May 2, 2008
Photobucket, Inc. ("datpics" or "we") operates datpics.com (the "Site"), which is an image and video sharing service that allows Users (as defined in the following paragraph) to store images and videos and share them across the internet and create unique personal profiles online. datpics allows Users to upload images and videos and associate them with a unique URL to create online access to the images and videos for themselves and others, on the site and on other websites where a User posts the URL ("the quick link feature"). The services offered by datpics include the Site, image and video sharing (including the quick link feature), other features (for example, image editor, links to partner providers), and any other features, content, mobile services, datpics branded URLs or applications offered from time to time by datpics in connection with datpics's business (collectively, the "datpics Services") The datpics Services are hosted in the United States.
datpics may modify or amend this Agreement without notice at any time and such modification will be effective upon posting by datpics on the Site. Your continued use of the datpics Services after datpics posts a revised Agreement signifies your acceptance of the revised Agreement. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.
Please choose carefully the information you post on or through the datpics Services and that you make available directly or indirectly to other Users. Your datpics profile and any Content that you upload to datpics may not include any form of Prohibited Content, as outlined in Section 8 below. Despite this prohibition, information, materials, products or services provided by other datpics Users (for instance, in their profile or images/videos) may, in whole or in part, be unauthorized, impermissible or otherwise violate this Agreement, and datpics assumes no responsibility or liability for this material. If you become aware of misuse of the datpics Services by any person, please click on the "Report Offensive Material" link on the image view pages.
datpics reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including images or videos) by you, or to deny, restrict, suspend, or terminate your access to all or any part of the datpics Services at any time, for any or no reason, with or without prior notice or explanation, and without liability. datpics expressly reserves the right to remove any or all of your images, videos, account and profile and/or to deny, restrict, suspend, or terminate your access to all or any part of the datpics Services if datpics determines, in its sole discretion, that you have violated this Agreement or pose a threat to datpics and/or its Users.
1. Eligibility. Use of the datpics Services and/or registration to be a Member for the datpics Services ("Membership") is void where prohibited. By using the datpics Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 14 years of age or older; and (d) your use of the datpics Services does not violate any applicable law or regulation.
2. Term. This Agreement, and any posted revision to this Agreement, shall remain in full force and effect while you use the datpics Services. You may terminate your Membership at any time, for any reason, by following the instructions on the Member's Account Settings page. datpics may terminate your Membership at any time, without warning for any or no reason, with or without prior notice or explanation, and without liability. Even after Membership and/or your use of the datpics Services is terminated, this Agreement will remain in effect in its entirety.
3. Fees. You acknowledge that datpics reserves the right to charge for any portion of the datpics Services and to change its fees (if any) from time to time in its discretion. If datpics terminates your Membership because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of fees or payments (if any).
4. Password. When you sign up to become a Member, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another Member at any time or to disclose your password to any third party. You agree to notify datpics immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account.
5. Use by Users. The datpics Services are for the personal use of Users and may be used for promotional purposes as well, but direct commercial endeavors may only be used if they are specifically endorsed or authorized by datpics. datpics reserves the right to remove commercial content in its sole discretion. Illegal and/or unauthorized use of the datpics Services, including collecting usernames, user id numbers, and/or email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Site, or employing third-party promotional sites or software to promote profiles for money, is prohibited. Commercial advertisements, affiliate links, and other forms of unauthorized solicitation may be removed from images, videos and/or Member profiles without notice or explanation and may result in termination of Membership privileges. datpics reserves the right to take appropriate legal action for any illegal or unauthorized use of the datpics Services.
6. Proprietary Rights in Content on datpics.
6.1 datpics does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the datpics Services. By displaying or publishing ("posting") any Content on or through the datpics Services, you hereby grant to datpics and other users a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels. Content will be publicly available, and datpics and other Users may copy or display Content outside of the datpics Services through the quick link feature or through any other display mechanisms.
6.2 You represent and warrant that: (i) you own the Content posted by you on or through the datpics Services or otherwise have the right to grant the license set forth in this section, (ii) the posting and use of your Content on or through the datpics Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, and (iii) the posting of your Content on the Site does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the datpics Services.
