Pixorial Terms of Use

Effective November 26, 2013

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE YOU USE OUR PIXORIAL MOBILE APPLICATIONS OR OUR WEBSITES LOCATED AT DOMAIN PIXORIAL.COM.  BY DOWNLOADING OR USING OUR APPLICATIONS OR USING THE SERVICES OFFERED ON OUR SITES, YOU ARE AGREEING THAT YOU WILL BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO ALL OF THE TERMS, DO NOT SELECT THE “I ACCEPT” BOX AND DO NOT DOWNLOAD OR USE OUR APPLICATIONS OR THE SERVICES ON OUR SITES.

  1. Generally.

      These Terms of Use (the “Terms”) govern your use of all services provided by Pixorial, Inc. (“Pixorial,” “we,” or “us”), including, without limitation, the Pixorial mobile applications (the “Pixorial Apps”), and the websites located at domain pixorial.com (the “Sites”) (collectively referred to as the “Services”).  BY ACCESSING, BROWSING, OR OTHERWISE USING THE APPS OR SITES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THESE TERMS OF USE.

  2. Description of Services.

    1. Pixorial provides an online video & photo storage, hosting, organization, editing, collaboration, production and sharing service. In addition, our Albums functionality provides a platform for our users (“Members”) to create and join Shared Albums with other Members (each, a “Shared Album”) and contribute and/or use the video, photo and related content (“Member Content”) which you and other Members of that Shared Album contribute to it.
    2. Members (including you) can contribute their Member Content into a Shared Album and then invite other Members to join the Shared Album. Any Member of a Shared Album will have the ability to contribute her video, photo and related content to the Shared Album, as well as use all of the Pixorial tools on all the Member Content in that Shared Album, subject to these Terms.
    3. Pixorial reserves the sole right to modify the Services at any time with or without notice to you. Modifications may include, but are not limited to, changes in the pricing structure, the modification, addition or discontinuation of a Service, or changes to limitations on allowable file sizes. Any new Services and any new features we provide that augment or enhance the then-current Services shall also be subject to these Terms.
    4. You are solely responsible for providing all equipment necessary to use the Services, including, without limitation, a video or photo recorder, computer and Internet access. You are also solely responsible for any third party fees associated with your use of the Services, including, without limitation, Internet, mobile phone, data and text messaging fees. Fees for our Services are described on the Site and may change from time to time.

  3. Changes.

    1. Pixorial reserves the right to change these Terms at any time without further notice. If we do this, we will post the changes on this page and will indicate at the top of this page the date they will be effective.
    2. By continuing to use the Services after any changes, you are indicating your acceptance of such changes. If you do not agree to any these Terms, do not use or access the Pixorial Apps, the Sites or the Services. It is your responsibility to regularly check the Sites for, and review, the most recent applicable Terms.
    3. Please note that the terms applicable to another Member’s use of your Member Content will be those that are in effect at the time such other Member accesses it. In addition, notwithstanding any changes to these Terms or your removal of your Member Content from a Shared Album, you acknowledge and agree that copies of your Member Content may have been downloaded by another Member from the Shared Album prior to such changes or removal, in which event, such Member’s use thereof shall continue to be governed by the version of these Terms that was in effect at the time of download.

  4. Additional Rules.

      From time to time, we may post additional rules or guidelines (“Rules”) on the Sites that apply to specific portions of the Services or functionality made available on the Sites. You are subject to and agree to comply with these Rules in addition to these Terms. In the event that the Rules and these Terms conflict in anyway, you agree that whichever term is most protective of Pixorial shall apply. All Rules are incorporated by reference into these Terms.

  5. Member Accounts.

    1. To access and use some of the Services, you will need to create an account (“Member Account”) by providing certain information and data (“Registration Data”) and creating a password. You agree to provide Registration Data that is true and accurate and up to date. You may never use another Member’s password or Member Account without permission.
    2. Your Registration Data, along with any other information collected from you or about you in connection with your use of the service or the Site are governed by the Pixorial privacy Policy, which is available at http://pixorial.com/privacy-policy/ (the “Privacy Policy”) and is incorporated herein by reference.
    3. Unless otherwise authorized by Pixorial in writing, the Services are offered for personal use and you may not use the Services for any business or commercial purpose.  Further, except where you are the owner of the Member Content, you agree that any license granted to you in such Member Content as a Member of a Shared Album in which the Member Content is made available is solely for your personal use and not for business or commercial purposes.
    4. While hosting Member Content is part of the Services, and Pixorial does offer third party storage of Member Content, the Services are not a secure or guaranteed archive. Pixorial shall have no liability to you or any other person for loss, damage, or destruction to your Member Content, whether accidental or otherwise, and you should maintain independent archival and backup copies.

