PicCaster, Inc. (“PicCaster,” “we,” “us” or “our”) and the person or entity agreeing to these terms (“Customer” or “you”) would like to set out the general terms and conditions for (i) you to access and use the PicCaster Services and provide Customer Data to PicCaster and (ii) PicCaster to provide the Services to you and use the Customer Data when performing the Services.
BY CLICKING ACCEPT, BY USING THE SERVICES OR BY PAYING ANY INVOICE REFERENCING THESE TERMS, YOU ARE AGREEING TO THE TERMS IN THIS AGREEMENT. Customer and PicCaster agree that this Agreement along with Customer’s order for the Services (whether submitted through our website or executed as a separate document, an “Order”) is effective on the date Customer orders the Services. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to commit the entity to the Agreement and the term “Customer” or “you” will refer to that entity. If you do not have this authority, are under the age of 18 or if you do not agree with the Agreement, you must not accept these terms and you may not access or use the Services.
MAKE SURE YOU READ THIS AGREEMENT, THE ORDER, THE PRIVACY POLICY AND THE ACCEPTABLE USE POLICY. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS TO USE PICCASTER. The Order provides the specific terms and conditions regarding Customer’s subscription for the Services, such as User limitations, pricing methodologies and the length of the term PicCaster will provide the Services (“Subscription Term”). These terms and conditions and the PicCaster Privacy Policy located at https://piccaster.com/privacy in addition to the Order, is the “Agreement” between Customer and PicCaster.
In addition to the terms otherwise defined in this Agreement or an Order, the following terms have the definitions below:
1.1. "Customer Data” means any content, data, information or material that is recorded by, submitted to or stored by, the Services, including, but not limited to, Personal Data.
1.2. “Personal Data” means all information relating to a person that identifies such person or could reasonably be used to identify such person, including but not limited to, as first and last name, home address, billing address, or other physical address, email address, telephone number and Sensitive Data, if any.
1.3 “Sensitive Data” means any information that: (a) requires a high degree of protection by law and where loss or unauthorized disclosure would require notification by Customer to government agencies, individuals or law enforcement, (b) any information that, if made public, could expose individuals to a risk of physical harm, fraud, or identity theft. Sensitive Data includes, but is not limited to, social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, CVVs, credit report information or other personal financial information, health or medical information or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted regarding data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children’s Online Privacy Protection Act and the Gramm-Leach-Bliley Act
1.4. “Services" means the content, features, functionality, tools, data, software applications and APIs provided by PicCaster via https://piccaster.com and/or other designated websites as described in the User Guide, that are ordered by Customer in an Order, as updated from time to time.
1.5. "User Guide" means the online user guide for the Services accessible at docs.piccaster.com, as updated from time to time.
1.6. "Users" means individuals who are authorized by Customer to use the Services, for whom subscriptions to the Services have been purchased under an Order, and who have been supplied user identifications and passwords by Customer (or by PicCaster, at Customer’s request). Users may include Customer’s employees, consultants, contractors and agents or third parties with which Customer transacts business.
Subject to the terms and conditions of this Agreement and the Order, for the length of the term set forth in the applicable Order, PicCaster grants Customer, a non-exclusive, non-transferable, non-assignable (except as set out in Section 17 below), worldwide, limited right to access and use the Services (as such Services may be modified, revised and updated in accordance with this Agreement) for collecting and analyzing web data on Customer’s site(s) and/or native applications, for Customer’s own internal business purpose.
