PIKMOBILE APPLICATION LICENSE AND SERVICES
TERMS AND CONDITIONS OF USE
Version 3.0, May 1, 2018
Thank you for your interest in PikMobile® and for opening a PikMobile user account using a PikMobile application (“Application”) which includes the mobile application, web application, or Mac/PC application; each providing access to PikMobile content and services, including without limitation the photo filters and editing, photo upload and hosting services, social sharing and networking features, the PikStore® digital publishing system (“PikStore”), and photo gallery features (collectively, such content and services, together with the Application, are referred to herein as the “PikMobile Services“), and all are provided by PikMobile, Inc. (“Licensor“). Download, installation and use of the Application, and access to PikMobile Services, however accessed, are all offered to you, the individual user, by Licensor subject strictly to the terms and conditions set forth below.
ARBITRATION NOTICE: UNLESS YOU OPT-OUT AND/OR EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND PIKMOBILE WILL BE RESOLVED BY MANDATORY, BINDING ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1. GENERAL TERMS
1.2 Not Intended for Children Age of 13 or Under. Licensor offers the PikMobile Services mainly for the use of individuals who are over the age of 13. Content made available through PikMobile Services may not always be age appropriate for children. We do not solicit or knowingly collect personal information from persons under the age of thirteen, and we do not knowingly market our products or services to persons under such age.
1.4 PikMobile Brand Materials. The PikMobile name and logo are trademarks and/or service marks of Licensor and may not be copied, imitated or used, in whole or in part, without the prior written permission of Licensor, except to the extent Licensor publishes brand use guidelines on Licensor’s web site from time to time.
1.5 Disclaimer; Nature of Services. THE PIKMOBILE SERVICES, INCLUDING, WITHOUT LIMITATION, THE APPLICATION AND PIKMOBILE CONTENT, IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER PIKMOBILE NOR ITS EMPLOYEES, MANAGERS, OFFICERS, AGENTS, LICENSORS, OR SUPPLIERS (COLLECTIVELY, THE “PIKMOBILE PARTIES”) MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE APPLICATION; (B) THE PIKMOBILE SERVICES; (B) THE PIKMOBILE CONTENT; (C) USER CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO, OR FROM, PIKMOBILE OR VIA THE PIKMOBILE SERVICES. IN ADDITION, THE PIKMOBILE PARTIES HEREBY 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. NOTHING HEREIN SHALL BE CONSTRUED AS A WARRANTY OF COMPATIBILITY WITH ANY PARTICULAR MOBILE/COMPUTING DEVICE, OPERATING SYSTEM, OR OTHER SOFTWARE RESIDENT ON YOUR DEVICE.
THE PIKMOBILE PARTIES DO NOT REPRESENT OR WARRANT THAT THE PIKMOBILE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PIKMOBILE SERVICES OR THE SERVER(S) THAT MAKES THE PIKMOBILE SERVICES AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE PIKMOBILE PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE PIKMOBILE SERVICES IS TRUE, VALID, ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE PIKMOBILE SERVICES IS AT YOUR SOLE RISK AND YOU EXPRESSLY ASSUME AND HEREBY EXPRESSLY RELEASE THE PIKMOBILE PARTIES FROM ALL LIABILITY, IN TORT, CONTRACT OR OTHERWISE, INCURRED IN CONNECTION WITH THE USE OF THE APPLICATION AND THE OTHER PIKMOBILE SERVICES. THE PIKMOBILE PARTIES DO NOT WARRANT THAT YOUR USE OF THE PIKMOBILE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE PIKMOBILE PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES.
BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PIKMOBILE SERVICES OR WITH THE DELAY OR INABILITY TO USE THE PIKMOBILE SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. Licensor makes no warranties, express or implied, that the use of the PikMobile Services does not infringe any patent or copyright of any third party.
1.7 Registration. In order to access or use the Application and PikMobile Services, you will be required to create a registered PikMobile account.
1.7.1 Username/Password. When you create your registered PikMobile account, you will be asked to create a username and password (combined, the “User Identity”). You shall hold and secure any such User Identity as strictly confidential. Third parties with knowledge of your User Identity can gain access to your account information and may be able to make purchases and take other actions for which you will be held accountable and liable. Licensor is entitled to, and will, assume that any person using the PikMobile Services under your User Identity is you and will hold you liable and responsible for all actions, statements, and/or purchases made under your User Identity. Licensor shall not be responsible whatsoever in the event that your User Identity is used by an unauthorized entity or misappropriated by a third party. We reserve the right to refuse or reject any username for any reason and/or force forfeiture of any username at any time for any reason.
