Terms of service


PLEASE READ THESE TERMS OF USE CAREFULLY BECAUSE THEY AFFECT YOUR LEGAL RIGHTS AND RESPONSIBILITIES

 

Basic Terms

 

By accessing or using  Pictorious.com, the Site, and Mobile Application(“Pictorious”, or “we”, “us”, or “our”).  and  the services offered by Pictorious, the APIs, email notifications, applications, buttons, widgets, ads, and commerce services (the "Services"), and any software, design, graphics, text, images, photographs, illustrations, audio and video material, artwork, graphic material, databases, proprietary information, or other materials uploaded, downloaded or appearing on the Services (collectively referred to as "Content"), you agree to be bound by these terms and conditions (“Terms of Use” or “Agreement”). If you do not agree to these Terms of Use, you may not access or otherwise use Pictorious. Pictorious is offered by and is care of App Stallion Inc.

 

Eligibility

 

Pictorious is offered and made available only to users 13 years of age or older who reside in the United States of America, its territories and possessions ("U.S.") and all of Canada and certain features on Pictorious (including, but not limited to, user registration and newsletter signups) may be subject to heightened age and/or other eligibility requirements. If you are not yet 13 years old or the required greater age for certain features, do not reside in the U.S. and/or do not meet any other eligibility requirements, , or you do not agree with all of the terms and conditions contained in this Agreement, you must discontinue using Pictorious immediately. By using or attempting to use Pictorious, you certify that you are at least 13 years of age or other required greater age for certain features and meet any other eligibility and residency requirements of Pictorious. These Terms of Use constitute a legally binding agreement between you and App Stallion Inc. In this Agreement, “Pictorious” means also all websites and web pages within the Pictorious website as well as any equivalent, mirror, replacement, substitute or backup websites and web pages that are associated with the website. By using Pictorious, you understand, acknowledge and agree that you will abide by the terms of this Agreement and any additional terms that govern certain products and services, including, but not limited to, the User Content Submission Agreement, which governs your submission of User Content as such term is defined therein. Pictorious may also provide rules of participation for certain activities and services including, but not limited to contests and sweepstakes, award programs, membership clubs, email, and dating services. Pictorious’s Terms of Use, Privacy Policy and the User Content Submission Agreement are hereby incorporated in this Agreement by reference. To the extent that there is a conflict between this Agreement and additional terms for the activity in which you choose to participate, the additional terms shall govern. To the extent that there is a conflict between this Agreement and the specific rules for the activity in which you choose to participate, the rules shall govern. This Agreement will remain in full force and effect to all current and former users of Pictorious. In the event of termination of any membership, service or feature, you will still be bound by your obligations under this Agreement, the Privacy Policy, any additional terms or rules, including any indemnifications, warranties, and limitations of liability.

 

The words "use" or "using" in this Agreement means any time an individual (a "user"), directly or indirectly, with or without the aid of a machine or device, does or attempts to access, interact with use, display, view, print or copy from Pictorious, transmit, receive or exchange data or communicate with Pictorious, or in any way utilizes, benefits, takes advantage of or interacts with any function, service or feature of Pictorious, for any purpose whatsoever. This Agreement does not cover your rights or responsibilities with respect to third party content or sites or any links that may direct your browser or your connection to third party sites or pages. This is the entire and exclusive Agreement between you and us regarding use of the Site and it cannot be modified, except as specifically described below in Section 2.

 

Privacy:

 

Any information that you provide to Pictorious is subject to our Privacy Policy, which governs our collection and use of your information. You understand that through your use of the Services you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing and use by Pictorious. As part of providing you the Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services and your Pictorious account, which you may not be able to opt-out from receiving.

