Last modified: December 29, 2017
Welcome to PactelPics. These terms and conditions and all applicable service-specific terms (“Terms of Service” or “Agreement”) govern your access to and use of any websites, mobile sites, mobile applications, products or services offered by PactelPics Inc. (“PactelPics” “we” “us”) based on the plan you purchased (the “Services”), provided however that PactelPics Enterprise, PactelPics Business Plan, and all other products and services made available to PactelPics Enterprise and Business users are not governed by these terms, but by the terms published at www.PactelPics.com/legal/enterprise-terms.
Wherever used in these Terms of Service, “you”, “your”, “Customer”, or similar terms means the person or legal entity accessing or using the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service.
We reserve the right, at any time, to update and change any or all of these Terms of Service, in our sole discretion, including but not limited to the fees and charges associated with the use of the Services. If we do so, we will post the modified Terms of Service on www.PactelPics.com (the “Site”), though we will notify you of any changes that, in our sole discretion, materially impact these Terms of Service. Continued use of the Services after any such changes have been made shall constitute your consent to such changes. If a change has a material adverse impact on you, and you have contracted and prepaid for a certain term, you may notify us within 30 days after being informed of that change that you do not agree with the change. If you do so, we will delay applying the change to you until your prepaid term ends, or, at our sole and absolute discretion, allow you to cancel your account, and we will refund any prepaid amount pro rata to you. If you use our Services after your prepaid term ends, all changes will apply to you. You are responsible for regularly reviewing the most current version of these Terms of Service, which are currently available at: http://www.PactelPics.com/legal/terms. When we change these Terms of Service, we will modify the “Last Modified” date above.
“Authorization Form” means a document issued by PactelPics and executed or otherwise agreed upon by you, or your authorized representative that specifies, among other things, a description of the Services, the fees, the number of Seats purchased, the Term, and any other details specifically related to the Services.
“Authorized Users” means individuals who are directly accessing the Services via an online sign-up process, or individual users authorized by you to use the Services and who you have supplied user identifications and passwords to. Authorized Users may include your employees, consultants, contractors, agents, or your other designees, but shall not include any employee or agent of any PactelPics competitor.
“Customer Content” means all information and data (including text, images, photos, videos, audio, and documents) or any other content in any media and format provided or made available to PactelPics by or on your behalf in relation to the use of the Services.
“Fair Use Policy” means the limits placed on usage as described in Section 2.6.
“Mentions” means the information, including links, posts, and excerpts, that has been made publicly available and obtained by PactelPics on your behalf from the Internet, and data derived therefrom, including reports, summaries, graphs, and charts.
“Seat” means a single subscription associated with a single login to Services, assigned to one Authorized User.
“Services” means services provided to you by PactelPics based on the plan you have purchased either through an online transaction or via an Authorization Form, but excluding Third-Party Services.
“Supported Platform(s)” means the social networking site(s) currently supported by the Services, including Twitter, Facebook, LinkedIn, Instagram, and other social networking sites as described via the Site.
“Taxes” means all taxes, assessments, charges, fees, and levies that may be levied or based upon the sale or license of goods and/or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, custom duties, and assessments together with any instalments with respect thereto, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority (including federal, state, provincial, municipal, and foreign governmental authorities).
“Third-Party Services” means products, services, applications, or websites made available by third parties through the Services (i.e., companies or people who are not PactelPics).
2. PactelPics Services
2.1 Services. During the Term, subject to the terms and conditions of this Agreement, and solely for your personal or internal business purposes, PactelPics grants you and your Authorized Users a right to access and use our Services for the number of Seats purchased, and support, if applicable, in accordance with the plan you selected.
2.2 Updates and Functionalities. You acknowledge that from time to time PactelPics may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of the Services (including the addition, modification, or removal of functionality, features, or content). Excluding the addition of wholly new products, PactelPics shall provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates”). You acknowledge that the Services interoperate with several Supported Platforms, and that the Services provided are highly dependent on the availability of such Supported Platforms. If at any time any Supported Platforms cease to make their programs available to PactelPics on reasonable terms (each an “API Change“), PactelPics may cease to provide such features to you without entitling you to refund, credit, or other compensation.
