Please read these terms carefully.
This is a binding agreement between Pictarine, Inc. (referred to as “Pictarine”, “we”, “us” or “our”) and any person who accesses or establishes a connection to the Services (“you” or “User”). By using or otherwise accessing the Services, or indicating your assent hereto by clicking “I agree” or similarly expressing acceptance where other options exist, you will be deemed to have accepted the terms of this agreement. Pictarine retains any rights not specifically granted to you in this agreement.
1. ACCESS TO THIS SITE
To access any part of the website pictaphoto.com (the “Website”), the application PHOTO PRINT (the “Mobile Application”), or other software, resources or services available through the Website or the Mobile Application (all of the foregoing, the “Services”), you agree to comply with all of the terms of this agreement. In order to use some or all of the Services on the Website, you may be asked to provide registration information. It is a condition of your use of the Services that all the information you provide is correct, current, and complete. If Pictarine believes the information you provide is inaccurate, Pictarine may terminate or suspend your access to the Services.
You agree that Pictarine may, without prior notice for any reason or no reason, immediately terminate your account and access to the Services. You agree that all terminations for cause will be made at Pictarine’s discretion and that Pictarine is not liable to you or any third-party for any termination of your account.
2. HOW THE SERVICES WORK
Through the Services, the User can select his photos to have them printed. The User may either pick up his printed photos at a local retail partner of Pictarine or have them delivered to the User’s address.
3. FEES AND PAYMENT
If the User is picking up photos, the User will be charged upon picking up the photos. If the User will have his photos delivered, the User will be charged upon clicking “Submit” on the Pictarine website or Mobile Application. Payments made via the Mobile Application will be made using Stripe if you choose the home delivery service.
4. DAMAGED PRODUCT; RETURNS
If the photos you receive are damaged or defective, you may request that they be reprinted at no charge to you by sending a request to firstname.lastname@example.org within 30 days of receipt of the damaged or defective photos. Photos are not considered “damaged” or “defective” if the photos submitted to Pictarine by the User are themselves defective (i.e., blurry or out of focus, improperly cropped, corrupted data). If you do not wish to receive a reprint of the photos, your sole remedy is to receive a refund of the fees you originally paid to print your photos.
In-store pickup and delivery may only be available in certain areas. You will be alerted if the address or the location you provide for either in-store pickup or delivery are not available.
8. PHOTO STORAGE AND PRINTING
When you Submit a photo to the Website or the Mobile Application, Pictarine will store your photo in the cloud under your private account. You agree to permit Pictarine to store your photos as long as you have an active account with Pictarine. In the event that your account is cancelled or otherwise terminated, Pictarine may delete all photos uploaded to your account. Pictarine may delete, move, or edit Submissions for any reason, without notice. You agree that any Submission made to Pictarine that violates any law, including Title 18 of the Unites States Code, Sections 2251 et seq., may be reported and disclosed to appropriate law enforcement agencies.
When you choose to print your photos through the Mobile Application, your photos may be sent to a third party provider to be printed. You agree that, by clicking “submit” or otherwise assenting to printing your photos, that Pictarine has your permission to transfer your photos to such third party for printing.
Title and risk of loss for any purchases made for the delivery of photos directly to you pass to you upon our delivery to our carrier. Pictarine is not responsible for any lost or stolen delivery. Our carrier may require a secure location to leave your delivery in the event that you are not home when a delivery attempt is made. We may ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment.
10. PHOTO SHARING
You may also share the photos uploaded to the Service though the App’s “feed” (which would allow all users of the App to see those photos) and through your social media accounts (such as Facebook or Instagram) by selecting the “Share” option within the Mobile Application. Sharing of your photos through your social media accounts mean that any photos or other content you share will be subject to the terms and conditions, as well as the privacy policies, of Pictarine. You agree that Pictarine is not responsible for any content that is shared by you with any third party, including social media platforms.
