Picaboo Software and Website
IF YOU ARE ACCESSING THIS AGREEMENT ON OUR WEBSITE AND NOT AS PART OF THE SOFTWARE DOWNLOAD PROCESS, THEN THE FOLLOWING TERMS AND CONDITIONS GOVERN YOUR USE OF THIS WEBSITE (“SITE”) AND ANY SERVICES AND/OR SOFTWARE PROVIDED BY PICABOO CORPORATION. YOUR CONTINUED USE OF THIS SITE OR SERVICES SHALL CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT.
1. LICENSE GRANT. Subject to the terms of this Agreement, Picaboo Corporation (“Company”) hereby grants Licensee a limited, personal, non-sublicensable, non-transferable, nonexclusive and revocable license to use the software that Licensee is about to download (“Software”), the service that the software connects to (“Service”) and the Site (collectively, “Technology”) only for its personal, non-commercial, internal use and only in accordance with any documentation that accompanies it. Licensee may only install the Software on a computer running the Microsoft Windows operating system. Licensee certifies that it is legally permitted to use the Technology. This Agreement is void where prohibited by law and the right to use the Technology in such jurisdictions is revoked. Moreover, to comply with the Children’s Online Privacy Protection Act, Licensee must be at least 13 years of age.
2. LICENSE RESTRICTIONS. Except as expressly and unambiguously permitted by this Agreement, Licensee shall not, nor permit anyone else to, directly or indirectly: (i) copy (except for a reasonable number of backup copies), modify, reproduce, adapt, translate, create derivative works of, or distribute the Software; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code, structure, ideas, algorithms, file formats, programming, interoperability interfaces, or sequence and organization of the Software, (to the extent such restrictions are allowable under applicable law); (iii) rent, lease, loan, sell or use the Software for timesharing or service bureau purposes, or otherwise use the Software or any commercial purpose; (iv) use any device, spider, robot, automatic software or device or manual process to hinder or impede or attempt to obstruct or hinder the proper working of the Technology or to monitor use of the Technology, (v) use any network monitoring or discovery software or device to determine Technology architecture or extract information or statistics about usage or user identities, (vi) take any action that, in Company’s sole discretion, imposes an unreasonable or disproportionately large load on the Technology, or (vii) use the Technology and in any way to disseminate content that is, in Company’s sole discretion, abusive, defamatory, obscene or in violation of copyright or trademark laws. Licensee shall maintain and not remove or obscure any proprietary notices on the Software. As between the parties, title, ownership rights, and intellectual property rights in and to the Technology, and any copies or portions thereof, shall remain in Company and its suppliers or licensors. Licensee understands that Company may modify, suspend or discontinue offering any part of the Technology at any time including the availability of any feature, database or content. Company may also impose limits on certain features and services or restrict Licensee’s access to parts or all of the Technology without notice or liability. The Software is protected by the copyright laws of the United States and international copyright treaties. This Agreement does not give Licensee any rights not expressly granted herein.
3. PRODUCT VERSIONS. The following terms apply to Licensee’s use of all versions of the Technology notwithstanding anything to the contrary. Licensee agrees and acknowledges that (i) the Product is provided “as is” without any warranties of any type and (ii) the Product, and compilations and media created with the Product, may not be compatible with future releases of the Technology and that additional Software may be required to continue to use the versions of the Service.
5. INTELLECTUAL PROPERTY; CONTENT. The content, software, graphics, logos, names and services (“Assets”) offered as part of the Technology as well as their selection and arrangement are protected by copyright, trademark, patent and/or other intellectual property laws and any unauthorized use of these Assets, in whole or in part, violates the law and the terms of the Agreement. Picaboo is a trademark or registered trademark of Picaboo Corporation. Licensee may not remove or alter any trademark, trade names, product names, logos, copyrights or other proprietary notices in the Software. As a condition to Licensee’s use of the Technology, Licensee represents, warrants and covenants that Licensee will not use the Technology: (i) to infringe the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) to violate any applicable law, statute, ordinance or regulation; (iii) to disseminate or transmit information or materials in any form or format (“Content”) that Licensee should know is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable under applicable laws or (iv) to disseminate any software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. Licensee, not Company, remains solely responsible for all Content that Licensee uploads, posts, e-mails, transmits, or otherwise disseminates using, or in connection with, the Software and Service. Licensee may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other Licensee. Licensee acknowledges that all Content that Licensee accesses using the Software is at Licensee’s own risk and Licensee will be solely responsible for any damage to any party resulting therefrom. Moreover, Licensee acknowledges that Company is not responsible for screening, policing, editing or monitoring any Content posted, viewed, transmitted, disseminated, reproduced or distributed by any person using the Software or Service.
