PICTHRIVE TERMS AND CONDITIONS
Effective Date: May 31st, 2017
Welcome to PicThrive!
PicThrive consists of online services, websites located at picthrive.com and ptur.co, including subdomains, white-labeled third party domains on which the Terms and Conditions is placed (the “Service“) and software applications (the “Software“) (collectively, “PicThrive“) that are provided to you by Adventure Soup Inc., DBA PicThrive (“Adventure Soup“).
1.1 Updates to Terms and Conditions.
Adventure Soup reserves the right, in its sole discretion, to change or add or remove portions of the Terms and Conditions at any time (“Updates“). Adventure Soup shall notify you of Updates by email, if you provided an email address, and to make them available at picthrive.com. You are deemed to accept any Update by continuing to use the Service or Software. Unless Adventure Soup states otherwise, Updates are automatically effective 30 days after posting on picthrive.com.
2. SERVICE AND SOFTWARE TERMS
2.1 Service Subscription.
The Service includes, but is not limited to, an online photo and video sales, analytics and marketing platform, as well as an API allowing you to connect the Service to third party services, designed for tour and activity operators. Except as otherwise provided in the Terms and Conditions, Adventure Soup grants you a non-exclusive, non-sublicensable, non-assignable, revocable, limited subscription to use the Service through the PicThrive website, the Software and registered accounts (each, an “Account“) (collectively, “Subscription“). You acknowledge that no title or ownership interest in the Service or Subscription is transferred or assigned to you and that the Terms and Conditions is not a sale of any right to the Service or Subscription.
2.2 Software License.
The Software includes, but is not limited to, a photo and video display and sales application that interacts with the Service. Except as otherwise provided in the Terms and Conditions, Adventure Soup grants you a non-exclusive, non-sublicensable, non-assignable, revocable, limited license to install and use the Software on any computer(s) and mobile device(s) involved with your business. You acknowledge that the Software is licensed to you, that no title or ownership interest in the Software is transferred or assigned to you and that the Terms and Conditions does not constitute a sale of any right to the Software.
2.3 Using PicThrive.
PicThrive may require hardware including, but not limited to, a computer or mobile device and an Internet connection. You agree to provide all hardware and the Internet connection required to use PicThrive and to pay all fees incurred by you when accessing PicThrive through an Internet connection.
You are required to register an Account in order to use certain aspects of PicThrive. You may choose to permit third parties to access your Account by connecting a third party to your Account or by a third party requesting access to your Account through a Service notification (each a “Connected Login“). Alternatively, you may choose to allow multiple users to access your Account through a single login. A Connected Login receives limited access to your Account and may make changes such as adding or deleting files but cannot, for example, change your password, close your account or change credit card information associated with your Account. Additionally, a Connected Login may request to share in sales you make through the PicThrive point of sale system and, if such a request occurs, you will be clearly presented with the request and your options and, if you choose to accept the request from the Connected Login, you agree to such portion of sales being split with the Connect Login (“Connected Login Proceeds“). Adventure Soup strongly recommends that you verify the identity of each person who you are considering granting access to, or who is requesting access to, your Account.
2.5 Username and Password.
Registering an Account requires you to select a user name and password (“Login Information“). You may change the password associated with your Account at any time. You are solely responsible for keeping Login Information confidential. You agree to be bound by any use of your Login Information and use of your Account, including by a Connected Login, whether or not you authorized such use. If you become aware of, or reasonably suspect, unauthorized use of your Account you must immediately change the password that is part of your Login Information and notify Adventure Soup. Any reports of, or questions concerning, unauthorized use may be emailed to Adventure Soup at firstname.lastname@example.org.
2.6 Information Collection.
3. SALES, COMMISSION AND REMITTANCE
3.1 Sales, Pricing and Commission.
PicThrive allows you to sell photos and videos to your customers, as well as gifts based on these photos and videos that are printed and delivered by third parties (the “Gift Store“). The price for photos and videos is suggested automatically but can be altered at any time by accessing the photo and video pricing page within PicThrive. If you collect payment for PicThrive sales through your own point of sale system, Adventure Soup charges you a transaction fee (the “Transaction Fee“) or, if Adventure Soup collects payment on your behalf, a commission, which is calculated as a percentage of each transaction (the “Commission“). Adventure Soup uses third party software and services (such as Stripe) to collect the Transaction Fee and Commission and remit Proceeds (as defined below), which may require you to maintain an active account with such third party or to provide additional information in order to receive funds owed to you. Adventure Soup is not liable to you for the actions of any third party we engage to collect and remit the Transaction Fee and Commission. The Transaction Fee and Commission are detailed at picthrive.com/plans/.
