plasq LLC
Terms of Service
plasq’s Skitch.com works hand-in-hand with Skitch. One click, and you are uploading, sharing and collaborating online. You can display the images you have uploaded on your personal sites and blogs, or social websites such as Myspace or Facebook. Skitch.com also allows comments to be left on images which is great for getting feedback on projects you are working on, or just for fun.. The following Terms of Service apply to use of the Skitch.com web site http://Skitch.com (the “Website”), the Skitch products (“Products”) and the Skitch.com suite of web facilities (the “Web Facilities”, and together with the Website and the Products, the “Skitch.com Facilities”) operated, developed or made available by and through plasq LLC (“plasq”).
1. Contract Formation.
A. By registering, accessing or using the Skitch.com Facilities you are bound by the terms and conditions set forth in this plasq Terms of Service, as altered and amended from time to time. These Terms of Service (sometimes herein referred to as the “Agreement”), as altered and amended from time to time as provided herein, constitute a valid and binding agreement between you and plasq.
B. This Agreement covers all use of the Website, Products and Service, the content, features and services provided and made available through the Skitch.com Facilities, and any new, updated or revised versions thereof. A separate End User License Agreement must be obtained in connection with use of Skitch Software products.
C. By accessing or using the Skitch.com Facilities you agree to be bound by the terms and conditions set forth in the plasq Privacy Policy, as altered and amended and in effect from time to time.
D. The Terms of Service in effect at the time of your access and use of the Skitch.com Facilities may be accessed at http://Skitch.com/ToS. The plasq Privacy Policy in effect at the time of your access and use of the Skitch.com Facilities may be accessed at http://Skitch.com/privacy.
2. Qualifications for Use of Facilities.
A. If you are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age, and you are is such a jurisdiction and under such age limit, you may not enter into this Agreement or use the Skitch.com Facilities. By using the Skitch.com Facilities you are representing that you are qualified to use the Skitch.com Facilities.
B. The use of the Skitch.com Facilities may be subject to restrictions imposed by local law or regulation. If you are residing in a jurisdiction where it is forbidden by law to offer or use software for internet communication, you may not enter into this Agreement and you may not use the Skitch.com Facilities. By using the Skitch.com Facilities you are representing that you have complied with all local laws and regulations.
3. User Obligations and Responsibility.
A. You agree to be responsible for any and all activity in connection with, or effected by the use of, your name, password, screen name or other online identification characteristics (“User Identification”).
B. plasq cannot and does not assume responsibility for policing the use of the Skitch.com Facilities by hackers, imposters, or other persons or “bots” who gain access to the Skitch.com Facilities through, as a result of, or in consequence of, your User Identification.
C. You are responsible for keeping your User Identification secure.
D. You are obligated to comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, now in effect or later coming into effect, regarding online conduct and accessible content.
E. You are solely responsible for any and all conduct in entering, altering, modifying, sending or retrieving data, text information, screen names, graphics, photos, profiles, audiovisual clips, links or other materials (“Content”) submitted, posted, displayed, transmitted or shared using your User Identification.
1. plasq does not claim ownership of any Content you submit, post, transmit or share using Skitch.com Facilities.
2. By submitting, posting, transmitting or sharing Content you grant to plasq a non-exclusive, royalty-free, transferable, worldwide right and license to use, copy, modify, prepare derivative works from, distribute, publicly display and publicly perform and process content through Skitch.com Facilities, including but not limited to, adapting the format for suitable display, displaying the content in search results, or posting a link to Content you have designated as public.
F. You agree to indemnify, hold harmless and defend plasq and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents and network service providers, against any and all damages, claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, plasq expenses, reasonable attorneys' fees and other dispute resolution expenses) incurred by plasq arising out of or relating to your:
1. violation or breach of any term of this Agreement or any applicable law or regulation;
2. use or misuse of the Skitch.com Facilities;
3. your violation of any rights of any third party, including but not limited to Intellectual Property Rights. For the purposes of this Agreement, Intellectual Property Rights includes, but is not limited to, any right or protection existing from time to time in a specific jurisdiction, whether registered or not, under any patent law or other invention or discovery law, copyright law, publicity, performance or moral rights law, trade secret law, confidential information law, right of privacy, industrial design law, trademark law, unfair competition or trade practices law, or other similar laws, and includes judicial decisions under common law or equity.
G. You may not use Skitch.com Facilities to harass, threaten, impersonate or intimidate other users of the Skitch.com Facilities, or third parties.
H. You may not use Skitch.com Facilities to perform any illegal or unauthorized act, or for any illegal or unauthorized purpose.
