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ExclaimSM - Terms of Use for the Pictavision Wireless
multimedia Applications and Services
Last Updated: 1/15/2006
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1. DESCRIPTION OF SERVICE.
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Exclaim, Inc., provides Pictavision subscribers a variety of on-line and mobile
services, including digital photo storage and printing, voice annotation, slide
show presentations and image manipulation (the "Service"). Any additions to or enhancements
of the Service, including the release of new features, shall be subject to these
Terms of Service. To use the Service, you must have access to the World Wide Web
and/or mobile communications networks and pay any service fees associated with such
access and provide all equipment necessary to connect to the World Wide Web and
mobile networks, including a computer, mobile device and modem or other access device.
Users are informed that as the quality of camera phone images rises, the associated
print quality of camera phone images will also rise. Until the image resolution
and picture quality of camera phone images is commensurate with the image quality
available from typical digital cameras, Pictavision can NOT guarantee the quality
of the images and will not refund your purchase price for the credits.
Whereas we will make reasonable attempt to provide you with a quality image print
and a satisfactory experience, in no way does Pictavision provide a 100% satisfaction
guarantee on prints generated from camera phone images.
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2. CHANGES IN TERMS AND CONDITIONS.
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Exclaim may modify or terminate our services from time to time, for any reason,
and without notice, including the right to terminate with or without notice, without
liability to you, any other user or any third party. We reserve the right to modify
these Terms of Service from time to time without notice. Please review these Terms
of Service from time to time so that you will be apprised of any changes.
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3. MEMBER CONDUCT; CONTENT RESTRICTIONS; SIZE LIMITATIONS.
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You agree that all materials which are transmitted by you are your sole and exclusive
responsibility. You agree that you will not use the Service to upload, post or otherwise
transmit any content that is: unlawful, harmful, threatening, profane, abusive,
harassing, tortious, defamatory, vulgar, obscene, or pornographic, or which may
give rise to civil or criminal liability under applicable law; libelous, invasive
of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
harmful to minors in any way; or violative of any copyright or other proprietary
rights of another. Exclaim does not intend to pre-screen content uploaded or stored
by its users, and is not responsible for such content, Exclaim reserves the right
to edit or remove content which violates any of the foregoing provisions.
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4. ADULT CONTENT
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Pictavision and Pictavision Teleprints in partnership with dotPhoto is a child-friendly
service, and we do not condone adult content in the public areas of the site or
the printing of obscene or inappropriate images. While we do not monitor every photo
being uploaded, we will remove accounts that promote naked or obscene photos in
the public galleries and our search engine as we discover them. Additionally, we
hold the same high standards in printing images in that either internally or through
our fulfillment partners, images are reviewed for potentially inappropriate content.
Pornographic and obscene subject matter will not be printed and the appropriate
action taken, namely cancellation of the print order, cancellation of the users
account and/or notification of the enforcement authorities.
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5. USE OF POPULAR SEARCH TERMS
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The Pictavision supported consumer Web site(s) may establish search categories and
popular search terms to make it convenient for users to find applicable photos.
Users who intentionally misapply search terms to photos (for instance, adding ?Grand
Canyon? to a photo of a model who is clearly not at the Grand Canyon) may have their
accounts deactivated and their photos erased. With millions of photos on the site,
it is important that all users agree to apply reasonable descriptions of public
photos so that the search engine can yield meaningful results for other users.
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6. SECURITY; SITE ACCESS; SHARING OF IMAGES; RE-PRINT PERMISSION.
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Any content which you transfer to the Service will be stored on a secure server
located within the United States of America. Your account will also be protected
by a password selected by you. You may share images only with those to whom you
haven given access to your consumer Web site account. You are solely responsible
for the dissemination of your password and other security information relating to
your account, and are fully responsible for all activities which occur under your
password or account. Exclaim strongly recommends that you only disseminate this
information to individuals who you know and trust. For more information regarding
the security of your content, please see go to our Security Policy. If you share
access to your content with any other person, Exclaim shall have permission to send
prints to such person.
