Picnik Service Terms of Use

Thank you for using the Picnik application programming interfaces (the "Picnik Service"). By using the Picnik Service, you agree to the terms below. If you disagree with any of these terms, Picnik does not grant you a license to use the Picnik Service. We reserve the right to update and change these terms from time to time without notice. You can always find the most recent version of these terms here http://www.picnik.com/info/apitos/.

Your license to the Picnik Service under these terms continues until it is terminated by either party. You may terminate the license by discontinuing use of all or any of the Picnik Service. Picnik may terminate the license at any time for any reason. Your rights to use the Picnik Service terminate automatically if (i) you violate any of these terms, (ii) Picnik publicly posts a written notice of termination on Picnik.com, (iii) Picnik sends a written notice of termination to you, or (iv) Picnik disables access to the Picnik Service to you.

1. Licensed Uses and Restrictions

The Picnik Service is owned by Picnik and its parent company Bitnik Inc. (hereinafter "Picnik") and is licensed to you on a worldwide (except as limited below), non-exclusive, non-sublicenseable basis on the terms and conditions set forth herein. These terms define legal use of the Picnik Service, all updates, revisions, substitutions, and any copies of the Picnik Service made by or for you. Picnik user images are owned by the users and not by Picnik. All rights not expressly granted to you are reserved by Picnik.

a. You shall:

Comply with the Picnik Terms of Use at http://www.picnik.com/info/tos.
Disclose in your application through a privacy policy or otherwise displayed in the footer of each page, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors' browsers.

b. You shall not:

Use Picnik Service for any application that replicates or attempts to replace the essential user experience of Picnik.com.
Attempt to cloak or conceal your identity or your application's identity when requesting authorization to use Picnik Service.
Use Picnik Service for any application that constitutes, promotes or is used in connection with spyware, adware, other malicious programs or code.
Use Picnik Service in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality.
Use Picnik Service in a manner that adversely impacts the stability of Picnik.com servers or adversely impacts the behavior of other applications using the Picnik Service.
Sell, lease, or sublicense Picnik Service or access thereto or derive revenues from the use or provision of Picnik Service, whether for direct commercial or monetary gain or otherwise, except as set forth below.

2. Commercial Use

a. Rules and Restrictions

If the primary purpose of your application is to derive revenue, it is considered a commercial application. Picnik reserves the right to make these evaluations at the time that you apply for the license. Picnik may also monitor your site or application over time to ensure continued compliance with the appropriate type of API key.

If you're in doubt about whether your application is commercial, here are a few common examples of commercial use that may provide you some guidance:

Users are charged a fee for your product or service which includes some sort of integration using the Picnik Service.
You sell services to Picnik users and use the Picnik Service to bring users' Picnik content into your service.
Your site is a "destination" site that uses the Picnik Service to drive traffic and generate ad revenue.

b. Application for a Commercial API Key

If you want to apply for a commercial API key, go to the following form to see what information you need to provide: http://www.picnik.com/keys/request. You can't be too specific about your intended use of the Picnik Commercial API! Lack of specificity or supporting information could delay your application indefinitely (or even cause us to think too much and forget to answer!) When in doubt, it's always better to include more detail about your application. Please note that in some cases we may grant your request for a commercial API key subject to your payment of fees, such as to help cover infrastructure costs.

3. Attribution

a. Brand Feature License

For purposes of the Terms of Use, "Brand Features" shall be defined as the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time. Picnik hereby grants to You a nontransferable, nonsublicenseable, nonexclusive license during the Term to display Picnik's Brand Features for the purpose of promoting or advertising that You use the Picnik Service in accordance with this Section 3.a and for the purpose of fulfilling Your obligations under Section 3.b below. You hereby grant to Picnik a nontransferable, nonexclusive license during the Term to use Your Brand Features to advertise that You are using the Picnik Service.

In using Picnik Brand Features:

Any use of the Picnik logo in your application shall be less prominent than the logo or mark that primarily describes the application and your use of the Picnik logo shall not imply any endorsement by Picnik.
You shall not use Picnk Brand Features to disparage Picnik, its products or services
You shall not remove, distort or alter any element of a Picnik Brand Feature (this includes squeezing, stretching, inverting, discoloring, etc.)
You shall not display a Picnik Brand Feature in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to Picnik
You shall not display a Picnik Brand Feature on a site that violates any law or regulation
You shall not use "picnik" in the hostname of your application, i.e. picnik.mydomain.com

b. Legal Notices

The user interface provided to You through the Picnik Service may contain the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of Picnik and its partners. You may not delete or in any manner alter these trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. You agree to maintain, and not to remove, modify, obscure or alter, any link or notices appearing on any user interface provided through the Picnik Service. You acknowledge and agree that that these Legal Notices supplement the Terms of Use for the Picnik Service.