Customer agrees that it will not provide any Sensitive Data to PicCaster. If Customer discovers that due to human error or otherwise, Customer Data does include Sensitive Data, Customer will promptly notify PicCaster and provide sufficient information to PicCaster to locate such Sensitive Data and PicCaster will use commercially reasonable efforts to delete such Sensitive Data from its systems. PicCaster will maintain appropriate administrative, physical, and technical safeguards intended to protect the security, confidentiality and integrity of Customer Data and will comply with the PicCaster Privacy Policy. As between Customer and PicCaster, Customer owns all Customer Data and except as specifically provided in this Agreement or otherwise agreed to in writing between the parties, PicCaster has no right to such Customer Data. Customer grants to PicCaster a non-exclusive, royalty-free license to access and use Customer Data in order to provide the Services to Customer and to monitor and improve its services. PicCaster will not (a) disclose Customer Data except as compelled by law or as expressly permitted in writing by you, or (b) access Customer Data except to provide the Services or prevent or address service or technical problems, or at your request in connection with customer support matters. For the avoidance of doubt, PicCaster may use, reproduce and disclose Customer Data that is anonymized, de-identified, or is otherwise not reasonably associated or linked to Customer (or any other identifiable individual person or entity) (“Anonymized Data”) for product improvement and other purposes consistent with PicCaster’s Privacy Policy. This right to use Anonymized Data will survive termination of this Agreement. Customer, not PicCaster, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data.
4.1. Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has business, technical or financial information relating to Disclosing Party’s business which it has disclosed or may disclose during this Agreement (“Confidential Information”). PicCaster’s Confidential Information includes non-public information regarding features, functionality and performance of the Services, as well as all user visible aspects of the Services. Customer’s Confidential Information includes information provided by Customer to PicCaster to enable the provision of the Services as well as all Customer Data. The terms and conditions of this Agreement, including all pricing and related metrics, are each party’s Confidential Information.
4.2. Non-Use. Receiving Party agrees that it will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of Disclosing Party. Without limiting the foregoing, Receiving Party will take at least those measures that it takes to protect its own most important confidential information. Receiving Party agrees (i) not to use any Confidential Information of Disclosing Party for any purpose except to perform its obligations or exercise its rights under this Agreement and (ii) not to disclose any Confidential Information of Receiving Party to third parties or to such party's employees, officers, agents, contractors or other representatives (“Personnel”), except to those Personnel of Receiving Party who need or have access to such Confidential Information in order to perform works in connection with this Agreement and are subject to confidentiality obligations consistent with those of this Agreement.
4.3. Exceptions. Disclosing Party agrees that these confidentiality obligations will not apply to any information that Receiving Party can document (i) is or becomes generally available to the public; (ii) was in its possession or known by it prior to receipt from Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; and/or (iv) was independently developed without use of any Confidential Information of Disclosing Party. Nothing in this Section 4 precludes either party from disclosing the other party’s Confidential Information as required by law or a legal process, provided that such party (a) gives the other party prior written notice sufficient to permit the other party to contest the disclosure or seek a protective order (or other confidential treatment) and (b) reasonably cooperates with the other party in limiting the disclosure. In addition, a party may disclose information concerning this Agreement and the transactions contemplated under this Agreement, including providing a copy of this Agreement, to any or all of the following: (1) potential acquirers, merger partners, investors and their personnel, attorneys, auditors and investment bankers, solely in connection with the due diligence review of such party by persons and provided that the disclosures are made in confidence, (2) the party’s outside accounting firm, or (3) the party’s outside legal counsel.
4.4. Return of Confidential Information. Promptly following the earlier of (i) the expiration or earlier termination of this Agreement, or (ii) the request of Disclosing Party, Receiving Party will return to Disclosing Party, or destroy, all Confidential Information that are in written, electronic or other tangible form (including, without limitation, all written or printed documents, notes, memoranda, email, or computer memory, whether or not prepared by Receiving Party) to the extent containing or summarizing any portion of the Confidential Information, including, without limitation, all copies and extracts of such Confidential Information. In addition, upon the request of Disclosing Party, Receiving Party will certify to Disclosing Party in writing Receiving Party’s and its Personnel’s compliance with its obligations pursuant to this Section 4.
4.5. Equitable Remedies. Receiving Party acknowledges that in the event of a breach of this Section 4 by Receiving Party, substantial injury could result to Disclosing Party and money damages will not be a sufficient remedy for such breach. In the event that Receiving Party engages in, or threatens to engage in any act which violates any provision of this Agreement, Disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of this Agreement. Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.
