Terms of Use - pings!

Set forth below are the terms and conditions ("Terms of Use") governing the web and wap site and services offered for your use by Cingular Wireless and powered by Sharpcards Limited (Sharpcards) which may expand or change from time to time without notice to you (collectively, the “Service”). As used herein the term "you" or "your" refers to an individual, representing yourself or, if applicable, acting as legal representative for a group, business entity or corporation.

PLEASE CAREFULLY READ THESE TERMS OF USE. BY AVAILING YOURSELF OF THE SERVICE OR RELATED SERVICES, YOU ARE CONSENTING TO BE BOUND BY THESE TERMS OF USE AND AS SUCH TERMS MAY BE MODIFIED FROM TIME TO TIME. THIS AGREEMENT CONTAINS WARRANTY DISCLAIMERS AND OTHER PROVISIONS THAT LIMIT OUR LIABILITY TO YOU. PLEASE READ THIS AGREEMENT IN ITS ENTIRETY.

If you do not agree to these Terms, please do not use this Service. All new features that augment or enhance the current Service, including the release of new products, shall be subject to these Terms of Use.

You understand and agree that the Service is provided "AS-IS" and that neither Sharpcards nor Cingular Wireless assume any responsibility for the timeliness, deletion, miss-delivery or failure to store any user communications or personalization settings.

Sharpcards reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that neither Sharpcards nor Cingular Wireless shall be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

You are responsible for obtaining access to the Service and that access may involve third party fees (such as Internet service provider or airtime and SMS charges). You are responsible for those fees.

Use of Materials Found on the Website: The information, artwork, text, video, audio, pictures, software and other intellectual property (collectively, "Materials") contained within the Service are protected by copyright and international laws. You may only access and use the Materials for personal use. You may not otherwise reproduce, distribute, publicly perform, publicly display, forward, modify or create derivative works of the Materials. In the event that you print Materials found within the Service, you must include any copyright notice originally included with the Materials on all copies. You may not link directly to any media file located on a Sharpcards server, and you may not attempt to "pass off" any Materials as your own work.

User Provided Content Indemnity: Sharpcards may allow you to create your own message and/or communications by: (i) uploading a photograph or image provided solely by you, (ii) by uploading artwork and other materials provided solely by you, and/or (iii) by uploading or integrating an audio file or text file provided solely by you (collectively, the “User Provided Content”).  You are solely responsible for any User Provided Content used by you in conjunction with the Sharpcards Service, including all User Provided Content integrated by you into messages and/or communications created using the Service. Sharpcards will not tolerate copyright infringement and reserves the right to block, disable, or otherwise remove any content or materials uploaded to Sharpcards, as well as terminate access to the Sharpcards Service, if you engage in copyright or other intellectual property infringement.

When you upload User Provided Content to the Service and use it to create a message and/or other communication, the User Provided Content will be used for the transmission of your digital greeting, and you grant to Sharpcards a limited, non-transferable, limited license to use the User Provided Content in order to facilitate the creation and delivery of the message and/or communication.

Acceptable Use Policy: Sharpcards has adopted the following acceptable use policy in order to assure that its electronic greetings are used in a lawful and appropriate manner. While Sharpcards does not ordinarily monitor the content of users' greetings, it reserves the right to investigate reports of misuse of its service and to protect its property and assets. The following conduct is prohibited on the service:

• sending harassing, abusive, or threatening messages;
• sending obscene or pornographic messages or images;
• sending defamatory or libelous messages;
• sending viruses or other harmful, disruptive, or destructive files;
• attempting to steal passwords or credit card information;
• sending messages in furtherance of unlawful, criminal, or fraudulent activity; or