6.3 The datpics Services contain Content of datpics ("datpics Content"). datpics Content is protected by copyright, trademark, patent, trade secret and other laws, and datpics owns and retains all rights in the datpics Content and the datpics Services. datpics hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the datpics Content (excluding any software code) solely for your personal use in connection with viewing the Site and using the datpics Services.
6.4 The datpics Services contain Content of Users and other datpics licensors. Except as provided within this Agreement, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the datpics Services.
6.5 datpics performs technical functions necessary to offer the datpics Services, including but not limited to transcoding and/or reformatting Content to allow its use throughout the datpics Services.
6.6 Although the Site and other datpics Services are normally available, there will be occasions when the Site or other datpics Services will be interrupted for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and equipment that are beyond the control of datpics. Also, although datpics will normally only delete Content that violates this Agreement, datpics reserves the right to delete any Content for any reason, without prior notice. Deleted content may be stored by datpics in order to comply with certain legal obligations and is not retrievable without a valid court order. Consequently, datpics encourages you to maintain your own backup of your Content. In other words, datpics is not a backup service. datpics will not be liable to you for any modification, suspension, or discontinuation of the datpics Services, or the loss of any Content.
7. Content Posted.
7.1 datpics may reject, refuse to post or delete any Content for any or no reason, including Content that in the sole judgment of datpics violates this Agreement or which may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity. datpics assumes no responsibility for monitoring the datpics Services for inappropriate Content or conduct. If at any time datpics chooses, in its sole discretion, to monitor the datpics Services, datpics nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
7.2 You are solely responsible for the Content that you post on or through any of the datpics Services, and any material or information that you transmit to other Users and for your interactions with other Users.
8. Content/Activity Prohibited. You must use the datpics Services in a manner consistent with any and all applicable laws and regulations. The following are examples of the kind of Content that is illegal or prohibited to post on or through the datpics Services. datpics reserves the right to investigate and take appropriate legal action against anyone who, in datpics's sole discretion, violates this provision, including without limitation, removing the offending Content from the datpics Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to, Content that, in the sole discretion of datpics:
8.1 is patently offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
8.2 harasses or advocates harassment of another person;
8.3 exploits people in a sexual or violent manner;
8.4 contains nudity, excessive violence, or offensive subject matter or contains a link to an adult website;
8.5 solicits personal information from anyone under 18;
8.6 publicly posts information that poses or creates a privacy or security risk to any person;
8.7 constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
8.8 constitutes or promotes an illegal or unauthorized copy of another person's copyrighted work;
8.9 involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
8.10 contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
8.11 furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
8.12 solicits passwords or personal identifying information for commercial or unlawful purposes from other Users;
8.13 involves commercial activities and/or sales without prior written consent from datpics such as contests, sweepstakes, barter, advertising, or pyramid schemes;
8.14 includes a photograph or video of another person that you have posted without that person's consent; or
8.15 violates the privacy rights, publicity rights, defamation rights, copyrights, trademark rights, contract rights or any other rights of any person.
The following are examples of the kind of activity that is illegal or prohibited on the Site and through the use of the datpics Services. datpics reserves the right to investigate and take appropriate legal action against anyone who, in datpics's sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to:
8.16 criminal or tortious activity, including child pornography or erotica, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, "pyramid scemes," Ponzi schemes, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
8.17 advertising to, or solicitation of, any User to buy or sell any products or services through the unauthorized or impermissible use of the datpics Services. You may not transmit any chain letters or junk email to other Users.
