Last Revised: July 31, 2009
This is a legal agreement between you and IQZONE, Inc. ("IQ" or the "Company") stating the terms that govern your use of the PicDial™ service ("PicDial" or "Service"). This agreement – together with all updates, additional terms, software licenses, and all of IQ's rules and policies – collectively constitute the "agreement" between you and IQ. To agree to these terms, click "agree." If you do not agree to these terms, do not click "agree," and do not use the Service. You must accept and abide by these terms as presented to you. Changes, additions, or deletions are not acceptable, and IQ may refuse access to PicDial for noncompliance with any part of this agreement. By clicking "agree" you (the "User") signify that you have read, understand and agree to be bound by these Terms and Conditions ("Terms and Conditions" or "Agreement"). We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms and Conditions at any time without further notice. If we do this, we will post the changes to these Terms and Conditions 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 after any such changes constitutes your acceptance of the new Terms and Conditions. If you do not agree to abide by these or any future Terms and Conditions, you must not use or access (or continue to use or access) the Service. It is your responsibility to regularly check to determine if there have been changes to these Terms and Conditions and to review such changes.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.
Use of PicDial is void where prohibited and is intended solely for users who are at least 13 years of age or older, and users under 18 who are currently in high school or college and who have received permission from their parent or legal guardian. Any use of PicDial by anyone under 13, or by anyone who is under 18 and not in high school or college, is unauthorized, unlicensed and in violation of these Terms and Conditions. By using PicDial, you represent and warrant that you are 13 or older and in high school or college, or else that you are 18 or older, and that you agree to and to abide by all of the terms and conditions of this Agreement.
Registration Data; Account Security
In consideration of your use of PicDial, you agree to (a) maintain the security of your password and identification; (b) maintain sole responsibility for all use of your account and for any actions that take place using your account; and (c) provide accurate (and accurately update), current and complete information required to register with the Service and at other points as may be required in the course of using the Service ("Registration Data").
You understand that PicDial is available for your personal, non-commercial use only. You represent, warrant and agree that any materials or information submitted or otherwise posted, transmitted, or shared by you on or through PicDial will in no way violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material.
In addition, you agree not to use PicDial to:
- in any unlawful or damaging manner;
- gather other contact information of other users for the purposes of sending unsolicited emails or other unsolicited communications;
- upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;
- upload, post, transmit, share, store or otherwise make available any videos other than those of a personal nature that: (i) are of you or your friends, (ii) are taken by you or your friends, or (iii) are original art or animation created by you or your friends;
- register for more than one User account, register for a User account on behalf of an individual other than yourself, impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity;
- intimidate or harass another;
- upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
- use or attempt to use another's account, service or system without authorization from the Company, or create a false identity; or
- upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of Company, is objectionable or which restricts or inhibits any other person from using or enjoying PicDial, or which may expose Company or its users to any harm or liability of any type.
If a user's picture is flagged for inappropriate content that specified user will be issued a warning. If a user's picture is flagged a second time for inappropriate content, PicDial will be permanently disabled on that user's handset.
We reserve the right to remove any image or user without advance notice, explanation or refund.
User Information Posted
When you post User Information, 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 Information on PicDial. By posting User Information, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Information for any purpose, commercial, advertising, or otherwise, on or in connection with the Service or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Information, and to grant and authorize sublicenses of the foregoing. You may remove your User Information at any time. If you choose to remove your User Information, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Information. Company does not assert any ownership over your User Information; 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 Information and any intellectual property rights or other proprietary rights associated with your User Information.
How to Opt-in
To opt-in or subscribe to our service, you can register from our website at www.picdial.com. This subscription will be on a month to month basis. You will receive notification from us via text message each month, at which point you can choose to opt out of the service.
How to Opt-out
To opt-out of the PicDial service, you can text "STOP" into 73425 from your mobile phone and we will unsubscribe you from PicDial immediately. You will also have an option to reply "STOP" during renewal notification messages. If you unsubscribe from our service, you will not be able to use the application until you re-register through your carrier or on our website.
How to get help or support
To get help at any time, email us at Support@IQzone.com, or call our toll free number at 1-800-932-7867. From your mobile phone, you may request our contact information at any time by texting HELP into 73425.
