PhotoWall Terms of Use Agreement   Revision 7-1-2009 
 

PHOTOWALL IS A FAMILY-FRIENDLY SITE AND ALL CONTENT IS SUBJECT TO FILTERING FOR APPROPRIATENESS.  ANY CONTENT MAY BE REMOVED AND ANY USER BANNED FROM UPLOADING CONTENT AT THE SOLE DISCRETION OF PHOTOWALL. 
 

Welcome to PhotoWall, a mobile social utility that connects you with the world around you.  The PhotoWall service and application (collectively “PhotoWall” or “the Service”) are operated by AirMe, Inc. and its corporate affiliates (collectively, “us”, “we”, or “the Company”).  The Services offered by PhotoWall include the PhotoWall Network (PhotoWall.com website including any PhotoWall country domain specifically operated by PhotoWall, Inc. – i.e., PhotoWall.in, PhotoWall.co.uk), the mobile device application and any other features, content, or applications offered from time to time by AirMe Inc., in connection with the PhotoWall application (collectively, the “PhotoWall Services”).  By accessing or using our websites or the mobile versions thereof (together the “Site”) you (the “User”) signify that you have read, understand and agree to be bound by these Terms of Use (“Terms of Use” or “Agreement”), whether or not you are a subscriber or registered member of PhotoWall.  We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without further notice.  If we do this, we will post the changes to these Terms of Use on this page and will indicate at the top of this page the date these terms were last revised.  Your continued use of the Service or the Site after any such changes constitutes your acceptance of the new Terms of Use.  If you do not agree to abide by these or any future Terms of Use, do not use or access (or continue to use or access) the Service or the Site.  It is your responsibility to regularly check the Site to determine if there have been changes to these Terms of Use and to review such changes. 

This Agreement sets forth the legally binding terms for your use of the PhotoWall Services.  By using the PhotoWall Services, you agree to be bound by this Agreement, whether you are a “Visitor” (which means that you simply browse the PhotoWall site) or you are a “Subscriber” (which means that you have subscribed to the PhotoWall Services).  The term “User” refers to a Visitor or Subscriber.   This Agreement includes PhotoWall’s policy for acceptable use of the PhotoWall Services, your rights, obligations and restrictions regarding your use of the PhotoWall Services.  The PhotoWall website may contain links to third party websites that are not owned or controlled by PhotoWall.  PhotoWall has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites.  The PhotoWall application may allow you to transmit photos or video to other third party sites that are not owned or controlled by PhotoWall.  PhotoWall has no control over, and assumes no responsibility for, the content privacy policies, or practices of any third party sites or websites. In addition PhotoWall will not and cannot censor or edit the content of any third-party site.  By using the PhotoWall Service, you expressly relieve PhotoWall from any and all liability arising from your use of any third-party website. 
 

In consideration of your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction.  You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”), (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete, (c) maintain the security of your password and identification, and (d) be fully responsible for all use of your account and for any actions that take place using your account.  If you provide any information that is untrue, inaccurate, not current or incomplete, or PhotoWall has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, PhotoWall has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). 
 
 
 

User Content Posted on the Site 

You represent and warrant that: (i) you own the Content posted by you on or through the PhotoWall Site or Services or otherwise have the right to grant the license set forth in this section, and (ii) the posting of your Content on or through the PhotoWall Site or Services  does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person.  You agree to pay for all royalties, fees and any other monies owing any person by reason of any Content posted by you to or through the PhotoWall Site or Services 

You are solely responsible for the videos, photos, profiles (including your name, image, and likeness), messages, notes, text, information, music, video, advertisements, listings, and other content that you upload, publish or display (hereinafter, “post”) on or through the Service or the Site, or transmit to or share with other users (collectively the “User Content”).  You are also solely responsible for categorizing your Content as Public or Private.  The Company is not responsible or liable in any manner for content that is mis-catagorized by the User.  You may not post, transmit or share User Content on the Site or Service that you did not create or that you do not have permission to post.  You understand and agree that the Company may, but is not obligated to, review the Site and may delete or remove (without notice) any Site Content or User Content in its sole discretion, for any reason or no reason, including User Content that in the sole judgment of the Company violates this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others.  You are solely responsible at your sole cost and expense for creating backup copies and replacing any User Content you post or store on the Site or provide to the Company. 

