TERMS OF USE OF PICNADO APP AND PICNADO SYSTEM
www.picnado.pics and the Picnado App
- INTRODUCTION
The Picnado website (www.picnado.pics) and software application for mobile phones and tablet computers (Picnado App), are owned, operated and maintained by Your Style, Your Rules Pty Ltd (ACN 143 821 505) (Picnado, we and us).
- The Picnado App allows registered Users to upload photos through the App for storage in a secure online repository, to be displayed in the Photo Feed within the Picnado App and as a Slide Show on a connected screen (which is present at a Picnado that the User is registered for, but at which the User may or may not be present). Any person creating a Picnado within the app is able to have control over the uploading and display of those photos. Upon your acceptance of the Terms of Use, Picnado will provide you with access to the Picnado App and its functionality.
- Please read these terms and conditions of use (Terms of Use) carefully. By accessing, registering for and/or using the Picnado App, you agree to be bound by these Terms of Use.
- Picnado may, in its sole discretion, modify, vary, amend or revise these Terms of Use at any time without prior notification and you agree to be bound by those varied Terms of Use by continuing to use the Picnado App. While Picnado will endeavour to notify you of any major changes to these Terms of Use from time to time, it is your responsibility to review the Picnado website and the Picnado App for updates which shall come into effect once posted.
- USERS’ USE OF THE PICNADO APP
- A person must be at least 13 years old (or such greater age if required in the country in which the Picnado App is downloaded or where the Venue is located) to be a User or to otherwise access and/or use the Picnado App. If you are not at least 13 years old or are not of the legally required age in the country in which the Picnado App is downloaded or where the Venue is located, then you may not be a User or access and/or use the Picnado App.
- By agreeing to these Terms of Use, you agree that any Content you upload through the Picnado App may be shown in the Photo Feed and in the Slide Show and be seen by all other Users connected to the same Picnado. At the Picnado Owner’s discretion, Content uploaded to the Picnado App can be downloaded by all other Users connected to the same Picnado.
- We have made the Picnado App available to you for your own personal, non-commercial use. We grant you a non-exclusive, non-transferrable, non-sublicensable and revocable licence to use the Picnado App subject to these Terms of Use. We may modify, withdraw or deny access to the Picnado App or any part of the Picnado App at any time in relation to a User or Picnado Owner who breaches any of these Terms of Use.
- A User:
- represents and warrants that:
- he/she is the owner of the Intellectual Property Rights in the Content, or that he/she has the permission of the owner of the Intellectual Property Rights to upload the Content in accordance with these Terms of Use;
- he/she has the authorisation, permission or consent of each person appearing in any Content for them to appear in the Content and for you to make the Content available through the Picnado App and otherwise grant the rights to Picnado that you grant under these Terms of Use;
- the Content or any part of it, or any material appearing in the Content, does not infringe any Intellectual Property Rights of any third party; and
- any Content uploaded by that User does not contain any material which is offensive, defamatory, discriminatory, pornographic, contains images of nude or partially nude person/s, is sexually suggestive, depicts or promotes violence, is abusive, obscene or is otherwise illegal in the jurisdiction in which the Picnado takes place;
- will only upload Content in the spirit of the occasion and not use the opportunity to upload Content which will or is likely to, or which is designed to, humiliate, embarrass or harass any other person (whether living or deceased), either at the Event or not;
- may request that the Picnado Owner removes from the Picnado App (including the Photo Feed and Slide Show):
- any Content which includes, makes reference to or shows, a User, which has been uploaded without that User’s consent;
- any Content which include a minor or another person for whom the User has responsibility; or
- any Content which that User considers otherwise breaches these Terms of Use;
- may choose to agree to grant the Picnado App access to the camera of his/her mobile device on which the Picnado App is stored for the purpose of the User capturing Content and uploading it to the Picnado;
- may choose to grant the Picnado App access to the User’s photo album(s) stored on their phone or tablet device for the purpose of the User editing and uploading Content from those albums to the Picnado;
- may choose to agree to grant the Picnado App access to their device’s location.
