| 1 | Acceptable Use of the Websites and PicMonkey Services; Prohibited Conduct |
| 1.1 | You must be 13 years or older to use this site. |
| 1.2 | If you are entering into these Terms of Use on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such entity to this agreement, in which case "you" or "your" will refer to such entity. |
| 1.3 | You may not use the PicMonkey Services or Websites for any illegal or unauthorized purpose or in violation of any local, state, national, or international law. International users agree to comply with all local laws regarding online conduct and acceptable content. |
| 1.4 | You are responsible for any activity that occurs under your account (including, if you are a manager of a PicMonkey Team Subscription under Section 12.1, those user accounts under your account). You may not authorize others to use your account, and you may not assign or otherwise transfer your account to any other person or entity. You agree to notify PicMonkey immediately of any unauthorized use of your account or any other breach of security. PicMonkey will not be liable for any loss that you may incur as a result of someone else using your account, either with or without your knowledge. However, you could be held liable for losses incurred by PicMonkey or another party due to someone else using your account. |
| 1.5 | If you choose, or are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party. If you believe that your account is no longer secure, then you must immediately notify us at help@picmonkey.com. |
| 1.6 | You must not abuse, harass, threaten, demean, embarrass, impersonate, intimidate, or otherwise harm other PicMonkey users. |
| 1.7 | You are solely responsible for your conduct and any data, text, fonts, overlays, information, graphics, profiles, files, images, photos, video, sounds, musical works, works of authorship, applications, links or any other materials (collectively, "Content") that you upload to, edit, transmit, and display using the Websites or PicMonkey Services excluding the PicMonkey Content (defined below) ("User Content"). PicMonkey does not manage or have responsibility for the User Content. |
| 1.8 | You must not modify, adapt or hack the Websites or PicMonkey Services or modify another website so as to falsely imply that it is associated with PicMonkey; and you must not interfere with security-related features of the Websites or PicMonkey Services, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Websites or the PicMonkey Services except to the extent that the activity is expressly permitted by applicable law. |
| 1.9 | You must not crawl, scrape, or otherwise cache any Content from the Websites or PicMonkey Services including but not limited to other User Content and PicMonkey Content. |
| 1.10 | You must not create or submit unwanted email or comments to any PicMonkey members or users; and you must not perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Website or PicMonkey Services account without permission, or falsifying your age or date of birth. |
| 1.11 | You must not interfere with the operation of the Websites or the PicMonkey Services or any user’s enjoyment of the Websites or the PicMonkey Services, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code or any code of a destructive nature; (b) making any unsolicited offer or advertisement to another user of the Websites or the PicMonkey Services; (c) collecting personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Websites or PicMonkey Services. |
| 1.12 | You must not violate, or encourage others to violate, (a) any right of a third party, including by infringing or misappropriating any third-party intellectual property right, or (b) any laws in your jurisdiction (including but not limited to copyright and trademark laws) in using the Websites or PicMonkey Services. |
| 1.13 | You must comply with our Acceptable Use and Take Down Policy. |
| 1.14 | While PicMonkey prohibits certain conduct and Content on the Websites and PicMonkey Services, you agree that PicMonkey cannot be responsible for the Content posted on its Websites or through the PicMonkey Services, and you nonetheless may be exposed to such materials and that you use the PicMonkey Services and Websites at your own risk. |
| 1.15 | We reserve the right to refuse services to anyone for any reason at any time. |
| 1.16 | We reserve the right to force forfeiture of any account that in the reasonable opinion of PicMonkey becomes inactive, violates the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, violates trademark law or other applicable laws, may mislead other users, or that otherwise violates these Terms of Use or our Acceptable Use and Take Down Policy. |