 

1. Registration

 

As part of the registration process in order to access and use certain features or functions of Pictorious, we may require each user to choose a unique user name and password combination. Alternatively, and in our discretion, we may assign an initial password, and provide you with the option to change it,and may also, from time to time, provide users with additional codes or passwords necessary to access and use certain features or functions of Pictorious.  Your user name and password are personal

to you and you may not allow any others to use your user name or password under any circumstances. We are not liable for any harm caused or related to the theft or misappropriation of your user name or password, disclosure of your user name or password, or your authorization of anyone else to use your user name or password. You agree to immediately notify us if you become aware of or believe there is or may have been any unauthorized use of (or activity using) your user name or password or any other need to deactivate your user name or password due to security concerns. Please read our Privacy Policy, which describes the personally identifiable information ("Personal Information") we collect, use, disclose, manage and store.

 

2. Modifications

 

We reserve the right, at any time and from time to time, for any reason in our sole discretion, to change the terms of this Agreement. We will conspicuously post or display notices of material changes on Pictorious and we will e-mail you or notify you upon login about these changes; the form of such notices is at our discretion. Once we post them on Pictorious, these changes become effective immediately. Your use of Pictorious after they become effective will signify your agreement to be bound by the changes. You should check back frequently and review the terms and conditions of this Agreement, including, but not limited to, the User Content Submission Agreement, other additional terms, rules and Privacy Policy, regularly so you are aware of the most current rights and obligations that apply to you and the terms and conditions of your agreement with us.

 

3. Ownership of Intellectual Property

 

The Content of Pictorious, and all copyrightable or otherwise legally protectable elements of Pictorious, including, without limitation, the selection, sequence and 'look and feel' and arrangement of items, and all trademarks, service marks and trade names (individually and/or collectively, "Material"), are the property of the Parent Companies, and any of its successors and assigns, and any of their respective licensors, Advertisers (as defined below), suppliers, and operational service providers and is legally protected, without limitation, under U.S. Federal and State, as well as applicable foreign laws, regulations and treaties.

Unless the context clearly requires  or we explicitly state otherwise in writing, the term Pictorious includes "Material" as well. Pictorious is to be used solely for your noncommercial, non-exclusive, non-assignable, non-transferable and limited personal use. If you enter a contest, your use of Pictorious may also be used to promote the Contest Sponsor(s), but for no other purpose. You must not alter, delete or conceal any copyright or other proprietary notices displayed on Pictorious, including notices on any Material you download, transmit, display, print or reproduce from Pictorious.

You shall not, nor will you allow any third party (whether or not for your benefit) to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website), or otherwise use, any Material, except in a limited, personal, non-commercial manner, without the express prior written consent of App Stallion Inc. Any unauthorized or prohibited use of any Material may subject you to civil liability, criminal prosecution, or both, under applicable federal, state and local laws. We require users to respect our copyrights, trademarks, and other intellectual property rights.

We likewise respect the intellectual property of others. On notice, we will act expeditiously to remove content on Pictorious that infringes the copyright rights of others and will disable access to Pictorious and the Services if, in our sole discretion, anyone who uses the Services to infringe repeatedly the intellectual property rights of others.

App Stallion Inc. grants the User a limited, nonexclusive, revocable license to access and make personal, non-commercial use of the Content of Pictorious. We take protection of copyrights, both our own and others, very seriously and employ multiple measures to prevent copyright infringement over Pictorious and to promptly end any infringement that might occur. If you believe that Pictorious contains elements that infringe copyrights in your work, please follow the procedures set forth in our Copyright Compliance Policy.

 

4. Advertising

 

From time to time, you may communicate with, receive communications from, be re-directed to, interact with, or participate in or use the Services or obtain goods and services of or from, third parties (collectively, the "Advertisers") such as our advertisers, sponsors, or promotional partners as a result of your use of Pictorious. All such communication, interaction and participation is strictly and solely between you and such Advertisers. We shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertiser or any goods or services you may purchase or obtain from any Advertiser).

