PIXORIAL TERMS OF USE
Effective January 01, 2009
Welcome to Pixorial!
The following additional terms and conditions apply.
1. Introduction
The terms, conditions, policies, and notices set forth in this document constitute the legal agreement (the "Agreement") that governs your use of the Pixorial website and all related services (together referred to as the "website" or the "Pixorial website"). Your access to and use of the website are expressly conditioned upon your acceptance of this Agreement in its entirety, without modification.
Please read the Agreement carefully.
2. Changes
Pixorial reserves the right to change the terms of this Agreement at any time, but agrees to put the last date we updated it at the top of the page. By continuing to use the website after the new date is posted, you are indicating your acceptance of any changes.
3. Incorporation of Guidelines
When using particular services or materials on this website, you shall be subject to any posted guidelines or rules applicable to such services or materials that may contain terms and conditions. All such guidelines or rules are hereby incorporated by reference into this Agreement.
4. Remedy
If you do not wish to be bound by this Agreement, please exit the website now.
5. Personal Use
The Pixorial website is only for your personal use. You may not use it for any business or commercial purpose.
6. Description of Services
Pixorial services include conversion, archival, video organization, video editing, video production and sharing. Services are further described on this website. Fees for the various services are described elsewhere on the website. You are solely responsible for providing, at your own expense, all equipment necessary to use the services, including a computer and modem; and your own Internet access (including payment of telephone service fees associated with such access).
Pixorial reserves the sole right to modify the website at any time with or without notice to you. We shall not be liable to you or any third party should we exercise such right. Modifications may include, but are not limited to, changes in the pricing structure, the addition or discontinuation of fee-based services, or changes to limitations on allowable file sizes. Any new features that augment or enhance the then-current services on this website shall also be subject to this Agreement.
You understand and agree that temporary interruptions of the services available through this website may occur as normal events. You further understand and agree that we have no control over third party networks you may access in the course of the use of this website, and therefore, delays and disruption of other network transmissions are completely beyond our control.
You understand and agree that the services available on this website are provided "AS IS" and that we assume no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings.
7. Registration Data and Privacy
In order to access some of the services on this website, you will require a separate account and password that can be obtained by completing our online registration form, which requests certain information and data ("Registration Data") and maintaining and updating your Registration Data as required. By registering, you agree that all information provided in the Registration Data is true and accurate and that you will maintain and update this information as required in order to keep it current, complete and accurate.
You also grant us the right to disclose to third parties certain Registration Data about you. The information we obtain through your use of this website, including your Registration Data, is subject to our Privacy Policy, which is specifically incorporated by reference into this Agreement.
8. Payment of Fees
If you subscribe to a service on this website that requires payment of a fee, you agree to pay all fees associated with such service. For all charges for services on this website, we will bill your credit card. Recurring charges are billed in advance of service. You agree to provide us with accurate and complete billing information, including valid credit card information, your name, address and telephone number, and to provide us with any changes in such information within 30 days of the change.
If, for any reason, your credit card company refuses to pay the amount billed for the service, you agree that we may, at our option, suspend or terminate your subscription to the service and require you to pay the overdue amount by other means acceptable to us. We may charge a fee for reinstatement of suspended or terminated accounts.
You agree that until your subscription to the service is terminated, you will continue to accrue charges for which you remain responsible, even if you do not use the service.
In the event legal action is necessary to collect on balances due, you agree to reimburse us for all expenses incurred to recover sums due, including attorney fees and other legal expenses.
9. Use of Services and Conduct on Website
Your use of the website is subject to all applicable laws and regulations, and you are solely responsible for the content of your media and your communications with and through the website. You agree that you will not mail, upload, share, post, or otherwise distribute or facilitate distribution of any content—including text, communications, software, images, sounds, data, or other information—that:
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Is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates our rules or policies;
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Victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
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Infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
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Constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as "spamming"), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
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Contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or
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Impersonates any person or entity, including any of our employees or representatives.
We neither endorse nor assume any liability for the content of any material mailed to us, uploaded or otherwise submitted by users of the website. We do not assume any obligation to pre-screen, monitor, or edit the content sent to us, posted to the website, or distributed by users of the website, however, we reserve the right to do so at our sole discretion. In addition, we and our agents have the right to remove any content that, in our judgment and sole discretion, does not comply with this Agreement or is otherwise illegal, harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such content. You hereby consent to such removal and waive any claim against us arising out of such removal of content. See "Use of Your Materials" below for a description of the procedures to be followed in the event that any party believes that content posted on this website infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party.
In addition, you may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Not all areas of the website may be available to you or other authorized users of the website. You shall not interfere with anyone else's use and enjoyment of the website or other similar services. Users who violate systems or network security may incur criminal or civil liability.
You agree that we may at any time, and at our sole discretion, terminate your membership without prior notice to you for violating any of the above provisions. In addition, you acknowledge that we will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations.
