PLACEIT Terms of Use
PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS. THESE TERMS OF USE (“TERMS OF USE” OR “AGREEMENT”) IS BETWEEN YOU AND FRESHOUT MEDIA LLC D/B/A “PLACEIT” (“PLACEIT”). PLACEIT OWNS AND OPERATES A WEBSITE KNOWN AS HTTP://PLACEIT.NET (THE “WEBSITE”) AND ALL RELATED PRODUCTS AND SERVICES. By accessing or using the SERVICES PROVIDED BY PLACEIT (THE “sERVICES”), you signify that you have read, understand and agree to be LEGALLY bound by these Terms of Use.
PLACEIT reserves the right, IN ITS sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without notice. If PLACEIT doES this, PLACEIT will post the changes to these Terms of Use on this page and will indicate at the top of this page the date these Terms of Use were last revised. You are responsible for regularly reviewing these Terms of Use. Your continued use of the sERVICES after any such changes constitutes your acceptance of the new Terms of Use. If you do not agree to abide by these or any future Terms of Use, do not use or access (or continue to use or access) the sERVICES. IF YOU ARE A CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE been duly authorized TO ENTER INTO THIS AGREEMENT.
I. PLACEIT SERVICES.
A. What We Provide.
The Website allows you to submit (e.g. upload or take a screenshot from any applicable URL) your images, content or other data, include, without limitation, audio, visual, audiovisual, text and other elements and materials, in any media or format now known or hereinafter devised, whether physical, electronic, digital, analog or otherwise (collectively, “User Content”) into larger images created, developed and owned by PLACEIT to use for your marketing and advertising purposes. You can access the Services via the Website and/or other designated websites as designated by PLACEIT. Your use of the Services will be subject to these Terms of Use, PLACEIT’s privacy policy, additional terms and conditions found on the Website (the “Additional Terms”), and the following license agreements that are set forth on the Website (each, a “License” and collectively, the “Licenses”), which Licenses can be found at https://placeit.net/#license. The terms and conditions of the Additional Terms and Licenses are hereby incorporated into these Terms of Use by this reference. The Licenses do not ensure that your use of the Services is compliant with any other branded products that are used in PLACEIT’s images or other digital products. Each Service that is provided will designate which License(s) are applicable to that Service, and upon your use of the Service, you shall be bound by the terms of the applicable License(s) associated therewith.
The “Services” include PLACEIT’s hosting of online, web-based applications (the “PLACEIT Applications”), which may include related support and maintenance activities. The “PLACEIT Applications” means applications supplied by PLACEIT for your use in connection with the Services, including any optional modules, custom or standard enhancements developed by PLACEIT, updates and upgrades, and associated offline components. The PLACEIT Applications do not include any other websites, native operating systems and applications, web-based social media subscription services or hosted applications, or any associated offline software products, that are provided by third parties, including those that operate in conjunction with the Services (collectively, “Third Party Applications”).
B. Free Service.
PLACEIT offers a portion of the Services without charge, provided that you satisfy certain criteria for such free use as determined by PLACEIT, in its sole discretion (the “Free Services”). You acknowledge and agree that PLACEIT may, in its sole and absolute discretion, terminate your use of the Free Services or change the eligibility requirements for the Free Services.
C. Subscription Services.
By (i) selecting the applicable subscription plan (each, a “Subscription Plan”) via an online purchase process, and (ii) paying all applicable fees and charges for the Services related thereto, you will have the ability to download a certain number of images per month for your use. PLACEIT offers a variety Subscription Plans to suit your needs. Any benefits included in a Subscription Plan will be subject to change at any time and from time to time, as determined by PLACEIT, in its sole discretion.
The term of your use for the Services purchased under a Subscription Plan (the “Subscription Services”) commences on the date that you purchase a Subscription Plan and expires on the last day of the applicable billing cycle after you send an email to hi@placeit.net notifying us that the you wish to cancel the Subscription Plan (the “Subscription Term”), unless sooner terminated as provided herein. You will maintain the rights to use any images downloaded during your subscription period with the license that was granted to you forever. Each billing cycle for the Subscription Services runs from the date that you purchase a Subscription Plan until the date that is one month thereafter. NOTE THAT SUBSCRIPTION PLANS AUTOMATICALLY RENEW ON A MONTHLY BASIS UNLESS AND UNTIL YOU CANCEL THE SUBSCRIPTION PLAN AS PROVIDED HEREIN. IF YOU FAIL TO SEND THE EMAIL CANCELLATION NOTICE PRIOR TO THE END OF A BILLING CYCLE, YOU WILL BE CHARGED FOR THE NEXT ENTIRE MONTHLY BILLING CYCLE.
