Terms and Conditions

Welcome to iTookThisOnMyPhone! We provide our members with an easy, fun and automatic way to share pictures from their smartphone.

However, before you enter the iTookThisOnMyPhone.com site (the “Site”) or use our photo sharing service (the “Service”) you must carefully review the terms of use set forth below (the “Terms”). In these Terms, the operator of the Site, iTookThisOnMyPhone.com, Inc., is referred to as “we” or “us”, and you are referred to as “you.”

By entering and using the Site or using or accessing any part of the Service, you are agreeing to these Terms of Service, our Privacy Policy and all other policies or notices posted by us on our Site. Specific pages on our Site may set out additional terms and conditions, all of which are incorporated by reference into these Terms. Your acceptance of these Terms creates a binding agreement between you and us. Your access to and use of the Site and the Service are expressly conditioned on and subject to your compliance with these Terms. If you do not agree with these Terms, do not access or use the Site or the Service. Note that any violation of these Terms may result in termination of our Service to you.

We have the right to change or update these Terms at any time without notice, but the most recent version will always be posted here. Please refer to this site periodically for any changes. By continuing to access or use the Service after we make any such changes, you agree to be bound by the revised Terms.

Your Photos

You may submit certain material to our Site, including without limitation, photographic images, as part of your use of the Service (“Submissions”).

You hereby grant to us a non-exclusive, royalty-free license to use, publish, copy, modify, transmit, display and distribute your Submissions for the sole purpose of delivering the Service. In addition, you warrant that all moral rights in any Submissions and uploaded materials have been waived and do hereby waiver any such moral rights.

Your physical or electronic sharing of your images constitutes permission for reprinting by the recipient. We will not be liable for the content of any Submission and expressly disclaim all liability relating thereto. All Submissions on the Site are the responsibility of the Submitter, thus you are responsible for your Submissions.

You agree that you will NOT post, place or transmit any of the following material or obtain any such material using the Service:

• Any threatening, defamatory, abusive, obscene, pornographic, inappropriate or profane material or any other material that could give rise to any civil or criminal liability under applicable law;
• Any material that could infringe rights of privacy, publicity, copyrights or other intellectual property rights without the permission of the owner of these rights and the persons (or their parents or legal guardians, where applicable) who are shown in the material if applicable
• Any material that contains worms, viruses, corrupt files, Trojan horses or other forms of corruptive code, or any other content which may compromise the Service (collectively “Destructive Code”);
• Any material sent from an anonymous or false address;
• Any material that advocates illegal activity;
• Any material that harms anyone, including minors; or
• Any material that promotes bigotry, racism, hatred or harm against any individual or group.

While we are not responsible for, and do NOT review or comment on the content of Submissions provided by users of our Service, we do reserve the right, in our discretion, to: (i) delete, move or edit Submissions that, in our sole discretion, we deem to be abusive, defamatory, obscene, inappropriate, or in violation of copyright or trademark laws, or otherwise unacceptable; or (ii) take any other action that we deem necessary relating to use or misuse of the Service.

We may request confirmation of the copyright or trademark ownership from the submitter. If we do not receive any such confirmation or if there are continued claims of copyright or trademark infringement relating to certain Submissions, we reserve the right to (i) suspend Service relating to the Submission in question, and/or (ii) share the submitter?s account information with governmental organizations, law enforcement authorities or other third parties. If you, as a submitter, dispute any copyright or trademark infringement claims, we will share with you the contact information of any party claiming any such infringement. In the event of any such dispute, we reserve the right to suspend the display, viewing or sharing of any Submissions until the issue has been resolved.

Our Service is not intended as a back-up solution. We recommend you maintain back-up copies of your Submissions on your hard drive or other personal system.

Your Account

You need to establish an account with us to use our Service.

We need to be able to access your account for the following reasons:

• To maintain our Service to you and develop new and useful features and services;
• We can remind you of your password in case you forget it; if this becomes necessary, we send an email upon your request to the address from which you opened your account;
• To comply with a court order, subpoena, complaint or a lawful request from governmental authorities;

We do not guarantee the availability of any particular web address(es). We also reserve the right, at any time and for any reason, to reclaim, suspend, terminate and/or transfer any web page or address provided by us to a user as we deem necessary in our sole discretion and, at our option, to provide users with an alternative web page and address.

