TERMS AND CONDITIONS
BY USING THE WEBSITE OR SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW. Any individual using the Website or Services on behalf of a company further represents and warrants that they are authorized to act and enter into contracts on behalf of that company. This Agreement is void where prohibited.
Subject to Your compliance with the terms and conditions of this Agreement, PicMyCase grants You a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to use the Website and Services. The Website, or any portion of the Website, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, or otherwise exploited for any commercial purpose without the express written consent of PicMyCase. Except as expressly set forth herein, this Agreement grants You no rights in or to the intellectual property of PicMyCase or any other party. The license granted in this section is conditioned on Your compliance with the terms and conditions of this Agreement. Your rights under this section will immediately terminate in the event that You breach, actually or potentially in the sole judgment of PicMyCase, any provision of this Agreement.
6. NO RELIANCE ON THIRD-PARTY CONTENT
Opinions, advice, statements, or other information made available by means of the Website and Services by third-parties, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. PicMyCase does not: (i) guarantee the accuracy, completeness, or usefulness of any third-party information on the Website; or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice or statement made by a third-party by means of the Website and Services. Under no circumstances will PicMyCase be responsible for any loss or damage resulting from your reliance on information or other content posted on the Website or transmitted to or by any third-party.
7. ASSUMPTION OF RISK; RELEASE
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE WEBSITE AND SERVICES. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES, AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND, AND INDEMNIFY PICMYCASE AND ITS STOCKHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, CONSULTANTS, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “PICMYCASE PARTIES”) FROM ANY AND ALL CLAIMS, ACTIONS, OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF PRIVACY, OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, THAT MAY RESULT FROM YOUR USE OF THE WEBSITE AND SERVICES.
8. USER INFORMATION; PASSWORD PROTECTION
You may also be asked to provide a user name and password in connection with Your use of certain of the Services. You are entirely responsible for maintaining the confidentiality of Your password. You may not use the account, user name, or password of any other user at any time. You agree to notify PicMyCase immediately of any unauthorized use of Your account, user name, or password. PicMyCase shall not be liable for any loss that You incur as a result of someone else using Your password, either with or without Your knowledge. You may be held liable for any losses incurred by PicMyCase, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of Your account or password.
9. YOUR INTERACTIONS WITH OTHER MEMBERS
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER PICMYCASE USERS. YOU ACKNOWLEDGE AND UNDERSTAND THAT PICMYCASE HAS NOT, AND DOES NOT, IN ANY WAY: (A) SCREEN ITS MEMBERS; (B) INQUIRE INTO THE BACKGROUNDS OF ITS MEMBERS; OR (C) REVIEW OR VERIFY THE STATEMENTS OF ITS MEMBERS. YOU HEREBY AGREE TO EXERCISE REASONABLE PRECAUTION IN ALL INTERACTIONS WITH OTHER MEMBERS, PARTICULARLY IF YOU DECIDE TO MEET ANOTHER MEMBER IN PERSON. PICMYCASE DOES NOT REPRESENT, WARRANT, ENDORSE OR GUARANTEE THE CONDUCT OF ITS MEMBERS. IN NO EVENT SHALL PICMYCASE BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ANY MEMBER’S CONDUCT IN CONNECTION WITH SUCH MEMBER’S USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF PRIVACY OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS BETWEEN MEMBERS.
10. CONSENT TO RECEIVE EMAIL FROM PICMYCASE
By registering with the Website, you thereby consent to receive periodic email communications regarding the Services, new product offers, promotions, and other matters.
RESERVED RIGHTS FOR PICMYCASE FEES
You acknowledge and agree that PicMyCase reserves the right to charge for access to the Website and use of the Services. PICMYCASE RESERVES THE RIGHT, IN PICMYCASE’S SOLE DISCRETION, TO CHANGE THE FEES AND CHARGES IN EFFECT, OR TO ADD NEW FEES AND CHARGES, BY POSTING SUCH CHANGES ON THE WEBSITE OR PROVIDING NOTICE TO YOU. ALL FEES AND CHARGES ARE NONREFUNDABLE, AND THERE ARE NO REFUNDS. PicMyCase’s decision not to exercise any specific right or require performance of any specific obligation under this Agreement, including without limitation the collection of regularly recurring fees from You, shall not affect PicMyCase’s subsequent ability to exercise such right or require such performance at any time thereafter. Nor shall PicMyCase’s waiver of Your breach constitute PicMyCase’s waiver of any subsequent breach. By opting for paid services, You authorize PicMyCase, and/or its payment processor, to charge these fees to the credit card You provide, in addition to applicable federal, state, and local taxes and all other taxes.