 

5. Rules of Conduct

 

Your use of Pictorious is subject to all applicable local, state, national laws and regulations and, in some cases, international treaties. You are solely responsible for all activities, acts and omissions that occur in, from, through or under your user name or password. You shall not use and shall not allow or enable others to use Pictorious, or knowingly condone use of Pictorious by others, in any manner that is, attempts to, or is likely to:

 

· be libelous, defamatory, indecent, vulgar or obscene, pornographic, sexually explicit or sexually suggestive, racially, culturally, or ethnically offensive, harmful, harassing, intimidating, threatening, hateful, objectionable, discriminatory, or abusive, or which may or may appear to impersonate any person or entity or your affiliation with any person or entity;

· affect us adversely or reflect negatively on Pictorious, our goodwill, name or reputation or cause duress, distress or discomfort to us or anyone else, or discourage any person, firm or enterprise from using all or any portion, features or functions of Pictorious, or from advertising, linking or becoming a supplier to us in connection with Pictorious;

· send or result in the transmission of junk e-mail, chain letters, duplicative or unsolicited messages, or so-called "spamming" and "phishing";

· be used for commercial or business purposes, including, without limitation, advertising, marketing or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other website or web pages;

· transmit, distribute or upload programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horses, spyware, or other potentially harmful programs or other material or information;

· forge any TCP/IP packet header or part of the header information in any email or newsgroup posting for any reason;

· violate any laws, regulations (including, without limitation, laws regarding the transmission of technical data or software exported from the United States), judicial or governmental order or any treaties, or violate or infringe

upon any intellectual property rights, rights of publicity or privacy or any other of our rights or those of any other person, firm, or enterprise; gain unauthorized access to the Pictorious, other users' accounts, names, passwords, personally identifiable information or other computers, websites or pages, connected or linked to Pictorious or to use Pictorious in any manner which violates or is inconsistent with this Agreement;

· modify, disrupt, impair, alter or interfere with the use, features, functions, operation or maintenance of the Site or the rights of use and enjoyment of Pictorious by any other person, firm, or enterprise; or

· collect, obtain, compile, gather, transmit, reproduce, delete, revise, view or display any material or information, whether personally identifiable or not, posted by or concerning any other person, firm or enterprise, in connection with their or your use of Pictorious, unless you have obtained the express, prior permission of such other person, firm, or enterprise to do so.

 

6. Shopping

 

Pictorious.com offers certain e-commerce services including the ability to purchase goods and services via the Pictorious Shop (the "E-Commerce Service"). The E-Commerce Service utilizes third party operational service providers. When making an online purchase, a user will be re-directed to the third party operational service provider’s site. All purchases made through these third party operational service providers are subject to their respective terms and conditions of use.

Pictorious is not responsible and has no liability whatsoever for goods or services you obtain through our third party service providers or other web sites or web pages. We encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online transaction with any of these third parties. Pictorious

does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any such third party, and you irrevocably waive any claim against us with respect to such sites. We are not responsible for assisting you in correcting any

problem you may experience with goods and services purchased through a third party service provider, even if the goods or services were shown on a Pictorious web page. We cannot ensure that you will be satisfied with any products or services that you purchase from any third-party operational service provider as those are owned and operated by independent entities. Customer service issues related to goods or services should be directed to the relevant third party operational service provider.

Pictorious does not guarantee that product descriptions or other content will be accurate, complete, reliable, current, or error-free. Descriptions and images of, and references to, products on the Site do not imply our or any of our affiliates' endorsement of such products. Pictorious and its third party operational service providers reserve the right, with or without prior notice, to change product descriptions, images, and references; to limit the available quantity of any product; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from conducting any or all transaction(s); and/or to refuse to provide any user with any product. Price and availability of any product are subject to change without notice.

 

7. Wireless Marketing Services and Promotional Opportunities

Pictorious may provide users and viewers with the opportunity to register for special promotions, services, news, programming and information delivered via text messaging and other wireless Devices such as mobile phones. Users are required to provide their consent to receive such information from Pictorious by registering with our Services.

