1. Acceptance of Terms.
5. Login/Registration. While some features of Photoswirl are available to unregistered users, for broader access to Photoswirl you must login using your Facebook login or, if offered by Photoswirl, register with Photoswirl by creating an "Account". If registration is made available, you must provide accurate information included on the registration page. You are responsible for updating the accuracy of the information that you provide to us to be associated with your Account. Regarding usernames, you shall not (i) select or use, as your username, the name of another person with the intent to impersonate that person; (ii) select or use, as your username, a name subject to any rights of a person or entity other than you without appropriate authorization or (iii) select or use, as your username, a name that is otherwise offensive, vulgar or obscene.
6. Account Security. You are solely responsible for the activity that occurs on your Account. You are not permitted to use another Account without permission. You must notify us immediately of any breach of security or other unauthorized use of your Account. You should never publish, distribute or post login information for your Account.
a. Third Party Materials and Agreements. You may be able to access, download, store or use Third Party Services (defined below), resources, content or information ("Third Party Materials") via Photoswirl. By using Photoswirl to find and collect material on the Internet, you instruct us to present portions of the data sources that you have selected. You acknowledge sole responsibility for and assume all risk arising from your access to or use of any such Third Party Materials and we disclaim any liability that you may incur arising from your access to or use of such Third Party Materials or User Content (defined below) via Photoswirl. You acknowledge and agree that we: (i) are not responsible for the availability or accuracy of such Third Party Materials or the products or services on or available from such Third Party Materials; (ii) have no liability to you or any third party for any harm, injuries or losses suffered as a result of your access to or use of such Third Party Materials; and (iii) do not make any promises to remove Third Party Materials from being accessed through Photoswirl. Your ability to access or link to Third Party Materials or Third Party Services does not imply any endorsement by us of Third Party Materials or any such Third Party Services.
b. User Content. All Content added, created, uploaded, curated, submitted, distributed, or posted to Photoswirl by users, whether publicly posted or privately transmitted (collectively "User Content"), is the sole responsibility of the user who originated it. You acknowledge that all Content accessed by you using Photoswirl is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. When you delete your User Content, it will be removed from Photoswirl. However, you understand that (i) certain User Content (including User Content that is made publicly available) will remain available and (ii) any removed User Content may persist in backup copies for a reasonable period of time (but will not following removal be shared with others).
c. Our Content. Photoswirl contains Content specifically provided by us or our partners and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through Photoswirl.
e. Content License Grants.
i.License to Us. Photoswirl does not claim any ownership rights in the text, images, or other materials that you post on or through Photoswirl. By submitting User Content through Photoswirl, you hereby do and shall grant us a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, reproduce, distribute, prepare derivative works of, transmit, stream, display, perform, and otherwise fully exploit the User Content in connection with Photoswirl and our (and its successors and assigns') business, including without limitation for promoting and redistributing part or all of Photoswirl, Content posted on Photoswirl, and derivative works thereof, in any media formats and through any media channels (including, without limitation, third party websites and feeds).
ii.License to Users. You also hereby do and shall grant each user of Photoswirl a non-exclusive license to access, use, download, store, transmit, stream, display, perform and print your User Content through Photoswirl, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content.
iii.No Infringement. You represent and warrant that you have all rights to grant such licenses without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.
9. Photoswirl Application License.
e. Export Control. You may not use, export, re-export, import, or transfer the Photoswirl application except as authorized by United States law, the laws of the jurisdiction in which you obtained the Photoswirl application, and any other applicable laws or regulations. In particular, but without limitation, the Photoswirl application may not be exported or re-exported (i) into any United States embargoed countries or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Photoswirl application, you represent and warrant that you are not located in any such country or on any such list. You also will not use the Photoswirl application for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
f. iTunes App Store. You agree to the Apple iTunes Terms of Service if you download the Photoswirl application from the iTunes App Store.
