Copyright © Wild West Software, 2003
Agreement
1. Who We Are. "PictureWiz" is a trade name and service mark of Wild West, Inc., a Georgia corporation that owns and operates the website with the URL: www.picturewiz.biz. 2. Definitions. The terms "we" and "us" refer to Wild West, Inc. The terms "you" and "user" refer to all individuals and/or entities accessing this website for any reason. 3. Modifications. We reserve the right to modify these Terms of Use and any policies affecting the website. Any modification is effective as of the earlier of: (a) The posting of the changes or new Terms of Use on this website; or (b) The distribution via electronic mail of the changes or new Terms of Use. Your continued use of the website more than 30 days following the effective date of any modification to these Terms of Use shall be conclusively deemed an acceptance of all such modification(s). 4. Purpose. The purpose of our site is to enable individuals to easily upload images, add text in any color or font and add music to create virtual photo albums and other presentations that can be easily shared with others. (d) We reserve the right to remove any presentation created using PictureWiz at any time. 5. Limitations On Users. Users of PictureWiz are limited to 1,000 visits per month per password. If you believe you may exceed these numbers, you should notify us so that we can work out suitable arrangements in advance. Otherwise, if your limit is exceeded, we reserve the right to remove and/or restrict access to your presentations. 6. Pricing. Use of PictureWiz is without charge. 7. Proprietary Rights. You acknowledge that you are aware that we have applied for a patent with respect to certain aspects of PictureWiz. You further acknowledge that we own the copyrights in PictureWiz and in our website and agree that you will not copy or modify the underlying code without our prior express written permission. 8. Copyrights. You represent and warrant to us that you have not and will not publish any presentation that infringes the copyrights of any person. You will further not permit that to be done with your password. You further represent and warrant to us and authorize us to use any presentation you build as a sample on any of our galleries and, to the extent provided for in this Agreement, to add advertising to any such presentation. You further represent and warrant to us that the addition of advertising to any of your presentations (or to presentations added under your password) will not violate the copyrights of any person. 9. Privacy and Publicity Rights. You represent and warrant to us that none of your presentations will violate the privacy and/or publicity rights of any person and that no such violations will occur by anyone using your password. You further authorize us to use any presentation you build as a sample on any of our galleries and, to the extent provided for in this Agreement, to add advertising to such presentations. You represent and warrant to us that the addition of advertising to any of your presentations (or to presentations added under your password) will not violate the privacy and publicity rights of any person. 10. Termination or Removal Without Cause. We may terminate or suspend your use of our website and/or remove, temporarily or permanently, any presentation you publish at any time without cause without any liability to you except as provided in this section. 11. Termination or Removal With Cause. If you violate any of these Terms of Use, we may terminate or suspend your right to use our website and/or remove any or all of your presentations at any time without prior notice. 12. Rules. You agree to the following: (a) You will not reprint, republish or distribute in any way any information or materials found on our website. (b) You will not use any of the information on our website or on any of the presentations for sending emails or for solicitation purposes or for any other purposes involving solicitation in any way. (c) You will not provide to us or post on our website any information that is not correct, such as an incorrect name, address, email address or any other incorrect information. (d) You will not publish any album that contains sexually related text, photographs or other content, or content that is defamatory, obscene, indecent, threatening, abusive or hateful. (e) In the future, we will not allow you to use PictureWiz for a commercial or professional presentation such as for advertising, to sell merchandise, for professional presentations, to sell real estate or for any other similar purpose. In the future, if you want to use PictureWiz for any of those purposes, you will be required to pay for the presentation separately. In the meantime, we are not restricting the use of PictureWiz in this manner and are not charging for these types of uses. (f) You will not share a password for PictureWiz with any other individual except that members of the same household may share a password for PictureWiz. Otherwise, each individual user of PictureWiz will obtain and pay for his or her own username & password. (g) You will not attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way used on our website. (h) You will not post any materials on our site or include any materials in any presentation in violation of any other party's rights, including, but not limited to, copyrights or privacy and publicity rights. 13. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE MATERIAL ON THIS WEBSITE (INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, SERVICES, MATERIALS AND INFORMATION MADE AVAILABLE HEREIN OR ACCESSED BY MEANS HEREOF) ARE PROVIDED AS IS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 14. Limitation of Liability. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THIS SITE AND ANY INFORMATION ON THIS SITE. UNDER NO CIRCUMSTANCES SHALL WE OR ANY OF OUR EMPLOYEES OR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF WE OR ANY OF OUR EMPLOYEES OR REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR TOTAL LIABILITY IN ANY EVENT IS LIMITED TO THE AMOUNT, IF ANY, ACTUALLY PAID FOR USE OF THE SITE AND YOU HEREBY RELEASE US AND OUR EMPLOYEES AND REPRESENTATIVES FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. 15. Responsibility for Use of Password. You are responsible for all use of your passwords. Each individual must have their own password except that members of the same household may share a password. 16. Links. You acknowledge that we have not reviewed the content of all sites linked to or from our website and that we are not responsible for the content of any of those sites and do not take responsibility for them or endorse them. 17. Indemnity. You agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses (including, but not limited to, attorney fees) resulting from any claims that you assert, or may assert, based on or relating to your use, or the use of any individual using your password, of this website. You further agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses resulting from claims of third parties, including, but not limited to, attorney fees, that result in whole or in part from violations by you, or any individual using your password, of any of the terms of this Agreement. 18. Reporting Violations. If you become aware that any other person is violating any of the terms and conditions of this website, please notify us immediately. If you believe that any person has posted material in violation of any copyrights that you may have, you may notify us in accordance with our Copyright Policy. If you believe that any user of this website has posted materials in violation of any other rights that you may have, you may notify us in accordance with our Removal Policy. 19. Assignments. You may not assign any of your rights hereunder. 20. Compliance With Law. In using the PictureWiz Builder and Player you agree you will comply with all applicable laws. 21. Jurisdiction and Law. This Agreement will be governed by the laws of the State of Georgia. Each of the parties does hereby agree that any dispute will be decided by the state and Federal courts located in Atlanta, Fulton County, Georgia and agrees that that party is subject to jurisdiction of such courts in such locality. 22. PictureWiz Link. You agree not to remove or block any copyright notices, ads or references or links to PictureWiz or elsewhere that we place on or near your presentation. 23. Force Majeure. We shall be not held liable for any delay or failure in performance of any part of this Agreement from any cause beyond our control and without our fault or negligence, such as acts of God, acts of civil or military authority, current laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers or acts, omissions, overloading or slow downs over the Internet or any third party Internet service providers. 24. Survivability. The ownership and proprietary rights provisions set forth in this Agreement, and any other provisions that by their sense and context the parties intend to have survive, shall survive the termination of this Agreement and any obligations hereunder for any reason. 25. Severability. The unenforceability or invalidity of any term, provision, section or subsection of this Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Agreement, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto. 26. Interpretation. The fact of authorship by or at the behest of a party shall not affect the construction or interpretation of this Agreement. 27. Amendments. No amendment or other change of this Agreement shall be effective unless and until set forth in writing and agreed to on behalf of each of the parties except as otherwise provided in "3" above. 28. Entire Agreement. This Agreement embodies the entire agreement and understanding of the parties and supersedes all prior agreements, representations and understandings between the parties hereto relating to the subject matter hereof. This Agreement embodies the entire agreement and understanding of the parties and supersedes all prior agreements, representations and understandings between the parties hereto relating to the subject matter hereof.
