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Terms of Service

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March 9, 2010

Bitnik, Inc. (“Bitnik”) provides the Picnik online photo editing service (“Picnik”) at this website ("Website") subject to these Terms of Service. By using Picnik, you agree to these Terms of Service. If you do not agree to these Terms of Service, please do not use Picnik. We reserve the right to update and change these Terms of Service from time to time without notice. You can always find the most recent version of these Terms of Service here http://www.picnik.com/info/tos

1. Your Account.

You may access Picnik, a powerful set of photo editing tools for editing, sharing, and printing images, at no cost and with no registration required. You may become a Registered User by creating an account. There is no fee to become a Registered User. Picnik Premium To enjoy additional editing tools and features, you may upgrade to Picnik’s Premium Photo Editor. Premium Users are subject to a monthly fee. For additional terms related to Picnik Premium, click here http://www.picnik.com/info/privacypolicy. You may not authorize others to use your account, and you may not assign or otherwise transfer your account to any other person or entity. You are entirely responsible for any and all activities that occur under your account. You agree to notify Bitnik immediately of any unauthorized use of your account or any other breach of security. Bitnik will not be liable for any loss that you may incur as a result of someone else using your account, either with or without your knowledge. However, you could be held liable for losses incurred by Bitnik or another party due to someone else using your account.

2. Your Submissions.

When you register your account, you will be asked to submit some personal information such as your name and email address. Our Privacy Policy sets forth our protection and use, if any, of this information.

3. Limited License

Bitnik grants you a non-exclusive license to use Picnik. These Terms of Service will also govern any upgrades that replace and/or supplement Picnik, unless such upgrades are accompanied by a separate license, in which case the terms of that license will govern. Picnik may be used to reproduce materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. Except as and only to the extent expressly permitted in these Terms of Service or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of Picnik or any part thereof.

4. User Conduct

You understand that all information, data, text, photographs, graphics, tags, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not Bitnik, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available using Picnik. Bitnik does not control the Content posted via Picnik and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using Picnik, you may be exposed to Content that you find offensive, indecent or objectionable. Under no circumstances will Bitnik be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via Picnik.

5. Prohibited Uses.

You agree to not use Picnik for any prohibited activity, which includes, but is not limited to:

a. engage in any criminal or tortuous activity, including child pornography, fraud, trafficking obscene material, harassment, stalking, spamming, sending viruses or any other harmful files, theft or disclosure of trade secrets; copyright infringement, patent infringement;
b. harm minors in any way, including soliciting private information from any person under 18;
c. impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
d. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
e. upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
f. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials including, but not limited to "junk mail" or "spam," or any other form of solicitation;
g. interfere with or disrupt Picnik or servers or networks connected to Picnik, or disobey any requirements, procedures, policies or regulations of networks connected to Picnik;
h. intentionally or unintentionally violate any applicable local, state, national or international law;
i. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; and/or
j. collect or store personal data about other users in connection with the prohibited conduct and activities set forth in these Terms of Service.

You acknowledge that Bitnik does not screen Content. However, in its sole discretion, Bitnik may remove any Content that is available via Picnik for any reason or no reason at all. Without limiting the foregoing, Bitnik shall have the right to remove any Content that violates these Terms of Service or is otherwise objectionable. You also acknowledge that Picnik may, in its sole discretion, restrict, suspend, and/or terminate your access to all or any part of Picnik at any time, for any reason or no reason at all, without prior notice, and without liability. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Picnik or submitted to Picnik.

6. Age Requirement.

Picnik is not intended for children under 13. If you are under 13 years of age, then please do not use Picnik or any services offered on Picnik. There are lots of other great websites for you. Talk to your parent or guardian about what sites are appropriate for you. Any registration by, use of or access to Picnik by anyone under 13 is unauthorized, unlicensed and in violation of these Terms of Service. By using Picnik, you represent and warrant that you are 13 or older.

7. International Users.

Because of the global nature of the Internet, as a condition of your use of the Website, you agree to comply with all local rules with respect to your account and your online conduct, including all laws, rules, codes, and regulations of the country in which you reside and the country from which you access Picnik, including without limitation, all laws, rules, codes, regulations, decrees, acts, orders, directives, legislation, bills, and statutes pertaining to tax, contracts, intellectual property, securities, e-commerce, banking, technology, computers, fraud, and privacy. In addition, you agree to comply with all applicable laws, rules, codes, and regulations regarding the transmission of technical data exported from the United States.