D. One-Time Use.
You may also purchase single images using the one-time purchase option on the Website. By (i) selecting the applicable size and resolution of the image that you wish to purchase (each, a “One-Time Purchase”) via an online purchase process, and (ii) paying all applicable fees and charges for the Services related thereto, you will have the ability to download a single image for your use.
E. Enterprise Services.
PLACEIT also offers an upgraded Service known as “Enterprise Services” that (i) will be installed on your company’s intranet (or other similar network) and will give access to the PLACEIT Applications to all individuals who have access to such intranet (or other similar network) (each a “User”), and (ii) provides an extra layer of encryption beyond the SSL encryption to further protect and secure the images created by you. To purchase the Enterprise Services, you must (a) select such Service via an online purchase process, and (b) pay all applicable fees and charges for the Services related thereto. Like the Subscription Services, the Enterprise Services will give you and your Users the ability to download a certain number of images per month for your use.
The term of your use for the Enterprise Services commences on the date that you purchase the Enterprise Services and expires on the last day of the applicable billing cycle after you send an email to hi@placeit.net notifying us that you wish to cancel your use of the Enterprise Services (the “Enterprise Term”), unless sooner terminated as provided herein. Each billing cycle for the Enterprise Services runs from the date that you purchase the Enterprise Services until the date that is one month thereafter.
F. Nature and Extent of the Services.
You understand and agree that your purchase of the Services is based solely on the representations expressly made by PLACEIT herein or in any License, and that your purchases hereunder are neither contingent on the delivery of any potential future functionality or features, nor dependent on any oral or written representations, warranties or public comments made by PLACEIT regarding the potential future functionality or features of the PLACEIT Applications. The Services purchased by you is limited solely to the features and functionality existing as of the date of your purchase. The availability of new PLACEIT Applications, or enhancements to the Services may require the payment of additional fees as determined by PLACEIT, in its sole discretion. These Terms of Use will apply to any updates, upgrades and new modules or offerings subsequently provided by PLACEIT to you as part of any purchased Services. In the event of a conflict between such Additional Terms and these Terms of Use, such Additional Terms shall govern and control.
All images created using the Services are protected via SSL encryption. You are solely responsible to ensure that your User Content, including any personal information, is secure. In furtherance of the foregoing, you must take all steps necessary to ensure that your and your Users’ passwords are not disclosed to third parties.
II. USE OF SERVICES.
A. Responsibilities of PLACEIT.
PLACEIT shall: (i) provide the Services only in accordance with applicable laws and government regulations; (ii) maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of any electronic data, video, artwork, screen names, graphics (including logos), photos, profiles, audio (including music), links, software or written content or any other files, or any other information supplied by you or your Users, but excluding any PLACEIT Applications, templates, sample or demonstration content or files utilized or provided by PLACEIT as part of the Services; and (iii) use commercially reasonable efforts to restore any lost User Content or images generated from fee-based Services in the event of unavailability due to a failure in the Services, provided that PLACEIT shall have no liability whatsoever for the loss of any such User Content or images or its failure to restore the same. You may contact PLACEIT by emailing hi@placeit.net to receive basic support services for the purchased Services at no additional charge and/or upgraded support if made available by PLACEIT and purchased by you separately by way of a written agreement between PLACEIT and you. PLACEIT does not warrant that it will continue to provide such basic support services, and reserves the right, at any time, to include any free basic support services in the fee-based Services without notice to you.
You acknowledge and agree that there may be interruptions in your use of the Services including, without limitation, (a) planned downtime (of which PLACEIT shall endeavor to give at least 8 hours notice on its Website, and which PLACEIT shall schedule to the extent practicable during the hours commencing on Friday, 11:00 p.m. U.S. Pacific time and expiring on Monday, 5:00 a.m. U.S. Pacific time), or (b) any unavailability caused by circumstances beyond PLACEIT’s reasonable control, including without limitation, unusually heavy traffic to the Website, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving PLACEIT’s employees), Internet service provider failures or delays, or any failures, delays or downtime caused by PLACEIT’s vendors, including, without limitation, the unavailability or modification by third parties of Third Party Applications. PLACEIT shall have no liability for any such interruptions from any cause whatsoever.
B. Your Responsibilities.
You are responsible to ensure that the User Content and any images generated by you and your Users during use of the Services comply with all applicable laws. You shall be responsible for any and all costs associated with your use of the Services and the images generated thereby. You also agree to comply with any privacy policies and any rules or guidelines required by the applicable Third Party Application you run using the PLACEIT Applications. You understand and agree that PLACEIT may also be subject to such rules or guidelines, which may in turn condition or limit the features, functions, workflow, look and feel, or content you may use or display.