The Website is linked with the websites of third parties (“Third-Party Websites”), some of whom may have established relationships with PicMyCase and some of whom may not. PicMyCase does not have control over the content and performance of Third-Party Websites. PicMyCase has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on or through third-party websites. Accordingly, PicMyCase does not represent, warrant, or endorse any third-party website, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through third-party websites. PicMyCase disclaims, and you agree to assume, all responsibility and liability for any damages or other harm, whether to you or to third parties, resulting from your use of third-party websites.
11. USER CONTENT
You hereby represent and warrant that You own all rights, title and interest in and to User Content or are otherwise authorized to grant the rights provided the PicMyCase Parties under this section. You further represent and warrant that all User Content fully complies with PicMyCase’s prohibitions against Objectionable Content, as detailed in Section 16.
You hereby represent and warrant that You: (a) own all rights, title, and interest in and to User Content or are otherwise authorized to grant the rights provided the PicMyCase Parties under this section; and (b) You have written consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name and likeness of each and every such identifiable person to enable inclusion and use of the User Content in the manner contemplated by this Agreement. Any termination of this Agreement shall automatically terminate all rights and licenses granted to PicMyCase under this section. Upon termination, PicMyCase shall delete from PicMyCase’s systems all of Your User Content.
12. PUBLIC FORUMS
“Public Forum” is any area, site or feature offered as part of the Website (including without limitation blogs, photo and video sharing, and personal messaging features) that enables You (a) to upload, submit, post, display, perform, distribute, and/or view User Content, and/or (b) to communicate, share, or exchange User Content with other Website members or other Website visitors. You acknowledge that Public Forums, and features contained therein, are for public and not private communications. You further acknowledge that anything You upload, submit, post, transmit, communicate, share, or exchange by means of any Public Forum may be viewed on the Internet by the general public, and therefore, You have no expectation of privacy with regard to any such submission or posting. You are, and shall remain, solely responsible for the User Content you upload, submit, post, transmit, communicate, share, or exchange by means of any Public Forum and for the consequences of submitting or posting same. PicMyCase disclaims any perceived, implied, or actual duty to monitor Public Forums and specifically disclaims any responsibility or liability for information provided thereon.
13. YOUR RESPONSIBILITY FOR DEFAMATORY COMMENTS
You agree and understand that you may be held legally responsible for damages suffered by other Website members or third-parties as the result of Your remarks, information, feedback, or other content posted or made available on the Website that is deemed defamatory or otherwise legally actionable. Under the Federal Communications Decency Act of 1996, PicMyCase is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback, or other content posted or made available on the Website.
In the event that You raise or file any claim against PicMyCase for conduct that a Court of Competent Jurisdiction subsequently finds to constitute an “exercise of a publisher’s traditional editorial functions,” or the legal equivalent thereof, you agree to fully and immediately compensate PicMyCase for all losses, liability, damages, costs, and expenses, including without limitation all attorneys’ fees and expenses in defending the action and resolving the matter. If You fail to compensate PicMyCase for any such claim, you hereby agree and authorize PicMyCase to report Your Personal Information, including without limitation Your unpaid claim, to consumer credit reporting services, collection agencies, and others.
14. OBJECTIONABLE CONTENT
15. PROHIBITED USES
PicMyCase imposes certain restrictions on Your use of the Website and the Services. You represent and warrant that you will not: (a) “stalk” or otherwise harass any person, or contact any person who has requested not to be contacted; (b) provide false, misleading or inaccurate information to PicMyCase or any other member; (c) impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity; (d) while, using the Website and Services, use “ad blocking” software or similar built-in web browser options designed to hide, block or prevent the proper display of online advertising; (e) modify or change the placement and location of any advertisement appearing on the Website; (f) harvest or otherwise collect information about PicMyCase users, including email addresses and phone numbers; (g) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Website for any use, including without limitation use on third-party websites; (h) access content or data not intended for You, or log onto a server or account that You are not authorized to access; (i) attempt to probe, scan, or test the vulnerability of the Services, the Website, or any associated system or network, or breach security or authentication measures without proper authorization; (j) interfere or attempt to interfere with the use of the Website or Services by any other user, host or network, including, without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (k) use the Website or Services to send unsolicited e-mail, including without limitation promotions or advertisements for products or services; (l) forge any TCP/IP packet header or any part of the header information in any e-mail or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Website or Services; or (m) attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the PicMyCase Parties in providing the Website or Services. Any violation of this section may subject You to civil and/or criminal liability.