I. You may not sell, assign, rent, lease, act as an intermediary, service bureau, provider or otherwise purpose to grant access to or rights in or to the Skitch.com Facilities.
J. You may not modify, adapt or hack the Skitch.com Facilities, or modify any website so as to falsely imply that you or the website are affiliated or associated with plasq or the Skitch.com Facilities.
K. You agree that you will not:
1. utilize the Skitch.com Facilities in a manner that violates any applicable local, state, national or international law or governmental regulation, policy procedure or ordinance;
2. charge any person for the use or distribution of the Skitch.com Facilities;
3. sell, assign, rent, lease, distribute, export, import, act as intermediary or provider, act as a service bureau, or otherwise grant rights in or to the Skitch.com Facilities, including, without limitation, through sublicense, to any other person or entity;
4. remove any proprietary notices from the Skitch.com Facilities, or from any content, services, programming, or features contained on or through the Skitch.com Facilities;
5. undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Skitch.com Facilities and/or data and/or content or programming transmitted, processed or stored by plasq or other users of the Skitch.com Facilities;
6. collect any information or communication about the users of the Skitch.com Facilities by monitoring, interdicting or intercepting any process of or communication initiated by the Skitch.com Facilities or by developing or using any software or any other process or method that engages or assists in engaging in any of the foregoing;
7. use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access or that are designed to monitor, distort, delete, damage or disassemble the Skitch.com Facilities or its ability to communicate and function with other computers running the Skitch.com Facilities;
8. attempt to hack the Skitch.com Facilities or any communication initiated by the Skitch.com Facilities or to defeat or overcome any encryption and/or other technical protection methods implemented by plasq with respect to the Skitch.com Facilities and/or data and/or content or programming transmitted, processed or stored by plasq or other users of the Skitch.com Facilities;
9. interfere with or in any manner compromise any plasq security measure; or
10. alter, modify, delete, or otherwise interfere with or in any manner compromise any content, programming, advertising, services and/or features contained on or through the Skitch.com Facilities, including, without limitation, the Skitch.com Facilities advertising and/or content delivery and display functionality.
L. If you believe that your Intellectual Property Rights have been violated or your copyright infringed, please provide the following information to plasq following the notice provisions specified in http://Skitch.com/notice:
1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
3. a description of where the material that you claim is infringing is located on the site;
4. your address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owners, its agent, or the law;
6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
4. Reservation of Rights.
A. You acknowledge and agree that the Skitch.com Facilities may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties.
1. The use of any such third party software or technology that is incorporated in the Skitch.com Facilities is governed by this Agreement.
2. The use of third party software or technology may require you to explicitly accept a license agreement with a third party.
B. You agree that:
1. plasq, in its sole discretion, may discontinue or suspend your right to access the Skitch.com Facilities;
2. plasq reserves the right to add or remove features or functions, or to provide upgrades, updates or programming fixes, to the Skitch.com Facilities at any time in its sole discretion.
a. You agree to accept any and all such upgrades, updates or programming fixes presented to you, including version updates.
b. You agree that your failure to accept any such fixes, updates and upgrades will permit plasq to terminate your right to use the Skitch.com Facilities.
3. The Skitch.com Facilities may periodically communicate with plasq servers and/or plasq Products or Services used by other users.
4. Third party software included as part of the Skitch.com Facilities may periodically communicate with third party servers for the purposes described in the applicable license agreement or privacy policy between you and that third party.
5. plasq has no obligation to develop or make available to you any subsequent versions of Skitch.com Facilities.
C. plasq reserves the right to refuse service to anyone, for any reason, in its sole, absolute, unfettered discretion.
D. plasq may, but is under no obligation to do so, remove Content and terminate accounts containing Content which plasq determines, in its sole, absolute, unfettered discretion, are unlawful, offensive, threatening, libelous, obscene, defamatory, or otherwise objectionable or inappropriate, or which violate the Terms of Service or the Intellectual Property Rights of third parties.
E. By submitting ideas, suggestions, documents, and/or proposals (“Contributions”) to plasq through its suggestion, feedback or contact webpages, via email, by other means of communication, you acknowledge and agree that:
1. your Contributions do not contain confidential or proprietary information;
2. plasq is not under any obligation of confidentiality, express or implied, with respect to the Contributions;
3. plasq is entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide;
4. plasq may have something similar to the Contributions already under consideration or in development;
5. your Contributions automatically become the property of plasq without any obligation of plasq to you; and
6. you are not entitled to any compensation or reimbursement of any kind from plasq under any circumstances.
