These "Terms" are effective as of March 3, 2016 and govern your access and use of the website and any mobile applications made available by Photo and Video Creative Labs, Inc. (collectively, the "PVCL Services").
THESE TERMS ALSO CONTAIN AN AGREEMENT TO ARBITRATE IN THE SECTION BELOW TITLED "DISPUTE RESOLUTION" WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST PVCL, INC. TO BINDING AND FINAL ARBITRATION.
If you do not agree to all of the terms and conditions of these Terms, or you do not have such authority, or you do not meet the eligibility requirements, you should cease any and all access or use of the PVCL Services.
Access to the PVCL Services
PVCL hereby grants you a non-exclusive, non-transferable, revocable, limited license, without the right to grant or authorize sublicenses, to use the PVCL Services, provided that you will use the PVCL Services only as permitted by these Terms.
You understand and agree that:
You must be 13 years or older to use the PVCL Services.
You are responsible for any activity that occurs under your username name or is associated with your account. You are responsible for keeping your username and password secure.
You are solely responsible for your conduct and any and all information or material including, without limitation, data, text, images, usernames, graphics, photos, profiles, audio and video clips, links (otherwise known as "Content") that you submit, post, and display on or through the PVCL Services.
Violation of any of these Terms will result in the immediate termination of your account.
While PVCL prohibits certain conduct and content on its PVCL Services, PVCL does not monitor, and PVCL is not responsible for, user Content or activities of the users of the PVCL Services.
Use the PVCL Services only for personal purposes (you may not use them for commercial purposes).
Use the PVCL Services for any illegal or unauthorized purpose.
Post anything that includes malicious speech, promotes or glorifies self-harm, pornography or sexually explicit material, has a negative affect on minors (violence, bullying, sex), violence, gore, copyright or trademark infringement, lying, impersonation, or anything illegal.
Modify or adapt the PVCL Services, or create or modify another website or mobile application so as to falsely imply that it is associated with PVCL or the PVCL Services.
Attempt to gain unauthorized access to the PVCL Services or its systems or networks, or access PVCL's private API by any means other than in compliance with rules we set on API access.
Crawl, scrape, or otherwise cache any content from the PVCL Services, including but not limited to user profiles and photos.
Spam or submit any unwanted email or comments to any users of the PVCL Services.
Use web URLs in your username without prior written consent from PVCL.
Transmit any worms, viruses, or other destructive code.
Resell or charge others for use of or access to the PVCL Services.
Duplicate, reproduce, transfer, give access to, copy or distribute any part of the PVCL Services in any medium without PVCL's prior written authorization.
Attempt to reverse compile, reverse engineer, alter, make derivative works of, disassemble, or modify any part of the PVCL Services.
Access any part of the PVCL Services in order to build a similar or competitive service.
Interfere with or disrupt the integrity or performance of the PVCL Services or data.
Some Basic Rights of PVCL
We reserve the right, for any reason and without notice at any time, to:
Modify or terminate the PVCL Services.
Refuse or deny access to the PVCL Services to anyone.
Force forfeiture of any username including, but not limited to, a username that becomes inactive, violates the trademark or legal claim of a third party, or misleads other users.
Remove any Content and/or accounts in our sole discretion. Examples of accounts and Content we endeavor to remove include accounts with Content that is unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable or violates any party's intellectual property or these Terms.
Content on PVCL
Your content is yours. PVCL does not claim any ownership rights in the Content that you, other users, or third parties post on or through the PVCL Services (collectively, "User Content").
The Rights you Grant to PVCL. By displaying or publishing ("posting") any Content on or through the PVCL Services, you grant to PVCL a non-exclusive, fully paid and royalty-free, worldwide, sublicenseable, transferable, limited license to use, modify, delete, add to, publicly perform, publicly display, reproduce and translate that Content, including without limitation distributing, through multiple tiers, part or all of the Site in any media formats through any media channels for any purposes.
