As Amended April 27, 2016
- “Cherish These Words” and “Company” shall refer to the company Meshfire’s Mall and Services, Inc., a corporation organized under the laws of New Jersey in the business of providing an Internet-based platform, Cherish These Words, for family-tree based research and social networking, including audio and video uploading and viewing;
- “User” shall collectively refer to any person or entity using the Company’s website, including:
- “User”, an individual who is using, accessing, researching, or otherwise, Company’s Services who is not a Member or Affiliate;
- “Member”, an individual who has signed up and created an account with Company; and
- “Affiliate”, is an individual or business who has created an account and is actively marketing for Company, and assisting other Users and Members to be able to use Company Services;
- “Services” shall collectively refer to all services offered by Cherish These Words including, but not limited to, access to its website and mobile application, online products, downloadable products, any and all services, and ability to purchase consumer goods and services.
Changes to Terms of Service and Notices
Cherish These Words may modify the Terms at any time, under its discretion. Should there be any material changes to the Terms, Users shall be notified with a one (1) month notice prior to the effective date of the new terms. It shall be posted on Services and on the Company mobile application if applicable. At the beginning of each set of Terms, the effective date shall be posted. Users agree the continued access of Services after the effective date, warrants their acceptance to the modifications.
In order to use Services, Users must be 18 years old, or older, and have the requisite power and authority to accept these Terms. If one is under 18 years of age, such person is strictly prohibited from using Services. Should a person under the age of 18 wish to use Company’s Services, he or she shall have their audio or video uploaded by a legal parent or guardian of the age of 18 or older. People, businesses, or otherwise, may not access Services if they are a known or unknown competitor, or if they have been previously banned from Services. If you are using Services on behalf of a company, entity, or organization, then you represent and warrant you are: an authorized representative of such organization; have the requisite authority to bind the organization to these Terms; and agree to be bound by these Terms on behalf of such organization.
Cherish These Words grants Users permission to use Services subject to all restrictions set out in these Terms. Use of Services is at User’s own risk, including the risk of exposure to offensive, indecent, inaccurate, objectionable, or otherwise inappropriate content.
Cherish These Words provides Services to Users, and Services may be interrupted, suspended, un-secure, modified, updated, discontinued, or unavailable in particular locations. This may happen without notice from Company, and Company shall not be held liable for any problems regarding Services availability.
Services Provided by Company
Cherish These Words operates an Internet-based platform that allows Users to coordinate the upload of data to a digital family tree concept, allowing other Users to receive and access any information regarding members of their family.
Services allowed for the following data to be uploaded:
- Virtual audio recording space for one (1) audio recording per payment;
- Virtual video recording space for one (1) video recording including a standard recording or 3D recording per payment;
- Photographing capability with upload to Company’s server; and
- Certain text, written data, or other photographs.
User Access and Rules
The following information is in reference to those Users who are not registered Members or Affiliates. Users have limited access to Company’s Services. Users may only update a loved one’s account, provided they have the appropriate documentation of the individual including but not limited to a: death certificate or reference identification provided to Company. Users must be next of kin or recognized by the deceased as an individual he or she wished to provide access to their account. These Users may only update the final picture, unless they wish to pay for add-ons. Such Users are prohibited from changing any other information uploaded by the deceased. User may create an account for a deceased family member, provided there is no account for the deceased already in existence. Any amendments made by a User on another person’s account, will be made with the notation that such information was provided by that User. This is required so that other Users accessing an account will know who the information was provided by.
Member Accounts and Rules
Members are individuals who have signed up with the account registration, which enables them to pass on information to their account for the lifetime of Cherish These Words as a service to the public. Users are solely responsible for remembering and maintaining the security of their Member names and passwords. Members must notify Cherish These Words of any unauthorized access to Member Accounts. Cherish These Words may suspend, terminate, modify, or delete Member Accounts, with or without notice, to Members, at any time and for any reason. Users are required to provide complete and accurate information in the creation of their Member Accounts. Members are expressly prohibited form creating names with false information, false names, false business names, or creating multiple Member Accounts.
Members hereby acknowledge it is their responsibility to provide accurate information and spelling of their names in order for others to accurately find them on Company Services. Users accept their interaction and experience is solely dependent on that which was purchased by them, or for them, from Cherish These Words. Users may only access content that was paid for. Further, account information will be updated based solely on the limitations of technology for as long is feasibly possible and shall be limited to the access to, and availability, of Internet. Users agree that any information uploaded will become public knowledge.