5. Access to and Use of Your Computational Facilities.
A. You authorize and grant permission for the Skitch.com Facilities to utilize the processor and bandwidth of your computational equipment and facilities for the limited purpose of facilitating the communication between, and transmittal of data, content, services or features, to you and other users.
B. You understand that the Skitch.com Facilities include appropriate organizational and technical measures to protect the privacy and integrity of the computational facilities utilized by you as a plasq user; however, you acknowledge and agree that plasq cannot give any warranties in this respect.
C. You understand that plasq may track your registration and usage of the Skitch.com Facilities for quality control and maintenance purposes, to assist us in making improvements to the Skitch.com Facilities, to monitor your compliance with applicable law and the Terms of Service, and to provide advertising and other content of potential interest to you.
6. Links to Third Party Sites.
A. The links provided either through or framed within the Skitch.com Facilities and any website operated by plasq or its affiliates are provided as a courtesy only, and the sites they link to are not under the control of plasq.
B. You agree that plasq is not responsible for the contents of any such linked site or any link contained within a linked site, including any changes or updates to such sites.
C. plasq is providing these links merely as a convenience, and the inclusion of any link does not in any way imply or express affiliation, endorsement or sponsorship by plasq of any linked site and/or any of its content therein.
D. Image hosting is subject to the terms and conditions of the relevant service provider. Please refer to the image hosing provider for details and information.
7. Intellectual Property Rights.
A. You agree that any and all any and all Intellectual Property Rights contained in or relating to the Skitch.com Facilities are and shall remain the exclusive property of plasq and/or its licensors.
B. Nothing in this Agreement intends to transfer any plasq Intellectual Property Rights to, or to vest any such Intellectual Property Rights in, you.
C. You are only entitled to the limited use of the plasq Intellectual Property Rights granted to you in this Agreement. You agree that your account is non-transferable and any rights to your ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
D. You agree not to take any action to jeopardize, limit or interfere with the plasq Intellectual Property Rights.
E. You agree that any unauthorized use of the plasq Intellectual Property Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws.
F. You understand that all title and Intellectual Property Rights in and to any third party content that is not contained in the Skitch.com Facilities, but may be accessed through use of the Skitch.com Facilities, including, without limitation, any content, programming, advertising, services and/or features contained on or through the Skitch.com Facilities, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties, and that each such third party expressly reserves all rights into such content.
8. Disclaimer of Warranties.
A. THE SKITCH.COM FACILITIES ARE PROVIDED "AS IS." PLASQ DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, GUARANTEES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE.
B. PLASQ DOES NOT REPRESENT OR WARRANT THAT THE SKITCH.COM FACILITIES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE, OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES PLASQ WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF TRANSMISSIONS OF DATA MADE THROUGH THE SKITCH.COM FACILITIES.
C. PLASQ DOES NOT WARRANT, GUARANTEE OR REPRESENT THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS IN ANY OF THE HTML CODE OR OTHER SOFTWARE, SERVICES OR FACILITIES, PROVIDED BY PLASQ, OR THAT THE SKITCH.COM FACILITIES WILL EMPLOY SUFFICIENT SECURITY METHODS.
D. YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SKITCH.COM FACILITIES REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW.
E. As some jurisdictions do not allow some of the exclusions set forth in this Section; thus some of these exclusions may not apply to you.
9. Limitation of Liability.
A. IN NO EVENT SHALL PLASQ, ITS AFFILIATES, PARENT COMPANIES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR BUNDLED SOFTWARE PROVIDERS BE LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OR ANY OTHER THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS, ARISING OUT OF THE USE OR INABILITY TO USE THE SKITCH.COM FACILITIES, INCLUDING ANY DAMAGES RESULTING THEREFROM, EVEN IF PLASQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PLASQ'S LIABILITY TO YOU OR TO ANY THIRD PARTY EXCEED THE AMOUNTS PAID BY YOU TO PLASQ.
B. YOUR ONLY RIGHT WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SKITCH.COM FACILITIES IS TO CEASE USE.
C. Some jurisdictions do not allow some of the exclusions set forth in this Section; thus, some of these exclusions may not apply to you.
10. Termination.
A. This Agreement may be terminated anytime by plasq with or without cause, by notice to you.
B. In the event of termination plasq has no obligation to maintain, return or undertake any specific treatment with respect to any Content that you have created, posted, saved, stored or transmitted using the Skitch.com Facilities.
