Hipstamatic terms of use

Terms

Hipstamatic Terms of Use Agreement

This Terms of Use Agreement constitutes a binding agreement between Hipstamatic, LLC ("we", "us", or "our") and each end user ("you" or "your") regarding your use of hipstamatic.com, hipstamart.com, swankolab.com, incredibooth.com, disposable.hipstamatic.com, any other website owned by us (collectively, the "Websites") and/or all applications or products (the "Products") offered by us including Hipstamatic®, Cinamatic®, Oggl®, IncrediBooth®, TinType™, DSPO™, and SwankoLab®.

By using or accessing the Websites or Products, you agree to be bound by this Agreement. If you do not agree to the terms of this Agreement, please do not use the Websites or Products, as applicable.

  • We grant you permission to use the Websites and Products, provided that: (a) your use is solely for your personal, noncommercial use; (b) you will not copy or distribute any part of the Websites or Products in any medium without our prior written consent; (c) you will not alter or modify any part of the Websites or Products other than as may be reasonably necessary to use the Websites and Products for their intended purpose; and (d) you will otherwise comply with the terms of this Agreement. We may change the terms of this Agreement from time to time with or without notice to you. However, no change to this Agreement will apply to a dispute of which we had actual notice on the date of such change. We will notify you of any changes to this Agreement by posting them on the Websites. You agree that you will periodically check the Websites for updates to this Agreement. You agree that you will be deemed to have notice of any modifications once we post them to the Websites and that your continued use of the Websites and Products after such notice shall be deemed an acceptance of any changes. We reserve the right to discontinue the Websites and Products or to change the content of the Websites and Products in any way and at any time, with or without notice to you, without liability.
  • In order to access some features of the Websites and Products, you will have to create an account. You are not allowed to use another user's account without the other user's permission. When creating your account, you must provide accurate and complete information. If any of your information changes, you agree to update your registration information as soon as possible. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You may change your password at any time by updating your account profile page. In addition, you agree to immediately notify us of any unauthorized use of your password or account or any other breach of security. We cannot and will not be liable for any loss or damage arising from your failure to comply with this paragraph. We reserve the right to terminate your access to all or part of the Websites and Products at any time in our sole discretion and without prior notice.
  • You agree not to use or launch any automated system, including without limitation, "robots," "spiders," or similar technological devices or programs that access the Websites or Products in a manner that sends more request messages to the Websites' or Products' servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, we grant the operators of public search engines permission to use spiders to copy materials from the Websites for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. We reserve the right to revoke these exceptions either generally or in specific cases, in our sole discretion.
  • Our Websites and Products may allow you to chat or participate in blogs, message boards, online forums, contests and other functionality and may provide you with the opportunity to provide us with ideas, suggestions, opinions, comments, observations, text, data, photos, graphics, video, music, sound, chat, messages, files or other material (collectively "User Submissions"). You agree that any material you provide to us, other than Personally Identifiable Information you provide to us upon creating a user account with us or that we otherwise agree is confidential in writing, will be treated as non-confidential and nonproprietary. You agree not to collect or use User Submissions or any Personally Identifiable Information, including account names or email addresses, of other end users from the Websites or Products, nor use the communication systems provided by the Websites or Products for any commercial solicitation purposes.
  • You grant to us a non-exclusive, transferable, sub-licensable, worldwide, perpetual, royalty-free license to use, in any manner whatsoever, all or any portion of your User Submissions in connection with our Websites and Products. You represent and warrant that you have the right to grant the license of your User Submissions granted in this Agreement. You are still the owner of your User Submissions and are still free to use them in any manner you choose. Notwithstanding the foregoing, when you use certain permitted features of our Websites and Products that allow us to share your User Submissions only with other users that you have selected, the foregoing license is only granted to us to the extent that we may provide those users whom you have granted rights to view your User Submissions access to view such User Submissions and we may not otherwise use such User Submissions without first obtaining your permission. Because certain features offered through our Websites and Products, including but not limited to the "Post" feature, may allow us to share your User Submissions with other users you have selected while also making those submissions available to users that you have not selected, please review all features that allow User Submissions prior to making submissions.
  • We have no obligation to monitor or enforce any intellectual property rights that may be associated with your User Submissions, however, you grant us the right to enforce such rights through any means we see fit, including bringing and controlling actions on your behalf. Unless we explicitly state in writing, we do not endorse any User Submissions, and we make no representations or warranties regarding User Submissions. You acknowledge that you will evaluate and bear any risks related to your use of any User Submissions. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. As such, your sole recourse for any damage you may suffer as a result of User Submissions shall be to pursue the originator of such User Submissions.
  • We have no obligation to accept, display, review, monitor, or maintain any User Submissions. We reserve the right to delete User Submissions from the Websites and Products without notice for any reason at any time. You acknowledge that you do not rely on us to monitor or edit the Websites and Products and that the Websites and Products may contain content which you find offensive and you hereby waive any objections you might have with respect to viewing such content.
  • The Websites and Products may contain links to third party websites and products that are not owned or controlled by us. We assume no responsibility for, the content, privacy policies, or practices of any third party websites and products. By using the Websites and Products, you specifically release us from any and all liability arising from your use of any third party website or product. 
  • The content on the Websites and Products including the text, graphics, and photos created by and for us ("Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to us, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on the Websites and Products is provided to you AS IS for your information and personal use only and may not be used for any other purpose whatsoever without the prior written consent of us or as expressly provided herein. 
  • You agree to not use any of the Content other than expressly permitted herein. If you download or print a copy of the Content for personal or other non-infringing use, you must retain all copyright and other proprietary notices contained on such Content. You agree not to circumvent, disable or otherwise interfere with security related features of the Websites and Products or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Websites and Products or the Content therein.