8.18 circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person in circumventing or modifying any security technology or software that is part of the datpics Services;
8.19 forging any TCP/IP packet header or any part of the header information in any posting, or in any way use the Site or datpics Services to send altered, deceptive, or false source-identifying information;
8.20 activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network;
8.21 interfering with the access of any User, host or network to the Site;
8.22 covering or obscuring the banner advertisements on your personal profile page, or any datpics page via HTML/CSS or any other means;
8.23 including any HTML, CSS or other coding on your personal profile page, including, without limitation, any hidden or otherwise surreptitiously contained code in the Content which is unrelated to the immediate aesthetic nature of the Content;
8.24 any automated use of the system, such as, but not limited to, using scripts to send images or videos;
8.25 interfering with, disrupting, or creating an undue burden on the datpics Services or the networks or services connected to the datpics Services;
8.26 impersonating or attempting to impersonate another User, person or entity;
8.27 using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account;
8.28 selling or otherwise transferring your profile;
8.29 using any information obtained from the datpics Services in order to harass, abuse, or harm another person or entity, or attempting to do the same;
8.30 displaying an unauthorized commercial advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity through the unauthorized or impermissible use of the datpics Services on behalf of that person;
8.31 deleting, or in any manner altering, the copyright, trademark, or other proprietary rights notices appearing on any Content except your own Content;
8.32 using any meta tags or other hidden text or metadata utilizing a datpics name, trademark, URL or product name without datpics's express written consent;
8.33 attempting to probe, scan or test the vulnerability of any datpics Service or breach any security or authentication measures;
8.34 collecting or store personal data about other users without their express permission;
8.35 impersonating or misrepresenting your affiliation with any person or entity, through pretexting or any other form of social engineering, or otherwise commiting fraud; or
8.36 using the datpics Services in a manner inconsistent with any and all applicable laws and regulations.
9. Member Disputes. You are solely responsible for your interactions with other Members. datpics reserves the right, but has no obligation, to resolve or arbitrate disputes between you and other Members.
10. Disclaimers. datpics is not responsible for and makes no warranties, express or implied, as to the Content or the accuracy and reliability of the Content posted on or through the datpics Services, whether caused by Users of the datpics Services or by any of the equipment or programming associated with or utilized in the datpics Services and such Content does not necessarily reflect the opinions or policies of datpics. Profiles and third-party applications created and posted by Users on the Site may contain links to other websites. datpics is not responsible for the content, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored or checked for accuracy or completeness by datpics. Inclusion of any linked website on the datpics Services does not imply approval or endorsement of the linked website by datpics. When you access these third-party sites, you do so at your own risk. datpics takes no responsibility for third-party advertisements or third-party applications that are posted on or through the datpics Services, nor does it take any responsibility for the goods or services provided by its advertisers. datpics is not responsible for the conduct, whether online or offline, of any User of the datpics Services. datpics assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User communication. datpics is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the datpics Services or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the datpics Services. Under no circumstances shall datpics be responsible for any loss or damage, including personal injury or death, resulting from use of the datpics Services, from any Content posted on or through the datpics Services, or from the conduct of any Users of the datpics Services, whether online or offline. The datpics Services are provided "AS-IS" and as available and datpics expressly disclaims any warranty of fitness for a particular purpose or non-infringement. datpics cannot guarantee and does not promise any specific results from use of the datpics Services.
13. Limitation on Liability. IN NO EVENT SHALL datpics BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE datpics SERVICES, EVEN IF datpics HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, datpics'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO datpics FOR THE datpics SERVICES DURING THE TERM OF MEMBERSHIP.
14. U.S. Export Controls. Software available in connection with the datpics Services (the "Software") is further subject to United States export controls. No Software may be downloaded from the datpics Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
15. Disputes. The Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of law provisions. You and datpics agree to submit to the exclusive jurisdiction of the courts located within the State of New York to resolve any dispute arising out of the Agreement or the datpics Services. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THIS AGREEMENT.
16. Indemnity. You agree to indemnify and hold datpics, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the datpics Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth in this Agreement and/or if any Content that you post on or through the datpics Services causes datpics to be liable to another.
17. Protecting Copyrights and Other Intellectual Property. datpics respects the intellectual property of others, and requires that our users do the same. You may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. datpics has the right to terminate the Membership of infringers. If you believe your work has been copied and posted on or through the datpics Services in a way that constitutes copyright infringement, please follow the procedures set forth in the Photobucket Copyright and IP Policy.
18. Other. This Agreement is accepted upon your use of the Site or any of the datpics Services and is further affirmed by you becoming a Member. This Agreement constitutes the entire agreement between you and datpics regarding the use of the datpics Services. The failure of datpics to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.