3.2 Processing of Sales and Commission.
You acknowledge and agree that Adventure Soup shall, on your behalf, facilitate sales made through PicThrive by charging your customers for purchases, deducting processing fees, refunds, returns and chargebacks and associated fees, Connect Login Proceeds and other charges and our Commission and remitting the remainder to you (“Proceeds“). Proceeds are remitted within a reasonable time frame following the transaction in question, excluding Gift Store Proceeds. Gift Store Proceeds are calculated based on total monthly Gift Store sales and remitted when Gift Store Proceeds held on your behalf are equal to or greater than $1,000.00 USD following the end of such month (the “Remittance Threshold“). You are not entitled to Gift Store Proceeds of less than the Remittance Threshold, which will be carried over until the end of the month in which Gift Store Proceeds meet the Remittance Threshold. Adventure Soup may elect, in its sole discretion, to remit Proceeds to your Account, rather than as set forth in section 3.1, and deduct the Transaction Fee and Commission from available funds in your Account. You acknowledge and agree that you have no right to, and shall not request, an audit or otherwise review or challenge any calculation or remittance of Proceeds.
3.3 Transaction Fee Remittance.
You shall provide Adventure Soup with a valid credit or debit card to be charged at the end of each month for Transaction Fees you incurred during such month, which shall be billed and charged automatically to such credit card by Adventure Soup and third parties authorized on our behalf. Adventure Soup may provide you with additional payment methods, which shall be billed at the end of each month as set forth above.
3.4 Returns and Chargebacks.
You acknowledge and agree that Adventure Soup has sole discretion to determine whether to issue any refund and to dispute chargebacks on your behalf concerning sales made through PicThrive and to decline a transaction made through PicThrive based on a fraud likelihood analysis.
You are solely responsible for charging, collecting and remitting taxes on all sales you make through PicThrive. You shall indemnify, defend and hold Adventure Soup harmless from any liability for, or assessment of, any claims or penalties with respect to such taxes, including any liability for, or assessment of, withholding taxes imposed on Adventure Soup by the relevant taxing authorities with respect to any Proceeds paid to you.
4. SUBSCRIPTION FEATURES AND SUPPORT
PicThrive features available to you are subject to change at any time, on one or more occasions, at Adventure Soup’s sole discretion without notice or compensation to you. Notwithstanding the foregoing, Adventure Soup shall notify you of any change to the Transaction Fee and Commission through an email or Service notification, such changes taking effect immediately in the case of a reduction in the Transaction Fee and/or Commission and, in the case of an increase, 30 days from the date of notice. The current Transaction Fee, Commission and related terms are detailed at picthrive.com/plans/.
Adventure Soup may provide you and your customers with PicThrive technical and customer support on such terms as set forth at picthrive.com/plans/ (“Support“). Support terms are subject to change at any time in Adventure Soup’s sole discretion without notice or compensation to you.
5. TERM, TERMINATION AND SUSPENSION
The Subscription and Software license granted to you in the Terms and Conditions terminates upon the earliest of:
- Adventure Soup’s termination of the Terms and Conditions, Subscription or Software license and that may occur without notice or reason;
- your failure to pay any amount owed to Adventure Soup;
- your termination of the Subscription by notifying Adventure Soup at email@example.com; or
- your non-compliance with the Terms and Conditions or Code of Conduct (as defined herein).
Adventure Soup may suspend your Subscription and/or any Account associated with your Subscription at any time without notice or compensation to you for any reason including, but not limited to, violation of the Terms and Conditions and whether a suspension is lifted is at Adventure Soup’s sole discretion.
Upon termination you are not entitled to a refund of any kind. You shall pay any outstanding amounts, taxes, duties and charges as of the date of termination. You are not entitled to Proceeds upon termination unless your Subscription was terminated pursuant to section 5.1(c). Upon termination you shall not be permitted to access PicThrive, although your customers may continue to access their orders. Notwithstanding the foregoing, where your Subscription is terminated, Adventure Soup may choose, in its sole discretion, to delete all information associated with your Account, including customer orders.