| 1.17 | PicMonkey will normally only delete Content that violates these Terms of Use or our Acceptable Use and Take Down Policy, however, PicMonkey reserves the right to delete any Content for any reason, without prior notice. Deleted Content may be stored by PicMonkey in order to comply with certain legal obligations and may not be retrievable without a valid court order. Consequently, PicMonkey encourages you to maintain your own backup of User Content. In other words, PicMonkey is not a backup service. PicMonkey will not be liable to you for any modification, suspension, or discontinuation of the PicMonkey Services or Websites, or the loss of any Content. This does not impact your rights under European Data Protection legislation – please see our Privacy and Cookies Policy for more information about your rights. |
| 2 | Disclaimers; No Warranties; Limitation of Liability |
| 2.1 | Disclaimers; No Warranties.| a. | THE WEBSITES AND PIC MONKEY SERVICES AND ALL MATERIALS (defined below) AND CONTENT (INCLUDING PICMONKEY CONTENT (defined below)) AVAILABLE THROUGH THE WEBSITES AND PIC MONKEY SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PICMONKEY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE WEBSITES AND PIC MONKEY SERVICES AND ALL MATERIALS AND CONTENT (INCLUDING PICMONKEY CONTENT) AVAILABLE THROUGH THE SERVICE, INCLUDING: (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PICMONKEY DOES NOT WARRANT THAT THE WEBSITES AND PIC MONKEY SERVICES OR ANY PORTION OF THE WEBSITES AND PIC MONKEY SERVICES, OR ANY MATERIALS OR CONTENT (INCLUDING PICMONKEY CONTENT) OFFERED THROUGH THE WEBSITES AND PIC MONKEY SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PICMONKEY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. | | b. | NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE WEBSITES, PIC MONKEY SERVICES OR PICMONKEY ENTITIES (defined below) OR ANY MATERIALS OR CONTENT (INCLUDING PICMONKEY CONTENT) AVAILABLE THROUGH THE WEBSITES AND PIC MONKEY SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE PICMONKEY ENTITIES OR THE WEBSITES AND PIC MONKEY SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS OF USE. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE WEBSITES AND PIC MONKEY SERVICES AND YOUR DEALING WITH ANY OTHER WEBSITES OR PIC MONKEY SERVICES USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE WEBSITES OR PIC MONKEY SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT. | | c. | THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. PicMonkey does not disclaim any warranty or other right that PicMonkey is prohibited from disclaiming under applicable law. | | d. | Where our Websites contain links to websites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of these websites or resources. |
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| 2.2 | Limitation of Liability.| a. | TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PICMONKEY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE WEBSITES OR PIC MONKEY SERVICES OR ANY MATERIALS OR CONTENT (INCLUDING PICMONKEY CONTENT) ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PICMONKEY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. | | b. | EXCEPT AS PROVIDED IN SECTIONS 9 AND 10 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE PICMONKEY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE WEBSITES OR PIC MONKEY SERVICES OR OTHERWISE UNDER THESE TERMS OF USE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO PICMONKEY FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100. | | c. | EACH PROVISION OF THESE TERMS OF USE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS OF USE. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 2 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. |
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| 3 | Variations to the Websites and Terms of Use |
| 3.1 | We reserve the right to change these Terms of Use on a going-forward basis at any time. Please check these Terms of Use periodically for changes. If a change to these Terms of Use materially modifies your rights or obligations, we may require that you accept the modified Terms of Use in order to continue to use the Websites and PicMonkey Services. Material modifications are effective upon your acceptance of the modified Terms of Use. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 3.1, these Terms of Use may be amended only by a written agreement signed by authorized representatives of the parties to these Terms of Use. Disputes arising under these Terms of Use will be resolved in accordance with the version of these Terms of Use that was in effect at the time the dispute arose. |
| 3.2 | Any changes to these Terms of Use will be posted on the Websites. Your continued use of any portion of the Websites or any PicMonkey Services following notification or posting of such changes will constitute your acceptance of those changes. If you do not agree to be bound by the changes, then you may no longer use the PicMonkey Services or Websites. |
| 4 | Advertising |
| 4.1 | Some of the PicMonkey Services provided through the Websites are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that PicMonkey may place such advertising and promotions on the Websites and/or the PicMonkey Services or on, about, or in conjunction with User Content. The manner, mode and extent of such advertising and promotions are the sole discretion of PicMonkey and subject to change without specific notice to you. This does not affect your rights under European Data Protection or e-Privacy Laws. |
