Terms

Last Updated: August 11, 2021

Ruby Labs Inc. (“Ruby,” “our” or “we”), located at PO Box 67015, Toronto, Ontario, Canada M4P 3C8, provides the Cherish website, mobile applications (iOS and android), and other online products and services (collectively, the “Services”) in Canada and the United States of America (“USA”). The Services currently are not intended for use in any other jurisdictions, so proceed at your own risk if you are located outside of Canada or the USA. Should you choose to proceed from outside of Canada or the USA,
any concerns should be addressed to Pernimus Limited, located at PO Box 54463, 3724 Limassol, Cyprus. By using the Services, you agree to be bound by these Terms of Use (the “Terms”). If you do not agree to these Terms, including the mandatory arbitration provisions in Section 13, do not access or use the Services. If Ruby makes changes to these Terms, we will provide notice by providing a notice on or via the Services. We also may require you to expressly consent to such updated Terms but, in situations where we do not, your continued use of the Services will confirm your acceptance of the changes.

1. Audience and Accounts

You must be at least 18 years of age and have reached the age of majority in the country where you reside, in order to use the Services, including submitting any information to the Services and/or to Ruby.

By using the Services, you agree to: (a) maintain the security of your account by not sharing your Cherish username or password (if you have an account with a password) or your other access credentials (e.g., Apple login ID), and by restricting access to your account, the email address associated with your account, and your computer or mobile device; (b) promptly notify Ruby if you discover or otherwise suspect any security breaches related to the Services; (c) take responsibility for all activities that occur under your account and accept all risks of unauthorized access; and (d) ensure that you log out of your account at the end of each session. We will not be liable for any loss or damage arising from your failure to comply with this section.

To use a Cherish mobile application, you must have a compatible mobile device. Information about compatibility will be provided in the relevant ‘app store’ (accessible through your mobile device). You understand that you are responsible for all data charges you may incur by using the Services.

In consideration for our allowing you to use our Services, you agree that we, our affiliates, and our third-party partners may place advertising on our Services.

2. Expiry of Access to Your Account for Inactivity

We reserve the right to delete your account if it has been inactive for a period of eighteen (18) months or more. If we exercise this right, you will lose any unused or partially used units of payment (e.g., a monthly subscription payment) in your account.

3. User Content

A. Overview

The Services allow you and other users to create, post, send and store content, including messages, text, photos, and other materials (“User Content”). You agree not to post, store, create or otherwise publish or send through the Services any User Content that violates our Code of Conduct (see Section 5, below”). Ruby has the right to delete or remove any User Content that we, in our sole discretion, view as in violation of these Terms, or for any other reason.

B. Licences

If you submit or post User Content to the Services, you grant Ruby a nonexclusive, royalty-free, worldwide, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display your User Content in any media (now known or later developed), including in connection with Ruby’s or the Ruby Parties’ marketing and promotional activities. You agree that this licence includes the right for Ruby to make User Content available to other companies, organizations or individuals for the syndication, broadcast, distribution or publication on the Services or on other media and services. You further grant Ruby the right to publicly display your username in connection with User Content, so we advise you to ensure you choose a username that protects your anonymity. Notwithstanding the foregoing, we will not publicly share any private posts that you share via the Services.

In connection with User Content and Submissions (see the definition of “Submissions” in Section 4 below), you affirm, represent, and/or warrant that: (i) you own or have the necessary licences, rights, consents, and permissions to use and authorize Ruby to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content and Submissions to enable inclusion and use of the User Content andSubmissions in the manner contemplated by the Services and these Terms; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Content and Submissions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content and Submissions in the manner contemplated by the Services and these Terms.

C. Public Display

You understand that User Content may be displayed publicly by anyone with access to Cherish. Ruby does not control, take responsibility for or assume liability for any User Content or any loss or damage related to User Content.

D. Restrictions & Disclaimers

You may only post User Content: (a) that is non-confidential; (b) to which you have all necessary rights to post to the Services; (c) that is accurate and not misleading or harmful in any manner; (d) that is non-commercial; and (e) that does not and will not violate these Terms or any applicable law, rule or regulation.

You acknowledge and agree that: (i) Ruby does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and Ruby expressly disclaims any and all liability in connection with User Content and/or Submissions; (ii) Ruby does not tolerate activities that would infringe anyone’s copyright or other intellectual property rights, and Ruby will remove all infringing User Content and/or Submissions if properly notified that such User Content and/or Submission(s) infringes on another’s intellectual property rights; (iii) Ruby reserves the right to remove User Content and Submissions without prior notice; and, (iv) Ruby also may terminate a User’s access to the Services, at any time, without prior notice and at its sole discretion, if the User is determined to be willful, malicious or repeatedly negligent with regard to such infringement.

You understand that when using the Services, you will be exposed to User Content from a variety of sources, and that Ruby is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content. You further understand and acknowledge that you may be exposed to User Content that Is inaccurate, offensive, indecent, objectionable, and/or in violation of Section 5 of these terms, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or might otherwise have against Ruby with respect thereto, and agree to indemnify and hold Ruby, and our parent company, subsidiary companies, affiliated entities, and our and their shareholders, officers, directors, employees, contractors, representatives, agents successors, assigns, service providers, consultants and licensors (collectively, the “Ruby Parties”), harmless to the fullest extent allowed by law regarding all matters related to your use of the Services.

The Services are developed by Ruby Labs Inc. and we do not have any affiliation with the providers of User Content or Submissions. We reserve the right to change the source of available emojis, stickers and stock images without prior notice. Ruby does not claim to own, create or host any of the emojis, stickers or stock images, or their underlying content.

4. Feedback and Other Submissions

Separate from User Content, you may submit questions, comments, feedback, suggestions, and other information regarding the Services (“Submissions”). You acknowledge and agree that Submissions are non-confidential and will become the sole property of Ruby, and you hereby irrevocably transfer and assign to Ruby all intellectual property rights in such Submissions and waive any and all moral rights that you may have with respect to them. You agree to execute any documentation required by Ruby to confirm such assignment to Ruby.