Such services and promotional opportunities are provided by the Parent Companies or Affiliates of Pictorious. The information requested as part of the online registration process is a user's telephone number or a wireless email address, but only if specifically requested, and the carrier's name. Optional information may be requested for specific promotions, such as a user's preferences regarding goods or services, choices of music or artists, or other similar survey information. Depending on the promotion, we may also collect an Internet email address or other information and, depending on the information collected, the user may also be required to confirm his or her agreement to this Agreement and, including without limitation, the Privacy Policy.

Users that register for Pictorious’ wireless marketing services acknowledge, understand and agree that they will be charged by the user's wireless carrier for all messages sent to the user from Pictorious. Standard messaging rates will apply, unless noted otherwise. Under no circumstances will Pictorious, the Parent Companies or any Affiliates be responsible for any wireless email or text messaging charges incurred by a user or by a person that has access to a user's wireless device, telephone number, or email address.

A user understands, acknowledges and agrees that Pictorious may, at its sole discretion and without liability to any user, terminate its offer of any specific wireless marketing service or all wireless marketing services at any time without advance notice. Pictorious may provide notice of terminations or changes in services on this Site and/or the Mobile Application.

 

8. Postings

Your comments, suggestions and information are important to us. Portions of Pictorious may provide you and other users an opportunity to participate in forum services, blogs, web communities and other message and communication facilities ("Communities") and may provide you with the opportunity, through such Communities or otherwise, to submit, post, display, transmit and/or exchange (a) information, ideas, opinions, messages or other information ("Post" or "Postings") and (b) User Content (as defined in the User Content Submission Agreement), your submission of which is also governed by the terms and conditions therein, and considered a Posting for purposes of this Agreement. You understand, acknowledge and agree that such Postings are the sole responsibility of the person from which such Postings originated. This means that you are solely and entirely responsible for the consequences of all Postings that you upload, post, email, transmit or otherwise make available via Pictorious. Postings do not reflect the views of Pictorious, the Parent Companies or the Affiliates. We reserve the right to monitor, edit or screen any Postings. If we determine, in our sole discretion and judgment, that any Posting does or may violate any of the terms of this Agreement, we reserve the right, at any time and without limiting any and all other rights we may have under this Agreement, at law or in equity, to: (a) refuse to allow you to Post; (b) remove and delete Postings; (c) revoke your right to use the Site; and/or (d) use any technological, legal, operational or other means available to us to enforce the provisions of this Agreement, including, without limitation, blocking specific IP addresses or deactivating your registration on Pictorious. If a Posting originates from you or your account, you hereby agree that: (a) you specifically grant App Stallion Inc. license to such Posting, the use, display, reproduction of, in whole or in part, throughout the universe, in perpetuity in or on any and all media, now known or hereafter devised, and alone or together with or as part of other information, content and/or material of any kind or nature; (b) you represent and warrant that (i) the Posting is original to you and/or fully cleared for use as contemplated herein, (ii) the Posting does and will not, in any way, violate or breach any of the terms of this Agreement, (iii) the Posting does not contain libelous, tortious, or otherwise unlawful information, infringe or violate any copyright or other right, or contain any matter the publication or sale of which will violate any federal or state statute or regulation, (iv) the Posting is not obscene or in any other manner unlawful, (v) the Posting shall not be injurious to the health of any user, and (vi) we shall not be required to pay or incur any sums to any person or entity as a result of our use or exploitation of the Posting; and (c) if your Posting incorporates the name, logo, brand, service or trademark, voice, likeness or image of any person, firm or enterprise, you specifically represent and warrant that (i) you have the right to grant App Stallion Inc. the right to use all such Postings as described above, (ii) the Posting was produced in compliance with all applicable laws and regulations and (iii) for any User Content Posting that contains original videos, you will comply with any applicable identification verification and record-keeping requirements, and you will secure and maintain the requisite personal information and identification documentation for all individuals who appear in any such original videos, as may be required by law and/or otherwise requested or required by us in connection with our corporate compliance policies and practices, which includes  each individual's full legal name, current address, and date of birth. With the submission of each such Posting, App Stallion Inc. reserves the right to request that you, and upon such request you must, deliver a full and complete set of such identification verification records to us, as well as a legible photocopy of your valid driver's license, passport or other acceptable government-issued photo identification for our verification and record-keeping purposes. In addition, you specifically acknowledge and agree to abide by our policies regarding governmental certification procedures relating to the foregoing identification verification and record-keeping procedures and, if applicable, you will promptly comply with any specific requests or directions we give you in connection with Postings you submit that may be subject to these requirements.

