Terms of Service

Last modified: November 24th, 2015

The following terms and conditions, which include and hereby incorporate the privacy policy at http://www.visbit.co/privacy.html (the “Privacy Policy”), and any documents that are expressly incorporated by reference (collectively, these “Terms of Service”) are a binding legal agreement between you and Visbit Inc., a Delaware corporation (“Visbit”, the “Company”, “we”, “us” or “our”) that govern your access to and use of (i) the website located at http://www.visbit.co (the “Site”), including any services, features and content accessible or downloadable from the Site, (ii) the mobile applications named PIXBRITE and PIXSI, respectively, including any services, features, and content available on or through such mobile applications (the “Application”) (collectively, the “Services”).

By creating a user account and/or accessing or otherwise using the Services, you (“you” or the “User”) represent and warrant that you have read, understand and agree to be bound by these terms of service (“Terms of Service” or “Agreement”). These terms contained in this Agreement constitute a binding agreement, governing the use of the Services, between the User and the Company, including its subsidiary and affiliated companies (individually or collectively). We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Service at any time without further notice. By accessing or otherwise using the Services, you acknowledge and agree to be bound by these terms. Should you not acknowledge and agree to these terms, you must immediately discontinue using the Services and uninstall the Application, if applicable.  Continued use of the Services signifies your continued acceptance of these Terms of Service and any changes to them.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. PLEASE NOTE THAT BY AGREEING TO THE TERMS AND CONDITIONS PROVIDED FOR HEREIN YOU MAY BE TRANSFERRING VALUABLE INTELLECTUAL PROPERTY RIGHTS TO VISBIT FOR ITS COMMERCIAL USE.

Age Restriction

Only individuals thirteen (13) years of age or older may use the Services.  Users between the ages of thirteen (13) and eighteen (18) must review this Agreement with a parent or legal guardian to ensure that the parent or legal guardian acknowledges and agrees to these terms and conditions.  Should User’s parent or legal guardian not acknowledge and agree to any of these terms or conditions, User must immediately discontinue using the Services..

Description of the Services

The Site and the Application provide state-of-the-art photograph management solutions which enable and assist you to sort or organize photographs, videos, texts, and other media items stored on your computers, tablets, mobile devices or third-party social media platforms, and transform them into, customize, or otherwise create (collectively, “create”) your own multimedia presentations, including without limitations, photograph collages and flashbacks. Such multimedia presentations, together with the underlying media items you upload, submit, store, or otherwise exploit for the purposes of creating the multimedia presentations on or through the Services, constitute “User Content” under this Agreement.
Except as may be expressly specified otherwise by Visbit with respect to paid portions of the Service, Visbit reserves the right to add, change, suspend or discontinue the Service, or any aspect or feature of the Service, without notice or liability.

Right to Access and Use the Services

Subject to your compliance with this Agreement, Visbit grants you a limited, revocable, non-exclusive, non-assignable, and non-sublicensable right to access and use the Services in accordance with this Agreement and all applicable laws. This license is for your personal and noncommercial use only. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, reverse engineer, transfer or sell for any commercial purposes any portion of the Services, including software contained in the Services and access to the Service, except for limited reverse engineering activities that may be, and only to the extent, permitted by applicable law.
Unless otherwise expressly provided in this Agreement, no other rights or licenses are conferred to you in connection with your use of the Services.  Visbit reserves the right to modify the license and restrictions set forth in this section and elsewhere in these Terms of Service, including without limitation: by charging fees for such license.

User Content

Subject to the terms and conditions of this Agreement, Users may retain any and all applicable copyright and other intellectual property rights with respect to any User Content that the User creates using the Services, to the extent such User has such rights under applicable law. Visbit makes no claim of ownership to your User Content, and obtains no rights to your User Content other than as provided for herein.

Notwithstanding the foregoing, Visbit is not responsible or liable in any manner for any User Content created on or through the Services or in connection with the Services. Although we provide rules for user conduct, we do not control and are not responsible for what users create on or through the Services or transmit or publish on any third-party websites, applications or services. You are fully responsible for all User Content you contribute, in any manner, to the Services, and for the accuracy of the same, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it, and that Visbit does not need to obtain any licenses, rights, consents, or permissions from, or make any payments to, any third party for any use or exploitation of your User Content in any and all media, whether now known or hereafter created, or have any liability to you or any third party as a result of any use of your User Content as authorized in these Terms of Service.

Visbit generally does not regulate the content or form of the User Content. As a result, Visbit has limited control over the quality, safety, morality, legality, truthfulness or accuracy of User Content created by Users. Visbit is not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable User Content created on the Services or in connection with any User Content. You are entirely responsible for the content of, and any consequences from, the User Content, regardless of the format of the User Content. Nonetheless, Visbit reserves the right to monitor and/or limit any User Content and has the sole discretion to remove or disable the User Content temporarily or permanently.