| 5 | User Content; Indemnity |
| 5.1 | User Content Generally; Limited License Grants.| a. | User Content Generally. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Websites or through the PicMonkey Services. | | b. | Limited License Granted to PicMonkey. By providing User Content to or via the Websites or the PicMonkey Services, you hereby grant PicMonkey a non-exclusive, irrevocable, fully paid, transferable, sublicensable, worldwide, royalty-free, perpetual license to host, transfer, display, use, store, perform, reproduce, copy, modify for the purpose of formatting for display, and create derivative works based upon User Content and to distribute and make available to third parties the User Content, in whole or in part, in any media formats and through any media channels no known or hereafter developed, for all purposes in connection with operating the Websites and providing the PicMonkey Services. | | c. | Limited License Granted to Other Users. By providing User Content to or via the Websites and PicMonkey Services to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms of Use and the functionality of the Websites and the PicMonkey Services. As between the respective users, any rights to User Content created in collaboration with others (including via the Collaborations Feature), will be determined between such collaborating users. For clarity, the distribution of rights among users will not affect the licenses such users grant to PicMonkey herein. |
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| 5.2 | User Content Representations and Warranties. PicMonkey disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Websites and the PicMonkey Services. By providing User Content via the Websites and the PicMonkey Services, you affirm, represent, and warrant that:| a. | you are the creator or owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize PicMonkey and users of the Websites and the PicMonkey Services to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by PicMonkey, the Websites and the PicMonkey Services, and these Terms of Use; | | b. | your uploading, using, and inviting Collaborators (defined below) to upload and use the User Content on or through the Websites and/or the PicMonkey Services or which may incorporate the PicMonkey Content (in accordance with the terms hereof) does not and will not: (a) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) cause PicMonkey to violate any law or regulation; | | c. | your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate; and | | c. | your uploading, using, and inviting Collaborators to upload and use User Content on the Websites and PicMonkey Services is not in breach of contract between you and a third party. |
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| 5.3 | Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Websites and the PicMonkey Services, and you will defend and indemnify PicMonkey and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “PicMonkey Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Websites and the PicMonkey Services; (b) your violation of any portion of these Terms of Use, any representation, warranty, or agreement referenced in these Terms of Use, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims. You may not settle any claim without our prior written consent. |
| 5.4 | User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. PicMonkey may, however, at any time and without prior notice screen, remove, edit, block or suspend any Content or User Content and accounts containing Content or User Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Use or our Acceptable Use and Take Down Policy. PicMonkey’s failure to enforce its right to remove and suspend Content and accounts in accordance with this Section 5.4, these Terms of Use, and the Acceptable Use and Take Down Policy does not constitute a waiver of PicMonkey’s ability to enforce such rights on a prospective basis. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against PicMonkey with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms of Use, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, PicMonkey does not permit copyright-infringing activities on the Websites or the PicMonkey Services. |
| 5.5 | The PicMonkey Services and Websites contain Content of users and other PicMonkey licensors. Except as provided within these Terms of Use, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content of users or other PicMonkey licensors appearing on or through the PicMonkey Services and Websites. |
| 5.6 | PicMonkey performs technical functions necessary to offer the PicMonkey Services and Websites, including but not limited to transcoding and reformatting Content to allow its use throughout the PicMonkey Services and Websites. |
