Terms of service


Terms of Service

PLEASE READ THESE TERMS OF USE CAREFULLY BECAUSE THEY DESCRIBE YOUR RIGHTS AND

RESPONSIBILITIES

Basic Terms

This is the official Terms of Use Agreement ("Agreement") for Pictorious.com, the Site and Mobile Application,

together (“Pictorious”). Pictorious is offered by SMS Now, LLC. This Agreement governs your access to and use of

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"). Your access to and use of the

Services are conditioned on your acceptance of and compliance with these Terms. By accessing or using the

Services you agree to be bound by these Terms.

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 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, please discontinue using Pictorious immediately or, if for any reason, you do not agree

with all of the terms and conditions contained in this Agreement, please discontinue using Pictorious immediately,

because 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 and conditions regarding your use of Pictorious constitute a legally binding agreement between you,

SMS Now, LLC. In this Agreement, “Pictorious” includes 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

We may require each user to have a unique user name and password combination in order to access and use certain

features or functions of Pictorious 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. Please read our Privacy Policy, which

describes the personally identifiable information ("Personal Information") we collect, use, disclose, manage and store.

As part of the registration process for the feature or function, you will choose a user name and password (or we may

assign an initial password which we will give you the option to change). 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.

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 and if you use Pictorious after they become effective it 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 contents 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 are legally protected, without limitation, under U.S. Federal and State, as well

as applicable foreign laws, regulations and treaties.

Unless the context clearly requires otherwise or we explicitly say so 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 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 SMS Now, LLC. 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 its services of anyone

who uses them to repeatedly to infringe the intellectual property rights of others.

SMS Now, LLC grants the User a limited, nonexclusive, revocable license to access and make personal, non-

commercial use of the contents 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 and 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, 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 anyone else;

 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 rights of ours or 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 the terms and conditions of

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, users 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’s 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 SMS Now, LLC

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 SMS Now, LLC 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 (y)

and the individual's full legal name, current address, date of birth. With the submission of each such Posting, SMS

Now, LLC 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 to delete, re-format and/or change your Postings in

any manner that we may determine (although you will not be responsible for any such changes made).

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 legal@smsintel.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

thisTerms of Use Policy. 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 users 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, whether Pictorious's, 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 and then 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 PICTORIOUS MATERIALS, PRODUCTS AND POSTINGS ARE MADE AVAILABLE ON AN "AS IS" AND "AS

AVAILABLE" BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR

IMPLIED, OR ANY GUARANTY OR ASSURANCE PICTORIOUS WILL BE AVAILABLE FOR USE, OR THAT ALL

PRODUCTS, FEATURES, FUNCTIONS OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED.

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 SMS Now, LLC, 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 these Terms 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 these Terms 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's 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 conveniens 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 Terms of Use Agreement was last modified on the date indicated above and is effective immediately.

These Terms, the Privacy Agreement, andUser 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 SMS Now LLC. 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 are operated and provided by Pictorious, owned and operated by SMS Now, LLC. If you have any

questions about these Terms, please contact us.

Pictorious Contact Information:

INFO{AT}PICTORIOUS{DOT}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’s 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 30 days of the date that

you first became subject to this arbitration provision. You must use this address to opt out:

SMS NOW LLC, info{at}pictorious{dot}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.