Services, licenses, or other contracts.
9. Protection of Files
You are solely responsible for protecting the information on your computer such as by installing antivirus software, updating your applications, password-protecting your files, and not permitting third party access to your computer.
10. Customer Support
JoyGram may, at its sole discretion, provide customer support or service to you. This service may be available only on selected days and during a limited number of hours. Service may also only be made available through certain delivery vehicles such as email, text chat, or telephone, and some services may only be available for the payment of a separate fee or charge. As part of the delivery of services, JoyGram may employ a variety of tools to aid in the process of resolving your issues as a user. You grant JoyGram the right to use these tools and hold JoyGram harmless for the use of these tools as well as the guidance provided by its customer support staff who, you acknowledge, cannot be fully aware of the details associated with the JoyGram Products or Services as you use them, your computer(s) and/or related equipment, and/or any or all of the related or associated infrastructure that may affect the performance of your computer(s), its/their connection to the Internet and/or other networks, firewalls, and/or the encryption and/or backup of your files.
11. Restrictions on Access to JoyGram Products or Services
You may access JoyGram Products or Services only through the interfaces and protocols provided or authorized by JoyGram. You agree that you will not access JoyGram Products through unauthorized means, such as unlicensed software clients.
You are responsible for obtaining and maintaining all of the hardware, software, and services that you may need to access and Use JoyGram Products or Services. Without limiting the foregoing, you must pay all charges, taxes, and other costs and fees related to obtaining your own Internet access, telephone, computer, and/or other equipment, and any communications or other charges incurred by you to access JoyGram Products or Services.
13. Termination and Fair Use Policy
JOYGRAM SHALL HAVE THE ABSOLUTE AND UNILATERAL RIGHT AT ITS SOLE DISCRETION TO DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF JOYGRAM PRODUCTS OR SERVICES TO USERS WHO ARE DEEMED BY JOYGRAM TO BE USING THE JOYGRAM PRODUCTS OR SERVICES IN A MANNER NOT REASONABLY INTENDED BY JOYGRAM AND/OR IN VIOLATION OF LAW.
14. Data Collection, Encryption, Privacy, and Disclosure
(a) WARRANTY. JoyGram warrants that the JoyGram Products
and/or Services will perform substantially as specified on
(b) DISCLAIMER OF OTHER WARRANTIES. THE LIMITED WARRANTY IN THE PRECEDING PARAGRAPH IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. JoyGram and the JoyGram Affiliates do not warrant that the functions contained in the JoyGram Products or Services will meet your requirements, that the operation of the JoyGram Products or Services will be uninterrupted or error-free, and/or that defects in the JoyGram Products or Services will be corrected. JoyGram and JoyGram Affiliates do not warrant or make any representations regarding the use or the results of the use of the JoyGram Products or Services in terms of their correctness, accuracy, reliability or otherwise. JoyGram and JoyGram Affiliates do not represent or warrant that users will be able to access or use the JoyGram Products or Services at times or locations of their choosing, or that JoyGram and JoyGram Affiliates will have adequate capacity for any user's requirements. No oral or written statement, information, or advice given by JoyGram, JoyGram Affiliates, and/or their respective employees, distributors, dealers, or agents shall create any warranties in addition to those express warranties set forth in this Section 16 (Warranties). You may have other statutory rights. However, to the full extent permitted by law, the duration of statutorily required warranties, if any, shall be limited to the warranty period described in Section 15(a) above.
16. Limitation of Liability
With respect to defects or deficiencies in the JoyGram
Products or Services, the liability of JoyGram and JoyGram
Affiliates will be limited to performance of their
respective responsibilities under Section 15 (Warranties)
above. With respect to other breaches of contract, the
liability of JoyGram and JoyGram Affiliates shall be
limited to your documented actual damages, and in no event
will such liability exceed the total amount received by
JoyGram from you under these Terms and Conditions of Use.
IN NO EVENT WILL JOYGRAM OR JOYGRAM AFFILIATES BE LIABLE TO
YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA,
INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING
OUT OF THE USE OR INABILITY TO USE THE JOYGRAM PRODUCTS OR
SERVICES OR TO USE OR RETRIEVE ANY DATA, WHETHER FOR BREACH
OF WARRANTY OR OTHER CONTRACT BREACH, NEGLIGENCE OR OTHER
TORT, OR ON ANY STRICT LIABILITY THEORY, EVEN IF JOYGRAM
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES
HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND WHETHER OR NOT
SUCH LOSS OR DAMAGES ARE OR WERE FORESEEABLE.
