Terms of Service
Effective on: 08/12/05
This Agreement is between PixOasis and you ("you" or "Customer"), as an authorized user of PixOasis services, and governs the terms and conditions of your use of PixOasis services. This Agreement, together with any operating rules, policies, price schedules, or other supplemental documents expressly incorporated herein by reference and published from time to time by Pixaoasis (collectively, the "Agreement"), constitutes the entire agreement between PixOasis and you regarding PixOasis services, and supersedes all prior agreements between the parties regarding the subject matter of this Agreement. Notwithstanding the foregoing, your use of any software provided by PixOasis related to the Services shall be pursuant to a separate agreement governing Customers' use of such software. For purposes of this Agreement, "Pixoaisis services" or "Services" are defined as any and all services provided by PixOasis to you either now or in the future. By using PixOasis services, you confirm your acceptance of, and agree to be bound by, this Agreement.
Definition of Terms
- PixOasis is referred to herein as "PixOasis" "we," "us," or "our."
- You, as the user, are referred to herein as "you," "user," "subscriber," "client," or "customer."
- The equipment and software owned, leased, used by, or maintained for or by PixOasis are referred to herein as "the PixOasis system" or "system."
- User files, directory structure, photos, image files, images, photographs, albums and file content are referred to herein as user files
- Information stored in and/or gathered by PixOasis's system about the user, user's files, and user's system usage (user's meta-information) is referred to herein as "user data."
Description of Service
PixOasis is in the business of providing Internet-based image storage, display and delivery resources. It is our goal to provide you and your clients with the best access possible to image storage, display and delivery resources available through the Internet. Our business depends upon it and PixOasis is strongly motivated to achieve success. We want you to have the best possible experience in dealing with PixOasis and using PixOasis's services.
PixOasis offers the Services at its Website www.pixoasis.com Individually, the Services are:
- PixOasis Free Plan
- PixOasis Free Plan includes and is limited to 50 MB of online gallery storage space. PixOasis Free Plan is herinafter referred to as "Free Plan"
- PixOasis 500 Plan
- PixOasis 500 Plan includes and is limited to 500 MB of online gallery storage space. PixOasis 500 Plan is herinafter referred to as "500 Plan"
- Pixoasis 1000 Plan
- Pixoasis 1000 Plan includes and is limited to 1 GB of online gallery storage space. Pixoasis 1000 Plan is herinafter referred to as "Pixoasis 1000 Plan"
- Pixoasis 2000 Plan
- Pixoasis 2000 Plan includes and is limited to 2 GB of online gallery storage space. Pixoasis 2000 Plan is herinafter referred to as "Pixoasis 2000 Plan"
- Pixoasis 5000 Plan
- Pixoasis 5000 Plan includes and is limited to 5 GB of online gallery storage space. Pixoasis 5000 Plan is herinafter referred to as "Pixoasis 5000 Plan"
- Pixoasis 10,000 Plan
- Pixoasis 10,000 Plan includes and is limited to 10 GB of online gallery storage space. Pixoasis 10,000 Plan is herinafter referred to as "Pixoasis 10,000 Plan"
PixOasis Fair Use Policy
As a PixOasis Service Customer, you will receive usage of all the services mentioned above for whatever plan you choose and pay for.
PLEASE NOTE, HOWEVER, THAT YOUR USE OF THE SERVICE IS SUBJECT TO PIXOASIS'S "FAIR USE" POLICY. PIXOASIS'S SERVICE IS DESIGNED FOR, AND OFFERED SOLEY TO PHOTOGRAPHERS AND OTHERS WHO DISPLAY AND DELIVER HIGH NUMBERS OF THEIR OWN HIGH AND LOW RESOLUTION DIGITAL IMAGES. YOU WILL BE IN VIOLATION OF THIS POLICY IF, YOU ATTEMPT TO CIRCUMVENT THE ORIGINAL INTENT OF PIXOASIS SERVICE OR WITHIN ANY MONTH, YOUR USAGE GREATLY EXCEEDS MORE THAN THE AVERAGE LEVEL OF MONTHLY USAGE OF PIXOASIS'S PAID SUBSCRIPTION CUSTOMERS GENERALLY. FOR PURPOSES OF THIS POLICY, "USAGE" MEANS THE TOTAL AMOUNT OF BANDWIDTH A FILE/FOLDER HOSTED AND SHARED FROM OUR SERVICE GENERATES, AS DETERMINED BY US IN OUR SOLE DISCRETION. WE RESERVE THE RIGHT TO AT ANYTIME ENFORCE THIS POLICY IN ACCORDANCE WITH ITS TERMS (I.E., USAGE WITHIN ANY MONTH IN EXCESS OF MORE THAN THE AVERAGE LEVEL OF MONTHLY USAGE OF OUR SUBSCRIPTION CUSTOMERS GENERALLY).
