Terms of Service

This Terms of Service Agreement (the “Agreement”) is an agreement between you (the “User”) and Pictographr, Inc. ("Pictographr", "we", or "us").  We provide Users with access to certain Materials (as defined below) to help our customers to design and create graphic content (collectively, the “Services”) and host them directly and through the website and associated domains of http://www.pictographr.com (the “Site”).  This Agreement explains our obligations to you, and your obligations to us.  This Agreement is the entire Agreement between us and supersede any prior agreements between you and us relating to the Services. You may not assign or otherwise transfer these terms or your rights and obligations under these terms, in whole or in part, without our written consent and any such attempt will be void. We may transfer our rights under these terms to a third party.  By using the Site in any way you are agreeing to comply with these terms, our Privacy Policy and any other legal notices or conditions or guidelines posted on the Site.

Materials

All material and services available on the Site, and all material and services provided by or through Pictographr, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners including, but not limited to, software, all informational text, software documentation, design of and "look and feel," layout, photographs, graphics, messages, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, the "Materials"), are owned by us or other parties that have licensed their material or provided services to us, and are protected by copyright, trademark, trade secret and other intellectual property laws.  All Pictographr trademarks and service marks, logos, slogans and taglines are the property of Pictographr.  All other trademarks, service marks, logos, slogans and taglines are the property of their respective owners.  Except as otherwise specifically provided herein, nothing should be construed as granting any license or right to use any trademarks, service marks, logos, slogans or taglines displayed on Pictographr without our express written permission, or the express written permission of such third-party that may own the trademark, service mark, logo, slogan or tagline.

Access

Subject to this Agreement, Pictographr hereby grants you a limited, revocable, non-transferable and non-exclusive license to use the Materials through a user identification reference derived via an account from third party providers (“User ID”) to the extent, and only to the extent, necessary to access and use the Services in accordance with the terms of this Agreement.  This license does not permit you, and you agree not to: store, copy, reproduce, republish, modify, upload, post, translate, scrape, rent, lease, loan, sell, distribute, transfer, transmit, display, decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with the Materials or otherwise distribute in any way the Materials other than as specifically permitted in this Agreement.  You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Materials, create derivative works based on or in any manner commercially exploit the Materials, in whole or in part, other than as expressly permitted in this Agreement.  Any use of the Materials for any purpose other than as specifically permitted herein or without our prior consent or the prior written consent of our licensors, as applicable, is expressly prohibited. We reserve all rights not expressly granted in this Agreement.

As our Services require you to give us access to or require you to provide login information and password information for accounts or services you may have with third party providers, you agree that you have read all contracts and written agreements governing such access, login information and passwords and that you have all the necessary contractual and legal rights to give us such access, login information and passwords.

Custom Templates

As part of the Services, we may provide you custom templates ("Custom Templates") which may be populated with sample content provided by us to illustrate how your final design might look (“Sample Content”).  You agree that you will not make this Sample Content publicly available and that you will remove all Sample Content from physical and digital storage before permitting any third party users to access or view your content.  If you choose, you may contribute website templates to the Service for use by other users. You hereby grant and agree to grant us an exclusive, perpetual, sublicensable, worldwide, irrevocable, royalty-free right and license to use, copy, modify, and create derivative works of any Custom Templates contributed by you to the Service, including all and any graphic assets contained within.

Conduct

You must not misuse the Services, Software, or content that we provide to you as part of the Services. For example, you must not:

 

Pictographr may determine in its sole discretion whether or not an account is in violation of any of these policies.  Violation of any of these policies may result in user information tracking with such information being stored to identify the offending user.  Offending users may be permanently restricted from holding an account or using the Services.  If Pictographr reasonably determines that your account is being used for illegal or fraudulent activity then your account may be immediately terminated and your financial data erased. We may also report you to law enforcement officials in the appropriate jurisdictions.  Any unauthorized use terminates the permission or license granted.

User-Generated Content

You retain all rights and ownership of your content (“Content”).  We do not claim any ownership rights to your content. You are allowed to license your content to other users through our Services. If available, you may choose to license your content through us under a separate agreement or directly to other users under an agreement between you and the buyer.  If you believe any Materials infringe your copyrighted works, you may provide a notification of claimed copyright infringement to us via email for copyright complaints.

Your Liability

You are legally responsible for all information, data, text, photographs, graphics, messages or other materials uploaded, posted or stored in connection with your use of the Services.  You are solely liable for any damages resulting from the infringement of copyrights, trademarks, proprietary rights, or any other harm resulting from created material. You agree to pay all royalties, fees, and any other monies owing any person for any materials posted by you via Pictographr.