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7. AGE REQUIREMENT; LIMITATION ON USE.
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You must be at least thirteen (13) years of age to be a member of the consumer service(s).
In addition, you must possess a valid credit card. If you are under the age of eighteen
(18), the credit card must belong to your parent or legal guardian. Unless you have
registered as a Professional Member, you may use the service only for personal,
non-commercial purposes.
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8. PRIVACY.
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When you subscribe to the Service, it is necessary for you to provide us with certain
personal information, such as your name, e-mail address and mailing address. We
protect and use this information as set forth in our Privacy
Policy. As disclosed in Exclaim’s Privacy Policy,
we may disclose to third parties certain aggregate information contained in your
Registration Data or related data, provided that, such information will NOT include
personally identifying information, except as specifically authorized by you or
in the good faith belief that such action is reasonably necessary to comply with
the law, legal process, to enforce the TOS, or under any of the other circumstances
set forth in our Privacy Policy, as may be amended from
time to time.
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9. LINKS TO THIRD-PARTY SITES.
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Exclaim may provide links to other sites on the Internet which may be of interest
to you. Exclaim does not control the content which may be on or available through
these sites, and assumes no liability relating to such sites. The presence of such
a link does not imply endorsement of those sites or association of those sites with
Exclaim or any of its properties. It is up to each member to become familiar with
these sites and their privacy and security policies.
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10. THIRD-PARTY SOFTWARE, GOODS AND SERVICES.
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Under certain circumstances, Exclaim may make available to its members software
products and other goods and services that have been developed by others. As a condition
to using those products, the member must agree to be bound by the terms and conditions
imposed by the producer of the software, goods and services, including license and
warranty terms and conditions. Such agreements will be between the member and the
software producer. Exclaim DOES NOT GUARANTEE OR WARRANT THE PERFORMANCE OF ANY
SUCH SOFTWARE PRODUCT, GOODS OR SERVICES OBTAINED OR ADVERTISED THROUGH EXCLAIM
OR ANY OF THE RELATED WEB, OR THAT ANY SOFTWARE PRODUCT WILL BE FREE FROM CONTAMINATING
OR DESTRUCTIVE CODE, SUCH AS VIRUSES, WORMS OR TROJAN HORSES.
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11. LICENSE GRANT TO EXCLAIM.
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Exclaim does not claim any ownership in the photos, sound recordings, videos or
other media created or uploaded by you or any other user ("Media"). Consequently,
Exclaim will not license, resell, or otherwise distribute Media to third parties.
Unless otherwise indicated, by uploading Media to any public album within the Service,
you grant Exclaim a nonexclusive, royalty-free license to publish, distribute and
display the Media, without limitation, anywhere within the Service itself and within
email communications promoting the Service. This license shall be in effect during
all times that relevant Media is stored by you in public areas of the consumer Web
site. This license shall NOT apply to Media placed in private albums.
Furthermore, you represent and warrant that you own or otherwise control all of
the rights to the Media that you post; that you have received all proper permissions
and/or releases relative to all media that you post; that use of the Media you store
in any public album does not violate these Terms of Service and will not cause injury
to any person or entity; and that you will indemnify Exclaim for all claims resulting
from Media you supply. Exclaim has the right but not the obligation to monitor and
edit or remove any activity or Media. You understand and agree that Exclaim takes
no responsibility and assumes no liability for any Media posted by you or any third
party.
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12. INDEMNIFICATION.
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You agree to defend, indemnify, and hold harmless Exclaim and its subsidiary and
other affiliated companies, and their employees, officers, directors, contractors,
agents, licensors and suppliers, from all liabilities, losses, damages, claims,
costs and expenses, including reasonable attorney's fees, that arise from (i) use
or misuse of the Service(s) or any person to whom you have granted access to the
Service(s), (ii) your violation of any of these Terms of Service, or (iii) any other
activity related to your account (including negligent or wrongful conduct). Exclaim
reserves the right, at its own expense, to assume the exclusive defense and control
of any matter otherwise subject to defense by you, in which event you will cooperate
with Exclaim and its counsel in the conduct of such defense.
