Occipital Terms of Service.
1. Introduction. Please read the following terms of service (“Terms”) carefully as they contain the legal terms and conditions of the agreement (“Agreement”) that you must agree to when you register with us for or submit digital images or other content to Occipital through the Service. As used in this Agreement, “we” or “Occipital” means Occipital, Inc., and “you” means the individual submitting Content to Occipital. Any individual who wants to use the Service must accept the terms of this agreement without change. BY REGISTERING FOR OR USING THE SERVICE OR SUBMITTING ANYTHING TO OCCIPITAL, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT.
2. Definitions. As used in this Agreement, (a) “Content” means any photographs, pictures, content, text, artwork, files, programs, sound, graphics, video, data, and other similar materials, (b) “Media” means any means of conveying information, whether now known or hereafter devised and (c) “Service” means any application owned by Occipital, including but not limited to 360 Panorama (“Applications”) and any services owned by Occipital with which the Applications interoperate.
4. Registration. In consideration of your use of the Service, you represent and certify 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 jurisdictions. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (such information being the “Customer Data”) and (b) maintain and promptly update the Customer Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). To register for the Service you must be 13 years or over. Minor children under the age of 18 who wish to access the Service must obtain permission from their parents and their parents must agree to these Terms.
5. License Grants.
5.1 Content. You hereby grant to Occipital a worldwide, perpetual, irrevocable, nonexclusive, royalty-free, fully-paid up, transferable right and license, with the right to sublicense through multiple levels of sublicensees, under all of your intellectual property and other rights in the Content, to (a) reproduce, distribute, transmit, publicly perform and publicly display the Content, in whole or in part, in any manner and Media (including, without limitation, any publicly available website hosted by us), (b) modify, adapt, translate and create derivative works from the Content, in whole or in part, in any manner and Media, (c) sublicense the foregoing rights, in whole or in part, to any third party, with or without a fee and (d) exercise any and all other present or future rights in the Content.
5.2 Name, Trademarks and Likenesses. You hereby grant to Occipital a worldwide, perpetual, irrevocable, nonexclusive, royalty-free, fully-paid up, transferable right and license, with the right to sublicense through multiple levels of sublicensees, under all of your intellectual property and other rights in the Content, to use all trademarks, trade names and the names and likenesses of any individuals that appear in the Content. You grant Occipital the right to use the name that you submit in connection with the Content.
5.3 Location Capabilities. You expressly acknowledge and agree that if any Content you submit or upload in connection with the Service or the Applications has any location-based capabilities enabled, Occipital may index such Content by location and make such Content searchable and publicly visible on our site, including placing such Content on any mapping interface.
7. Moral Rights. You hereby waive and agree never to assert any claim of Moral Rights in the Content against Occipital or any of Occipital’s licensees. “Moral Rights” means any right to (a) divulge the Content to the public; (b) retract the Content from the public; (c) claim authorship of the Content; (d) object to any distortion, mutilation or other modification of the Content; or (e) any and all similar rights, existing under judicial or statutory law of any country or jurisdiction in the world, or under any treaty regardless of whether or not such right is called or generally referred to as a moral right.
8. Restrictions. You agree that you will not submit Content that is unlawful, pornographic, libelous, defamatory, tortious, obscene, or racially, ethnically or otherwise objectionable or that otherwise violates general Occipital community standards. We expressly reserve the right to remove or not make available any Content that we deem to be in violation of this Agreement, applicable laws or our community standards in our sole discretion. You agree that you will not upload, post, e-mail or otherwise transmit Content to us that contain software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
9. No Obligation. Although we have the right to include your Content in the Service or in any Media, we do not have the obligation to do so. We may, in our sole discretion and for any reason, refuse the Content or remove it from our Service at any time.
