Terms & Conditions of Use
These TOU apply to your access to and use of any services provided by ShopPics .
These TOU contain provisions that govern how claims that you and ShopPics have against each other are resolved (see Section 15 — Dispute Resolution). These TOU also contain provisions requiring you to resolve certain disputes or claims relating to your use of the Services by binding arbitration, rather than in court. If you do not consent to such terms, you are not permitted to use the ShopPics Services.
A. GENERAL TERMS
1. Additional Policies
Subscription Services Terms
ShopPics respects the intellectual property rights of others and expects its users to do the same. To that end, all ShopPics users are subject to the Copyright Policy set forth in Section E below.
The ShopPics Services and all images, software, platforms, tools, graphics, data, text, code, the ShopPics Marks (as defined below) and other content and materials available on the Services (excluding User Content) and the selection and arrangement thereof (collectively, the "ShopPics Materials") are the property of ShopPics or its third party licensors and are protected by United States and international intellectual property laws.
You acknowledge that (i) all right, title and interest in and to the ShopPics Materials, including all patents, copyrights, trade secrets, trademarks and other proprietary rights embodied therein or associated therewith, are and will remain with ShopPics or its third party licensors; (ii) no right or interest in the ShopPics Materials is conveyed other than the limited licenses granted herein; (iii) the ShopPics Materials are protected by copyright and other intellectual property laws; and (iv) ShopPics asserts that the ShopPics Materials embody valuable confidential and secret information of ShopPics or its licensors, the development of which required the expenditure of considerable time and money.
3. ShopPics Marks
You acknowledge that "SHOPPICS", the ShopPics logo, the look and feel of the Services, and any other Product or Service names, logos or slogans of ShopPics contained in the Services are trademarks of ShopPics (collectively, the "ShopPics Marks") and may not be copied, imitated or used without the prior written permission of ShopPics. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners.
ShopPics may provide users with tools to download the ShopPics Marks via the Services. If you download or otherwise obtain the ShopPics Marks using such tools, ShopPics grants you a limited right to (i) use the ShopPics Marks for the sole purpose of referencing the Services and (ii) to use only those ShopPics Marks that are made available to you by ShopPics through such tools. Your use of any ShopPics Marks must be consistent with the size, dimensions, color and other characteristics of the ShopPics Marks and consistent with any other policies concerning the ShopPics Marks that we may post on the Site or otherwise make available through the Services from time to time. You may not (i) alter or change the appearance of the ShopPics Marks, (ii) use the ShopPics Marks in any manner that suggests ShopPics sponsors or endorses a product, service, promotion, contest, or (iii) use the ShopPics Marks for any other purpose deemed by ShopPics to be inappropriate. ShopPics has the right to revoke your right to use the ShopPics Marks at any time at our sole discretion.
You agree that you will not (i) modify or alter the ShopPics Materials; (ii) create derivative works of the ShopPics Materials; (iii) decompile, disassemble, decode or reverse engineer the ShopPics Materials, translate the ShopPics Materials or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the ShopPics Materials or reduce the ShopPics Materials by any other means to a human-perceivable form; or (iv) bypass, delete or disable any copy protection mechanisms or any security mechanisms in the ShopPics Materials.
Except as otherwise expressly permitted herein, you may not use the Services or the ShopPics Materials to engage in any of the following prohibited activities:
the collection, copying or distribution of any portion of the ShopPics Materials;
any resale, commercial use, commercial exploitation, distribution, public performance or public display of the Services or the ShopPics Materials;
modifying or otherwise making any derivative uses of the Services or the ShopPics Materials;
scraping or otherwise using any data mining, robots or similar data gathering or extraction methods on or in connection with the Services;
with the exception of Media made available by users for download, the downloading of any portion of the ShopPics Materials or any information contained therein; or
any use of the Services or the ShopPics Materials other than for their intended purposes.
Any use of the Services or of any ShopPics Materials other than as specifically authorized herein, without the express prior written permission of ShopPics, the applicable ShopPics user or the Content Owner, is strictly prohibited. Any such unauthorized use will result in the immediate termination of your rights under these TOU and will constitute a breach of the license granted herein.