You agree to adhere to generally accepted rules of etiquette and standards of behavior. The following rules of conduct apply to your use of the Websites and Products and to any of your User Submissions. You may not, in connection with the Websites and Products upload, post, email or otherwise transmit any User Submission that:

  • is libelous or defamatory, pornographic, sexually explicit, unlawful or plagiarized;
  • infringes or violates any patent, copyright, trademark, trade secret or other property right;
  • breaches a duty of confidentiality by which you are bound due to a contractual or fiduciary relationship (such as inside information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
  • a reasonable person would consider harassing, abusive, threatening, harmful, vulgar, profane, obscene, excessively violent, racially, ethnically or otherwise objectionable or offensive in any way;
  • constitutes a breach of any person's privacy or publicity rights, a misrepresentation of facts, or hate speech;
  • violates or encourages others to violate any applicable law, statute, ordinance or regulation;
  • promotes software or services that deliver unsolicited e-mail;
  • contains viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful programming routines;
  • provides any telephone numbers, last names, URLs or email addresses of another person;
  • engages in commercial activities;
  • harms minors in any way;
  • solicits Personally Identifying Information from anyone under 18 years of age;
  • provides false or deceptive information;
  • deletes, adds or otherwise changes other people's entries or other Content when you have not been granted the privileges to do so; or
  • allows usage by others in such a way as to violate this Agreement.

Please report any other violations of this, including objectionable User Submissions or behavior, to copyrightinfringement@hipstamatic.com. Please state the reasons for your concern and provide a link to the User Submissions or, if appropriate, the behavior in question. Upon receiving such a report of a possible violation, we may, in our sole discretion, investigate the matter and take such action as we determine to be appropriate. If you are a copyright owner and believe that your work has been copied or posted on the Websites and Products in a way that constitutes copyright infringement, you will need to send us a written communication that includes substantially the following (please consult legal counsel or see 17 U.S.C. 512(c)(3) of the Copyright Act for further detail or to verify these requirements):

  • your physical or electronic signature or the physical or electronic signature of your agent (if authorized to act on your behalf as the owner of the copyright's exclusive right that is allegedly infringed);
  • identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works exist at one location are covered by a single notification, a single representative list of such works at that location;
  • 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 us to locate the material (providing URLs in the body of an email is the easiest way for us to locate content quickly);
  • information reasonably sufficient for us to contact you (such as address, telephone number or email address if available);
  • a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by you, your agent or the law; and
  • a statement that the information in the notification is accurate, and under penalty of perjury, that you, as the complaining party, are the owner of the copyrighted interest or authorized to act on the owner's behalf.

Such written notice should be emailed to our designated agent at copyrightinfringement@hipstamatic.com or sent by mail to us at:

DMCA Complaints
Hipstamatic, LLC
74 Langton
San Francisco, CA 94103

YOU USE THE WEBSITES AND PRODUCTS AT YOUR OWN RISK. WE ARE PROVIDING THE WEBSITES AND PRODUCTS "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT THE WEBSITES AND PRODUCTS WILL BE SAFE OR SECURE. WE ARE NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. WE WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITES AND PRODUCTS EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY ARISING FROM YOUR USE OF THE WEBSITES AND PRODUCTS WILL NOT EXCEED THE AMOUNT YOU HAVE PAID US IN THE NINETY DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. 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, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

You agree to defend us, indemnify us and hold us harmless from and against all claims and expenses, including attorneys' fees and costs, arising out of your use of the Websites and Products and/or your breach or alleged breach of this Agreement. You agree that the provisions in this paragraph will survive any termination of your accounts with us or your use of the Websites and Products. For the purposes of the disclaimers and limitation of liability in the preceding paragraph and the indemnification in this paragraph you agree that all references to us includes our managers, members, affiliates, agents and employees.

This Agreement shall be governed by and construed in accordance with the internal laws of the United States and the State of California without regard to conflict of laws provisions. You agree not to commence or prosecute any action in connection with this Agreement other than in the state and federal courts located in San Francisco County, California, 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 located in San Francisco County, California.

You acknowledge that the rights granted and obligations made hereunder to us are of a unique and irreplaceable nature, the loss of which shall irreparably harm us and which cannot be replaced by monetary damages alone so that we shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for monetary damages (if any).

To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement ("Dispute"), The parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other.

You will send your notice to:
Hipstamatic, LLC
74 Langton St.
San Francisco, CA 94103
ATTENTION: LEGAL DEPARTMENT

The parties agree that any arbitration shall be limited to the Dispute between the parties. To the full extent permitted by law, (a) no arbitration shall be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

The parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief.

Our failure to require or enforce strict performance by you of any provision of this Agreement or to exercise any right under it shall not be construed as a waiver or relinquishment of our right to assert or rely upon any such provision or right in that or any other instance.

The parties agree that if any portion of this Agreement is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of this Agreement, which shall continue to be in full force and effect.

This Agreement, and any rights and licenses granted hereunder, may not be assigned, transferred, delegated, and sublicensed by you, but may be assigned, transferred, delegated, and sublicensed by us without restriction.