Neither JoyGram nor any JoyGram Affiliate assumes any liability to any party other than you arising out of your Use or inability to Use the JoyGram Products or Services. The limitations of damages set forth above are fundamental elements of the bargain between JoyGram and you. JoyGram would not be able to provide the JoyGram Products or Services to you without such limitations.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS JOYGRAM,
JOYGRAM AFFILIATES, AND THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, CONTRACTORS, AND AGENTS FROM AND
AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES,
AND EXPENSES, INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES,
ARISING OUT OF YOUR USE OF THE JOYGRAM PRODUCTS AND/OR
SERVICES OR YOUR VIOLATION OF ANY TERM OF THESE TERMS AND
CONDITIONS OF USE.
JOYGRAM RESERVES THE RIGHT, AT ITS OWN EXPENSE AND AT ITS SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU. IN THAT EVENT, AND ONLY IN SUCH EVENT, YOU SHALL HAVE NO FURTHER OBLIGATION TO PROVIDE A DEFENSE FOR JOYGRAM IN THAT MATTER. If JoyGram chooses to provide its own defense in connection with any matter subject to indemnification under these Terms and Conditions of Use, you shall participate and cooperate in the defense of JoyGram and JoyGram Affiliates, at your own expense, to the full extent requested by JoyGram.
18. Trademarks, Service Marks, and Other Intellectual Property
All trademarks, service marks or other similar items
appearing on the JoyGram Products or Services are the
property of their respective owners, including, without
limitation, Toozly, LLC.
The JoyGram Products and/or Services are protected by copyright and other intellectual property laws, title, ownership rights, and intellectual property rights in the JoyGram Products and/or Services and shall remain the property of JoyGram and, as appropriate, its licensors. You agree to not take any action to jeopardize, limit, or interfere in any manner with JoyGram's or its licensor's ownership of or rights with respect to the JoyGram Products or Services.
19. Dispute Resolution, Arbitration, Governing Law, and Venue
(a) Arbitration of Disputes. If the parties are unable to
resolve any dispute through informal discussion and
good-faith efforts to reach agreement, any dispute or
controversy arising out of or with respect to this
Agreement, other than disputes or controversies seeking
relief from irreparable harm, shall be arbitrated in
Seattle, Washington in accordance with the rules, but not
necessarily under the supervision, of the American
Arbitration Association, before three (3) arbitrators.
Within seven (7) calendar days of either party making a
demand for arbitration, each party shall select one (1)
arbitrator. The third arbitrator shall be designated by the
arbitrators selected by the parties within thirty (30) days
of the demand for arbitration. In the event that either
party fails to appoint its arbitrator or the two
arbitrators selected by the parties shall fail to appoint
the third arbitrator, in either case within the prescribed
time period, then either party may apply to the American
Arbitration Association for the appointment of such
arbitrator. The arbitration shall be concluded as promptly
as practicable under the circumstances after the
appointment of the arbitrators. The arbitration award shall
set forth the findings of fact and conclusions of law upon
which the award is based. The arbitrators shall permit and
facilitate such discovery as such arbitrators shall
determine is appropriate under the circumstances, taking
into account the needs of the parties and the desirability
of making discovery expeditious and cost-effective. The
arbitrators may issue orders to protect the confidentiality
of proprietary information, trade secrets, and/or other
sensitive information disclosed in discovery. The parties
intend that this agreement to arbitrate be valid,
enforceable, and irrevocable. The arbitrators shall award
attorneys’ fees and the costs to the prevailing party.
Judgment upon the award may be entered in any court of
competent jurisdiction. The award and the judgment based
thereon shall be final, binding, and nonappealable.
(b) Class Actions. Class actions and other procedural devices, however denominated, that allow pursuit in a single proceeding of claims of more than one claimant unrelated by blood or marriage shall not be permitted in the case of arbitrations hereunder.
(c) All other provisions of this Agreement shall be governed by and construed and interpreted in accordance with the internal laws of the State of California, USA, without regard to conflict-of-laws provisions. The United Nations Convention on Contracts for the International Sale of Goods as well as any other similar law, regulation or statute in effect in any other jurisdiction shall not apply.
(a) Termination for Unlawful or Abusive Use, Other Breach.
JoyGram may block your access to and/or terminate your Use
of the JoyGram Products or Services if JoyGram reasonably
believes that the Data may contain child pornography or are
being used to support other types of illegal activities, if
providing JoyGram Products or Services to a person located
in a particular country would violate U.S. or other
applicable law, or if your continued Use of JoyGram
Products or Services may damage, disable, overburden,
and/or impair our servers or networks.
(b) If you breach these Terms and Conditions of Use, your right to Use the JoyGram Products or Services shall automatically terminate if you fail to cure the breach to JoyGram’s satisfaction within seven (7) days after notice from JoyGram or any of the JoyGram Affiliates, unless your breach is due to violations of Section 4 (Lawful Use), Section 8 (No Transfers or Modifications by You), Section 17 (Indemnification), Section 18 (Trademarks), Section 19 (U.S. Government Restrictions), in which case termination will be without notice and without any right to cure.
