Effective as of June 19, 2009, for Canadian Customers
Effective as of July 20, 2009, for US Customers
These terms of use (“Terms of Use”) describe the terms on which Pure Digital Technologies, Inc. (“Pure Digital,” “we,” or “us”) provides the Pure Digital software and the Pure Digital web sites including the websites located at http://www.theflip.com, http://www.flipshare.com, and http://flipvideospotlight.com (collectively the “Pure Digital Services” or “Services”).
1. INTRODUCTION
By using the Services, you accept the Pure Digital Technologies, Inc., Terms of Use and the following terms and conditions and policies, including any future amendments (collectively, the “Agreement”):
If you download and install software provided from Pure Digital, you are also subject to the end user license agreement associated with that software.
Changes and Modifications. Pure Digital reserves the right, at its sole discretion, to change, modify, add, or remove portions of this Agreement, at any time. Such changes will become effective thirty (30) days after they have been posted to this site or Pure Digital has otherwise notified you of the change. Though Pure Digital may attempt to notify you when major changes are made to this Agreement, you should periodically review the most recent version which is always available from a link on our homepage. Your continued use of the Services following the posting of changes will mean that you accept and agree to the changes. As long as you comply with this Agreement, Pure Digital grants you a limited, revocable, non-exclusive, non-assignable, non-sublicenseable right to access and use the Services as they are intended to be used and in accordance with this Agreement and applicable law. We grant you no other rights, implied or otherwise.
Links To Other Sites. The Services may contain links to other independent third-party websites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under Pure Digital’s control, and Pure Digital is not responsible for and does not necessarily endorse the content or practices of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
2. DESCRIPTION OF SERVICES
General Description. The Pure Digital Services include a number of tools that help you get information on The Flip video camcorder and other Pure Digital products, personalize your Flip video camcorder and share that personalized design with others, purchase your own Flip video camcorder, and to share video you capture via DVD or over the internet. The Services also make it possible for you to turn your best designs into income by allowing your design to be featured on the Services and sold to other customers. Feel like doing some good? With our Flip Video Spotlight Program and Flip for Good program, your designs can even help raise money and make Flip video camcorders available for charities that are partnered with Pure Digital.
Adults Only. The Pure Digital Services are intended for adults only. You must be 18 years of age or older or, if the age of majority in your state or province is greater than 18 years, you must have attained the age of majority in your state or province, to use this site, purchase a Flip video camcorder or DVD from the site, create a user account with Pure Digital, and engage in any of the programs offered by Pure Digital. In accordance with Federal Children's Online Privacy Protection Act of 1998 (COPPA), Pure Digital will never knowingly solicit nor will it accept personally identifiable information from users known to be under thirteen (13) years of age. Please see our privacy policy for additional information or for how to notify us of any concerns in this regard.
3. CONDITIONS OF USE AND USER CONDUCT
As a condition of use, you agree to the following:
- You acknowledge that the Services are for personal use only. Except as described in the Flip video design sharing through CafePress.com program (described in section 4 below), you agree that you will not use the Services for any commercial purposes.
- Certain features of the Services permit or require you to open an account (including setting up a user name and password). You are entirely responsible for maintaining the confidentiality of your account information, including your password, and for any and all activity that occurs under your account. You agree to notify Pure Digital immediately of any unauthorized use of your account or password, or any other breach of security.
- You must not use the Services to harass, threaten, impersonate, or intimidate anyone.
- You must not upload, post, email, transmit, or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable.
- You must not upload, post, email, transmit, or otherwise make available any content that is in violation of copyright, trademark or other law protecting intellectual property in any jurisdiction, or that violates an individual’s publicity or privacy rights.
- You must not upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," "affiliate links," or any other form of solicitation.
- You must not transmit any worms or viruses or any code of a destructive nature.
- You must not violate any local laws in your jurisdiction (including but not limited to intellectual property laws).
- You must not use the Services for any illegal or unauthorized purpose. If you are an international user, you agree to comply with all local laws regarding online conduct and acceptable content.
4. FLIP VIDEO SPOTLIGHT, FLIP FOR GOOD, AND DESIGN SHARING THROUGH CAFEPRESS.COM
4.1 Flip Video Spotlight and Flip for Good Participants
After placing an order for a custom designed Flip video camcorder, you may elect to donate your custom design to the Flip Video Spotlight Program which will use the sales commissions from your design to provide free camcorders to nonprofit and/or charitable organizations. Designs may be made available in this way by selecting the “earn money for charity” link following the placement of your order. If your design is accepted, it will populate in the Flip For Good section of www.theflip.com. Pure Digital Technologies will then donate a Flip video camcorder to a charity or nonprofit organization of its choosing for each seven (7) Flip video camcorders sold bearing a Flip for Good design. Designs are approved for the Flip for Good program at Pure Digital Technologies’ sole discretion.