Saving and Sharing. Certain of the PVCL Services allow you to (1) keep Content private from the community by only saving to your Gallery, (2) share your Content with the PVCL Community by uploading it to PVCL, or (3) share your Content with third-party services like Instagram, Facebook, and others.
Content you keep private. When you post to PVCL but do not share publicly, your Content is not made available to the PVCL community or to third parties. However, if the image has been uploaded to PVCL, our staff is able to see it. We endeavor to keep your private Content private, but please keep in mind that no technology is 100% secure, and it is possible that unauthorized third parties could defeat our security measures and access your private Content. Please note that if you make Content public and later switch it to private or delete it, we may not be able to remove it from the PVCL Services.
Content you share with the PVCL community. When you post to the PVCL community, your Content is made available to the public. This typically means that anyone who is following your account can see it, as well as anyone who searches for the hashtag(s) with which you label the Content. It also means that your Content might be featured in our apps or website, or appear in our emails or other communications.
Content you share with third parties. When you share your Content through a third-party service that is integrated with the PVCL Services (such as Instagram, Facebook, or Twitter), you authorize us to deliver the Content (or a version that we've modified, as needed) to that third-party service. This means that the third-party service's handling of your Content will be subject to its own agreement with you, for which we are not responsible.
Hardware, Software, and Modification. Except for User Content, PVCL owns the actual bits and bytes of data on its servers. You have no property or other interest in those bits and bytes, or to any PVCL servers, infrastructure, or the Services we offer. Also, PVCL performs technical functions necessary to offer the PVCL Services, including but not limited to transcoding and/or reformatting Content to allow its use throughout the PVCL Services.
PVCL Content. The PVCL Services contain Content owned by PVCL and its licensors (collectively the "PVCL Content"). PVCL Content is protected by copyright, trademark, patent, trade secret and other laws, and PVCL and its licensors own and retain all rights in the PVCL Content and PVCL owns and retains all interest and rights in and to the PVCL Services. PVCL hereby grants you a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to reproduce and display the PVCL Content (excluding any software code) for your non-commercial personal use solely in connection with your use of the PVCL Services. This means that you can make your own Content that uses certain PVCL Content (e.g., clipart) and use it for non-commercial purposes, but you may not use the clipart specifically (or frames or other PVCL Content) in other programs or applications. This applies even if you "buy" the clipart or other Content –when you purchase PVCL Content, you receive a personal non-commercial license to use the Content; you do not own PVCL Content.
Certain PVCL Content may be subject to additional fees or charges. You acknowledge and agree that your purchase of any such PVCL Content is restricted to the purchase and sale of a license to such PVCL Content, and shall not convey ownership of any such PVCL Content or intellectual property rights to you.
Do not steal anyone's Content. You must observe copyright and other intellectual property laws of the United States and your country. You may not copy someone else's work and display it elsewhere, or claim it as your own, or make a small change and claim it as your own, etc. Except as provided within this Agreement and under intellectual property laws, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any PVCL Content or User Content or any other third party Content appearing on or through the PVCL Services except as expressly permitted by the holder of the rights in that Content. You represent and warrant that:
You own the Content posted by you on or through the PVCL Services or otherwise have the right to grant the license set forth in this section.
The posting and use of your Content on or through the PVCL Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, and the posting of your Content on the PVCL Services does not result in a breach of contract between you and a third party.
You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the PVCL Services being in violation of this section.
Advertising. Some of the PVCL Services are supported by advertising revenue and may display advertisements and promotions. You agree that PVCL may place advertising and promotions on, about, or in conjunction with your Content. The manner, mode, and extent of such advertising and promotions are subject to change without notice to you. You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.
