Terms of Service
These Terms of Service are incorporated into the Vidigami Photo Management and Publication Agreement (“Vidigami Agreement”) and govern the use the Vidigami Photo Management Application (“PM System”) and the Picaboo Yearbook Application and Store (the “PYB System”) (collectively the “Vidigami System” or “System”) by organizations and individuals who have signed the Vidigami Agreement.
TERMS OF SERVICE
1. ACCESS TO THE SYSTEM
The PYB System can be accessed through the yearbooks.picaboo.com website and domain name. The PYB System includes the yearbook website, the yearbook application, the yearbook store and affiliated domain names, and any other linked websites, pages, features, content, or application System (including mobile applications) offered from time to time by Vidigami. Subject to the terms and conditions of this Agreement, Vidigami may provide certain services through the PYB System, as described more fully on the PYB System’s websites. As used herein, the term ‘PYB System’ shall include, without limitation, the PYB System, any service Vidigami performs for you or through the PYB System, and any content or products offered by Vidigami or Vidigami’s users through any of the foregoing.
The PM System can be accessed through the www.vidigami.com website and domain name.The PM System includes the photo management system, merchandise storefront, mobile apps, and affiliated domain names, and any other linked websites, pages, features, content, or application System (including mobile applications) offered from time to time by Vidigami. Subject to the terms and conditions of this Agreement, Vidigami may provide certain services through the PM System, as described more fully on the PM System’s websites. As used herein, the term ‘PM System’ shall include, without limitation, the PM System, any service Vidigami performs for you or through the PM System, and any content or products offered by Vidigami or Vidigami’s users through any of the foregoing. As used herein, the term “System” shall include the PYB System and the PM System.
You may only use the System for your internal (including organization sanctioned promotional and marketing use), educational use. Vidigami may change, suspend or discontinue all or any part of the System at any time. Vidigami also may impose limits on certain features and System or restrict your access to parts or all of the System without notice or liability.
Vidigami reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on the PYB and/or PM System or by sending you an appropriate notice via email. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the System following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
You represent and warrant to Vidigami that: (i) you are of legal age to agree to the Terms of Service; (ii) all agreement information you submit is accurate and truthful; (iii) you will maintain the accuracy of such information; (iv) if you are accepting this Agreement on behalf of an institution, company or other legal entity (“Organization”), you are using the Service with its permission.
2. USE BY CHILDREN
3. ADDITIONAL TERMS
(b) If you are accessing the System as an Organization the following terms also apply to your Organization:
(i) In the case of the PYB System, you will assign an adult as the “yearbook adviser” for the project responsible for the Organization’s use of the YB System and compliance with applicable laws. Upon termination of this yearbook adviser from the yearbook adviser role, you will require such individual to cease using the account created for the Organization and appoint another yearbook adviser. In the case of the PM System, you will assign an adult as the “photo management administrator” for the Organization’s use of the PM System and compliance with applicable laws. Upon termination of this administrator from this role, you will require such individual to cease using the account created for the Organization and appoint another administrator. If at any time you learn that a user of the System who claims to be affiliated with your Organization is not so affiliated, you will notify Vidigami immediately. The Organization is responsible for all activity that occurs under your Organization’s accounts on the System.
(ii) If you are an organization based in the United States, you represent and warrant that you are solely responsible for complying with the Children’s Online Privacy Protection Act (‘COPPA’), please see www.ftc.gov/privacy
(iii) If you are an Organization based in Canada or outside the United States, you represent and warrant that you will operate the Vidigami System (as defined) in compliance with applicable laws.
(c) If you are accessing the Vidigami System as a teacher, yearbook adviser or other representatives of an Organization, the following terms also apply to you:
(i) You represent and warrant that you have permission from your Organization to use the Vidigami System as part of your curriculum.
(ii) You represent and warrant that you will provide the parents of any users under the age of 13 with notice that the Organization is using the PYB System.
(iii) You will not share access to the System with anyone other than (1) authorized users within your Organization, and (2) parents or other legal guardians of children who belong to your Organization. You are responsible for activities that occur on the System due to access that you have granted to other users (whether through the creation of an account, providing access to your username and password, or through invitation), unless Organization has negligently provided access to the System, or failed to supervise the students as appropriate.
(d) If you are accessing the System as a parent or an adult unassociated with an Organization, the following terms also apply to you:
(i) You understand that your use of the System constitutes acceptance of these Terms both on your own behalf as well as on behalf of your child or children who use the System, if applicable.
(e) Vidigami requests all printed products be immediately inspected upon receipt by the customer and that any defects or damages be reported within 30 days. After 30 days, Vidigami is no longer obligated to refund or replace the product.
4. SYSTEM CONTENT
The System and its contents may only be used in accordance with the terms of this Agreement. All materials provided by Vidigami that are displayed or performed on the System (including, but not limited to text, graphics, articles, photographs, images, illustrations (also known as the ‘Vidigami Content’)) are protected by copyright and other intellectual property laws. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Vidigami Content accessed through the System, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Vidigami Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right.