Notwithstanding the foregoing, your use of any third-party sites, applications, or services in connection with the publication of the User Content may be subject to the third-party provider’s terms and conditions and privacy policy and may involve the disclosure or transfer of information from or about you to the third-party provider. Visbit does not control such third party sites, applications, or services, nor does Visbit endorse any content, advertising, products, services or other materials on or available from such third-party sites, applications, and services. You will need to make your own independent judgment regarding your use of and interaction with any third-party sites, applications and services. You acknowledge and agree that Visbit is not responsible for the availability of any third-party sites, applications or services and that Visbit shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with you use of or interaction with any third-party sites, applications, or services.

User Conduct; Prohibited Conduct

In consideration of your use of the Services and the license granted to you, you are required to register with the Site or Application by using your e-mail address or a pre-existing account in connection with any social media services provided by third parties, and you agree to:


(a) provide accurate, current and complete registration information about yourself to set up your account on the Services;
(b) be fully responsible for maintaining the confidentiality of your account information, including without limitations: your applicable e-mail address or social media account information, and your password;
(c) maintain and promptly update the registration information and any other information you provide to Company, and keep it accurate, current and complete;
(d) be fully responsible for all use of your account and for any actions that take place using your account;
immediately notify Visbit of any unauthorized use of your account or password, or any other breach of security; and
(e) refrain from assigning, delegating or transferring your account, or your rights and obligations under this Agreement in any way, or sharing your account with anyone, without Visbit’s prior written consent.

All information you provide to register with, access or otherwise use the Services, including but not limited to: through the use of any services, features and content available on or through the Services, is governed by our Privacy Policy.

You further represent and warrant that you will, in connection with the creation and publication of the User Content:

(a) not use the Services to harass, threaten, impersonate, or intimidate anyone;
(b) not use, transmit, or otherwise make available any content, or create any User Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
(c) not use, transmit, or otherwise make available any content, or create any User Content that violates the copyright, trademark, publicity, privacy, or other rights of third parties. You must comply with all intellectual property and other laws applicable to your use of the Services;
(d) not jeopardize the security of your account, including without limitation, transmitting any worms or viruses or any code of a destructive nature;
(e) not use the Services for any illegal or unauthorized purpose. If you are an international user, you agree to comply with all local laws regarding online conduct and acceptable content;
(f) not use the Services, or any content produced on or through the Services, to falsely suggest an affiliation, sponsorship, or endorsement on the part of Visbit for the topic and/or creator of the content;
(g) not create or use any content that is pornographic, contains threats or incites violence, or violates the privacy or publicity rights of any third party;
(h) fully comply with the rights and licenses of third parties relating to the User Content, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party; and
(i) not violate any laws applicable to your use of the Services (including but not limited to intellectual property laws).

Without limiting any of foregoing representations or warranties, Visbit has the right (but not the obligation) to, in Visbit’s sole discretion, or upon receiving complaints from other users of the Services, with or without notice:

(a) remove or disable any User Content that, in Visbit’ reasonable opinion, violates any Visbit policy, including but without limitations: the Privacy Policy and this Agreement, or is in any way harmful or objectionable, and
(b) terminate or deny access to and use of the Services to any individual or entity for any reason, in Visbit’s sole discretion. Visbit will have no obligation to provide a refund of any amounts previously paid.

License to Visbit

Disclaimer of Warranties

You understand and agree that by creating any User Content, you automatically grant (and you represent and warrant that you have the right to grant) to the Company:

(a) a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive, and sublicensable right and license to use, host, store, reproduce, modify, create derivative works, communicate, distribute, transmit and otherwise exploit the User Content for the purposes of providing you, and those with whom you have shared your User Content, with the Services, and in connection with promotion and marketing of Visbit products and services. This license ends when your User Content is deleted or your account is closed (either by you or by us), except to the extent that your User Content has been shared with others and they have not deleted it. Except as prohibited by law, you waive any rights of attribution and/or any so-called moral rights you may have in User Content, regardless whether such User Content is altered or changed in a manner not agreeable to you;
(b) the perpetual and irrevocable right to delete any or all of your User Content from the Site, the Application, and the servers owned and used by the Company, for any reason or no reason, whether intentional or unintentional, and, without any liability of any kind to you or any other party; and(c) a royalty-free, fully paid-up, perpetual, irrevocable, non-exclusive right and license to copy, analyze and use any of your User Content as the Company may deem necessary or desirable for purposes of debugging, testing and/or providing support services in connection with the Services.

