Pixorial Terms Of Service

Effective April 16, 2012

1. Introduction

The terms, conditions, policies, and notices set forth in this document constitute the legal agreement (the “Agreement”) that governs your use of all services provided by Pixorial, Inc. (“Pixorial”, “we”, or “us”), including, without limitation, the Pixorial website located atwww.pixorial.com (the “Site”) and all Pixorial services accessed through third party web sites (together referred to as the “Services”). Your access to and use of the Services is expressly conditioned upon your acceptance of this Agreement in its entirety, without modification. Please read this Agreement carefully.

2. Changes

Pixorial reserves the right to change the terms of this Agreement at any time without further notice. If we do this, we will post the changes to this Agreement on this page and will indicate at the top of this page the date those terms will be effective. By continuing to use the Services after any changes, you are indicating your acceptance of such changes. If you do not agree to abide by this Agreement, as in effect at any time, do not use or access (or continue to use or access) the Site or the Services. It is your responsibility to regularly check the Site to determine if there have been changes to this Agreement and to review such changes.

3. Incorporation of Guidelines

When using particular Services or materials on the Site, you shall be subject to any posted guidelines or rules applicable to such Services or materials. All such guidelines and rules are hereby incorporated by reference into this Agreement.

4. Commercial Use

You agree not to resell or repackage the Services or any portion of the Services without prior authorization from Pixorial.

5. Description of Services

The Services include, without limitation, video conversion, archiving, organization, editing, collaboration, production and sharing. Fees for our Services are described on the Site and may change from time to time. You are solely responsible for providing, at your own expense, all equipment necessary to use the Services, including, without limitation, a 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, and text messaging fees. Pixorial reserves the sole right to modify the Services 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 modification, addition or discontinuation of a Service, or changes to limitations on allowable file sizes. Any new Services and any new features that augment or enhance the then-current Services shall also be subject to this Agreement. 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.

6. Registration Data and Privacy

In order to access some of the Services, 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”). You will also need to maintain and update 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. It is our policy to respect the privacy of individuals who visit the Site or use the Services. Our privacy policy, which you may view athttp://www.pixorial.com/pixorial/privacy_policy (the “Privacy Policy”), is incorporated herein by reference. By accepting this Agreement, you expressly consent to the use and disclosure of your personally identifiable and other information, including your Registration Data, as described in the Privacy Policy. If you reside outside of the United States, you consent to having your personal data transferred to and processed in the United States.

7. Payment of Fees

If you subscribe to a Service that requires payment of a fee, you agree to pay all fees associated with such Service. For all charges for Services, 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 a 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.

8. Use of Services and Conduct on the Site

Your use of the Services 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 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—including text, communications, software, images, sounds, data, or other information—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; or
  • 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 Services. We do not assume any obligation to pre-screen, monitor, or edit the content sent to us, posted to the Site, or distributed by users of the Services, 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 “Intellectual Property Infringement” below for a description of the procedures to be followed in the event that any party believes that content posted in connection with the Services 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 Site may be available to you or other authorized users of the Site. You shall not interfere with anyone else’s use and enjoyment of the Site or the Services. Users who violate systems or network security may incur criminal or civil liability. You must be at least 13 years old to use the Site and the Services. Any registration by, use of or access to the Site or the Services by anyone under 13 is unauthorized, unlicensed and in violation of this Agreement. By using the Site or the Services, you represent and warrant that you are 13 or older and that you agree to abide by this Agreement. If you are located in a country embargoed by the United States or if you are on the United States Treasury Department’s list of Specially Designated Nationals you will not engage in commercial activities on the Site or in connection with the Services. You agree that we may at any time, and at our sole discretion, terminate your 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 in investigating suspected criminal violations.

9. 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. You agree to review and comply with the terms and conditions of use and privacy policies of any Third Party Services that you use.