4.2 Design Sharing Program Participants
After placing an order for a designed Flip video camcorder, you may elect to make your custom design available for sale to others and receive ten dollars ($10) each time a Flip video camcorder featuring your design is sold. Designs may be made available in this way through our partners at CafePress.com by selecting the “earn money from your design” link following the placement of your order. You will be required to register as a CafePress.com user in order to share your design in this way, and will be required to agree to CafePress.com’s own terms of service. (For more information regarding Linked Sites, such as CafePress.com, please consult the section above under “Introduction” that discusses “Links To Other Sites.”) Designs shared through CafePress.com may also be selected by Pure Digital for inclusion at its own www.theflip.com store, allowing you to earn income when orders for Flip video camcorders customized with your design are placed from that site as well. Designs may be selected for inclusion, or removal, from the www.theflip.com store at Pure Digital’s sole discretion.
4.3 Pure Digital and Your Shared Design
In no event shall Pure Digital be required to provide you with information regarding the sales of Flip video camcorders bearing your custom design including, but not limited to, the number of units sold bearing that design.
You agree to hold Pure Digital harmless in the event that network, computer system, transmission, or other errors cause your shared design to be improperly processed.
5. CONTENT SHARING
The Services allow you to upload, transmit, publish and disseminate designs, video, or other images (“User Content”) for the purposes of creating your own personalized Flip video camcorder(s), sharing such content through the Services
(and through third-party sites such as Facebook and Blogger), and, in some cases, permitting the use of your User Content by others on their personalized Flip video camcorder(s) through the Flip Video Spotlight program and the Design Sharing Program.
When you use copyrightable User Content on or through the Services, you retain ownership of any copyright you claim to your User Content. You also represent and warrant that, with respect to all User Content that you upload, transmit, publish and disseminate through the Services, (a) you have all the rights and licenses necessary to use, reproduce, publish, display publicly, perform publicly, distribute or otherwise exploit such User Content in connection with the Services (and to grant to Pure Digital the licenses set forth in this Agreement); (b) the User Content will not infringe or otherwise violate the copyright, trademark or other intellectual property rights of any third party; and (c) you have the consent, release, and/or permission of each identifiable person depicted in your User Content to upload, transmit, publish and/or disseminate their name and/or likeness through the Services.
By submitting User Content as set forth above, you hereby do and shall grant to Pure Digital (and its successors, assigns, third party service providers (e.g. contract manufacturers), distributors, VARs, OEMs, resellers and other channel partners) a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable, and transferable license to use, reproduce, modify, create derivative works from, distribute, publicly display, publicly perform, and otherwise exploit the content on and in connection with the manufacture, sale, promotion, marketing and distribution of products sold on, or in association with, the Services or with any of the distributors of products sold in association with the Services, and in any medium and by any means currently existing or yet to be devised. You also hereby do and shall grant to each user of the Services a non-exclusive license to access and view your content through the Services, and to use, reproduce, modify or create derivative works based thereon, distribute, publicly display, publicly perform, or publicly perform by means of a digital audio transmission such content as permitted through the functionality of the Services and the products sold therein (and through its other distributors).
While Pure Digital makes User Content shared by users available according to the user’s sharing wishes, by using the Services, you acknowledge and agree that Pure Digital does not guarantee access to and hosting of your User Content that is shared via the Services. For example, if User Content violates these Terms of Use, access to it may be disabled. Also, if a particular piece of content creates too large a demand on the Services, it may result in access to the content being temporarily or permanently disabled.
6. COPYRIGHT POLICY REGARDING THIRD PARTIES
If you believe that Pure Digital, or any user of the Services, has violated a copyright you claim in your work, please contact us pursuant to the Digital Millennium Copyright Act (“DMCA”) at copyright@puredigitalinc.com and review our copyright policy for more details on how to properly notify us of a DMCA issue.
7. PURE DIGITAL’S INTELLECTUAL PROPERTY
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, content, and computer code (collectively, “Pure Digital Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel,” and arrangement of such Pure Digital Content, contained on the Services is owned, controlled, or licensed by or to Pure Digital, and is protected by trade dress, copyright, patent, and trademark laws, and various other intellectual property rights.
Except as expressly provided in this Agreement or otherwise permitted by law, no Pure Digital Content may be used, copied, reproduced, modified, republished, uploaded, posted, publicly displayed, publicly performed, publicly performed by means of a digital audio transmission, encoded, translated, transmitted, or distributed in any way to any other computer, server, website, or any other medium for publication or distribution or for any commercial enterprise or purpose, without Pure Digital’s express prior written consent.
8. VIOLATION OF THIS AGREEMENT - TERMINATION
You agree that Pure Digital may, at its sole discretion and without prior notice, terminate your access to the Services and/or block your future access to the Services if we determine that you have violated this Agreement or other agreements or guidelines which may be associated with your use of the Services. Please note that it is Pure Digital’s policy to terminate the account of users who violate the copyrights of third parties.