16. INTELLECTUAL PROPERTY
(a) Compliance with Law
You represent and warrant that, when using the Website and Services, You will obey the law and respect the intellectual property rights of others. Your use of the Website and Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform, or distribute any content, information or other materials in violation of any third-party’s copyrights, trademarks, or other intellectual property or proprietary rights. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE WEBSITE AND SERVICES. COMPANY BEARS THE SOLE BURDEN OF PROVING THAT CONTENT, INFORMATION OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS. THOSE USERS THAT HAVE ENTERED INTO A CREATIVE INDEPENDENT CONTRACTOR AGREEMENT WITH PICMYCASE ACKNOWLEDGE AND REPRESENT THAT THEIR USE OF THE SITE IS FURTHER SUBJECT TO THE PROVISIONS OF SAID AGREEMENT.
PicMyCase and the “PicMyCase logo” (collectively, the “PicMyCase Marks”) are trademarks or registered trademarks of Other trademarks, service marks, graphics, logos, and domain names appearing on the Website may be the trademarks of third-parties. Neither Your use of the Website and Services nor this Agreement grant You any right, title or interest in or to, or any license to reproduce or otherwise use, the PicMyCase Marks or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the PicMyCase Marks generated as a result of Your use of the Website and Services will inure to the benefit of PicMyCase, and You agree to assign, and hereby do assign, all such goodwill to PicMyCase. You shall not at any time, nor shall You assist others to, challenge PicMyCase’s right, title, or interest in or to, or the validity of, the PicMyCase Marks.
(c) Copyrighted Materials; Copyright Notice
All content and other materials available through the Website and Services, including without limitation the PicMyCase logo, design, text, graphics, and other files, and the selection, arrangement, and organization thereof, are either owned by PicMyCase.com or are the property of PicMyCase.com’s licensors and suppliers. Except as explicitly provided, neither Your use of the Website and Services nor this Agreement grant You any right, title, or interest in or to any such materials.
(d) DMCA Policy
As PicMyCase asks others to respect PicMyCase’s intellectual property rights, PicMyCase respects the intellectual property rights of others. If you believe content located on or linked-to by the Website violates Your copyright, you are encouraged to please immediately notify PicMyCase by means of emailed notice (“Infringement Notice”), providing the information described herein. If PicMyCase takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party that made such content available by means of the most recent email address, if any, provided by such party to PicMyCase. Please be advised that you may be held liable for damages based on certain material misrepresentations contained in an Infringement Notice. Thus, if you are not sure content located on or linked-to by the Website infringes your copyright, you should consider first contacting an attorney.
All Infringement Notices should include the following:
1. A signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf;
2. An identification of the copyright claimed to have been infringed;
3. A description of the nature and location of the material that you claim to infringe your
copyright, in sufficient detail to permit PicMyCase to find and positively identify that material;
4. Your name, address, telephone number and email address; and
5. A statement by you: (i) that you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner’s agent; and, (ii) under penalty of perjury, that all of the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.
Infringement Notices should be sent to DMCA at PICMYCASE dot COM with the subject line “DMCA Notice – [PICMYCASE]”.
PicMyCase will respond to all such notices, including as required or appropriate by removing the
17. DISCLAIMERS; LIMITATION OF LIABILITY
(a) NO WARRANTIES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, PICMYCASE, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEBSITE, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NO ENCUMBRANCE, OR TITLE, IN ADDITION TO ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEITHER PICMYCASE NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE WEBSITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE LIABILITY OF PICMYCASE FOR DAMAGES ARISING OUT OF THE FURNISHING OF SERVICES PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT, ERRORS, OR OTHER DEFECTS, REPRESENTATIONS, OR ARISING OUT OF THE FAILURE TO THE FURNISH SERVICES, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, OR ANY OTHER DAMAGE OCCURRING, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. PicMyCase SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER CAUSED BY THE ACTS OR OMISSIONS OF PICMYCASE, PICMYCASE PARTIES, OR PICMYCASE USERS, OR THEIR AGENTS OR REPRESENTATIVES.
(b) YOUR RESPONSIBILITY FOR LOSS OR DAMAGE; BACKUP OF DATA
YOU AGREE THAT YOUR USE OF THE WEBSITE AND SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD PICMYCASE OR ITS LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA. THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS, OR OTHER LIMITATIONS.
