- 1. Your Acceptance
- 2. User Information and Accounts
- 3. Access and Ownership
- 4. User Privacy
- 5. Use of the Platform
- 6. User Content
- 7. User Content Guidelines
- 8. Pictalk Groups and Pictalk Group Owners
- 9. Monitoring User Content
- 10. User Content Storage Limits
- 11. Platform Availability
- 12. Modification of Platform
- 13. Payments
- 14. Taxes
- 15. Subscriptions
- 16. Intellectual Property
- 17. Idea Submission
- 18. Disclaimer
- 19. Limitation of Liability
- 20. Indemnity
- 21. Copyrights
- 22. Trademark Infringement
- 23. Choice of Law
- 24. Disputes
- 25. Class Action Waiver
- 26. EU Users
- 27. Severability
- 28. Non-Waiver
- 29. Assignment and Survival
- 30. Termination
- 31. Entire Agreement
- 32. Amendments
- 33. Electronic Communications
- 34. Export Controls
- 35. Platform Issues
- 36. California Users
Last Modified: May 17, 2019
1. Your Acceptance
2. User Information and Accounts
3. Access and Ownership
After registering and properly paying for our Platform, where required, we shall grant you Users access to the Platform as permitted by us and in accordance with this Agreement. All rights not explicitly granted are reserved for Pictalk. Where you download software to access our Platform, we grant you a limited, fully revocable, non-exclusive license to download one copy of our Platform onto your electronic device(s). If you breach this Agreement, your access or license to use our Platform may be terminated at our discretion. Additionally, we may revoke your access or license to use our Platform if we believe that your actions may harm us, our business interests, or any third party rights. Failure by us to revoke your access does not act as a waiver of your conduct. User agrees that the structure, organization, and code of the Platform along with all software components and related services are proprietary to Pictalk and/or Pictalk's licensors. Pictalk and/or its licensors retain exclusive ownership of the Platform, any documentation, information and any and all other intellectual property rights relating to the Platform.
4. User Privacy
5. Use of the Platform
When using our Platform, User is responsible for its use and the use of the Platform by any of its Permitted Users. You agree to the following:
You way not copy, distribute, access, or disclose any part of the Platform in any medium, including without limitation by any automated or non-automated "scraping";
You may not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Platform;
You may not use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Platform or to extract data;
You may not use automated bots or other software to send more messages through our Platform than humanly possible;
You may not use the Platform on a computer that is used to operate nuclear facilities, life support, or other mission critical applications where life or property may be at stake;
You may not decompile, reverse engineer, disassemble, modify, rent, sell, lease, loan, distribute, or create derivative works or improvements to the Platform or any portion of it;
You may not access our Platform in an attempt to build a similar or other competitive product;
You may not use the Platform in an unlawful manner;
You may not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
You may not collect or harvest any personally identifiable information, including account names, except where permitted, from the Platform;
You may not impersonate any person or entity or misrepresent your affiliation with a person or entity;
You may not violate or infringe other people's intellectual property, privacy, or other contractual rights while using our Platform;
You may not violate any requirements, procedures, policies or regulations of networks connected to Pictalk;
You may not sell, lease, loan, distribute, transfer, or sublicense the Platform or access to it or derive income from the use or provision of the Platform unless enabled through the functionality of our Platform;
You may not interfere with or disrupt the Platform;
You may not violate any US state or federal laws or regulations and you solely are responsible for such violations;
You agree not to use the Platform in any way that is: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.
You agree that you will not hold Pictalk responsible for your use of our Platform; and
You agree not to cause, or aid in, the disruption, destruction, manipulation, removal, disabling, or impairment of any portion of our Platform, including the de-indexing or de-caching of any portion of our Platform from a third party's website, such as by requesting its removal from a search engine.
If you are discovered to be undertaking any of the aforementioned actions your privileges to use our Platform may at our discretion be terminated or suspended. Additionally, if we believe that your actions may harm us or a third party we may suspend or terminate your use of the Platform. Generally, we will provide an explanation for any suspension or termination of your use of any of our Platform, but Pictalk reserves the right to suspend or terminate any account at any time without notice or explanation.
6. User Content
User's ability to submit or transmit any information through the Platform, including but not limited to data, written content, images, videos, or any other information will be referred to as "User Content" throughout this Agreement. Please be aware that we are not required to host, display, migrate, or distribute any of your User Content and we may refuse to accept or transmit any User Content. You agree that you are solely responsible for any User Content submitted and you release us from any liability associated with any User Content submitted. We take no responsibility for any User Content submitted to the Platform and make no endorsements related to any User Content whether express or implied. Any User Content found to be in violation of this Agreement or that we determine to be harmful to the Platform may be modified, edited, or removed at our discretion.