4.6. Redundancy. Notwithstanding anything to the contrary in this Agreement, (i) PicCaster may retain Confidential Information after termination of this Agreement for such period of time agreed to by Customer and PicCaster, (ii) to the extent that PicCaster is required by law to maintain copies of Confidential Information, Customer Data, or records related to disclosure or handling of Confidential Information, PicCaster will be under no obligation to destroy such information, (iii) PicCaster will be permitted to retain such information, as PicCaster reasonably determines necessary to demonstrate to Customer or any regulatory authority, PicCaster's compliance with this Agreement or any applicable law or regulation, and (iv) PicCaster will be permitted to retain such information in automatically created data backups, provided that PicCaster complies with its non-disclosure and non-use obligations under this Section 4 with respect to such information. At such time as PicCaster's basis for retaining such information ceases to exist, PicCaster will destroy such information as set forth above.
Except as permitted under this Agreement or as required by law, Customer will not, and will not permit or encourage anyone else, to:
(i) license, sublicense, sell, resell, transfer, assign, distribute, use as a service bureau or timeshare, or otherwise commercially exploit or make the Services available to any third party in any way;
(ii) modify, disassemble or make derivative works based upon the Services or otherwise attempt to derive source code or other trade secrets from the Services;
(iii) reverse engineer or access the Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Services, or (c) copy any ideas, features, functions or graphics of the Services;
(iv) modify, remove or obstruct any proprietary rights statement or notice contained in the Services;
(v) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
(vi) send or store (a) infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or which violates third party privacy rights; or (b) material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
(vii) attempt to gain unauthorized access to the Services or its related systems or networks;
(viii) access the Services if you are a direct competitor of PicCaster, except if PicCaster agrees in writing before you access the Services;
(ix) use the Services in excess of the number of sessions selected in the applicable Order; or
(x) provide false identity information to access or use the Services;
Customer is responsible for all activities occurring on any User’s account, including any liability to the extent arising from use of any such account by the appropriate User or any other individual. Customer agrees to comply with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s and its User’s use of the Services, including those related to data privacy. Customer is responsible ensuring that its Users comply with all applicable terms within this Agreement, and is liable for any non-compliance or misuse of the Services by its Users. Customer agrees that it will promptly notify PicCaster of any violation or suspected violation of this Agreement or any actual or suspected data or security breach. PicCaster reserves the right to review information posted by Users to ensure that it complies with this or any other section of this Agreement, and to amend it or delete it, or otherwise control such information in order to bring it into compliance with this Agreement and/or applicable law.
Subject to the terms of this Agreement, PicCaster will provide Customer with reasonable technical support services in accordance with PicCaster’s standard support offering. Our servers may be unavailable as the result of planned or unplanned downtime, for reasons including technical issues, legal compliance, security actions, business decisions, or any other cause. We may attempt to inform you if such downtime is planned, but we are under no obligation to do so. You agree that we are not liable for the unavailability of our Service.
7.1. PicCaster IP. Except for the limited right to access and use the Services under this Agreement and the applicable Order, Customer acknowledges and agrees that, as between the parties, PicCaster (or its licensors) have and will retain any and all rights, title, and interest in the Services, any software utilized to perform the Services and the User Guides (collectively, the “PicCaster Products”) and all derivative works made by any person or entity in or to the PicCaster Products, including, but not limited to, patents, copyrights, trademarks, trade secrets and other intellectual property and proprietary rights (collectively the “Intellectual Property Rights”) associated with the PicCaster Products. Customer will not assert or cause any other party (including, without limitation, any User) to assert any right, title, or interest in or to the PicCaster Products or other portion of PicCaster’s Intellectual Property Rights. Customer grants PicCaster a royalty-free, worldwide, transferable, sub-licensable (through multiple tiers), irrevocable, perpetual license to use or incorporate into its software or services, any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including its Users, relating to PicCaster's software, services or business operations. This Agreement is not a sale and, except as set forth in this Agreement, does not give Customer any rights of ownership in, or related to, the Services, any PicCaster software or the Intellectual Property Rights owned by PicCaster.
7.2. Customer IP. Except as set forth in this Agreement, this Agreement does not give PicCaster any rights of ownership in, or related to, any Intellectual Property Rights owned by Customer.
Customer agrees to comply with PicCaster’s Privacy Policy and Acceptable Use Policy. PicCaster reserves the right to modify the PicCaster Privacy Policy and Acceptable Use Policy in its reasonable discretion from time to time.