In the event of any termination, expiration, or cancellation, the restrictions on your Use of the Software and the other applicable restrictions as set forth in Section 4 (Lawful Use), Section 6 (JoyGram License to You), Section 14 (Warranties), Section 15 (Limitation of Liability), Section 16 (Indemnification),Section 17 (Trademarks, Service Marks, and Other Intellectual Property), Section 18 (Dispute Resolution, Governing Law, Venue), Section 20 (Survival), Section 21 (Notice), Section 24 (Limitation on Actions), Section 26 (Miscellaneous) and Section 27 (Severability) shall survive such termination, expiration, or cancellation, and you agree to remain bound by those terms.
Any notice that may or must be given by JoyGram in connection with this Agreement or in connection with the Use of the JoyGram Products or Services, may be given by sending it to the email address provided by you upon user of or registering for the JoyGram Products or Services or as you may provide from time to time thereafter. You are responsible for ensuring that your accurate email address is available to JoyGram and provide any needed updates. JoyGram may, at its sole discretion, use other means of providing notice, such as, without limitation: desktop notification; regular, certified, or registered mail, fax; commercial delivery service; or messenger. All such notices shall be deemed given when dispatched with payment of delivery charges made or arranged. You hereby consent to receiving notice by any such means. Notwithstanding the foregoing, JoyGram has no obligation to provide notice or attempt to locate a customer other than through the email address provided.
23. English Language
These Terms and Conditions of Use were written in United States English. Any inconsistency between these Terms and Conditions of Use as expressed in U.S. English and any other language shall, to the full extent permitted by applicable law, be resolved by reference to the U.S. English version.
24. Entire Agreement; Applicability of Terms; Construction; Limit to Modifications; Conflicts in Terms
These Terms and Conditions of Use (including the items
incorporated by reference and modifications that JoyGram
may make from time to time), constitute the entire
agreement between JoyGram and you regarding JoyGram
Products or Services, and supersedes all prior agreements
between you and JoyGram regarding the subject matters
Any item or service furnished by JoyGram in furtherance of these Terms and Conditions of Use, although not specifically identified in them, shall nevertheless be covered by these Terms and Conditions of Use unless specifically covered by some other agreement entered into in written or electronic form between you and us.
Any modification or change in these Terms and Conditions of Use proposed or offered by you shall not become a part of these Terms and Conditions of Use unless accepted in a writing dated after the effective date of the applicable Terms and Conditions of Use and signed by an authorized officer of JoyGram.
Should there be any conflict in terms between this Agreement and any other document, the terms and conditions set forth in the other document shall govern.
Any references that are singular or plural, and any references that are masculine, feminine, or neuter in gender, are meant to be used interchangeably as the context of the sentence might imply.
25. Limitation on Actions
Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty, or right arising under this Agreement or by law must be commenced within one year after the cause of action accrues.
26. Copyright Infringement Notification
As provided in the Digital Millennium Copyright Act of 1998, we have designated the following email address for notification of potential copyright infringement regarding Web sites hosted by JoyGram: email@example.com. If you believe content hosted by JoyGram infringes a copyright, please provide the following information to the email address identified above (17 U.S.C. § 512): (i) A hardcopy or electronic signature of the copyright owner or authorized agent; (ii) Identification of the copyrighted work(s) claimed to have been infringed; (iii) Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) Information regarding how we may contact you (e.g., mailing address, telephone number, email address); (v) A statement that the copyright owner or its authorized agent 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 (vi) A statement that the information in the notification is accurate, and made under penalty of perjury, and, if an agent is providing the notification, a statement that the agent is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You agree to reimburse JoyGram for any costs or fees
related to its enforcement of this Agreement, including
without limitation the expert fees and attorney fees
regularly charged by the experts and legal counsel chosen
JoyGram is not responsible for misprints, errors, or omissions in its advertising and/or promotional materials.
This Agreement will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of this Agreement is held to be invalid or unenforceable under applicable law to any extent, then (i) such provision will be interpreted, construed, or reformed to the extent reasonably required to render it valid, enforceable, and consistent with the original intent underlying such provision and ii) such invalidity or unenforceability will not affect the validity or enforceability of any other provision of this Agreement, and all such provisions shall remain in full force and effect.
29. No Waiver
JoyGram reserves its right to take all legal steps available to enforce these Terms and Conditions of Use. JoyGram’s failure to enforce these Terms and Conditions of Use in every instance in which they might apply, or the failure to require at any time performance of any provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions or of JoyGram’s rights to enforce such provisions. No waiver of any provisions of this or any other Agreement with JoyGram shall be effective unless expressly stated to be such in writing and signed by both parties.