4. Ownership and Relationship of Parties

The Picnik Service may be protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. Picnik's rights apply to the Picnik Service and all output and executables of the Picnik Service, excluding any software components developed by you which do not themselves incorporate the Picnik Service or any output or executables of the Picnik Service. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in these terms. Picnik owns all rights, title, and interest in and to the Picnik Service. These terms grant you no right, title, or interest in any intellectual property owned or licensed by Picnik, including (but not limited to) the Picnik Service and Picnik trademarks.

5. Support

Picnik may elect to provide you with support or modifications for the Picnik Service (collectively, "Support"), in its sole discretion, and may terminate such Support at any time without notice to you. Picnik may change, suspend, or discontinue any aspect of the Picnik Service at any time, including the availability of any Picnik Service. Picnik may also impose limits on certain features and services or restrict your access to parts or all of the Picnik Service or the Picnik Web site without notice or liability.

6. Fees and Payments

Picnik is committed to free and open access to the Picnik Service for commercial and non-commercial purposes. However, providing the Service does have real costs for Picnik. For uses of Picnik Service over a certain rate or for certain types of commercial applications, Picnik reserves the right to charge fees for future use of or access to the Picnik Service.

7. Disclaimer of Any Warranty

SOME OF THE PICNIK SERVICE APIS MAY BE EXPERIMENTAL AND NOT TESTED IN ANY MANNER. PICNIK DOES NOT REPRESENT OR WARRANT THAT ANY PICNIK SERVICE APIS ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID.

THE PICNIK SERVICE IS PROVIDED "AS IS" WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND PICNIK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABLILTIY, SECURITY, TITLE AND/OR NON-INFRINGEMENT.

YOUR USE OF PICNIK SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF ANY PICNIK SERVICE INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA.

8. Limitation of Liability

PICNIK SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE PICNIK SERVICE, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT PICNIK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL PICNIK BE LIABLE TO YOU FOR ANY AMOUNT.

9. Exclusions and Limitations

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 7 AND 8 MAY NOT APPLY TO YOU.

10. Release and Waiver

To the maximum extent permitted by applicable law, you hereby release and waive all claims against Picnik, and its subsidiaries, affiliates, officers, agents, licensors, co-branders or other partners, and employees from any and all liability for claims, damages (actual and/or consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising from or in any way related to your use of Picnik Service. If you are a California resident, you waive your rights under California Civil Code � 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." You understand that any fact relating to any matter covered by this release may be found to be other than now believed to be true and you accept and assume the risk of such possible differences in fact. In addition, you expressly waive and relinquish any and all rights and benefits which you may have under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.

11. Hold Harmless and Indemnity

To the maximum extent permitted by applicable law, you agree to hold harmless and indemnify Picnik and its subsidiaries, affiliates, officers, agents, licensors, co-branders or other partners, and employees from and against any third party claim arising from or in any way related to your use of Picnik Service, including any liability or expense arising from all claims, losses, damages (actual and/or consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. Picnik shall use good faith efforts to provide you with written notice of such claim, suit or action.

12. General Terms

Relationship of the Parties. Notwithstanding any provision hereof, for all purposes of the Terms of Use, you and Picnik shall be and act independently and not as partner, joint venturer, agent, employee or employer of the other. You shall not have any authority to assume or create any obligation for or on behalf of Picnik, express or implied, and you shall not attempt to bind Picnik to any contract.
Invalidity of Specific Terms. If any provision of the Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision and the other provisions of such documents remain in full force and effect.
Location of Lawsuit and Choice of Law. The Terms of Use and the relationship between you and Picnik shall be governed by the laws of the State of Washington without regard to its conflict of law provisions. You and Picnik agree to submit to the personal jurisdiction of the courts located within the county of Seattle, Washington.
No Waiver of Rights by Picnik. Picnik's failure to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision.
Miscellaneous. The section headings and subheadings contained in this agreement are included for convenience only, and shall not limit or otherwise affect the terms of the Terms of Use. Any construction or interpretation to be made of the Terms of Use shall not be construed against the drafter. The Terms of Use constitute the entire agreement between Picnik and you with respect to the subject matter hereof.