1.7.2 If you provide any information that is untrue, inaccurate, not current or incomplete, Licensor has the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).
1.8 Posted Materials. ANY COMMUNICATION OF MATERIAL YOU TRANSMIT TO LICENSOR VIA THE PIKMOBILE SERVICE, OR OTHERWISE BY UPLOAD, POSTING, ELECTRONIC MAIL OR OTHERWISE, INCLUDING ANY IMAGE, VIDEO, MULTIMEDIA, DATA, QUESTIONS, COMMENTS, SUGGESTIONS OR THE LIKE IS, AND WILL BE TREATED AS, NON-CONFIDENTIAL AND NON-PROPRIETARY. Except as expressly set forth below or in our Privacy Statement, anything you transmit, or post may be used by Licensor for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Furthermore, Licensor is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to Licensor for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information without incurring any obligation whatsoever to you, and by sending such communication, you waive all your rights thereto. You agree that you are solely responsible for all data charges you incur in the use of the PikMobile Services, including without limitation data charges incurred in uploading images from a mobile device to the PikMobile Services using a cellular data connection.
1.8.2 In order to fully participate in the PikMobile community, you will need to make decisions as to the extent to which you share User Content with other Users. User Content may be made available to others pursuant to sharing and privacy settings you manage for yourself using functionality provided through PikMobile Services. You acknowledge and agree that you elect to share or publish your User Content through the PikMobile Services at your own risk. While you may elect to remove specific images from your own content stream, you acknowledge and agree that, once you have shared your User Content with other Users, to the extent such other Users reshare your User Content, PikMobile cannot thereafter guarantee that such reshared User Content, or derivative thereof, can be deleted from the PikMobile Services. You are solely responsible for your interaction with other Users of the PikMobile Services, whether online or offline. You agree that PikMobile is not responsible or liable for the conduct of any User. Although we allow you to set privacy options that limit authorized access to your account information and User Content, please take note that no security measures are perfect or impenetrable. We cannot control the actions of other users with whom you may choose to share your User Content. Therefore, we cannot and do not guarantee that your account information or User Content that you may share or publish through PikMobile Services, will not be accessible to the general public or otherwise viewed by unauthorized persons. We are not responsible for circumvention of any privacy settings or security measures we provide. You understand and acknowledge that, even after removal, copies of Profile Information, including without limit your user generated content, may remain viewable in cached and archived pages or if other users have copied or stored all, or parts of, such information.
1.8.3 From time to time, Licensor may elect to display marketing and promotions, and you hereby agree that Licensor may place such marketing and promotions on the PikMobile Services or on, about, or in conjunction with your User Content. The manner, mode and extent of such marketing and promotions are subject to change without specific notice to you.
1.9 Objectionable Material. You understand that through your use of the PikMobile Services you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as such. You agree to use the PikMobile Services at your sole risk and that Licensor shall have no liability to you for the type of content that you may access, including without limitation content that you may find offensive, indecent, or objectionable.
1.10 Links to Other Sites. PikMobile Services may provide access and/or hyperlinks to other third party sites and content on the Internet. Such third party sites and content so linked have not necessarily been reviewed by Licensor and are maintained by third parties over which Licensor exercises no control. Licensor expressly disclaims any responsibility for the i) content or accuracy of information contained on such linked content; ii) quality of any product or service provided by or advertised in or by any such third party content. Licensor neither endorses nor makes any representation regarding any linked site, product, service and/or content, and we advise you to assess for yourself the adequacy and appropriateness of any linked site, product, service and/or content for your own purposes. Licensor expressly disclaims any responsibility for the quality, adequacy, or appropriateness of any product or service provided by or advertised by any linked site.
1.11 No Right To Continued Service. Licensor reserves the right to amend the Application, PikMobile Services and/or the interface, functionality and/or operation of the Application or the PikMobile Services at any time and without prior notice. At any time without notice, Licensor may add, delete or disable content, and/or add, delete, disable or modify some or all of the PikMobile Services, at its sole election, and you acknowledge: (1) that you may no longer be able to use the Application, and/or other aspects of the PikMobile Services to the same extent – or at all – as prior to such change or discontinuation, and (2) that Licensor shall have no liability to you in such case. In no event will Licensor be liable for the removal of or disabling of access to any content, materials or functionality. Licensor may also impose limits on the use of or access to certain features or portions of the content, other aspects or components of the PikMobile Service, in any case and without notice or liability.