You shall (i) be responsible for Users’ compliance with this Agreement and for Users’ use of the Services, and for ensuring that Users maintain the confidentiality of their passwords and user names; (ii) be solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Content and any images generated from the use of the Services and of the means by which you acquired your User Content; (iii) prevent unauthorized access to or use of the Services, and notify PLACEIT promptly of any such unauthorized access or use; (iv) use, and cause all Users to use, the Services only in accordance with this Agreement, the Licenses, Additional Terms, and applicable laws and governmental regulations; (v) notify PLACEIT immediately of any unauthorized use of any password or account or any other known or suspected breach of security impacting the Services; and (vi) immediately report to PLACEIT, and use best efforts to immediately stop, any copying or distribution of User information that is known or suspected by you or your User as being unlawful or unauthorized.
You shall not (a) make the Services available to anyone other than Users, (b) use, or permit the use of, the Services to store, transmit or process (1) infringing, libelous, obscene, threatening, offensive, or otherwise unlawful or tortious material, including material that is harmful to children; (2) material in violation of third-party privacy rights; (3) any non-public or personally-identifiable data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either “Protected Health Information” subject to and defined by the Health Insurance Portability and Accountability Act, or an individual’s first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: social security number, driver’s license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident’s financial account; (c) use, or permit the use of, the Services to send, store, publish, post, upload or otherwise transmit any viruses, time bombs, Trojan horses, worms and other harmful or malicious code, files, scripts, agents or programs (collectively, “Malicious Code”), including corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (d) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (e) attempt to gain unauthorized access to the Services or their related systems or networks; (f) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services or any PLACEIT Application available to any third party, other than to Users, except as expressly contemplated by these Terms of Use; (g) use, or permit the use of, any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services; (h) use any data mining, robots or similar data gathering or extraction methods; (i) access the Services or download a PLACEIT Application for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services; (j) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the PLACEIT Applications or Services or any part thereof or otherwise attempt to discover any source code or modify the PLACEIT Applications or Services; (k) use PLACEIT’s or Freshout Media LLC’s name, trademarks, trade names in connection with your use of the Services or mention PLACEIT or Freshout Media LLC in any of your marketing, advertising or other materials, without PLACEIT’s prior written consent, except that the watermark inserted into certain images by PLACEIT shall be permitted; or (l) impersonate another User or provide false identity information to gain access to or use the Services or the PLACEIT Application.
C. Hosting of PLACEIT Applications.
PLACEIT will host PLACEIT Applications (except for off-line components or applications) and may update the functionality and user interface of the Services from time to time, in its sole discretion, in an effort to continue to improve the Services and your use of the Services. Certain PLACEIT Applications or portions of the Services may be subject to limitations not specified herein. Such limitations will be specified in the Licenses, on the Pricing List (as the same may be updated from time to time) or in the Additional Terms.
D. Content License.
Subject to the terms and conditions of these Terms of Use, including PLACEIT’s confidentiality obligations, you hereby grant PLACEIT a limited, non-exclusive, royalty-free, worldwide license to use the User Content and perform all acts with respect to the User Content as may be necessary for PLACEIT to provide the Services to you. To the extent that User Content may contain any non-public personally-identifiable data about Users, you agree to PLACEIT’s use, collection and disclosure of such non-public personally identifiable information for the purposes authorized under this Agreement in accordance with PLACEIT’s privacy policy located at: http://blog.placeit.net/privacy-policy
You represent, warrant and covenant that you shall not upload, post or transmit to or distribute or otherwise publish through the Website or the PLACEIT Applications any materials which (i) restrict or inhibit any other user from using and enjoying the Website, (ii) are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent, (iii) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law, (iv) violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right, (v) contain a virus or other harmful component, (vi) contain any information, software or other material of a commercial nature, (vii) contain advertising of any kind, or (viii) constitute or contain false or misleading indications of origin or statements of fact.
You understand that the technical processing and transmission of User Content is fundamentally necessary to use of the Services. Therefore, you expressly consent to PLACEIT’s interception and storage of User Content, which will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by PLACEIT or other business divisions of Freshout Media LLC. You further acknowledge and understand that the User Content may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. PLACEIT is not responsible for any User Content which is delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by PLACEIT, including, but not limited to, the Internet, Third Party Applications, and your local network.