Licence for Pictographr’s Use

You hereby grant Pictographr a worldwide, royalty-free, non-exclusive license to host and use your Content in order to provide you with the Services and hereby represent and warrant that you have all the rights necessary to grant us such license.  This license is also for the purpose of improving the Services. We will not access, view, or listen to any of your content, except as reasonably necessary to perform the Services. Actions reasonably necessary to perform the Services may include (but are not limited to) (a) responding to support requests; (b) detecting, preventing, or otherwise addressing fraud, security, unlawful, or technical issues; and (c) enforcing these terms.

Screening

We may disclose any information necessary or appropriate to satisfy our legal obligations, protect Pictographr or its customers, or operate the Services properly.  Pictographr, in its sole discretion, may refuse to post, remove, or require you to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.  While we do not review all content uploaded to the Services, we may use available technologies or processes to screen for certain types of illegal content (for example, child pornography) or other abusive content or behavior (for example, patterns of activity that indicate spam or phishing, or keywords that indicate adult content has been posted outside of the adult wall).

Website Account and Security

You are responsible for maintaining the security of your account, for all activities that occur or actions taken under the account or in connection with the web site. You agree to immediately notify us in writing of any unauthorized uses of the account or any other breaches of security. We will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will we be liable, in any way, for any or your acts or omissions or those of any third party, including damages of any kind incurred as a result of such acts or omissions.

Trial

Initial signups to Pictographr will enable trial use of the Services ("Trial Period") for a seven day trial period.  Moreover, you can accrue additional 7-day periods by either referring others to join, or entering promotional codes distributed by Pictographr marketing partners.  If you registered for a trial use of the Services, you must decide to purchase a subscription for the Services in order to retain continued access to Content that you have posted or uploaded during the Trial Period.  If you do not purchase the Services by the end of the Trial Period, your Content will no longer be available to you. To be very clear, after using the Services during the Trial Period, if you decide not to purchase the full version of the Services, you will not be able to access or retrieve any of the data you added/created during the Trial Period.

Fees

For continued use of the Pictographr editor after the Trial Period, a monthly or annual subscription (“Fee”) must be purchased through the payment area of the Pictographr website located within the Account Setting menu.  The subscription fees are described on Pictographr Pricing page.  Pictographr reserves the right to change this price list and institute new charges with adequate notice. Your continued use of the service means you accept all new or increased charges.

At the end of the subscription period your subscription will automatically renew under identical terms for an additional period until you explicitly cancel the Services by following Cancellations and Refund Policy (as defined below).

Credit Card Information

When you purchase any Services that we offer for the Fee, you agree to our third party service providers, storing your payment card information.  We currently use services from Stripe, Inc., located at 3180 18th St STE 100, San Francisco, CA 94110-2043.  Pictographr do not collect or store any credit card information on our servers. You expressly agree that we are authorized to charge you (i) a monthly Fee for any applicable Services billed on a monthly basis, or (ii) an annual Fee for any applicable Services billed on a yearly basis, and (iii) any applicable taxes in connection with your use of the Services to the payment card you provide and to reimburse us for all collection costs and interest for any overdue amounts.  If the payment card you provide expires and you do not provide new payment card information or cancel your account, you authorize us to continue billing you and you agree to remain responsible for any uncollected Fees.  In addition, we may participate in programs supported by your card provider to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.

Taxes

You take full responsibility for all taxes and fees of any nature associated with Services, including any sales tax related to the purchase or sale of Commercial Products. Except for collecting EU VAT and remitting it to the EU, Pictographr shall not be liable for any taxes or other fees to be paid in accordance with or related to the Commercial Products.  When purchasing or selling Commercial Products, it is your responsibility to determine whether or not sales taxes apply to a transaction and to collect, report and remit the correct amounts to the appropriate authority.  Any tools provided as Materials or in connection with the Services indicating estimated taxes due are for illustration purposes only. You take full responsibility for all taxes and fees of any nature associated with Services, including any sales tax related to the purchase or sale of Commercial Products. Pictographr is required to collect Value Added Tax of the European Union (“EU VAT”) from non-taxable EU customers, therefore, EU VAT shall be charged to these customers on top of our Fees.

Cancellations and Refund Policy

You can cancel your subscription at any time but you must cancel your subscription at least one (1) day prior to the end of the contract term to avoid automatic renewal.  Cancellation can be initiated via the payment area under the Accounts Settings page on Pictographr website.  When you cancel the Services:

Termination of your account does not relieve you of any obligation to pay any outstanding fees. You may revoke license to your content and terminate our rights at any time by removing your content from the Service. However, some copies of your content may be retained as part of our routine backups.

Termination by Us

If we terminate these terms for reasons other than for cause, then we will make reasonable effort to notify you at least 30 days prior to termination via the email address you provide to us with instructions on how to retrieve your content. We may at any time terminate these terms (and your access to Services or Software) with you if:

 

Notice of termination of Services by Pictographr may be sent to the contact e-mail associated with your account. Upon termination, Pictographr has the right to delete all data, files, or other information that is stored in your account.