5. Code of Conduct

You agree that: (i) your use of the Services will not violate any law, contract, intellectual property or other third-party right or constitute a tort; (ii) you are solely responsible for your conduct while on the Services; and (iii) you use the Services at your own risk. You further agree:

NOT TO use the Services in any manner that could inhibit other users from fully enjoying the Services, or that could damage or impair the functioning of the Services;
NOT TO engage in any discriminatory, defamatory, hateful, harassing, abusive, obscene, threatening, physically dangerous, unlawful or otherwise objectionable conduct, including but not limited to: (i) abusing your access to other users and their User Content, (ii) submitting User Content that is unlawful, obscene, pornographic, defamatory, libelous, threatening, harassing, abusive, hateful, racially or ethnically offensive, or encourages conduct that would: (a) be considered a criminal offense, (b) give rise to civil liability, (c) violate any law, or (d) otherwise be considered inappropriate; (iii) using the Services to engage in prostitution, human trafficking or pedophilia;
NOT TO submit material that is copyrighted, protected by trade secret or otherwise subject to third-party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Ruby all of the licence rights granted herein;
NOT TO publish falsehoods or misrepresentations that could damage Ruby or any third party;
NOT TO impersonate another person;
NOT TO post advertisements or solicitations of business;
NOT TO indicate that you have a relationship with Ruby or that Ruby has endorsed you or any products or services;
NOT TO post any Third-Party Content (defined in Section 7, below) without obtaining all necessary approvals and providing a citation to the source of such content;
NOT TO send any unsolicited advertising or promotional materials or collect the email addresses or other contact information of other users from the Services for the purpose of sending commercial messages;
NOT TO attempt to reverse engineer any aspect of the Services or do anything that might circumvent measures employed to prevent or limit access to any area, content or code of the Services (except as otherwise expressly permitted by law);
NOT TO use or attempt to use another’s account without authorization from such user and Ruby;
NOT TO develop any third-party application that interacts with the Services without Ruby’s prior written consent;
NOT TO use any automated means or interface not provided by Ruby to access the Services;
NOT TO use the Services or the Service Materials (defined below) for anything other than their intended purpose or in a way that violates these terms; and,
NOT TO assist anyone else to do any of the activities prohibited by this Code of Conduct.

6. Intellectual Property

ALL COPYRIGHTS AND TRADEMARKS NOT THE PROPERTY OF RUBY, INCLUDING BUT NOT LIMITED TO EMOJIS, STICKERS, STOCK IMAGES, CHARACTERS, TRANSLATIONS AND LOGOS THAT ARE USED OR REFERRED TO ON THE SERVICES, ARE THE PROPERTY OF THEIR RESPECTIVE OWNERS.

The Cherish logos and any other product or service name(s) or slogan(s) contained in the Services are trademarks of Ruby or one or more of the Ruby Parties. Unless otherwise indicated, the Services and all trademarks, service marks, logos, domains, copyrighted content, patented content and other materials on the Services, including, without limitation, the Cherish logo and all designs, form, text, scripts, graphics, pictures, videos, information, data, software (both source and object codes), publicity, sound files, other files, enhancements, derivative works, know-how and modifications thereto (collectively, the “Service Materials”) as well as their selection and arrangement are the solely owned by or licensed to Ruby or one or more of the Ruby Parties and are protected by U.S. and Canadian copyright, trademark and other intellectual property rights laws. Unpublished rights are reserved under the copyright laws of the United States of America and Canada. Except as explicitly stated in these Terms, Ruby does not grant any express or implied rights to use Service Materials.

You are granted a limited, non-exclusive, non-transferable and revocable licence to access and use the Services and Service Materials for your personal, non-commercial use. This licence allows you to use an object code copy of a Cherish mobile application for one registered account on one mobile device owned or leased solely by you, for your personal use. We reserve all other rights. This licence is revocable at any time. For greater clarification, the right to use the Services is licensed (not sold) to you, and you have no rights in, or to, the Services or the Service Materials described above, other than the right to use them in accordance with these Terms. You acknowledge you have no right to have access to the Services in source-code form. You further acknowledge that you have no right to use any of the trademarks, service marks, logos, or domains that you may find on our Services, unless you have our express written permission. Except for that information which is in the public domain or for which you have been given express written permission by us, you agree not to exploit any aspect of the Services or the Service Materials in any manner, including the fact that you may not:

Use a Cherish mobile application for any but its intended purpose(s);
modify, disassemble, decompile, reverse engineer, translate, merge, adapt, edit, alter, enhance, or create derivative works based on the whole or any part of, a Cherish mobile application, or permit a Cherish mobile application or any part of it to be combined with, or become incorporated in, any other programs, or attempt to do any such thing;
rent, lease, loan, resell, sublicense, distribute, transmit, publicly display, broadcast, publicly perform, publish, assign or otherwise transfer a Cherish mobile application to any third party or use a Cherish mobile application to provide time sharing or similar services for any third party;
make any copies or reproductions of a Cherish mobile application;
remove, circumvent, disable, damage or otherwise interfere with: (i) security-related features of a Cherish mobile application; (ii) features that prevent or restrict use or copying of any Content accessible through a Cherish mobile application; or, (iii) features that enforce limitations on use of a Cherish mobile application; or
delete the copyright and other proprietary rights notices on a Cherish mobile application.

7. Third-Party Content

The Services may include links and other content owned or operated by third parties, including advertisements, promotions, social “widgets” and non-commercial links or references to third parties or third-party websites or resources (“Third-Party Content”). You agree that Ruby is not responsible or liable for Third-Party Content and that you access and use Third-Party Content at your own risk. You understand that Ruby has no control over Third-Party Content, including its availability (or lack of availability), the quality of any goods and/or services, the provisions of any privacy policies, security practices or other practices of the third party, or any messages you receive from, or communications you have with, the owners of Third-Party Content and/or operators of their websites. You further acknowledge that we will not be responsible for any damage to your computer hardware, software, or other technology or equipment, including but not limited to damage from any security breach or from any programming errors, bugs, viruses, worms, Trojan horses or similar programs, other software or hardware failures, denial of service attacks, spamming or hacking, tampering, fraud, other error, omission, interruption, defect, delay in operation or transmission, computer line or network failure, or any other technical malfunction that results from your accessing Third-Party Content. Your purchase and use of products or services offered in Third-Party Content are at your own discretion and risk. In addition, Ruby will not and cannot censor or edit the content of any third-party website or mobile application. Your interactions with Third-Party Content providers are solely between you and the third party that is providing the content.