11. RESTRICTIONS ON USE
You may access the Services only for your personal, non-commercial use. You may not use the Services for any other purpose. You may not, for example, (a) modify, publish, distribute, transmit, systematically download, use automated means to index or extract data from, participate in the transfer or sale or rental of, translate, create derivative works from, frame, co-brand, or in any way exploit any part of the Services other than for personal use or as specifically permitted in this agreement, without Pictarine’s written consent, or (b) use the Services in any harmful manner or interfere with any party’s use or enjoyment of the Services, or (c) access or use any part of the Services to build a competitive service. You agree to cooperate with Pictarine in causing any unauthorized use of the Services to immediately cease.
12. OWNERSHIP OF THE WEBSITE
The material accessible from this Website, including text, data, images, interfaces and other materials or works of authorship (the “Content”) is owned or licensed by Pictarine. You may not copy, distribute, republish, upload, post, or transmit Content in any way without the prior written consent of Pictarine, except that you may print out limited portions of the Content solely for your personal use. You may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the Content.
Pictarine’s name, logos, and other product and service identifiers are Pictarine’s trademarks. All other trademarks appearing on the Website are the property of their respective owners. No rights are granted to you in these trademarks.
Any mobile applications made available to you through this Website or your mobile application store, including the Pictarine Mobile Application, are the copyrighted works of Pictarine. You may not install or use any Mobile Application unless you first agree to this agreement. We hereby grant to you a limited, personal, non-exclusive, non-transferable, revocable license to download, install and use the Mobile Application for accessing the Services, content and information available within the Mobile Application in accordance with this agreement and for no other purpose. Any reproduction or redistribution of the Mobile Application is expressly prohibited, and may result in severe civil and criminal penalties.
THE MOBILE APPLICATION IS PROVIDED “AS IS,” AND ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, IS HEREBY DISCLAIMED. THE LIMITATION OF LIABILITY PROVIDED IN SECTION 19 OF THIS AGREEMENT ALSO APPLIES TO YOUR USE OF THE MOBILE APPLICATION.
Your mobile device must be connected to the internet for the Mobile Application to function correctly. Data charges may apply per your contract with your carrier. The Mobile Application may automatically transfer non-personally identifiable usage and technical data as part of its normal operation. By using the Mobile Application, you acknowledge, agree and consent to the automatic collection of this data.
14. USER SUBMISSIONS
A “Submission” means any photos, images, comments, data or other information, ideas or materials that Users provide to us via any post, upload, input or other submission to the Services. You retain ownership of your Submissions. You represent that you own or otherwise possess all of the rights to any Submissions.
You may not post, send, submit, publish, or transmit in connection with the Services any material that (a) you do not have the right to post, including proprietary material of any third party, (b) contains information obtained illegally or advocates illegal activity or discusses an intent to commit an illegal act, (c) is vulgar, obscene or threatening, (d) libels, defames, or invades the privacy of others, (e) seeks to harm or exploit children by exposing them to inappropriate content, f) may create a risk of harm, loss, injury or distress to others, or (g) includes programs that contain viruses, worms, or any other malicious computer code. You are solely responsible for any violation under any theory of law that may be alleged relating to your Submissions, and any damages resulting therefrom.
You agree that Pictarine may copy, display, modify, transmit and make derivative works of your Submissions solely for the purpose of providing the Service.
Without limiting the foregoing responsibilities of the Users, Pictarine may monitor use of the Website and Services to determine compliance with this agreement. Pictarine may remove or refuse Submissions for any reason.
The Website may include hyperlinks to other websites that are not owned or operated by Pictarine. These links are provided for your convenience, and Pictarine may receive commissions or other financial compensation from the owners of these websites. Hyperlinks are to be accessed at your own risk. Pictarine has no control over other websites and is not liable for any content, advertising, products, services or other materials on or available from those websites. Nonetheless, we wish to protect the users of the Website, and we therefore invite feedback about websites that are linked from this Website.
16. DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE TO COPYRIGHT OWNERS
Pictarine owns, protects and enforces copyrights in its own creative material and respects the copyrights of others. Materials may be made available on the Services, or via the Services, by third parties not within the control of Pictarine. It is our policy not to permit materials known by us to be infringing to remain on this Website.
In accordance with the Digital Millennium Copyright Act, or “DMCA” (summary here), you should notify the DMCA Agent listed below if you believe any materials displayed within the Services infringe your copyright;; please send your notice by e-mail for prompt attention. Regardless of whether we are liable for such infringement, our response may include removing or disabling access to material claimed to be infringing activity and/or terminating the alleged infringer’s access to the Website. If we remove or disable access in response to your notice, we will make a good-faith attempt to contact the person who submitted the material so that they may have the opportunity to submit a counter notification.
Send all takedown notices to our DMCA Agent listed below. Please send by email for prompt attention.
goodcounsel DMCA compliance
1 S Dearborn St, 20th Floor
Chicago, IL 60603
Our Business Information:
298 allée du Lac
Pictarine: Print Photos in 1h
Your notice of alleged copyright infringement should include:
· A description of how your copyrighted work or other intellectual property has been infringed;
· A description of where the infringing material is located on the Website;
· Where we can contact you and, if different, where the allegedly infringing party can contact you;
· A statement that you believe that the use of the material is not authorized by the copyright or other intellectual property rights owner, by its agent, or by law;
· A statement, under penalty of perjury, that the information in the notification is correct and that you are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed; and
· Your electronic or physical signature.
Please note that under the DMCA, misrepresentations made in your notices or counter notices can expose you to liability for substantial damages. If you are not sure whether material available on the Website infringes your copyright, or whether material posted by you is infringing, you should seek legal advice.
17. SECURITY AND SECURITY VIOLATIONS
If you are a User who has registered an account for the Services, passwords used to access the Services are for individual use only. You are responsible for the security of your own password and for all activities that occur through the use of your account if accessed with your password, including liability for damages resulting from misuse. If you use a password that Pictarine considers insecure, Pictarine may require you to change the password or terminate your account. Further, you may not have a web URL in your username without first obtaining Pictarine’s prior written consent.
You may not attempt to violate the security of the Services, or use the Services to violate the security of other persons or websites or to violate the law, including by: (a) accessing photos or other data not owned by or intended for you or logging into an account that you are not authorized to access, (b) attempting to probe, scan or test the vulnerability of the Services or to breach security or authentication measures, (c) attempting to interfere with service to any User, host or network, including without limitation, by submitting a virus to the Services, (d) sending unsolicited e-mail, (e) forging any TCP/IP packet header or any part of the header information in any e-mail, (f) attempting to reverse engineer, alter, make derivative works of, copy, disassemble or modify any of the software making up any part of the Services, (g) creating another mobile application or website and claiming that it is associated with Pictarine, the Services or the App, (h) reselling the Services, or (i) hacking into Pictarine’s systems or network.
Pictarine will take all reasonably necessary steps to investigate suspected violations of this agreement. Pictarine reserves the right to involve and fully cooperate with any law enforcement authorities and comply with court orders requesting or directing Pictarine to disclose the identity of anyone engaging in conduct that is believed to violate the law. Pictarine further reserves the right, in its discretion, to release your details to system administrators at other sites in order to assist them in resolving security incidents.
You release Pictarine from and against any action taken by Pictarine during or as a result of its investigations and from any actions taken as a consequence of investigations by either Pictarine or law enforcement authorities.
18. IMPORTANT DISCLAIMERS
Your use of the Services is at your own risk. The Services are provided on an “as is” and “as available” basis. Pictarine disclaims any warranties, express or implied, including any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement, and any warranties arising out of course of dealing or usage of trade.
By way of illustration, and without limiting the generality of the disclaimer in the paragraph above, Pictarine disclaims any warranty that:
· The Services will be uninterrupted or error-free, or that defects will be corrected;
· The Website or the server that makes it available are free of viruses or other harmful components; or
· The Content is accurate or free of typographical errors.