  6. Pixorial IP.

    1. Ownership. Excluding the Member Content, everything else on the Sites (the “Pixorial Material”) is the property of Pixorial or used with permission or under license from a third party (each an “Owner”) and is protected under copyright, trademark and other intellectual property and proprietary rights laws. The following are registered trademarks, trademarks or service marks of Pixorial: Pixorial®, What’s Your Story?®, and Enjoy Your Show®. Unless you obtain Pixorial’s express written consent, you may not: (i) modify, copy, distribute, frame, reproduce, republish, download, display, post, transmit, or sell, license, or lease for commercial purposes, any Pixorial Material in any form or by any means, in whole or in part; (ii) use any tradename, trademark, or brand name of Pixorial in metatags, keywords and/or hidden text, (iii) use the Sites, the Pixorial Material, and/or any portion thereof, in any manner that may give a false or misleading impression, attribution or statement as to your relationship with Pixorial or any Owner; or (iv) use Pixorial Material, the Pixorial Apps, the Services or the Sites for any unlawful purpose.
    2. License to You. Upon approval of your Member Account, Pixorial grants to you a limited license to access and use the Pixorial Apps, Sites, Services and the Pixorial Material and Member Content in a Shared Album you are a Member of for your personal, non-commercial use, provided that you comply at all times with these Terms. Nothing in the Pixorial Apps or on the Sites shall be construed as conferring any license whether by estoppel, implication or otherwise. Notwithstanding anything herein to the contrary, Pixorial may revoke any of the foregoing rights and/or your access to the Pixorial Apps or Sites, or any part thereof, including the blocking of your IP Address, at any time without prior notice. Any use of the Pixorial Apps, Sites, Services or the Pixorial Material or Member Content other than as specifically authorized herein, without the prior written permission of Pixorial, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes.

  7. Content.

    1. License to Pixorial. By contributing Member Content to a Shared Album, you hereby grant to Pixorial and its affiliates a non-exclusive, worldwide, perpetual, irrevocable, fully-paid and royalty-free, sub-licensable (with the right to sublicense through multiple tiers of licensees) and transferable license to use, modify, reproduce, create derivative works of, print, sublicense, distribute, publicly display, publicly perform, and otherwise exploit your Member Content and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right, including moral rights, that may exist in it, for the purpose of providing the Services, including, without limitation, making it available to other Members of the applicable Shared Album and to use your Member Content to promote or improve our service.  Pixorial’s promotional use is limited to Member Content contributed to a Shared Album that can be accessed by other users of the service. You acknowledge and agree that any Member Content you submit is stored on our servers and/or system solely at your direction subject to the obligations imposed upon Pixorial as an online service provider under Section 512(c) and/or 512(d) of the Digital Millennium Copyright act of 1998 and Section 230 of the Communications Decency Act, and, as between you and Pixorial, remain your sole property and responsibility with respect to the content, ownership, legality, or appropriateness of such Member Content. Please see the Digital Millennium Copyright Act section below for more details on Pixorial’s policies and procedures regarding any issues related to the content or use of any Member Content.
    2. License of Your Member Content to Other Members. By contributing your Member Content to a Shared Album, you grant each Member of that Shared Album a perpetual, non-exclusive, world-wide, fully-paid and royalty-free, irrevocable right and license to (i) edit, reproduce, modify, tag, create derivative works of, or otherwise manipulate such Member Content, and (b) download, distribute, and store such Member Content for non-commercial, personal use.
    3. License of Other’s Member Content to You. By using the Site, creating a Member Account and joining a Shared Album, you are granted the license rights described in Section 6(b) above with respect to any other’s Member Content contributed to the applicable Shared Album. You do not acquire ownership rights to any Member Content except for those limited license rights granted herein.
    4. ONCE MEMBER CONTENT HAS BEEN UPLOADED TO A SHARED ALBUM, OTHER MEMBERS OF THE SHARED ALBUM MAY DOWNLOAD AND COPY IT. REMOVING YOUR MEMBER CONTENT FROM THE SHARED ALBUM WILL NOT HAVE ANY EFFECT ON COPIES THAT HAVE BEEN MADE PRIOR TO REMOVAL. BY CONTRIBUTING MEMBER CONTENT TO A SHARED ALBUM YOU RELEASE PIXORIAL FROM AND WAIVE ANY CLAIM WHATSOEVER WITH RESPECT TO COPIES MADE BY OTHER MEMBERS, INCLUDING ANY USE IN VIOLATION OF APPLICABLE LAWS OR IN WAYS THAT VIOLATE THE PRIVACY OR PUBLICITY RIGHTS OF ANY INDIVIDUAL. BETWEEN YOU AND PIXORIAL, YOU ASSUME SOLE RISK AND LIABILITY FOR ANY USE OF YOUR MEMBER CONTENT. IF YOU DO NOT WANT MEMBERS OF A SHARED ALBUM TO COPY, MANIPULATE, DISTRIBUTE, EDIT, DISPLAY, OR OTHERWISE USE YOUR CONTENT, DO NOT USE THE SERVICE TO SHARE IT WITH A SHARED ALBUM.