 

You understand, acknowledge and agree that we have the right, in our sole discretion, to delete, re-format and/or change your Postings in any manner that we may select (although you will not be responsible for any such changes made). Given that the amount of storage space on Pictorious per user is limited, some Postings may not be processed due to space constraints or outbound message limitations. You understand, acknowledge and agree that we assume no

responsibility for deletion of Postings or any failure to store, receive or deliver Postings in a timely manner or any other matter relating to Postings.

 

Posting is for noncommercial purposes only and you may not Post in any manner which does or is intended to promote or generate revenue for any business enterprise or commercial activity unless specifically instructed to do so to enter a Pictorious Contest. If you believe that any content on Pictorious (including, without limitation, Postings) violates any of the terms of this Agreement (except for any notices covered by the Copyright Compliance Policy), please click here to send us a message about it or you may email us at admin@pictorious.com (please refer to our Copyright Compliance Policy for any notices covered by the Copyright Compliance Policy). We cannot guarantee that we will respond to your message and we reserve the right to take or refrain from taking any or all steps available to us once we receive any such message

 

9. Contests, Sweepstakes, Auctions and Promotions

 

Pictorious, the Parent Companies, the Affiliates, or the Site's operational service providers, suppliers, and Advertisers may conduct promotions on or through Pictorious, including, without limitation, auctions, contests and sweepstakes ("Promotions.") Each Promotion may have Additional Terms and/or Rules, which will be posted or otherwise made available to you and, for purposes of each Promotion, will be deemed incorporated into and form a part of this Agreement.

 

10. Certain Products and Services

 

a. RSS Feeds and Podcasts

Pictorious may provide RSS Feeds ("RSS Feeds") consisting of Content from Pictorious that is provided over the Internet using an XML feed. Certain RSS Feeds may be podcasts ("Podcasts"), which may include as part of the Content an associated audio, video and/or photographic file where the audio and/or video file may be downloaded

and played from a user's Device or transferred to a portable listening device. Certain software and hardware is required for users to download and view and/or play Content through RSS Feeds.

Content is protected by U.S. Federal and State laws, and applicable foreign laws, regulations and treaties, and all rights in and to the Content are reserved to Pictorious or the content provider. Content is available for personal, noncommercial use only and you may download, copy and/or transfer to a Device or through a Device to another

Device the RSS Feeds and associated Content for your personal, non-commercial use only. You shall not, nor will you allow any third party to, reproduce, modify, create derivative works of, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party, or otherwise use any Content except as expressly authorized in this Section 11.

By your access to and use of RSS Feeds, you understand, acknowledge and agree that Pictorious, the Parent Companies and their Affiliates do not warrant that its RSS Feeds will operate on all user equipment. Please see the “Disclaimer and Limitations of Liability” section below for further details.