When you leave our Services, you should understand that these Terms and our policies no longer govern and that the terms and policies of those third-party sites or services will then apply. By using the Services, you expressly relieve Ruby and the Ruby Parties from any and all claims, causes of action, costs, damages and expenses of any type and nature whatsoever, arising out of or related to such Third-Party Content or from any and all liability arising from your use of any third-party website. Accordingly, you must read the terms and conditions and privacy policy of any other website that you visit through a link from our Services and any other website from which Third-Party Content is posted on our Services.

Where possible, we will post a citation or other reference to the source site. All User Content must provide citations for any third-party materials.

8. Infringement of a Third Party’s Intellectual Property Rights

A. Submitting a Complaint

Ruby respects the intellectual property rights of others, and we ask you to do the same. We may terminate access to the Services for users who infringe the intellectual property rights of others.

If you believe that your work is the subject of copyright infringement and/or trademark infringement and it appears on our Services, please contact us using the following contact information:

Ruby Labs Inc.
Attention: General Counsel
PO Box 67015
Toronto, Ontario
Canada M4P 3C8

Email: [email protected]

Please also note that, for copyright infringements under Section 512(f) of the U.S. Copyright Act (17 U.S.C. §512(f)), any person who knowingly materially misrepresents that material or activity is infringing shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

B. Submitting a DMCA Counter-Notification

We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid take-down notice issued under the Digital Millennium Copyright Act (“DMCA”) that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to our agent (as designated in the notice), that includes all of the following information:

Your physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
A statement from you, under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided us with notification of your allegedly infringing material, or from an agent of such person.

9. Interactions with Other Users

Ruby provides a platform for users to communicate and interact with one another. You are solely responsible for your interactions with others, and Ruby has no responsibility or liability with respect to any online or offline interactions. We reserve the right, but have no obligation, to monitor interactions between you and other users of our Services. Please use your best judgment and keep safety in mind when you use the Services and interact with others.

10. Protection, Security and Privacy

A. Your Obligations, Consent and Prohibitions

You shall take all reasonable steps to ensure that no person other than yourself shall have access to the Services via your user account. Upon learning of any unauthorized use of the Services, you will notify us promptly regarding the details of such occurrence(s), and take measures to prevent any reoccurrence thereof.

By using the Services, you consent to us collecting and using technical information about your mobile device(s) and related software, hardware, and peripherals (including, but not limited to, the serial number and IMEI number of your wireless device) to facilitate the provision of software updates or otherwise to improve our provision of the Services to you. This information and other information which may be deemed personal information shall be collected in accordance with our Privacy Policy.

Your User Content, which you provide via your use of the Services, may be cached or otherwise stored on your mobile device while you are logged in to your account, in order to make your user experience faster and more seamless. It is solely your responsibility to ensure that your use of the Services AND your use of the mobile device are safeguarded properly via password protections, logging out of the Services and the mobile device, physically safeguarding your mobile device, and any other necessary measures.

You acknowledge that you are prohibited from running the Cherish application on a jailbroken or otherwise modified version of your mobile device’s factory-supplied operating system. You acknowledge that you are fully liable for any resulting legal or financial consequences which may arise from operating the Cherish application on such a device.

B. Assumption of Risk

While we maintain a comprehensive information security program that is reasonably designed to protect the security, confidentiality, and integrity of personal information collected from or about users, you acknowledge and agree that internet-based services and internet and data transmissions carry inherent security risks including, without limitation, risk of a data breach, sabotage or other security intrusion, and that a third party may make unlawful and harmful use of the Services. You acknowledge that we cannot guarantee that these Services and transmission are or will be 100% secure. You acknowledge and agree that your choice to use the Services is, therefore, an assumption of risk on your part, and that Ruby shall not be liable in any way for any damage whatsoever that may result from any such third-party behaviour. See Section 13 (“Liability”) for further information.

C. Our Privacy Policy

Any personal information we collect in connection with your access to or use of the Services is governed by our Privacy Policy. Our Privacy Policy is incorporated into these Terms by this reference and you should read it carefully.

D. Location of Services and Processing

The Services include and make use of certain functionality and services provided by third parties, which allow Ruby to include maps, geocoding, places and other content from Google as part of the Services (the “Geo-Location Services”). Your use of the Geo-Location Services is subject to Google’s then-current Terms of Use for Google Maps/Google Earth (http://www.google.com/intl/en_us/help/terms_maps.html). By using the Geo-Location Services, you are agreeing to be bound by Google’s Terms of Use.

If we become aware of any legal or other risk associated with the availability of the Services, whether for use in a particular location or more generally, we reserve the right to change, suspend, withdraw or disable access to the Services at any time, without notice, and we shall have no liability to you in respect of such action.

11. Email Communications

A. Emails Sent to You by Us or by One of Our Agents

Subject at all times to our obligations regarding email communications in your respective jurisdiction, you agree that: (i) we and other sites we operate (or our agents) may send you email communications that include messages about the Services and your user account with us, and services offered by us, by the Ruby Parties, and/or by third parties; and (ii) any notice, agreements, and other communications we send to you electronically will be deemed to satisfy any legal requirements, including, without limitation, that such communications be in writing.

You may opt out of receiving email communications from us by clicking the unsubscribe link located at the bottom of any email we send you (which links will remain effective for at least 60 days). Please be advised that you cannot opt out from operational emails (i.e. non-promotional communications) pertaining to your account.

Emails sent to you by us or one of our agents may contain links to other independent third-party websites or third-party applications (“Third-Party Sites”). See Section 3.E. for more information regarding Third-Party Sites.

B. Emails Sent to You by Individuals and/or Entities that Are Unrelated to Us

We are not responsible for email communications sent to you by individuals or entities that are unrelated to us. See Section 13 (“Liability”) for further details.

