Terms & Agreement
Welcome to PICSII. Please read on to learn the rules and restrictions that govern your use of our website and application(s) (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at http://firstname.lastname@example.org.
This End User License Agreement (“Agreement”) is between you and Cowabinga LLC, developers of PICSII, and governs use of this app made available through the Apple App Store. By installing the PICSII App, you agree to be bound by this Agreement and understand that there is no tolerance for objectionable content. If you do not agree with the terms and conditions of this Agreement, you are not entitled to use the PICSII App.
In order to ensure PICSII provides the best experience possible for everyone, we strongly enforce a no tolerance policy for objectionable content. If you see inappropriate content, please use the “Report an Issue” feature (screen display to enter text and submit).
This Agreement is between you and PICSII only, and not Apple, Inc. (“Apple”). Notwithstanding the foregoing, you acknowledge that Apple and its subsidiaries are third party beneficiaries of this Agreement and Apple has the right to enforce this Agreement against you. PICSII, not Apple, is solely responsible for the PICSII App and its content.
PICSII may collect and use information about your usage of the PICSII App, including certain types of information from and about your device. PICSII may use this information, as long as it is in a form that does not personally identify you, to measure the use and performance of the PICSII App.
- Limited License
PICSII grants you a limited, non-exclusive, non-transferable, revocable license to use the PICSII App for your personal, non-commercial purposes. You may only use the PICSII App on Apple devices that you own or control and as permitted by the App Store Terms of Service.
Anything you post, upload, share, store, or otherwise provide through the Application is your “Submission.” Submissions are viewable by other users. In order to display your Submissions on the Application, and to allow other users to enjoy them (where applicable), you grant us certain rights in those Submissions.
For all Submissions, you hereby grant Cowabinga a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such Submissions, in each case to enable us to operate the Application, as described in more detail below.
If you share a User Submission only in a manner that only certain specified users can view (for example, sharing pictures only with your followers) (a “Limited Audience User Submission”), then you grant Cowabinga the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the sole purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Application.
If you share a User Submission publicly on the Application and/or in a manner that more than just you or certain specified users can view, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Application] ([each of the foregoing, a “Public User Submission”), then you grant Cowabinga the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all PICSII users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Application and/or otherwise in connection with Cowabinga’s business. Also, you grant all other users of the Application a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Application.
You agree that the licenses you grant are royalty-free, perpetual, sub-licensable, irrevocable, and worldwide.
Finally, you understand and agree that Cowabinga, in performing the required technical steps to provide the Application to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
- Age Restrictions
By using the PICSII App, you represent and warrant that (a) you are 17 years of age or older and you agree to be bound by this Agreement; (b) if you are under 17 years of age, you have obtained verifiable consent from a parent or legal guardian; and (c) your use of the PICSII App does not violate any applicable law or regulation. Your access to the PICSII App may be terminated without warning if PICSII believes, in its sole discretion, that you are under the age of 17 years and have not obtained verifiable consent from a parent or legal guardian. If you are a parent or legal guardian and you provide your consent to your child’s use of the PICSII App, you agree to be bound by this Agreement in respect to your child’s use of the PICSII App.
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. The PICSII App does not collect or solicit personally identifiable information from children under 13; if you are a child under 13, do not send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at email@example.com.
- Objectionable Content Policy
Content may not be submitted to PICSII, who will moderate all content and ultimately decide whether or not to post a submission to the extent such content includes, is in conjunction with, or alongside any, Objectionable Content. Objectionable Content includes, but is not limited to: (i) sexually explicit materials; (ii) obscene, defamatory, libelous, slanderous, violent and/or unlawful content or profanity; (iii) content that infringes upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary right, or that is deceptive or fraudulent; (iv) content that promotes the use or sale of illegal or regulated substances, tobacco products, ammunition and/or firearms; and (v) gambling, including without limitation, any online casino, sports books, bingo or poker.
PICSII disclaims all warranties about the PICSII App to the fullest extent permitted by law. To the extent any warranty exists under law that cannot be disclaimed, PICSII, not Apple, shall be solely responsible for such warranty.
- Maintenance and Support
PICSII does provide minimal maintenance or support for it but not to the extent that any maintenance or support is required by applicable law, PICSII, not Apple, shall be obligated to furnish any such maintenance or support.
- Product Claims
PICSII, not Apple, is responsible for addressing any claims by you relating to the PICSII App or use of it, including, but not limited to: (i) any product liability claim; (ii) any claim that the PICSII App fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation. Nothing in this Agreement shall be deemed an admission that you may have such claims.
- Third Party Intellectual Property Claims
PICSII shall not be obligated to indemnify or defend you with respect to any third party claim arising out or relating to the PICSII App. To the extent PICSII is required to provide indemnification by applicable law, PICSII, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any claim that the PICSII App or your use of it infringes any third party intellectual property right.
Warranty Disclaimer. Neither Cowabinga nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Application, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Application. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Application. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Cowabinga or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE APPLICATION AND CONTENT ARE PROVIDED BY COWABINGA (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL COWABINGA (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO COWABINGA IN CONNECTION WITH THE APPLICATION IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
[Indemnity. To the fullest extent allowed by applicable law, You agree to indemnify and hold Cowabinga, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Application (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, in any way (by operation of law or otherwise) without Cowabinga’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law; Arbitration. These Terms are governed by and will be construed under the laws of the State of Texas, without regard to the conflicts of law’s provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in Dallas County, Texas, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Dallas County, Texas. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND COWABINGA ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Application, provided that Cowabinga may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Cowabinga agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Cowabinga, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Cowabinga, and you do not have any authority of any kind to bind Cowabinga in any respect whatsoever. Except as expressly set forth in the section above regarding the Apple Application, you and Cowabinga agree there are no third party beneficiaries intended under these Terms.