IMPORTANTLY, YOU HEREBY ACKNOWLEDGE THAT A CATASTROPHIC DISK FAILURE OR OTHER EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO YOUR ACCOUNT. YOU AGREE AND UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO BACKUP YOUR DATA TO YOUR PERSONAL COMPUTER OR EXTERNAL STORAGE DEVICE AND TO ENSURE SUCH BACKUPS ARE SECURE.
(c) LIMITATION OF LIABILITY
THE LIABILITY OF PICMYCASE AND ITS LICENSORS AND SUPPLIERS IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL PicMyCase OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO PICMYCASE OR ITS LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE OR SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF PICMYCASE AND ITS LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES SHALL BE $50.00. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN PICMYCASE AND YOU. THE WEBSITE AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN ANY OTHER AGREEMENT BETWEEN YOU AND PICMYCASE OR BETWEEN YOU AND ANY OF PICMYCASE’S LICENSORS AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS, AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. PICMYCASE’S LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS, AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE WEBSITE OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
18. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that Your use of the Website and Services will be in accordance with this Agreement and any other PicMyCase policies, and with any applicable laws or regulations. For those individuals or entities that have entered into a Creative Independent Contractor Agreement with PicMyCase, said contractors further represent and warrant that their use of the website and services will also be in accordance with the provisions of said Independent Contractor Agreement. You represent and warrant that PicMyCase reserves the right to contract third parties to fulfill its duties under this Agreement, including, but not limited to, product design, order fulfillment, manufacturing and shipment.
19. INDEMNITY BY YOU
Without limiting any indemnification provision of this Agreement, You (the “Indemnitor”) agree to defend, indemnify and hold harmless PicMyCase and the PicMyCase Parties (collectively, the “Indeminitees”) from and against any and all claims, actions, demands, causes of action, and other proceedings (collectively, “Claims”), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to PicMyCase, including the choice of legal counsel and all related settlement negotiations, arising out of or relating to: (i) the relationship between You and PicMyCase, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) Your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) Your access to or use of the Website or Services; (iv) Your provision to PicMyCase or any of the Indemnitees of information or other data; or (v) Your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) Your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by You of any Claim as to which You are required to defend, indemnify, or hold harmless any, each, and/or all Indeminitees. You may not settle any Claim without the prior written consent of the concerned Indemnified Parties.
20. GOVERNING LAW; JURISDICTION AND VENUE
(a) 1-Year Limitations Period
ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE WEBSITE, SERVICES, OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN ABOVE.
(b) Binding Arbitration
If You and PicMyCase cannot resolve a Claim through negotiations, either party may elect to have the Claim finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other(s). YOU HEREBY ACKNOWLEDGE THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT WITH A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), as modified by this Agreement, available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Except as otherwise provided for herein, PicMyCase will pay the AAA filing, administration, and arbitrator fees. If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedures 11(b)), then the payment of all such fees will be governed by the AAA Rules. In that case, You hereby agree to reimburse PicMyCase for all payments disbursed that are your obligation to reimbursed under the AAA Rules. If you are unable to pay the arbitration fee, PicMyCase will pay it directly upon receiving a written request and a sworn statement that you are unable to pay. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to resolve, except that issues relating to the enforceability of the arbitration provision for a Court of Competent Jurisdiction to resolve. The arbitration may be conducted in person, through document submission, through telephone, or online. The arbitrator will issue a decision in writing, but need only provide a statement of reasons if requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. PicMyCase may litigate to compel arbitration in court, to stay proceedings pending arbitration, or to modify, confirm, vacate, or enter judgment on the award entered by the arbitrator. The arbitrator shall award costs to the prevailing party (including, without limitation, fees, expenses, and reasonable attorneys’ fees) at any time during the proceeding and upon request from either party, within fourteen (14) days of the arbitrator’s ruling on the merits.
(c) Restrictions Against Joinder of Claims
You and PicMyCase agree that any arbitration shall be limited to each Claim individually. YOU AND PICMYCASE HEREBY AGREE THAT EACH MAY ONLY BRING CLAIMS AGAINST THE OTHER IN YOUR OR PICMYCASE’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If this specific provision is found to be unenforceable, then, to the full extent allowable under applicable law, (1) no arbitration shall be joined with any other arbitration, and (2) there is no right for any Claim to be arbitrated on a class-action basis or to employ class action procedures, and (3) there is no right of authority for any dispute to be brought in a purported representative capacity on behalf either of the general public or any other individuals.
(d) Remedies in Aid of Arbitration; Equitable Relief
This agreement to arbitrate will not preclude You or PicMyCase from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a Court of Competent Jurisdiction. Furthermore, this agreement to arbitrate will not preclude You or PicMyCase from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. As used herein, “Court of Competent Jurisdiction” means any federal or state court: (1) that has jurisdiction over the subject matter; and (2) that is located in the State of California.