IN THE EVENT YOU ARE DEEMED TO HAVE VIOLATED THIS POLICY, A PIXOASIS REPRESENTATIVE WILL ATTEMPT TO CONTACT YOU TO REACH AGREEMENT ON A REVISED PRICING PLAN WHICH WILL PERMIT YOU TO CONTINUE TO USE THIS PAID SUBSCRIPTION SERVICE. HOWEVER, PIXOASIS RESERVES THE RIGHT TO TERMINATE OR SUSPEND YOUR ACCOUNT WITHOUT PRIOR NOTICE IN THE EVENT OF A POLICY VIOLATION.
Free Service Usage; Fair Use Policy.
PixOasis provides the Free Plan as an accommodation to you, and reserves the right to terminate this Free Service in the future PixOais will provide the user 30 days notice before terminating or altering this Free Service in any manner. PixOasis will provide only one free 50 meg account per customer.
YOU UNDERSTAND THAT THE FREE PLAN IS SUBJECT TO PIXOASIS'S "FAIR USE" POLICY FOR FREE ACCOUNTS. YOU WILL BE IN VIOLATION OF THIS POLICY IF, YOU USE THE SERVICE IN WAYS THAT CIRCUMVENT PIXOASIS'S ORIGINAL INTENT, OR ATTEMPT TO SIGN UP FOR MORE THAN ONE FREE ACCOUNT. You will have the option to subscribe to any additional services that PixOasis offers as described on the PixOasis Website, all subject to the terms of this Agreement or another agreement specific to those additional services.
To use the Service, you must submit a complete PixOasis registration form, which is available at https://www.pixoasis.com (the "Registration Form"), on your behalf. As part of the registration process for the Service, you agree to: (1) provide certain limited information about you as prompted to do so by the Service (such information to be current, complete and accurate) and (2) maintain and update this information as required to keep it current, complete and accurate. The information requested on original signup shall be referred to as registration data ("Registration Data"). If PixOasis discovers that any of your Registration Data is inaccurate, incomplete or not current, PixOasis may terminate your right to access and receive the service immediately upon notice. PixOasis will evaluate the registration application in good faith and will notify you in a timely manner regarding acceptance or rejection. PixOasis may reject a registration application if it determines, in its sole discretion, that the user is not an appropriate subscriber or user of the Service. PixOasis reserves the right to refuse the Service to any user who has canceled any number of previous Service accounts. PixOasis need not provide a reason for its rejection. If PixOasis rejects your application, then you may reapply and PixOasis will reconsider the application. You may not register for this Service if you are under 18 years of age. By registering for this Service you represent to PixOasis that you are 18 years of age or older. Upon acceptance of this agreement and completion of the registration process you will have opened an account with Pixoais and will become a subscriber to the PixOasis Service.
Incomplete Signup E-mails
If you begin the sign up process for PixOasis Services but fail to complete the process, PixOasis may contact you one (1) time via e-mail in an effort to help successfully guide you through this process. You hereby authorize PixOasis to make such contact, even if you ultimately determine not to sign up for Pixoais' Services.
PixOasis grants you a personal, non-exclusive, non-transferable license to use the products and software contained in or made available through the Service (the "Content") solely for your own internal purposes. All rights not expressly granted by PixOasis to you are retained.
You are permitted to store, manipulate, analyze, reformat, print, and display the Content only for your personal use. Unauthorized use of the Service, or the resale of the Services without PixOasis's prior written consent, is expressly prohibited. You shall not copy, license, sell, transfer, transmit, make available, distribute, publish, or assign this license or the Content in any format to any third party.
Third Party Interaction
In your use of the Service, you may enter into correspondence with, purchase goods and/or services, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. PixOasis shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party.