12. Payments and Refunds

A. Pricing

The mobile applications will be paid for on a monthly subscription basis, paid through the applicable (Apple or Google) app store.

B. Methods of Payment

The methods of payment will be determined by the applicable (Apple or Google) app store. Please note that, when you subscribe to our Services through the Apple app store or another authorized platform, your order will be governed by the terms and privacy policy that govern such platform, including their order cancellation provisions.

C. Automatic Subscription Renewals

In order to provide continuous service, all paid subscriptions for the Services automatically will renew on the date such subscriptions expire, unless you notify the applicable (Apple or Google) app store, before the renewal date, that you wish to cancel a subscription. By accepting these Terms, you acknowledge that your account will be subject to the above-described automatic renewals. If, at any time, you do not wish your account to renew automatically, you may cancel your automatic subscription via the applicable (Apple or Google) app store.

Notwithstanding anything else in this Section 12.C. or elsewhere in these Terms, you acknowledge that that we have no obligation to pro-rate refunds for subscriptions that you already have purchased, except as set out in Section 12.D.

D. Cancellations and Refunds

Some jurisdictions offer consumers a cooling off period with respect to purchases made online. The applicable (Apple or Google) app store through which you made payment will be responsible for handling cancellations and refunds, including applying your jurisdiction’s laws (if any) related to a cooling off period. If you have any concerns or complaints about this process, such concerns/complaints should be addressed to Apple or Google, as applicable.

AFTER THE EXPIRATION OF THE APPLICABLE CANCELLATION PERIOD, YOU AGREE THAT YOUR PURCHASES, INCLUDING YOUR PURCHASE OF CREDITS (OR OTHER UNITS) AND SUBSCRIPTIONS, ARE NON-REFUNDABLE EXCEPT WHERE WE HAVE BREACHED THESE TERMS, IN WHICH CASE YOU MAY BE ENTITLED TO A REFUND UNDER APPLICABLE LAW.

13. Liability

A. Our Liability

The following provision is not applicable to residents of Quebec, to whom the Quebec Consumer Protection Act applies.

We are not responsible for anything that: (i) was not foreseeable to you and/or to us when these Terms were entered into by you; or (ii) is not directly caused by any breach of our obligations or otherwise directly caused by us.

To the maximum extent permitted by applicable law, in no event shall we, or any of the Ruby Parties be liable for (even if we or they have been advised of the possible existence of, or should have known about or foreseen) any of the following:

ANY LOSSES OR DAMAGES, WHETHER ACTUAL, INCIDENTAL, DIRECT, INDIRECT, INTANGIBLE, GENERAL, CONSEQUENTIAL RELIANCE, COMPENSATORY, PUNITIVE, SPECIAL AND/OR EXEMPLARY, INCLUDING, WITHOUT LIMITATION, BODILY INJURY, DEATH, EMOTIONAL DISTRESS, REPUTATIONAL HARM, DAMAGE TO YOUR COMPUTER HARDWARE, COMPUTER SOFTWARE, OR OTHER EQUIPMENT OR TECHNOLOGY, SERVICE INTERRUPTION, LOSS OR CORRUPTION OF DATA, PROCUREMENT OF SUBSTITUTE SERVICES, PECUNIARY LOSS AND/OR ANY OTHER LOSS OR DAMAGE ARISING OUT OF OR RELATING TO:
1. YOUR USE, LOSS OF USE, OR INABILITY TO USE THE SERVICES (INCLUDING DELAYS, INTERRUPTIONS IN SERVICE, TERMINATION OF YOUR ACCOUNT, OR PERFORMANCE OF THE SERVICES);
2. MODIFICATION OF ANY PART OF, OR CONTENT IN, THE SERVICES;
3. THE ACCURACY, TIMELINESS, PERFORMANCE, COMPLETENESS OR SUITABILITY OF ANY CONTENT OR THE SERVICES FOR ANY PARTICULAR PURPOSE;
4. ANY DATA BREACH OR ANY OTHER SECURITY INTRUSION, OR ANY PROGRAMMING ERRORS, BUGS, VIRUSES, WORMS, TROJAN HORSES, OTHER MALICIOUS SOFTWARE OR HARMFUL COMPONENTS, DENIAL OF SERVICE ATTACKS, SPAMMING, HACKING, TAMPERING, INTERRUPTION, CRASHING OF THE OPERATING SYSTEM, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE, OR ANY OTHER TECHNICAL OR NON-TECHNICAL SOFTWARE OR HARDWARE FAILURE, MALFUNCTION OR DEFECT, INCLUDING ANY WHICH COULD RENDER A MOBILE DEVICE INOPERABLE;
5. YOUR CONDUCT OR THE CONDUCT OF ANY OTHER USER IN CONNECTION WITH THE USE OF THE SERVICES;
6. YOUR COMMUNICATIONS WITH OTHER USERS OF THE SERVICES, INCLUDING MESSAGES OR ANY OTHER COMMUNICATIONS SENT BY OTHER USERS OF THE SERVICES TO YOU (OR SENT BY YOU TO OTHER USERS OF THE SERVICES) AND THE ACCURACY, INACCURACY, COMPLETENESS, INCOMPLETENESS, OR DEFECTIVENESS OF THE INFORMATION COMMUNICATED TO YOU BY OTHER USERS (AND BY YOU TO OTHER USERS), INCLUDING USER CONTENT POSTED ON OUR SERVICES OR TRANSMITTED TO YOU OR OTHER USERS VIA OUR SERVICES;
7. YOUR MEETINGS AND OTHER INTERACTIONS WITH OTHER USERS OF THE SERVICES, OR PERSONS YOU MEET THROUGH THE SERVICES, WHETHER SUCH MEETINGS OR INTERACTIONS TAKE PLACE ON OUR SERVICES, VIA OTHER ONLINE METHODS, TELEPHONIC METHODS, OR OFFLINE;
8. ANY PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES, INCLUDING ANY THIRD PARTIES REFERENCED IN THE SERVICES;
9. ANY ACTS OR OMISSIONS OF THIRD PARTIES, INCLUDING VIOLATION OF YOUR RIGHTS, OR ANY FRAUD BY ANY THIRD-PARTY VENDOR OR ANY OTHER USER;
10. ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY US, LAW ENFORCEMENT AUTHORITIES, OR OTHER PERSONS WHO OBTAIN SUBPOENAS, COURT ORDERS, SEARCH WARRANTS OR SIMILAR LEGAL DISCOVERY DOCUMENTS, WHERE SUCH INVESTIGATION IS CONDUCTED REGARDING YOUR USE OF THE SERVICES;
11. ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS;
THE USE BY OTHER USERS OF ANY INFORMATION WHICH YOU PROVIDE TO THEM;
THE ACTIONS OR INACTIONS OF ANY THIRD PARTIES THAT WE DO NOT CONTROL (INCLUDING BUT NOT LIMITED TO OTHER USERS OF OUR SERVICES);
ANY PROBLEM, TECHNICAL MALFUNCTION OR SECURITY ISSUE RELATED TO ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, MOBILE DEVICE EQUIPMENT, SOFTWARE, EMAIL OR PLAYERS, ANY TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE, OR ANY COMBINATION THEREOF, WHERE SUCH ISSUE HAS NOT BEEN CAUSED BY US OR BY ANY PARTY THAT WE CONTROL; AND
ANY FAILURE OR DELAY IN PERFORMING UNDER THESE TERMS WHERE SUCH FAILURE OR DELAY IS DUE TO CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION: NATURAL CATASTROPHE; FIRE; EPIDEMIC; PANDEMIC; QUARANTINE; GOVERNMENTAL ACT OR OMISSION; LAW OR REGULATION; WAR; TERRORISM (WHETHER ACTUAL OR THREATENED); RIOT OR CIVIL UNREST; FAILURE, DELAY OR DIMINISHMENT OF ELECTRICAL POWER OR OTHER UTILITY, INTERNET SERVICE, CO-LOCATION, DATA NETWORK OR SERVICE, WIRELESS CARRIER CONNECTIVITY OR TELECOMMUNICATION SERVICE; TRANSPORTATION STOPPAGE OR SLOWDOWN; STRIKE OR LABOUR ACTION; BLOCKADE; NON-CHERISH APPLICATION; DENIAL OF SERVICE OR SIMILAR ATTACK; ACT OF CIVIL OR MILITARY AUTHORIES; ACCIDENT; ENERGY CRISIS, OR ISSUE CAUSED BY ANY USER’S DEVICE(S), EQUIPMENT OR SYSTEM(S) (“FORCE MAJEURE”).
Business losses and/or losses to non-consumers. (See Sections 2 and 3 for your obligation to use the Services for personal use only.)
Any losses or damages arising from or related to any and all email messages sent by any individual or entity which we do not own and/or operate (and which is not owned and/or operated by an agent of ours). (You acknowledge and agree that you shall not take any legal action against us [or against our parent and subsidiary companies, affiliates, or any of their or our shareholders, officers, directors, employees, contractors, representatives, agents successors or assigns] with respect to any such email message(s) that you receive, even if the contents of any message include references to us or our Services, or if such message purports to have been sent on our behalf.)If you are dissatisfied with the Services in any way but have incurred no losses or damages caused by us, your sole and exclusive remedy shall be your termination of your account and discontinuation of your access to, or use of, the Services.