YOU ACKNOWLEDGE AND AGREE THAT YOU MAY PERMANENTLY LOSE ANY USER CONTENT THAT YOU INPUT INTO THE PLACEIT APPLICATIONS, INCLUDING ANY CHANGES MADE TO THE USER CONTENT BY OR FOR YOU DURING YOUR USE OF THE SERVICES.PLACEIT SHALL NOT BE LIABLE TO YOU FOR ANY LOSS OF SUCH USER CONTENT OR ANY CHANGES THERETO.
E. Termination of Services.
PLACEIT may immediately terminate your and/or your Users’ access to the Services or any PLACEIT Application in the event that either you or your User is engaged in, or PLACEIT in good faith suspects is engaged in, any unauthorized conduct (including any violation of the terms of these Terms of Use, any applicable law or third party right, including the terms of any Third Party Application on which your use of the Services relies). PLACEIT will endeavor to contact you prior to or contemporaneously to such termination, provided, however, that the failure to so notify you shall not affect or limit in any way PLACEIT’s rights and remedies available hereunder, at law, or in equity including without limitation, PLACEIT’s termination rights set forth herein. In the event of any such termination, PLACEIT reserves the right to effect a termination of your entire account, which may include the termination of all affiliate and/or User sub-accounts. You agree that PLACEIT will not be liable to you or to any affiliate or User or any other third party if PLACEIT exercises its termination rights as permitted by this Section.
F. Third-Party Rules and Regulations.
PLACEIT MAKES NO REPRESENTATIONS, WARRANTIES OR CLAIMS WHATSOEVER THAT THE IMAGES THAT YOU TAKE FROM THE USE OF THE SERVICES AND/OR USE IN YOUR MARKETING AND ADVERTISING MATERIALS COMPLY WITH ANY RULES AND REGULATIONS PROMULGATED BY THE MANUFACTURER OR OWNER OF ANY DEVICE OR PRODUCT DISPLYED IN SUCH IMAGES. YOU ARE SOLELY RESPONSIBLE TO ENSURE THAT YOUR USE OF SUCH IMAGES COMPLIES WITH ANY APPLICABLE RULES AND REGULATIONS OF SUCH THIRD PARTIES AND YOU HEREBY AGREE TO RELEASE, DEFEND, INDEMNIFY AND HOLD PLACEIT AND ITS OFFICERS, EMPLOYEES, AFFILIATES, MEMBERS, PRINCIPALS, AND PARTNERS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING FROM A CLAIM MADE BY ANY SUCH THIRD PARTY THAT THE IMAGE USED BY YOU VIOLATES ANY APPLICABLE LAWS, RULES AND REGULATIONS, WHETHER OR NOT THE CLAIM IS BASED ON YOUR USER CONTENT OR ON PRODUCTS DISPLAYED IN THE IMAGE PROVIDED BY PLACEIT.
III. FEES AND PAYMENT FOR PURCHASED SERVICES.
A. Fees.
You shall pay all fees in the form of payment specified on the Website, without setoff, counterclaim deduction, or withholding. All pricing for the fee-based Services are set forth in PLACEIT’s then-current standard price list located at the URL https://placeit.net/#pricing (the “Pricing List”). The Pricing List is subject to change at any time and from time to time in PLACEIT’s sole and absolute discretion. For the purposes hereof, (i) fees are quoted and payable in United States dollars; (ii) fees are based on Services purchased and not on actual usage; (iii) payment obligations are non-cancelable and fees paid are non-refundable, except as provided herein; and (iv) the subscriptions purchased cannot be decreased during the relevant Subscription Term or Enterprise Term, as applicable. Refunds of fees may be given by PLACEIT, in its sole discretion, unless you can provide evidence to PLACEIT that an error occurred as a result of a malfunction of the PLACEIT Application, in which case PLACEIT will provide an equitable refund of the fees paid, as determined by PLACEIT.
B. Credit Card Payments.
All fees shall be paid with the credit/debit cards set forth on the Website under the terms and conditions in this Section and any other supplementary terms disclosed to and accepted by you during the payment process, including terms imposed by the applicable credit/debit card payment processor acting on PLACEIT’s or your behalf. All credit/debit card transactions will appear as “Empowerkit/Placeit” on your credit card statements. If you purchase Services through an online purchase process and pay by credit/debit card, Service fees shall be due and payable immediately and shall not require the issuance of a corresponding invoice. The processing of a credit/debit card payment shall require the collection of pertinent information including the credit/debit card number, expiration date, name and CVV2 code as it appears on the credit/debit card. Additional required information may include, but not be limited to, the credit/debit card billing address, a valid e-mail address and phone number of the purchaser, and a valid sales tax exemption number when applicable. Provisioning of the Services that are purchased by credit/debit card shall be subject to confirmation of payment receipt in full at the sole discretion of PLACEIT. By using a credit/debit card to pay for the Services, you confirm that the card being used is yours. All credit/debit card holders are subject to validation checks and authorization by the card issuer and PLACEIT is not obliged to inform you of the reason for any refusal. PLACEIT bears no responsibility for your card issuer or bank charging you as a result of PLACEIT’s processing of your credit/debit card payment in accordance with your instructions.