When submitting any User Content to our Platform you represent and warrant that you own all rights to the User Content, you have paid any fees to use or license the User Content, or you otherwise have the permission and right to use any User Content. Furthermore, you represent and warrant that all User Content is legal and the User Content does not interfere with any third party rights or obligations.
When you submit any User Content to us, you grant Pictalk, its partners, affiliates, Users, representatives and assigns a non-exclusive, unlimited, fully-paid, royalty-free, irrevocable, world-wide, universal, transferable, assignable license to display, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works, or use and reuse all or part of your User Content for any purpose deemed by us. Additionally, you grant to Pictalk a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Platform any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the operation of our Platform. We reserve the right to remove, delete, modify, screen, edit, or refuse any User Content for any reason or no reason, and with or without notice to you. Where any User Content is submitted we shall store such User Content in a secure and confidential manner that is compliant with our internal storage policies.
7. User Content Guidelines
We reserve the right to remove, delete, modify, screen, edit, or refuse any User Content for any reason or no reason, and with or without notice to you. Please be aware that all User Content may be viewed by third parties, thus we cannot guarantee the confidentiality of any User Content.
When submitting any User Content you agree to the following:
You agree that User Content submitted is truthful, accurate, and not misleading;
You agree not to submit any User Content that contains any confidential information;
You agree not to submit any User Content that contains nudity, sexual, or explicit content;
You agree not to submit any User Content that depicts gratuitous violence, animal or child abuse, or encourages violence against others;
You agree not to submit any User Content contains hate speech or promotes or condones violence against individuals or groups based on race or ethnic origin, religion, disability, gender, age, economic, nationality, veteran status, or sexual orientation/gender identity;
You agree not to submit any User Content that is considered spam; and
You agree not to submit any User Content that may be considered: illegal, misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.
If you have violated any of our User Content Guidelines or if you we believe that any User Content may harm the Platform, your access to the Platform may be suspended or terminated. Where you believe any users have abused the Content Guidelines, please contact us or use Offensive Content Reporting Tool located on the Platform.
8. Pictalk Groups and Pictalk Group Owners
Through the Platform Users may be able to create and found Pictalk groups. Each group shall be controlled by the group "Owner" and any moderators selected by the Owner. Please be aware that a group Owner gains no ownership rights over any portion of the Platform and all Owners and group members must abide by the Pictalk Group Terms and Conditions.
9. Monitoring User Content
Pictalk shall have the right, but not the obligation, to monitor all User Content on the Platform at all times, to determine compliance with this Agreement and any guidelines established by us. Without limiting the foregoing, Pictalk shall have the right, but not the obligation, to remove any User Content at its sole discretion. For example, we may remove User Content if we believe that any User Content may harm us or our business interests or violate any United States laws or regulations. We have no obligation to retain or provide you with copies of any User Content after your termination of this Agreement.
10. User Content Storage Limits
The Platform may offer reasonable storage of all User Content. However, all User Content storage is subject to our internal data storage limits. We have no obligation to store any excess User Content. If you violate any storage limits, Pictalk will notify you and may work with you to bring your usage into conformity with our data storage policies.
11. Platform Availability
Although we try to provide continuous availability to you, we do not guarantee that the Platform will always be available, work, or be accessible at any particular time. Specifically, we do not guarantee any uptime or specific availability of the Platform. You agree and acknowledge that the Platform uses remote access and may not always be either 100% reliable or available. Only Users who are eligible to use our Platform may do so and we may refuse service or terminate your access at any time. We cannot guarantee that anything found on our Platform will work to the functionality desired by you or give you any desired results.
12. Modification of Platform
We reserve the right to alter, modify, update, or remove the Platform or any portions thereof, at any time at our discretion. We may conduct such modifications to our Platform for security reasons, intellectual property, legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications or provide you access to previous versions of our Platform. For example, we may provide updates to fix security flaws, or to respond to legal demands. Please note that this is a non-binding illustration of how we might exercise our rights under this section, and nothing in this section obligates us to take measures to update the Platform for security, legal or other purposes.
