Terms & Conditions

Revised: 01/11/2021

PICPIX INC

TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.

This Terms of Service (the “Agreement”) is by and between PICPIX INC., a Rhode Island limited liability company, whose principal place of business is 24 Corliss St, Providence, Rhode Island 02904 (“Vendor”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”). Customer’s use of and Vendor’s provision of Vendor’s System (as defined below in Section 1.3) are governed by this Agreement.

EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT.

•   DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement.
  • “Customer Data” means data in electronic form input or collected through the System by or from Customer, including without limitation by Customer’s Users.
  • “Documentation” means Vendor’s standard support materials related to the use of the System, available at http://picpicsocial/support/, and any other support materials provided by Vendor to Customer from time to time.
  • “System” means Vendor’s PicPic Social software platform and all hardware and physical structures provided therewith, as applicable, by Vendor.
  • “Term” is defined in Section 11.1 below.
  • “User” means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, on Customer’s premises or at Customer’s events or functions or as otherwise made available by Customer, in any case, whether such use is authorized by Customer or not.
•   THE SYSTEM.
  • Use of the System. Subject to and conditioned on Customer’s payment of the Subscription Fee and Customer’s and its User’s compliance with the terms and conditions of this Agreement, during the Term, Customer may access and use the System pursuant to: (a) the terms of any outstanding plan purchased by the Customer (each, a “Plan”), including such features and functions as the applicable Plan provides; and (b) the terms and conditions set forth in this Agreement, including without limitation the responsibilities and restrictions set forth in Section 5 (which responsibilities and restrictions may be updated from time to time upon written notice to Customer).
  • Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the System.
  • System Revisions. Vendor may revise System features and functions at any time, including without limitation by removing such features and functions. If any such revision to the System materially reduces features or functionality provided pursuant to a Plan, Customer may within 30 days of notice of the revision terminate such Plan, without cause, or terminate this Agreement without cause if such Plan is the only one outstanding.
•   SYSTEM FEES.
  • Subscription Fees.  Customer shall pay Vendor the fee set forth in the applicable Plan (the “Subscription Fee”) and shall pay Vendor the Subscription Fee in advance for each Term.   All Subscription Fees are irrevocable and non-refundable.  Vendor may change the Subscription Fee and institute new charges as any time, upon thirty (30) days’ notice to Customer.  Late payments will be subject to a service charge of  the lesser of one and one-half percent (1.5%) per month, or the maximum charge permitted by law.  All Subscription Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments.  Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than taxes imposed on Vendor’s income.
  • Non-Payment.  Vendor may suspend Customer’s and its Users’ access to and use of the System for which payment is overdue.  Customer agrees Vendor will not be liable to Customer nor to any third party for suspension of access to or use of the System for non-payment.
•   CUSTOMER DATA & PRIVACY.
  • Use of Customer Data. Unless it receives Customer’s prior written consent, Vendor: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the System; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Vendor’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement.  Notwithstanding the foregoing, Vendor may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Vendor shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
  • Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Vendor offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
  • Data Accuracy. Vendor shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.
  • Data Deletion. Vendor may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
  • Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Vendor’s computers or other media, any data (“Excluded Data”) regulated pursuant to the Child Online Privacy Protection Act, Gramm-Leach-Bliley Act or Health Insurance Portability and Accountability Act (the “Excluded Data Laws”). CUSTOMER RECOGNIZES AND AGREES THAT: (a) VENDOR HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) VENDOR’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
  • Aggregate & Anonymized Data. Notwithstanding this Article 4, Vendor may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion.  “Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users.
•   CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
  • Acceptable Use. Customer shall not, and shall not permit its Users to: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System; or (e) access or use the System in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party (including without limitation by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any User), or that violates applicable law (including without limitation export laws and anti-spamming laws).  In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Vendor may suspend Customer’s access to and use of the System without advanced notice, in addition to such other remedies as Vendor may have. This Agreement does not require that Vendor take any action against Customer or any User or other third party for violating this Section 5.1 or this Agreement, but Vendor is free to take any such action it sees fit.
  • Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Vendor immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.
  • Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection or use of Customer Data.
  • Users & System Access. Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.
•   IP & FEEDBACK.
  • IP Rights to the System. Vendor retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components. Customer recognizes that the System and its components are protected by copyright and other laws.
  • Limited IP License.  Customer grants Vendor a revocable, limited, non-exclusive, royalty-free license during the Term to use, at Customer’s request and for the purpose of branding the System or portions thereof, certain Customer trademarks, service marks and other intellectual property provided from time to time by Customer to Vendor.
  • Feedback. Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Vendor, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. “Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Vendor’s products or services.