- A User must not, and must not attempt to:
- rent, lease, lend, sell, redistribute or sub-license the Picnado App;
- use the Picnado App in any way that causes, or is likely to cause, the Picnado App or access to it to be interrupted, damaged, rendered less efficient or in a way that impairs the effectiveness or functionality of the Picnado App;
- either manually or through use of any technology including, but not limited to, crawlers and spiders, search the Picnado App or engage in screen scraping, database scraping or any other activity with the purpose of obtaining information from the Picnado App including, but not limited to, personal information about third parties;
- reverse engineer, decompile, disassemble, modify, translate, or otherwise uncover the source code of any software forming part of the Picnado App;
- capture or copy any software on the Picnado App for any reason whatsoever without the written permission of Picnado (technical copies for facilitating a technical computing process excepted, but only as permitted, and to the extent permitted, under the copyright legislation applicable in the country in which the Picnado App is downloaded or where the Venue is located)
- hack, infiltrate or otherwise do any thing which may compromise the Picnado App;
- cause us to lose (in whole or in part) the services of our suppliers;
- introduce any computer viruses, macro viruses, trojan horses, worms or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a phone or tablet device or to surreptitiously intercept, access without authority or expropriate any system, data or personal information;
- prevent or restrict us from complying with any applicable industry code or Court order; or
- use the Picnado App for any improper or unlawful purpose, causing a nuisance or causing the operation of the Picnado App to be jeopardised or impaired.
- Where the Picnado App has been downloaded onto a device manufactured by or on behalf of Apple Inc., the terms of Apple Inc.'s "Licensed Application End User Licence Agreement" as in force at the date of downloading the Picnado App (Apple EULA) are expressly incorporated into these Terms of Use, except where such terms are inconsistent with these Terms of Use. In the event of any inconsistency between these Terms of Use and the Apple EULA, the provisions of these Terms of Use shall prevail.
- If you select your own, or are allocated, a security code (including an Picnado Code), password or any other information as part of creating your profile or complying with the Picnado App security procedures, then you agree and undertake to keep all such information confidential and not to disclose such information to any other person or permit any other person to access or use the Picnado App using your information.
- Before using the Picnado App, you will need to enter personal information about yourself which will be saved under your Picnado App account (Profile). Once you have created your Profile, you can begin using the Picnado App.
- You warrant that the information you provide on the Picnado App is true and correct. If any of the information changes, you must update the information within the Picnado App as soon as reasonably practicable.
- You acknowledge and agree that the Picnado Owner will have control over the Content which is uploaded to the Picnado App by You and that the Picnado Owner may, in his, her or its absolute discretion, modify or remove that Content from the Picnado App (including the Photo Feed and the Slide Show), and may permanently and irretrievably delete that Content
- BREACH OF THESE TERMS OF USE
- Picnado may, in its absolute discretion, restrict, suspend or terminate a User’s access to the Picnado App, or delete any Content uploaded by a User to the Picnado App, if:
- that User is in breach any term or condition in these Terms of Use;
- in Picnado’s sole opinion, that User’s ongoing use of the Picnado App will bring, or may bring, the reputation of Picnado into disrepute; or
- the Content is of a kind mentioned in clause 2.4(c).
- A User who has their account terminated for a breach of the Terms of Use must not create another account on the Picnado App without Picnado’s permission.
- A Picnado Owner’s right to deal with the Picnado App or Content is set out in clauses 6.10 and 6.11.
- INTELLECTUAL PROPERTY RIGHTS
- You grant a non-exclusive, royalty-free, worldwide, transferrable, sub-licensable, irrevocable and perpetual licence to Picnado to any Content uploaded by you using the Picnado App in order for Picnado to:
- use and reproduce any Content to make a DVD or similar record which comprises any Content and to distribute that DVD or similar record to the Picnado Owner of that Picnado; and
- promote, market or advertise Picnado's business including, without limitation, by uploading Content to Picnado’s website and any social media sites, including the right to edit that Content as Picnado sees fit, as long as any editing of such Content does not contravene any provision of these Terms of Use.