C. Security.
Your payment information is protected based on the Payment Card Industry data security standard (PCI DSS) by Braintree Payment Solutions, LLC or its affiliates. You can read more about their security infrastructure at https://www.braintreepayments.com/developers/security. In addition to Braintree, PLACEIT also uses Recurly to further secure your payment information. Recurly’s privacy policy can be found at http://recurly.com/legal.
D. Suspension of Service.
If any amount owed by you under this or any other agreement for Services that PLACEIT provides is overdue (or ten (10) or more days overdue in the case of amounts you have authorized PLACEIT to charge to your credit card), PLACEIT may, without limiting any other rights and remedies, (i) accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services that are being provided to you, including you and your Users’ access to the Services or use of any PLACEIT Application; and/or (ii) terminate this Agreement and any Services, in PLACEIT’s sole discretion.
E. Taxes.
The fees charged to you do not include any taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If PLACEIT 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 PLACEIT with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, PLACEIT is solely responsible for taxes assessed upon PLACEIT’s net income.
IV. Federal Government End User Provisions.
If you or any User is the US Federal Government, PLACEIT provides the Services, including related software and technology, in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in these Terms of Use. This customary license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with PLACEIT to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable agreements.
V. TERMINATION AND DEFAULTS.
A. Termination Without Cause.
You may terminate your use of the Services at any time for your convenience for any reason or no reason by emailing PLACEIT at hi@placeit.net using the registered email. If you exercise the foregoing right of termination for convenience, you expressly understand and agree that you will not be entitled to a refund of any fees paid or payable for the applicable Subscription Term or Enterprise Term, as applicable, which PLACEIT may retain or collect in full for the entirety of the purchased Subscription Term or Enterprise Term, as applicable. IF YOU CANCEL YOUR ACCOUNT, PLACEIT CANNOT RESTORE YOUR ACCOUNT OR ANY DOWNLOADED IMAGES OR CREDITS ASSOCIATED WITH YOUR ACCOUNT. TO ACCESS THE SERVICES AFTER SUCH CANCELLATION, YOU WILL BE REQUIRED TO OPEN A NEW ACCOUNT AND PURCHASE THE APPLICABLE SERVICES.
B. Termination for Cause.
A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material non-monetary breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In addition, PLACEIT may terminate your use of the Services immediately upon notice to you in the event (a) you fail to pay any amounts due hereunder when due, (b) PLACEIT determines, in its sole discretion, that the content provided by you or any User is unacceptable, offensive, immoral, illegal, misleading or untrue in any respect, or (c) you or a User is using the Services for any offensive, immoral or illegal purpose or is otherwise abusing its use of the Services, as PLACEIT may determine, in its sole discretion. An abuse of the Services shall include, without limitation, spamming by you or any User. PLACEIT may temporarily cease performance of its obligations during any cure period.
C. Effect of Termination.
Even after your use of the Services is terminated, this Agreement will remain in full force and effect, provided, however, that User Content submitted by you may no longer be accessible on the Website once your account has been cancelled. Notwithstanding the foregoing, you acknowledge that once User Content is integrated into a PLACEIT Application (e.g., photos, audio files or videos integrated within an animation, promotion, video or any PLACEIT production, regardless of media format), all of the licenses for such materials, as granted to PLACEIT under this Agreement, shall extend in perpetuity.
VI. PROPRIETARY RIGHTS.
A. Reservation of Rights.
Subject to the limited rights expressly granted hereunder, PLACEIT reserves all rights, title and interest in and to the Services, and the PLACEIT Applications, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein. Neither you nor any Users will delete or in any manner alter the copyright, trademark, and other proprietary notices of PLACEIT, if any, appearing on any PLACEIT Application or Additional Terms.
B. Suggestions.
You hereby grant PLACEIT a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the PLACEIT Applications and/or Services any suggestions, enhancement requests, recommendations or other feedback provided by you and your Users relating to the PLACEIT Applications or the Services. PLACEIT will accept any special requests you make, however, we reserve the exclusive right, in our sole discretion, to implement or reject such requests, determine the specific execution and implementation of such requests, and elect whether or not additional fees will be required to be paid by you and/or Users for such requests that result in additional Services. You acknowledge and agree that any PLACEIT Application or Services incorporating such suggestions, enhancement requests, recommendations or other feedback shall be the sole and exclusive property of PLACEIT and all such recommendations shall be free from any confidentiality restrictions that might otherwise be imposed upon PLACEIT under this Agreement or any Additional Terms.