9.1. Fees. The Services are offered on a subscription basis and payments can be made via credit card. We will bill your credit card at the time and according to the rates and terms which are published on PicCaster’s website from time to time and which are incorporated into the Order. Customer may separately subscribe for separately priced modules, as and when released by PicCaster. All fees are in U.S. dollars. Customer must provide PicCaster with valid credit card information as a condition to signing up for the Services. Customer agrees that PicCaster may charge the credit card the fee for the entire Subscription Term unless otherwise agreed to in an Order. PicCaster will send notice to you if payment fails for any reason and you agree that you will immediately submit accurate credit card information for processing. It is your responsibility to make sure payment details are correct to prevent Service interruption and to allow successful renewal payments. If Customer believes that PicCaster has billed Customer incorrectly, Customer must contact PicCaster no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to support@piccaster.com. All Fee changes will be made prospectively and any Services that have been pre-purchased will not be affected by the change in Fees. Unless otherwise agreed to by the parties or as set forth on an Order, all Fees for any renewal periods will be based upon PicCaster’s then-prevailing rate. PicCaster may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by PicCaster within days after the mailing date of the invoice (unless otherwise specified on the Order). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate suspension or termination of Service.
9.2. Taxes. The fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases under this Agreement and any Order. If PicCaster has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 9, PicCaster will invoice Customer and Customer will pay that amount unless Customer provides PicCaster with a valid tax exemption certificate authorized by the appropriate taxing authority.
9.3. Suspension of Service and Acceleration. If any amount owing by Customer under this or any other Agreement with PicCaster is ten (10) or more days overdue, PicCaster may, without limiting its other rights and remedies, accelerate Customer's unpaid fee obligations under such Order so that all such obligations become immediately due and payable, and suspend any and all services until such amounts are paid in full. Customer will continue to be charged fees during any period of suspension. If Customer or PicCaster initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer’s account. Any use of the Services in violation of the Agreement by Customer that in PicCaster’s reasonable judgment threatens the security, integrity or availability of PicCaster’s services or that of its other customers, may result in PicCaster’s immediately suspending the Services.
10.1. Term. This Agreement will commence on its Effective Date and will remain in effect for the term set forth in the Order (“Initial Term”). The Agreement will automatically renew for successive terms equal to the Initial Term (each a “Renewal Term”), unless one party gives notice to the other party of its intent not to renew at least thirty (30) days prior to the expiration of the then current Term. The Initial Term together with any Renewal Term permitted under this Section is the “Term” of this Agreement. If there are any active Orders existing under this Agreement as of the expiration of the Term, which Orders are not otherwise terminated under this Agreement, the Term of this Agreement will continue with respect to an outstanding Order until expiration, termination or completion of each such Order.
10.2. Termination for Breach. Either party may terminate this Agreement or any Order at any time by giving written notice to the other party in the event that the other party is in breach of any of its obligations under this Agreement or any Order and fails to remedy such breach within thirty (30) days after written notice from the other party.
10.3. Termination for Convenience. Customer may terminate an Order for convenience only if all fees have been paid to PicCaster in respect of the then-current Initial Term or Renewal Term, as applicable. If Customer’s Order allows for payment on a monthly basis, then Customer may only terminate such Order for convenience upon payment in full of the amount remaining for the annual term of the Order. For the avoidance of doubt, no refunds will be provided in the case that Customer terminates for convenience.
10.4. Termination for Insolvency. If: (i) a party files a petition under any chapter of the United States Bankruptcy Code (11 U.S.C. §101 et. seq., as amended from time to time, or under any similar law or statute (each, an “Insolvency Statute”); (ii) a petition is filed under any such Insolvency Statute (provided that such petition is not dismissed within thirty (30) days of filing) or such party notifies the other party that such a petition will be filed under an Insolvency Statute; (iii) a party becomes or is declared insolvent, or is unable to pay its debts as they become due; (iv) a party is the subject of any proceedings related to dissolution, liquidation, insolvency or the appointment of a receiver, trustee or similar officer for all or a substantial part of such party's assets; or (v) a party makes an assignment for the benefit of all or substantially all of its creditors; then the other party may terminate this Agreement and all Orders as of a date specified in a termination notice.