a. You shall not, and shall not permit any third party to, either (i) take any action or (ii) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content (including User Content) on or through Photoswirl that:
i. infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty (the Photoswirl DMCA Copyright Policy); ii. is unlawful, such as content that is threatening, abusive, harassing, defamatory, libelous, fraudulent, invasive of another's privacy, or tortuous;
ii. constitutes unauthorized or unsolicited advertising, junk or bulk e-mail ("spamming");
iii. contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of us or any third party;
iv. impersonates any person or entity, including any of our employees or representatives;
v. includes anyone's identification documents or sensitive financial information; or
vi. is otherwise determined by us to be inappropriate at its sole discretion.
b. You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers') infrastructure; (ii) interfere or attempt to interfere with the proper working of Photoswirl or any activities conducted on Photoswirl; (iii) bypass any measures we may use to prevent or restrict access to Photoswirl (or other accounts, computer systems or networks connected to Photoswirl); (iv) run any form of auto-responder or "spam" on Photoswirl; (v) use manual or automated software, devices, or other processes to "crawl" or "spider" any web pages associated with Photoswirl, or any third party web pages accessed through Photoswirl; (vi) harvest or scrape any Content from Photoswirl; or (vii) otherwise take any action in violation of our guidelines and policies.
c. You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any aspect, feature or part of Photoswirl, except to the limited extent applicable laws specifically prohibit such restriction; (ii) modify, translate, or otherwise create derivative works of any part of Photoswirl; or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations. You will comply with any technical restrictions of Photoswirl that allow you to use Photoswirl only in certain ways.
12. Third Party Services. Photoswirl may permit you to access content from or to link to other websites, services or resources on the Internet ("Third Party Services"), and those other websites, services or resources may contain links to Photoswirl. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. Such inclusion does not imply endorsement by us or any association with our operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Content, goods or services available on or through any such website or resource.
14. Warranty Disclaimer.
We have no special relationship with or fiduciary duty to you. You acknowledge that we have no control over, and no duty to take any action regarding:
1. which users gains access to Photoswirl;
2. what Content you access via Photoswirl;
3. what effects the Content may have on you;
4. how you may interpret or use the Content; or
5. what actions you may take as a result of having been exposed to the Content.
a. You release us from all liability for you having acquired or not acquired Content through Photoswirl. The Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. We make no representations concerning any Content contained in or accessed through Photoswirl, and Photoswirl will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through Photoswirl.
b. PHOTOSWIRL AND ALL CONTENT ARE PROVIDED "AS IS", "AS AVAILABLE" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) PHOTOSWIRL WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH PHOTOSWIRL IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING PHOTOSWIRL WILL MEET YOUR REQUIREMENTS. YOUR USE OF PHOTOSWIRL IS SOLELY AT YOUR OWN RISK. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
16. Limitation of Liability. IN NO EVENT SHALL WE, OUR AFFILIATES NOR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, PARTNERS, SUPPLIERS, REPRESENTATIVES OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO PHOTOSWIRL (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING); (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION);(III) DAMAGES IN EXCESS OF THE GREATER OF $100 OR THE AMOUNT YOU PAID FOR PHOTOSWIRL OR THE PHOTOSWIRL APPLICATION IN THE AGGREGATE; OR (IV) FOR ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
a. Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
g. Contact. You may contact us: by mail at 416 West 13th Street, Suite 203, New York, NY 10014 or by e-mail at email@example.com.
20. Apple Device and Application Terms. In the event you are accessing Photoswirl via an application on a device provided by Apple, Inc. ("Apple") or the Photoswirl application obtained through the Apple App Store (together, the "Application"), the following shall apply:
c. You will only use the Application in connection with an Apple device that you own or control;
d. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
e. In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple's sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
f. You acknowledge and agree that we, and not Apple, are responsible for addressing any claims you or any third party may have in relation to the Application;
g. You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party's intellectual property rights, we, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
h. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
i. Both you and we acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and