2.3 Acceptable Use. You shall (i) be responsible for your and your Authorized Users’ compliance with these Terms of Service, including the Fair Use Policy; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Customer Content and of the means by which you acquired or generated Customer Content; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, including keeping you password and user name confidential and not permitting any third party to access or use your user name, password, or account for the Services; (iv) be solely responsible and liable for all activity conducted through your account in connection with the Services; (v) promptly notify PactelPics if you become aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of your (or any Authorized User’s) user name, password, or account; (vi) use the Services only in accordance with applicable laws and government regulations; (vii) comply in all respects with all applicable terms of the Third-Party Services that you access or subscribe to in connection with the Services, including the applicable terms for Supported Platforms, such as the YouTube Terms of Service published at www.youtube.com/t/terms. Without limiting the foregoing, you represent and warrant that (i) you are not a public sector entity who will be using the Services to access or use content from Twitter for surveillance purposes, (ii) you are not a public sector entity whose primary function includes conducting surveillance/gathering intelligence; and (iii) you will not be using the Services to access or use content from Twitter for any unlawful, discriminatory purposes and/or profiling based on sensitive categories of information prohibited by law (see Section VII.A. User Protection of the Twitter Developer Agreement published at https://developer.twitter.com/en/developer-terms/agreement). You must not (a) make the Services available to anyone other than to your Authorized Users; (b) allow more than one individual Authorized User to use a Seat; (c) sell, trade, or otherwise transfer your Seats to another party; (d) use the Services to store or transmit any content, including Customer Content, that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; (e) upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component; (f) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the Services, any third-party use of the Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law); (g) access the Services in order to build a competitive product or service or copy any ideas, features, functions, or graphics of the Services; (h) attempt to gain unauthorized access to the Services or its related systems or networks; or (i) authorize, permit, or encourage any third party to do any of the above.
2.4 Mentions. You understand that by using the Services you may be exposed to third-party content, information, and Mentions that might be unlawful, offensive, harmful, inaccurate or otherwise inappropriate. PactelPics does not own, control, or review Mentions, and unless Customer creates the content of Mentions, Mentions shall not be considered “Customer Content” under any circumstances. Mentions may be indecent, offensive, inaccurate, unlawful, or otherwise objectionable. PactelPics has no obligation to preview, verify, flag, modify, filter, or remove any Mentions, even if requested to do so, although PactelPics may do so in its sole discretion. Your use of Mentions is at your sole risk, and PactelPics shall not be liable to you or any third party in relation to Mentions.
2.5 Fair Use Policy. PactelPics may suspend your access to the Services for abusive practices that degrade the performance of the Services for you and/or other customers of PactelPics.
2.6 Third-Party Products and Services. You acknowledge that the Services may enable or assist you to access, interact with, and/or purchase Third-Party Services from Supported Platforms and other third parties. When you access the Third-Party Services, you will do so at your own risk. These Third-Party Services may also allow you to store your Customer Content with the provider or operator of the Third-Party Services. Any use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services (and you shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between you and the relevant third party, and not PactelPics. PactelPics makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Services or any transactions completed and any contract entered into by you with any such third party.
2.7 Non-Exclusivity. You acknowledge that the rights granted to you under this Agreement are non-exclusive and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict PactelPics’s right to license, sell, or otherwise make available the Services to any third party or perform any services for any third party.
2.8 Beta Testing. From time to time, we may offer you the opportunity to install, use and test (the “Beta Testing”) certain of our Services prior to their commercial release (the “Beta Services”).