C. Ownership.
Except for the limited rights expressly granted to PLACEIT under this Agreement with respect to the User Content, PLACEIT does not acquire any right, title and interest in and to any User Content. Subject to the exceptions set forth in Article X below, User Content is deemed your Confidential Information under these Terms of Use. Other than User Content and items owned by third-party vendors, PLACEIT shall own all rights, title and interest in and to all the PLACEIT Applications, the Website, the pre-set images thereon and related intellectual property rights. Subject to terms and conditions of these Terms of Use, PLACEIT hereby grants you a limited, non-exclusive, non-transferable (except in connection with an assignment permitted hereunder) and revocable license to use the images generated by you solely in connection with your authorized use of the Services, PLACEIT Applications or Third Party Applications. Notwithstanding any other provision of this Agreement: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques, expertise, software, hardware, networks, applications, specific grouping formats, behaviors, scripts, key-frame values, or any element or aspect of any of the foregoing and other features used to create, or which are incorporated in, the Services (“Tools”) to develop the images, and to the extent such Tools are delivered with or as part of the images, they are licensed, not assigned, to you, as provided in the Licenses.
D. Statistical Information.
Notwithstanding anything else in the Agreement or otherwise, you acknowledge and agree that PLACEIT may monitor your use of the Services and use data related to your use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services. You agree that PLACEIT may exploit such information and/or make such information publicly available, provided that such information does not incorporate any Confidential Information. PLACEIT retains all intellectual property rights in such information.
E. Take Down Notice and Procedure.
PLACEIT abides by the federal Digital Millennium Copyright Act (“DMCA”) by responding to notices of alleged copyright or other intellectual property infringement that comply with the DMCA and other applicable laws. As part of our response, and regardless of the merits of the alleged infringement, we may remove or disable access to material (including User Content) residing on a site that is controlled or operated by PLACEIT that is claimed to be infringing, in which case we will make a good-faith attempt to contact the person who submitted the affected material so that they may make a counter notification, also in accordance with the DMCA. PLACEIT does not control content hosted on Third Party Applications or other websites, and cannot remove content from sites it does not own or control. If you are the copyright owner of content hosted on a Third Party Application or other website, and you have not authorized the use of your content, please contact the administrator of that application or website directly to have the content removed. Before serving either a Notice of Infringing Material or Counter-Notification, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other applicable laws. The following notice requirements are intended to comply with PLACEIT’s rights and obligations under the DMCA and, in particular, Section 512(c), and do not constitute legal advice.
Notice of Infringing Material
To file a notice of infringing material on a site owned or controlled by PLACEIT, please provide a notification containing the following details: (i) reasonably sufficient details to enable us to identify the work claimed to be infringed or, if multiple works are claimed to be infringed, a representative list of such works (for example: title, author, any registration or tracking number, URL); (ii) reasonably sufficient detail to enable us to identify and locate the material that is claimed to be infringing (for example a link to the page that contains the material); (iii) your contact information so that we can contact you (for example, your address, telephone number, email address); (iv) a statement that you have a good faith belief that the use of the material identified in clause (ii) above is not authorized by the copyright owner, its agent, or the law; (v) a statement, under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed; and (vi) your physical or electronic signature. This notice should be sent to:
DMCA Agent: Navid Safabakhsh
2840 College Avenue, Suite 300
Berkeley, CA 94704
Email: hi@placeit.net
Counter Notification
If material that you have posted to a site controlled or operated by PLACEIT has been taken down, you may file a counter-notification that contains the following details: (i) 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; (ii) a statement, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material in question; (iii) your name, address and telephone number; (iv) a statement that you consent to the jurisdiction of the Federal District Court for judicial district in which your address is located or, if your address is outside of the USA, for any judicial district in which PLACEIT may be found and that you will accept service of process from the person who submitted a notice in compliance with Section (c)(1)(C) of the DMCA, as generally described above; and (v) your physical or electronic signature. This notice should be sent to:
DMCA Agent: Navid Safabakhsh
2840 College Avenue, Suite 300
Berkeley, CA 94704
Email: hi@placeit.net
Please note, however, that this is no substitute for legal advice and you should obtain legal advice to better understand your rights and obligations under the DMCA and applicable laws.