Members may delete their Account, Account Content, and all other Account information, at any time, by sending an email to Cherish These Words to the address below with the following subject line:
Subject: Member Account Termination
Affiliate Accounts and Rules
Affiliates are those Users that are actively marketing and assisting other individuals to use and access Cherish These Words. Affiliates may be provided a percentage of each sale or reference made, as provided below. If an Affiliate has a separate legal agreement executed by Affiliate and Company, such document shall supersede these Terms. Affiliates may be businesses, or even family members who are attempting to get other family members onto Company Services. Any affiliate marketing shall be complete by the Affiliate from start to finish. Affiliates are only entitled to a share of the sale or reference made to get a new User onto Company Services, and are not entitled to any costs incurred by Affiliate in order to carry out such task, including but not limited to administration costs or otherwise.
Any affiliate that brings on a New Member, shall be entitled to an Affiliate Commission (the “Affiliate Commission”), and such Affiliate Commission is strictly subject to the following rules:
- 10% of New Member’s first paid full-price subscription fee (i.e. If New Member only paid for one month or one year with their first payment, then Affiliate only gets 10% of such amount paid.)
- However, if New Member signs up with any discounted subscription plan, or pays any fee other than full price, then Affiliate is not entitled to any commission.
- Affiliates may only be entitled to a commission for bringing on a New Member, not another Affiliate.
- A Member who has not been designated as an Affiliate shall also be entitled to an Affiliate Commission should they bring a New Member onto Company Services.
- Affiliates are only allowed one commission per new Member.
- Affiliate Commissions shall only be paid to Affiliates after receipt of the New Member’s payment processing is complete.
- Such Affiliate Commissions are only allowed one “downline”. No Member or Affiliate shall be entitled to a commission for their New Member’s New Member.
Affiliates may delete their Account, Account Content, and all other Account information, at any time, by sending an email to Cherish These Words to the address below with the following subject line:
Subject: Affiliate Account Termination
Cherish These Words currently only accepts payment through PayPal, unless otherwise agreed to, and reduced to writing, by User and Company. PayPal is a separate entity, wholly distinct and unassociated with Company. Cherish These Words is strictly not responsible for any issues regarding payment, processing or otherwise through PayPal. Users hereby agree that any issues regarding PayPal processing shall be lodged with PayPal, and not Cherish These Words
Refunds will not be given for dissatisfaction of any goods or services purchased, or if your computer, hardware, or software does not meet minimum specifications required for the use of any purchased good or service. All such sales are final. All refunds are subject to the sole discretion of Company. Refunds shall be allowed where required by law. All refund requests must be made within fourteen (14) business days from the date of purchase.
Communication and Data Retention
Users with User Accounts must submit an email address where they can receive emails from Company and Users, regarding communication in connection with Services. Users may opt out of communications by following the directions located at the bottom of each communication.
Highly sensitive information (“HSI”) includes, but is not limited to: User financial information, email addresses, passwords, and usernames. Cherish These Words will keep HSI for the shortest possible duration that is reasonably necessary in order to carry out the task for which it was collected. Cherish These Words has taken all reasonable and appropriate security measures to ensure the security of HSI. Furthermore, any and all data and communications shall be retained to minimally meet any applicable legal or ethical reporting or document retention requirements.
Cherish These Words Intellectual Property
Cherish These Words owns all intellectual property connected to Services, including but not limited to its website, applications, or otherwise. This shall include visual interfaces, graphic design, website design, logo, application development, interactive features, compilation, technological code, software, Company hardware, and any method of compiling or analyzing Users’ Content. This shall be considered Company intellectual property, which is protected worldwide by copyrights, trademarks, trade secrets, and any other applicable intellectual property rights. These rights shall apply to property now existing or that which is created in the future by Cherish These Words. User may not copy, reproduce, distribute, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of Company content on Services. Such unauthorized use may violate copyright, trademark, and communication regulations.
Cherish These Words shall be able to use any ideas or suggestions made by Users in their Company Services, if Company chooses to do so. User is not entitled to any remuneration of any kind, under any circumstances, for such information. Any submitted suggestion shall provide Cherish These Words with complete ownership and any intellectual property rights arising therefrom. Cherish These Words shall be entitled to unrestrictive use of such information.
The following Copyright Policy (the “Policy”) explains how Cherish These Words respects the intellectual property rights (the “IP Rights”) of others and describes Cherish These Words’ policy concerning rules and regulations of its Company and Services. If anyone believes their IP Rights have been infringed, please contact Cherish These Words with contact information found in the Contact Information Section located at the end of this Policy.