  8. Fees.

    1. Certain portions of the Services may require a paid subscription (“Subscription”). All fees associated with paid Subscriptions (“Fees”) will be billed in advance to a valid credit card according to the terms of your Subscription. You agree to provide and keep us up-to-date with accurate and complete billing information, including valid credit card information, your name, address and telephone number.
    2. You may cancel your Subscription at anytime by going to Pixorial’s membership plan page at pixorial.com/account/delete_account; however, prepaid amounts are non-refundable.
    3. In the event additional action is necessary to collect on balances due, you agree to reimburse us for all associated expenses we incur, including attorney fees and other legal expenses.
    4. If, for any reason, your credit card company refuses to pay the amount billed for a Service, you agree that we may, at our option, suspend or terminate your Subscription 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 Subscriptions.
    5. You agree that until your Subscription is terminated, you may continue to accrue charges for which you remain responsible, even if you do not use the Service.
    6. Pixorial collects (but does not retain) your credit card information, which we pass along when we redirect you to a payment processing portal hosted by a third party payment processor that will charge your credit card and, if applicable, obtain your authorization for recurring billing, and store your credit card information as necessary to process such recurring charges. WE DO NOT STORE OR PROCESS ANY CREDIT CARD INFORMATION. PLEASE READ THE PRIVACY POLICY (http://www.authorize.net/company/privacy/) ON OUR PAYMENT PROCESSOR’S WEBSITE REGARDING THE USE, STORAGE AND PROTECTION OF YOUR CREDIT CARD INFORMATION BEFORE SUBMITTING ANY CREDIT CARD INFORMATION.

  9. Use of Services and Conduct on the Sites.

    1. Your use of the Services and Sites is subject to all applicable laws and regulations, and you are solely responsible for the content of your Member Content and for any communications with and through the Services. International users agree to comply with all local laws regarding online conduct and acceptable content. You agree that you will not mail, upload, share, post, or otherwise distribute or facilitate distribution of any content of any kind that:
      • 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;
      • Victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
      • Infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
      • 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;
      • 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;
      • Impersonates any person or entity, including any of our employees or representatives; or
      • Includes any person for whom you do not have permission or a right to include in a video or photo, including without limitation, any person under the age of 13 years of age for whom you are not such person’s parent or legal guardian unless you have the consent of such parent or legal guardian.
    2. We neither endorse nor assume any liability for the content of any Member Content. We do not assume any obligation to pre-screen, monitor, or edit the content sent to us, posted to any Shared Album, or distributed by users of the Services, however, we reserve the right to do so at our sole discretion.
    3. We have the right to remove any content at any time and for any reason, including content which in our judgment and sole discretion, does not comply with these Terms 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, and waive any claim against us arising out of, such removal. See “Intellectual Property Infringement” below for a description of the procedures in the event that any party believes that content we display infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party.
    4. You may not use your Member Account to breach security of another account or attempt to gain unauthorized access to another network or server. Not all areas of the Site may be available to you. You will not interfere with anyone else’s use and enjoyment of the Pixorial Apps, Sites or Services. Members who violate systems or network security may incur criminal or civil liability.
    5. You must be at least 13 years old to use the Pixorial Apps, Sites and Services. Any registration by, use of or access to the Pixorial Apps, Sites or Services by anyone not of legal age to form a binding contract is unauthorized, unlicensed and in violation of these Terms. By using the Pixorial Apps, Sites or Services, you represent and warrant that you are of legal age to form a binding contract and that you agree to abide by these Terms.
    6. By contributing Member Content containing any other person, you are representing and warranting to Pixorial that you either (i) have the consent of such person to contribute it to the Shared Album, or (ii) if the person is under the legal age to form a binding contract, that you are either the parent or legal guardian of such person and provide your consent, or you have the consent of such person’s parent or legal guardian to the use of such person’s image. You agree to hold Pixorial and its affiliates and successors harmless from and against any claim for injury or compensation resulting from any claim by any person that Member Content you contribute to a Shared Album includes any person without their consent. Please remember that the Sites and Services are designed to appeal to a broad audience.
    7. You agree that we may at any time, and at our sole discretion, terminate your Member Account 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. You agree that terminating your Account will not have any effect on copies of your Member Content that were downloaded prior to the date of termination.

