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Terms of Service

PUBLISHER AND END USER LICENSE AGREEMENT

Latest Revision: April 15, 2010

BY CLICKING THE "I ACCEPT" BOX, OR INSTALLING OR USING THE PHOTOGRAPH ANNOTATION PRODUCT SOFTWARE (THE "SOFTWARE") PROVIDED BY STIPPLE, LLC ("STIPPLE"), SUCH INDIVIDUAL, OR THE COMPANY THAT YOU ARE ACTING ON BEHALF OF ("YOU" OR "YOUR"), IS AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT ("AGREEMENT") AND, TO THE EXTENT THAT YOU ARE ACTING ON BEHALF OF A COMPANY, THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT SELECT THE "I ACCEPT" BOX AND DO NOT INSTALL OR USE THE SOFTWARE. YOU HAVE NOT BECOME A LICENSEE OF, AND YOU ARE NOT AUTHORIZED TO INSTALL OR USE THE SOFTWARE UNLESS AND UNTIL IT HAS AGREED TO BE BOUND BY THIS AGREEMENT. THE "EFFECTIVE DATE" FOR THIS AGREEMENT SHALL BE THE DAY YOU CHECK THE "I ACCEPT" BOX OR FIRST INSTALL OR USE THE SOFTWARE, WHICHEVER IS EARLIEST.

The parties hereby agree:

A. SOFTWARE TERMS AND CONDITIONS

1. Use, Restrictions, and Ownership

1.1 Use For the term of this Agreement, Stipple grants You the right to access and use the Software on Your website for Your own use. A "Licensed User" means You or Your employee, contractor or agent authorized by You to use the Software per the terms of this Agreement. An "End User" means a customer or other user using the Software on Your website or have access to the Software through You. For purposes of this Agreement, You or Your shall include, without limitation, the Licensed Users and End Users. If You are a publisher of the Software, as between You and Stipple, You shall be responsible for any act or omission of Your employees, contractors and agents, and affiliates or Your end users including with respect to compliance with all of the terms of this Agreement. Any action or breach by any of Your employees, contractors and agents, and affiliates or Your end users shall be deemed an action or breach by You. You waive all of those defenses that You may have as to why You should not be liable for Your employees, contractors and agents, and affiliates or Your end users' acts, omissions and noncompliance with this Agreement. Any action or breach by any of You or Your affiliate or their employees, contractors or agents or Your End Users shall be deemed an action or breach by You and vice versa. If You are a publisher, You will need to include on Your website certain code provided by Stipple in order to access the Software.

1.2 Restrictions Except as expressly prohibited by applicable law, You shall not, directly or indirectly: (i) remove or alter any copyright, trademark or proprietary notice in the Software; (ii) reverse engineer, modify or create any derivative work of the Software, or (iii) generate queries or impressions of or clicks on any ads through any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests, (iv) remove, obscure or minimize any Ad, or (v) engage in any action or practice that reflects poorly on Stipple or otherwise disparages or devalues Stipple's reputation or goodwill. Violation of these prohibitions shall be deemed a material breach of this Agreement and Stipple may immediately terminate this Agreement.

1.3 Proprietary Rights Stipple owns all right, title, and interest to the Software, technology, information, code or software provided to You, including any and all portions, copies, modifications, enhancements or derivative works thereof or thereto. Except as expressly provided herein, no license of any kind are granted hereunder, whether by implication, estoppel, or otherwise.

1.4 Revenue Share If you are a Publisher, Stipple will pay You a share of all revenue that is generated by Stipple from the use of the Software on Your site (exclusive of taxes, refunds, service fees, etc.), in accordance with the percentages that were provided at the time You accepted these terms, as such percentages may be changed from time to time at Stipple's sole discretion. Notwithstanding the foregoing, Stipple shall not be liable for any payment: (a) based on any amounts which result from invalid queries or invalid clicks or impressions on ads generated by any person, bot, automated program or similar device, as reasonably determined by Stipple, or (b) as a result of any breach of this Agreement by You for any applicable pay period.

2. Limitation of Liability

2.1 Force Majeure Neither party shall be in breach of this Agreement due to failure of performance that arises out of causes beyond its reasonable control.