Linking directly to images on our servers from external sites is expressly prohibited.

You agree to comply with all applicable law in accessing and using our Site and Service, including without limitation, any local laws that may be applicable in your particular jurisdiction. You are required to comply with U.S. export laws and regulations when you use or export any software or materials provided through the Site or the Service.

You agree not to take any action that will interfere with or disrupt the Service.

We will have the right to investigate and prosecute any violations of intellectual rights infringement and/or web site security issues, to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms.

You acknowledge that we have no obligation to monitor your access to, or use of, the Service, but we have the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms or to comply with applicable law or the order or requirement of a court, administrative agency or other government body.

If you violate any of these Terms, your permission to use the Service will terminate automatically. We reserve the right to cancel the Service or to discontinue accounts that have been inactive.

Fees

Depending on your smartphone provider and other factors, you may or may not be charged a fee for use of the Service. You will be advised of any fees in effect at the time you create an account for your specific smartphone and will be offered the opportunity at that time to select a method of payment if there are any fees in connection with your account.

Our Smartphone-Based Software

The Service works in concert with a software application downloaded to your specific smartphone device (the “Software”). By downloading the Software you agree to its installation on your smartphone and agree to be bound by the terms of the license for the Software granted herein and the other terms and conditions contained in these Terms.

Subject to the terms and conditions set forth herein, you are granted a personal, non-exclusive, revocable and non-transferable license to: (i) download or otherwise copy the Software onto your smartphone; and (ii) use the Software (in object code form only) on your smartphone solely for the purpose of accessing and using the Site and the Service.

In connection with the license granted to you hereunder, you agree:

• Not to copy, duplicate, transmit, disclose, present, execute, publish, distribute, grant a license or sublicense or otherwise transfer or disclose the Software to others;
• Not to reverse engineer, decompile, disassemble or otherwise attempt to derive the source code or structure of the Software or translate, merge, modify, alter or otherwise change the Software;
• Not to remove from the Software, erase or alter, any trademarks, service marks, trade names, logos, patent or copyright notices or other notices or markings;
• Not to create any derivative works based upon the Software, the Service or the Site;
• Not to use the Software to develop any product having the same primary function as the Software or the Service or any other product whatsoever;
• To use the Software only for your personal use and not to make any commercial use of the Software;
• To install any upgrades to the Software we may make available to you from time to time and to permit us to automatically install upgrades to the Software from time to time without notice to you (provided that nothing herein obligates us to make any upgrades to the Software);
• Not to make any other use of the Software or any part thereof that is not specifically permitted under the license granted herein, either directly or indirectly and/or with the assistance of any third party, nor permit any of the foregoing; and
• That you are responsible for the entire risk arising out of your use of the Software, the Site and the Service and that you will be solely responsible for any damages to your smartphone, or loss of date, that results from your use of the Software, the Site and the Service.

This license shall terminate upon your termination of use of the Service or upon any suspension, termination or cancellation of your access to the Service. Upon termination of the license, you must uninstall the Software from your smartphone, cease any further use of the Software and destroy any copies of the Software in your possession or control.

You agree that we and/or our licensors own all right, title and interest in and to the Software and all parts thereof, including all intellectual property and proprietary rights therein, and that the Software is licensed to you and that by downloading and installing the Software you acquire no ownership of, or intellectual property or other proprietary rights in the Software or any part thereof, but only a license to use the Software in accordance with the terms hereof.

Age Requirements

You must be at least 13 years of age to use our Service. If you, your parent or guardian, have any concerns please feel free to contact us.

Privacy Policy

We protect and use your personal information as set forth in our Privacy Policy. The terms and conditions of our Privacy Policy are incorporated in these Terms by reference.