B. Limitation on Liability

To the maximum extent permitted by applicable law, under no circumstances will Ruby’s liability to you for any and all losses or damages suffered in connection with these Terms or your use of the Services exceed the amount paid by you to use the Services during the twelve (12) months prior to the act or omission giving rise to liability, or, if you have not paid to use the Services, the amount of Twenty-Five Canadian Dollars (CAD $25) or its equivalent.

C. Your Liability

You are responsible for, and agree to indemnify and defend us and the Ruby Parties against, and release and hold us and the Ruby Parties harmless from, the claims, actions, proceedings, complaints, demands, losses, costs, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs) incurred by us or by any person engaged in the provision of the Services to the extent they arise out of or relate in any way to: (a) your access to, or use (or misuse) of, or inability to use the Services; (b) your User Content; (c) your infringement of the intellectual property rights of a person other than yourself; (d) your breach of these Terms; (e) your violation of any rights of a third party; (f) your negligent acts or omissions, or willful misconduct or (g) your breach of any applicable law(s). You agree not to settle any such matter without our prior written consent. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us fully in asserting any available defenses.

D. Exceptions

NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT ANY OF OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, OUR LIABILITY WILL BE EXCLUDED OR LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

For greater clarification, some U.S. states do not allow the exclusion or limitation of incidental or consequential damages, so the above exclusions and limitations may not fully apply to you.

E. Survivability

The waivers and limitations specified in this Section 13 will survive and apply regardless of the form of action, whether based in equity, contract, tort (including negligence), strict liability, product liability, or otherwise, even if any limited remedy in the Terms fails of its essential purpose.

14. No Warranties

The Services are provided to you on an “AS IS,” “WITH ALL FAULTS” and “AS AVAILABLE” basis. Subject to any applicable legislation prohibiting the following exclusions, we do not offer or provide any warranties or representations in relation to the quality or performance of the Services, nor do we guarantee that the Service will always be available or that access to them will be uninterrupted. We will not be liable to you if, for any reason, the Services do not perform as described or are unavailable at any time or for any period. We cannot and do not warrant that the Services will be free from defects and errors, or that any defects or errors will be corrected. You assume responsibility for the operation of the Services, and for use and results obtained from the Services. WE MAKE NO WARRANTIES OF ANY KIND RELATED TO THE SERVICES (INCLUDING ALL CONTENT CONTAINED THEREIN), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT, AND FITNESS FOR A GENERAL OR PARTICULAR PURPOSE. RUBY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR SERVICE MATERIALS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. RUBY IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT OR PHOTOGRAPHY. WHIE RUBY ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICES SAFE, RUBY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR HAVE LEGISLATION THAT IMPOSES CERTAIN STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, SO PARTS OF THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

15. Updates

A. Modifications to the Services

We may modify or vary any part of the Services in order to make technical adjustments, including but not limited to modifications which: (i) address security threats; (ii) comply with applicable law; (iii) enable us to test a new feature; (iv) cancel an existing feature; or (v) update the functionality of an existing feature. You agree that these Terms will apply to all such upgrades.