2.2 Limitation of Liability NEITHER STIPPLE NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS OR SPONSORS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SOFTWARE, ANY LINKED SITE OR ANY PRODUCT OR SERVICE PURCHASED THROUGH ANY USE OF THE SOFTWARE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, MATERIALS, SOFTWARE OR ANY LINKED SITE IS TO STOP USING THE SITE, MATERIALS, SOFTWARE OR LINKED SITE, AS APPLICABLE. THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY TO COMPANY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO ACCESS THE SITE. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

B. ADDITIONAL END-USER TERMS AND CONDITIONS

You agree to the following, and to the extent any End Users access the Software through You, You shall require that they are bound and comply with this Agreement including, without limitation, the following:

Submissions of Postings The Software allows Licensed Users or End Users to post or transmit images, creative suggestions, ideas, notes, information or other materials (collectively, "Submissions"). Such Submissions are NOT subject to any obligation, whether of confidentiality, attribution or otherwise by Stipple and Stipple will not be liable for any such Submissions.

Claims of Copyright Infringement You will ensure that Your website provides for protection under the "safe harbor" provision of The Digital Millennium Copyright Act of 1998 (the "DMCA") by providing the information of Your designated agent and otherwise providing sufficient information on Your terms of use.

Disclaimers THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, STIPPLE AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS ("REPRESENTATIVES") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Applicable law may not allow the exclusion of implied warranties, so the above exclusions may not apply to you. STIPPLE AND ITS REPRESENTATIVES DO NOT WARRANT THAT YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE, AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND THE SOFTWARE AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF STIPPLE OR ITS REPRESENTATIVES WHETHER MADE IN THE SOFTWARE OR OTHERWISE, SHALL CREATE ANY WARRANTY. YOUR USE OF THE SOFTWARE AND ANY SUBMISSIONS OR MATERIALS PROVIDED THROUGH THE SOFTWARE ARE ENTIRELY AT YOUR OWN RISK.

Code of Conduct While using the Software, You agree not to:

  • Restrict or inhibit any other visitor or member from using the Software, including, without limitation, by means of "hacking" or defacing any portion of the Software.
  • Use the Software for any unlawful purpose.
  • Express or imply that any statements you make are endorsed by us, without our prior written consent
  • Transmit or upload (a) any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party's copyrights, intellectual property or other rights, including without limitation any right of publicity; (b) any material, non-public information about companies without the authorization to do so; or (c) any trade secret of any third party
  • Transmit any software or other materials that contain any viruses, worms, trojan horses, date bombs, time bombs or other items of a destructive nature.
  • Modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Software
  • Remove any copyright, trademark or other proprietary rights notices contained in the Software

While using the Software, you agree to comply with all applicable laws, rules and regulations.

C. GENERAL TERMS AND CONDITIONS

1. Indemnification You agree to indemnify, defend and hold Stipple and its Representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys' fees) and other expenses that arise directly or indirectly out of or from (a) your breach of this Agreement, including any violation of the Code of Conduct, above; (b) any allegation that any Submissions or other materials posted, sent or transmitted using the Software infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party, including without limitation right of publicity; and/or (c) your activities in connection with the Software.

2. Notice for California Users Under California Civil Code Section 1789.3, California Site users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

3. Jurisdictional Issues The Software is solely directed to individuals residing and companies organized in the United States. We make no representation that the Software is appropriate or available for use in other locations. Those who choose to install or use the Software from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable.

4. Export You agree and certify that neither the Software nor any other technical data received from Stipple, nor the direct product thereof, will be exported outside the United States or re-exported except as authorized and as permitted by the laws and regulations of the United States and/or the laws and regulations of the jurisdiction, (if other than the United States) in which You rightfully obtained the Software.

5. Term Either You or we may terminate this Agreement at any time and for any reason. Upon termination of this Agreement, You agree to cease all use of the Software and to delete all copies from Your computers and servers. If we terminate this Agreement due to a breach of any of the terms of this Agreement, we shall have the right to permanently ban You from entering into new agreements with us for the use of the Software. Upon any termination of this Agreement, the terms of Sections A.1.2, A.1.3, B and C shall survive.

6. Miscellaneous This Agreement is governed by and construed in accordance with the laws of the State of California, United States of America, without regards to its principles of conflicts of law. You agree to submit to the exclusive jurisdiction of any State or Federal court located in Los Angeles County, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire Agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral Agreements between us with respect to such subject matter. This Agreement is not assignable, transferable or sublicenseable by You except with our prior written consent. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.