Survival

Upon expiration or termination of these terms, any perpetual licenses you have granted, your indemnification obligations, our warranty disclaimers or limitations of liabilities, and dispute resolution provisions stated in these terms will survive. Upon the expiration or termination of the Services, some or all of the Software may cease to operate without prior notice.

Modification of Service

We may modify, update, or discontinue the Services, Software (including any of their portions or features) at any time without liability to you or anyone else. However, we will make reasonable effort to notify you before we make the change. We will also allow you a reasonable time to download your content. If we discontinue a Service in its entirety, then we will provide you with a pro rata refund for any unused fees for that Service that you may have prepaid.

Disclaimers of Warranties

The Services and Software are provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. We make no commitments about the content within the Services. We further disclaim any warranty that (a) the Services or Software will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results that may be obtained from the use of the Services or Software will be effective, accurate, or reliable; (c) the quality of the Services or Software will meet your expectations; or that (d) any errors or defects in the Services or Software will be corrected. We specifically disclaim any liability for any actions resulting from your use of any Services or Software. You may use and access the Services or Software at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use and access of any Service or Software.

 

Limitation of Liability

We are not liable to you or anyone else for: (a) any loss of use, data, goodwill, or profits, whether or not foreseeable; and (b) any special, incidental, indirect, consequential, or punitive damages whatsoever (even if we have been advised of the possibility of these damages), including those resulting from loss of use, data, or profits, whether or not foreseeable, based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or arising from any other claim arising out of or in connection with your use of or access to the Services or Software. Nothing in these terms limits or excludes our liability for gross negligence, for our (or our employees’) intentional misconduct, or for death or personal injury.  Our total liability in any matter arising out of or related to these terms is limited to US $100 or the aggregate amount that you paid for access to the Service and Software during the three-month period preceding the event giving rise to the liability, whichever is larger. This limitation will apply even if we have been advised of the possibility of the liability exceeding the amount and notwithstanding any failure of essential purpose of any limited remedy.

Indemnity

You agree to indemnify and hold Pictographr, and its subsidiaries, affiliates, officers, directors, agents, co-branders, partners and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your Content, use of or connection to the Service, violation of these Terms, or violation of any rights of another.

Privacy

The Privacy Policy at https://pictographr.com/privacy governs any personal information you provide to us. By using the Services or Software you agree to the terms of the Privacy Policy.

Sharing

Some Services may provide features that allow you to Share your content with other users or to make it public. “Share” means to email, post, transmit, upload, or otherwise make available (whether to us or other users) through your use of the Services. Other users may use, copy, modify, or re-share your content in many ways. Please consider carefully what you choose to Share or make public as you are entirely responsible for the content that you Share.

Feedback

Any questions, comments, suggestions, ideas, feedback, or other information provided by you to us (“Comments or Feedback”) are not confidential.  You have no obligation to provide us with ideas, suggestions, or proposals. However, if you submit them to us, then you grant us a nonexclusive, worldwide, royalty-free license that is sub-licensable and transferrable, to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, and publicly perform the Feedback.

Disclosure

We may access or disclose information about you, or your use of the Services, (a) when it is required by law (such as when we receive a valid subpoena or search warrant); (b) to respond to your requests for customer service support; or (c) when we, in our discretion, think it is necessary to protect the rights, property, or personal safety of us, our users, or the public.

Dispute Resolution

For any concern or dispute you may have, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, you or Pictographr must resolve any claims relating to these terms, the Services, or the Software through final and binding arbitration, except that you may assert claims in small claims court if your claims qualify.

 

Applicable Law

By visiting our website, you agree that the laws of the State of California, without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between you and Pictographr.

International Use

Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

No Class Actions

You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.

 

Injunctive Relief

Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Services or content in violation of these terms you agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

Compliance with Licenses

If you are a business, company, or organization, then we may, no more than once every 12 months, upon seven 7 days’ prior notice to you, appoint our personnel or an independent third party auditor who is obliged to maintain confidentiality to inspect (including manual inspection, electronic methods, or both) your records, systems, and facilities to verify that your installation and use of any and all Software or Services is in conformity with its valid licenses from us. Additionally, you will provide us with all records and information requested by us in order to verify that its installation and use of any and all Software and Services is in conformity with your valid licenses from us within 30 days of our request. If the verification discloses a shortfall in licenses for the Software or Services, you will immediately acquire any necessary licenses, subscriptions, and any applicable back maintenance and support. If the underpaid fees exceed 5% of the value of the payable license fees, then you will also pay for our reasonable cost of conducting the verification.

 

Modification of Terms of Service

We may modify these terms or any additional terms that apply to a Service or Software to, for example, reflect changes to the law or changes to our Services or Software. You should look at the terms regularly. We will post notice of modifications to these terms on this page. We will post notice of modified additional terms in the applicable Service or Software. By continuing to use or access the Services or Software after the revisions come into effect, you agree to be bound by the revised terms.

Miscellaneous

Effective date: Feb 15th 2016