6. COPYRIGHT AND DISPUTE POLICY. Licensee represents and warrants that Licensee has all rights necessary to create, share and print media that Licensee uses in conjunction with the Technology. Please contact customer support at email@example.com if Licensee believes that material or content residing on or accessible through the Service infringes a copyright.
7. SERVICE ACCESS, SUPPORT, UPGRADES AND AUTOMATIC COMMUNICATIONS. This Agreement does not entitle Licensee to any support, upgrades, patches, enhancements, or fixes for the Software (collectively, “Support”). Any such Support for the Software that may be made available by Company, in its sole discretion, shall become part of the Software and subject to this Agreement. It is recommended that prior to installation of the Software, the Licensee review any installation instructions, release notes, system requirements and documentation. Licensee acknowledges that the Software and Service performs automatic communications with Company servers over the internet periodically and by default in order to provide the Service, transmit bug fixes, patches, upgrades and enhancements. Licensee hereby consents to such communications. Licensee’s User ID may be transmitted to Company servers in order to allow Company to perform the Services. Licensee is responsible for all telecommunications or other connectivity charges incurred through the use of the Technology.
8. THIRD PARTY SOFTWARE. Features included in the Technology itself may contain third party software which requires notices and/or additional terms and conditions. Company is not responsible for any third party software.
9. INDEMNITY. Licensee agrees that Company shall have no liability whatsoever for any use Licensee makes of the Technology. Licensee shall indemnify and hold harmless Company from any claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from Licensee’s use of the Technology as well as from Licensee’s failure to comply with any term of this Agreement.
10. WARRANTY DISCLAIMER. COMPANY AND ITS LICENSORS AND SUPPLIERS PROVIDE THE TECHNOLOGY “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
11. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL COMPANY OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA, OR DAMAGES RESULTING FROM YOUR USE OF THE SOFTWARE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF COMPANY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
12. TERM AND TERMINATION. This Agreement shall continue until terminated as set forth in this section. Licensee may terminate this Agreement at any time. Company may terminate this Agreement immediately if Licensee violates any provision of this Agreement or without cause. In the event that Company terminates this Agreement without cause, Company will refund Licensee any prepaid fees pro rata based on the number of unused months if such fees were paid by Licensee. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Software. Sections 2 and 6 through 13, shall survive termination of this Agreement.
13. ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18USC 2701-2711). COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED THROUGH USE OF THE SOFTWARE. Company will not be liable for the privacy of e-mail addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other content stored on Company’s equipment, transmitted over networks accessed by the Software, or otherwise connected with Licensee’s use of the Software.
14. GOVERNMENT USE. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227- 7014(a)(5) or otherwise, all Software and accompanying documentation provided in connection with this Agreement are “commercial items”, “commercial computer software” and/or “commercial computer software documentation”. Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the US. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
15. EXPORT CONTROLS. Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By downloading or using the Software, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
16. MISCELLANEOUS. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. This Agreement may be amended at any time by Company, at its discretion, and Company will post a notice on its site or send Licensee a notice via email. Licensee shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Technology by Licensee following such notification constitutes Licensee’s acceptance of the terms of the Agreement as modified. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Company to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Company’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving Licensee) without Company’s consent and any action or conduct in violation of the foregoing shall be void and without effect. Company expressly reserves the right to freely assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under California law without regard to conflicts of law principles.
1. Your Acceptance
Picaboo Corporation (“Picaboo”, “Picaboo Website”, or “Website”) provides the Picaboo service to you subject to the following Terms of Service (“TOS”), which may be updated by us from time to time without notice to you. BY USING AND/OR VISITING THIS WEBSITE (collectively, including all Content available through the Picaboo.com domain name), YOU SIGNIFY YOUR ASSENT TO BOTH THESE TERMS AND CONDITIONS (the “Terms of Service”) AND THE TERMS AND CONDITIONS OF PICABOO’S PRIVACY NOTICE, WHICH ARE PUBLISHED AT http://www.Picaboo.com/privacy, AND WHICH ARE INCORPORATED HEREIN BY REFERENCE. If you do not agree to any of these terms, then please do not use the Picaboo Website.
2. Picaboo Website
3. Website Access
A. Picaboo hereby grants you permission to use the Website as set forth in this Terms of Service, provided that: (i) your use of the Website as permitted is solely for your personal, noncommercial use; (ii) you will not copy or distribute any part of the Website in any medium without Picaboo’s prior written authorization; (iii) you will not alter or modify any part of the Website other than as may be reasonably necessary to use the Website for its intended purpose; and (iv) you will otherwise comply with the terms and conditions of these Terms of Service.
