PICTHRIVE TERMS AND CONDITIONS
Welcome to PicThrive!
PicThrive consists of a software program (the "Software"), online services and a website located at www.picthrive.com, including subdomains, (the "Service") (together, "PicThrive") that are provided to you by Adventure Soup Inc. ("Adventure Soup").
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. Additionally, PicThrive may require hardware and software to operate a local server containing your and your customer's data. You are solely responsible for providing and securing the local server and all data it contains.
4. SOFTWARE AND SERVICE TERMS
4.1 Software License.
The Software includes, but is not limited to, an electronic waiver, guest management and tourism operation platform that interact with the Service. Except as otherwise provided in the Terms and Conditions, Adventure Soup grants you a non-exclusive, non-sublicensable, limited, revocable 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.
4.2 Service Subscription.
The Service includes, but is not limited to, online waivers, sales and referral platforms, as well as data transmission and data analytics. Except as otherwise provided in the Terms and Conditions, Adventure Soup grants you a personal, revocable, non-exclusive, non-transferrable subscription to use the Service through the PicThrive website and/or 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.
The Subscription may require you to register Accounts to access PicThrive. You shall register one administrator Account and, if desired, subordinate Accounts. An Account, excluding an administrator Account, may only be used by the person for whom it was registered. You may replace an Account, or add or delete Accounts, as desired.
4.4 Username and Password.
Registering a Subscription and Account(s) requires you to select a user name and password ("Login Information"). You are solely responsible for keeping Login Information confidential. You agree to be bound by any use of your Login Information, including purchases, whether or not you authorized such use. If you become aware of, or reasonably suspect, an unauthorized use of your Subscription or Account, you must immediately change the password that is part of your Login Information. Any questions concerning unauthorized use may be emailed to Adventure Soup at firstname.lastname@example.org.
4.5 Information Collection.
5. SUBSCRIPTION FEES, PURCHASES AND FEATURES
5.1 Subscription Fees and Purchases.
Adventure Soup charges a usage-based Subscription fee and may also offer additional Service features (each, an "Additional Feature") for an additional fee (collectively, "Subscription Fees"). Additionally, Adventure Soup may offer products for sale including, but not limited to, photos, videos, statistical reports, PicThrive mobile devices and customer kiosks. Subscription Fees and product prices exclude applicable taxes, duties and charges. You shall pay Adventure Soup for all Subscription Fees and purchased products, taxes, duties and charges within 30 days from the date of invoice. Any payment not received by Adventure Soup as of a due date may accrue 5% interest, compounded monthly, from the due date until paid.
5.2 Subscription Features.
PicThrive features, including Additional Features, available to you vary depending upon the terms of your particular Subscription and are subject to change at any time, on one or more occasions, at Adventure Soup's sole discretion without notice and without any compensation or refund to you. Notwithstanding the foregoing, Adventure Soup shall notify you of any change to Subscription Fees or Subscription commissions through an email or Service notification, such changes taking effect 30 days from the date of notice. Current Subscription Fees, features and terms are detailed at www.picthrive.com.
5.3 Sales and Commission.
PicThrive may contain sales features through which Adventure Soup receives a commission and that are detailed at www.picthrive.com/plans.html ("Commission Features"). You acknowledge and agree that Adventure Soup shall, on your behalf, operate Commission Features by charging such prices as set by you or Adventure Soup (as applicable), collecting any applicable tax or duty and deducting the commission ("Commission Proceeds"). Commission Proceeds are calculated based on total monthly sales minus returns, chargebacks, taxes, duties, other charges and Adventure Soup's commission. You are only entitled to Commission Proceeds if total Commission Proceeds collected in a single month exceed $100.00 and, in which case, Commission Proceeds are remitted following the end of such month. You are not entitled to Commission Proceeds if they do not exceed $100.00 in a particular month or if your Subscription is terminated pursuant to section 6(a), (c), (d) (if by Adventure Soup) or (f). 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 Commission Proceeds.
5.4 Technical Support.
Adventure Soup may provide you with PicThrive technical support on such terms as set forth at http://www.picthrive.com/plans.html ("Support"). Adventure Soup shall suspend provision of Support in the case of your non-payment of any outstanding invoice, until remedied.
5.5 Termination or Suspension.
You may terminate your Subscription or an Additional Feature by notifying Adventure Soup at email@example.com. Termination is effective as of the end of the month in which Adventure Soup receives your notice of termination. Adventure Soup may suspend or terminate your Subscription and any Account associated with your Subscription at any time 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 and shall pay any outstanding Subscription Fees, taxes duties and charges, as well as outstanding invoices, as of the date of termination. You acknowledge that termination results in lost access to any terminated Additional Features or, if your Subscription is terminated, your Subscription entirely, and the deletion of all associated data. Notwithstanding the foregoing, where your Subscription is terminated, Adventure Soup may permit you to access PicThrive for up to 30 days to remove/download waivers stored on PicThrive.
The license and Subscription granted to you in the Terms and Conditions commences on the date you agree to the Terms and Conditions and terminates upon the earliest of:
- Adventure Soup's termination of the Terms and Conditions and that may occur without notice or reason;
- your removal of the Software;
- your failure to pay any invoice due and owed by you to Adventure Soup;
- termination of your Subscription by you or Adventure Soup;
- your non-compliance with the Terms and Conditions or Code of Conduct (as defined herein).