Beta Services are intended for evaluation purposes and not for production use and are subject to following additional terms:
(i) we grant you a limited right to use the Beta Services for Beta Testing purposes during the applicable testing period;
(ii) you agree to provide suggestions, comments, or other feedback with respect to the Beta Services as reasonably requested, including ideas for modifications and enhancements (the “Beta Feedback”). You hereby assign to us all right, title and interest in and to the Beta Feedback. All Beta Services and your Beta Feedback are PactelPics’s Confidential Information, and PactelPics may use your Beta Feedback in advertising and promotional materials with your prior consent (not to be unreasonably withheld);
(iii) we reserve the right to modify the Beta Services or terminate your participation in the Beta Testing for any reason, without liability to you. We will use commercially reasonable efforts to provide you with reasonable advance notice of such termination;
(iv) you acknowledge that the Beta Services are not at the level of performance or compatibility of a final, generally available product offering, and may be substantially modified prior to commercial availability, or withdrawn. We are under no obligation to provide technical support with regards to the Beta Services, and we provide no assurance that any specific errors or performance issues in the Beta Services will be corrected; and
(v) the Beta Services are provided on an “as is” and “as available” basis without any warranties or conditions of any kind, whether express, implied, statutory or otherwise. Use of the Beta Services is at your sole risk. In no event will we be liable to you for any damage whatsoever arising out of the use of or inability to use the Beta Services.
2.9 App Directory. You may access the PactelPics App Directory (the “App Directory”) in order to install and use one or more software applications, technology, data and other digital materials (each, an “App”) in connection with the Services. The majority of the Apps made available to you via the App Directory are Third-Party Services. By installing an App, you hereby agree to the PactelPics App Directory Terms of Service published here.
3. Intellectual Property
3.1 PactelPics Services. As between you and PactelPics, PactelPics retains all right, title, and interest in and to the Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services or any of PactelPics’s rights or interests therein or any other PactelPics intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services not expressly granted in this Agreement are reserved by PactelPics. You may from time to time provide suggestions, comments or other feedback to PactelPics with respect to the Services (“Feedback”). Feedback, even if designated as confidential by you, shall not create any confidentiality obligation for PactelPics notwithstanding anything else. You shall, and hereby do, grant to PactelPics a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
3.2 Customer Content. You grant PactelPics a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 9.1) license, without a right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index the Customer Content for the purpose of supporting your use of the Services and providing Services to you. PactelPics may also use Customer Content for the purpose of supporting and developing the Services, provided that when doing so, PactelPics shall only use Customer Content in an anonymized and aggregated way. Subject only to the limited license expressly granted herein, you and your Authorized Users shall retain all right, title and interest in and to the Customer Content and all intellectual property rights therein. Nothing in this Agreement will confer on PactelPics any right of ownership or interest in the Customer Content or the intellectual property rights there
4. PactelPics Products and Fees
4.1 Purchases By Authorization Form. If an Authorization Form is issued for the purchase of Services, you agree to pay all fees as and when described per the Authorization Form(s). PactelPics shall invoice you for the fees in the currency set forth on the applicable Authorization Form. Unless otherwise stated on the Authorization Form, all invoices shall be payable within 30 days of the invoice date. Any disputed amounts shall not affect payment of non-disputed amounts. You shall make payments to the entity and address set forth in the invoice.
4.2 Online Paid Services. For paid Services purchased online (“Online Services”), you must provide PactelPics with a valid credit card or other payment method (e.g., PayPal account) to pay for such services. Some Services may be available as a one-time purchase, and others can be purchased as a monthly or yearly subscription. You agree that PactelPics has permission to retain and/or share with financial institutions and payment processing firms (including any institutions or firms PactelPics retains in the future) your submitted payment information in order to process your purchase. Depending on where you transact with us, the type of payment method used and where your payment method was issued, your transaction with us may be subject to foreign exchange fees or differences in prices, including because of exchange rates. PactelPics does not support all payment methods, currencies, or locations for payment. If the payment method you use with us, such as a credit card, reaches its expiration date and you do not edit your payment method information or cancel or downgrade your account to a charge-free account, you authorize PactelPics to continue billing your credit card and/or PayPal account and you remain responsible for any uncollected amounts. All applicable taxes are calculated based on the billing information you provide us at the time of purchase.