| 5.7 | Monitoring Content. PicMonkey does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Websites and the PicMonkey Services by its users. You acknowledge and agree that PicMonkey reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Websites and the PicMonkey Services for operational and other purposes. If at any time PicMonkey chooses to monitor the content, PicMonkey still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy. |
| 6 | Licenses; Ownership; Proprietary Rights; PicMonkey Content |
| 6.1 | Licenses.| a. | Limited License. Subject to your complete and ongoing compliance with these Terms of Use, PicMonkey grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (i) install and use one object code copy of any mobile application associated with the Websites and the PicMonkey Services obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (ii) access and use the Websites and the PicMonkey Services. | | b. | Upgrades. These Terms of Use will also govern any upgrades that replace and/or supplement the PicMonkey Services or Websites, unless such upgrades are accompanied by a separate license, in which case the terms of that license will govern. | | c. | License Restrictions. PicMonkey grants the license in Section 6.1(a) to users subject always to the following restrictions: (i) the Websites and the PicMonkey Services may be used to reproduce materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce, (ii) except as and only to the extent expressly permitted in these Terms of Use or by applicable law, you may not reproduce, distribute, publicly display, publicly perform, copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the PicMonkey Services or Websites or any part thereof, make modifications to the Websites or PicMonkey Services, or interfere with or circumvent any feature of the Websites or the PicMonkey Services, and (iii) subject to the terms and conditions set out in these Terms of Use and our Acceptable Use and Take Down Policy. If you are prohibited under applicable law from using the Websites or the PicMonkey Services, you may not use them. |
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| 6.2 | Ownership; Proprietary Rights. The Websites and the PicMonkey Services contain Content of PicMonkey and or its licensors (including content from Getty Images as further described in Section 6.5) (collectively, "PicMonkey Content"). PicMonkey Content is protected by copyright, trademark, patent, trade secret and other laws, and PicMonkey and/or its licensors owns and retains all rights in the PicMonkey Content and the PicMonkey Services. PicMonkey provides font attribution at https://www.picmonkey.com/_/static/Font%20Attribution.docx and software attribution at https://www.picmonkey.com/_/static/PicMonkey_Software_Attribution.docx. PicMonkey may remove any items of PicMonkey Content at any time, in its sole discretion, and subject to request of its licensors. The Websites and PicMonkey Services are owned and operated by PicMonkey. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, PicMonkey Content, and all other elements of the Websites and the PicMonkey Services ("Materials") provided by PicMonkey are protected by intellectual property and other laws. All Materials included in the Websites and the PicMonkey Services are the property of PicMonkey or its third party licensors. Except as expressly authorized by PicMonkey, you may not make use of the Materials. PicMonkey reserves all rights to the Materials not granted expressly in these Terms of Use. You must not sell or otherwise transfer the access granted under these Terms of Use or any Materials or any right or ability to view, access, or use any Materials. |
| 6.3 | PicMonkey hereby grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to:| 6.3.1 | reproduce and display the PicMonkey Content (excluding any software code) solely for your personal use in connection with accessing and using the Websites and PicMonkey Services; and | | 6.3.2 | reproduce and use the PicMonkey Content (excluding any software) solely to the extent required in connection with your use of your own User Content or your authorized use of Collaborators’ User Content, subject to the following conditions:- such use of the PicMonkey Content must be in connection with a composition of images, texts, videos, or other Content created by you or your Collaborators that incorporates substantial or significant change to the PicMonkey Content;
- you will ensure that any use made of the PicMonkey Content complies in full with the provisions of these Terms of Use and in particular that such use will not violate any applicable laws or infringe upon the intellectual property rights or any other rights of any person; and
- any use made of the PicMonkey Content shall include an acknowledgement that PicMonkey and its licensors retain ownership of all intellectual property rights in the PicMonkey Content and that this Content is being provided under license by PicMonkey.