When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site..  You may remove your User Content from the Site at any time.  If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of you User Content.  PhotoWall does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content.  

PhotoWall Visibility 

The PhotoWall Network is a public website owned and operated by AirMe Inc..  PhotoWall mobile users have the option of designating whether their photos and videos (together “Content”) should go to the Public, My Network or Private sections of PhotoWall..  Content sent to the Public may be displayed for public viewing.  Content may be tagged either by auto tagging methods, or by manual tagging methods.  Once Content is designated as Public, it is available for public viewing and may be filtered into appropriate PhotoWall Channels.  By selecting Public, My Network or Private on your mobile device, you agree to these specific terms as well as all other terms of the PhotoWall Terms of Use Agreement.  Content visibility selection is the sole responsibility of the User. 
 

PhotoWall Mobile Services 

The Service includes certain services that are available via your mobile phone, including (a) the ability to upload content to PhotoWall or other destinations via your mobile phone, (b) the ability to receive and reply to PhotoWall messages and Content, (c) the ability to browse other websites, and (d) the ability to access certain PhotoWall features through a mobile application you have downloaded and installed on your mobile phone (collectively the “Mobile Services”).  Subscribing to or using the PhotoWall Service  may generate usage fees by your Carrier.  You are responsible for all of your carrier’s normal messaging, data and other rates and fees for these Mobile Services.  You should check with your carrier to find out what plans are available and how much they cost.  In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services are available for your mobile devices and what restrictions, if any, may be applicable to your use of such Mobile Services.  By using the Mobile Services, you agree that we may communicate with you regarding PhotoWall and other entities or advertisers by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. 

Copyright Complaints 

We respect the intellectual property rights of others and we prohibit users from uploading, posting or otherwise transmitting on the PhotoWall Site or Service any materials that violate another party’s intellectual property rights.  When we receive proper Notification of Alleged Copyright Infringement, we promptly remove or disable access to the allegedly infringing material and terminate the accounts of infringers as described herein in accordance with the Digital Millennium Copyright Act.   

Third Party Websites and Content 

The Site contains (or you may be sent through the Site or the Service) links to other web sites (“Third Party Sites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the “Third Party Applications, Software or Content”).  Such Third Party Sites and Third Party Applications, Software of Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites accessed through the Site or any Third Party Applications, Software or Content posted on, available through or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content.  Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by us.  If you decide to leave the Site and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern.  You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site or relating to any applications you sue or install from the site. 

User Disputes 

You are solely responsible for your interactions with other PhotoWall users.  We reserve the right, but have no obligation, to monitor disputes between you and other users. 

Disclaimers 

The Company is not responsible or liable in any manner for an User Content or Third Party Applications, Software or Content posted on the Site or in connection with the Service, whether posted or caused by users of the Site, by PhotoWall , by third parties or by any of the equipment or programming associated with or utilized in the Site or the Service.  Although we provide rules for user conduct and postings, we do not control and are not responsible for what users post, transmit or share on the Site and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on the Site or in connection with any User Content or Third Party Applications, Software or Content.  The Company is not responsible for the conduct, whether online or offline, of any user of the Site or Service. 

The Site and the Service may be temporarily unavailable from time to time for maintenance or other reasons.  Company assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications.   The Company is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any Site or combination thereof, including injury or damage to User’s or to any other person’s computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Service, including any Mobile Client software.  Under no circumstances will the Company be responsible for any loss or damage, including any loss or damage to any User Content or personal injury or death, resulting from anyone’s use of the Site or the Service, any User Content or Third Party Applications, Software or Content posted on or through the Site or the Service or transmitted to Users, or any interactions between users of the Site, whether online or offline. 

THE SITE, THE SERVICE (INCLUDING THE MOBILE SERVICES), ANY PLATFORM APPLICATIONS AND THE SITE CONTENT ARE PROVIDED “AS-IS” AND THE COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.  THE COMPANY CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SITE AND/OR THE SERVICE AND/OR ANY PLATFORM APPLICATIONS.  COMPANY DOES NOT REPRESENT OR WARRANT THAT SOFTWARE, CONTENT OR MATERIALS ON THE SITE, THE SERVICE, OR ANY PLATFORM APPLICATIONS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SITE OR SERVICE ITS SERVDERS, OR ANY PLATFORM APPLICATIONS ARE FREE OFVIRUSES OR OTHER HARMFUL COMPONENTS.  THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH SOFTWARE, CONTENT OR MATERIALS AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES.  WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT, MATERIAL, DATA OR SOFTWARE (INCLUDING ANY MOBILE CLIENT) FROM OR THROUGH THE SERVICE AND ANY PLATFORM APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT. 