8. Copyright.

a. Except where indicated, all information and software available through Picnik is the exclusive property of Bitnik or its third party licensors and is protected by copyright and intellectual property laws. All copyrightable text, graphics, tools, features the selection, arrangement, and presentation of all materials and the overall design of Picnik and this web site are Copyright 2009 Bitnik, Inc. All rights reserved.
b. You may not reproduce, retransmit, disseminate, sell, publish, broadcast, nor shall any information be used in connection with creating or promoting any photo editing service or product, or any other commercial service, without the express written consent of Bitnik or its third party licensors. You may not copy, modify, or reverse-engineer the HTML code used to generate web pages on the site. You may not use Picnik on, or in connection with, any other website, for any purpose, without Bitnik’s prior written consent.
c. Bitnik does not claim ownership of Content you make available to the public on Picnik. By displaying, publishing, or posting any Content on or through Picnik, you hereby grant Bitnik the license to use, distribute, reproduce, modify, adapt, and publicly display such
Content. You further acknowledge that by making Content available to the public, you authorize other Picnik Users to copy, display, use, post, publish, modify, and/or adapt the Content outside of Picnik.

9. Trademarks.

Bitnik, Picnik, Picnik Premium, the Picnik logo Bookmarklet and Sandbox are all trademarks of Bitnik. All other brands and names are the property of their respective owners.

10. Intellectual Property Infringement.

Bitnik respects the intellectual property of others, and we require our users to do the same. In appropriate circumstances and at its discretion, Bitnik may disable and/or terminate the accounts of users who infringe on the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Bitnik’s Copyright Agent the following information:

a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of where the material that you claim is infringing is located on the site;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
f. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

Picnik’s Agent for notice of claims of copyright or other intellectual property infringement can be reached by mail:

Google Inc.
Google Legal Support, DMCA Complaints
1600 Amphitheatre Parkway
Mountain View, CA 94043
By email: contact@picnik.com

11. Links to Third-Party Sites.

Picnik may contain links to third-party websites that are not owned or controlled by Picnik. Picnik has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites. By using the Website, you expressly relieve Picnik from any and all liability arising from your use of any third-party web site. Accordingly, we encourage you to be aware when you leave the Website and to read the Terms of Service and privacy policy of every other web site that you visit. Unless we expressly state otherwise, the fact that Picnik has provided a link to a site is not an endorsement, authorization, sponsorship, or affiliation with respect to such site, its owners, or its providers.

12. Offers from Third-Parties.

We may refer you to third-parties who offer services that we think may be of interest to you. We may allow these third parties to offer you products and services, including offers through our Website or, with your express permission, via email. Whether or not you decide to participate in such an offer is up to you. Your participation in any of these offers, including payment and delivery of related goods or services and the terms, conditions, warranties or representations associated with such offers, is solely between you and the third-party. You agree that Picnik shall not be liable for any costs or damages you may incur resulting from your decision to enter such transactions.

13. Cookies.

A cookie is a small data file that web sites can write to your hard drive when you visit them. A cookie file can contain information such as a user ID that the site uses to track the pages you have visited, but the only personal information a cookie can contain is information you supply yourself. A cookie cannot read data off your hard disk or read cookie files created by other sites. Some parts of this Web site use cookies to track user traffic patterns. We do this in order to determine the usefulness of Web site information to our users and to see how effective our navigational structure is in helping users reach that information. Picnik does not correlate this information with data about individual users, nor does it share this information or sell it to any third party. If you prefer not to receive cookies, you can set your browser to warn you before accepting cookies and refuse the cookie when your browser alerts you to its presence. You can also refuse all cookies by turning them off in your browser. You do not need to have cookies turned on to use any area of Picnik.

14. Storage.

You acknowledge that Picnik may establish general practices, including limitations on the maximum disk space that will be allotted to you on Picnik’s servers, or the servers of any partners, affiliates, vendors, or any other third party used by Picnik to provide services to Users of Picnik. You agree that Picnik has no responsibility or liability for the deletion or failure to store any image or other information on or through Picnik. You acknowledge that edited images must be saved to your personal computer.

15. Assignment.

It is possible that as Picnik continues to develop our products, Picnik's services and/or related assets might be acquired as part of a merger or acquisition. In such an event, you understand and agree that Picnik may assign its rights under these Terms of Service and that your personal information may be transferred to the succeeding entity.