5.4 Code of Conduct.
The following Code of Conduct applies to your use of PicThrive. You agree to not, and not encourage others to:
- circumvent PicThrive by selling photos or videos through a mechanism other than the PicThrive send/approve button, PicThrive point of sale system or through PicThrive gift cards or coupons;
- use the PicThrive API to distribute photos or videos without watermark protection for free, burden the PicThrive API, excessively use the PicThrive API or use the PicThrive API in any manner disapproved of by PicThrive;
- use PicThrive solely as a data storage platform;
- infringe or violate the right of any third party including but not limited to: (1) contractual rights; (2) copyright, patent, trademark or trade secret rights; (3) privacy rights; (4) publicity rights; or (5) the terms of any confidentiality agreement;
- attempt to gain, or gain, unauthorized access to PicThrive, including through the use of another user’s Account or through any method not provided by or approved by Adventure Soup;
- use the Software or Service to transmit any data that contains, or redirects to, any virus or other harmful data;
- encumber, sell or license PicThrive, including a Subscription or Account, in any way;
- copy, damage, decompile, disassemble, impair, modify or reverse engineer PicThrive or otherwise attempt to derive its source code or meta data files; or
- encourage or engage in illegal activities.
6. THIRD PARTY SOFTWARE AND SERVICES
PicThrive incorporates software and services provided or licensed to Adventure Soup by third parties (“Third Party Technology“). The Terms and Conditions do not grant you any license, right, title or other interest in Third Party Technology. Use of Third Party Technology may require you to enter into agreements between you and a third party. You shall review, and determine whether to agree to, any Third Party Technology agreement.
7.1 Adventure Soup’s Ownership Rights.
Adventure Soup retains all right, title and interest in PicThrive including, but not limited to, all copyrights, patents, trademarks, trade secrets, industrial designs, utility models and any other rights recognized pursuant to the laws of any country or jurisdiction, whether or not protected by law. Without limiting the foregoing, Adventure Soup hereby retains all rights not expressly granted in the Terms and Conditions.
7.2 Ownership of User Content.
User content includes any content that you or other users, such as your employees, contractors or customers, create, enter, upload or transfer using PicThrive or in conjunction with Third Party Technology and including, but not limited to, photographs, audio, video and data transferred through PicThrive and analytics information (“User Content“). By providing User Content you represent and warrant that you have all consents, licenses and rights necessary to provide and license the User Content and you hereby grant Adventure Soup an irrevocable, fully-paid, royalty-free, non-exclusive, perpetual, worldwide license to User Content under all copyright, trademark, trade secret, patent, privacy and publicity rights and any other intellectual or industrial property rights you own or control to use, broadcast, disclose, display, distribute, modify, make derivative works of, publicly perform, publish, record, reproduce, sublicense (on multiple levels), translate, transmit or otherwise exploit for all purposes and in all formats and mediums and for all purposes without attribution, notice, permission, royalty or payment to you or any third party.
7.3 Important Notice Regarding Privacy, Intellectual Property and User Content.
7.4 Notice of Copyright Infringement.
If you are a U.S. copyright owner, Adventure Soup will respond to notices alleging copyright infringement that comply with the United States Digital Millennium Copyright Act (“DMCA“).
You must provide the following information in writing in your DMCA notice:
- identify the copyrighted work you claim infringed;
- identify the material claimed infringing and where it is located;
- provide reasonably sufficient information to allow us to contact you, such as your address, phone number and e-mail address;
- provide a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or law;
- provide a statement, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or are authorized to act on behalf of the owner; and
- provide an electronic or physical signature of a person authorized to act on behalf of the copyright owner.
Adventure Soup may provide you notice if your communication, post, submission or upload was removed as a result of Adventure Soup receiving a DMCA notice from its copyright owner. If you receive notice from Adventure Soup, you may provide a counter-notification in writing to Adventure Soup’s designated DMCA Agent though the means provided below.
DMCA notices can be sent to Adventure Soup’s designated DMCA Agent by email or mail:
By email: DMCA@picthrive.com
By mail: Adventure Soup Inc.
ATTN: DMCA Agent
3-2335 W 8th Ave.