You agree to pay for all costs, fees, and taxes listed when purchasing any access to the Platform or for any additional purchases. User authorizes Pictalk or its third party payment processors to charge their method of payment on file at the time of purchase. Where applicable, you must agree to our third party payment processors terms and conditions for processing payments. All information that you provide in connection with a purchase or transaction must be accurate, complete, and current. Where you have failed to pay or where payments are overdue, Pictalk may suspend or terminate your access to the paid portions of the Platform, without liability to us.
Where Pictalk does not charge you taxes for any purchases or payments, you agree to pay any and all applicable taxes. Additionally, where requested by us, you agree to provide us tax documentation to support any claims of on-time tax payment.
Portions of the Platform may require a subscription. Where you decide to pay for and subscribe to any additional offerings, you must agree to the Pictalk Subscriber Terms which are incorporated into this Agreement. Where any terms of this Agreement and the Subscriber Terms directly conflict, this Agreement shall control.
16. Intellectual Property
The name "Pictalk", the Pictalk Platform along with the design of the Pictalk Platform and any text, writings, images, templates, scripts, graphics, interactive features and any trademarks or logos contained therein ("Marks"), are owned by or licensed to Pictalk, subject to copyright and other intellectual property rights under US and foreign laws and international conventions. Pictalk reserves all rights not expressly granted in and to the Platform. You agree to not engage in the use, copying, or distribution of anything contained within the Platform unless we have given express written permission.
17. Idea Submission
We value your feedback and where applicable you may submit ideas, content, artwork, suggestions, or other works ("Submissions") to Pictalk. Where you submit any Submission, you agree that: (1) your Submissions and their contents will automatically become the property of Pictalk, without any compensation to you; (2) where such a grant in sub-section (1) is not possible, your Submission shall be subject to the User Content license grant as stated within section 6 of this Agreement ; (3) Pictalk may use or redistribute the Submissions and their contents for any purpose and in any way; (4) there is no obligation for Pictalk to review the Submission; and (5) there is no obligation to keep any Submissions confidential. The sole purpose of this policy is to avoid potential misunderstandings or disputes when Pictalk's products might seem similar to ideas you submitted to Pictalk.
THE PLATFORM IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER PICTALK, NOR ANY OF OUR EMPLOYEES, MANAGERS, OFFICERS, ASSIGNS, AFFILIATES, OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: (1) THE PLATFORM OR ANY PICTALK SERVICES; (2) ANY INFORMATION OR CONTENT PROVIDED VIA THE PLATFORM; OR (3) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO PICTALK, OR VIA THE PLATFORM. IN ADDITION, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. PICTALK DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PLATFORM OR THE SERVER THAT MAKES THE PLATFORM AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS. PICTALK DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE PLATFORM IS ACCURATE, COMPLETE, OR USEFUL. PICTALK DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND PICTALK SPECIFICALLY DISCLAIMS ANY SUCH WARRANTIES.
19. Limitation of Liability
IN NO EVENT SHALL Pictalk, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE PICTALK IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SOME STATES, Including New Jersey, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU OR ANY NEW JERSEY RESIDENTS. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (1) death or personal injury caused by Pictalk's negligence or that of any of its officers, employees or agents; (2) fraudulent misrepresentation; or (3) any liability which it is not lawful to exclude either now or IN THE FUTURE. WHERE A TOTAL DISCLAIMER OF LIABILITY IS DISALLOWED YOU AGREE THAT OUR TOTAL LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNTS YOU HAVE PAID IN THE PAST SIX (6) MONTHS TO USE OUR PLATFORM OR ONE HUNDRED USD, WHICHEVER IS GREATER.
You agree to defend, indemnify and hold harmless Pictalk, its officers, directors, employees, affiliates, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
your use of and access to the Pictalk Platform;
the violation of this Agreement by any of your Permitted Users;
your violation of any term of this Agreement; or
your violation of any third party right, including without limitation any copyright, property, or contractual right.
This defense and indemnification obligation will survive this Agreement and your use of the Pictalk Platform. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys' fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.
We take copyright infringement very seriously. If you believe that any content owned by you has been infringed upon please send us a message which contains:
The name of the party whose copyright has been infringed, if different from your name.
The name and description of the work that is being infringed.
The location on our Platform of the infringing copy.
A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You must sign this notification and send it to our Copyright Agent: Copyright Agent of Pictalk, firstname.lastname@example.org.
In the event that you receive a notification from Pictalk stating content posted by you has been subject to a copyright takedown notice, you may respond by filing a counter-notice pursuant to the DMCA. Your counter-notice must contain the following:
Your name, address, email and physical or electronic signature.