We are not obligated to inform you of every instance where we make a change to the Services. However, we may, from time to time, notify you of changes by, for example, inviting you to test a new feature or informing you that we are canceling a feature. If at any time, as a result of modifications or otherwise, you determine that you no longer want to use the Services, you can deactivate your subscription (through the Apple or Google app store, as applicable) or delete your account (by reaching out to [email protected]).

Depending on the update, you may not be able to use the Cherish mobile application until you have downloaded the latest version (and accepted any new terms, where applicable). In situations where you still are able to use an older version of the Cherish mobile application, we may no longer provide support services in relation to that older version.

B. Modifications to these Terms

We may modify or vary any part of these Terms, including but not limited to changes which: (i) do not adversely affect you; (ii) address security threats; (iii) comply with applicable law; (iv) provide clarity; or (v) comply with changes to the Services. In such circumstances we may require you to expressly consent to such updated Terms but, in situations where we do not, your continued use of the Services will confirm your acceptance of the changes.

16. Dispute Resolution (USA and Canada Only)

Please read this carefully if you are a resident of the United States of America or Canada. It affects your rights.

A. Scope

For residents of the USA, all disputes, claims, controversies, causes of action (in tort, contract, by statute, regulation, ordinance or any other legal or equitable theory), including, without limitation disputes arising from or relating to these Terms (including this dispute resolution provision and the interpretation, breach, termination, enforceability and/or validity of any part of these Terms including this dispute resolution provision) or the relationship between you and Ruby (including your use of the Services at any time) (collectively, “Disputes”) shall be resolved by: (i) a pre-arbitration dispute resolution process; or, failing that, (ii) binding arbitration pursuant to the Federal Arbitration Act (“FAA”).

For residents of Canada, all Disputes shall be resolved by (i) a pre-arbitration dispute resolution process; or, failing that, binding arbitration (to the extent binding arbitration is enforceable under the laws of your province of residence).

The purpose of this Dispute Resolution Section is to facilitate the prompt and efficient resolution of any disputes that may arise between you and Ruby. “Disputes” is to be given the broadest possible meaning that will be enforced, except that “Disputes” excludes disputes relating to the enforcement or validity of our intellectual property rights. WE EACH AGREE THAT, EXCEPT AS OTHERWISE PROVIDED BELOW, ANY AND ALL DISPUTES, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT, IN ACCORDANCE WITH THIS DISPUTE RESOLUTION PROVISION.

B. Pre-Arbitration Dispute Resolution Process

We hope we never have a Dispute but, if we do, you and we agree to try for sixty (60) days to resolve it informally. For greater clarification, if either party has any potential Dispute with the other, the complaining party must first give the other party an opportunity to resolve the Dispute prior to initiation of arbitration.

If you are the party who feels that a Dispute exists and that our customer service representatives haven’t been able to resolve it, you must commence this resolution process by mailing written notification to [email protected]. Your written notification must include: (1) your name; (2) your address; (3) a written description of the Dispute; and (4) a description of the specific relief you seek. You agree to try in good faith to resolve the Dispute within sixty (60) days of that request, following which either party may demand arbitration administered by JAMS (see Section 13.C., below).

C. Arbitration Process

For residents of the USA, if the parties engage in arbitration, it shall be performed by a single independent and impartial JAMS arbitrator (see www.jamsadr.com) under the FAA and any JAMS rules deemed to be applicable by the arbitrator. These Terms shall govern to the extent that they conflict with the JAMS rules. It is the intent of the parties that the FAA and JAMS rules shall pre-empt all state laws to the maximum extent permitted by law. If the FAA and JAMS rules are found not to apply to any issues that arise under this Dispute Resolution Section, then that issue shall be resolved under the laws of the State of New York. The arbitrator shall be either a retired judge or an attorney specifically licensed to practice law in the State of New York, and must have experience with and knowledge of information technology, and commercial websites. The arbitrator will be selected from the JAMS roster of consumer dispute arbitrators. If your claim does not exceed Ten Thousand US Dollars (USD $10,000), then the arbitration will be conducted solely on the basis of documents you and Ruby submit to the arbitrator, unless you request a hearing or the arbitrator deems that a hearing is necessary. Subject to the JAMS rules, the arbitrator shall have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

For residents of Canada, if the parties engage in arbitration, it shall be performed by a single independent and impartial JAMS arbitrator from JAMS Toronto (see https://www.jamsadr.com/toronto). These Terms shall govern to the extent that they conflict with the JAMS rules. It is the intent of the parties that the JAMS rules shall pre-empt all provincial laws to the maximum extent permitted by law. If the JAMS rules are found not to apply to any issues that arise under this section, then that issue shall be resolved under the laws of the Province of Ontario. The arbitrator will be selected from the JAMS Toronto roster of consumer dispute arbitrators. If your claim does not exceed Ten Thousand Canadian Dollars (CAD $10,000), then the arbitration will be conducted solely on the basis of documents you and Ruby submit to the arbitrator, unless you request a hearing or the arbitrator deems that a hearing is necessary. Subject to the JAMS rules, the arbitrator shall have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitration replaces the right to go to court and, therefore, the parties waive any right that you or Ruby might otherwise have had to a jury trial or the opportunity to litigate any claims in court before either a judge or jury. An arbitrator’s decision shall be final and binding on all parties. An arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. Notwithstanding the foregoing, Ruby reserves the right to pursue the protection of its intellectual property rights and confidential information and to stop other illegal activities through immediate injunctive relief or other equitable relief at any time, and without first resorting to informal procedures or arbitration, through any courts of competent jurisdiction.

D. Venue

For residents of the USA, the exclusive venue for the arbitration shall be New York, New York. The parties may agree mutually on an alternate venue, in the event that New York City is an inconvenient forum. The parties will endeavor to minimize the need for long-distance travel through use of telephonic communications and submission of documents as permitted under applicable rules for expedited procedures. The official language of the arbitration shall be English.