Vancouver, BC, Canada
PICTHRIVE IS PROVIDED TO YOU “AS IS” AND ADVENTURE SOUP DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS TO THE EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, ADVENTURE SOUP MAKES NO REPRESENTATIONS THAT USE OF PICTHRIVE WILL NOT INFRINGE ANY COPYRIGHT, PATENT OR TRADEMARK OR OTHER RIGHTS HELD BY A THIRD PARTY. FURTHER AND WITHOUT LIMITING THE FOREGOING, ADVENTURE SOUP MAKES NO REPRESENTATIONS OR WARRANTIES THAT PICTHRIVE WILL MEET YOU OR YOUR CUSTOMER’S REQUIREMENTS OR THAT OPERATION OF PICTHRIVE WILL BE UNINTERRUPTED, CONTINUOUSLY AVAILABLE, ERROR FREE OR WILL NOT HARM COMPUTERS OR MOBILE DEVICES OR RESULT IN LOST DATA. NO ORAL ADVICE OR WRITTEN INFORMATION PROVIDED BY ADVENTURE SOUP, ITS AFFILIATES, AGENTS, CONTRACTORS, DIRECTORS, EMPLOYEES, OFFICERS AND PARTNERS WILL CREATE ANY WARRANTY AND YOU SHALL NOT RELY EXCLUSIVELY UPON SUCH ADVICE OR INFORMATION. YOU BEAR THE ENTIRE RISK AS TO THE PERFORMANCE, OPERATION AND QUALITY OF PICTHRIVE, INCLUDING RISK OF DATA FAILURE. PLEASE NOTE THAT SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED CONTRACT TERMS AND, AS A RESULT, THIS SECTION 8 MAY NOT APPLY TO YOU IN ITS ENTIRETY.
9. LIMITATION OF LIABILITY, INDEMNITY
9.1 Limitation of Liability.
YOU AGREE THAT ADVENTURE SOUP SHALL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR RELATING TO THE TERMS AND CONDITIONS OR USE OF PICTHRIVE, PRODUCTS SOLD BY ADVENTURE SOUP OR A THIRD PARTY OR THIRD PARTY TECHNOLOGY AND INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, LOSS OF DATA, LOSS OF CONTENT, LOSS OF PROFITS, LOSS OF ANY CONTRACT, LOSS OF GOODWILL, NEGATIVE REVIEWS OF YOUR BUSINESS, UNAUTHORIZED OR AUTHORIZED ACCESS TO YOUR ACCOUNT, AND ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF ADVENTURE SOUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. YOU AGREE THAT ADVENTURE SOUP’S MAXIMUM AGGREGATE LIABILITY TO YOU IN ANY CASE WHATSOEVER WILL BE THE GREATER OF: (1) TOTAL COMMISSIONS YOU PAID TO ADVENTURE SOUP IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE HARM IN QUESTION; AND (2) $100 (CAD).
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD ADVENTURE SOUP, ITS AFFILIATES, AGENTS, CONTRACTORS, DIRECTORS, EMPLOYEES, OFFICERS AND PARTNERS HARMLESS FROM AND AGAINST ANY CLAIM, LIABILITY, INJURY, DAMAGE, COST, LOSS OR EXPENSE THAT ARISES FROM YOUR, OR ANY THIRD PARTY’S, USE OF PICTHRIVE. THIS LIMITATION APPLIES TO ANY CAUSE OF ACTION OR CLAIMS IN THE AGGREGATE, WHETHER IN AN EQUITABLE, LEGAL OR COMMON LAW ACTION ARISING HEREUNDER AND INCLUDING, WITHOUT LIMITATION, VIOLATION OF ANY STATUTE, VIOLATION OF PRIVACY AND/OR INTELLECTUAL PROPERTY RIGHTS, BREACH OF CONTRACT, BREACH OF WARRANTY OR INDEMNITY, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY AND OTHER TORTS.
9.3 Indemnification Process.
Adventure Soup shall promptly provide you written notice of the claim against Adventure Soup and, at your expense, give all reasonable assistance. You may not settle any claim unless it unconditionally releases Adventure Soup of all liability.
10. EQUITABLE REMEDIES
You acknowledge that Adventure Soup would be irreparably damaged if the Terms and Conditions are not specifically observed and, therefore, you agree that Adventure Soup shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to your breach of the Terms and Conditions, in addition to other remedies available to Adventure Soup under applicable law.
11.1 Relationship of the Parties.
Nothing in the Terms and Conditions shall be construed to create any partnership, joint venture, employer-employee or agency relationship between you and Adventure Soup. Adventure Soup is not a party to any agreement you execute with a customer.
If you have registered a Subscription and Account(s), you agree that Adventure Soup may use your name and reference you as a customer for advertising, promotion or similar public purposes and hereby grant Adventure Soup a non-exclusive, worldwide license to your name and logo for such purposes.
11.3 Governing law.
11.5 No Waiver.
Adventure Soup’s failure to assert or enforce any right contained in the Terms and Conditions does not constitute a waiver of that right.
11.6 Entire Agreement.