You may create a text hyperlink to the Site, provided such link does not portray ShopPics or any of its Products or Services in a false, misleading, derogatory or otherwise defamatory manner. This limited right may be revoked by ShopPics at any time. You may not frame the Site or utilize framing techniques to enclose the Site, ShopPics Materials, ShopPics Marks or other proprietary information without ShopPics's express prior written consent.
As a part of the Services, we may provide you with access to and use of certain personalized pages and corresponding web addresses ("URLs") that you may customize. ShopPics does not guarantee the availability of any particular web page or URL and reserves the right, at any time and at our sole discretion, to reclaim, suspend, terminate and/or transfer any such web page or URL.
6. User Content
The Services may enable you to upload, post and transmit Photos and Videos to the Site or other portions of the Services (including to your user photo galleries) and also provide you with access to discussion forums, blogs and other interactive areas in which you or other users may post or transmit Photos, Videos, text, music, messages, information or other content or materials (collectively, including Media, the "User Content").
You retain all intellectual property rights in and to any User Content you post, upload or otherwise make available through the Services, including the copyright in and to your Media. ShopPics does not claim any ownership, right, title or interest in and to your User Content.
Notwithstanding the foregoing, by uploading and/or posting any User Content to the Site or otherwise by using the Services, you grant ShopPics a perpetual, nonexclusive and royalty-free right to use the User Content (and the user name that is submitted in connection with such User Content) as is reasonably necessary in order to enable ShopPics to provide the Services, including to display the User Content on the Services, to facilitate (at the Content Owner's direction) the license of Photos, or to process the sale of Products through the Services.
You represent and warrant that (i) you own or otherwise control all of the rights to the User Content that you post or transmit, or you otherwise have the right to post, use, display, distribute and reproduce such User Content and to grant the rights granted herein; (ii) the User Content you supply is accurate and not misleading; and (iii) the use and posting of the User Content you supply does not violate these TOU and will not violate any rights of or cause injury to any person or entity.
7. Acceptable Use; Disclaimer
You are solely responsible for the User Content that you post or transmit using the Services and you agree not to post, transmit or otherwise publish through the Services any of the following:
User Content that is unlawful, defamatory, obscene, pornographic, indecent, lewd, sexually suggestive, hateful, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable or harmful, including without limitation: Photos, Videos or other User Content containing nudity that would be unacceptable in a public museum where minors visit;
User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, endanger national security, or that would otherwise create liability or violate any local, state, national or international law;
User Content that may infringe or violate any patent, trademark, trade secret, copyright or other intellectual or other proprietary right of any party;
User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
unsolicited promotions, political campaigning, advertising or solicitations;
private information of any third party, including, without limitation: addresses, phone numbers, email addresses, social security numbers and credit card numbers;
viruses, corrupted data or other harmful, disruptive or destructive files; and
User Content that, in the sole judgment of ShopPics, is objectionable, harmful or which restricts or inhibits any other person from using or enjoying the Services, or which may expose ShopPics or its users to any harm or liability of any nature.
ShopPics reserves the right (but is not obligated) to (i) review or screen any User Content submitted to the Site or otherwise submitted through the Services; (ii) edit any User Content posted on the Services; and/or (iii) remove any User Content from the Services for any reason, at any time, without prior notice, at our sole discretion. ShopPics will have no liability or responsibility to users of the ShopPics Services or any other person or entity for performance or nonperformance of such activities. ShopPics's enforcement of the acceptable use provisions set forth in these TOU with respect to User Content in some instances does not constitute a waiver of our right to enforce such provisions in other instances involving similar User Content.
8. Your Account
9. Account Security
You are solely responsible for maintaining the confidentiality of the passwords associated with your account and for restricting access to your passwords and physical access to your computer while logged into the Services. You accept responsibility for all activities that occur under your user account.
User Content that you post, upload or otherwise make available via the Services may be accessed, used and downloaded by other ShopPics users. You understand and acknowledge that any User Content contained in public areas of the Services, including any user galleries or other portions of the Services, is accessible to the public and could be accessed, downloaded, indexed, archived, linked to and republished by others including, without limitation, appearing on other websites and in search engine results. ShopPics provides security options and settings for your content available in the settings section of your applicable user account (the "Account Settings"), including the ability for you to designate certain portions of your account as unlisted, private, hidden or password-protected.