Violations of Sharpcards acceptable use policy will not be tolerated and may result in the sender being blocked from sending additional greetings on the service. If the sender is a member of Sharpcards’ subscription service, Sharpcards may disable the sender's account without compensation or refund. SHARPCARDS RESERVES THE RIGHT IN ITS SOLE DISCRETION TO DISCLOSE TO THIRD PARTIES, INCLUDING GREETINGS RECIPIENTS, THEIR COUNSEL, AND/OR LAW ENFORCEMENT AUTHORITIES, RELEVANT INFORMATION ABOUT A COMMUNICATION, INCLUDING, BUT NOT LIMITED TO, THE SENDER NAME, ACCOUNT INFORMATION, MEMBER AND COOKIE NUMBERS, TRANSMISSION DATA, PAST AND SUBSEQUENT SERVICE USE, AND ANY OTHER INFORMATION DEEMED NECESSARY BY SHARPCARDS TO ADDRESS PAST VIOLATIONS OF THE ACCEPTABLE USE POLICY AND TO PREVENT FUTURE VIOLATIONS. THESE DISCLOSURES MAY BE MADE WITH OR WITHOUT PRIOR NOTICE TO YOU. BY USING THE SERVICE, YOU IRREVOCABLY CONSENT TO SUCH DISCLOSURES.

International Use: Sharpcards makes no representation that Materials within the Service are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access the Service from locations outside the United States do so at their own risk and are responsible for compliance with local laws.

Warranty Restriction; Limitation Of Liability: THE MATERIALS, INFORMATION, AND SERVICES PROVIDED ON THIS SITE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF ANY MATERIALS, INFORMATION, OR SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY DATA, TEXT, IMAGES, SOUNDS, OR COMPUTER PROGRAMS (INCLUDING COLLECTIONS AND COMPILATIONS OF THEM)) OR AGAINST INFRINGEMENT. NEITHER SHARPCARDS NOR CINGULAR WIRELESS IS RESPONSIBLE FOR ANY FAILURE OF ELECTRONIC GREETINGS SENT THROUGH THE SERVICE TO REACH THEIR INTENDED RECIPIENTS OR TO REACH SUCH RECIPIENTS ON THE DATE SPECIFIED BY THE SENDER. THE MATERIALS AVAILABLE ON THE SITE ARE SUBJECT TO CHANGE WITHOUT NOTICE.

NEITHER SHARPCARDS, CINGULAR WIRELESS, NOR ANY OF THEIROFFICERS, DIRECTORS, EMPLOYEES OR AFFILIATES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY AND/OR INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM OR ARISING IN CONNECTION WITH YOUR ACCESS TO, INABILITY TO ACCESS, OR USE OF THE SITE, OR FROM YOUR RELIANCE ON ANY INFORMATION PROVIDED AT THE SITE, EVEN IF SHARPCARDS OR CINGULAR WIRELESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND ANY OTHER TORT. IN THE EVENT THE FOREGOING LIMITATION OF LIABILITY SET FORTH HEREIN SHALL BE FOR ANY REASON HELD UNENFORCEABLE OR INAPPLICABLE, YOU AGREE THAT SHARPCARDS, CINGULAR WIRELESS AND THEIR AFFILIATES' AGGREGATE LIABILITY SHALL NOT EXCEED ANY SUMS PAID PURSUANT THIS AGREEMENT.

NEITHER SHARPCARDS, CINGULAR WIRELESS NOR THEIR AFFILIATES TAKES ANY RESPONSIBILITY OR ASSUMES ANY LIABILITY FOR ANY CONTENT UPLOADED OR OTHERWISE TRANSMITTED BY YOU OR ANY THIRD PARTY, OR FOR ANY MISTAKES, DEFAMATION, SLANDER, LIBEL, OMISSIONS, FALSEHOODS, OBSCENITY, PORNOGRAPHY, INDECENCY, LEWDNESS, HARASSMENT, THREATS, ABUSE, OR PROFANITY YOU MAY ENCOUNTER IN USING THE SITE. YOU AGREE TO HOLD HARMLESS SHARPCARDS, CINGULAR WIRELESS AND THEIR AFFILIATES AND PARTIES WITH WHOM SHARPCARDS HAS CONTRACTED FOR PURPOSES OF HOSTING OR MAINTAINING THIS SITE FROM ALL CLAIMS BASED UPON COMMUNICATIONS OR MATERIALS MADE AVAILABLE BY YOU ON THE SITE.