- You grant a non-exclusive, royalty-free, worldwide, non-transferrable and irrevocable licence to the Picnado Owner to any Content uploaded by you to that Picnado Owner's Picnado using the Picnado App solely for the following purposes:
- to use and reproduce any Content to make a DVD or similar record and to distribute that DVD or similar record to any person, irrespective of whether they were an invited User to that Picnado;
- to use and reproduce any Content on social media sites;
- to keep a copy of the Content for the purpose of doing either of the preceding things,
for private and domestic purposes or, if the Picnado Owner is operating a business and the Picnado was held in connection with that business, for the purposes of promoting, marketing or advertising that business.
- You acknowledge and agree that all rights and all material comprised in the Picnado App (including, but not limited to, Intellectual Property Rights, text, images, web pages, sound, software (including, code, interface and website structure) and video, and the look and feel, design and compilation thereof) (Picnado Content), are owned by Picnado or licensed to us by third parties.
- You acknowledge and agree that you are permitted to use the Picnado Content only as set out in these Terms of Use or as otherwise expressly authorised in writing by Picnado, and that you may not otherwise copy, reproduce, transmit, publicly perform, communicate, distribute, commercially exploit, adapt, translate, modify, bundle, merge, share or make available to any person, or create derivative works of the Picnado Content.
- You hereby consent to all acts or omissions by Picnado, its licensees, Picnado Owners or others authorised by Picnado, which would otherwise constitute an infringement of any moral rights you have, or may have, in any Content you upload to the Picnado App. You acknowledge that such consent is provided genuinely and includes consent for Picnado, or a Picnado Owner, or anyone else authorised by Picnado or the Picnado Owner, to materially alter, modify, add to and in any way change the Content and deal with the Content or any material appearing in the Content, without identifying you or any third person as the author of the Content or any material appearing in the Content. You represent and warrant that any third party who has any moral rights in the Content, or any material appearing in the Content, has also waived his or her moral rights or consented to all acts or omissions (as applicable) on terms similar to the terms set out in these Terms of Use.
- YOUR DEVICES
- You must have an internet connection to your mobile or tablet device to access and use the Picnado App as it is intended to be used. It is your sole responsibility to ensure that the internet connection remains accessible at all material times and in a condition suitable for Picnado to deliver the Services. You will pay all access, download and upload charges associated with the internet connection. You agree that you have no claim against Picnado in relation to any costs incurred by you in using the internet connection to provide you with the Services pursuant to these Terms of Use.
- You acknowledge and agree that Picnado is not liable for any loss or damage suffered by you or any third party caused by a failure due to any reason connected with the internet connection to your mobile or tablet device. You expressly acknowledge that the Services provided via the internet connection to your mobile or tablet device are subject to any limits imposed by your internet service provider (including, without limitation, connection speed or download limits) and the time taken for your device to communicate with Picnado's systems.
- Notwithstanding anything expressed to the contrary in this Agreement, Picnado is not liable for any loss of data incurred as a result of your mobile or tablet device accessing Picnado's systems. In particular, you acknowledge and agree that Picnado makes no representations whatsoever in respect of Picnado's system, including the Picnado App, being complete, uncorrupted, error-free, readable or otherwise usable.
- Picnado ensures regular malware scans occur in respect of the Picnado App and its website has an SSL Certificate. Despite this, Picnado does not represent or warrant that the Picnado App will be free from any malware or virus.
- PICNADO OWNER’S USE OF THE PICNADO APP
- A Picnado Owner may only use the Picnado App for legal, authorised and acceptable purposes.
- Payment and Subscriptions
- A Picnado Owner may use the Picnado App and related services by registering for an auto-renewing Picnado subscription service through their Apple iTunes Account.
- Picnado offers a subscription marketed as “Picnado Premium” as an in-app purchase.
- In-app purchases are purchased from and billed by Apple iTunes, not from Picnado. Such purchases are subject to the terms and conditions of Apple iTunes. All billing and refund enquiries must be directed to Apple iTunes. Picnado does not have access to Apple iTunes’ accounts or transactions. The “Picnado Premium” subscription purchase is rebilled every 30 days year-round by Apple iTunes until cancelled by the User. Apple iTunes subscriptions can be managed from a mobile device or computer that uses the same Apple ID as the initial purchase. Picnado cannot manage Apple iTunes subscriptions.
- Payment will be charged to the Users’ iTunes Account at confirmation of the purchase. Subscriptions automatically renew unless auto-renew is turned off at least 24 hours prior to the end of the current monthly period. Account will be charged for renewal within 24 hours prior to the end of the current period at the rate of the selected plan.