The System is protected by copyright as a collective work and/or compilation, pursuant to U.S. and Canadian copyright laws, international conventions, and other copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section 4), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Vidigami Content, software, materials, or System in whole or in part.
You may download or copy the Vidigami Content (and other items displayed on the System for download) for personal non-commercial use only, provided that you maintain all copyright and other notices contained in such Vidigami Content. Copying or storing of any Vidigami Content other than personal, noncommercial use is expressly prohibited without prior written permission from Vidigami or from the copyright holder identified in such Vidigami Content’s copyright notice.
You understand that all information publicly posted or privately transmitted through the System is the sole responsibility of the person from which such content originated and that Vidigami will not be liable for any errors or omissions in any content. You understand that Vidigami cannot guarantee the identity of any other users with whom you may interact in the course of using the System. Additionally, Vidigami cannot guarantee the authenticity of any data that users may provide about themselves. You acknowledge that all Vidigami Content and User Submissions (collectively “Content”) accessed by you using the System is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
Under no circumstances will Vidigami be liable in any way for any Content, including, but not limited to, any errors or omissions, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the System
5. YOUR WARRANTY
You warrant, represent and agree that you will not contribute any User Submissions or otherwise use the System in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (iv) jeopardizes the security of your account in any way, such as allowing someone else access to your account or password. Vidigami reserves the right to remove any Content from the System at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such content or if Vidigami is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You, not Vidigami, remain solely responsible for all content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the System, and you warrant that you possess all rights necessary to provide such content to Vidigami and to grant Vidigami the rights to use such information in connection with the System and as otherwise provided herein.
You are responsible for all of your activity in connection with the System, as well all activity that occurs under your account or any accounts or access codes that you have authorized. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the System. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Vidigami user. Use of the System to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the System, or any processes that run or are activated while you are not logged on to the System, or that otherwise interfere with the proper working of or place an unreasonable load on the System’ infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl” or “spider, or “scrape” any page or portion of the System is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the System. You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the System. You may not transfer your account to anyone without express prior written consent of Vidigami. You will not disclose your username and password in any public manner, and will not disclose such information to any individual who is not authorized to receive such access code; for example, you will not post any access code to a publicly accessible internet page. You understand and agree that Vidigami shall have the sole right to decide whether you are in violation of any of the restrictions set forth in this Agreement, and Vidigami shall have sole discretion regarding the course of action to take in connection therewith.
7. WARRANTY DISCLAIMER
Vidigami has no special relationship with or fiduciary duty to you. You acknowledge that Vidigami has no control over, and no duty to take any action regarding: which users gains access to the System; what Content you access via the System; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Vidigami from all liability for you having acquired or not acquired Content through the System. The System may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Vidigami makes no representations concerning any content contained in or accessed through the System, and Vidigami will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the System. Vidigami makes no representations or warranties regarding suggestions or recommendations of System or products offered or purchased through the System. Products and System purchased or offered (whether or not following such recommendations and suggestions) through the System are provided “AS IS” without any warranty of any kind from Vidigami or others unless, with respect to others (only), otherwise made expressly and unambiguously in writing by a designated third party for a specific product. THE SYSTEM, CONTENT, WEBSITE AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
8. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL VIDIGAMI BE LIABLE TO YOU OR ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO VIDIGAMI IN CONNECTION WITH THE SYSTEM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
9. REGISTRATION AND SECURITY
As a condition to using System, you may be required to register with Vidigami and select a password and username and you may be permitted to register an Organization specific “subdomain” within the website (“Vidigami Subdomain”), commonly called the yearbook store. You shall provide Vidigami with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account and/or all accounts associated with your Vidigami Subdomain. Once you complete and submit your registration, you have opted in to receive email communication from us. You may not select a username of another person with the intent to impersonate that person or use a Vidigami Login subject to any rights of a person other than you without appropriate authorization, nor may you select or use a Vidigami Subdomain that you do not have the right and authorization to use. Vidigami reserves the right to refuse registration of or cancel a registration or Vidigami Subdomain in its discretion. You shall be responsible for maintaining the confidentiality of your password. Further, Vidigami generates unique IDs for unactivated (invited but not activated) users. Registered users are required to keep these unique IDs confidential as the unique IDs are associated with personal information of the unactivated person.
As permitted by law, you will indemnify and hold Vidigami, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand made by any third party due to or arising out of your access to the System, use of the System, your violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity. 11. FEES AND PAYMENT Vidigami offers photo hosting, photo management, printed yearbooks, printed products, digital products, yearbooks and other services such as content management and shipping. Vidigami may offer more products and services in the future. Picaboo Yearbook reserves the right to require payment of fees for these products and services. Should you elect to purchase such products and services, you shall pay all applicable fees, as described on the System in connection with such features. Vidigami reserves the right to change its price list and to institute new charges at any time. Use of the System by you following such notification constitutes your acceptance of any new or increased charges. Notwithstanding the foregoing, if the Organization and Vidigami has signed a Yearbook Publication Agreement or other applicable Agreement, that Agreements terms shall govern the fees and payment provisions and this paragraph shall not apply.