In-app purchases. The PVCL Services may include virtual items or services that can be licensed for a fee, typically via an in-app purchase ("Purchased Content"). You may only license Purchased Content if you are over 18 years old, and only on a limited, personal, non-transferable, non-sublicenseable and revocable basis for non-commercial use only. If you deactivate your account, you will no longer have access to previously Purchased Content even if you later re-activate your account or create a new account. PVCL reserves the right to manage, regulate, control, modify, or eliminate Purchase Content at any time. Upon the Purchased Content being made available to you, PVCL's obligations to provide Purchase Content are deemed fulfilled, and PVCL makes no representation that Purchased Content will be available to the purchaser for any length of time nor that the PVCL Services will continue to support Purchased Content. SUBJECT TO MANDATORY LEGISLATION, YOU ACKNOWLEDGE THAT PVCL IS NOT REQUIRED TO PROVIDE A REFUND FOR PURCHASED CONTENT FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED PURCHASED CONTENT, WHETHER YOUR LOSS OF LICENSE WAS VOLUNTARY OR INVOLUNTARY.
Digital Millennium Copyright Act
PVCL specifically prohibits users from uploading, embedding, posting, emailing, transmitting or otherwise making available on or through the PVCL Services any material that infringes any proprietary rights of any person or entity, including copyrights. PVCL will remove any and all PVCL Content or User Content if properly notified that such PVCL Content or User Content infringes another's intellectual property rights. We respond to notices of copyright infringement in compliance with the Digital Millennium Copyright Act and have a policy of terminating repeat infringers in appropriate circumstances. To learn more about PVCL's policy regarding intellectual property infringement or to report a claim, please see our DMCA policy, available at DMCA.
There may be occasions when the PVCL Services are interrupted for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and equipment. PVCL encourages you to maintain your own backup of your User Content. In other words, PVCL is not a backup service.
Third Party Links
The PVCL Services may contain links to independent third-party websites and services (collectively, "Third Party Sites"). Third Party Sites are not under PVCL's control, and PVCL does not endorse, is not responsible for, and shall have no liability to you with respect to the business practices, privacy practices, or content including, without limitation, any and all materials, information, merchandise, products or services displayed, featured, mentioned, advertised, distributed or sold on or through such Third Party Sites. If you access any Third Party Site, you acknowledge and agree that you do so at your own risk and that it is your responsibility to read and understand the privacy, membership, payment and other policies of the Third Party Sites and to determine whether or not you will have any interaction with any of those sites.
Disclaimer of Warranties
THE PVCL SERVICES AND PVCL CONTENT ARE PROVIDED ON AND "AS IS," "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, PVCL MAKES NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE PVCL SERVICES; (B) THE PVCL CONTENT; (C) USER CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO PVCL OR VIA THE PVCL SERVICES. PVCL HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SATISFACTORY PURPOSE.
PVCL DOES NOT REPRESENT OR WARRANT THAT THE PVCL SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, OR SECURE; THAT USER CONTENT MARKED AS PRIVATE WILL NOT BECOME PUBLIC; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PVCL SERVICES ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. PVCL DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE CONTENT (INCLUDING ANY USER CONTENT OR PVCL CONTENT) AVAILABLE ON OR THROUGH THE PVCL SERVICES IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE PVCL SERVICES IS AT YOUR SOLE RISK. PVCL DOES NOT WARRANT THAT YOUR USE OF THE PVCL SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND PVCL SPECIFICALLY DISCLAIMS SUCH WARRANTIES.