Proprietary Rights in Content; Limited License
All original content available through PicDial, including designs, text, graphics, pictures, video, information, applications, software and other files, and their selection and arrangement (the "Content"), are the proprietary property of the Company, its users or its licensors with all rights reserved. Other than User Information (defined below) no Content may be modified, copied, distributed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the Company's prior written permission. Provided you gain proper eligibility for use of the Service, you are granted a limited license to access Content solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. Such license is subject to these Terms and Conditions and does not permit use of any data mining, robots, scraping or similar data gathering or extraction methods. Any use of PicDial or the Content other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms and Conditions shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time without notice and with or without cause.
PICDIAL, PICTURE DIAL, MAKING YOUR ADDRESS BOOK SOCIALLY AWARE and other Company logos and designs are registered or pending trademarks of Company in the U.S. and/or other countries. Company's trademarks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.
We respect the intellectual property rights of others and we prohibit users from uploading, posting or otherwise transmitting on PicDial any materials that violate another party's intellectual property rights. When we receive proper notification of alleged copyright infringement, we will promptly remove or disable access to the allegedly infringing material and terminate the accounts of repeat infringers as described herein in accordance with the Digital Millennium Copyright Act. If you believe that any material on PicDial infringes upon any copyright please notify us at via email Support@IQzone.com.
Company offers a feature whereby users of PicDial can use profile information and pictures from other sources (e.g., social utilities, digital cameras, etc.) (the "Share Service"). You acknowledge and agree that your use of the Share Service and all links, User Information shared through the Share Service is subject to, and will fully comply with the user conduct rules set forth above and the other terms and conditions set forth in these Terms and Conditions and in any rules, terms, conditions or limitations of any Share Service.
You are solely responsible for your interactions with other PicDial users. We reserve the right, but have no obligation, to monitor disputes between you and other users.
By using PicDial, you are consenting to have your personal data transferred, processed and used.
Company does not control and is not responsible for what users post, transmit or share and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on the Service or in connection with any User Information or Content. The Company is not responsible or liable in any manner for any User Information or Content in connection with PicDial, whether posted or caused by users of PicDial, by Company, by third parties or by any other means. The Company is not responsible for the conduct of any user.
PicDial 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, 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 PicDial. Under no circumstances will the Company be responsible for any loss or damage, including any loss or damage to any User Information or personal injury or death, resulting from anyone's use of the Service, any User Information or Content posted on or through PicDial or transmitted to Users, or any interactions between users of PicDial.
PICDIAL, ANY APPLICATIONS AND THE 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. COMPANY DOES NOT REPRESENT OR WARRANT THAT SOFTWARE, CONTENT OR MATERIALS, THE SERVICE OR ANY APPLICATIONS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SERVICE ITS SERVERS, OR ANY APPLICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY 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 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 offered through PicDial at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, 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 PROFITS OR LOST DATA ARISING FROM YOUR USE OF PICDIAL OR RELATED SERVICES, ANY APPLICATIONS OR ANY OF THE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED, EVEN IF THE COMPANY IS AWARE OR 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 USE, BUT IN NO CASE WILL THE COMPANY's LIABILITY TO YOU EXCEED $1000. 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.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
The Company may terminate your use and/or prohibit you from using or accessing PicDial for any reason, or no reason, at any time in its sole discretion, with or without notice, including if it believes that you are under 13, or under 18 and not in high school or college. 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 special 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 using the Service, you agree that the laws of the State of Arizona, without regard to principles of conflict of laws, will govern these Terms and Conditions 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 Arizona, 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 Arizona.
YOU AND COMPANY AGREE THAT 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 AND CONDITIONS AND/OR THE SERVICE SHALL BE FINAL AND BINDING ARBITRATION, except that 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 rights, or you have otherwise violated any of the user conduct rules set forth above or in the Code of Conduct then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought.
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 AND CONDITIONS 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 PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to the Service (including your use of the Service) be instituted more than three (3) years after the cause of action arose.
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 Information, any Applications or Content you post or share, your use of PicDial, your conduct in connection with PicDial or with other users of PicDial, or any violation of this Agreement or of any law or the rights of any third party.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the PicDial ("Submissions"), provided by you to 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.
Definitions and Constructions
Unless otherwise specified, the terms "includes," "including," "e.g.," "for example," and other similar terms are deemed to include the term "without limitation" immediately thereafter. Terms used in these Terms with the initial letter(s) capitalized will have the meaning attributed to them in these Terms.
These Terms and Conditions constitute the entire agreement between you and Company regarding the use of the Service, superseding any prior agreements between you and Company relating to your use of PicDial. The failure of Company to exercise or enforce any right or provision of these Terms and Conditions 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 and Conditions shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions.