IMPORTANT! AS WITH ALL CONTRACTS, IF YOU ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT (IN MANY JURISDICTIONS, THIS AGE IS 18), YOU MUST HAVE YOUR PARENT OR GUARDIAN READ THE AGREEMENT BELOW AND AGREE TO IT FOR YOU. IF YOU DON’T GET YOUR PARENT OR GUARDIAN TO READ AND AGREE TO THIS, YOU DON’T HAVE PERMISSION TO USE PICABOO YEARBOOKS’S SITES, APPLICATIONS, OR SERVICES. ALWAYS GET AN ADULT’S PERMISSION BEFORE GOING ONLINE.
PLEASE READ THESE TERMS OF SERVICE (“AGREEMENT”) CAREFULLY BEFORE USING THE YEARBOOK SERVICES OFFERED BY PICABOO, INC. (“PICABOO YEARBOOKS,” “WE,” “US,” “OUR”). BY USING THE PICABOO YEARBOOKS SERVICES (AS DEFINED BELOW) IN ANY MANNER (INCLUDING ORDERING ANY PRODUCTS OR USING ANY PICABOO YEARBOOKS ACCOUNT PRE-CREATED FOR YOU BY ANY ORGANIZATION (WHERE “ORGANIZATION” MEANS ANY SCHOOL, UNIVERSITY, COLLEGE, CLUB, CHURCH, OR OTHER ORGANIZATION THAT YOU REPRESENT AND/OR OF WHICH YOU ARE A STUDENT OR MEMBER) FOR OR ON BEHALF OF ANY USER OF THE SERVICES), YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU HAVE NO RIGHT TO USE THE SERVICES.
TERMS OF SERVICE
1. ACCESS TO THE SERVICES
The yearbooks.picaboo.com website and domain name and all other websites and domain names affiliated with Picaboo Yearbooks, and any other linked pages, features, content, or application services (including mobile applications) offered from time to time by Picaboo Yearbooks in connection therewith (collectively, the “Website”) are owned or operated by Picaboo Yearbooks. Subject to the terms and conditions of this Agreement, Picaboo Yearbooks may provide certain services through the Website, as described more fully on the Website. As used herein, the term “Services” shall include, without limitation, the Website, any service Picaboo Yearbooks performs for you or through the Website, and any content or products offered by Picaboo Yearbooks or Picaboo Yearbooks’s users through any of the foregoing. You may only use the Services for your internal, non-commercial, educational use. Picaboo Yearbooks may change, suspend or discontinue all or any part of the Services at any time. Picaboo Yearbooks also may impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. Picaboo Yearbooks reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on the Website or Services, or by sending you a notice via email. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Services following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
You represent and warrant to Picaboo Yearbooks that: (i) you are of legal age to form a binding contract (or, if you are a minor, you have your parent’s permission to use the Services, and your parent has read and agrees to this Agreement on your behalf); (ii) all registration information you submit is accurate and truthful; (iii) you will maintain the accuracy of such information; (iv) if you are accepting this Agreement on behalf of an institution, company or other legal entity, you have the authority to bind that institution, company or legal entity to this Agreement. You also certify that you are legally permitted to use and access the Services and take full responsibility for the selection and use of and access to the Services. This Agreement is void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.
You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, software, and long distance or local telephone service. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Services.
2. USE BY CHILDREN
Picaboo Yearbooks collects limited personal information from students and other children who use the Services. We only collect personal information from children under 13 where that child’s Organization (as defined above) has contracted with Picaboo Yearbooks (via the terms set forth in Section 3(c) or (d) of this Agreement) to collect personal information from children under the age of 13 for the use and benefit of the learning environment. Picaboo Yearbooks requires Organizations to obtain parental consent from the parents of children under 13 before collecting any such personal information. If you are under 13, please do not send any personal information about yourself to us, other than what we request from you in connection with the Services. In the event that we learn that we have collected personal information from a child under 13 without parental consent being obtained by his or her Organization, or if we learn a child under 13 has provided us personal information beyond what we request from him or her, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information beyond what is requested by us, or that such child’s applicable Organization has not required parental consent prior to our collection of any personal information, please contact us at email@example.com.
3. ADDITIONAL TERMS
(b) If you are a student or other minor, the following terms also apply to you:
(i) Remember, if you are not of legal age to form a binding contract, you must get your parent or guardian to read this Agreement before using the Services.
(ii) You will only register for and access the Services as a student or child registrant, and not as a teacher, yearbook adviser, school, district, parent, or any other category of user, whether offered by Picaboo Yearbooks now or in the future.
(iii) You will only access the Services using the access code given to you by your teacher, yearbook adviser, or other authorized adult representative of your Organization. You may not use any access codes which you receive from other users or which you did not directly receive from your own teacher or yearbook adviser, or representative.
(c) If you are accessing the Services on behalf of an Organization the following terms also apply to you:
(ii) You will only grant access codes to teachers, yearbook advisers or other authorized adult staff members who are current employees of your Organization. Upon termination of a teacher or other staff member’s employment with you, you will require such individual to return and cease using all access codes he or she has in his or her possession. If at any time you learn a user of the Services claims to be affiliated with your Organization who is not, in fact, affiliated with your Organization, you will notify Picaboo Yearbooks immediately. You are responsible for all activity that occurs under your Organization’s accounts on the Services.
(d) If you are accessing the Services as a teacher, yearbook adviser or other representative of an Organization, the following terms also apply to you:
(i) You represent and warrant that you have permission and authorization from your Organization to enter into this Agreement and to use the Services as part of your curriculum. For purposes of COPPA compliance, you further represent and warrant that you are entering into this Agreement on behalf of your Organization.
(iii) You understand that yearbooks generated on the Service for your Organization may in most cases only be accessed by individuals who have been provided with a specific access code generated for your Organization. You will not share these access codes with anyone other than (1) authorized users within your Organization, and (2) parents or other legal guardians of children who belong to your Organization. You are responsible for all activities that occur on the Services due to access that you have granted to other users (whether through the creation of an account or through provision of access codes).
(e) If you are accessing the Services as a parent, the following terms also apply to you:
(i) You will only use the parent access code(s) provided to you by your child or children’s teacher(s), yearbook adviser(s), or other authorized adult representative. You agree not to use any access code to access the account or information about anyone other than the child for whom the access code was provided.
(ii) You understand that your acceptance of this Agreement indicates that you are agreeing to these terms both on your own behalf as well as on behalf of your child or children who use the Services. Children who are not of legal age to form a binding contract must not use the Services, however, until after a parent has accepted this Agreement on their behalf.
4. SERVICES CONTENT
The Services and its contents are intended solely for the personal, non-commercial use of Services users and may only be used in accordance with the terms of this Agreement. All materials displayed or performed on the Services (including, but not limited to text, graphics, articles, photographs, images, illustrations (also known as the “Content”)) are protected by copyright and other intellectual property laws. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right.
The Services are protected by copyright as a collective work and/or compilation, pursuant to U.S. and Canadian copyright laws, international conventions, and other copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section 4), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part.
You may download or copy the Content (and other items displayed on the Services for download) for personal non-commercial use only, provided that you maintain all copyright and other notices contained in such Content. You shall not store any significant portion of any Content in any form. Copying or storing of any Content other than personal, noncommercial use is expressly prohibited without prior written permission from Picaboo Yearbooks or from the copyright holder identified in such Content’s copyright notice. You shall not link to the Services without Picaboo Yearbooks’s prior written consent, except in accordance with the terms of this Agreement.
You understand that all information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which such content originated and that Picaboo Yearbooks will not be liable for any errors or omissions in any content. You understand that Picaboo Yearbooks cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. Additionally, Picaboo Yearbooks cannot guarantee the authenticity of any data which users may provide about themselves. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
Under no circumstances will Picaboo Yearbooks be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the Services.
5. YOUR WARRANTY
You warrant, represent and agree that you will not contribute any User Submissions or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (iv) jeopardizes the security of your account in any way, such as allowing someone else access to your account or password. Picaboo Yearbooks reserves the right to remove any Content from the Services at any time, 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 Picaboo Yearbooks is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You, not Picaboo Yearbooks, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, and you warrant that you possess all rights necessary to provide such content to Picaboo Yearbooks and to grant Picaboo Yearbooks the rights to use such information in connection with the Services and as otherwise provided herein.
You are responsible for all of your activity in connection with the Services, as well all activity that occurs under your account or any accounts or access codes that you have authorized. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the Services. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Picaboo Yearbooks user. Use of the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the Services, or any processes that run or are activated while you are not logged on to the Services, or that otherwise interfere with the proper working of or place an unreasonable load on the Services’ infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl” or “spider, or “scrape” any page or portion of the Services is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Services. You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the Services. You may not transfer your account to anyone without express prior written consent of Picaboo Yearbooks. You will not disclose any access code in any public manner, and will not disclose any access code to any individual who is not authorized to receive such access code; for example, you will not post any access code to a publicly-accessible internet page. You understand and agree that Picaboo Yearbooks shall have the sole right to decide whether you are in violation of any of the restrictions set forth in this Agreement, and Picaboo Yearbooks shall have sole discretion regarding the course of action to take in connection therewith.
7. WARRANTY DISCLAIMER
Picaboo Yearbooks has no special relationship with or fiduciary duty to you. You acknowledge that Picaboo Yearbooks has no control over, and no duty to take any action regarding: which users gains access to the Services; what Content you access via the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Picaboo Yearbooks from all liability for you having acquired or not acquired Content through the Services. The Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Picaboo Yearbooks makes no representations concerning any content contained in or accessed through the Services, and Picaboo Yearbooks will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services. Picaboo Yearbooks makes no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) the Services are provided “AS IS” without any warranty of any kind from Picaboo Yearbooks or others unless, with respect to others (only), otherwise made expressly and unambiguously in writing by a designated third party for a specific product. THE SERVICES, CONTENT, WEBSITE AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
8. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL PICABOO YEARBOOKS BE LIABLE TO YOU OR ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO PICABOO YEARBOOKS IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
9. REGISTRATION AND SECURITY
As a condition to using Services, you may be required to register with Picaboo Yearbooks and select a password and user name (“Picaboo Yearbooks User ID”), or you may be permitted to register an Organization-specific “subdomain” within the Website (“Picaboo Yearbooks Subdomain”). You shall provide Picaboo Yearbooks with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account and/or all accounts associated with your Picaboo Yearbooks Subdomain. You may not select or use as a Picaboo Yearbooks User ID a name of another person with the intent to impersonate that person or use as a Picaboo Yearbooks User ID a name subject to any rights of a person other than you without appropriate authorization, nor may you select or use a Picaboo Yearbooks Subdomain that you do not have the right and authorization to use. Picaboo Yearbooks reserves the right to refuse registration of or cancel a Picaboo Yearbooks User ID or Picaboo Yearbooks Subdomain in its discretion. You shall be responsible for maintaining the confidentiality of your password.
You will indemnify and hold Picaboo Yearbooks, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand made by any third party due to or arising out of your access to the Services, use of the Services, your violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity.
11. FEES AND PAYMENT
Picaboo Yearbooks reserves the right to require payment of fees for certain products features of the Services. Should you elect to purchase such products and/or subscribe to such features, you shall pay all applicable fees, as described on the Services in connection with such features. Picaboo Yearbooks reserves the right to change its price list and to institute new charges at any time, upon ten (10) days prior notice to you, which may be sent by email or posted on the Services. Use of the Services by you following such notification constitutes your acceptance of any new or increased charges.
12. THIRD PARTY WEBSITES AND SERVICES
The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Picaboo Yearbooks shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Picaboo Yearbooks’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Picaboo Yearbooks’s prior written consent. Picaboo Yearbooks may transfer, assign or delegate this Agreement and its rights and obligations without consent. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Santa Clara County, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. This Agreement and any subsequent versions of this Agreement posted to the Website will be deemed a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Picaboo Yearbooks in any respect whatsoever.
15. COPYRIGHT DISPUTE POLICY
Picaboo Yearbooks has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA (posted at www.lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of Picaboo Yearbooks’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this Section. It is Picaboo Yearbooks’s policy to (1) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders.
A. Procedure for Reporting Copyright Infringements:
If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below: 1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed; 2. Identification of works or materials being infringed; 3. Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Picaboo Yearbooks is capable of finding and verifying its existence; 4. Contact information about the notifier including address, telephone number and, if available, email address; 5. A statement that the notifier has a good faith belief that the material identified in (3) is not authorized by the copyright owner, its agent, or the law; and 6. A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
B. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:
It is Picaboo Yearbooks’s policy: 1. to remove or disable access to the infringing material; 2. to notify the content provider, member or user that it has removed or disabled access to the material; and 3. that repeat offenders will have the infringing material removed from the system and that Picaboo Yearbooks will terminate such content provider’s, member’s or user’s access to the Services.
C. Procedure to Supply a Counter-Notice to the Designated Agent:
If the content provider, member or user believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or, pursuant to the law, the content provider, member, or user, must send a counter-notice containing the following information to the Designated Agent listed below: 1. A physical or electronic signature of the content provider, member or user; 2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled; 3. A statement that the content provider, member or user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and 4. Content provider’s, member’s or user’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s, member’s or user’s address is located, or, if the content provider’s, member’s or user’s address is located outside the United States, for any judicial district in which Picaboo Yearbooks is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Picaboo Yearbooks may send a copy of the counter-notice to the original complaining party informing that person that Picaboo Yearbooks may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Picaboo Yearbooks’s discretion.
Please contact Picaboo Yearbooks’s Designated Agent to Receive Notification of Claimed Infringement at the following address:
Designated Agent to Receive Notification of Claimed Infringement:
Howard Field, Co-CEO
255 Shoreline Dr. STE 100
Redwood City, CA 94065
16. CONTACT. If you have any questions, complaints, or claims with respect to the Services, you may contact us at firstname.lastname@example.org.
Effective: March 1, 2013
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