VII. INDEMNIFICATION.
You shall defend and hold PLACEIT, and its officers, employees, agents and affiliates harmless against any claim, demand, suit, or proceeding (“Claim”) made or brought against any such parties by a third party (including any User): (i) alleging that User Content or your use of the Services infringes or misappropriates the intellectual property rights of a third party or violates applicable law, (ii) arising from or related to your use of the Services, (iii) arising from or related to any interruption or failure of the Services for any reason, (iv) resulting from a dispute between you and a third party; (v) arising from your use of the PLACEIT Applications or Services in combination with any software, hardware, network or system not supplied by PLACEIT where the alleged infringement relates to such combination, (vi) arising from any modification or alteration of the Services or PLACEIT Application (other than by PLACEIT), (vii) arising from your continuance of the allegedly infringing activity after being informed of modifications that would have avoided the alleged infringement, or (viii) relating to your violation of applicable law or the rights of third parties, and you shall indemnify all such parties for any damages awarded against, and for reasonable attorney’s fees incurred by, them in connection with any such Claim. You hereby acknowledge and agree that PLACEIT shall have no liability whatsoever to any User (by way of indemnification or otherwise) by reason of such User’s use of the Services, the PLACEIT Applications, or any interruption or failure of the same. You shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party.
VIII. WARRANTIES AND DISCLAIMERS.
A. Mutual Warranties.
Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party)
B. Disclaimers.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, PLACEIT MAKES NOWARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND PLACEIT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY AND NONINFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE shall not be liable to YOU OR TO ANY USER nor shall this AGREEMENT be affected in the event that any serviceS ARE interrupted, changed or become unavailable for any reason. No such interruption, change, OR unavailability shall entitle YOU to any abatement OF FEES PAYABLE HEREUNDER, or relieve YOU from any of YOUR obligations under this AGREEMENT, UNLESS SUCH INTERRUPTION IS CAUSED BY PLACEIT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN FURTHERANCE OF THE FOREGOING, EXCEPT AS EXPRESSLY SET FORTH HEREIN, PLACEIT DOES NOT WARRANT THAT THE PLACEIT APPLICATION OR SERVICES WILL MEET YOUR OR YOUR USERS SPECIFIC NEEDS, ACHIEVE A PARTICULAR MARKETING OR OTHER BUSINESS RESULT, THAT IS ERROR FREE, THAT YOU OR YOUR USERS OR CONSUMERS WILL BE ABLE TO ACCESS OR USE THE PLACEIT APPLICATION WITHOUT PROBLEMS OR INTERRUPTIONS, OR THAT THE WEBSITE AND PLACEIT APPLICATIONS ARE NOT SUSCEPTIBLE TO INTRUSION, ATTACK OR COMPUTER VIRUS INFECTION.
THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICES, IS PROVIDED “AS IS” WITHOUT ANY REPRESENTATION OR WARRANTIES OF ANY KIND WHATSOEVER. IT IS YOUR RESPONSIBLILITY TO READ ALL LICENSES AND ADDITIONAL TERMS AND UNDERSTAND THE LIMITATIONS OF THE SERVICES BEING OFFERED TO YOU, IF ANY. THESE LICENSES AND ADDITIONAL TERMS WILL ALSO HELP YOU UNDERSTAND THE HOW THE FEE-BASED SERVICES CAN HELP YOU PRIOR TO YOUR PURCHASE OF SUCH SERVICES.
PLACEIT OFFERS FREE PREVIEWS OF ALL IMAGES AND OTHER DIGITAL PRODUCTS. YOU ARE SOLELY RESPONSIBLE TO REVIEW SUCH PREVIEWED IMAGES BEFORE ANY PURCHASE TO ENSURE THAT THE IMAGE IS SATISFACTORY TO YOU. YOU HEREBY RELEASE PLACEIT FROM ANY LIABILITY ASSOCIATED WITH THE IMAGE, INCLUDING THE SIZE OR QUALITY THEREOF.
IX. LIMITATION OF LIABILITY.
A. Limitation of Liability.
IN NO EVENT SHALL PLACEIT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS HEREUNDER.