16. Disclaimer of Warranties; Limitation of Liability.

BITNIK DOES NOT REPRESENT OR WARRANT THAT ANY PICNIK IS FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. PICNIK IS PROVIDED "AS IS" WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND BITNIK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND/OR NON-INFRINGEMENT. YOUR USE OF PICNIK IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF PICNIK INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA.

YOUR USE OF PICNIK AND THIS WEBSITE IS ENTIRELY AT YOUR SOLE RISK. NEITHER BITNIK NOR ITS AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS, OR ANY THIRD-PARTY PROVIDERS AND VENDORS WILL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, INCOME, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, OR DAMAGES CAUSED BY THEFT, UNAUTHORIZED ACCESS, SYSTEMS FAILURE, OR COMMUNICATIONS LINE FAILURE, OR THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, CAUSED BY THE USE OF OR INABILITY TO USE THE WEBSITE, MATERIALS OR ANY PRODUCTS OR SERVICES PROVIDED HEREIN, OR ANY OTHER MATTER RELATING TO PICNIK, EVEN IF PICNIK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT THAT A JURISDICTION DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN, THE LIABILITY OF BITNIK AND ITS AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS, AND ANY THIRD-PARTY INFORMATION PROVIDERS AND VENDORS IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH JURISDICTIONS.

17. Indemnification.

You shall indemnify and hold harmless, and at Picnik's request, defend Picnik and its affiliates, as well as the respective directors, officers, shareholders, employees, agents and owners (each, an “Indemnified Party”) from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs and expenses, including reasonable attorneys' fees and costs, arising out of your acts or omissions, including claims resulting from your use of Picnik or the Website, your submission, posting or transmission of information or content, or any breach of your obligations set forth in this Terms of Service. You shall reimburse each Indemnified Party on demand for any costs, expenses and liabilities incurred by such Indemnified Party to which this indemnity relates.

18. Entire Terms of Service.

If a court of competent jurisdiction finds any clause or provision of these Terms of Service to be unenforceable, then the Terms of Service shall be deemed amended to exclude the clause or provision and the remainder of these Terms of Service shall continue in full force and effect.

19. Severability.

If a court of competent jurisdiction finds any clause or provision of these Terms of Service to be unenforceable, then the Terms of Service shall be deemed amended to exclude the clause or provision and the remainder of these Terms of Service shall continue in full force and effect.

20. Governing Law, Jurisdiction, Venue.

The Terms of Service, your access and use of Picnik and the relationship between you and Bitnik, Inc. is governed by the laws of the State of Washington, without regard to its conflicts of laws provisions. You agree to submit to the personal and exclusive jurisdiction of the federal and state courts located in Seattle, Washington. You are responsible for complying with local laws, if and to the extent local laws are applicable. Notwithstanding the foregoing, Picnik shall have the right to commence and prosecute any legal or equitable action or proceeding before any United States or non-United States court of competent jurisdiction to obtain injunctive or other relief in Picnik’s sole discretion. Regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to use of Picnik or the Website or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.


Additional Terms for Picnik Premium

1. Acknowledgement

Bitnik, Inc. (“Bitnik”) provides the Picnik Premium subject to these Additional Terms of Service. These Additional Terms are incorporated into, and subject to the Picnik Terms of Service and Privacy Policy.

2. Description of Subscription Services

Picnik.com provides subscribers with the ability to retrieve, edit, and save their photos to their computer or several third party sites. Some features of or services provided through Picnik.com, including the Premium version of its photo editor, require a fee-based subscription (all fee-based subscriptions are referred to as "Subscription Services"). If you elect to purchase Subscription Services you understand that your subscription is personal to you and you may not sell, trade, transfer, share, or otherwise make available your account name and password to others, including without limitation your co-workers. Any distribution by you of your account name and password to another person may result in cancellation of your subscription without refund and in additional charges based on unauthorized use. You agree to immediately notify Bitnik of any unauthorized use of your password or account or any other breach of security. New features will be added to the Picnik Premium on a regular basis. Some features may become free at the sole discretion of Bitnik. Accordingly, the Subscription Services may change without prior notice. We reserve the right, upon prior notice to you, to change the amount of any fees and to institute new fees, effective at the end of your current subscription period.