Links to Third-Party Websites

We may provide links to third-party websites that we believe may be useful or informative. These links to third party websites or information are not intended as, and should not be interpreted by you as constituting or implying our endorsement, sponsorship, or recommendation of the third party websites or the information, products or services found there. Such third party websites are not under our control and we are not responsible or liable for the content, availability or accuracy of any linked website or any link contained within such linked website. Any such links are provided solely as an aid to help you identify and locate other Internet resources that may be of interest and are not intended to state or imply that we are legally authorized to use any trade name, registered trademark, logo, legal or official seal, or copyrighted symbol that may be reflected in the links. It is your responsibility to become familiar with each site?s privacy and other policies and terms of service, and to contact that site?s Webmaster or site administrator with any concerns. If you choose to access a third-party website linked on this Site you do so entirely at your own risk.

Third-Party Software, Goods and Services

We may make third party software, goods or services available to you from time to time. To access such third party software, goods or services, you must first agree to the third party?s terms and conditions governing such software, goods or services which agreement will be between you and the third party provider. We are not a party to any such arrangement between you and a third party provider and we disclaim any liability, and provide no warranties relating to such software, goods or services.

With respect to third-party software, this means, among other things, that we do not guarantee that any third party software you access will be free of any contaminating or Destructive Code, such as viruses, worms or Trojan horses. You acknowledge sole responsibility for and assume all risk arising from your download and use of any such software.

Disclaimer of warranties

THE SOFTWARE AND THE SERVICE, CONTENT AND/OR MATERIALS AVAILABLE THROUGH OUR SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.

WE MAKE NO WARRANTY THAT THE SOFTWARE, THIS SITE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT THE SOFTWARE, THIS SITE OR ITS SERVER IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE MAKES NO WARRANTY REGARDING ANY SOFTWARE, GOODS, SERVICES, SPECIAL OFFERS, OR THE DELIVERY, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS OR RELIABILITY OF ANY SOFTWARE, GOODS OR SERVICES, PURCHASED, ACCESSED OR OBTAINED THROUGH OUR SITE OR ADVERTISED THROUGH OUR SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE SOFTWARE, SITE OR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WE MAKE NO WARRANTY THAT THE SOFTWARE, THIS SITE OR THE SERVICE WILL NOT INFRINGE ON ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Limitation of liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL WE, OR OUR OWNERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS, SUPPLIERS AND/OR ANY OF OUR THIRD-PARTY INFORMATION PROVIDERS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT RESULT FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, OUR SOFTWARE, SITE OR SERVICE, FROM ANY CHANGES TO THE SOFTWARE, THIS SITE OR THE SERVICE, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SUBMISSIONS OR DATA, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

YOU SPECIFICALLY ACKNOWLEDGE THAT WE ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, WE WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THROUGH THE SERVICE.

YOU AGREE THAT OUR AGGREGATE LIABILITY TO YOU, IF ANY, FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SITE OR SERVICE IS LIMITED TO $100.00 USD. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT WE HAVE SET OUR PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

ANY ACTION OR CLAIM YOU MAY HAVE ARISING UNDER OR RELATING TO THE SOFTWARE, SITE, SERVICE OR THESE TERMS SHALL BE MADE ONLY AGAINST US AS A COMPANY, AND ANY LIABILITY RELATING THERETO SHALL BE ENFORCEABLE ONLY AGAINST THE COMPANY ASSETS. IN NO EVENT SHALL OUR OWNERS, DIRECTORS, OFFICERS, MANAGERS AND EMPLOYEES HAVE ANY PERSONAL LIABILITY HEREUNDER.

Indemnification

You agree to indemnify, defend and hold us, our owners, directors, managers, officers, employees, agents, licensors, suppliers and/or any of our third-party information providers harmless from and against all claims, liabilities, losses, expenses, damages and costs, including reasonable attorneys? fees, resulting from: (i) any violation of these Terms, or any activity related to access to or use of your account (including negligent or wrongful conduct) by you or any other person accessing the Service using your account; (ii) a claim that a Submission violates any applicable law; and/or (iii) a claim that a Submission infringes third party intellectual property rights.

Submission of Ideas

Our members are sometimes interested in submitting ideas for products and services to be used, either independent of, or in conjunction with, our Service. While we appreciate your interest in improving our Service, please note the following terms with respect to unsolicited ideas:

Unsolicited ideas submitted to us or any of our employees automatically become our property. By submitting unsolicited ideas to us you automatically forfeit your right to the intellectual property of these ideas and transfer all right, title and interest therein to us.