The notification reference number (if applicable).
Identification of the material and its location before it was removed.
A statement under penalty of perjury that the material was removed by mistake or misidentification.
Your consent to the jurisdiction of a federal court in the district where you live (if you are in the U.S.), or your consent to the jurisdiction of a federal court in the district where your Vendor is located (if you are not in the US).
Your consent to accept service of process from the party who submitted the takedown notice.
Please be aware that we may not take any action regarding your counter-notice unless your notification strictly complies with the foregoing requirements. Please send this counter-notice in accordance with the takedown notice instructions above.
22. Trademark Infringement
We respect the rights of trademark owners and if you believe that your trademark or trade name is being infringed by a user of our Platform, please send us an email with your contact information, the location of the infringing content, and the names of the users infringing on your marks. Please be sure to provide accurate and detailed information. All trademark complaints should be sent to email@example.com. We may take any action that we deem appropriate in rectifying your complaint.
23. Choice of Law
This Agreement shall be governed by the laws in force in the state of Arizona. The offer and acceptance of this contract is deemed to have occurred in the state of Arizona.
Any dispute relating in any way to your visit to your use of our Platform or this Agreement shall be submitted to confidential arbitration in Phoenix, AZ. Arbitration under this Agreement shall be conducted pursuant to the applicable Commercial Rules ("Rules") then prevailing at the American Arbitration Association. Arbitration shall be conducted in English by one (1) arbitrator as selected pursuant to the Rules; the arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. Each party shall be responsible for their own arbitration fees and costs. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. Where permitted by the Rules, both parties may make any and all appearances telephonically or electronically. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Platform or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned (New Jersey Users are exempted from the foregoing one (1) year limitation). Notwithstanding the foregoing, either party may seek equitable relief to protect its interests (including but not limited to injunctive relief), or make a claim for nonpayment, in a court of appropriate jurisdiction, and issues of intellectual property ownership or infringement may be decided only by a court of appropriate jurisdiction and not by arbitration. In the event that the law does not permit the above mentioned dispute to be resolved through arbitration or if this arbitration agreement is unenforceable, you agree that any actions and disputes shall be brought solely in a court of competent jurisdiction located within Phoenix, AZ.
25. Class Action Waiver
You and Pictalk agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis. You agree that you will not seek to have any dispute heard as a class action, representative action, collective action, or private attorney general action. This class action waiver does not apply to New Jersey residents.
26. EU Users
Due to conditions beyond our control, we cannot currently accept any European Union (EU) users. If you are a resident or citizen of the EU you may not access our Platform and please do not submit any personal information to us. By submitting any information to us or by agreeing to this Agreement, you represent and warrant that you are not a resident or citizen of the EU.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement or any other agreement you may have with Pictalk are deemed to conflict with each other's operation, Pictalk shall have the sole right to elect which provision remains in force.
We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
29. Assignment and Survival
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion. All portions of this Agreement that would reasonably be believed to survive termination shall survive and remain in full force upon termination, including but not limited to the Limitation of Liabilities, Representation and Warranties, Access, Payment, Indemnification, and Arbitration sections.
We may terminate your access to the Platform if we determine the following: (1) you have violated any applicable laws while using our Platform; (2) you have violated any portion of this Agreement or any of our Platform policies; or (3) where we believe your current or future actions may legally harm Pictalk, our business interests or a third party, at our discretion. In the event of termination, we will strive to provide you with a timely explanation; however, we are not required to do so.
31. Entire Agreement
We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may email you. You may refuse to agree to the amendments, but if you do, you must immediately cease using our Platform.
33. Electronic Communications
The communications between you and Pictalk use electronic means, whether you visit the Platform or send Pictalk e-mails, or whether Pictalk posts notices on the Platform or communications with you via mobile notifications or e-mail. For contractual purposes, you (1) consent to receive communications from Pictalk in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Pictalk provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
34. Export Controls
The Platform and the underlying information and technology may not be downloaded, accessed, or otherwise exported or re-exported (1) into (or to a national or resident of) any country to which the U.S. has currently embargoed goods; or (2) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Platform, you agree to the foregoing and 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 otherwise comply with all applicable export control laws.
35. Platform Issues
Where you have any questions, issues, or if you are having trouble accessing or using the Platform, please contact us at firstname.lastname@example.org
36. California Users
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Pictalk must be sent to our agent for notice to: email@example.com.
Lastly, California Users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.