Indemnification: You hereby indemnify, defend and hold harmless Sharpcards Cingular Wireless and their affiliates, and all officers, directors, owners, agents, content providers, licensors and licensees (collectively, the "Indemnified Parties") from and against any and all liability and costs, including, without limitation, reasonable attorneys' fees, incurred by the Indemnified Parties in connection with any claim arising out of any breach by you or any user of your account of this Agreement. You shall cooperate as fully as reasonably required in defense of any such claim. Sharpcards reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

Termination by Sharpcards: In the event Sharpcards determines, in its sole discretion, that you have violated these Terms, Sharpcards shall have the right to immediately terminate your account (with or without refund), refuse membership, or block the sending or receipt of greetings from it’s Service, and/or pursue any other remedies available to it under applicable law.

Updates to Terms: Sharpcards shall have the right to revise these Terms at any time by updating this posting. By using this Service, you agree to be bound by any such revisions and should therefore periodically visit these Terms of Use to determine the then-current Terms to which you are bound.

Privacy Policy: The information provided by you in using this Service shall be governed under the Cingular Wireless Privacy Policy previously agreed to by you when you subscribed to the Cingular Wireless mobile phone service.  The terms of the privacy policy can be found by clicking here [link through to Cingular’s privacy policy].

Downloadable Products: Downloads contain computer programs ("Software"), documentation and other proprietary material (collectively, "Product") that belong to Sharpcards and its licensors. Installation and use of the software is subject to this agreement. By installing or using any part of the Software, you consent to be bound by, and agree to become a party to, this agreement.
 
If you are deemed to have ordered the download, Sharpcards’ acceptance is expressly conditional on assent to these terms exclusive of all other terms to the exclusion of all other terms; if these terms are considered an offer by Sharpcards, acceptance is expressly limited to these terms.

These Terms of Use are governed in all respects by the laws of the State of California, USA. Legal proceedings related to the matters herein shall be brought in and adjudicated solely in the courts of the State of California, in the County of Los Angeles, USA. Both parties consent to extra-territorial service of process and submit to the jurisdiction of said courts.

If any provision of these Terms of Use is held to be invalid or unenforceable, such provision shall be struck out and the remaining provisions shall be enforced. Sharpcards’ failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches.

These Terms of Use set forth the entire understanding and agreement of the parties.  Your agreement with Cingular Wireless is governed by your contract for wireless service including the data service terms located at www.cingular.com/media/terms.

Notices and Copyright Violation Notices: Except as expressly stated otherwise, any notices required or allowed under these Terms of Use shall be given to Sharpcards by postal mail to: Sharpcards Ltd, c/o Legal Affairs, 490 Broadway, 5th Floor, New York, NY 10012.  If applicable law requires that Sharpcards accept email notices (but not otherwise), then you may send Sharpcards email notice using lorraine@sharpcards.net.

A printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Digital Millennium Copyright Act Notices: Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to Sharpcards’ Designated Agent.

THE FOLLOWING INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING THE SERVICE PROVIDERS REFERENCED BELOW THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. ALL OTHER INQUIRIES (e.g., REQUESTS FOR TECHNICAL ASSISTANCE OR CUSTOMER SERVICE, REPORTS OF EMAIL ABUSE, AND PIRACY REPORTS), WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS.

Written notification must be submitted to the following Designated Agent:Name of Agent Designated to Receive Notification Of Claimed Infringement: Lorraine

Full Address of Designated Agent to Which Notification Should be Sent: 490 Broadway, 5th Floor, New York, NY 10012

To be effective, pursuant to Title 17, United States Code, Section 512(c)(3)(A), the Notification must include the following:

• An electronic or physical signature of the owner or of the person authorized to act on behalf of the owner of the copyright interest;.
• A description of the copyrighted work that you claim has been infringed, and a description of the infringing activity including of where the material which you claim is infringing is located on the Sharpcards service sufficient to allow us to locate the material;
• Identification of the location where the original or an authorized copy of the copyrighted work exists, for example the URL of the website where it is posted or the name of the book in which it has been published, your address, telephone number, and e-mail address;
• A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
• A statement by you made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.