1.12 Third Party Legal Terms Incorporated by Reference.
1.12.1 Apple. In addition to terms and conditions set forth elsewhere in this Agreement, Apple, Inc. (“Apple”) also requires that this Agreement between you and Licensor include the following:
(a) Acknowledgement. You and Licensor each hereby acknowledge that this Agreement is concluded between you and Licensor only, and not with Apple. Licensor, not Apple, is solely responsible for the Application licensed hereunder and the content thereof.
(b) Maintenance and Support. Licensor is solely responsible for providing maintenance and support services with respect to the Application as required under applicable law, if any. You and Licensor each hereby acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
(c) Warranty. Licensor shall be solely responsible for any product warranties not effectively disclaimed hereunder. Notwithstanding anything to the contrary herein, and without limiting the disclaimers and limitations set forth in Section 1.5 above and Section 3 below, in the event of any failure of the Application to conform to any such applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Licensor’s sole responsibility.
(d) Product Claims: To the extent you, or any third party, has any claims relating to the Application or your possession and/or use of the Application including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, you and Licensor each acknowledge that Licensor, not Apple, is responsible for addressing any such claims, subject to the terms and conditions set forth in this Agreement and subject to applicable law.
(e) Intellectual Property Rights. In the event of any third-party claim that the Application or your possession and use of that Licensed Application infringes that third party’s intellectual property rights, as between Licensor and Apple, it is Licensor, not Apple, who will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim arising under this Agreement or applicable law.
(f) Legal Compliance. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
(g) Developer Name and Address. All end-user questions, complaints or claims with respect to the Application should be directed to Licensor at PikMobile, Inc., PikMobile Support, via e-mail at firstname.lastname@example.org.
(h) Third Party Terms of Agreement. You must comply with applicable third-party terms of agreement when using the Application.
(i) Third Party Beneficiary. You and Licensor each acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary to this Agreement.
2. OWNERSHIP AND INTELLECTUAL PROPERTY
2.2 Copyright. Unauthorized use of any material accessed through or contained on the PikMobile Services, including without limitation commercial, third-party images available via PikStore, may violate copyright laws, trademark laws, trade secret laws, the laws of privacy and publicity, and other regulations and statutes. PikMobile Content is owned by Licensor and/or its licensors, and content providers and is protected by applicable domestic and international copyright laws. The compilation of all PikMobile Content through the PikMobile Services and its presentation through the Application is the exclusive property of Licensor and protected by U.S. and international copyright laws. Text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, presented on or through the PikMobile Services is Copyrighted by Pikmobile, Inc. All rights reserved. Any rights not expressly granted to you herein are reserved. Any violation of copyright laws may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.
2.3 Trademark. PikMobile, PikStream, PikStore, PikMessage, the PikMobile logo, and all graphics, logos, page headers, titles, button icons, scripts, service names and other trademarks and service marks on the PikMobile Services are trademarks, trade dress and service marks belonging to Licensor or its licensors (the “Licensor Marks”). Licensor Marks may not be used in connection with any product or service that is not related to Licensor or the PikMobile Services, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Licensor or the PikMobile Services. Licensor Marks may not be copied, imitated or used, in whole or in part, without prior written permission from Licensor. All other trademarks not owned by Licensor that appear via the PikMobile Services are the property of their respective owners, who may or may not be affiliated with, connected to, sponsor, or sponsored by Licensor. Any product, service, or trade name other than those owned by Licensor that identify a third party as the source thereof may, even if not so indicated, be the service mark or trademark of that respective entity or individual. Any unauthorized use of the Licensor Marks or any third party trademark is strictly prohibited.
2.4 Complaints; DMCA. If you believe that your trademark, service mark, or copyrightable work of authorship has been copied and/or is being displayed via the PikMobile Service in such a way that would give rise to a claim for misappropriation or infringement, please follow the procedure regarding Notice and Claims:
(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the intellectual property interest;
(b) A description of the protected mark or copyrighted work that you claim has been infringed upon;
(c) A description of the manner in which the material that you claim is infringing is accessed via the PikMobile Services, including any information which would assist Licensor in identifying and locating that material;
(d) Your address, telephone number and e-mail address;
(e) A statement by you that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or permissible by law;
(f) A statement by you under the penalty of perjury that the information in your notice is accurate that you are the mark holder, copyright owner or authorized to act on such party’s behalf.