3. Payment

Picnik Premium is the pay version of Picnik. You can find a current fee schedule posted in the Picnik Premium section of our website. Subscriptions are annual and will auto-renew if the user has selected that option. Payment for services must be made by credit card in US Dollars prior to initial sign up. Auto-renew settings can be changed by the user at the user settings page. The Picnik Premium subscription enables you to access the all of the features offered under Picnik Premium. To the extent permissible under law, you are responsible for any applicable taxes, whether or not they are listed on your receipt or statement. If payment cannot be charged to your credit card or your payment is returned to Bitnik for any reason, Bitnik reserves the right to either suspend or terminate your access to the unpaid-for Subscription Services. Bitnik reserves the right to cancel your account in the case of non-payment. In that case, all information and content contained within http://www.picnik.com/ may be deleted permanently. Bitnik accepts no liability for information or content that is deleted due to an invalid credit card or incorrect user contact information.

4. Cancellation

During the first 30 days of your subscription, you may cancel your subscription and you will be credited your entire subscription fee, subject to Section 5 of these Additional Terms. To do this, go to the settings page and select the cancel option. After 30 days, the subscription can be canceled by emailing billing@picnik.com.

5. Refunds

If you are not satisfied with your Subscription, and upon your written request, we will cancel your account and provide a refund of your subscription fee prorated from the first day of the month in which you submit your cancellation notice. To request your refund, email us at billing@picnik.com from the same email address as your user User ID. All refunds are issued in the original form of payment. To ensure proper credit, you'll need to email us from the account with which you signed up for a Picnik account and provide a reason for cancellation.

6. Assignment

It is possible that as Bitnik continues to develop our products, Bitnik's services and/or related assets might be acquired as part of a merger or acquisition. In such an event, you understand and agree that Bitnik may assign its rights under these Additional Terms and that your personal information may be transferred to the succeeding entity. You will be provided with reasonable notice and an opportunity to opt-out of the transfer.

7. Indemnification

You shall indemnify and hold harmless, and at Bitnik's request, defend Bitnik and its affiliates, as well as the respective directors, officers, shareholders, employees, agents and owners (each, an “Indemnified Party”) from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs and expenses (including reasonable attorneys' fees, an allocation for in-house counsel, and other legal costs) arising out of your acts or omissions, including claims resulting from your use of the Website, your submission, posting or transmission of information or content, or any breach of your obligations set forth in this Agreement. You shall reimburse each Indemnified Party on demand for any costs, expenses and liabilities incurred by such Indemnified Party to which this indemnity relates.

8. Entire Agreement

If a court of competent jurisdiction finds any clause or provision of these Additional Terms to be unenforceable, then the Additional Terms shall be deemed amended to exclude the clause or provision and the remainder of these Additional Terms shall continue in full force and effect.

9. Severability

If a court of competent jurisdiction finds any clause or provision of these Additional Terms to be unenforceable, then the Additional Terms shall be deemed amended to exclude the clause or provision and the remainder of these Additional Terms shall continue in full force and effect.

10. Governing Law, Jurisdiction, Venue

The Additional Terms, your access and use of the Picnik.com and the relationship between you and Bitnik. is governed by the laws of the State of Washington, without giving effect to its conflict of law provisions. You agree to submit to the personal and exclusive jurisdiction of the courts of the State of Washington. You are responsible for complying with local laws, if and to the extent local laws are applicable. Notwithstanding the foregoing, Bitnik shall have the right to commence and prosecute any legal or equitable action or proceeding before any United States or non-United States court of competent jurisdiction to obtain injunctive or other relief in Bitnik’s sole discretion. Regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to use of the Website or the Additional Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.





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:
  1. Comply with the Picnik Terms of Use at http://www.picnik.com/info/tos.
  2. 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:
  1. Use Picnik Service for any application that replicates or attempts to replace the essential user experience of Picnik.com.
  2. Attempt to cloak or conceal your identity or your application's identity when requesting authorization to use Picnik Service.
  3. Use Picnik Service for any application that constitutes, promotes or is used in connection with spyware, adware, other malicious programs or code.
  4. 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.
  5. 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.
  6. 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:

  1. Users are charged a fee for your product or service which includes some sort of integration using the Picnik Service.
  2. You sell services to Picnik users and use the Picnik Service to bring users' Picnik content into your service.
  3. 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:
  1. 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.
  2. You shall not use Picnk Brand Features to disparage Picnik, its products or services
  3. You shall not remove, distort or alter any element of a Picnik Brand Feature (this includes squeezing, stretching, inverting, discoloring, etc.)
  4. You shall not display a Picnik Brand Feature in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to Picnik
  5. You shall not display a Picnik Brand Feature on a site that violates any law or regulation
  6. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.


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