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| 6.4 | PicMonkey may terminate any license granted pursuant to Section 6.3 with immediate effect in the event that any use of the PicMonkey Content does not comply with the provisions of these Terms of Use or otherwise at PicMonkey’s reasonable discretion. |
| 6.5 | Certain functionalities of the Websites and the PicMonkey Services may provide users access to images provided by the visual media company, Getty Images, Inc. (“Getty Content”). You can gain access to Getty Content in the PicMonkey editor by clicking Photos, then choosing a thumbnail that shows in the gallery. An "iStock by Getty Images" watermark will identify which photos are Getty Content. By using any Getty Content available on the Websites or the PicMonkey Services, you hereby acknowledge and agree to the following terms and conditions:| a. | there are no ownership or intellectual property rights in the Getty Content are granted to any users; | | b. | you may not download, republish, retransmit, reproduce, syndicate, distribute, or otherwise use any Getty Content as a stand-alone file or on a stand-alone basis with no other content; | | c. | you may not manipulate or otherwise make any use of Getty Content separate and apart from your use of your own User Content as permitted by these Terms of Use, including, without limitation, the requirements of Section 6.3, or in any manner except as expressly provided in these Terms of Use; | | d. | you may not remove any metadata in the Getty Content; | | e. | you may only use Getty Content in connection with your use of your own User Content created via the Websites and PicMonkey Services; | | f. | you may not sell, modify, re-use, re-sell, distribute, display, reproduce or make any other use of Getty Content not expressly provided in these Terms of Use; | | g. | you may not activate the “right-click” function in Getty Content; | | h. | you may crop or otherwise edit Getty Content for technical quality, provided that the editorial integrity of the Getty Content, as applicable, is not compromised and is otherwise not altered; | | i. | you may not make Getty Content available (separate from the end product into which it is incorporated) in any medium accessible by third parties; | | j. | you may not sell, license or distribute Getty Content in a manner intended to allow or invite a third party to download, extract, redistribute or access the Getty Content as a stand-alone file; | | k. | you may not use or display Getty Content on websites or in any other medium designed to induce or involving the sale, license or other distribution of “on demand” products (e.g., products in which Getty Content is selected by a third party for customization of the product on a made-to-order basis), including, without limitation, postcards, mugs, t-shirts, calendars, posters, electronic greeting cards, wallpaper or ringtones for mobile telephones and other items; | | l. | you may not directly or indirectly, reproduce Getty Content in any secondary reproductions, such as compilations, screen shots, in-context promotions or on file-sharing or social networking websites such as YouTube, Facebook, Myspace, Bebo, etc.; | | m. | you may not falsely represent, expressly or impliedly, that you are the original creator of a visual work that derives a substantial part of its artistic components from Getty Content, nor may you make Getty Content available in the form of fine art prints; | | n. | you may not incorporate Getty Content into a logo, corporate ID, trademark or service mark; | | o. | Getty Content is provided on an “as is” and “as available” basis; | | p. | you may not use Getty Content as follows:- in an editorial manner (i.e., relating to events that are newsworthy or of public interest);
- for pornographic, defamatory or other unlawful purposes;
- in electronic templates used to create electronic or printed products;
- in physical or digital retail products, such as e-cards, calendars, posters, or screensavers;
- for the purpose of enabling file-sharing of the image file; or
- in logos, trademarks, services marks or any other branding or identifiers;
- featuring an individual(s) in connection with a sensitive, unflattering or controversial subject without including a statement that the image is used for illustrative purposes only and the individual(s) is a model;
- in an electronic template intended to be reproduced by third parties on electronic or printed products;
- if the Getty Content contains a professional or collegiate sports image; or
- in an audiovisual production;
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| 6.6 | Third-Party Terms| a. | Third-Party Services and Linked Websites. PicMonkey may provide tools through the Websites or the PicMonkey Services that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on PicMonkey with an account on the third party service, such as Youtube, Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that PicMonkey may transfer that information to the applicable third party service. Third party services are not under PicMonkey’s control, and, to the fullest extent permitted by law, PicMonkey is not responsible for any third party service’s use of your exported information. The Websites or the PicMonkey Services may also contain links to third party websites. Linked websites are not under PicMonkey’s control, and PicMonkey is not responsible for their content. You should review Third-Party Services Terms of Service agreements. (Youtube here, Twitter here, Facebook here) | | b. | Third Party Software. The Websites or the PicMonkey Services may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Websites or the PicMonkey Services is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses. |
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| 7 | Availability |