- Changes to Policy. Cherish These Words may modify this Policy at any time, under its discretion. Should there be any material changes to the Policy, Users shall be notified with a one (1) month notice prior to the effective date of the new policy. It shall be posted on Services and on the Company mobile application. At the beginning of each set of Policies, the effective date shall be posted. Users agree the continued access of Services after the effective date, warrants their acceptance to the modifications.
- Prohibitions. Cherish These Words prohibits Users from uploading, posting, transmitting, or otherwise making available, any content that violates any IP Rights of any person, company, or otherwise. This prohibition shall apply to any of Company Services including websites, web pages, applications, widgets, blogs, social networks, or otherwise. Any violations of US Copyright Law, shall subject offenders to its penalties to the fullest extent allowed under law. Cherish These Words reserves the right to terminate any User who is in violation of IP Rights of other Users, persons, company, or otherwise. Cherish These Words requests Users adhere to these same policies. Pursuant to the Digital Millennium Copyright Act of 1998 (17 U.S.C. § 512) (the “DMCA”) and US Copyright Law. Cherish These Words may terminate Users’ access to Services, and use thereof, if Company deems User is repeatedly infringing the IP Rights of another User, person, company, or otherwise. Cherish These Words is not responsible for any errors in web based material and shall not be liable for any damages arising from the use of such material found on Cherish These Words’ website.
- DMCA. The DMCA and US Copyright Law provides the framework for owners of IP Rights who believe their material that is appearing in public infringes their IP Rights under US Copyright Law. It is Cherish These Words’ policy to respond to all notices and counter-notices that are in conformity with the requirements under 17 U.S.C. § 512(c)(3)). Notices and counter-notices must meet the then-current statutory requirements imposed under the DMCA. Please visit www.copyright.gov for up to date details of current DMCA legislation.
- Take-Down Notices. If one believes their IP Rights have been infringed upon by any materials in Cherish These Words’ Services, such person may submit a notification pursuant to the DMCA (17 U.S.C. §512(c)(3)) by sending a properly formatted take-down notice to Company at the address in Contact Information Section. Please include all required information, including:
- The electronic or physical signature of the owner of the copyright or a person authorized to act on the owner’s behalf;
- In sufficient detail, provide the copyrighted work that you claim has been infringed. If multiple copyrighted works on the websites are covered by a single notification, you may provide a representative list of such works on the websites; however, the representative list must still contain sufficient detail of the copyrighted works so that we can identify them;
- The URL or other specific location on the websites that contain the material that you claim to be infringing your copyright. You must provide us with reasonably sufficient information to enable us to locate the alleged infringing material, so that we can comply with your request to remove or deny access;
- Your name, address, telephone number, and email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that you swear under penalty of perjury that the information contained in your notification is accurate and that you are the copyright owner or that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Response to Take-Down Notices. Cherish These Words shall take response to such DMCA notice, and will make a good faith attempt to contact any party believed to have infringed the IP Rights of another. DMCA infringement notices may be forwarded to the party who originally made the alleged infringed content available on Services.
- Counter-Notices. If you believe in good faith that your own copyrighted material has been removed from Services as a result of a mistake or misidentification, you may submit a written counter notification letter to Company pursuant to the DMCA (17 U.S.C. 512(g)(2-3)). If a counter-notice is received by Cherish These Words, Company may send a copy of such counter-notice to the original complaining party that Company may reinstate the removed content. Unless the alleged IP Rights holder files a court action against the party that provided the counter-notice, the removed content may be reinstated on Company’s Services. Counter-Notices require the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or disabled, and the location at which the material appeared before it was removed or disabled;
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- Your name, address and telephone number; and
- A statement that you consent to the jurisdiction of the Federal District Court in which your address is located, or if your address is outside the United States, that you consent to the jurisdiction of the United States District Courts for the Eastern District of Virginia and a statement that you will accept service of process from the party, or party’s agent, that filed the notification of alleged copyright infringement.
- Contact Information. Should you require any further information regarding these policies, please contact:
Meshfire’s Mall and Services, Inc.,
PO Box 34
Juliustown, NJ, 08042
Email: firstname.lastname@example.org Subject: “Copyright Policy – DMCA Notification”
This contact information is for DMCA purposes only. Any other inquiries to the DMCA Agent will not be answered. Any material misrepresentations regarding copyright violations may subject complainant to court costs and attorney fees.
