Socialcam Terms of Use

March 7, 2011

This is a legal agreement between you and Socialcam Inc. (“Socialcam” or “Us”) regarding the use of the Socialcam software program (the “Software”) that you are installing on your device and the services available through the Software or on the Socialcam site (the “Socialcam Service”). BY DOWNLOADING THE SOFTWARE OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING ANY ADDITIONAL GUIDELINES, AND ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS”).  IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE SOFTWARE AND SERVICE.

THE SOFTWARE OR SOCIALCAM SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13.  IF YOU ARE UNDER 13 YEARS OF AGE, THEN PLEASE DO NOT USE THE SOFTWARE OR SERVICE. FURTHER, IF YOU OVER 13 BUT ARE UNDER THE AGE OF CONSENT WHERE YOU LIVE, THEN YOU MUST GET THE CONSENT OF YOUR PARENTS PRIOR TO USING THE SOFTWARE OR SERVICE.

1. Privacy. Your privacy is important to Socialcam.  Socialcam’s Privacy Notice for Socialcam (available at http://www.socialcam.com/privacy_policy), hereafter referred to as the “Socialcam Privacy Notice”, is hereby incorporated into these Terms by reference.  Please read the Socialcam Privacy Notice carefully for details relating to the collection, use, and disclosure of your personal information.
2. Individual Features and Services.  When using the Software or Socialcam Service, you will be subject to any additional posted guidelines or rules applicable to specific services, and features which may be posted from time to time (the “Guidelines”).  All such Guidelines are hereby incorporated by reference into the Terms. To the extent that any terms of these Terms of Use conflict with any Guidelines, these Terms of Use shall control.
3. Modification of Terms. Socialcam reserves the right, at its discretion, to change, modify, add, or remove portions of these Terms at any time without notice to you.  Please check these Terms and any Guidelines periodically for changes.  Your continued use of the Software or Socialcam Service after the posting of changes constitutes your binding acceptance of such changes.  For any material changes to these Terms, such amended terms will automatically be effective thirty days after they are initially posted on the Software or Socialcam Service.
4. Ownership. The Socialcam Service and Software are owned and operated by Socialcam and its licensors.  The content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Software or Socialcam Service that are provided by Socialcam (“Socialcam Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws.  Socialcam Materials do not include Socialcam Submissions (defined below) or any other content owned by and submitted by users (“Users”) to the Software or Socialcam Service.  All Socialcam Materials are the copyrighted property of Socialcam or its Affiliates and/or third-party licensors.  For purposes of this Agreement, an Affiliate shall be defined as an entity that controls, is controlled by, or is under common control with Socialcam. Except as expressly authorized by Socialcam, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Socialcam Service, Software or Socialcam Materials.  Socialcam reserves all rights not expressly granted in these Terms.  You shall not acquire any right, title or interest to the Socialcam Service, Software, or Socialcam Materials, except for the limited rights set forth in this Agreement.
5. Socialcam Submissions.

1. Generally. The Software or Socialcam Service may now or in the future permit the submission and posting or linking of text, chat logs, pictures, media, audio and video recordings, commentary or any other content submitted by you and other users (“Socialcam Submissions”), and the linking, hosting, sharing, and/or publishing of such Socialcam Submissions.  Socialcam makes no representations that it will publish or use your Socialcam Submissions in any way and may or may not use your Socialcam Submissions in its sole discretion.  You understand that whether or not such Socialcam Submissions are published, Socialcam does not guarantee any confidentiality with respect to any Socialcam Submissions.  For clarity, you retain ownership of your Socialcam Submissions.  However, by submitting Socialcam Submissions to Socialcam, you hereby grant Socialcam and its affiliates  a worldwide, non-exclusive, fully paid-up, perpetual,  royalty-free,  sublicenseable, and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, display, and perform your Socialcam Submissions in connection with the Software or Socialcam Service and Socialcam’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Socialcam Submissions (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered.  You grant Socialcam and its affiliates and sublicensees the right to use the name that you submit in connection with such Socialcam Submission if they choose.  You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your Socialcam Submissions.   You also hereby grant to each user of the Software or Socialcam Service a non-exclusive license to access your Socialcam Submissions through the Software or Socialcam Service and to use, reproduce, distribute, display, and perform such Socialcam Submissions, in each case as permitted by the functionality of the Software or Socialcam Service and these Terms. The above licenses granted by you in Socialcam Submissions you submit to the Software or Socialcam Service terminate within a reasonable time after you remove or delete your Socialcam Submissions from the Software or Socialcam Service. You understand and agree, however, that Socialcam may retain, but not display, distribute, or perform, server copies of your Socialcam Submissions that have been removed or deleted.
2. Representations and Warranties. You shall be solely responsible for your own Socialcam Submissions and the consequences of posting or publishing them.  In connection with Socialcam Submissions, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Socialcam to use all patent, trademark, copyright, or other proprietary rights in and to any and all Socialcam Submissions to enable inclusion and use of Socialcam Submissions in the manner contemplated by Socialcam and these Terms, and to grant the rights and license set forth above, (ii) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, (iii) you are not listed on any U.S. Government list of prohibited or restricted parties and (iv) your Socialcam Submissions, Socialcam’s use of such Socialcam Submissions pursuant to these Terms of Use, and Socialcam’s exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) violate any applicable law or regulation.

6. Content Disclaimer.   You understand that when using the Software or Socialcam Service, you will be exposed to Socialcam Submissions and other content (such Socialcam Submissions and other content, collectively, “Content”) from a variety of sources, and that Socialcam is not responsible for the accuracy, integrity, quality, legality, usefulness, safety, or intellectual property rights of or relating to such Content.  You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Socialcam with respect thereto. Socialcam does not endorse any User Submission or other Content or any opinion, recommendation, or advice expressed therein.  Under no circumstances will Socialcam be liable in any way for or in connection with any Socialcam Submissions or other Content, including, but not limited to, for any inaccuracies, errors or omissions in any Content, any intellectual property infringement with regard to any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise displayed or transmitted via the Software or Socialcam Service.
7. Monitoring Users and Content.  You understand that all Content is the sole responsibility of the person from whom such Content originated.  This means that you, and not Socialcam, are entirely responsible for all Socialcam Submissions that you upload, post, e-mail, transmit or otherwise make available through the Software or Socialcam Service.  Socialcam does not control the Content posted by Users or otherwise made available by other persons and does not have any obligation to monitor such Content for any purpose.  If at any time, Socialcam chooses, in its sole discretion, to monitor the Content, Socialcam nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.  You acknowledge that Socialcam may or may not pre-screen Socialcam Submissions, but that Socialcam and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any User Submission that is available via the Software or Socialcam Service.  Without limiting the foregoing, Socialcam and its designees may, at any time and without prior notice, remove any User Submission that in the sole judgment of Socialcam violates these Terms or is otherwise objectionable.  You agree that you must evaluate, and bear all risks associated with the use of any Socialcam Submissions or other Content, including any reliance on the accuracy, completeness, usefulness or legality of such User Submission or other Content.
8. Authorization for use of Information.  You hereby authorize Socialcam to access and use the address book, contact lists or other similar items contained in the devices to which you have downloaded the Software for purposes of your use of the Socialcam Service.
9. Restrictions. Subject to the terms and conditions herein, Socialcam grants you permission to use the Socialcam Service as set forth in these Terms, provided that (i) you use the Socialcam Service solely for your personal, private, noncommercial use; (ii) you do not copy, publicly display or distribute any part of the Software or Socialcam Service in any medium without Socialcam’s prior written authorization; (iii) you do not alter or modify any part of the Software or Socialcam Service other than as may be reasonably necessary to use the Software or Socialcam Service for its intended purposes; (iv) you do not display, transmit or share any Content (defined below) which may be deemed by Socialcam as hateful, threatening, pornographic, obscene, abusive, racially or ethnically offensive, libelous or defamatory, or any Content that encourages conduct that would be considered a criminal offense or bring forth liability; and (v) you otherwise fully comply with these Terms.  The Socialcam Service is controlled and offered by Socialcam from its facilities in the United States of America.  Socialcam makes no representations that the Socialcam Service is appropriate or available for use in other locations.  Those who access or use the Socialcam Service from other jurisdictions do so at their own risk and are responsible for compliance with local law.
10. Prohibited Uses.

1. As a condition of your use of the Software or Socialcam Service, you will not use the Software or Socialcam Service for any purpose that is unlawful or prohibited by these Terms.  Access to the Socialcam Materials and the Software or Socialcam Service from territories where their access or use thereof is illegal is strictly prohibited.  Socialcam Users are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, the internet, technology, data, email, or privacy.
2. You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Software or Socialcam Service, use of the Software or Socialcam Service, access to the Software or Socialcam Service, or Content obtained through the Software or Socialcam Service, for any purpose other than as the Software or Socialcam Service is offered by Socialcam.  
3. You agree not to defame, harass, abuse, threaten, stalk or defraud Users of the Software or Socialcam Service, or collect, or attempt to collect, personal information about Users or third parties without their consent.
4. You agree not to intentionally interfere with or damage, impair or disable the operation of the Software or Socialcam Service or any User’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code.
5. You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Software or Socialcam Service, features that prevent or restrict the use or copying of any content accessible through the Software or Socialcam Service, or features that enforce limitations on the use of the Software or Socialcam Service.
6. You agree not to attempt to gain unauthorized access to the Software or Socialcam Service, or any part of it, other accounts, computer systems or networks connected to the Software or Socialcam Service, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Software or Socialcam Service or any activities conducted on the Software or Socialcam Service.
7. You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Software or Socialcam Service.  You agree neither to modify the Software or Socialcam Service in any manner or form, nor to use modified versions of the Software or Socialcam Service, including (without limitation) for the purpose of obtaining unauthorized access to the Software or Socialcam Service.
8. You agree that you will not use any robot, spider, scraper, or other automated means to access the Socialcam Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Software or Socialcam Service.
9. You agree not to use any Socialcam logos, graphics, or trademarks without our express written consent.
10. You agree not to make unsolicited offers, advertisements, proposals, or send spam to other Users of the Software or Socialcam Service.  This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
11. You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software or Socialcam Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
12. You agree not to modify, adapt, translate or create derivative works based upon the Software or Socialcam Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

11. Account Information. You may use Facebook Connect to log in with your Facebook username and password to access some features of the Software or Socialcam Service. Your use of Facebook is governed by the Facebook Terms of Use and Facebook shall be considered a Third Party Service under these Terms.  Additionally, in order to access some features of the Socialcam Service, you may have to create an account. You agree that the information you provide or authorize third parties to provide to Socialcam upon registration and, at all other times, will be true, accurate, current, and complete.  You also agree that you will ensure that this information is kept accurate and up-to-date at all times.  You acknowledge, consent and agree that Socialcam may access, preserve and disclose your account information and User Submission if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to claim that any User Submission violates the rights of third parties; (d) to respond to your requests for customer service; or (e) protect the rights, property or personal safety of Socialcam, its users and the public
12. Password. As you will be responsible for all activities that occur under your username and password, you should keep your password confidential.  You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password.  If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you will immediately notify Socialcam at info-sc@socialcam.com.  You may be liable for the losses incurred by Socialcam or others due to any unauthorized use of your account.
13. Dealings with Advertisers. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Software or Socialcam Service are solely between you and such advertiser.  YOU AGREE THAT Socialcam WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SOFTWARE OR SERVICE.
14. Links and Third Party Services. Socialcam or third parties may provide links or functionality in the Software or Socialcam Service to other services, sites or content (“Third Party Services”).  Socialcam has no control over such Third Party Services or content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Third Party Services or content linked to by the Software or Socialcam Service.  Socialcam provides links to you only as a convenience, and the inclusion of any link on the Software or Socialcam Service does not imply our affiliation, endorsement, or adoption of the linked site or any information therein.  ACCESS AND USE OF THIRD PARTY SERVICES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD PARTY SERVICES OR AVAILABLE THROUGH THIRD PARTY SERVICES, IS SOLELY AT YOUR OWN RISK.  When you leave the Software or Socialcam Service, our terms and policies no longer govern.  You should review applicable terms and policies, including the privacy and data gathering practices, of any Third Party Services.
15. Availability of Service. Socialcam may make changes to or discontinue any of the media, web communities, products, or services available within the Software or Socialcam Service at any time, and without notice.  The media, products, or services on the Software or Socialcam Service may be out of date, and Socialcam makes no commitment to update these materials on the Software or Socialcam Service.
16. User Disagreements. You are solely responsible for your involvement with other Users.  If you have a dispute with one or more Users, you release Socialcam (and Socialcam's parent, subsidiaries, Affiliates, officers, directors, agents, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
17. Terms of Use Violations; Termination.

1. Socialcam.  You agree that Socialcam, in its sole discretion and for any or no reason, may terminate any User or customer account (or any part thereof) you may have at the Software or Socialcam Service or your use of the Software or Socialcam Service, and remove and discard all or any part of your account or any User Submission or Content, at any time, with or without notice.  Socialcam may also in its sole discretion and at any time discontinue providing access to the Software or Socialcam Service, or any part thereof, with or without notice.  You agree that any termination of your access to the Software or Socialcam Service or any account you may have or portion thereof may be effected without prior notice, and you agree that Socialcam shall not be liable to you or any third-party for any such termination.  Socialcam does not permit infringing activities on the Software or Socialcam Service, and reserves the right to terminate access to the Software or Socialcam Service, and remove all content submitted, by any persons who are found to be infringers.  Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities.  These remedies are in addition to any other remedies Socialcam may have at law or in equity.
2. User.  If you are dissatisfied with the Software or Socialcam Service, please let us know (sc@socialcam.com).  Your input is valuable to us.  Your only other remedy with respect to any dissatisfaction with (i) the Software or Socialcam Service, (ii) any term of this Terms of Use, (iii) any policy or practice of Socialcam in operating the Software or Socialcam Service, or (iv) any content or information transmitted through the Software or Socialcam Service, is to terminate this Terms of Use and your account.  You may terminate this Terms of Use at any time by upon written notice to Socialcam by uninstalling and destroying the Software and discontinuing all use of the Socialcam Service.

18. Indemnification; Hold Harmless. You agree to indemnify and hold harmless Socialcam, and its parent, subsidiaries, Affiliates, its suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney’s fees) arising out of (i) your use or misuse of the Software or Socialcam Service; (ii) your Socialcam Submissions, including Socialcam’s use, display or other exercise of its license rights granted herein with respect to your Socialcam Submissions; (iii) your violation of these Terms; (iv) your violation of the rights of any other person or entity, including claims that any User Submission infringes or violates any third party intellectual property rights; and (v) your breach of the foregoing representations, warranties, and covenants.  Socialcam reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.  You agree not to settle any matter without the prior written consent of Socialcam.  Socialcam will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
19. Disclaimers; No Warranties.

1. No warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Socialcam, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS (INCLUDING, IF YOU DOWNLOADED THE SOFTWARE FROM THE APPLE APP STORE, APPLE, INC.) DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Socialcam OR THROUGH THE SOFTWARE OR SOCIALCAM SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.  YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 20 AND SECTION 21, THE TERM “Socialcam” INCLUDES Socialcam'S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, LICENSORS, AFFILIATES AND SUBCONTRACTORS. You further acknowledge that Socialcam and its Affiliates (and if you downloaded the Software from the Apple App Store, Apple) have no obligation whatsoever to furnish any maintenance or support services with respect to the Software and/or Socialcam Service.
2. “As is” and “As available” and “With All Faults.” YOU EXPRESSLY AGREE THAT THE USE OF THE SOFTWARE OR SOCIALCAM SERVICE IS AT YOUR SOLE RISK.  THE SOFTWARE OR SOCIALCAM SERVICE, SOCIALCAM SUBMISSIONS AND ANY THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE OR SOCIALCAM SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
3. Platform Operation and Content. Socialcam, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE Socialcam MATERIALS, SOCIALCAM SUBMISSIONS, SOFTWARE OR SOCIALCAM SERVICE, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SOFTWARE OR SOCIALCAM SERVICE OR ANY THIRD PARTY SERVICES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
4. Accuracy. Socialcam, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR SOCIALCAM SERVICE OR ANY THIRD PARTY SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
5. Harm to Your Computer or Device. YOU UNDERSTAND AND AGREE THAT YOU IF YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SOFTWARE OR SOCIALCAM SERVICE (INCLUDING RSS FEEDS) OR ANY THIRD PARTY SERVICES, IT IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

20. Limitation of Liability; Damages

1. Limitation of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL Socialcam OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE Socialcam MATERIALS AND SOCIALCAM SUBMISSIONS ON THE SOFTWARE OR SOCIALCAM SERVICE OR ANY THIRD PARTY SERVICES, THE SOFTWARE OR SOCIALCAM SERVICE ITSELF, OR ANY OTHER INTERACTIONS WITH Socialcam, EVEN IF Socialcam OR A Socialcam AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.  IN SUCH CASES, Socialcam’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
2. Limitation of Damages. IN NO EVENT SHALL Socialcam OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SOFTWARE OR SOCIALCAM SERVICE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID Socialcam IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
3. Third Party Services. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SERVICES OR OTHERWISE BY THIRD PARTIES OTHER THAN Socialcam AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SOFTWARE OR SOCIALCAM SERVICE OR RECEIVED BY YOU THROUGH ANY THIRD PARTY SERVICES.

21. Limitations by Applicable Law; Basis of the Bargain.

1. Limitations by Applicable Law. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.  THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.

22. DMCA Compliance. Socialcam is brought to you by Socialcam, Inc. It is our policy to respond to clear notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. In addition, we will promptly terminate without notice the accounts of those determined by us to be "repeat infringers". If you are a copyright owner or an agent thereof, and you believe that any content hosted on our web site or service (www.Socialcam.com) infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Socialcam's Designated Copyright Agent with the following information in writing (please consult your legal counsel or see 17 U.S.C. Section 512(c)(3) to confirm these requirements):

 

•        A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

•        Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Socialcam.com web site are covered by a single notification, a representative list of such works at that site.

•        Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Socialcam to locate the material.

•        Information reasonably sufficient to permit Socialcam to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.

•        A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

•        A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

 

Please note that Socialcam may, at our discretion, send a copy of such notices to a third-party for publication. As such, your letter (with personal information removed) may be forwarded to Chilling Effects (http://www.chillingeffects.org) for publication.

 

If you elect to send us a counter notice, to be effective it must be a written communication that includes the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):

•        Your physical or electronic signature.

•        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 access to it was disabled.

•        A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

•        Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which Socialcam may be found, and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

 

Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

 

Socialcam’s Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows: Attention: Copyright Agent, 36 Clyde Street, San Francisco, CA 94107 or by email at copyright@socialcam.com. For clarity, only DMCA notices should go to the Socialcam Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Socialcam customer service through info-sc@socialcam.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.

 

Please note that Socialcam will promptly terminate without notice any User's access to the Socialcam Service if that User is determined by Socialcam to be a "repeat infringer." A repeat infringer is a User who has been notified by Socialcam of infringing activity violations more than twice and/or who has had their Uploader Submissions or any other user-submitted content removed from the Socialcam Service more than twice. In addition, Socialcam accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.

23. United States Export Controls. You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations).  The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by you that you will not export such technical data or commodities to certain foreign countries without prior approval of such agency.  Your rights under these Terms are contingent on your compliance with this provision.
24. Additional Terms for Apple App Store Applications. This Section 24 applies to you only if you have downloaded the Software from the Apple App Store.

1. Acknowledgement. Socialcam and you acknowledge that these Terms are entered into solely between you and Us, and not with any third party, including Apple, Inc. These Terms are not intended to provide for usage rules for the Software that are less restrictive than the Usage Rules set forth for Licensed Applications in, or otherwise conflict with, the App Store Terms of Service as of the date hereof (which you acknowledge you have had the opportunity to review).
2. License to Software. Subject to all the terms and conditions herein, Socialcam hereby grants you a personal, limited, non-commercial, nonexclusive, non-sublicensable, non-assignable, revocable license to download, install and use one (1) copy of the Software, in object code form, only on your App Store compatible device (“Device”) for the sole purpose of personally using the Service and, if you have downloaded the Software from the Apple App Store, as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
3. Acknowledgement. You acknowledge that Apple has no responsibility for addressing any claims relating to the Software or Socialcam Service or your possession and/or use of the Software or Socialcam Service, including but not limited to (i) product liability claims; (ii) any claim that the Software or Socialcam Service fails to conform to any applicable legal or regulatory requirement; and (iii) any claims arising under consumer protection or similar legislation.
4. Express Third Party Beneficiary. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary hereof.

25. Miscellaneous.

1. Notice. Socialcam may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on the Software or Socialcam Service.  Notice will be deemed given twenty-four hours after email is sent, unless Socialcam is notified that the email address is invalid.  Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Software or Socialcam Service.  In such case, notice will be deemed given three days after the date of mailing.
2. Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
3. Jurisdiction. You agree that the Socialcam Service shall be deemed solely based in California and a passive service that does not give rise to personal jurisdiction over Socialcam, either specific or general, in jurisdictions other than the State of California and that any action at law or in equity arising out of or relating to these Terms or the Software or Socialcam Service shall be filed only in the state or federal courts in and for Santa Clara County, California and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
4. Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision.  The failure of Socialcam to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
5. Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
6. Assignment. The Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Socialcam without restriction.  Any assignment attempted to be made in violation of this Terms or Use shall be void.
7. Independent Contractor. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Socialcam as a result of these Terms or use of the Software or Socialcam Service.  You further acknowledge that by submitting Socialcam Submissions or other Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Socialcam other than pursuant to these Terms.
8. Survival. The Sections entitled “Ownership; Proprietary Rights”, “Socialcam Submissions”, “Disclaimers; No Warranties”, “Indemnification; Hold Harmless”, “Limitation of Liability and Damages”, and “Miscellaneous” will survive any termination of these Terms.
9. Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
10. Entire Agreement. This is the entire agreement between you and Socialcam relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.  The Agreement shall not be modified except in a writing, signed by both parties, or by a change to these Terms or Guidelines made by Socialcam as set forth in Section 3 above.
11. Third Party Compliance.  Your use of the Software or Socialcam Service must comply with applicable third party terms of agreement when you are using the Software and/or Socialcam Service.
12. New Versions of the Software. Socialcam, in its sole discretion, reserves the right to add additional features or functions, or to modify or provide programming fixes, updates and upgrades, to the Software or Socialcam Service. Socialcam has no obligation to make available to you any modifications, updates, support, maintenance or subsequent versions of the Software or Socialcam Service. You may have to agree to a renewed version of this Terms of Use if you want to download, install or use any modifications, updates or new versions of the Software. You acknowledge that Socialcam may automatically issue any modifications, updates or upgraded versions of the Software and, accordingly, may modify, update or upgrade the version of the Software that you are using or have installed on your Device. You hereby agree that your device may automatically request and receive such modifications, upgrades or updates.
13. Claims. YOU AND Socialcam AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SOFTWARE OR SOCIALCAM SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.  OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
14. Disclosures. The Software and Socialcam Service are offered by Socialcam Inc., located at 36 Clyde Street, San Francisco, CA 94107, email: info-sc@socialcam.com.  If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.