Links to Third Party Sites
PixOasis does not endorse any sites on the Internet that are linked through the Service. PixOasis is providing these links to you only as a matter of convenience, and in no event shall PixOasis be responsible for any content, products, or other materials on or available from such sites.
A user account is required to access the Service and may be accessed and used only by those authorized individuals who are registered with PixOasis. To open a user account, you or your company must complete the registration process by providing PixOasis with current, complete and accurate information as prompted by the registration form. In registering for the Service, you agree to submit accurate, current and complete information about you and promptly update such information. Should PixOasis suspect that such information is untrue, inaccurate, not current or incomplete, PixOasis has the right to suspend or terminate your usage of the Service. You will choose a personal, non-transferable password. User accounts cannot be "shared" or used by more than one individual.
You are also solely responsible for any and all activities that occur under your account and ensuring that you exit or log-off from your account at the end of each session of use. You shall notify PixOasis immediately of any unauthorized use of your password or account or any other breach of security that is known or suspected by you. You shall also use your best efforts to stop immediately any copying or distribution of Content that is known or suspected by you. PixOasis shall not be responsible for any unauthorized access to, or alteration of, your transmissions or data, any material, information or data sent or received, regardless of whether the data is actually received by PixOasis, or any transactions entered into through the Service or failure to abide by this Agreement. DO NOT MISUSE OR ABUSE OUR SYSTEM OR OUR SYSTEM RESOURCES (I.E. BANDWIDTH). YOUR ACCOUNT WILL BE IMMEDIATELY TERMINATED.
Account Information and Data
PixOasis does not own any data, information or material that you submit to the Service or store in your account ("Data"). PixOasis will not monitor, edit, or disclose any information regarding you or your account, including any Data, without your prior permission except in accordance with this Agreement. Please be aware that PixOasis does provide certain user registration and statistical information such as usage or user traffic patterns in aggregate form to third parties but such information will not include personally identifying information and that your Internet protocol address or e-mail information is not transmitted with each message sent from your PixOasis account. PixOasis may access your account, including its Data, to respond to service or technical problems or as stated in this Agreement. You, not PixOasis, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Data and PixOasis shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data.
Keeping Account Payments up to Date
If user does not keep the payments for his account up to date , PixOasis may (in its own discretion) remove and/or purge user's data and account from the system. At its own discretion, PixOasis may make at least two attempts, at least fifteen (15) days prior to deletion, to alert user of the pending deletion via his/her provided e-mail address. User agrees and acknowledges that no other notification is necessary and that e-mail provides an entirely adequate, sufficient, and complete means by which notice may be given user by PixOasis. If user does not respond to PixOasis, PixOasis will deem the account abandoned and user's data may be immediately purged from the system. PixOasis advises users to please keep their accounts and contact data current or they will be purged.
While PixOasis endeavors to prevent viable accounts and data from being purged prematurely, Pixosis is under no obligation to maintain abandoned accounts. User agrees that when an account is terminated due to non payment of the monthly fees, or if the account is terminated for any reason, these events indicate that user's account is abandoned and that all data associated with the account may be deleted and/or purged.
PixOasis offers its Service, as described on the PixOasis website (www.pixoasis.com) and as published within the Service, for monthly or annual fees (the "Fees") which you will pay to PixOasis by Paypal or authorized credit card. The Fees applicable for the Service are available at www.pixoasis.com and as published within the Service. PixOasis reserves the right to change the Fees or applicable charges and to institute new charges at any time, upon thirty (30) days prior notice to you (which may be sent by e-mail). Your Paypal account or authorized credit card will automatically be charged Fees on the day you sign up for the Service, or the expiration of the initial trial period, if any, whichever is later. Thereafter, the Fees will automatically be charged to your Paypal or authorized credit card, in advance, on the date of the month the Service was initially charged. In the event you cancel the Service, PixOasis will not refund any Fees already paid by you.
Your PixOasis account will be considered delinquent if your Paypal or credit card company refuses for any reason to pay the amount billed to it and that amount remains unpaid at the beginning of the next accounting cycle. The Service may be suspended, archived or purged from system if account is delinquent for more than one billing cycle. PixOasis may impose a charge to restore archived data from delinquent accounts.
If you believe PixOasis has billed you incorrectly, you must contact PixOasis no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to PixOasis Customer Support department (email@example.com).