Users hereby agrees not to post or upload any of the following prohibited Content:
- Content known by User to be false, misleading, or Content that encourages or promotes illegal activity;
- Content that is abusive, threatening, obscene, defamatory, or libelous;
- Content that harasses any other User, person, business, or person, in any way;
- Content that violates another person’s intellectual property rights;
- Content that solicits any private information, including passwords, or personal identification information;
- Content that is offensive to any User, person, or business, including, but not limited to: racism, bigotry, hatred, physical harm of any kind against any group, minority, or individual;
- Content promoting any business venture of the User, person, business, or otherwise;
- Content used to solicit information from minors or other protected classes;
- Content involving the transmission of junk mail, chain letters, or unsolicited mass mailing; or
- Content displaying obscene, pornographic, or sexually explicitly material, of any kind.
User hereby agrees, while using Services, not to commit any of the following actions:
- Upload content or any information that could damage, disable, overburden, or impair any of Cherish These Words’ servers or networks;
- Attempt to gain any unauthorized access to other Users’ account, Company computer networks, systems or infrastructure, by any means;
- Attempt to gain access to other Users’ accounts, for any reason;
- Use data mining, robots, or other data gathering devices on or through Services;
- Frame or link to the Services without express permission;
- Attempt in any way to reverse engineer, decompile, interrupt, or disassemble, any part of Services or its security features;
- Modify, distribute, reproduce, copy, adapt, or create any derivative work in any way, of Service;
- In any way restrict other Users or persons from gaining access or creating accounts;
- Use any technology or tool that automatically retrieves, alters, or combines Company content or Services;
- Reverse engineer any content, Services, website, or application of Company and its Users;
- Breach Cherish These Words rights regarding intellectual property rights, or otherwise; or
- Use the Services or content to transmit any computer viruses, Trojan horses, worms, or otherwise, that could potentially cause any damage to software or hardware of Users or Company.
All Users who upload any form of data, audio, video, or otherwise, to Company’s Services do so with the full knowledge that although Company takes every precaution to ensure data is kept safe, circumstances may arise wherein uploaded information is lost or compromised. This may occur though any number reasons, including but not limited to, data breach, data failure, Internet availability, or Company dissolution. Given Company’s full disclosure, and Users’ consent herein, Users agree to hold harmless Company for any such loss of any uploaded data for any reason.
Limited Liability and Disclaimers
The following information applies to the maximum extent permitted under law. User rights are not limited beyond those they are rightfully entitled to. By using Company Services, Users hereby agree to the following Terms, and Users forfeiting certain legal rights they may otherwise be entitled to you. If a User is uncertain of any of the following, it is suggested they consult a legal professional.
- Availability. Cherish These Words provides Services on an “as is” and “as available” basis for Users’ use. Cherish These Words does not guarantee Services will be available in any location for any User, or that Services will always be available at any given time. Cherish These Words does not warrant Services will be uninterrupted, timely, error-free, or secure. Furthermore, it does not warrant any defects will be corrected. Cherish These Words does not guarantee its website or applications will be free from viruses or other harmful components.
- Security. Cherish These Words makes every effort to keep its Services, Content, website, and application secure. Cherish These Words accepts no liability for any loss, disruption, or damage incurred by Users to its data, computer, or software, that is a result of unauthorized access by any person who has caused a loss due to any data breach or hacking, even if such breach or hack was the mistake of Company. Users are responsible for taking their own precautions to ensure the electronic process employed for accessing Services, website, or application, does not expose them to the risk of viruses, malicious computer code, Trojan horses, worms, or otherwise, that may interfere, infect, or damage their computers, software, or data. Furthermore, Cherish These Words limited liability shall extend should any Company computer, server, or software malfunction, and cause any Users any of the aforementioned losses. Cherish These Words has taken precautions to prevent any malfunction, however User hereby agrees to accept full liability for any loss, of any kind, should they occur.
- Software Updates. Cherish These Words may make software updates to it mobile application at any given time. In order to use Services, Users may be obligated to download the updated version of the applications. Cherish These Words may choose to make downloading the updated version of the application a required precedent to continued use of Services. However, Cherish These Words makes no guarantees any subsequent version of an application will work on Users mobile phone or devices. Cherish These Words is expressly not liable for any loss incurred due to Users inability to use Services due to the inability to use an updated version of the mobile application on their specific mobile device.
- Third Party Transactions. Cherish These Words does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Company Service, hyperlink, website, or any of its applications. Users hereby agree to hold third parties solely liable for any and all claims regarding such transactions with third parties. Any products or services purchased or otherwise acquired by a third party, are separate legal transactions solely between Users and the relevant third party, and in no way involve Company.