- The length of a subscription period will be for 30 days and the fee is $4.99 for each period.
- A subscription entitles the purchaser to create an unlimited number of Picnados, access to the Slide Show for those Picnados, to appoint administrators to manage the Picnado and Slide Show, to delete photos, to enable or disable User access, to invite persons of their choosing and to use the notifications to invite and update them, to perform a download of all photos for any Picnado they have purchased and to have access to a second set of stickers which are updated from time to time.
- A subscription entitles the purchaser to join other Picnados when invited to do so, and to download any photos of that event, providing the purchaser of the event has given permission to do so within the app.
- A purchaser shall remain eligible to use the service for the duration of the current period. All photos associated with any purchaser created Picnados, may be deleted once the subscription cancellation is effected.
- Information regarding the available subscription options (Subscription) (including the length of subscription (Subscription Period)) will also be available from within the Picnado App. Picnado may update and vary that information from time to time in its absolute discretion.
- Subject to any relevant provisions of the Competition and Consumer Act 2010 (Cth), or unless otherwise provided for by Picnado, where a Fee has been paid in relation to a Subscription, and the Subscription is cancelled before the end of the Subscription Period, Picnado is not obliged to refund the Fee or any part of the Fee and may refund all or part of the Fee in its sole discretion.
- Picnado will provide a Picnado Owner with an Picnado Code in respect of each Picnado, subject to these Terms of Use.
- Picnado Owners may assign Administrator profiles to Users of their choosing to assist with administration of a Picnado.
- The Picnado Owner may choose to provide the Picnado Code to their Users in any way including face to face, SMS and notifications within the Picnado App.
- A Picnado Owner must only provide the Picnado Code to Users who they wish to participate in a Picnado and a Picnado Owner is wholly responsible for the distribution of the Picnado Code to Users. Picnado accepts no responsibility for any loss or damage, without limitation, where the Picnado Code is shared by any person (including any Picnado Owner or User) to third parties who were not intended to be provided the Picnado Code.
- A Picnado Owner must, as soon as reasonably practicable after he/she becomes aware that Content posted by a User is in breach of these Terms of Use, delete that Content and (if applicable) remove it from the Photo Feed or Slide Show.
- An Picnado Owner has the right to:
- edit Content in accordance with these Terms of Use;
- delete Content which he/she considers would be in breach of these Terms of Use from the Picnado App;
- delete Content that a User has reasonably requested be deleted (including if in accordance with clause 2.4(c));
- remove a User’s access to the Picnado;
- restrict, suspend or terminate a User’s access to the Picnado App where that User is in breach of these Terms of Use.
- THIRD PARTY SITES
- The Picnado App may contain links to other websites or resources operated by, or content provided by, parties other than Picnado. References to any products, services, processes, trade names, trade marks or other information of third parties does not represent, imply or constitute an endorsement, sponsorship, association with or recommendation by Picnado. Links to third party websites not operated by Picnado are provided to you for your convenience and/or reference only. You acknowledge and agree that Picnado does not control such websites and Picnado is not responsible for the content on those sites or the privacy of other practices of such websites. You further acknowledge and agree that Picnado shall not be responsible or liable, directly or indirectly, for any damage, loss or cost whatsoever caused or alleged to be caused by or in connection with use of or reliance on any such websites or the contents, goods or services available on or through any such website.
- LIABILITY
- Competition and Consumer Act
Statutory consumer protection laws (including but not limited to the Competition and Consumer Act 2010 (Cth)) may provide you with rights which cannot be excluded, restricted, limited or modified. The following exclusions and limitation of liability apply subject to any rights you may have under such laws.
- The Picnado App
- Use of the Picnado App is at your own risk. It is provided on an “as is” basis, and Picnado makes no representation, and gives no warranty or guarantee (to the extent permitted by law), as to its availability, function or operation, that it is free from any defects or as to the accuracy of the Picnado Content.
- Picnado does not represent or warrant that your access to the Picnado App will meet your requirements or be uninterrupted, timely or free from error.
- You acknowledge and agree that installation of the Picnado App may affect the operation of third party software on your mobile or tablet device.
- Picnado will store Content that you upload through the Picnado App on a secure storage site which will only be directly accessible by Picnado and its representatives and agents. However, Picnado does not accept responsibility for misuse of or loss of, or unauthorised access to, any Content which has been uploaded onto the secure storage site, and where the security of that Content is not within Picnado’s control.
- Exclusions and limitation of liability
- Without limiting the above, and to the extent permitted at law, all express or implied representations, conditions, warranties, guarantees or other provisions are expressly excluded, including any representations, conditions, warranties or guarantees as to acceptable quality, fitness for purpose or timeliness.
- If any condition, warranty, guarantee or other provision is implied or imposed in relation to Picnado's provision of the Picnado App or the Services (whether based in legislation, the common law or otherwise) which, or the effect of which, cannot be excluded or modified, and if we breach such term, condition, warranty or guarantee, then Picnado's liability (if permitted by the relevant Act) is limited, at Picnado's election to, in respect of any goods supplied by Picnado:
- the replacement of any such goods or equivalent goods;
- the cost of replacing any such goods or acquiring equivalent goods;
- repair of any such goods; or
- the cost of having any such goods repaired; and
in respect of any services supplied by Picnado:
- supplying such services again; or
- paying the cost of having such services supplied again.
- Subject to clause 8.1 and 8.3 above, and to the extent permitted by law:
- the maximum aggregate liability of Picnado for all claims (whether in contract, tort including negligence, in equity, pursuant to statute, under an indemnity or otherwise) arising under or in relation to these Terms of Use, or otherwise in any way in connection with your access to and use of the Picnado App or the provision of the Services shall not exceed a sum equal to the total payment paid by the Picnado Owner to Picnado pursuant to these Terms of Use as at the date the liability arose; and
- in no event is Picnado liable (whether in contract, tort including negligence, in equity, pursuant to statute, under an indemnity or otherwise) to you for any indirect, special or consequential loss or damage or for any loss of goodwill, opportunities, anticipated savings or profits suffered or incurred by you and arising under or in relation to these Terms of Use, or otherwise in any way in connection with your access to and use of the Picnado App.
- Indemnification
You must, to the maximum extent permitted by law, release, indemnify and keep indemnified Picnado and its related bodies corporate (as that term is defined in the Corporations Act, 2001 (Cth)) and each of their respective directors, officers, employees and agents (those indemnified) from and against any demand, claim, action or proceeding made or brought by or against any of those indemnified, howsoever arising and all losses, liabilities, costs, expenses or damage (including investigative costs, court costs, legal fees, penalties, fines and interest) arising directly or indirectly from:
- any breach by you of the terms and conditions set out in these Terms of Use; or
- any claim made by a third party for infringement of any Intellectual Property Rights in or to any Content.
- NON-DISPARAGEMENT
- You must not disparage us or do anything that would or may adversely affect our goodwill and reputation in and in relation to the Picnado App or otherwise bring us or our goodwill or reputation into disrepute.
- USER PRIVACY
- By agreeing to these Terms of Use and registering with the Picnado App, you agree you have read and understood our Privacy Policy.
- ENTIRE AGREEMENT
- These Terms of Use (and any terms incorporated by reference) constitute the entire agreement and understanding between the parties with respect to its subject matter and supersede all prior or contemporaneous oral or written agreements, undertakings, or representations between the parties concerning such subject matter.
- SEVERABILITY
- If any provision of these Terms of Use is void, voidable, unenforceable or illegal, that provision will be read down so as to be valid and enforceable or, alternatively, will be severed from these Terms of Use. The severance of any provision in accordance with this clause will not affect the validity or effectiveness of the remaining provisions of these Terms of Use.
- GOVERNING LAW
- The interpretation, construction and effect of these Terms of Use shall be governed and construed in all respects in accordance with the laws of the State of Victoria, Australia and the parties submit to the jurisdiction of the Courts exercising jurisdiction in that State.
- CONTACT
- If you have any questions about your use of the Picnado App or these Terms of Use, if you have any objections or complaints about any content or material appearing on the Picnado App, or if you believe that content or material posted on or through the Picnado App infringes your copyright, please contact us immediately at support@picnado.pics
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