12. SELLING YEARBOOKS ON BEHALF OF THE SCHOOL OR ORGANIZATION
When Vidigami sells products to clients or parents or the organization, Vidigami does so on behalf of the organization. If applicable Vidigami will charge sales tax on transactions. The organization is responsible for declaring tax exempt status with Vidigami if they believe transactions are tax exempt.
13. THIRD PARTY WEBSITES AND SYSTEM
This Agreement shall remain in full force and effect while you use the System. You may terminate your use of the System or your account at any time by contacting us at firstname.lastname@example.org. Vidigami may suspend or terminate your access to the PYB System and/or PM System or your account for a violation of any term of these Terms of Service, and without warning or notice, which may result in the forfeiture and destruction of all information associated with your membership and in your forfeiture of any credit associated with your account. Upon termination of your account, your right to use the System, access the System, and any Content will immediately cease. All provisions of the Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability
Unless otherwise agreed to by the parties in writing, these provisions shall apply as permitted by law. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Vidigami shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Vidigami’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Vidigami’s prior written consent. Vidigami may transfer, assign or delegate this Agreement and its rights and obligations without consent. For disputes arising in the United States, this Agreement shall be governed by and construed in accordance with the laws of the State of New Hampshire without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Grafton County, New Hampshire, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation System, Inc. (‘JAMS’) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the District of New Hampshire. For disputes relating to this Agreement arising in Canada, this Agreement shall be governed by and construed in accordance with the laws of British Columbia and the laws of Canada applicable in British Columbia. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration administered by the British Columbia International Commercial Arbitration Centere pursuant to its rules. The place of Arbitration shall be Vancouver, BC, Canada. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. This Agreement and any subsequent versions of this Agreement posted to the Vidigami’s website will be deemed a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Vidigami in any respect whatsoever.
16. COPYRIGHT DISPUTE POLICY
Vidigami has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA (posted at www.lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of Vidigami’s Designated Agent to Receive Notification of Claimed Infringement (‘Designated Agent’) is listed at the end of this Section. It is Vidigami’s policy to (1) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders.
A. Procedure for Reporting Copyright Infringements: If you believe that material or content residing on or accessible through the System infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below: 1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed; 2. Identification of works or materials being infringed; 3. Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Vidigami is capable of finding and verifying its existence; 4. Contact information about the notifier including address, telephone number and, if available, email address; 5. A statement that the notifier has a good faith belief that the material identified in (3) is not authorized by the copyright owner, its agent, or the law; and 6. A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
B. Procedure for Reporting Security, Privacy and Copyright Infringements: If you believe that material or content residing on or accessible through the System infringes your security, privacy or copyright, please send a notice of infringement containing the following information to the Designated Agent listed below: (1) A physical or electronic signature of a person authorized to act on behalf of the organization or person that has been allegedly infringed; (2) Identification of works or materials being infringed or, as applicable, a description of the infringement; ( 3) Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the person or organization claiming the infringement seeks to have removed, with sufficient detail so that Vidigami is capable of finding and verifying its existence; ( 4) Contact information about the notifier including address, telephone number and, if available, email address; (5) A statement that the notifier has a good faith belief that the material identified in (3) is infringing as a matter of the law; and (6) A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the party allegedly being infringed upon.
C. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent: It is Vidigami’s policy: 1. to remove or disable access to the infringing material; 2. to notify the content provider, member or user that it has removed or disabled access to the material; and 3. that repeat offenders will have the infringing material removed from the system and that Vidigami will terminate such content provider’s, member’s or user’s access to the System.
D. Procedure to Supply a Counter-Notice to the Designated Agent: If the content provider, member or user believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or, pursuant to the law, the content provider, member, or user, must send a counter-notice containing the following information to the Designated Agent listed below:
1. A physical or electronic signature of the content provider, member or user; 2. 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; 3. A statement that the content provider, member or user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and 4. Content provider’s, member’s or user’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s, member’s or user’s address is located, or, if the content provider’s, member’s or user’s address is located outside the United States, for any judicial district in which Vidigami is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Vidigami may send a copy of the counter-notice to the original complaining party informing that person that Vidigami may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Vidigami’s discretion. Please contact Vidigami’s Designated Agent to Receive Notification of Claimed Infringement at the following address:
Designated Agent to Receive Notification of Claimed Infringement:
Bill Miles, CEO,
15 Lebanon St., Hanover, NH 03755.
If you have any questions, complaints, or claims with respect to the System, you may contact us at email@example.com.
Effective: November 10, 2017