 

b. Mobile Applications

 

Pictorious offers products and services through applications available on your wireless or other mobile Device (such as a mobile phone) (the "Mobile Application Services"). These Mobile Application Services are governed by this Agreement. We do not charge for these Mobile Application Services unless otherwise provided in the applicable Terms of Use. However, your wireless carrier's standard messaging rates and other messaging, data and

other rates and charges will apply to certain Mobile Application Services. You should check with your carrier to find out what plans your carrier offers and how much the plans cost. In addition, the use or availability of certain Mobile Application Services may be prohibited or restricted by your wireless carrier, and not all Mobile Application Services may work with all wireless carriers or Devices. Therefore, you should check with your wireless carrier to find out if the Mobile Application Services are available for your wireless Device, and what restrictions, if any, may be applicable to your use of such Mobile Application Services. If you change or deactivate your wireless telephone number, you agree to promptly update your Mobile Application Services account information to ensure that your messages are not sent

to the person that subsequently acquires your old number.

Under no circumstances will Pictorious, the Parent Companies or any Affiliates be responsible for any wireless email, text messaging or other charges incurred by a user (or any person that has access to a user’s wireless device, telephone number, or email address) using any Mobile Application Services.

 

11. Hyperlinks to Third Party Sites

 

The appearance, availability, or your use of URLs or hyperlinks referenced or included anywhere on Pictorious or any other form of link or re-direction of your connection to, with or through Pictorious, does not constitute an endorsement by, nor does it incur any obligation, responsibility or liability on the part of Pictorious, the Parent Companies or any of their Affiliates, any of their successors and assigns, and any of their respective officers, directors, employees, agents, representatives, licensors, Advertisers, suppliers, and operational service providers. We do not verify, endorse, or have any responsibility for any such third party sites, their business practices (including their privacy policies), or any

goods or services associated with or obtained in connection with any such site, regardless whether Pictorious', the Parent Companies' or any of their Affiliates' logo or sponsorship identification is on the third party site as part of a co-branding or promotional arrangement. If any third party site obtains or collects Personal Information from you, in no event shall we assume or have any responsibility or liability. Please read our Privacy Policy, which describes how Pictorious collects and uses your Personal Information and other information, and the nature of certain of our relationships.

 

12. Deactivation/Termination of Your Registration Or Use

 

If you are registered to use Pictorious, you may deactivate your account on the Site or Mobile Application, at any time and for any reason, by logging in to your account, clicking "Profile" or your display name at the top of the Site or Mobile Application, selecting "Manage Account", and following the instructions to deactivate your account.

 

We may terminate your use of and registration with Pictorious, at any time and for any reason, with or without cause, without prior notice to you and without any liability or further obligation of any kind whatsoever to you or any other party.

 

13. Disclaimer and Limitations of Liability

 

ALL IN-APP CONTESTS ARE SPONSORED BY APP STALLION INC.

 

“APPLE” or “GOOGLE” ARE NOT INVOLVED IN ANY WAY WITH THE CONTESTS OR SWEEPSTAKES.

 

THE SERVICE, CONTENT, AND ALL PICTORIOUS MATERIALS, PRODUCTS AND POSTINGS ARE PROVIDED ON AN "AS IS", "AS AVAILABLE", AND “WITH ALL FAULTS”. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER PICTORIOUS NOR APP STALLION INC., THE PARENT COMPANIES, ANY OF THEIR AFFILIATES, OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (THE “PICTORIOUS PARTIES”) MAKE ANY REPRESENTATION OR WARRANTY OR ENDORSEMENT OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE SERVICE, THE CONTENT, OR THE SECURITY ASSOICATED WITH THE TRANSMISSION OF INFORMATION TO PICTORIOUS OR VIA THE SERVICE.  IN ADDITION, THE PICTORIOUS PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOTL LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PUPROSES, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUITE ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. THE PICTORIOUS PARTIES DO NOT REPRESENT OR WARRANT OR PROVIDE ANY GUARANTY OR ASSURANCE THAT PICTORIOUS WILL BE AVAILABLE FOR USE, ERROR FREE UNINTERRUPTED, OR OTHERWISE, THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES ARE FREE FROM ANY HARMFUL COMPONENTS INCLUDING WITHOUT LIMIATION, VIRUSES. THE PICTORIOUS PARTIES DO NOT REPRESENT OR WARRANT ALSO THAT THE SERVICE INCLUDING ANY INSTRUCTIONS IS ACCURATE, COMPLETE, USEFUL, LAWFUL, OR THAT ALL PRODUCTS, FEATURES, FUNCTIONS OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. YOU ACKNOWLEDGE THAT YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK.