| 7.1 | Although the Websites and PicMonkey Services are normally available, there will be occasions when the Websites or other PicMonkey Services will be interrupted for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and equipment that are beyond the control of PicMonkey. The Websites and PicMonkey Services are provided on an “as is” and “as available” basis. |
| 8 | Feedback |
| 8.1 | We appreciate your suggestions, comments, and feedback about the PicMonkey Services, Websites, or PicMonkey’s other products or services ("Feedback"). Any Feedback you provide is voluntary, and PicMonkey has no obligation to use any Feedback. You irrevocably and perpetually grant to PicMonkey a worldwide, unrestricted, non-exclusive, fully paid, royalty-free, transferable, sublicensable right and license to make, use, reproduce, prepare derivative works based upon, distribute, publicly perform, publicly display, transmit, and otherwise commercialize the Feedback, improve the Websites and PicMonkey Services and create other products and services, without crediting any such Feedback to its author in any way and for any purpose. |
| 9 | Governing Law, Jurisdiction and Venue |
| 9.1 | In respect of users of the Websites or PicMonkey Services in the United States, these Terms of Use are governed by the laws of the State of Washington without regard to conflict of law principles. You and PicMonkey submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for resolution of any lawsuit or court proceeding permitted under these Terms of Use. We operate the Websites and PicMonkey Services from our offices in Washington, and we make no representation that Materials included in the Websites and PicMonkey Services are appropriate or available for use in other locations. |
| 9.2 | For all other users, these Terms of Use, your access and use of the PicMonkey Services and Websites and the relationship between you and PicMonkey International Limited is governed by the laws of Ireland. You and we both agree to submit to the non-exclusive jurisdiction of the courts of Ireland, which means that to the extent permitted under applicable laws, you may bring a claim to enforce your consumer protection rights in connection with these Terms of Use in Ireland or in the country in which you live. Please direct any complaints you might have in relation to our services to help@picmonkey.com. Complaints can also be made via the European Commission’s Online Dispute Resolution Platform, available here http://ec.europa.eu/consumers/odr/. |
| 10 | US ONLY: Dispute Resolution and Arbitration |
| 10.1 | PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND HOW CLAIMS THAT YOU AND PICMONKEY HAVE AGAINST EACH OTHER ARE RESOLVED. |
| 10.2 | This Section 10 is deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act. You and PicMonkey agree that we intend for this Section 10 to satisfy the "writing" requirement of the Federal Arbitration Act. This Section 10 can only be amended by mutual agreement. |
| 10.3 | We believe that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that you may have with us. Therefore, pursuant to these Terms of Use, if you have any dispute or disagreement with us regarding (i) your use of or interaction with the Websites or PicMonkey Services, (ii) any purchases or other transactions or relationships with PicMonkey, or (iii) any data or information you may provide to PicMonkey or that PicMonkey may gather in connection with such use, interaction or transaction (collectively, "PicMonkey Transactions or Relationships"), you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF USE OR ENGAGING IN ANY OTHER PICMONKEY TRANSACTIONS OR RELATIONSHIPS WITH US, YOU AND PICMONKEY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. |
| 10.4 | We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with us. If those efforts fail, by using our Websites or PicMonkey Services, you agree that any complaint, dispute, or disagreement you may have against PicMonkey, and any claim that PicMonkey may have against you, arising out of, relating to, or connected in any way with these Terms of Use, our Privacy Policy, or any PicMonkey Transactions or Relationships shall be resolved exclusively by final and binding arbitration ("Arbitration") administered by JAMS or its successor ("JAMS") and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the "Applicable Rules"). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor ("AAA") instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the "Applicable Rules" in such circumstances). If JAMS (or, if applicable, AAA) at the time the arbitration is filed has Minimum Standards of Procedural Fairness for Consumer Arbitrations ("Minimum Standards") in effect which would be applicable to the matter in dispute, PicMonkey agrees to provide the benefit of such Minimum Standards to you to the extent they are more favorable than the comparable arbitration provisions set forth in this Section, provided, however, that in no event may such Minimum Standards contravene or restrict the application of subpart (e) or (i) below. Furthermore, this Section shall not prevent any party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. You further agree that:- Single Arbitrator. The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and PicMonkey ("Arbitrator");
- Arbitrator Will Interpret This Agreement. The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms of Use and/or these arbitration provisions in this Section hereof, including but not limited to any claim that all or any part of these Terms of Use is void or voidable;
- Location of Arbitration. The Arbitration shall be held either: (i) at a location determined by JAMS (or, if applicable, AAA) pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and PicMonkey; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission.