You agree that even though you may retain certain copyright or other intellectual property rights with respect to User Content created using the Services, you do not own any intellectual property rights in the Services. You do not own the account you use to access the Services, nor do you own any data stored by or on behalf of the Company (including without limitation: any data representing or embodying any or all of your User Content). Your intellectual property rights in any User Content, if any, do not confer any rights to use any branding or logos used in our Services.

You further agree that you are obligated to review and comply with any license terms and restrictions applicable to any third party content used in your User Content.

You further understand and agree that: 

(a) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your User Content hereunder;
(b) you are solely responsible for, and the Company will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using the Services, including without limitation any legal consequences relating to your or any other person’s intellectual property rights or proprietary information; and 
(c) Visbit’s acknowledgement hereunder of your intellectual property rights in your User Content does not constitute a legal opinion or legal advice, but is intended solely as an expression of the Company’s intention not to require users of the Services to forego certain intellectual property rights with respect to User Content they created on the Services, subject to the terms of this Agreement.  

VISBIT PROVIDES THE SERVICES, YOUR ACCOUNT AND ALL RELATED SERVICES STRICTLY ON AN “AS IS” BASIS, PROVIDED AND ACCEPTED AT YOUR OWN RISK, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Neither Visbit nor its suppliers and licensors makes any warranty that the Services will be error free or that access thereto will be continuous or uninterrupted. Visbit reserves the right to interrupt the Services with or without prior notice for any reason or no reason. You agree that Visbit will not be liable for any interruption of the Services, delay or failure to perform. Visbit has the right at any time for any reason or no reason to change and/or eliminate any aspect(s) of the Services as it sees fit in its sole discretion. You understand that you access and use the Services and create your User Content at your own discretion and risk.

Limitation of Liability

IN NO EVENT SHALL VISBIT OR ANY OF ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, OFFICERS, SUBSIDIARIES, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICES (INCLUDING WITHOUT LIMITATION ITS MODIFICATION OR TERMINATION), YOUR ACCOUNT (INCLUDING WITHOUT LIMITATION ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT THE COMPANY MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF VISBIT, AND ITS SUPPLIERS AND DISTRIBUTORS, FOR ANY CLAIM UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO USE THE SERVICES (OR, IF WE CHOOSE, TO SUPPLYING YOU THE SERVICES AGAIN).

YOU SPECIFICALLY ACKNOWLEDGE THAT VISBIT AND ITS AFFILIATES SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

The foregoing shall not apply to the extent prohibited by applicable law.

Indemnification

You hereby agree to defend, indemnify and hold harmless Visbit, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, distributors, successors and assigns and other users of the Services, from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from any breach of these Terms of Service by you, or from your use of the Services.

Copyright Infringement Complaints

We respect the intellectual property rights of others and we prohibit users from uploading, using or otherwise transmitting on the Services or via the Services in connection with the User Content any materials that violate another party's intellectual property rights or that constitutes another person’s proprietary information. Any infringing User Content can be identified and removed pursuant to Visbit’s Digital Millennium Copyright Act (the “DMCA”) compliance process, provided herein, and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.

If you believe that any User Content infringes a copyright, please send a notice of copyright infringement containing the following information to info@visbit.co.

(a)Identification of copyrighted material allegedly being infringed, including an attached file containing the copyrighted material;
(b) Identification of the User Content claimed to be infringing;
(c) Your contact information, including address, telephone number and e-mail address, and if you are not the owner of the copyright that has been allegedly infringed, an explanation of your relationship to the copyright owner;
(d) A statement that you have a good faith belief that the allegedly infringing User Content is not authorized by the copyright owner, its agent, or the law, and that under penalty of perjury, the information provided is accurate, and you are authorized to make the complaint on behalf of the copyright owner; and
(e) Your signature.

Visbit will, upon receiving your notice of copyright infringement, if that notice complies with the foregoing requirements, take one or more of the following actions: 

(a) reasonably determine that the allegedly infringing User Content is not infringing, and allow the User Content to remain; 
(b) contact the person who created allegedly infringing User Content concerning your notice of infringement, and/or 
(c) remove the allegedly infringing User Content. 

By your use of the Services, you expressly agree to and accept the foregoing DMCA compliance process, acknowledge its compliance with US Copyright law, and waive any and all claims against Visbit directly relating to, or arising from, the foregoing DMCA compliance process.

Repeat Infringer Policy

In accordance with the DMCA and other applicable law, Visbit has adopted a policy of terminating, in appropriate circumstances and at Visbit’s sole discretion, users who are deemed to be repeat infringers. Visbit may also at its sole discretion limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights or who disclose proprietary information of others, whether or not there is any repeat infringement or disclosure. Any amounts that may otherwise be or may become due from the Company to any user, who has created User Content that infringes any intellectual property rights or discloses proprietary information of any other person is subject to forfeiture, at the sole discretion of the Company.