The Company reserves the right to change any and all content, software and other items used or contained in the Site and any Services and Platform Applications offered through the Site at any time without notice.  Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, and supplier or otherwise does not constitute or imply endorsements, sponsorship or recommendation thereof, or any affiliation therewith, by Company. 

Limitation on Liability 

IN NO EVENT WILL COMPANY OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFIT OR LOST DATA ARRISING FROM THE USE OF THE SITE OR THE SERVICE, ANY PLATFORM APPLICATIONS OR ANY OF THE SITE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE SITE, EVEN IF THE COMPANY IS AWARE OF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE SERVICE DURING THE TERM OF MEMBERSHIP, BUT IN NO CASE WILL THE COMPANY’S LIABILITY TO YOU EXCEED $100.  YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO COMPANY FOR THE SERVICE, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM COMPANY, REGARDLESS OF THE CAUSE OF ACTION 

Termination 

The Company may terminate your subscription or access to the Site or Service, delete your profile and any content or information that you have posted on the Site or through any Platform Application and/or prohibit you from using or accessing the Service or the Site or any Platform Application (in any portion, aspect or feature of the Service or the Site or any Platform Application) for any reason, or no reason, at any time in its sole discretion, with or without notice, including if it believes that your are under 13.  When we are notified that a user has died, we will generally, but are not obligated to, keep the user’s account active under a memorialized status for a period of time determined by us to allow other users to post and view comments. 

Governing Law; Venue and Jurisdiction

By visiting or using the Site and/or the Service, you agree that the laws of the State of Colorado, without regard to principles of conflict of laws, will govern these Terms of Use and any dispute of any sort that might arise between you and the Company or any of our affiliates.  With respect to any disputes or claims not subject to arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts of Colorado, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of Colorado. 

Arbitration 

YOU AND THE COMPANY AGREE THAT, EXCEPT AS MAY OTHERWISE BE PROVIDED IN REGARD TO SPECIFIC SERVICES ON THE SITE IN ANY SPECIFIC TERMS APPLICABLE TO THOSE SERVICES, THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS OF USE, THE SITE AND/OR THE SERVICE (INCLUDING YOUR VISIT TO OR USE OF THE SITE AND/OR THE SERVICE) SHALL BE FINAL AND BINDING ARBITRATION, except that: (a) to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s patent, copyright, trademark, or trade secret rites, or you have otherwise violated any of the use conduct rules set forth above, then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought; and (b) no disputes or claims relating to any transactions you enter into with a third party through the PhotoWall site or Service may be arbitrated. 

Arbitration under this Agreement shall be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA’s Supplementary Procedures for Consumer Related Disputes (the “AAA Consumer Rules”) (collectively the “AAA Rules”).  The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes).  If such costs are determined to be excessive in a consumer dispute, the Company will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable.  The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. 

To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEDINGS SHALL BE PROMITTED.  In no event shall any claim, action or proceeding by you related in any way to the Site and/or the Service (including your visit to or use of the Site and/or the Service) be instituted more then three (3) years after the cause of action arose. 

Indemnity 

You agree to indemnify and hold the Company, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with any User Content, any Third Party Applications, Software or Content you post or share on or through the Site, your use of the Service or the Site, your conduct in connection with the Service or the Site or with other users of the Service or the Site, or any violation of this Agreement or of any law or the rights or any third party. 

Submissions 

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Service (“Submissions”), provided by you to the Company are non-confidential and shall become the sole property of Company.  Company shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. 

Other 

These Terms of Use constitute the entire agreement between you and Company regarding the use of the Site and/or the Service, superseding any prior agreements between you and Company relating to your use of the Site or the Service.  The failure of Company to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision in that or any other instance.  If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect.  If any provision of these Terms of Use shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.