10. Pixorial Intellectual Property Information

All content on the Site and related to the Services, including but not limited to designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement (the “Pixorial Content”), are the proprietary property of Pixorial, its users or its licensors with all rights reserved. No Pixorial Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, unless otherwise permitted by this Agreement in connection with your use of the Services. The foregoing does not apply to your own User Content (as defined below) that you legally post on the Site or otherwise submit for use in connection with the Services. Provided that you are eligible for use of the Site and the Services, you are granted a limited license to access and use the Site, the Services and the Pixorial Content to which you have properly gained access solely for your use, provided that you keep all copyright or other proprietary notices intact. Except for your own User Content, or content to which you’ve been granted access, you may not upload or republish Pixorial Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any other use of the Pixorial Content is strictly prohibited. Such license is subject to this Agreement and does not include use of any data mining, robots or similar data gathering or extraction methods. Any use of the Site, the Services or the Pixorial 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. Unless explicitly stated herein, nothing in this Agreement shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time without notice and with or without cause. The following are registered trademarks, trademarks or service marks of Pixorial: Pixorial® and Enjoy Your Show®.

11. User Content

You represent and warrant that all materials you submit to Pixorial in connection with the Services, including without limitation, data, text, information, screen names, graphics, photos, profiles, audio and video clips, and links to third-party content (collectively, “User Content”), complies with Section 8 of this Agreement and is 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. You own your User Content and you can control how it is shared through your privacy and application settings. Subject to your privacy and application settings, you hereby grant to Pixorial and its affiliates a non-exclusive, transferable, sub-licensable, royalty-free, perpetual, worldwide license to use, publish, copy, modify, adapt, create derivative works from, publicly perform and display, transmit and distribute your User Content (in whole or in part) and/or to incorporate such User Content in other works in any form, media, or technology now known or later developed. Our license to use your User Content will end when you delete such User Content or your account is terminated, unless your User Content has been shared with others and they have not deleted it. You also grant each user of the Services the right to access, copy, modify, adapt, create derivative works from, publicly perform and display, transmit, distribute, view and store your User Content in connection with the Services. You represent and warrant to Pixorial that you have the right to grant the licenses stated above.

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/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 the Services believes its copyright, trademark or other property rights have been infringed by a posting on the Site or in connection with the Services, 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 proprietary 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 owner of the exclusive right, its 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 being infringed.
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. Accounts of repeat infringers of copyright or of users about whom repeat claims of copyright infringement are received will be terminated. Designated Agent for Claimed Intellectual Property Infringement: help[at]Pixorial.com Your acknowledge and agree that upon receipt of a notice of a claim of intellectual property infringement, we may immediately remove the identified materials from the Site or Services without liability to you or any other party and that, when applicable, 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

THE SITE AND THE 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 SITE AND THE SERVICES IS AT YOUR OWN RISK. WE DO NOT GUARANTEE THAT THE SITE OR THE 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. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE ¤1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

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 THE SITE OR THE SERVICES OR OF ANY SITE REFERENCED OR LINKED TO IN CONNECTION WITH THE SITE OR THE 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 OR INCIDENTAL OR CONSEQUENTIAL 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. 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 thE SITE OR THE SERIVCES shall be limited to the amount you paid us for THE SERVICES during the THREE (3) month period PRECEDING the act giving rise to the liability.

17. Indemnification

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 (a) any breach by you of the Agreement, (b) your use of the Site or the Services or (c) your violation of any rights of another. 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 Site 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

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 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 convert any Premium User account to a Basic User account upon non-receipt of a subscription fee. Furthermore, we reserve the right to terminate any Basic User account with no prior notice to you, including the deletion of any videos and 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, 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. You acknowledge that we have the right, at our sole discretion, to terminate your 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. The Site 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 Site, you should not rely on the Site 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 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. If you access the Site through a third party web site, we may not be able to reset your password or security confirmation information, in which case you will need to seek assistance from the applicable third party web site with respect to such matters.

20. International Use

Although the Site and the 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 Site 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 Site or the Services is void where prohibited.

21. Exchange and Refund Policies

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 help[at]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.

22. 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.

23. Cancellation Policy

Users who wish to cancel their account may do so in the Account section of the Site. Monthly archival fees cannot be pro-rated. Cancellation requests will be processed immediately and the account will be de-activated on the last day of the month during which the cancellation request is received.

24. 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 this Agreement. 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 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 the Services. 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.

25. Jurisdiction and Governing Law

We control and operate the Site and provide the Services from our offices within the State of Colorado, United States of America. The Site and the Services 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 the Site or using the Service you 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 the Site and the Services. In addition, you agree and hereby submit 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.

26. 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 this Agreement 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.