The inclusion or offering for sale of any product or service as part of the Services does not constitute an endorsement or recommendation by Pictarine, and you agree not to make any claim against Pictarine relating to the purchase of these products or services.
19. LIMITATION ON LIABILITY
Pictarine, its subsidiaries, affiliates, licensors, service providers, content providers, employees, agents, officers, and directors shall not be liable for any incidental, direct, indirect, punitive, actual, consequential, special, exemplary, or other damages, including loss of revenue or income, pain and suffering, emotional distress, or similar damages, even if Pictarine has been advised of the possibility of such damages.
In no event will the collective liability of Pictarine and its subsidiaries, affiliates, licensors, service providers, content providers, employees, agents, officers, and directors to any party (regardless of the form of action, whether in contract, tort, or otherwise) exceed the greater of $500 or the amount that you have paid to Pictarine for the Services during the most recent 12-month period.
To the maximum extent permitted by law, you shall indemnify Pictarine, its subsidiaries, affiliates, licensors, service providers, content providers, employees, agents, officers, and directors from and against all third-party claims, liabilities and expenses, including legal fees and costs, relating to your use of the Services or your breach of any representation contained in or other provision of this agreement, including any damages arising from a Submission violating the intellectual property rights of a third party. Pictarine reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any claim for which you are obligated to provide indemnification under this section. You shall fully cooperate as reasonably required in the defense of any claim.
This agreement constitutes the entire agreement between the parties relating to the subject matter contained herein. Pictarine may modify this agreement at any time by posting the revised terms on the Website and providing you with the opportunity to accept or reject the modifications during your next sign-on to the Services. If you do not agree to the modifications, you may be required to cease your access to the Services. Continued use or access of the Service after modification will constitute your acceptance of this agreement as modified.
22. DISPUTE RESOLUTION; WAIVER
All disputes relating to the interpretation of this agreement or the rights of the parties hereunder will be exclusively settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. Disputes involving $75,000 or less shall use the AAA’s Expedited Rules. The parties shall mutually agree upon a single commercial arbitrator, and in the absence of agreement, the AAA shall select the arbitrator. The place of arbitration shall be Chicago, Illinois. The parties will share equally in the costs of arbitration payable to the AAA, including the arbitrator. The award of the arbitrator will be accompanied by a reasoned opinion. Judgment on an arbitration award may be entered in accordance with the Federal Arbitration Act in any federal court having jurisdiction.
You acknowledge and agree that you and Pictarine are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Pictarine otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
The parties to this agreement may, notwithstanding the above, seek equitable relief in any proper court to enjoin a breach or threatened breach of any obligations under this agreement that might cause irreparable harm (without any requirement to post bond).
This agreement shall be governed and interpreted pursuant to the laws of the State of Delaware, United States of America, without regard to its choice of law rules. The parties agree that the exclusive venue for any dispute relating to this agreement will be in, and specifically consent to the personal jurisdiction of, the state and federal courts located in Delaware. If any part of this agreement is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions. Any notices or other communications permitted or required hereunder will be in writing and given by Pictarine via e-mail, to the address that you provided when registering for the Services, and will be effective upon transmission.
24. CONTACT AND FEEDBACK
We welcome and encourage feedback, comments and suggestions for improvements to the Services (“Feedback”). You may submit Feedback by emailing us at email@example.com or through the “Help” section of the Website. You agree that all Feedback will become the sole and exclusive property of Pictarine and you hereby irrevocably assign to Pictarine all of your right in and to all Feedback.
If you are a resident of California, you may request additional information or submit claims or complaints regarding the Services by calling the Complaint Assistance Unit of the Division of Consumer Services of California Department of Consumer Affairs at (916) 445-1254;
Or in writing at:
Complaint Assistance Unit
Division of Consumer Services
California Department of Consumer Affairs
1625 N. Market Blvd., Suite N 112
Sacramento, California 95834
Last updated: July 20, 2020