We use commercially reasonable security measures to protect your account and User Content consistent with your Account Settings. We cannot, however, guarantee absolute security of your account, your User Content or the Registration Data we collect, and we cannot promise that our security measures will prevent third party "hackers" from illegally accessing the Services or their contents. ShopPics is not responsible or liable for any third party access to or use of the User Content you post or your Registration Data. You are encouraged to read, understand and use the security settings and mechanisms in your Account Settings to manage how your User Content is accessed and used by the public and other users of the Services. You agree to immediately notify ShopPics of any unauthorized use of your account or passwords or any other breach of security, and you accept all risks of unauthorized access to the Registration Data, User Content and any other information you provide to ShopPics.
10. Third Party Services
ShopPics may make third party content and services available on or through the Services ("Third Party Services") solely as a convenience to its users (for example, links to third party websites, software and other services). When you leave the ShopPics Services, you should be aware that these TOU and all other ShopPics policies no longer govern your use of such websites and services or any content contained thereon.
ShopPics does not imply affiliation, approval, or control of any Third Party Services by making such Third Party Services available via the ShopPics Services. ShopPics makes no claim or representation regarding, and accepts no responsibility for, the quality, accuracy, nature, ownership or reliability of Third Party Services. YOUR USE OF ANY SUCH THIRD PARTY SERVICES IS SOLELY AT YOUR OWN RISK AND SUBJECT TO THE APPLICABLE TERMS AND CONDITIONS AND PRIVACY POLICIES APPLICABLE TO SUCH THIRD PARTY SERVICES.
11. Advertisements and Promotions
The Services may contain third party advertisements and promotions generated or posted by ShopPics users, ShopPics Vendors or other third party service providers.
Your business dealings or interactions with any third parties, including the ShopPics users or ShopPics Vendors, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. ShopPics does not endorse, approve, or control any such products, services, advertising or promotions posted to the Services by its users or the ShopPics Vendors. ShopPics is not responsible or liable for any loss or damage of any kind incurred as the result of your direct dealings with ShopPics users or a ShopPics Vendor or otherwise resulting from the presence of advertisements for third party products and services included on the Services.
12. DISCLAIMER OF WARRANTIES
THE SITE, SERVICES, THE SHOPPICS MATERIALS, AND THE PRODUCTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, SHOPPICS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT AS TO THE SITE, THE SERVICES, THE SHOPPICS MATERIALS, AND THE PRODUCTS.
SHOPPICS DOES NOT REPRESENT OR WARRANT THAT THE SHOPPICS MATERIALS OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SERVICES, ITS SERVERS OR EMAIL SENT FROM SHOPPICS OR THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SHOPPICS IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT, PHOTOS OR VIDEOS. SHOPPICS ALSO MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY, RELIABILITY OR SECURITY OF THE SERVICES AND WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR ANY MODIFICATION, SUSPENSION, UNAVAILABILITY, OR DISCONTINUANCE OF THE SERVICES OR THE PRODUCTS PROVIDED THEREON.
13. LIMITATION OF LIABILITY
IN NO EVENT WILL SHOPPICS OR ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE OR VIEW THE SITE, THE SERVICES, THE PRODUCTS, THE USER CONTENT OR THE SHOPPICS MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, INCLUDING ANY DAMAGES CAUSED BY OR RESULTING FROM YOUR RELIANCE ON ANY INFORMATION OBTAINED FROM SHOPPICS, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY TERMINATION, SUSPENSION OR OTHER FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SHOPPICS'S RECORDS, PROGRAMS OR SERVICES.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF SHOPPICS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE, THE SERVICES, THE PRODUCTS, THE USER CONTENT OR THE SHOPPICS MATERIALS, EXCEED COMPENSATION YOU PAY, IF ANY, TO SHOPPICS FOR ACCESS TO OR USE OF THE SITE OR THE SERVICES OR FOR THE PURCHASE OF PRODUCTS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree to defend, indemnify and hold harmless ShopPics and its affiliates and subsidiaries (collectively, the "Indemnified Parties"), and the Indemnified Parties' independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys' fees) arising out of or related to any User Content you post or otherwise transmit on or through the Services, your use of or inability to use the Services, the User Content, the ShopPics Materials or the Products, or the licensing of your Media to third parties through the Services, including any actual or threatened suit, demand or claim made against any of the Indemnified Parties and/or their independent contractors, service providers, employees, directors or consultants, arising out of or relating to your User Content, your conduct, your violation of these TOU or your violation of the rights of any third party.