If Pure Digital does take any legal action against you as a result of your violation of this Agreement, Pure Digital will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Pure Digital. You agree that Pure Digital will not be liable to you or to any third party for termination of your access to the Services as a result of any violation of this Agreement.
9. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PURE DIGITAL AND ITS SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS AND LICENSORS (THE “PURE DIGITAL AFFILIATES”) EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY WARRANTY OR CONDITION ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. PURE DIGITAL AND THE PURE DIGITAL AFFILIATES MAKE NO WARRANTY THAT (a) THE SERVICES WILL MEET YOUR REQUIREMENTS; (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) USER CONTENT WILL BE HOSTED AND/OR TRANSMITTED WITHOUT INTERRUPTION OR CESSATION; (d) ANY PRODUCTS, SITES, INFORMATION OR OTHER MATERIAL, WHETHER IN TANGIBLE OR INTANGIBLE FORM, PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS OR ANY STANDARD OF QUALITY; AND (e) ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES OR RELATED SOFTWARE WILL BE CORRECTED.
ANY MATERIAL, INFORMATION OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULT FROM THE DOWNLOAD OF SUCH MATERIAL. NO ADVICE, REPRESENTATION OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PURE DIGITAL OR THROUGH THE WEBSITES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
10. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT PURE DIGITAL AND THE PURE DIGITAL AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES THAT MAY BE INCURRED BY YOU, HOWEVER CAUSED. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY LOSS OF PROFITS, GOODWILL OR BUSINESS REPUTATION; ANY LOSS OF DATA; ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR ANY OTHER INTANGIBLE LOSSES. THIS ALSO INCLUDES ANY LOSS OR DAMAGES THAT MAY BE INCURRED BY YOU AS A RESULT OF (a) ANY CHANGES THAT PURE DIGITAL MAY MAKE TO THE SERVICES; (b) ANY PERMANENT OR TEMPORARY CESSATION OF THE SERVICES; (c) THE DELETION OR CORRUPTION OF OR FAILURE TO STORE ANY CONTENT OR OTHER PROPERTY MAINTAINED THROUGH THE SERVICES; OR (d) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY ABOVE SHALL APPLY IRRESPECTIVE OF THE THEORY OF LIABILITY, INCLUDING CONTRACT (INCLUDING FUNDAMENTAL BREACH), WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY, EVEN IF WE (OR OUR AFFILIATES) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU SPECIFICALLY ACKNOWLEDGE THAT PURE DIGITAL AND THE PURE DIGITAL AFFILIATES SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
11. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND, IN SUCH INSTANCES, THE PURE DIGITAL AFFILIATES’ LIABILITY WILL BE LIMITED ONLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
12. INDEMNIFICATION
You will indemnify and hold Pure Digital and/or the Pure Digital Affiliates harmless from and against any and all liabilities and costs (including reasonable attorneys’ fees) incurred by Pure Digital and/or the Pure Digital Affiliates in connection with any claim arising out of your breach of the Agreement. Pure Digital reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
13. GENERAL TERMS
Entire Agreement. This Agreement is the whole legal agreement between you and Pure Digital. It governs your use of the Services and completely replaces any prior agreements between you and Pure Digital with respect to the Services. You may also be subject to additional terms and conditions that may apply when you use or purchase other services or products from Pure Digital and affiliated services.
Governing Law. You agree that all matters relating to your access to or use of the Services, including all disputes, will be governed by the laws of the United States and by the laws of the State of California without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the State and Federal courts in San Francisco County, California, and waive any objection to such jurisdiction or venue.
Dispute Resolution. No recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys’ fees. In the event of any controversy or dispute between Pure Digital and you arising out of or in connection with your use of the Services, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.
Statute Of Limitations. You agree that regardless of any statue or law to the contrary, any claim under this Agreement must be brought within one (1) year after the cause of action arises, or such claim or cause of action is forever barred.
Severability of Terms; Non-waiver of Terms; Assignment. If any portion of the Agreement is held to be invalid or unenforceable, such provision shall be stricken and the remainder of the Agreement enforced as written. If Pure Digital does not exercise or enforce any legal right or remedy including those contained in the Agreement or arising under applicable law, this will not be taken to be a formal waiver of our rights. Pure Digital may assign or delegate all rights and obligations under the Agreement, fully or partially.
Notices. Pure Digital may provide you with notices, including those regarding changes to the Agreement, by email, regular mail, or postings to the Services. Pure Digital’s mailing address is 30 Maiden Lane, 6th Floor, San Francisco, California 94108. Legal notices must be served on Pure Digital Technologies, Inc.’s national registered agent in Delaware. If you have general questions or concerns regarding these Terms of Use, please contact us in writing at terms@puredigitalinc.com or at our mailing address.
Third Party Beneficiaries. Each Pure Digital Affiliate is an intended third party beneficiary to this Agreement and shall be entitled to directly enforce and rely upon any provision of the Agreement that confers a benefit on them. Other than this, no other person shall be a third party beneficiary to the Agreement.