10. Third Party Sites and Information
This website may link you to other sites on the Internet or otherwise include references to information, documents, software, materials and/or services provided by other parties. These sites may contain information or material that some people may find inappropriate or offensive. These other sites and parties are not under our control, and you acknowledge that we are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites, nor are we responsible for errors or omissions in any references to other parties or their products and services. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association with, the site or party by us, or any warranty of any kind, either express or implied.
11. Intellectual Property Information
All contents of the Pixorial website are: Copyright (c) 2007-09 Pixorial All Rights Reserved.
The following are registered trademarks, trademarks or service marks of Pixorial: Pixorial™ and Enjoy Your Show™. Nothing in this Agreement grants you any right to use any trademark, service mark, logo, or the name of Pixorial.
12. User Submissions
When you submit materials to Pixorial, including without limitation, home movies and pictures, you grant to Pixorial a non-exclusive, royalty-free license to use, publish, copy modify, transmit, display and distribute your submissions for the sole purpose of delivering our service to you. In addition, you represent and warrant that such submissions comply with Section 9 of this Agreement and are not in violation of any copyright laws or other laws, and you agree to indemnify and hold Pixorial harmless in the event that they are.
13. Idea Submissions
Please do not submit confidential or proprietary information to us unless we have mutually agreed in writing otherwise. We are also unable to accept your unsolicited ideas or proposals, so please do not submit them to us in any circumstance. In the event that you ignore our policy and submit an idea for a product or service, you agree that it will automatically become the property of Pixorial and/or that Pixorial will have the right to use it without any compensation to you.
14. Intellectual Property Infringement
We respect the intellectual property of others, and we ask you to do the same. If you or any user of this website believes its copyright, trademark or other property rights have been infringed by a posting on this website, you or the user should send notification to our Designated Agent (as identified below) immediately. To be effective, the notification must include:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed'
2. Identification of the copyrighted work claimed to have been infringed;
3. Information reasonably sufficient to permit us to contact the complaining party, such as address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
4. Identification of the material that is claimed to be infringing or to be subject to infringing activity and that is to be removed and information reasonably sufficient to permit us to locate the materials;
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, agent, or the law; and
6. A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringing.
Pursuant to the Digital Millennium Copyright Act, 17 U.S.C. section 512 (c), our Designated Agent for Notice of claims of copyright infringement can be reached as indicated below. Service of repeat infringers of copyright or of users about whom repeat claims of copyright infringement are received will be terminated.
Designated Agent for Claimed Infringement:
Your acknowledge and agree that upon receipt of a notice of a claim of copyright infringement, we may immediately remove the identified materials from our website without liability to you or any other party and that the claims of the complaining party and the party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the Digital Millennium Copyright Act.
15. Disclaimer of Warranties
ALL MATERIALS AND SERVICES ON THIS WEBSITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE SERVICES AND MATERIALS WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES AND MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR MATERIALS WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM THE WEBSITE FROM US WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.
THIS WEBSITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. WE MAY MAKE CHANGES TO THE MATERIALS AND SERVICES AT THIS WEBSITE, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY PRODUCTS LISTED HEREIN, AT ANY TIME WITHOUT NOTICE. THE MATERIALS OR SERVICES AT THIS WEBSITE MAY BE OUT OF DATE, AND WE MAKE NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES.
THE USE OF THE SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THIS WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
16. Limitation of Liability
IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS WEBSITE OR OF ANY SITE REFERENCED OR LINKED TO FROM THIS WEBSITE.
FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THRID PARTY GOODS AND SERVICES OFFERED THROUGH THIS WEBSITE OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THIS WEBSITE, INCLUDING WITHOUT LIMITATION THE PROCESSING OF ORDERS.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
BY SUBMITTING PHYSICAL MEDIA AND MATERIAL TO PIXORIAL, YOU AGREE THAT THE LIABILITY OF PIXORIAL AND ITS AGENTS AND EMPLOYEES FOR ANY LOSSES OR DAMAGE OF ANY KIND OR NATURE TO YOUR FILM, VIDEOTAPE OR OTHER MATERIAL IS LIMITED TO THE COST OF REPLACING SUCH MATERIAL WITH BLANK MEDIA AND IS LIMITED TO $100.
Your exclusive remedy and our entire liability, if any, for any OTHER claims arising out of this Agreement and your use of this website shall be limited to the amount you paid us for the services on the website during the 3-month period before the act giving rise to the liability.
17. Indemnification
You agree to indemnify and hold harmless Pixorial and all of its respective officers, directors, owners, agents, employees, information providers, affiliates, licensors and licensees (collectively, "Indemnified Parties" from and against any and all liability and costs including, without limitation, attorneys' fees and costs, incurred by the Indemnified Parties in connection with any claim arising out of 1) any breach by you of the Agreement or the foregoing representations, warranties and covenants or (2) your use of the Pixorial website.