 

WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS, OR OMISSIONS ARISING OUT OF YOUR USE OF THE SITE. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF PICTORIOUS, INCLUDING, WITHOUT LIMITATION, POSTINGS AND MATERIALS ASSOCIATED WITH PICTORIOUS.

 

THE PARTIES AGREE THAT APP STALLION INC., THE PARENT COMPANIES, ANY OF THEIR AFFILIATES, OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATIONAL SERVICE PROVIDERS, ADVERTISERS, OR SUPPLIERS, SHALL NOT BE LIABLE FOR ANY CLAIMS, LOSSES, DEMANDS, OR DAMAGES OF ANY KIND WHATSOEVER WITH REGARD TO ANY INFORMATION, CONTENT, OR SERVICES PROVIDED BY PICTORIOUS, AND THAT THE AMOUNT OF COMPENSATORY DAMAGES SHALL BE LIMITED TO THE AMOUNT PAID BY YOU TO THE COMPANY IN THE 12 MONTH PERIOD PRECEDING THE CLAIM GIVING RISE TO THE DAMAGE. NOTWITHSTANDING ANY CLAIM THAT A SOLE OR EXCLUSIVE REMEDY WHICH IS PROVIDED IN THIS AGREEMENT MAY OR DOES FAIL OF ITS

ESSENTIAL PURPOSE, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY LOSS OR DAMAGE SHALL BE TO HAVE THE PARENT COMPANIES, UPON WRITTEN NOTICE FROM YOU TO US, ATTEMPT TO REPAIR, CORRECT OR REPLACE ANY DEFICIENT GOODS OR SERVICES UNDER THIS AGREEMENT AND, IF REPAIR, CORRECTION OR REPLACEMENT IS NOT REASONABLY COMMERCIALLY PRACTICABLE FOR THE PARENT COMPANIES, TO REFUND ANY MONIES ACTUALLY PAID BY YOU FOR THE PRODUCTS INVOLVED AND TO TERMINATE AND DISCONTINUE YOUR USE OF PICTORIOUS. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THE CAPACITY OF PICTORIOUS, IN THE AGGREGATE AND FOR EACH USER, IS LIMITED. CONSEQUENTLY, SOME MESSAGES AND TRANSMISSIONS MAY NOT BE PROCESSED IN A TIMELY FASHION OR AT ALL, AND SOME FEATURES OR FUNCTIONS MAY BE RESTRICTED OR DELAYED OR BECOME COMPLETELY INOPERABLE. AS A RESULT, YOU ACKNOWLEDGE AND AGREE THAT THE PARENT COMPANIES

ASSUME NO LIABILITY, RESPONSIBILITY OR OBLIGATION TO TRANSMIT, PROCESS, STORE, RECEIVE OR DELIVER TRANSACTIONS OR POSTINGS OR FOR ANY FAILURE OR DELAY ASSOCIATED WITH ANY POSTINGS AND YOU ARE HEREBY EXPRESSLY ADVISED NOT TO RELY UPON THE TIMELINESS OR PERFORMANCE OF PICTORIOUS FOR ANY TRANSACTIONS OR POSTINGS. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES OR CERTAIN LIMITATIONS ON DAMAGES AND REMEDIES; ACCORDINGLY, SOME OF THE EXCLUSIONS AND LIMITATIONS DESCRIBED IN THIS AGREEMENT MAY NOT APPLY TO YOU.

 

Waiver and Severability

 

The failure of Pictorious to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of this Agreement is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of the Agreement will remain in full force and effect.

