Photoswirl Terms of Use

Please read these Terms of Use (collectively with the Photoswirl Privacy Policy and Photoswirl DMCA Copyright Policy, the "Terms of Use") fully and carefully before using the Photoswirl mobile application, http://www.photoswirl.us and the services, features, content and applications offered in connection with Photoswirl (collectively, "Photoswirl") by Betaworks Studio, LLC and Betaworks One, Inc. ("we" or "us"). These Terms of Use set forth the legally binding terms and conditions for your use of Photoswirl.

1. Acceptance of Terms.

a. By registering for and/or using Photoswirl in any manner, including but not limited to downloading and using the Photoswirl application, you agree to these Terms of Use and all other operating rules, policies and procedures that may be published from time to time on or within Photoswirl, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.

b. These Terms of Use apply to all users of Photoswirl, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.

3. Modification. We reserve the right, at our sole discretion, to modify or replace any of these Terms of Use, or change, suspend, or discontinue Photoswirl (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on or within Photoswirl or by sending you notice through Photoswirl or by e-mail. We may also impose limits on certain features of Photoswirl or restrict your access to parts or all of Photoswirl without notice or liability. It is your responsibility to check these Terms of Use periodically for changes. Your use of Photoswirl following the posting of any changes to these Terms of Use constitutes acceptance of those changes.

4. Eligibility. You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances, use Photoswirl. We may, at our sole discretion, refuse to offer Photoswirl to any person or entity and change our eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Use are in compliance with all laws, rules and regulations applicable to you and the right to access Photoswirl is revoked where these Terms of Use or use of Photoswirl is prohibited or to the extent offering, sale or provision of Photoswirl conflicts with any applicable law, rule or regulation. Further, Photoswirl is offered only for your use, and not for the use or benefit of any third party.

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.

7. Access Rights. Without limiting any other terms of these Terms of Use, by using Photoswirl you understand and agree that we, as an agent on your behalf, may access content from third party websites and services so that it is available to you through use of Photoswirl, and you give Photoswirl permission to do so. You agree that any content that you submit to a Third Party Service, such as Facebook, Instagram, and/or Twitter, may be stored by us at your direction, although we do not undertake any obligations to maintain such submissions.

8. Content Definition. For purposes of these Terms of Use, the term "Content" includes, without limitation, URLs, curated URLs, content, videos, audio clips, written posts and comments, information, data, text, web pages, images, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through Photoswirl..

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.

d. Use License. Subject to these Terms of Use, we grant each user of Photoswirl a worldwide, non-exclusive, non-sublicensable and non-transferable license to use, download, store, display and print the Content, solely for personal, non-commercial use as part of using Photoswirl. Use, reproduction, modification, distribution or storage of any Content for other than personal, non-commercial use is expressly prohibited without prior written permission from us, or from the copyright holder identified in such Content's copyright notice. You may not use Photoswirl for any commercial purposes.

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.

f. Availability of Content. We do not guarantee that any Content will be made available on or through Photoswirl. Further, we have no obligation to monitor Photoswirl. However, we reserves the right to (i) remove, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Use), or for no reason at all and (ii) remove or block any Content from Photoswirl.

9. Photoswirl Application License.

a. License Grant. Subject to your compliance with the terms and conditions of these Terms of Use, we grant to you a limited, non-exclusive, non-transferable license, without the right to sublicense, to download and install the Photoswirl application on up to 10 devices that you own and control and run such cop(ies) of the Photoswirl application solely for your personal non-commercial use. You acknowledge that new versions of the Photoswirl application may be provided at additional charge. Furthermore, with respect to any Photoswirl application downloaded through the iTunes App Store, you will only use such application as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. We reserve all rights in the Photoswirl application not expressly granted to you in these Terms of Use.