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13. DISCLAIMER OF WARRANTIES.
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THE SERVICE, AS WELL AS ALL CONTENT, MATERIALS, INFORMATION, SOFTWARE, INFORMATION
AND PRODUCTS INCLUDED IN OR AVAILABLE THROUGH Exclaim’s consumer Web site and mobile
services ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT
PERMITTED BY LAW, Exclaim EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND
RELATING THERETO, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
Exclaim, ITS SUBSIDIARIES, AFFILIATES AND LICENSORS, DO NOT WARRANT THAT THE SERVICE
WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT ITS SITE and SERVICES
WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SERVICE(S)
IS SOLELY AT YOUR RISK. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF
CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU.
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14. LIMITATION OF LIABILITY.
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UNDER NO CIRCUMSTANCES SHALL Exclaim, ITS SUBSIDIARIES AND AFFILIATED COMPANIES,
OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL,
OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, OR LOSS OF
USE, DATA OR OTHER INTANGIBLES) THAT RESULT FROM THE USE OF, OR INABILITY TO USE,
THE SERVICE. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT,
TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF Exclaim HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW
THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, Exclaim’s LIABILITY
IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
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15. TERMINATION OF SERVICE.
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Exclaim, in its sole discretion, may terminate your password and use of the Service(s),
and remove and discard any Content within the Service(s), for any reason, including,
without limitation, expiration of the terms of your consumer Web site subscription,
lack of use of the Service for a specified period, or if Exclaim believes that you
have violated or acted inconsistently with the letter or spirit of these Terms of
Service. You agree that any termination of your access to the Service under any
provision of these Terms of Service may be effected at the sole discretion of Exclaim.
Exclaim may deactivate or delete your account and all related information and files
and/or bar any further access to such files or the Service at its sole discretion
without notice. You agree that Exclaim shall not be liable to you or any third-party
for any termination of your access to the Service.
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16. DISCONTINUING INACTIVE ACCOUNTS.
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Exclaim reserves the right to cancel the consumer Web site Service(s) or to discontinue
Web site accounts which have been inactive for more than 90 days.
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17. CHOICE OF LAW AND FORUM.
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These Terms of Service shall be governed by and construed in accordance with the
laws of the State of New Jersey, without regard to its conflicts of law rules. You
expressly agree that the exclusive jurisdiction for any claim or action arising
out of or relating to these Terms of Service or your use of the Service shall be
filed only in the state or federal courts located in the State of New Jersey, and
you further agree and submit to the exercise of personal jurisdiction of such courts
for the purpose of litigating any such claim or action. You agree that regardless
of any statute or law to the contrary, any claim or cause of action arising out
of or related to use of the Service or these Terms of Service must be filed within
one (1) year after such claim or cause of action arose or be forever barred.
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18. INTERNATIONAL USE; EXPORTS.
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Exclaim makes no representation that the Pictavision supported consumer Web site
service(s) will be available or appropriate for use in locations outside of the
United States. Those who choose to access the Service from locations outside the
United States do so at their own risk and are responsible for compliance with local
laws and regulations. Exclaim members are responsible for compliance with all United
States export laws and regulations when the member exports any materials provided
through the Service.
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19. SEVERABILITY AND INTEGRATION.
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Unless otherwise specified herein, this agreement constitutes the entire agreement
between you and Exclaim with respect to the Service(s) and supersedes all prior
or contemporaneous communications and proposals (whether oral, written, or electronic)
between you and Exclaim with regard to the Service. If any part of these Terms of
Service is held invalid or unenforceable, that portion shall be deemed to be substituted
with a valid, enforceable provision which most closely reflects the original intent
of the parties, and the remaining portions shall remain in full force and effect.
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