If you intend to own the intellectual property rights of your ideas in any way (patent, trade secrets, copyright, trademark, etc.) please do not submit your concepts or prototype samples to us or our employees.

Instead: Send a message to admin@itookthisonmyphone.com and describe ONLY the general application. If we think there is opportunity to pursue your idea further, we will contact you. Please note that a legal agreement may be required by us in order to evaluate your concept(s).

Proprietary Rights

The Software and the systems, services, and products, or portions thereof that form part of the Service, may be covered by one or more US Patents or pending US patent applications.

All of the information, content, and materials we offer are protected by copyright and other applicable laws of both the United States and foreign countries. You may not copy or distribute such material without the copyright owner?s prior written consent. You may use these materials for personal, non-commercial use only, subject to the restrictions set forth in these Terms, so long as you do not modify the materials or remove any copyright or other proprietary rights notices contained in the materials.

All right, title and interest in and to the Software, Site and Service is and will remain the exclusive property of us and our licensors. The Software, Site and Service are protected by copyright, trademark and other laws of both the United States and foreign countries. You may not copy or modify the HTML code used to generate web pages on the Site. You may not use the Site or Service on, or in connection with, any other website, for any purpose.

Government Restricted Rights. If the Software or Services are being acquired by or on behalf of the United States government or any other entity seeking or applying rights similar to those customarily claimed by the United Stated government, this Software, the Site and the Service are each a ?commercial item? as that term is defined at 48 C.F.R. (?FAR?) 2.101, are furnished with restricted rights and are licensed in accordance with these Terms, and each copy of the Software, Site or Service delivered or otherwise furnished or used shall be marked and embedded as appropriate and treated in accordance with following Notice of Use:

Notice of Use

Contractor (Manufacturer/Supplier) Name: ItookThisOnMyPhone.com, Inc.
Contractor (Manufacturer/Supplier) Address: 11103 Deerfield Road, Cincinnati, OH 45242, U.S.A.
This Software, Site and Service is a commercial item as defined in FAR 2.101 and is subject to the end user terms under which this Software, Site and Service was provided.
Copyright © 2009 ItookThisOnMyPhone.com, Inc. ? All rights reserved.
If the Contracting Officer, federal government agency, or any federal official refuses to use the legend provided herein, the Contracting Officer, federal government agency, or any federal official must notify ItookThisOnMyPhone.com, Inc. prior to seeking additional or alternative rights in the Software, Site or Service.

Use of the Software, Site or Service by any such governmental entity constitutes acknowledgment of our or our licensors? proprietary rights in them.

Governing Law and Dispute Resolution

The parties agree that these Terms and any claims hereunder shall be governed by and subject to the internal laws of the State of Ohio, United State of America, without regard to its conflict of law provisions, and, if applicable, the laws of the United States of America. To the extent applicable, the UN Convention on the International Sale of Goods shall not apply to this Agreement. Any controversy or claim arising out of, or relating to, the Software, Site or Service, or these Terms or the breach thereof, shall be settled solely and exclusively by binding arbitration in Cincinnati, Ohio, United States of America, by a single arbitrator and otherwise in accordance with the Commercial Arbitration Rules then obtaining of the American Arbitration Association. Judgment upon the award rendered may be entered in any court having jurisdiction thereof. Any issue concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of the provisions of this Section and the procedures set forth hereunder, including any contention that all or part of these procedures are invalid or unenforceable, shall be governed by the Federal Arbitration Act and resolved by the arbitrator. No discovery will be permitted in connection with the arbitration unless it is expressly authorized by the arbitrator upon a showing of substantial need by the party seeking discovery. You hereby waive any jurisdiction, venue or inconvenient forum objections to arbitration as provided herein. Notwithstanding the preceding, we may, at our option, institute or pursue litigation in any court having jurisdiction thereof at any time: (i) to specifically enforce or enjoin the violation of the provisions regarding our proprietary rights or the license granted with respect to our Software; or (ii) to protect any of our trademarks, service marks, patents, copyrights, trade secrets or other intellectual or industrial property; or (iii) to enforce a claim for indemnification; or (iv) or to pursue collection of any amounts due to us hereunder; or (v) to avoid irreparable harm or to prevent a danger to the general public. Except for a claim by us as described in items (i) through (iii) of the foregoing sentence, any action hereunder, whether a demand for arbitration or permitted litigation, must be brought, if at all, within one (1) year from the accrual of the cause of action.