PixOasis may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by PixOasis thirty (30) days after the mailing date of the invoice, or the Service may be terminated. Unpaid invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, plus all expenses of collection.
Please remember that PixOasis bills you immediately for the extra space you order. You may initially be charged a pro-rated charge for the upgrade based on the number of days left until your regular billing date. Subsequently, you will be billed for all subscription charges on the normal billing date for your account. If you choose to cancel the extra space after your card has been billed for the month, you will not be reimbursed for the days you did not use the extra space.
Special Offers, Discounts, Trial Offers, Coupons, and Credit
PixOasis reserves the right to discontinue or modify coupons, credits and special promotional offers at our discretion.
You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with the Service. In addition, without limitation, you agree not to use the Service to: (a) use information from the Service in connection with sending unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (b) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (c) transmit through or post on the Service unlawful, harassing, libelous, abusive, harassing, tortious, defamatory, threatening, harmful, abusive, libelous, invasive of another's privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (d) transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity; (e) transmit any material that contains software viruses or other harmful or deleterious computer code, files or programs such as trojan horses, worms, time bombs, cancelbots; (f) interfere with or disrupt servers or networks connected to the Service or violate the regulations, policies or procedures of such networks; (g) attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means; or (h) harass or interfere with another user's use and enjoyment of the Service.
PixOasis has no obligation to monitor the Service and/or Content or any user's use thereof or retain the content of any user session. However, PixOasis reserves the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request.
PixOasis, in its sole discretion, may terminate your password, account or use of the Service and remove and discard any Data within the Service if you fail to comply with this Agreement. You may terminate your user account upon notice to PixOasis at any time; however, you will not receive a refund of any portion of your fees paid to PixOasis. Upon termination by PixOasis or at your direction, you may request a file of your Data, which PixOasis may make available for a fee. You must make such request at the notification of termination to receive such file within (30) days of termination. Upon termination of an account, your right to use such account and the Service immediately ceases. PixOasis shall have no obligation to maintain any Data stored in your account or to forward any Data to you or any third party.
Except for the licenses granted herein, you have no right, title or interest in or to the Service or any Content. You agree that PixOasis or its licensors retain all proprietary right, title and interest, including copyright and all other intellectual property rights, in and to the Service and Content, including, without limitation, text, images, and other multimedia data. PixOasis and/or other PixOasis products and services referenced herein are either trademarks or registered trademarks of PixOasis.
You shall indemnify and hold PixOasis and its parents, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys' fees and costs) arising out of or in connection with your use of the Service (including the Content) or breach of this Agreement.
Disclaimer of Warranties
PIXOASIS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. PIXOASISE DOES NOT REPRESENT OR WARRANT THAT: (I) THE USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (IV) ERRORS OR DEFECTS WILL BE CORRECTED, (V) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY PIXOASIS.
Limitation of Liability
IN NO EVENT SHALL PIXOASIS'S AGGREGATE LIABILITY EXCEED THE AMOUNT ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL PIXOASIS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO YOUR USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, EVEN IF PIXOASIS HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BY REGISTERING WITH PIXOASIS, YOU AGREE, AT THE DISCRETION OF PIXOASIS TO HAVE ANY DISPUTE SETTLED BY ARBITRATION.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.
Local Laws and Export Control
PixOasis controls and operates this Service from its location in the United States of America and is subject to the United States Export Administration Laws and Regulations. PixOasis makes no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor is or will be used for nuclear activities, chemical biological weapons, or missile projects, unless specifically authorized by the United States Government for such purposes. You shall comply strictly with all United States export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
Modification to Terms
PixOasis reserves the right to change the terms and conditions of this Agreement or its policies relating to the Service at any time and shall notify you by posting an updated version of this Agreement on the Service and/or by sending you an e-mail message. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
This Agreement will be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. You shall bring all disputes, actions, claims, or causes of action related to this Agreement or in connection with the Service, at the discretion of PixOasis only to a forum of arbitration or binding arbitration in San Francisco, California. No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and PixOasis as a result of this agreement or use of the Service. The failure of PixOasis to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by PixOasis in writing. PixOasis has the right to assign any or all of its rights and obligations under this Agreement at any time. This Agreement comprises the entire agreement between you and PixOasis and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.