  10. Third Party Services.

      The Services may link you to other sites on the Internet or otherwise include references to or be used in connection with information, documents, software, materials and/or services provided by other parties (collectively, “Third Party Services”). The Third Party Services may contain information or material that some people may find inappropriate or offensive. The Third Party Services 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 Third Party Services, nor are we responsible for errors or omissions in any references to other parties or their products and services. The inclusion of Third Party Services is provided merely as a convenience and does not imply endorsement of, or association with, the Third Party Services by us, or any warranty of any kind, either express or implied. If you decide to use Third Party Services you do so at your own risk. It is your responsibility to review and comply with the terms and conditions of use and privacy policies of any Third Party Services that you use.

  11. Your Member Content.

    1. You represent and warrant that all material you contribute or submit to Pixorial complies with these Terms and does not violate any copyright or other laws, and that you have the right to grant the licenses granted herein.
    2. Subject to the license rights granted to other Members of a Shared Album herein, you own your Member Content and you can control how it is shared through your use of the Services and your privacy and application settings. However, you acknowledge and agree that Pixorial has no control over how other Members use your Member Content which they have accessed in a Shared Album.

  12. Promotional Emails.

      Pixorial may, from time to time, send you email messages containing advertisements, promotions, product news, etc. You may unsubscribe at any time from our promotional emails by clicking the Unsubscribe link found at the bottom of each promotional message.

  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 that Pixorial will have the unlimited right to use it without any consideration to you.

  14. Intellectual Property Infringement.

    1. Pixorial is committed to respecting and protecting the legal rights of copyright owners. As such, we adhere to the following notice and take down policy, in compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.). If you believe any content infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a “DMCA Takedown Notice”). To be valid, a DMCA Takedown Notice must (i) be provided to Pixorial’s designated agent, (“Copyright Agent”), as set forth below, and (ii) include the following:
      • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
      • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
      • Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
      • Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
      • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
      • A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
    2. Pixorial’s Copyright Agent to receive DMCA Takedown Notices is:  John Martyniak, at +1 (303) 557-0040 x110 or copyright {AT} pixorial.com. For clarity, only DMCA Takedown Notices should go to the Copyright Agent; any other feedback, comments, online purchases or other communications should be directed to the applicable customer service links posted on the Website. You acknowledge that for us to be authorized to takedown any content, your DMCA Takedown Notice must comply with all of the requirements of this Section.

  15. Disclaimer of Warranties.

      THE PIXORIAL APPS, SITES AND SERVICES 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. YOUR USE OF THE PIXORIAL APPS, SITES, SERVICES AND OTHER MEMBER CONTENT IS AT YOUR OWN RISK. WE DO NOT GUARANTEE THAT THE PIXORIAL APPS, SITES OR SERVICES WILL BE SAFE OR SECURE. PIXORIAL IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. You understand and agree that temporary interruptions of the Services 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 the Services, and therefore, delays and disruption of other network transmissions are completely beyond our control. You understand and agree that the Services 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.

  16. Limitation of Liability.

      IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, 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 THE PIXORIAL APPS, SITES, SERVICES OR MEMBER CONTENT, OR OF ANY SITE REFERENCED OR LINKED TO IN CONNECTION WITH THE PIXORIAL APPS, SITE OR SERVICES. FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THRID PARTY GOODS AND SERVICES OFFERED IN CONNECTION WITH THE SERVICES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. Your exclusive remedy and our entire liability, if any, for any OTHER claims arising out of these Terms and your use of the PIXORIAL APPS, SITE OR SERVICES shall be limited to the FEES you paid us for THE SERVICES during the THREE (3) month period PRECEDING the act giving rise to the liability.

  17. Indemnification.

    1. You agree to indemnify and hold harmless Pixorial and all of its officers, directors, owners, agents, employees, information providers, affiliates, licensors and licensees (collectively, “Indemnified Parties”) from and against any and all liabilities, expenses and costs including, without limitation, attorneys’ fees and costs, incurred by the Indemnified Parties in connection with any third party claim or demand arising out of (i) any breach by you of the Agreement, (ii) your use of the Pixorial Apps, Sites or Services, or (iii) your violation of any rights of another.
    2. Upon a request by us, you agree to defend, indemnify, and hold us and the other Indemnified Parties harmless from all liabilities, expenses, and costs, including attorney’s fees and costs that arise from your use or misuse of the Pixorial Apps, Sites or the Services. 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 Site and Storage of Material.