AGENT FOR CLAIMS
Renée Relf – DMCA Request
2430 Vanderbilt Beach Road, Naples, FL 34109
3. CONTENT AVAILABLE VIA PIKSTORE
3.2 Use of PikStore Items. You may edit and/or modify PikStore Items, solely by means of functionality and permissions available through the PikMobile Services, solely for use, sharing and display within the PikMobile Services, which includes platforms outside of the Application, including but not limited to Twitter and Facebook, that support the Open Graph protocol. Editing or modification of PikStore Items is subject to restriction by PikMobile and the Store Owner who licenses their use. Any editing, modification, use, sharing, distribution or display of PikStore Items outside of the PikMobile Services is expressly prohibited.
4. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
4.2 PIKMOBILE SERVICES AND PIKMOBILE CONTENT ARE PROVIDED FOR ENTERTAINMENT PURPOSES. LICENSOR DOES NOT ENDORSE ANY PARTICULAR PIKMOBILE CONTENT OR USER CONTENT OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED THEREIN. UNDER NO CIRCUMSTANCES WILL LICENSOR BE LIABLE IN ANY WAY FOR PIKMOBILE CONTENT OR USER CONTENT, INCLUDING BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY PIKMOBILE CONTENT OR USER CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY PIKMOBILE CONTENT OR USER CONTENT ACCESSED, TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE APPLICATION AND/OR PIKMOBILE SERVICES. You agree that any claim you may have arising out of or related to your relationship with PikMobile must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
4.6 Indemnity. You (and also any third party for whom you operate an account or activity on the PikMobile Services) hereby agree to indemnify, defend and hold harmless Licensor and its affiliates from and against any and all liability and costs incurred by Licensor or the affiliates in connection with any claim arising out of (i) any breach or alleged breach of any of your obligations set forth herein; (ii) your User Content or your access to or use of the PikMobile Services; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right, including your use of PikStore Items; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You shall cooperate as fully as reasonably required in the defense of any claim. Licensor reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of Licensor.
5. ACCEPTABLE USE STATEMENT
- You may not post violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos or other similar content via the PikMobile Services.
- You agree that you will not sell, transfer, license or assign your PikMobile account, followers, username, or any account rights. With the exception of people or businesses that are expressly authorized to create accounts on behalf of their employers or clients, PikMobile prohibits the creation of and you agree that you will not create an account for anyone other than yourself.
- You agree that you will not solicit, collect or use the login credentials of other PikMobile users.
- You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities and you must not post private or confidential information via the PikMobile Services, including, without limitation, your or any other person’s credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses.
- You may not use the PikMobile Services for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Service and your Content (defined below), including but not limited to, copyright laws.
- You are solely responsible for your conduct and all User Content that you submit, post or display on or via the PikMobile Services.
- You must not change, modify, adapt or alter the PikMobile Services or change, modify or alter another website so as to falsely imply that it is associated with the PikMobile Service or PikMobile.
- You must not access PikMobile’s private API by means other than those permitted by PikMobile. To the extent PikMobile permits the use of PikMobile’s API, such use will be subject to a separate set of terms available from PikMobile’s web site (“API Terms”).
- You must not create or submit unwanted email, comments, likes or other forms of commercial or harassing communications (a/k/a “spam”) to any PikMobile users.
- You must not use domain names or web URLs in your username without prior written consent from PikMobile.
- You must not interfere or disrupt the PikMobile Services or servers or networks connected to the PikMobile Services, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any PikMobile page is rendered or displayed in a user’s browser or device.
- You must not create accounts with the PikMobile Services through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper.
6.9 Events Beyond Licensor’s Control. Licensor will use reasonable efforts to keep the Application and PikMobile Services available for your use; however, Licensor cannot and will not be responsible for any loss or unavailability of access to PikMobile Services that results from any cause including a cause over which it does not have direct control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, wireless data or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, or governmental restrictions.
6.10 Descriptive Headings. The headings of the various sections herein are for convenience of reference only and shall not define, limit or otherwise affect any of the terms or provisions hereof.
You may opt out of this agreement to arbitrate. If you do so, neither you nor PikMobile can require the other to participate in an arbitration proceeding. To opt out, you must notify PikMobile in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out:
Pikmobile, Inc. 2430 Vanderbilt Beach Road, Naples, FL 34109
You must include your name and residence address, the email address you use for your PikMobile account, and a clear and specific statement that you want to unconditionally opt out of this arbitration agreement.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with PikMobile.