(e) Laws of the State of California
This Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in the State of California and shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party. THE PROPER VENUE FOR ANY JUDICIAL ACTION ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT WILL BE THE STATE AND FEDERAL COURTS LOCATED IN OR NEAREST TO THE UNITED STATES FEDERAL DISTRICT COURT IN THE CENTRAL DISTRICT OF CALIFORNIA. THE PARTIES HEREBY STIPULATE TO, AND AGREE TO WAIVE ANY OBJECTION TO, THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS, AND FURTHER EXPRESSLY SUBMIT TO EXTRATERRITORIAL SERVICE OF PROCESS.
(a) BY PICMYCASE
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, PICMYCASE RESERVES THE RIGHT TO, IN PICMYCASE’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY USE OF THE WEBSITE AND/OR SERVICES TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR ANY BREACH OR SUSPECTED BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION.
(b) AUTOMATIC TERMINATION UPON BREACH BY YOU
This Agreement shall automatically terminate in the event that You breach any of this Agreement’s representations, warranties, or covenants. Such termination shall be automatic, and shall not require any action by PicMyCase.
(c) BY YOU
You may terminate this Agreement and Your rights hereunder at any time, for any or no reason at all, by providing to PicMyCase notice of Your intention to do so, in the manner required by this Agreement.
(d) EFFECT OF TERMINATION
Any termination of this Agreement automatically terminates all rights and licenses granted to You under this Agreement, including all rights to use the Website and Services. Upon termination, PicMyCase may, but has no obligation to, in PicMyCase’s sole discretion, rescind any services and/or delete from PicMyCase’s systems all Your Personal Information and any other files or information that You made available to PicMyCase or that otherwise relate to Your use of the Website or Services. Subsequent to termination, PicMyCase reserves the right to exercise whatever means it deems necessary to prevent Your unauthorized use of the Website and Services, including without limitation technological barriers such as IP blocking and direct contact with Your Internet Service Provider.
(e) LEGAL ACTION
If PicMyCase, in PicMyCase’s discretion, takes legal action against You in connection with any actual or suspected breach of this Agreement, PicMyCase will be entitled to recover from You as part of such legal action, and You agree to pay, PicMyCase’s reasonable costs and attorneys’ fees incurred as a result of such legal action. The PicMyCase Parties will have no legal obligation or other liability to You or to any third party arising out of or relating to any termination of this Agreement.
Upon termination, all rights and obligations created by this Agreement will terminate, except that Sections 1, 2, 4-12, and 13-26 will survive any termination of this Agreement.
All notices required or permitted to be given under this Agreement must be in writing. PicMyCase shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to PicMyCase. You agree that any notice received from PicMyCase electronically satisfies any legal requirement that such notice be in writing. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH PICMYCASE IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY PICMYCASE OF AN EMAIL TO THAT ADDRESS. You shall give any notice to PicMyCase by means of email INFO at PICMYCASE dot COM.
23. PARTIAL INVALIDITY
Should any part of this Agreement be declared invalid, void, or unenforceable by a Court of Competent Jurisdiction, such decision shall not affect the validity of any remaining portion hereof, which shall remain in full force and effect, and the parties hereby acknowledge and agree that they would have executed the remaining portion hereof without including the part so declared by a Court of Competent Jurisdiction, to be invalid, void, or unenforceable.
This Agreement constitutes the entire agreement between PicMyCase and You concerning Your use of the Website and Services. This Agreement may only be modified by a written amendment signed by an authorized executive of PicMyCase or by the unilateral amendment of this Agreement by PicMyCase and by the posting by PicMyCase of such amended version. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. This Agreement and all of Your rights and obligations hereunder will not be assignable or transferable by You without the prior written consent of PicMyCase. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns. You and PicMyCase are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Except for the PicMyCase Parties and the Indemnified Parties as and to the extent set forth in Sections 7, 13, 17, 19(a), 21, and 23(e), and PicMyCase’s licensors and suppliers as and to the extent expressly set forth in Sections 19 and 20, there are no third-party beneficiaries to this Agreement. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by You would cause irreparable injury to PicMyCase and PicMyCase’s licensors and suppliers, and would therefore entitle PicMyCase or PicMyCase’s licensors or suppliers, as the case may be, to injunctive relief. The headings in this Agreement are for the purpose of convenience only and shall not limit, enlarge, or affect any of the covenants, terms, conditions or provisions of this Agreement.