10. Representations and Warranties. You represent and warrant to Occipital that (a) you are not under 18 years old; (b) you are otherwise legally competent to enter into this Agreement; (c) you have the right, power, and authority necessary to enter into this Agreement, to fully perform your obligations hereunder, and to grant the licenses set forth in Section 4 above, (d) you will comply fully with all terms of this Agreement, (e) you are the sole authors of the Content; (f) the Content does not infringe any copyright or any other intellectual property right of any third party; (g) the Content, and Occipital’s exercise of its rights hereunder, do not and will not violate, misappropriate or infringe any intellectual property right, including but not limited to trademark rights, copyrights, moral rights and publicity rights of any third party, (h) you possess all rights necessary for the reproduction, distribution, transmission, public performance, public display, and other exploitation of the Content by Occipital as permitted hereunder, (i) the Content is not pornographic, obscene, libelous, defamatory, tortious, or otherwise unlawful, and (j) all factual statements submitted by you are accurate and not misleading.
11. Indemnity. You agree to indemnify, defend, and hold Occipital harmless from all claims, liabilities, damages and expenses (including, without limitation, reasonable attorneys’ fees and expenses) arising from your breach of this Agreement, including, without limitation, any representation or warranty set forth in Section 8.
12. Changes to Agreement. We reserve the right to change any of the terms of this Agreement or any specifications or guidelines governing the Service at any time in our sole discretion. All changes will be effective upon posting to the Service. However, for all changes to this Agreement, excluding specifications and guidelines, we will post a notice of change for thirty (30) days. You are responsible for reviewing the notice and any applicable changes. Any amendments or modifications made by us shall be retrospective and any new or modified version of this Agreement shall supersede any previous versions. YOUR CONTINUED USE OF THIS SERVICE FOLLOWING OUR POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES.
13. Occipital Intellectual Property. Without our prior written consent, you may not use our intellectual property, including, without limitation, our trademarks, trade names, trade dress, or copyrighted material, in any manner.
14. Communications. Occipital may communicate with you in connection with the Service, electronically and in other Media, and you consent to such communications regardless of any “Customer Communication Preferences” (or similar preferences or requests) you may have indicated on the web sites of Occipital or by any other means.
15. Limitation of Liability. OCCIPITAL WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF (OR KNEW OR SHOULD KNOWN OF) THE POSSIBILITY OF SUCH DAMAGES. OCCIPITAL’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $100.
16. Disclaimer. OCCIPITAL PROVIDES THE SERVICE AND THE APPLICATIONS “AS IS” WITHOUT WARRANTY OF ANY KIND AND OCCIPITAL EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. OCCIPITAL IS NOT RESPONSIBLE FOR MAINTAINING, STORING OR BACKING UP ANY OF YOUR CONTENT. OCCIPITAL SHALL HAVE NO RESPONSIBILITY FOR ANYTHING THAT RELATED TO ANY THIRD PARTY SITES, INCLUDING, WITHOUT LIMITATION, YOUR CONTENT ON ANY THIRD PARTY SITE. YOU ACCEPT ALL RISK RELATED TO ANY CONTENT THAT YOU SUBMIT TO OCCIPTIAL OR ANY THIRD PARTY.
17. Miscellaneous. The Service is limited to parties that lawfully can enter into and form contracts under applicable law. Minors may not submit Content to the Service. Further, you may not submit any personally identifiable information about any child under the age of 13. This Agreement will be governed by the laws of the United States of America and the state of Colorado, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Denver, Colorado, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and permitted assigns. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. Occipital may assign this Agreement in its discretion. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to enforce such provision or any other provision of this Agreement subsequently. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior communications and understandings between the parties. No modification of or amendment to this Agreement will be effective unless in writing and signed by the party to be charged. Notwithstanding the foregoing, this Agreement is in addition to, and does not supersede or modify, the terms and conditions of use of the web sites or services of Occipital.
18. Changes to our Terms of Service. This Terms of Service was last modified on September 9th, 2013. If we change our Terms of Service, we will update this modification date.