B. In order to access some features of the Website, you will have to create an account. You may never use another’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Picaboo immediately of any breach of security or unauthorized use of your account. Although Picaboo will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Picaboo or others due to such unauthorized use.
C. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Website in a manner that sends more request messages to the Picaboo servers in a given period of time than a human can reasonably produce in the same period by using a convention on-line web browser. Notwithstanding the foregoing, Picaboo grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. Picaboo reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Website, nor to use the communication systems provided by the Website for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Website with respect to their User Submissions.
4. Intellectual Property Rights
A. The content on the Picaboo Website, except all User Submissions (as defined below), including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Picaboo, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on the Website is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Picaboo reserves all rights not expressly granted in and to the Website and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Submissions of third parties obtained through the Website for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the Picaboo Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Picaboo Website or the Content therein.
B. For clarification relating to the Picaboo Backgrounds site, located at http://backgrounds.picaboo.com (Backgrounds Site), and the Picaboo Themes site, located at .com/freegoodies/themes (Themes Site), all content (including all User Submissions) is for the sole and exclusive use with Picaboo products and services, including, but not limited to, Picaboo Software. Use of content on the Backgrounds Site and Themes Site for use other than with Picaboo products and services is a violation of our Terms of Service.
5. User Submissions
A. The Picaboo Website may now or in the future permit the submission of photos, videos or other communications submitted by you and other users (“User Submissions”) and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, Picaboo does not guarantee any confidentiality with respect to any submissions.
B. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize Picaboo to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting the User Submissions to Picaboo, you hereby grant Picaboo a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the Picaboo Website and Picaboo’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Picaboo Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Picaboo Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The foregoing license granted by you terminates once you remove or delete a User Submission from the Picaboo Website.
C. In connection with User Submissions, you further agree that you will not: (i) 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 Picaboo all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage Picaboo or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business: (v) impersonate another person. Picaboo does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Picaboo expressly disclaims any and all liability in connection with User Submissions. Picaboo does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and Picaboo will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another’s intellectual property rights. Picaboo reserves the right to remove Content and User Submissions without prior notice. Picaboo will also terminate a User’s access to its Website, if they are determined to be a repeat infringer. A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had a User Submission removed from the Website more than twice. Picaboo also reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. Picaboo may remove such User Submissions and/or terminate a User’s access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.
D. In particular, if you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
(iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
E. You understand that when using the Picaboo Website, you will be exposed to User Submissions from a variety of sources, and that Picaboo is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Picaboo with respect thereto, and agree to indemnify and hold Picaboo, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.
F. Picaboo permits you to link to materials on the Website for personal, non-commercial purposes only. Picaboo reserves the right to discontinue any aspect of the Picaboo Website at any time.
6. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE Picaboo WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, Picaboo, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF. Picaboo MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONSIN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE Picaboo WEBSITE. Picaboo DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE Picaboo WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND Picaboo WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
7. Limitation of Liability
IN NO EVENT SHALL Picaboo, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE Picaboo WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER ORNOT THE COMPANY 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. YOU SPECIFICALLY ACKNOWLEDGE THAT Picaboo SHALL NOT BE LIABLE FOR USER SUBMISSIONS 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.
The Website is controlled and offered by Picaboo from its facilities in the United States of America. Picaboo makes no representations that the Picaboo Website is appropriate or available for use in other locations. Those who access or use the Picaboo Website from other jurisdictions do so at their own volition and are responsible for compliance with local law.
You agree to defend, indemnify and hold harmless Picaboo, its parent corporation, officers, directors, employees 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: (i) your use of and access to the Picaboo Website; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the Picaboo Website.
9. Ability to Accept Terms of Service
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Picaboo Website is not intended for children under 13. If you are under 13 years of age, then please do not use the Picaboo Website— Talk to your parents about what sites are appropriate for you.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Picaboo without restriction.
You agree that: (i) the Picaboo Website shall be deemed solely based in California; and (ii) the Picaboo Website shall be deemed a passive website that does not give rise to personal jurisdiction over Picaboo, either specific or general, in jurisdictions other than California. These Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and Picaboo that arises in whole or in part from the Picaboo Website shall be decided exclusively by a court of competent jurisdiction located in San Mateo County, California. These Terms of Service, together with the Privacy Notice at http://www.Picaboo.com/t/privacy and any other legal notices published by Picaboo on the Website, shall constitute the entire agreement between you and Picaboo concerning the Picaboo Website. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and Picaboo’s failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. Picaboo reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Picaboo Website following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND Picaboo AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE Picaboo WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.