b. Restrictions. Except as expressly specified in these Terms of Use, you shall not (i) copy or modify the Photoswirl application, including, but not limited to adding new features or otherwise making adaptations that alter the functioning of the Photoswirl application; (ii) transfer, sell, rent, lease, distribute, sublicense or otherwise assign any rights to, or any portion of, the Photoswirl application to any third party; or (iii) make the functionality of the Photoswirl application available to multiple users through any means, including, but not limited to distribution of the Photoswirl application or by uploading the Photoswirl application to a network or file-sharing service or through any hosting, application services provider or any other type of service. The Photoswirl application contains trade secrets, and in order to protect those secrets you agree not to disassemble, decompile or reverse engineer the Photoswirl application, in whole or in part, or permit or authorize a third party to do so, except to the extent such restrictions are expressly prohibited by statutory law. You will comply with any technical restrictions in the Photoswirl application that allow you to use the Photoswirl application only in certain ways.

c. Updates and Upgrades; No Obligation. We are not obligated to maintain or support the Photoswirl application, or to provide you with updates, upgrades or services related thereto. You acknowledge that Photoswirl may from time to time in its sole discretion issue updates or upgrades to the Photoswirl application, and may automatically update or upgrade the version of the Photoswirl application that you are using on your mobile device. You consent to such automatic updating or upgrading on your mobile device, and agree that the terms and conditions of these Terms of Use will apply to all such updates or upgrades.

d. U.S. Government Users. The Photoswirl application and related documentation are "commercial items" as that term is defined in FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Photoswirl application and related documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government's rights in the Photoswirl application and related documentation will be only those specified in these Terms of Use.

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.

10. Rules of Conduct. You promise not to use Photoswirl for any purpose that is prohibited by these Terms of Use. You are responsible for all of your activity in connection with Photoswirl.

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.

d. We also reserve the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce these Terms of Use, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests; or (v) protect our rights, property or safety, or that of our users and the public. This includes exchanging information with other companies and organizations for fraud protection and spam prevention.

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.

13. Termination. We may terminate your access to all or any part of Photoswirl at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your Account. If you wish to terminate your Account, you may do so by following the instructions in your Account settings or by removing the Photoswirl application from any device on which you have it installed. All provisions of these Terms of Use which by their nature should survive termination shall survive termination, including without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

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.

15. Indemnification. You shall defend, indemnify, and hold harmless us, our affiliates and each of their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from or relate to your use or misuse of, or access to, Photoswirl, Content, or which otherwise arise from your User Content, violation of these Terms of Use, or infringement by you, or any third party using your Account, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.

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.

17. Governing Law and Jurisdiction. These Terms of Use shall be governed by and construed in accordance with the laws of the State of New York, including its conflicts of law rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Use shall be governed by the exclusive jurisdiction and venue of the state and federal courts of New York County, New York.

18. Entire Agreement and Severability. These Terms of Use are the entire agreement between you and us with respect to Photoswirl, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to Photoswirl. If any provision of these Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Use will otherwise remain in full force and effect and enforceable.

19. Miscellaneous.

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.

b. Assignment. These Terms of Use are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of its rights and obligations hereunder without consent.

c. Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Use and neither party has any authority of any kind to bind the other in any respect.

d. Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Use will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e- mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.

e. No Waiver. Our failure to enforce any part of these Terms of Use shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Use. Waiver of compliance in any particular instance does not mean that we will do so in the future. In order for any waiver of compliance with these Terms of Use to be binding, we must provide you with written notice of such waiver, provided by one of its authorized representatives.

f. Headings. The section and paragraph headings in these Terms of Use are for convenience only and shall not affect their interpretation.

g. Contact. You may contact us: by mail at 416 West 13th Street, Suite 203, New York, NY 10014 or by e-mail at support@photoswirl.us.

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:

a. Both you and we acknowledge that these Terms of Use are concluded between you and us only, and not with Apple, and that Apple is not responsible for the Application or the Content;

b. The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with Photoswirl for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms of Use as they are applicable to Photoswirl;

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

j. Both you and we acknowledge and agree that Apple and Apple's subsidiaries are third party beneficiaries of these Terms of Use, and that upon your acceptance of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.

Effective Date of Terms of Use: June 27, 2012.