11. General Terms and Conditions.
A. Electronic Signatures.
1. You agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Skitch.com Facilities.
2. You waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
B. Investigation and Disclosure to Governmental Authorities.
1. plasq reserves the right to investigate allegations or occurrences which may involve any violations of the Terms of Service or Privacy Policy, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations.
2. You agree that plasq may disclose information provided by you, or about you or your use of Skitch.com Facilities, in compliance with lawful process, or to comply with law enforcement requests or other legal, governmental or regulatory orders or actions.
C. Modification of the Agreement
1. plasq may modify any of the terms and conditions contained in the Terms of Service, at any time and in plasq’s sole, absolute and unfettered discretion, by posting a change notice or a new agreement on the Website. Modifications may include changes in the scope of available services, products or facilities.
2. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE USE OF THE SKITCH.COM FACILITIES.
3. YOUR CONTINUED USE OF THE SKITCH.COM FACILITIES FOLLOWING POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE WEBSITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
D. Relationship of Parties. Each party is an independent contractor, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, or other relationship between the parties.
E. Force Majeure. plasq not shall be liable under this Agreement by reason of any failure or delay in the performance of its obligations in this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, or any other cause, which is beyond the reasonable control of plasq.
F. Assignment. plasq may assign this Agreement in whole or in part without your approval. This Agreement shall be binding on, and inure to the benefit of, and be enforceable against, the parties and their respective successors and assigns.
G. Independent Investigation. You acknowledge that you have read this agreement and agree to all its terms and conditions. You represent and agree that you have independently evaluated the Skitch.com Facilities and are not relying on any representation, guarantee, or statement other than as set forth in this agreement.
H. Waiver.
1. No waiver or consent by any party of or to any breach or default of this Agreement by the other party will be effective unless evidenced in writing.
2. No waiver or consent effectively given as aforesaid will operate as a waiver or consent of or to any other right or other or further breach or default in relation to the same or any other provision of this Agreement.
3. plasq’s failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
I. Notice. Every notice, consent or other communication provided for in this Agreement or arising in connection therewith shall be emailed to the parties.
Either party may change its email address by giving written notice to the other party to that effect. Every such notice, consent or other communication delivered shall be deemed to have been given and received on the day such communication was delivered and every notice, consent or other communication transmitted by email shall be deemed to have been given and received on the day such communication was transmitted by email, provided however that if such day falls on a weekend or statutory holiday, then the notice, consent or other communication shall be deemed to have been given and received on the next business day following such day.
1. Notices sent to plasq shall be addressed to plasq as specified in http://Skitch.com/noticeJ. Survival. Should any term or provision of this Agreement be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall remain in full force and effect.
K. Interpretation. In this Agreement, unless there is something in the subject matter or context inconsistent therewith: (a) words, in the singular number include the plural and such words shall be construed as if the plural had been used; (b) words in the plural include the singular and such words shall be construed as if the singular had been used; (c) words importing the use of any gender shall include all genders where the context or party referred to shall require, and the rest of the sentence shall be construed as if the necessary grammatical and terminological changes had been made; (d) the word person shall include an individual, a trustee, executor, administrator or legal representative, a partnership, an association, a body corporate, a trust, an unincorporated organization and a corporation; and (e) the word writing includes e-mail communications.
L. Language. The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall prevail.
M. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina without regard to the conflict of law rules applicable therein, and shall be treated in all respects as if it was made and entered into in Charleston, South Carolina. The parties to this Agreement hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the federal and state courts having jurisdiction over contracts made and entered into and to be performed in Charleston, South Carolina. You agree not to bring claims on a representative, class member basis, or as a private attorney general, and agree not to assert any claims against plasq unless such claims are asserted by you no later than one year following the date that your claim or cause of action arose, at which point said claims are forever barred.
N. Resolution of Disputes. Any dispute, controversy, or claim arising out of, related to, concerning or in connection with this Agreement or to the breach, termination or invalidity thereof, or to the relationship of the parties hereto, shall be finally settled and determined solely and exclusively by arbitration administered by the International Centre for Dispute Resolution (the ICDR) under its then current International Arbitration Rules (the ICDR Rules). The written award of the arbitrators shall be final and binding upon the parties, and judgment on or enforcement of the award so rendered may be sought, had or entered in any court having jurisdiction.
O. Entire Agreement. This Agreement supersedes all prior written and oral representations, arrangements, negotiations, understandings and agreements between the parties relating to the subject matter hereof and sets forth the entire complete and exclusive agreement and understanding between the parties hereto relating to the subject matter hereof.