- Governing Law. The Arbitrator (i) shall apply internal laws of the State of Washington consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with Washington or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;
- No Class Actions. YOU AND PICMONKEY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and PicMonkey agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding;
- Written Award. The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an "Award"). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;
- Arbitration Costs. In the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, PicMonkey will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;
- Reasonable Attorney’s Fees. In the event you recover an Award greater than PicMonkey’s last written settlement offer, the Arbitrator shall also have the right to include in the Award PicMonkey’s reimbursement of your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but PicMonkey shall in all events bear its own attorneys’ fees;
- Interpretation and Enforcement of Arbitration Clause. With the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor PicMonkey shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction;
- Modification to this Arbitration Provision. If PicMonkey makes any future change to this arbitration provision, other than a change to PicMonkey’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to PicMonkey’s address for Notice of Arbitration, in which case your account with PicMonkey will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive;
- Small Claims Matters are Excluded. No class relief or joinder of claims. Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against PicMonkey in your local small claims court within the U.S., if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding;
- Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 10 within 30 days after the date that you agree to these Terms of Use by sending a letter to PicMonkey, LLC, Attention: Legal Department – Arbitration Opt-Out, [1505 5th Ave. Suite 500, Seattle, WA 98101] that specifies: your full legal name, the email address associated with your account on the Websites or the PicMonkey Services, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once PicMonkey receives your Opt-Out Notice, this Section 10 will be void and any action arising out of these Terms of Use will be resolved as set forth in Section 9.1. The remaining provisions of these Terms of Use will not be affected by your Opt-Out Notice;
- Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). PicMonkey’s address for Notice is: PicMonkey, LLC, [1505 5th Ave. Suite 500, Seattle, WA 98101]. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or PicMonkey may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or PicMonkey must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by PicMonkey in settlement of the dispute prior to the award, PicMonkey will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000; and
- Enforceability. If Section 10(e) or the entirety of this Section 10 is found to be unenforceable, or if PicMonkey receives an Opt-Out Notice from you, then the entirety of this Section 10 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 9.1 will govern any action arising out of or related to these Terms of Use.
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| 11 | Term, Termination and Modification of the Service |
| 11.1 | Term. These Terms of Use are effective beginning when you accept the Terms of Use or first download, install, access, or use the Websites or the PicMonkey Services, and ending when terminated as described in Section 11.2. |
| 11.2 | Termination. If you violate or fail to comply with any provision of these Terms of Use or Acceptable Use Policy, your authorization to access the Websites and the PicMonkey Services automatically terminate, and PicMonkey, at its sole discretion, may: (i) terminate your PicMonkey account, at any time for any reason or no reason, with or without notice, and you will remain liable for all amounts due up to and including the date of termination; and/or (ii) terminate your access to the Websites and PicMonkey Services (or any part thereof) at any time for any reason or no reason, with or without notice. [You may terminate your account and these Terms at any time by [describe termination process or] contacting customer service at help@picmonkey.com.] |
| 11.3 | Effect of Termination. Upon termination of these Terms of Use: (a) your license rights will terminate and you must immediately cease all use of the Websites and the PicMonkey Services; (b) you will no longer be authorized to access your account or the Websites and the PicMonkey Services; (c) you must pay PicMonkey any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 2 (Disclaimers; No Warranties; Limitation of Liability), 5.1(b) (Limited License Grant to PicMonkey), 5.3 (Indemnity), 6.2 (Ownership; Proprietary Rights), 8.1 (Feedback), 11.3 (Effect of Termination), 10 (Dispute Resolution and Arbitration), and 14 (Miscellaneous) will survive. |
| 11.4 | Reclaiming of Accounts. We reserve the right to reclaim accounts on behalf of businesses or individuals that hold legal claim or trademark on those accounts. |
| 11.5 | Modification of the Service. PicMonkey reserves the right to modify or discontinue the Websites or the PicMonkey Services at any time (including by limiting or discontinuing certain features of the Websites or the PicMonkey Services), temporarily or permanently, without notice to you. PicMonkey will have no liability for any change to the Websites or the PicMonkey Services or any suspension or termination of your access to or use of the Websites or the PicMonkey Services. |