Time Limitation on Claims

You agree that any claim you may have arising out of or related to your relationship with Visibit must be filed within one (1) year after such claim arose; otherwise, your claim is permanently barred.

Termination

Terms of Service will remain effective until terminated by either party. Notwithstanding any such termination, the following sections of this Terms of Service will survive any termination of this Terms of Service, your account or the Services: User Content, Disclaimer of Warranties, Limitations of Liability, Indemnification, Termination, Dispute Resolution; Governing Law; Venue and Jurisdiction, and General Provisions.

You may terminate these Terms of Service at any time and for any reason by (a) sending an e-mail to support@visbit.co notifying Visbit of your termination, (b) deleting or otherwise destroying all Service-related materials; and (c) ceasing use of the Services.

Visbit may terminate these Terms of Service, your account and your access to the Services (or, at Visbit’s sole option, applicable portions of the Services) at any time and for any reason. Visbit may, but is not required to provide you with any notice or warning prior to any such termination under this section. In addition, Visbit may notify authorities or take any actions it deems appropriate (including without limitations: suspending your account and your access to the Services), without notice to you if Visbit suspects or determines that you may have (i) failed to comply with any provision of this Terms of Service or any policies or rules established by Visbit; or (ii) engaged in actions relating to or in the course of using the Service that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, Visbit, any third parties or the Services itself.

You may, as a result of termination, lose your account and all information and data associated therewith, including without limitations: your account information, and/or User Content as applicable. You acknowledge and agree that upon any termination permitted under these Terms of Service for any reason, whether by you or Visbit, you will not be entitled to, and Visbit will not be liable to you or any third party for any refund, reimbursement or other liability. If Visbit terminates your account, you may not participate in the Services or any other Visbit services without Visbit’s express written permission. To request permission for post-termination participation in the Services, email info@visbit.co. Visbit reserves the right to refuse to keep accounts for, and provide Services to, any individual. You shall not allow individuals whose accounts have been terminated by Visbit to use your account and/or access or use the Services.

Dispute Resolution; Governing Law; Venue and Jurisdiction

By visiting or using the Services, you agree that these Terms of Service and any dispute of any sort that might arise between you and the Company or any of our affiliates are governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. With respect to any disputes or claims not subject to arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts of the State of California located in Santa Clara County, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of the State of California located in Santa Clara County.

YOU AND THE COMPANY AGREE THAT, EXCEPT AS MAY OTHERWISE BE PROVIDED IN REGARD TO SPECIFIC SERVICES ON THE SERVICES IN ANY SPECIFIC TERMS APPLICABLE TO THOSE SERVICES, THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT AND/OR THE SERVICES (INCLUDING YOUR VISIT TO OR USE OF THE SERVICES) SHALL BE FINAL AND BINDING ARBITRATION, except that:

(a) either you or the Company may seek injunctive relief in state or federal court located in Santa Clara County, California concerning infringement, misappropriation or other violation by either of us of the other party's intellectual property rights, and

(b) Visbit may seek injunctive relief in state or federal court located in Santa Clara County, California concerning violation by a user of any of the user conduct rules set forth above, and in both such cases (a) and (b), the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought.

Arbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA's Supplementary Procedures for Consumer Related Disputes (the "AAA Consumer Rules") (collectively the "AAA Rules"). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.

General Provisions

The Site and the Application are controlled and operated by Visbit from its offices within the United States of America. The Company makes no representation that any aspect of the Services is appropriate or available for use in jurisdictions outside of the United States. Those who choose to access or use the Services from other locations are responsible for compliance with applicable local laws. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Services and its use.

The Company’s failure to act with respect to a breach by you or others does not waive Visbit’s right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Visbit under this Agreement shall be deemed effective unless delivered in a writing signed by a duly appointed officer of the Company. All or any of Visbit’s rights and obligations under this Agreement may be assigned to a subsequent owner or operator of the Services in a merger, acquisition or sale of all or substantially all of the Company’s assets. You may not assign or transfer this Agreement or any or all of your rights or obligations hereunder without the prior written consent of the Company, and any attempt to do so is void. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of Visbit shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Visbit.

This Agreement sets forth the entire understanding and agreement between you and Visbit with respect to the subject matter hereof. The section headings used herein, including descriptive headings, are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.

Visbit may give notice to you by means of a general notice on our Services, by electronic mail to your e-mail address in our records for your Account, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record for your account. All notices given by you or required under this Agreement shall be mailed to us at 440 N Wolfe Rd., Sunnyvale, CA 94085 unless otherwise provided in this Agreement.

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