4.3 Free Trial Period. If you sign up for a free trial period for a Service that is subject to charges (the “Free Trial”), we may require you to provide us with a valid credit card or other valid payment method. We may start charging you automatically on the first day after the Free Trial is over, unless you cancel or downgrade to a charge-free Service and uninstall any Apps or other items, as required for cancellation, before the end of the Free Trial period. Please note that prior to the end of the Free Trial Apps purchased via the PactelPics App Directory may need to be uninstalled via the App Directory to avoid charges being incurred. The Free Trial is only available to first time users of a paid Online Service.
4.4 Subscription Services; Auto-renewal and Cancellation. If you are purchasing Online Services on a subscription basis, you may have the option to purchase a monthly or a yearly subscription, which will automatically renew at the end of its applicable term. Subscriptions are billed in advance on a monthly or yearly basis (as per the option chosen when you purchased such Online Services) and are non-refundable for the subscription period they are purchased for. You agree that PactelPics may process your credit card or other valid payment method on each monthly, annual, or other renewal term (based on the applicable billing cycle), on the calendar day corresponding to the first day you subscribed to Online Services. If your paid subscription to Online Services began on a day not contained in a subsequent month (e.g., your service began on January 30 and there is no February 30), we will process your payment on the last day of such month. You may elect to cancel or downgrade your Online Services at any time by following the steps outlined here. Apps purchased via the PactelPics App Directory must be uninstalled separately via the App Directory to avoid charges being incurred. If you subscribed to a monthly PactelPics Pro plan (but not a Professional or Team plan), your account may immediately be downgraded to a charge-free account, and no credit or refund will be issued for any prepaid fees. If you subscribed to a monthly Professional or Team plan, the downgrade will only be effective at the end of the then-current monthly billing period, and no credits or refunds will be issued to you for any prepaid fees. If you subscribed to a yearly plan, the downgrade will only be effective at the end of the then-current annual billing period and no credits or refunds will be issued to you for prepaid fees. Online Services purchased for a one-time fee (such as Academy certifications) are not refundable.
4.5 Late Payment. If any amounts due hereunder are not received by PactelPics by the due date, then at PactelPics’s discretion, such charges may accrue late interest at the rate of 12% per year or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, upon 10 days’ written notice, PactelPics may suspend your access to the Services if PactelPics does not receive the amounts invoiced hereunder at the expiration of such period.
4.6 Taxes and Withholdings. You are responsible for paying all Taxes associated with your purchase of Services. If PactelPics has the legal obligation to pay or collect Taxes for which you are responsible under this section, the appropriate amount shall be invoiced to and paid by you, unless you provide PactelPics with a valid tax exemption certificate authorized by the appropriate taxing authority. Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any Taxes. If you are required to deduct or withhold any Taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, PactelPics receives an amount equal to the sum it would have received had no such deduction or withholding been made.
5. Term and Termination
5.1 Term of the Agreement (“Term”). For Online Services, the term of this Agreement shall commence on the day you access the Services for the first time and shall continue until your subscription ends, or your account is cancelled and you cease using our Services. If you purchase Services via an Authorization Form, the term of this Agreement shall commence on the day you sign the Authorization Form and shall continue until your subscription ends, or your account is cancelled and you cease using our Services.
5.2 Termination. If you violate the letter or spirit of this Agreement, abuse the Services, or otherwise create risk or possible legal exposure to PactelPics, we can terminate or suspend your access to the Services at our sole discretion. We will use commercially reasonable efforts to notify you by email or at the next time you attempt to access your account. You may also cancel or disable Services at any time. For cancellation procedure, and for further assistance, see the instructions published here.
5.3 Effects of Termination. Upon termination of this Agreement for any reason, (i) you will immediately cease all use of the Services; (ii) you will have no further access to your accounts provided by PactelPics; and (iii) you will pay PactelPics all unpaid amounts owing to PactelPics.
5.4 Survival. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, and such other provisions which expressly, or by their nature, are intended to survive termination shall survive the expiration or termination of this Agreement.