10.5. Post Termination Obligations. Upon expiration or termination of this Agreement for any reason, PicCaster may terminate the Services at any time. PicCaster will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. All of Customer’s payment obligations are non-cancelable and all amounts paid by Customer are non-refundable, except in the event of a termination by Customer for PicCaster’s breach of the Agreement as set forth in Section 10.2 above, in which case PicCaster shall refund amounts already paid in respect of Services that have not yet been provided as of the effective date of such termination. Sections 1, 4, 7, 9, 10.5, 11.2, 12, 13 and 15 through 18 will survive any termination or expiration of this Agreement. All other rights and obligations will be of no further force or effect. Termination will not relieve either party from any liability arising from any breach of this Agreement. Neither party will be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Furthermore, termination of this Agreement by a party will be without prejudice to any other right or remedy of a party under this Agreement or applicable law.
11.1. Reps and Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. You warrant that you are the minimum age required to enter into a contract in the area in which you reside, and in any event, not less than 18 years of age. PicCaster warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision of such Services and that the Services will perform substantially in accordance with the User Guide under normal use and circumstances. Customer’s sole and exclusive remedy and PicCaster’s sole obligation for a breach of the warranties in this Section, will be the correction or re-performance of the nonconforming Service by PicCaster. If after reasonable efforts, neither remedy is commercially available, PicCaster may cancel this Agreement and refund Customer, a pro-rata portion of the fees that have been paid but not used by Customer from the date of notice by Customer of such breach. Customer represents and warrants to PicCaster that (i) Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of the Customer Data that is placed on, transmitted via or recorded by the Services; (ii) the provision and use of Customer Data as contemplated by this Agreement and the Services does not and will not violate or result in any liability under any Customer privacy policy, terms-of-use or other agreement to which Customer is a party or any law or regulation to which Customer is subject.
11.2. DISCLAIMER. PICCASTER DOES NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES PICCASTER MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED OR THE LOSSES THAT MAY OCCUR FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, THE SERVICES ARE PROVIDED “AS IS,” AND PICCASTER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12.1. Customer’s Indemnification of PicCaster. Customer will indemnify, defend and hold harmless PicCaster and its respective directors, officers, employees and agents from and against any and all claims, losses, damages, suits, fees, judgments, costs and expenses, (including reasonable attorney’s fees) (“Claims”) or any claims by you or any third party which may arise from or relate to this Agreement or the provision of our service to you, including any damages caused by your use of our Site or acceptance of the offers contained on our Site.
12.2. Procedure for Handling Indemnification Claims. In the event of any Claim, PicCaster will give prompt notice of any such Claim to Customer; provided that the failure to provide such notice will not relieve Customer of its obligations unless such failure prejudices Customer’s ability to defend the Claim. Customer will be entitled, if it so elects in a notice promptly delivered to PicCaster, to immediately take control of the defense, settlement and investigation of any Claim and to employ and engage attorneys reasonably acceptable to PicCaster to handle and defend the same, at Customer’s sole cost. PicCaster will cooperate in all reasonable respects, at Customer’s cost and request, in the investigation, trial and defense of such Claim and any related appeals. Customer will not consent to the entry of any judgment or enter into any settlement with respect to a Claim without PicCaster’s prior written consent, which may be withheld in its sole discretion. PicCaster may also, at its own cost, participate through its attorneys or otherwise in such investigation, trial and defense of any Claim and related appeals.
12.3. CUSTOMER (ON ITS OWN BEHALF AND ON BEHALF OF ANY PERSON OR ENTITY AUTHORIZED TO USE THE SERVICES BY CUSTOMER) COVENANTS NOT TO SUE OR MAKE OR ASSERT AGAINST PICCASTER ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO THE SERVICES PROVIDED BY PICCASTER UNDER THIS AGREEMENT.