- Third Party Sites and Embedded Content. Services may contain links, and embedded content from, third party websites, as well as services not operated by Company. Cherish These Words does not control these services. Linked sites may be provided as a service to Users, and does not imply any endorsement of the activities or content of these sites, nor any association with its operators. Users assume any and all risks, known or unknown, now existing or existing in the future, by following a link to a linked site.
- Limited Liability. Users assume any and all risk associated with using Company’s website, application, or Services. Cherish These Words, its parents, subsidiaries, affiliates, owners, directors, officers, employees, licensors, distributors, subcontractors, sub-licensees, independent contractors, and agents (collectively known as the “Company Parties”) shall not be liable for any direct, indirect, incidental, consequential, special, punitive, or exemplary damages, or losses of any kind. These include without limitation, loss of profits, business, goodwill, use, data, or other intangible losses, whether based in contract, tort, negligence, strict liability, or otherwise, which may be incurred in connection with the use, or inability to use, Services, including interruption, inaccuracy, error, or omission.
- Disclaimer. Cherish These Words expressly disclaims all warranties, express or implied, including but not limited to: implied warranties of merchantability; fitness for a particular purpose; non-infringement; warranties of title and accuracy; warranties regarding products and services offered by all businesses listed on Company’s website; and warranties in the course of dealing, performance or usage of trade.
- Maximum Liability. Cherish These Words’ maximum aggregate amount of liability for any loss or damage a User experiences in Company’s content, Services, website, application, or otherwise, shall not exceed $100 or the aggregated amount paid by Users for Company Services in the immediate preceding twelve (12) month period, whichever is lower.
- Class Action Waiver and Other Restrictions. Arbitration shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator's authority to resolve and make written awards is limited to claims between Users and Company alone. Claims may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Notwithstanding any other provision in these Terms (including the “Continuation” provision below), and without waiving either party's right of appeal, if any portion of this “Class Action Waiver and Other Restrictions” provision is deemed invalid or unenforceable, then the entire Arbitration Provision (other than this sentence) shall sever and continue.
- Indemnification. Users agree to indemnify, defend, and hold harmless, Cherish These Words and Company Parties, from and against all: claims; injuries; damages; obligations; losses; lawsuits; attorney fees; legal fees or filing fees from any and all claims or demands made by any party related to Users’ use of Service, website, or applications; violations of these Terms, goods and services purchased; or misuse of User accounts. Cherish These Words reserves the right to execute the exclusive defense of any issues arising out of such indemnification. Users are expressly prohibited from settling such claims without the prior written Consent of Company.
- Independent Relationship. Users fully understand and accept in no way do these Terms, Services, or otherwise, create a joint venture, agency, partnership, or employment relationship with Company. Cherish These Words is not liable for any financial or other loss of Users in any way, on any transaction, under any circumstances. Users accept use of Cherish These Words’ Services often involves financial exchange, and the Cherish These Words shall bear no liability or responsibility therefor.
- Integration. Both parties agree these Terms are the complete and exclusive statement and the mutual understanding of the parties, and these Terms supersede and cancel all previous written and oral agreements and communications relating to the subject matter of this Agreement. Any waivers or amendments shall be effective only if made in writing and signed by an agent of the respective parties authorized to bind the parties.
- Severability. Cherish These Words’ failure to exercise, delay in exercising, any privilege, any power or any rights hereunder will not operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of these Terms shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable.
- Termination and Survival. If a User breaches Terms, or any part of the Terms, in any way, then Company may take action up to, and including, suspending Users’ access to Services or prohibiting them from accessing Company website or application. Cherish These Words may take these actions without liability or notice to you. If a User’s account is terminated due to a breach in the Terms, Users will not be entitled to any refund of any kind. Furthermore, Users can be barred from any future use of Services.
- Arbitration Agreement. All claims and disputes arising under or relating to these Terms and Services are to be settled by binding arbitration in the State of New Jersey or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees. Any such arbitration shall be conducted by an arbitrator experienced in commercial arbitration and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of diction.
- Notice to California Users. Under California Civil Code Section 1789.3, Users of Company Services are entitled to the following contact information: The Complaint Assistance Unit of the Division of Consumer Services at the California Department of Consumer Affairs may be contacted in writing or by telephone at:
400 R Street, Suite 1080
Telephone: (916) 445-1254, or (800) 952-5210
Meshfire’s Mall and Services, Inc.,
PO Box 34
Juliustown, NJ, 08042