6. Warranty Disclaimer
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, PACTELPICS EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PACTELPICS SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NONINFRINGEMENT, THAT ITS SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT ITS SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, PACTELPICS DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PACTELPICS OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. PACTELPICS DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING THE CUSTOMER CONTENT AND MENTIONS, OR ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. PACTELPICS DOES NOT CONTROL OR VET CUSTOMER CONTENT OR MENTIONS AND IS NOT RESPONSIBLE FOR WHAT USERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. PACTELPICS IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY SERVICES OR SUPPORTED PLATFORMS ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES OR SUPPORTED PLATFORMS. PACTELPICS EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. IF YOU ARE DISSATISFIED OR HARMED BY PACTELPICS OR ANYTHING RELATED TO PACTELPICS, YOU MAY CANCEL YOUR PACTELPICS ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 4.4 (AUTO-RENEWAL AND CANCELLATION) OR SECTION 5.2 (TERMINATION), AS APPLICABLE, AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY (AND PACTELPICS’S SOLE AND EXCLUSIVE LIABILITY).
7.1 Your Indemnification. You shall defend, indemnify, and hold harmless PactelPics, its affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature which are in connection with or arising out of a claim (a) alleging that the Customer Content or your use of the Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; (b) relating to, or arising from, Customer Content, or your breach of Section 2.3 or Section 2.6; or (c) relating to, or arising from, Third-Party Services.
8. Limitation of Liability
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PACTELPICS’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF (A) THE FEEDS PAID BY YOU FOR THE SERVICES HEREUNDER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE AND (B) US$500. PACTELPICS DOES NOT OFFER ANY WARRANTY OR REMEDIES FOR THE INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PACTELPICS, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL PACTELPICS BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF PACTELPICS WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF PACTELPICS FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF PACTELPICS, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT OF PACTELPICS; OR (III) ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
9.1 Assignment. You may not assign or otherwise transfer any of your rights or obligations hereunder, whether by merger, sale of assets, change of control, operation of law or otherwise, without the prior written consent of PactelPics (not to be unreasonably withheld), and any attempted assignment or transfer without such consent will be void. PactelPics may freely assign or delegate all rights and obligations under this Agreement, fully or partially without notice to you. PactelPics may also substitute, by way of unilateral novation, effective upon notice to you, PactelPics
Inc. for any third party that assumes our rights and obligations under this Agreement.
9.2 Export Compliance and Use Restrictions. You shall not use or access the Services if you are located in any jurisdiction in which the provision of the Services is prohibited under Canadian, U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and you shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) you are not named on any Canadian or U.S. government list of persons or entities prohibited from transaction with any Canadian or U.S. person; (b) you are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) you shall not allow Authorized Users to access or use the Services in violation of any Canadian, U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) you shall comply with all applicable laws regarding the transmission of data exported from the country in which you (or your Authorized Users) are located to Canada and the United States.
9.3 Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.
9.4 Notices. For purposes of service messages and notices about the Services, we may place a banner notice across our pages to alert you to certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you through your PactelPics account or through other means including email, mobile number, telephone, or delivery services including the postal service about your PactelPics account or services associated with us. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Services. You may provide legal notice to PactelPics via email with a duplicate copy sent via registered mail to PactelPics Inc., 5 East 8th Avenue, Vancouver, British Columbia, V5T 1R6; Attention: Legal Affairs. The email address provided may be updated as part of any update to these Terms of Service.
9.5 Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all parties to this Agreement, except that any provision which does not give rights or benefits to particular parties may be waived in writing, signed only by those parties who have rights under, or hold the benefit of, the provision being waived if those parties promptly send a copy of the executed waiver to all other parties. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
9.6 Nature of Relationship. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
9.7 Force Majeure. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs, or labour disruptions; and any laws, orders, rules, regulations, acts, or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
9.8 Governing Law. This Agreement and your relationship with PactelPics shall be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the province of British Columbia, Canada and shall be considered to have been made and accepted in British Columbia, Canada, without regard to its conflict of law provisions. All disputes under this Agreement will be resolved by the courts of British Columbia in Vancouver. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
10. PactelPics Campaigns for Contests
If you use or access PactelPics Campaigns for Contests, the following additional terms apply to your access to and use of such Services:
10.1 Additional Definitions.
“Campaigns” means campaigns created by you or your Authorized Users, including contests, sweepstakes, galleries, and other market data gathering activities on Supported Platforms, via the PactelPics Campaigns Platform.