    1. You acknowledge that we may establish general practices and limits concerning use of the Services, including, without limitation, the maximum disk space that will be allotted on 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 convert any Subscription account to a non-Subscription account upon non-receipt of a Subscription fee. Furthermore, we reserve the right to terminate any account with no prior notice to you, including the deletion of any Member Content associated therewith, if the account has been inactive for a three (3) month period. You further acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion.
    2. The accounts of our Members operate on shared resources. Excessive use or abuse of these shared network resources by one Member 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. You acknowledge that we have the right, at our sole discretion, to terminate your Member Account, limit the number of transmissions you may send or receive through our site, or limit the amount of storage space, bandwidth, or other resources you may use.
    3. The Sites are 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 Sites, you should not rely on the Sites 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 liable 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 Member Account and for any and all statements made and acts or omissions that occur through the use of your password and Member 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 Member 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 Member Account in the event of any unauthorized transfer or sharing thereof.

  20. International Use.

      Although the Pixorial Apps, Sites and Services may be accessible worldwide, we make no representation that materials on the Site or available in connection with the Services 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 the Sites or use the Services from other locations do so on their own initiative and are responsible for compliance with applicable local laws. Any offer for any product, service, and/or information made in connection with the Sites or the Services is void where prohibited.

  21. Termination of Use.

      You agree that we may, in our sole discretion, terminate or suspend your access to all or part of the Services with or without notice and for any reason, including, without limitation, breach of these Terms. 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 Pixorial Apps, Sites or Services immediately ceases, and you acknowledge and agree that we may immediately deactivate or delete your Member Account and all related information and files and/or bar any further access to such files or the Services. We shall not be liable to you 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.

  22. Arbitration and Governing Law.

    1. ANY DISPUTES WILL BE RESOLVED THROUGH ARBITRATION ON AN INDIVIDUAL BASIS, RATHER THAN JURY TRIALS OR CLASS ACTIONS, WHICH LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
    2. Except for a claim by Pixorial of infringement or misappropriation of Pixorial’s patent, copyright, trademark, or trade secret, any and all disputes between you and Pixorial arising under or related in any way to these Terms must be resolved through binding arbitration as described in this Section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of the Pixorial Apps, Sites, Service, any Pixorial Material, any Shared Album or any Member Content made available via a Shared Album.
    3. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND PIXORIAL ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND PIXORIAL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
    4. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the following rules shall apply: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in Denver, CO. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in Denver, Colorado. Claims of infringement or misappropriation of Pixorial’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in Denver, Colorado.
    5. The laws of the State of Colorado, excluding its conflicts of law rules that would result in the application of laws of a State other than Colorado, govern these Terms and your use of the Pixorial Apps, Sites, Services, Pixorial Material, or any Member Content.

  23. Mobile Platforms.

      You acknowledge and agree that the availability of the Pixorial Apps is dependent on the third party from which you received the App license; e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that these Terms are between you and Pixorial and not with the App Store. Pixorial, not the App Store, is solely responsible for the Pixorial Apps, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto. You agree to comply with, and your license to use the Pixorial Apps is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies). You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of these Terms of Use and will have the right to enforce them.
      The following applies to any Pixorial Apps accessed through or downloaded from the Apple App Store (“App Store Sourced Pixorial App”):
      1. You acknowledge and agree that (i) these Terms are concluded between you and Pixorial only, and not Apple, and (ii) Pixorial, not Apple, is solely responsible for the App Store Sourced Pixorial App and content thereof. Your use of the App Store Sourced Pixorial App must comply with the App Store Terms of Service.
      2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Pixorial App.
      3. In the event of any failure of the App Store Sourced Pixorial App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Pixorial App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Pixorial App. As between Pixorial and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Pixorial.
      4. You and Pixorial acknowledge that, as between Pixorial and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Pixorial App or your possession and use of the App Store Sourced Pixorial App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Pixorial App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
      5. You and Pixorial acknowledge that, in the event of any third party claim that the App Store Sourced Pixorial App or your possession and use of that App Store Sourced Pixorial App infringes that third party’s intellectual property rights, as between Pixorial and Apple, Pixorial, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
      6. You and Pixorial acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Pixorial App, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Pixorial App against you as a third party beneficiary thereof.

  24. Entire Agreement.

      These Terms constitute 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 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.