Upon a request by us, you agree to defend, indemnify, and hold us and the other Indemnified Parties harmless from all liabilities, claims, and expenses, including attorney's fees, that arise from your use or misuse of this website. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
18. Use of Website and Storage of Material
You acknowledge that we may establish general practices and limits concerning use of the services available on our website, including without limitation the maximum disk space that will be allotted or our servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the services in a given period of time. You acknowledge that we reserve the right to log off accounts which have not paid a subscription fee that are inactive for an extended period of time. You further acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
The accounts of our users operate on shared resources. Excessive use or abuse of these shared network resources by one user may have a negative impact on all other users. Misuse of network resources in a manner that impairs network performance, including excessive consumption of CPU time, memory, disk space, and session time, is prohibited and may result in termination of your account or limitation of your activities.
This website is not designed or intended to be used as a disaster recovery facility or as an emergency data storage facility. Although we take reasonable precautions to preserve and protect the material you upload to the website, you should not rely on the website as your only storage facility. You should preserve backup copies of any digital data, information or other materials that you have uploaded. You agree not to hold us for any damage to, any deletion of or any failure to store your files, data or Registration Data.
19. Security and Password
You are solely responsible for maintaining the confidentiality of your password and account and for any and all statements made and acts or omissions that occur through the use of your password and account, including any mail sent and any charges incurred. Therefore, you must take steps to ensure that others do not gain access to your password and account. Our personnel will never ask you for your password. You may not transfer or share your account with anyone, and we reserve the right to immediately terminate your account in the event of any unauthorized transfer or sharing thereof.
20. International Use
Although this website may be accessible worldwide, we make no representation that materials on this website are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this website from other locations do so on their own initiative and are responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with this website is void where prohibited.
21. Customer Satisfaction
Pixorial is committed to customer satisfaction. Pixorial Customer Service is accessible via email at customer_service@pixorial.com or by phone at (303) 557-0040. Pixorial Customer Service phone hours are from 9am to 5pm, Mountain time, Monday through Friday. For both phone and email support, Pixorial is committed to respond to customers within 1 business day.
22. Exchange Policy
Pixorial is committed to customer satisfaction. Customers who are not satisfied with the quality of an order may contact Pixorial within 30 days of the receipt of the order, at customer_service@pixorial.com. Pixorial will make every attempt to re-process the order to meet customer satisfaction. Pixorial will email an Exchange Confirmation Form that must be completed by the customer in order to re-process orders. Conversions will be re-processed if conversion quality is inferior. Pixorial cannot be held responsible, however, if original media is of inferior quality. DVDs will be replaced if defective. Customers are responsible for sending the defective DVD to Pixorial within 30 days for replacement. Pixorial products, including but not limited to conversions, downloads and DVD shows, are strictly customized. Therefore, Pixorial is unable to refund purchases.
23. Refund Policy
Custom orders are non-refundable. Please see Exchange Policy for additional details.
24. Policy for Media Received Blank or Damaged
Pixorial will return tapes that are received blank or damaged. Pixorial cannot process damaged media at this time. Customers will not be charged a conversion fee. However, customers must pay shipping fees.
25. Cancellation Policy
Pixorial customers who wish to cancel their service, may do so by canceling their service in the Account Update section after logging on to www.pixorial.com. Monthly archival fees cannot be pro-rated. Customer cancellation requests will be processed immediately, and the account will be de-activated on the last day of the current month's archival cycle. For customers who violate any of the Terms of Service, permission to use the Service will be terminated. Pixorial reserves the right to cancel the service or to discontinue accounts that have been inactive. Pixorial may do so by sending an e-mail detailing the impending cancellation of the service.
26. Termination of Use
You agree that we may, in our sole discretion, terminate or suspend your access to all or part of the website with or without notice and for any reason, including, without limitation, breach of these Terms of Use. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating your relationship and may be referred to appropriate law enforcement authorities.
Upon termination or suspension, regardless of the reasons therefore, your right to use the services available on this website immediately ceases, and you acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or this website. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection therewith. Your liability for any unpaid fees, shall survive any termination.
27. Jurisdiction and Governing Law
The Pixorial website is controlled and operated by Pixorial from our offices within the State of Colorado, United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of Colorado, by accessing this website both of us agree that the statutes and laws of the State of Colorado, without regard to its conflicts of laws principles, will apply to all matters relating to the use of this website and the purchase of products and services available through this website. In addition, each of us agrees and hereby submits to the exclusive personal jurisdiction and venue of the Denver County Court or the United States District Court for the District of Colorado with respect to such matters.
28. Entire Agreement
This Agreement constitutes the entire agreement and understanding between us concerning the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect thereto. If any part of these Terms of Use is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