7. CODE OF CONDUCT
The following Code of Conduct applies to your use of PicThrive. You agree to not, and not encourage others to, use PicThrive as follows:
- 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;
- manipulate PicThrive to produce incorrect information such as submitting false guest waivers or feedback;
- 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 (such as waiver audit logs), except as permitted by applicable law; or
- encourage or engage in illegal activities.
8. 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. ADVENTURE SOUP MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THIRD PARTY TECHNOLOGY. YOU AGREE THAT ADVENTURE SOUP WILL NOT BE LIABLE FOR ANY CLAIM, LOSS OR DAMAGE RELATING TO THIRD PARTY TECHNOLOGY.
9.1 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. Adventure Soup hereby retains all rights not expressly granted in the Terms and Conditions.
9.2 Ownership of User Content.
User content includes any data that you or other users create, enter, submit or transfer using PicThrive or in conjunction with Third Party Technology and including, but not limited to, waiver information, photographs, audio or video taken of you, 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 or payment to you or any third party.
9.3 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
Adventure Soup Inc.
ATTN: DMCA Agent
850-1095 West Pender Street
Vancouver, BC V6E 2M6
You may contact the designated DMCA Agent by phone at +1 604-230-9293.
THE SERVICE IS PROVIDED "AS IS" AND ADVENTURE SOUP DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITING THE FOREGOING, ADVENTURE SOUP MAKES NO REPRESENTATIONS THAT USE OF PICTHRIVE WILL NOT INFRINGE ANY COPYRIGHT, PATENT, 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 YOUR REQUIREMENTS, IS APPROPRIATE FOR YOUR NEEDS, CREATES ENFORCEABLE AGREEMENTS IN YOUR JURISDICTION OR THAT OPERATION WILL BE UNINTERRUPTED, CONTINUOUSLY AVAILABLE, ERROR FREE OR WILL NOT HARM YOUR COMPUTER OR MOBILE DEVICE. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY ADVENTURE SOUP, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. PLEASE NOTE THAT SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED CONTRACT TERMS AND, AS A RESULT, THIS SECTION 10 MAY NOT APPLY TO YOU IN ITS ENTIRETY.
ADVENTURE SOUP HEREBY ADVISES THAT YOU OBTAIN INDEPENDENT LEGAL ADVICE FROM A LICENSED ATTORNEY REGARDING SUCH MATTERS AS, BUT NOT LIMITED TO, WHETHER YOUR WAIVER AND SIGNATURE PROCESS IS ENFORCEABLE AND THE ENFORCEABILITY OF DIGITAL WAIVERS AND ELECTRONIC SIGNATURES IN ALL JURISDICTIONS APPLICABLE TO YOU. YOU BEAR THE ENTIRE RISK AS TO THE PERFORMANCE, OPERATION, QUALITY AND EFFECTIVENESS OF PICTHRIVE, INCLUDING RISK OF WAIVER UNENFORCEABILITY OR DATA FAILURE.
11. LIMITATION OF LIABILITY, INDEMNITY
11.1 Limitation of Liability and Indemnification of Adventure Soup.
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 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 AND ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF ADVENTURE SOUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATION OF LIABILITY ALSO APPLIES IF A WAIVER FACILITATED THROUGH PICTHRIVE IS FOUND UNENFORCEABLE FOR ANY REASON WHATSOEVER. 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, WHETHER OR NOT RELATED TO ANY WAIVER. 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, BREACH OF CONTRACT, BREACH OF WARRANTY OR INDEMNITY, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY AND OTHER TORTS. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT ADVENTURE SOUP'S MAXIMUM AGGREGATE LIABILITY TO YOU IN ANY CASE WHATSOEVER WILL BE THE GREATER OF: (1) THE AMOUNT OF SUBSCRIPTION FEES YOU PAID TO ADVENTURE SOUP IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE HARM IN QUESTION; AND (2) $100 (CAD).
11.2 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.
12. EQUITABLE REMEDIES
You agree 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.
13. DISPUTE RESOLUTION
You and Adventure Soup agree that any informal resolution or arbitration of a Dispute will be limited between Adventure Soup and you individually. To the full extent permitted by applicable law, no arbitration will be joint with any other and you have no right or authority to: (a) arbitrate a Dispute on a class-action basis or to utilize class action procedures; and to (b) raise a Dispute in a representative capacity on behalf of the general public or any other persons.
13.3 Exceptions to Informal Resolution and Arbitration.
You and Adventure Soup agree that the following Disputes are not subject to the above provisions concerning informal Dispute resolution and arbitration: (a) Disputes concerning the enforcement, protection or validity of intellectual property rights belonging to you or Adventure Soup; (b) Disputes concerning allegations of piracy, theft or unauthorized use of PicThrive (including violation of the Terms and Conditions); and (c) claims for injunctive relief.
14.1 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 waiver created, accepted or delivered through PicThrive.
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.
14.3 Governing law.
The Terms and Conditions are governed by and construed under the laws of Canada and the province of British Columbia. You agree that the United Nations Convention on Contracts for the International Sale of Goods is excluded in its entirety from application to the Terms and Conditions.
To the extent any section, clause, provision or sentence or part thereof of the Terms and Conditions is determined to be illegal, invalid or unenforceable by competent authority in any jurisdiction, then that portion will be severed and the remainder of the Terms and Conditions given full force and effect.
14.5 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.
14.6 Entire Agreement.