“Campaign Page” means a webpage for a particular Campaign that may display or publish Customer Content, Mentions, and/or Submitted Content.
“Campaign Participant” means a person who participates in a Campaign.
“PactelPics Campaigns for Contests” or “PactelPics Campaigns Platform” means PactelPics’s proprietary software, content, text, images, media, and other materials delivered through PactelPics’s web platform campaigns.PactelPics.com (including successor domain names and sites) and mobile applications that enable you and your Authorized Users to create and manage Campaigns, including any modifications or Updates.
“Submitted Content” means all information (including personal information) and data or any other content in any media and format provided or made available to you by Campaign Participants.
10.3 Submitted Content. You shall be solely responsible for the means by which you acquire or generate Submitted Content. You understand that, by using the Services, you may be exposed to Submitted Content that might be unlawful, offensive, harmful, inaccurate, or otherwise inappropriate. Unless you create the content of the Submitted Content, Submitted Content shall not be considered “Customer Content” under any circumstances. PactelPics has no obligation to preview, verify, flag, modify, filter, or remove any Submitted Content, even if requested to do so, although PactelPics may do so in its sole discretion. Your use of Submitted Content is at your sole risk, and PactelPics shall not be liable to you or any third party, including any Campaign Participant, in relation to Submitted Content.
To the extent Submitted Content is accepted for a Campaign, you shall (i) require each Campaign Participant to be responsible for its own Submitted Content and the consequences of posting or publishing such Submitted Content; and (ii) require each Campaign Participant to affirm, represent, and warrant that such Campaign Participant (a) owns or has the necessary licenses, rights, consents, and permissions to use and authorize you and PactelPics to use all intellectual property rights in and to its Submitted Content and (b) has the written consent, release, and/or permission of each and every identifiable individual person in its Submitted Content to use the name and likeness of every such person, in order to enable inclusion and use of the Submitted Content in the manner contemplated by the Campaign and applicable official rules and on the Campaign Page.
10.5 Your Additional Indemnification. You shall defend, indemnify, and hold harmless PactelPics, its affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature which are in connection with or arising out of a claim (a) alleging that any Campaign or Submitted Content infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; or (b) relating to, or arising from, (i) any Campaign or Submitted Content, or entries to or from a Campaign or a Campaign Page or (ii) your breach of your obligations, representations, or warranties in Section 10.2 or 10.3 above.
11. PactelPics API
If you use or access PactelPics’s API services, the following additional terms as well as the terms and conditions located at https://PactelPics.com/legal/dev-api-terms (the “Developer Terms and API License Agreement”) will also apply to your access and use of such Services.
11.1 Additional Definitions.
“API” means the Application Programming Interface and associated API Documentation provided by PactelPics, as updated from time to time. There may be more than one API, and in these PactelPics API Terms the term is both singular and plural.
“API Access” means access to and use of the API, as set forth in the API Documentation.
“API Documentation” means the documentation, data and information that we provide regarding the use of the API through the website published at https://developer.PactelPics.com.
“API License” means an API Access license for a single user.
11.2 API Access. During the Term, and solely for your internal business purposes, we will provide you with API Access for such number of API Licenses as set forth either in the Authorization Form describing the API Access.
11.3 Data Exchange. You acknowledge that use of the API Access will involve the exchange of data, and Customer Content between the Services and certain Third-Party Services and internal services used by you. You hereby consent to such exchange of data and represent and warrant that such exchange complies with the terms of such Third-Party Services (including Supported Platforms) and applicable law.
11.4 Conflicting Terms. In the event of a conflict between these Terms of Service and the Developer Terms and API License Agreement, the PactelPics Terms will govern to the extent of such conflict.