15. Dispute Resolution
Your use of the Services is subject to all applicable local, state, national and international laws and regulations. These TOU and your use of the Services will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without regard to its conflict of law provisions.
Agreement to Arbitrate & Waiver of Representative Actions
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH SHOPPICS AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. IF YOU DO NOT CONSENT TO THE TERMS OF THIS SECTION 15, YOU ARE NOT PERMITTED TO USE THE SHOPPICS SERVICES.
The arbitrator will not be bound by rulings in prior arbitrations involving different ShopPics users but is bound by rulings in prior arbitrations involving the same ShopPics user to the extent required by applicable law. The arbitrator's award will be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
YOU AND SHOPPICS AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND SHOPPICS AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER SHOPPICS USERS.
Unless you and ShopPics agree otherwise, in the event that a court decides that any part of this Section 15 is invalid or unenforceable, you agree that any claim or dispute that has arisen or may arise between you and ShopPics must be resolved exclusively by a state or federal court located in Santa Clara County, California. The remainder of the TOU will continue to apply. You and ShopPics agree to submit to the personal jurisdiction of the courts located within Santa Clara County, California for the purpose of litigating all such claims or disputes.
We welcome feedback from our users regarding ideas and suggestions for improvements to the Site, Services and Products. ShopPics will be entitled to use any such feedback without restriction, even if you designate such feedback as confidential. You hereby grant ShopPics a royalty-free, sublicensable, transferable, perpetual, irrevocable license in and to any feedback to use in any matter related to the operation of our business.
These TOU are binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Notwithstanding the foregoing, you may not assign your rights under these TOU without ShopPics's prior written consent. ShopPics will be permitted to assign its rights under these TOU at its sole discretion.
18. International Users
ShopPics is located in the State of Virginia in the United States of America. If you access the Services from a country other than the United States, you agree that your transactions with ShopPics occur in the United States. You are responsible for compliance with all applicable laws, rules and regulations applicable to your use of the Services.
If any provision of these TOU is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these TOU will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the parties' intent.
21. Questions or Comments
ShopPics is committed to keeping our users happy and satisfied with their use of the Services. If you have any questions, concerns, complaints or comments in any way related to your use of the Services, please contact us at admin@ShopPics.com.
22. Backup Policy
YOU ARE SOLELY RESPONSIBLE FOR CREATING AND MAINTAINING BACKUP COPIES OF ANY USER CONTENT YOU UPLOAD, POST OR MAKE AVAILABLE THROUGH THE SERVICES DURING ANY APPLICABLE SUBSCRIPTION TERM AT YOUR SOLE COST AND EXPENSE. YOU MAINTAIN RESPONSIBILITY AND LIABILITY FOR ANY LOSSES OR DAMAGES YOU INCUR FOR FAILURE TO MAINTAIN BACKUP COPIES OF YOUR USER CONTENT. SHOPPICS IS NOT LIABLE TO YOU FOR ANY DAMAGES OR LOSSES THAT RESULT FROM THE LOSS OR BREACH OF YOUR USER CONTENT IN CONNECTION WITH YOUR USE OF THE SHOPPICS SERVICES.
Please note that when User Content or other files are deleted (or your account is cancelled), those files will be deleted as soon as reasonable pursuant to ShopPics's data destruction policies and cannot be recovered by ShopPics or any third party vendor following deletion (including Amazon S3 if you have subscribed to a ShopPics Vault account).
23. Use of User Information
24. Independent Contractors
Use of the ShopPics Subscription Services does not create a partnership, agency, joint venture or any employee-employer relationship between you and ShopPics. At all times the relationship between you and ShopPics will be that of independent contractors. You are responsible for all state, local, federal or other taxes that you are obligated to pay in connection with your use of the Subscription Services