YOU AGREE THAT PICCASTER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, NO MATTER THE THEORY OF LIABILITY, WILL NOT EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER UNDER THIS AGREEMENT DURING THE THEN-CURRENT ORDER OR, IF LESS, THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. YOU AGREE THAT WE ARE NOT RESPONSIBLE IN ANY WAY FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE OUR SERVICES, INCLUDING BUT NOT LIMITED TO PEOPLE WHO COMMIT INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION, TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, OR ANY OTHER ACTIONABLE CONDUCT TOWARDS YOU. WE ARE NOT RESPONSIBLE FOR ANY LOSSES INCURRED AS THE RESULT OF YOUR DECISION TO USE OUR SERVICE. YOU ARE RESPONSIBLE FOR DETERMINING THE SUITABILITY OF OUR SERVICE FOR YOUR PURPOSES. WE ARE NOT RESPONSIBLE FOR ANY FAILURE ON THE PART OF A PAYMENT PROCESSOR, INCLUDING YOUR CREDIT CARD COMPANY, TO DIRECT PAYMENTS TO THE CORRECT DESTINATION, OR ANY ACTIONS ON THEIR PART IN PLACING A HOLD ON YOUR FUNDS.
WE ARE NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF OUR COMPANY OR A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON OUR WEBSITE WHICH PREVENT ACCESS TO OUR WEBSITE TEMPORARILY OR PERMANENTLY. THE PROVISION OF OUR SERVICE TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT.
THE PARTIES AGREE THAT IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, NO MATTER HOW CAUSED OR THE THEORY OF LIABILITY, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE.
For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE ABOVE RELEASE.
If Customer is a U.S. government entity, Customer agrees that the PicCaster Products and any documentation provided by PicCaster are deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to Defense Federal Acquisition Regulation Supplement, codified under Chapter 2 of Title 48, United States Code of Federal Regulations, Section 227.7202, and Federal Acquisition Regulation, codified in Title 48 of the United States Code of Federal Regulations, Section 12.12. Any use, modification, reproduction, release, performance, display, or disclosure of the PicCaster Products or documentation by the United States Government is governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.
You agree that any dispute arising from or relating to this Agreement will be heard solely by a court of competent jurisdiction in the State of Texas. Specifically, where the subject matter of a dispute is eligible for it, you agree that any disputes will be heard solely within the lowest court of competent jurisdiction in the State of Texas (Small Claims Court). If a dispute claims multiple claims and one or more of those claims would be eligible to be heard by the Small Claims Court, you agree not to bring the other claims against us and to instead proceed within the Small Claims Court. If you would be entitled in a dispute to an amount exceeding the monetary jurisdiction of the Small Claims Court, you agree to waive your right to collect any damages in excess of the monetary jurisdiction and instead still bring your claim within the Small Claims Court. You agree that if a dispute is eligible to be heard in Small Claims Court but you would be entitled to an additional or alternative remedy in a higher court, such as injunctive relief, you will waive your right to that remedy and still bring the dispute within the Small Claims Court. If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys’ fees, court costs, and disbursements in doing so. You agree that the unsuccessful party in any dispute arising from or relating to this Agreement will be responsible for the reimbursement of the successful party’s reasonable attorneys’ fees, court costs, and disbursements. If you conduct a chargeback rather than using our Forum of Dispute procedure described above, PicCaster will be entitled to recover the full amount of the chargeback, as well as any of its fees, disbursements, or other costs or expenses involved in recovering that amount.
Any notice under this Agreement must be given in writing. PicCaster may provide notice to you via email or through your account. PicCaster’s notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by post to PicCaster, Inc., [__], Attn: Legal. Your notices to us will be deemed given upon our receipt.
Customer agrees that it will not assign this Agreement without the prior written consent of PicCaster. PicCaster may assign our rights and obligations under this Agreement (in whole or in part) without your consent. Any attempted assignment in violation of this Section will be void.
18.1. Publicity. You hereby grant us permission to identify you as an PicCaster customer in our promotional materials, including through the use of your logo (which use will be in accordance with any trademark guidelines to the extent you provide them to us from time to time). You may request that we stop doing so by submitting an email to support@piccaster.com at any time. Please note that it may take us up to 14 days to process your request.