 

14. Indemnification

 

You (and also any third party for whom you operate an account or activity on the Service) agree to defend (at Pictorious' request), indemnify and hold Pictorious, its Parent Companies, and any of their Affiliates, or any of their successors and assigns, and any of their respective officers, directors, employees, agents, representatives, licensors, Advertisers, suppliers, and operational service providers harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) your Content or your access to or use of the Service; (ii) your breach or alleged breach of these Terms of Use; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all

regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by Pictorious in the defense of any claim. Pictorious reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the

prior written consent of Pictorious.

 

15. Law That Applies to This Agreement; Miscellaneous Terms

 

This Agreement, together with any Additional Terms, Rules, our Privacy Policy and any other regulations, procedures and policies which we refer to and which are hereby incorporated by reference, contains the entire understanding and agreement between you and Pictorious and supersedes any and all prior or inconsistent understandings relating to Pictorious and your use of our Services. This Agreement cannot be changed or terminated orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this will not affect any other provisions and the Agreement will be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or your use of Pictorious, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose).

 

This Agreement and your use of Pictorious is governed by, construed and enforced in accordance with the internal substantive laws of California (notwithstanding the State's conflict of laws provisions or your state or country of residence) applicable to contracts made, executed and wholly performed in California, and, for the purposes of any

and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in the State and County of Los Angeles and agree you will not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non convenient or otherwise. To the extent

it may be applicable, you agree to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act.

 

This Agreement was last modified on the date indicated  and is effective between you and Pictorious immediately upon your access to or use of the Service. It, the Privacy Agreement, and the User Content Submission Agreement are the entire and exclusive agreement between Pictorious and you regarding the Services (excluding any services for which you have a separate agreement with Pictorious that is explicitly in addition or in place of these Terms), and these Terms supersede and replace any prior agreements between Pictorious and you regarding the Services. Other than members of the group of companies of which App Stallion Inc. is the parent, no other person or company will be third party beneficiaries to the Terms.

We may revise these Terms periodically. The most current version will always be posted on Pictorious. If, at our sole discretion, we believe the revision is material, we will notify you on the Pictorious Site and Mobile Application, and may also notify you via e-mail to the email associated with your Pictorious account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.

 

These Services and Contests are operated, provided and hosted by Pictorious, owned and operated by App Stallion Inc. If you have any questions about these Terms, please contact us.

 

Pictorious Contact Information:

info@pictorious.com

 

16. Arbitration Policy

 

ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND PICTORIOUS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. Except if you opt-out or for disputes relating to: (1) your or Pictorious’ intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents); (2) violations of the API Terms; or (3) violations of the terms of use pertaining to the disruption of/or interference with Services, and the creation of service accounts through unauthorized means, you agree that all disputes between you and Pictorious (whether or not such dispute involves a third party) with regard to your relationship with Pictorious, including without limitation disputes related to these Terms of Use, your use of the Service, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the American Arbitration Association's rules for arbitration of consumer-related disputes and you and Pictorious hereby expressly waive trial by jury. As an alternative, you may bring your claim in your local "small claims" court, if permitted by that small claims court's rules. You may bring claims only on your own behalf. Neither you nor Pictorious will participate in a class action or class-wide arbitration for any claims covered by this agreement. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Pictorious is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either you or Pictorious can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Use.

 

You may opt out of this agreement to arbitrate. If you do so, neither you nor Pictorious can require the other to participate in an arbitration proceeding. To opt out, you must notify Pictorious in writing within thirty (30) days of the date that you first became subject to this arbitration provision. You must use this address to opt out:

App Stallion Inc. info@pictorious.com

 

You must include your name and residence address, the email address you use for your Pictorious account, and a clear statement that you want to opt out of this arbitration agreement. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with Pictorious. Time Limitation on Claims You agree that any claim you may have arising out of or related to your relationship with Pictorious must be filed within one year after such claim arose; otherwise, your claim is permanently barred.