•   CONFIDENTIAL INFORMATION. “Confidential Information” refers to the following items Vendor discloses to Customer: (a) any document Vendor marks “Confidential”; (b) any information Vendor orally designates as “Confidential” at the time of disclosure, provided Vendor confirms such designation in writing within 10 business days; and (c) any other nonpublic, sensitive information disclosed by Vendor, whether or not marked or designated “Confidential.” Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer.
  • Nondisclosure; Termination & Return. Customer agrees to preserve the confidentiality of such Confidential Information and not to disclose such Confidential Information during the Term and for a period of two (2) years thereafter. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Vendor of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Vendor prompt notice of any such legal or governmental demand and reasonably cooperate with Vendor in any effort to seek a protective order or otherwise to contest such required disclosure, at Vendor’s expense.  Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Vendor or certify, in writing, the destruction thereof.
  • Injunction. Customer agrees that breach of this Article 7 would cause Vendor irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Vendor will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
  • Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Vendor will retain all right, title, and interest in and to all Confidential Information.
•   REPRESENTATIONS & WARRANTIES.
  • From Vendor. Vendor represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Vendor’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Vendor. In the event of a breach of the warranty in this Section 8.1, Vendor, at its own expense, will promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it non-infringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Vendor’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the System.
  • From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law. Customer further represents, warrants and covenants to Vendor that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as input or collected through the System by or from Customer, including without limitation by Customer’s Users, in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable Law.
  • Warranty Disclaimers. Except to the extent set forth in Section 8.1 above, CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) VENDOR HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; (c) THE SYSTEM’S PERFORMANCE IS SUBJECT TO THE CUSTOMER AND USERS USING PROPER HARDWARE AND HAVING PROPER INTERNET SPEEDS (INCLUDING WITHOUT LIMITATION INTERNET ROUTERS WITH AT LEAST 5GHZ FUNCTIONALITY); (d) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE; (e) CUSTOMER ACKNOWLEDGES THAT VENDOR USES CERTAIN THIRD PARTY SERVICE PROVIDERS TO PROVIDE PORTIONS OF THE SYSTEM (“THIRD PARTY SERVICES”), AND VENDOR MAKES NO REPRESENTATION OR WARRANTY THAT SUCH THIRD PARTY SERVICES OR RELATED PORTIONS OF THE SYSTEM WILL BE FAULT-FREE, AVAILABLE CONTINUOUSLY, OR PERFORM WITHOUT INTERRUPTION OR ERROR; and (f) VENDOR ASSUMES NO RESPONSIBILITY FOR THE DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CUSTOMER DATA.  VENDOR FURTHER DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY INTERRUPTION, MALFUNCTIONING, IMPOSSIBILITY OF ACCESS OR POOR USE CONDITIONS OF THE SYSTEM, INCLUDING WITHOUT LIMITATION ALL THIRD PARTY SERVICES, DUE TO INAPPROPRIATE EQUIPMENT, INTERNET SERVICE DISTURBANCES, SATURATION OF THE INTERNET NETWORK OR FOR ANY OTHER REASON.
•   INDEMNIFICATION. Customer shall defend, indemnify, and hold harmless Vendor and the Vendor Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer’s employees or agents, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System at the request of Customer or through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the System by Customer or through Customer’s account harasses, defames, or defrauds a third party or violates any applicable law, including without limitation the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Vendor’s negligence. Customer’s obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. The “Vendor Associates” are Vendor’s managers, members, officers, directors, parents, subsidiaries, agents, successors, and assigns.
•   LIMITATION OF LIABILITY.
  • Dollar Cap. VENDOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY CUSTOMER TO VENDOR UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING 3 MONTH PERIOD.
  • Limitation of Liability; Exclusion of Consequential Damages. IN NO EVENT WILL VENDOR BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT.
  • Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Article 10 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, members, managers, directors, officers, employees, consultants, and other representatives.
•   Term & Termination.
  • Term. The term of this Agreement (the “Initial Term”) shall commence on the Effective Date and continue for the period set forth in the Plan or, if none, for a period of time agreed upon at the time Customer subscribes to the System. Thereafter, unless the Term is otherwise limited to a single event, the Term will renew for successive periods of the same length as the Initial Term (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either party refuses such renewal by written notice 30 or more days before the renewal date.
  • Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice, effective in 30 days unless the other party first cures such breach.
  • Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
• MISCELLANEOUS.
  • Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Vendor employee or contractor will be an employee of Customer.
  • Notices. Vendor may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to support@picpicsocial.com, and such notices will be deemed received 72 hours after they are sent.
  • Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
  • Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Vendor’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
  • Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
  • No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
  • Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of Rhode Island, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Providence County, Rhode Island.
  • Conflicts. In the event of any conflict between this Agreement and any Vendor policy posted online, the terms of this Agreement will govern.
  • Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
  • Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Vendor or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
  • Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
  • Amendment. Vendor may amend this Agreement from time to time by posting an amended version at its Website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Vendor written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 11, Term & Termination). Customer’s continued use of the System following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 12.12, Vendor may revise any other Vendor policy  at any time by posting a new version to its website, and such new version will become effective on the date it is posted.