18.2. No Third Party Beneficiaries. This Agreement will be binding upon and inure solely to the benefit of the parties. The parties intend that there will be no third party beneficiaries under this Agreement, and that no person or entity, except the parties, will have any rights or remedies under this Agreement, including the right to bring any action on account of its breach or in any relation to it whether in contract, in tort, or otherwise.
18.3. Compliance with Laws. Customer agrees that it will comply with all laws, administrative regulations and executive orders relating to the control of imports and exports of commodities and technical data, use or remote use of software and related property, or registration of this Agreement that may apply in the United States or in any other jurisdiction in which the Services will be located or from which the Services will be accessed under this Agreement, including, but not limited to, the Export Administration Regulations of the U.S. Department of Commerce, the International Traffic in Arms Regulations of the U.S. Department of State, and the Enhanced Proliferation Control Initiative. Customer will not, without prior written consent, if required, of the office of Export Administration of the U.S. Department of Commerce, or other applicable U.S. governmental agency or department, export, re-export, allow the re-export, transship, download, or transmit any part of the Services or Confidential Information to any country (“Restricted Nation”), person or entity to which such transmission is restricted by applicable regulations or statutes, including to any individual, group or organization on the U.S. Department of Treasury's Office of Foreign Assets Control's list of Specially Designated Nationals or the U.S. Department of Commerce's Bureau of Export Administration's List of Denied Persons, as each may be amended from time to time.
18.4. Relationship. The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint venturers or agents. Except as expressly agreed by the parties, neither party will be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other.
18.5. No Exclusivity. Nothing in this Agreement restricts a party's right to contract with any third party to provide products and/or services similar to or identical to the Services provided under this Agreement.
18.6. Entire Agreement. This Agreement, the applicable Order and the attachments and schedules attached to this Agreement constitute the entire Agreement of the parties with respect to the subject matter hereof and supersedes any and all existing agreements relating to the subject matter hereof or any prior or subsequent terms proffered by you relating to the subject matter of this Agreement. To the extent, there is any conflict among the terms of this Agreement and the applicable Order, such conflict will be governed in the following order: 1) the terms of the Order; and then, 2) this Agreement and any applicable addenda, the terms of which are incorporated into the Order by reference.
18.7. Modification and Waiver. No modification of this Agreement, and no waiver of any breach of this Agreement, will be effective unless in writing and signed by an authorized representative of the party against whom enforcement is sought. No waiver of any breach of this Agreement, and no course of dealing between the parties, will be construed as a waiver of any subsequent breach of this Agreement. Under no circumstances shall any shrink-wrap, browse-wrap, click-through or other document provided by or on behalf of Customer, including as part of a purchase order or similar document, be binding on PicCaster, even if PicCaster or any of its personnel click “I Accept” or fulfill the relevant purchase order. You agree that any such document is hereby rejected and superseded by this Agreement, even if such document is purportedly agreed to after the effectiveness of this Agreement.
18.8. Force Majeure. Neither party will be liable for any failure or delay in the performance of any of their respective obligations (other than confidentiality obligations and payment obligations) if prevented from doing so by a cause or causes beyond its reasonable control (a “Force Majeure Event”). Without limiting the generality of the foregoing, Force Majeure Events include fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, failures of third party vendors, Internet slow-downs or failures, computer hackers or other causes that are beyond a party’s reasonable control. Failure to meet due dates or time schedules resulting from a Force Majeure Event will extend the due dates or time schedules for reasonable periods of time as determined by the parties in good faith.
18.9. Severability. The illegality, invalidity, or unenforceability of any provision of this Agreement will not in any manner affect or render illegal, invalid or unenforceable any other provision of this Agreement, and that provision, and this Agreement generally, will be reformed, construed and enforced so as to most nearly give lawful effect to the intent of the parties as expressed in this Agreement.
18.10. Headings. Section headings are for convenience of reference only and will not affect the interpretation of this Agreement.
18.11. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but which together will constitute one and the same instrument. Electronic execution and delivery of this Agreement is legal, valid and binding execution and delivery for all purposes.
18.12. Governing Law. This Agreement, and all matters arising directly or indirectly from this Agreement, will be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict of laws rules applicable to contracts to be performed entirely within the State of Texas, and without regard to the U.N. Convention on the International Sale of Goods.