Termination of Use

In the event of any violation of these Terms by you, we reserve the right, in our sole and exclusive discretion, to block your access to the Site and Service, to disable or uninstall the Software and to immediately terminate your use of the Site, Service and Software and any rights granted hereunder.

Miscellaneous

These Terms and the other documents referenced herein constitute the entire agreement between you and us with respect to your access and use of the Software, Site and Service, and supersede all other communications, written or oral, with regard to the Software, Site and the Service.

We shall not be required to perform any obligation hereunder that is directly or indirectly prevented by delays of vendors or suppliers, strikes, lockouts, fires, labor disputes, floods, accidents, war, embargoes on imports, orders or decrees of any court or other governmental authority, or any other causes whatsoever beyond our reasonable control, and the time for performance thereof shall be extended by the number of days such performance is so prevented.

The official text of these Terms and any schedules or exhibits referenced herein and any notices given hereunder shall be English. In the event of any dispute concerning the construction or interpretation of these Terms, reference shall be made only to these Terms as written in English and not to any translation into any other language.

By downloading, installing or using the Software or using the Site or the Service, you consent to receive all communications, including notices, agreements, legally required disclosures or other information in connection with the Software, Site or Service (collectively the ?Notices?) electronically. We may provide such Notices by posting them on the Site, by emailing them to the email address you provide to use or by downloading such Notices to your smartphone. The delivery of any Notices from us is effective when sent by us, regardless of whether you read the communication when you receive it. If you desire to withdraw your consent to receive Notices electronically, you must discontinue use of the Service.

You agree to fully comply with all export and import laws, regulations, rules and orders of the United States of America, or any foreign governmental agency or authority, and not to directly or indirectly export, re-export, transfer or release the Software or any other commodities, software or technology received from us, or any direct product thereof, for any proscribed end-use, or to any proscribed country, entity or person (wherever located), without proper authorization from the U.S. and/or foreign government. You further agree to assume responsibility for and bear all expenses relating to your compliance with the described laws, regulations, rules and orders, and obtaining all necessary authorizations and clearances.

The terms and conditions contained in these Terms that by their sense and context are intended to survive the performance hereof by either or both parties shall so survive the completion of performance, cancellation or termination of your use of the Software, Site or Service.

If any part of this Agreement is held to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision most closely matching the intent of the original provision and the remainder of the Terms will continue in effect. If, notwithstanding the foregoing, any provision of this Agreement is to be held to be invalid or illegal, then such invalid, illegal provision shall be severable and severed from the other provisions of this Agreement and the Agreement shall remain to be construed as if such invalid, illegal provision had never been contained herein.

We may assign our rights and obligations under these Terms without notice to you. You may not assign any rights or obligations under these Terms without our prior written consent, which may be withheld or conditioned in our discretion, and any assignment without our prior written consent shall be null and void and of no effect. We may perform all obligations to be performed under these Terms directly or may have some or all of our obligations performed by contractors or subcontractors.

These Terms shall inure to the benefit and be binding on the respective successors and permitted assigns of the parties hereto, and is made solely and specifically for their benefit. No other person shall have any rights, interest or claims hereunder or be entitled to any benefits under or on account of these Terms as a third-party beneficiary or otherwise.

Our failure to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. Neither the course of conduct between you and us, nor trade practice, shall act to modify any provision of these Terms. In the case of inconsistencies between these Terms and information included in off-line materials (for example, promotional materials and mailers), these Terms will always control.

You hereby represent and warrant that you have the full right, power and authority to agree to these Terms and to cause them to create a legal and binding obligation on you.

Effective Date

The effective date of these Terms is July 21, 2008.

304091.3:KU016.IT001
07/21/2008