YOU SPECIFICALLY ACKNOWLEDGE THAT PVCL DOES NOT ENDORSE ANY USER CONTENT OR OTHER THIRD PARTY CONTENT AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER ARISING OR RESULTING FROM ANY CONTENT (INCLUDING, WITHOUT LIMITATION, USER CONTENT), INTERACTIONS BETWEEN USERS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PVCL, ITS AFFILIATES, LICENSORS, SPONSORS, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS, COST OF COVER, LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES WHATSOEVER ARISING OR RESULTING FROM (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT DISPLAYED ON OR THROUGH THE PVCL SERVICES, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND/OR USE OF (OR YOUR INABILITY TO ACCESS AND USE) THE PVCL SERVICES, INCLUDING, WITHOUT LIMITATION, MAKING PRIVATE CONTENT PUBLIC OR ANY DAMAGE CAUSED TO YOUR COMPUTER OR SOFTWARE OR INFORMATION STORED THEREON, (III) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY OBTAINED ON OR THROUGH THE PVCL SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF PVCL SERVICES AND/OR ANY AND ALL PERSONAL, PRIVATE, AND/ OR OTHER INFORMATION STORED THEREIN, (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PVCL SERVICES OR THROUGH THE PVCL SERVICES, (VI) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE PVCL SERVICES BY ANY THIRD PARTY, (VII) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR USER CONTENT, (VIII) EMAILS OR OTHER TRANSMISSIONS OR COMMUNICATIONS MADE TO YOU THROUGH THE PVCL SERVICES AND/OR (IX) ANY ERRORS OR OMISSIONS IN ANY CONTENT (INCLUDING PVCL CONTENT OR USER CONTENT) OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT (INCLUDING USER CONTENT) OR SERVICES POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE PVCL SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PVCL IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PVCL'S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS OR THE PVCL SERVICES, EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT SERVE TO ENLARGE THIS LIMIT. THIS LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN. YOU ACKNOWLEDGE THAT THE DISCLAIMERS AND LIMITATIONS HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
Application of Limitations and Disclaimers
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in immediately preceding paragraphs above may not apply to you if you are a consumer. The limitations or exclusions of warranties and liability contained in the Terms do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in the Terms shall apply to you as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.
You acknowledge that PVCL does not control the interactions between any user and you, nor does PVCL control or monitor any User Content. You acknowledge and agree that PVCL does not assume any responsibility or liability for User Content generated by you or any user of the PVCL Services posted anywhere, including without limitation, personally identifiable information posted publicly, or the conduct of you or any user, and you bear the entire risk of your continued use of the PVCL Services, including your interactions with other users. You agree that PVCL will not be responsible for any claim, loss, liability, personal injury (including death), damage, cost or expense (including attorneys' fees), incurred as the result of or relating to any User Content, or any interactions with other users or third parties, including disputes between you and other users regarding User Content, user dissemination of your User Content or any other User Content, and any and all other disputes or conflicts arising from your use of the PVCL Services. If there is a claim or dispute between you and any other user or third party, PVCL is under no obligation to become involved. You understand and agree that PVCL is not responsible or liable in any way for any communication, actions, or conduct between you and other users. You, on behalf of you and your heirs, successors and assigns, hereby release and forever discharge PVCL, and its affiliates, employees, contractors, agents, successors, and assigns, from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injury, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to the Terms, your use of the PVCL Services, any User Content, or any of your interactions with other users or third parties. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
You agree to defend (at PVCL's request), indemnify and hold PVCL and its affiliates, directors, officers, employees, contractors, and agents harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities in connection with the PVCL Services or those conducted on your behalf): (i) your User Content or your access to or use of the PVCL Services; (ii) your breach or alleged breach of these Terms; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by PVCL in the defense of any claim. PVCL reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of PVCL.
Although the PVCL Services may be accessible worldwide, PVCL makes no representation that the materials and/or content made available in connection with the PVCL Services are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this PVCL Services from other locations do so at their own risk and are responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with this PVCL Services is void where prohibited. BY ACCESSING OR USING THE PVCL SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE PVCL SERVICES.
Users may not download, use, export or re-export any materials or Content (including User Content and PVCL Content) posted or submitted on or through the PVCL Services or any software utilized or available in connection with the PVCL Services in violation of any applicable laws or regulations, including, without limitation, United States export laws, regulations and controls.
Governing Law and Venue
Changes to these Terms
PVCL reserves the right to alter these Terms at any time in its sole discretion. If the alterations constitute a material change to these Terms, PVCL will notify you by posting the updated Terms to the PVCL Website. Your continued use of the PVCL Services after such notification of changes to the Terms will constitute your agreement and acceptance to such changes. If you object to any change, your sole recourse shall be to immediately terminate your account and cease using the PVCL Services. You agree to review the PVCL Website periodically for any such changes to the Terms.