For residents of Canada, the exclusive venue for arbitration shall be Toronto, Ontario. The parties may mutually agree on an alternate venue, in the event that Toronto is an inconvenient forum. The parties will endeavor to minimize the need for long-distance travel through use of telephonic communications and submission of documents as permitted under applicable rules for expedited procedures. The official language of the arbitration shall be English.

E. Small Claims Exception

Instead of mailing a written notification as described in Section 13.B., above, if you meet the applicable court’s requirements, you may sue us in small claims court in your county of residence or: (i) for residents of the USA, in Manhattan County, New York; or (ii) for residents of Canada, in the Municipality of Metropolitan Toronto, Ontario.

F. Class and Consolidated Claims Waiver

To the extent permitted under applicable law, it is agreed that neither party shall have the right to participate as a class representative or class member with respect to any Dispute subject to arbitration under the Terms, or any Dispute between the parties. Except as otherwise provided in this paragraph, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, collective action, consolidated action, or representative action) unless both you and we specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court , where applicable law allows for such lawsuit despite the existence of this Dispute Resolution Section, this Class and Consolidated Claims Waiver will not apply to you.For greater clarification,neither you, nor any other user of the Services, can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having first complied with the requirements of the applicable law.

G. Limit of Liability

See Section 13 (“Liability”).

H. Notice of Claims, Timing of Disputes, and Nature of Award

Any Dispute must be filed within one (1) year of the date the Dispute arose or occurred; otherwise, it is barred permanently. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to any Dispute. Arbitration shall be commenced by filing a claim pursuant to the applicable JAMS Rules. The arbitration proceedings shall be completed, barring extraordinary circumstances or delays caused by the arbitrator’s schedule, within thirty (30) days of the completion of any discovery. The parties may grant reasonable continuance upon good cause shown. Any award shall be reasoned and shall be rendered within the time frame specified within the JAMS rules and, where possible, within thirty (30) days of closure of the arbitration proceedings.

I. Discovery and Hearing Procedures

All parties have the right, at their own expense, to be represented by an attorney or spokesperson of their own choosing. Discovery shall be completed expeditiously within one hundred twenty (120) days of the filing of the claim. The parties may grant reasonable extensions upon good cause shown. Each party shall produce relevant non-privileged documents requested by the other party. Discovery procedures available in court actions shall not apply. The arbitrator shall grant oral and/or written discovery to preserve evidence or upon a showing of need. All discovery disputes shall be submitted promptly to, and resolved promptly by, the arbitrator (subject to her/his schedule). The parties may elect to use any expedited procedures under the applicable JAMS rules.

J. Emergency and Provisional Remedies

Any party may seek a preliminary injunction or other provisional, injunctive, emergency or equitable relief (but not monetary relief) in a court of competent jurisdiction if, in its sole judgment, such relief is necessary to preserve the status quo or to prevent irreparable harm. The parties shall, despite seeking relief under this section, participate in good faith in the arbitration.

K. Confidentiality

The arbitrator will take reasonable steps to protect customer (i.e., user) account information and other confidential or proprietary information. The arbitration will be confidential unless the parties agree, mutually, that it need not remain confidential.

L. Payment of Arbitration Fees and Costs

Ruby will consider requests to advance arbitration filing fees and arbitrator’s costs and expenses upon your written request, if such request is made prior to the commencement of the arbitration. You are responsible for all additional costs that you incur in the arbitration including, without limitation, costs associated with attorneys or expert witnesses. If the arbitration is decided in your favor, you will not be required to reimburse Ruby for any of the fees and costs advanced by Ruby. If the arbitration is decided in Ruby’s favor, you shall reimburse Ruby for its arbitration fees and costs, to the extent permitted under the applicable JAMS rules.

M. Waiver of Jury Trial

THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under the terms of this Dispute Resolution Section. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Ruby in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND RUBY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

N. Survival and Severability

The terms of this Dispute Resolution Section shall survive the termination of your Services with Ruby. If any portion of this Dispute Resolution Section is deemed to be unenforceable or unlawful for any reason: (1), the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Dispute Resolution Section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Dispute Resolution Section, and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction rather than in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

17. Mobile-Specific Terms

In addition to the rest of these Terms (which apply to all users, no matter which mobile application they use to access and/or use the Services), this section applies to you as applicable, depending on the specific Cherish mobile application you use to access the Services.

A. Apple/iOS Terms

The following additional terms and conditions apply with respect to any Cherish mobile application that Ruby provides to you designed for use on an Apple/iOS-powered mobile device (a “Cherish iOS App”):

You acknowledge that the Terms are between you and Ruby only, and not with Apple, Inc. (“Apple”).
Your use of the Cherish iOS App must comply with Apple’s then-current App Store Terms and Conditions, (which can be found at https://www.apple.com/legal/internet-services/itunes/us/terms.html) and Apple’s then-current Licensed Application End User License Agreement (which can be found at https://www.apple.com/legal/internet-services/itunes/dev/stdeula/). Ruby does not sell the Cherish iOS App to you; however, Ruby remains the owner of the Cherish iOS App at all times.
Ruby, and not Apple, is solely responsible for our Cherish iOS App and the services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our Cherish iOS App.
The licence granted to the you for the Cherish iOS App is limited to a non-transferable licence to use the Cherish iOS App on any Apple-branded Products that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that the Cherish iOS App may be accessed and used by other accounts associated with the you via Family Sharing or volume purchasing.
Ruby is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed elsewhere in these Terms. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Cherish iOS App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Cherish iOS App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Ruby’s sole responsibility, not Apple’s.
You agree that Ruby, and not Apple, is responsible for addressing any claims by you or any third party relating to our Cherish iOS App or your possession and/or use of our Cherish iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the Cherish iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by the Terms and any law applicable to us as provider of the Cherish iOS App.
You agree that Ruby, and not Apple, shall be responsible, to the extent required by the Terms, for the investigation, defense, settlement and discharge of any third party’s intellectual property infringement claim related to our Cherish iOS App or your possession and use of our Cherish iOS App.
You represent and warrant that: (i) you are not located in a country that is subject to a U.S. or Canadian Government embargo, or that has been designated by the U.S. Government or the Canadian Government as a “terrorist supporting country”; and (ii) you are not listed on any U.S. Government or Canadian Government list of prohibited or restricted parties.
You agree to comply with all applicable third-party terms of agreement when using our Cherish iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the Cherish iOS App) to the extent you have had access to those third-party terms before entering into these Terms.
The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to the Terms as they relate to your licence of the Cherish iOS App. Upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as they relate to your licence of the Cherish iOS App as a third-party beneficiary thereof.