B. Exclusion of Consequential and Related Damages.
YOU UNDERSTAND AND AGREE THAT PLACEIT AND ITS OFFICERS, DIRECTORS EMPLOYEES, AGENTS, AND AFFILIATES SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, LOST DATA OR OTHER INTANGIBLE LOSSES, EVEN IF PLACEIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM THE USE OF THE WEBSITE, THE PLACEIT APPLICATIONS OR ANY SERVICES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY ACTS OF GOD OR OTHER EVENTS OUTSIDE YOUR CONTROL OR PLACEIT’S CONTROL, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
X. CONFIDENTIALITY.
A. Definition of Confidential Information.
As used herein, “Confidential Information” means all confidential information disclosed by a party (a “Disclosing Party”) to the other party (a “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include, without limitation, the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, business processes disclosed by such party, pre-sales discussions occurring in which you or your affiliate explore the possibility of purchasing Services pursuant to these Terms of Use, research, software (including but not limited to, the PLACEIT Applications, flow of screens, and Additional Terms), trade secrets, designs, drawings, flow charts, data, computer programs, budget figures, and other financial and business information, or any such information of clients, parents, affiliates, subsidiaries or agents of a party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party (including, by way of example but not limitation, User Content that you, your Users post on any publicly-available portions of the Website, or a Third Party Application or other website), (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party (except for patentable subject matter, which shall not be subject to this exception).
B. Protection of Confidential Information.
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
C. Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil or criminal proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
D. Remedies.
The parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages (unless required by law). The foregoing notwithstanding, you irrevocably waive any right to enjoin or restrain the operation of the Services as a whole, or PLACEIT’s or its customers’ use of any content or other material used or displayed through the Services other than your Confidential Information.
XI. MISCELLANEOUS.
A. Survival.
Sections V through XI shall survive the expiration or termination of these Terms of Use.
B. Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
C. No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement; it being acknowledged that no Users shall have the right to enforce any terms, covenants or conditions hereunder or otherwise make any claims against PLACEIT relating to the Services and the use thereof.
D. Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. No waiver of any breach of these Terms of Use, shall be effective unless in writing and signed by both parties. No waiver of any breach of these Terms of Use, and no course of dealing between the parties, shall be construed as a waiver of any subsequent breach of these Terms of Use. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
E. Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
F. Attorney Fees.
You shall pay on demand all of PLACEIT’s reasonable attorney fees and other costs incurred by PLACEIT to collect any fees or charges due to PLACEIT under this Agreement which are not paid when due.
G. Assignment.
Either party may assign these Terms of Use in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, these Terms of Use shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. In the event of any assignment by PLACEIT, PLACEIT reserves the right to transfer all User Content (including your personal information and account passwords) to such assignee. PLACEIT will use reasonable efforts to notify you of such transfer via email or by a message on the Website.
H. Entire Agreement.
This Agreement (including all Licenses, Additional Terms, and URLs incorporated herein), constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as expressly set forth herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any License, the terms of such exhibit, addendum or License shall prevail.
I. Governing Law and Venue.
These Terms of Use shall be governed by and construed under the laws of the United States and the State of California excluding its conflict of law rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms of Use. The state and federal courts located in California, will have exclusive jurisdiction to adjudicate any dispute relating to these Terms of Use. Each party hereby irrevocably consents to the exclusive jurisdiction of such courts.
J. Export.
You agree, in connection with your use of the PLACEIT Applications and any Services, to comply with all applicable export and re-export control laws and regulations.
K. Force Majeure.
Neither party shall be liable under these Terms of Use for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control; provided, however, in no event shall any of the foregoing delay or excuse the payment of any fees or charges due hereunder.
L. Publicity.
PLACEIT may reference your name and the nature of the Services provided hereunder in PLACEIT business development and marketing efforts, including without limitation its Website. Further, you hereby grant PLACEIT a limited, royalty-free, revocable, worldwide license to post a sample of any of your publicly-available images developed by use of the PLACEIT Applications on the Website for demonstration and other marketing purposes. You can opt-out of PLACEIT using your name or your client’s name for marketing purposes by sending a written notice to hi@placeit.net.
M. Notices and Contact Information.
You agree to provide accurate, current and complete information as necessary for PLACEIT to communicate with you from time to time regarding the Services, issue invoices, accept payment, or other account-related purposes. Therefore, you agree to keep any online account information current and inform us of any other changes in your legal business name, address, email address and phone number. You agree to accept emails from PLACEIT at the e-mail address specified by your Users for login purposes. PLACEIT may provide any and all notices, statements, and other communications to you through either e-mail, posting on the Services (or other electronic transmission) or by mail or express delivery service. In addition, you agree that PLACEIT may rely and act on all information and instructions provided to PLACEIT by Users from the above-specified e-mail address.
You acknowledge and agree that PLACEIT may, from time to time, email you with updates to the Services and products and call you to receive feedback about your use of the Services.
Except for email notifications as permitted hereunder, all other notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile, (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the parties accepting these Terms of Use, or to such other address or individual as the parties may specify from time to time by written notice to the other party. All communications and notices to be made or given pursuant to these Terms of Use shall be in the English language.
N. Waiver of Jury Trial.
Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