B. Google/Android Terms

The following additional terms and conditions apply with respect to any Cherish mobile application that Ruby provides to you designed for use on an Android-powered mobile device (a “Cherish Android App”):

You acknowledge that the Terms are between you and Ruby only, and not with Google, Inc. (“Google”).
We license use of the Cherish Android App to you on the basis of this Section 14.C. and subject to any rules or policies applied by any appstore provider or operator from whose site (“Appstore”) you downloaded the Cherish Android App (“Appstore Rules”). The Appstore Rules include Google’s then-current Android Market Terms of Service (which can be found at https://www.google.com/mobile/android/market-tos.html). Ruby does not sell the Cherish Android App to you; however, Ruby remains the owner of the Cherish Android App at all times.
Google is only a provider of the Android Market where you obtained the Cherish Android App. Ruby, and not Google, is solely responsible for the Cherish Android App and the services and content available thereon. Google has no obligation or liability to you with respect to the Cherish Android App or the Terms.
You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to the Cherish Android App.

18. Prohibition on Federal Acquisitions

Use of or access to the Services by or for the United States federal government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States federal government, is strictly prohibited. You agree that: (i) you will comply with this prohibition; and (ii) any and all laws applicable to US federal acquisitions do not apply to your use of or access to the Services (such laws include but are not limited to 48 C.F.R. §2.101, §12.212, §227.7202, and §§227.7202-1 through 227.7202-4).

19. General

A. Applicable Law and Venue

Reminder: The Services (as defined below) currently are not intended for use in any other jurisdictions, so proceed at your own risk if you are located outside of Canada or the USA.

These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

USA – If you are a resident of the USA, these Terms involve transactions between the parties in interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et seq., of the United States of America. Judgment upon any interim or final award shall be entered and confirmed in any court or tribunal of competent jurisdiction. The substantive law of the State of New York (excluding its conflicts of law provisions) shall apply to all disputes and these Terms. If there is a difference between the Federal Arbitration Act and New York law, the Federal Arbitration Act shall control. In any circumstances where the foregoing Terms permit the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York, New York for such purposeCalifornia Residents: Consumer Rights NoticeUnder California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Services are provided by Ruby Labs Inc.. If you have a question or complaint regarding the Services, please contact Customer Service at [email protected].com. You also may contact us by writing to us at Ruby Labs Inc., PO Box 67015, Toronto, Ontario, Canada M4P 3C8, Attention: Customer Service. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 928-1227.California Residents: WaiverIF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
CANADA – If you are a resident of Canada (except Quebec), these Terms will be governed by, interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. You irrevocably attorn and submit to the exclusive jurisdiction of the Ontario courts situated in the Municipality of Metropolitan Toronto, Ontario and waive any objection to the venue of any proceeding in such court or that such court provides an inappropriate forum.If you are a resident of Quebec, these Terms will be governed by, interpreted and enforced in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein.

B. Availability of Service

The following provision is not applicable to residents of Quebec, to whom the Quebec Consumer Protection Act applies.

We are unable to warrant that our Services will at all times be free from any interruptions or technical malfunctions of the mobile applications, programming errors, bugs, viruses, worms, Trojan horses or similar programs, other software or hardware failures, denial of service attacks, spamming or hacking, or delay in operation or transmission that may affect your use of the Services. However, we will make commercially reasonable efforts to prevent occurrence of any such incident.

C. No Waiver

No failure or delay by a party in exercising any right, power or privilege under these Terms shall operate as a waiver thereof.

D. Severance

The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect.

E. Communication in English

The parties to these Terms hereby confirm their express wish that these Terms, as well as all other documents related to the Terms, including but not limited to all confirmations, notices, waivers, consents and other communications between the parties in connection with these Terms be in the English language only, and declare themselves satisfied with this. Les parties aux présentes conditions confirment leur volonté expresse de voir la présente convention, de même que tous les documents qui s’y rattachent, incluant, mais non de façon limitative, tous les confirmations, avis, renonciations, consentements et autres communications entre les parties, rédigés en langue anglaise seulement et s’en déclarent satisfaites.

F. Export Controls

You agree to comply with applicable US Government, EU and UN export and re-export laws, regulations and requirements. For example, the United States Department of Commerce prohibits export or diversion of software and certain content to specified countries and persons. You certify that you will not download, export or re-export any software or content from the Services, for any end use: (a) into (or to a national or resident of) any country to which the USA, the EU or the UN has embargoed goods (including without limitation the Crimea Region of Ukraine or any Group E country listed in SUPPLEMENT NO. 1 TO PART 740 – COUNTRY GROUPS); (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List; (c) to any company, entity or person listed as a party of concern found here https://2016.export.gov/ecr/eg_main_023148.asp; or (d) for any end-use related to the development, production or use of nuclear, chemical or biological weapons or missiles. By downloading or using any such software or content, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and that you will not license or otherwise permit anyone in any such country or on any such list to receive software or content that is subject to export control.

20. Termination

Ruby reserves the right, without notice and in its sole discretion, to terminate your licence to use the Services and to block or prevent future your future access to, and use of, the Services.

21. Severability

If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

22. Questions & Contact Information

Questions or comments about the Services may be directed to Ruby at [email protected].

23. MODEL CANCELLATION FORM

To: Pernimus Limited, PO Box 54463, 3724 Limassol, Cyprus

Email address: [email protected]

I hereby give notice that I cancel my contract for the supply of the following service: …………………………………………………………………………………

Ordered on [*]/received on [*]

User Name: ……………………………………………………………….

User Email Address: ………………………………………………………

User Country of Residence: ………………………………………………

User Province/State/Territory/etc. of Residence: …………………………

User Signature: ………………………………………………………….…

(only if this form is submitted on paper)

Date: ……………………………………………………………………………

[*] Fill out or delete as appropriate