TERMS AND CONDITIONS



(October 11, 2012)

Your Agreement with Visual Icon, Inc

For purposes of these Terms and Conditions, “Website” shall mean the websites with the address www.visual-icon.com and “Visual Icon”, shall hereinafter refer to Visual Icon, Inc.  The following are the Terms and Conditions that govern your use of this Website and, if applicable, the Visual Icon platform (the “Platform”). These Terms and Conditions may be updated by us from time to time without notice to you. Please be aware it is your responsibility to review these Terms and Conditions when using the Website and/or Platform to insure you are aware of all amendments to them.  In addition, when using particular services, you shall be subject to any posted guidelines or rules applicable to such services, which may be posted from time to time.   All such guidelines or rules are hereby incorporated by reference into these Terms and Conditions.

Account Information

In consideration of your use of the Website, you agree to: (i) provide true, accurate, current and complete information about yourself and/or your company as prompted by the Website’s registration form (such information being the “Account Data”); and (ii) maintain and promptly update the Account Data to keep it true, accurate, current and complete. You shall receive a password and user name upon completing the registration process. You are responsible for maintaining the confidentiality of the password and user name, and are fully responsible for all activities that occur under your password or user name. You further agree to: (i) immediately notify Visual Icon of any unauthorized use of your password or user name or any other breach of security; (ii) ensure that you exit from your account at the end of each session; and (iii) defend, indemnify and hold harmless Visual Icon from any loss or damage arising from unauthorized use of your password or user name.

THESE TERMS AND CONDITIONS OF USE CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND Visual Icon.  IF YOU ARE USING THE WEBSITE AND/OR PLATFORM ON BEHALF OF YOUR EMPLOYER, PRINCIPAL OR CLIENT, EACH OF YOU AND YOUR EMPLOYER, PRINCIPAL OR CLIENT ARE SUBJECT TO THE TERMS OF THESE TERMS AND CONDITIONS, AS AMENDED FROM TIME TO TIME.

Competence to Accept Terms and Conditions

By using the Website, accessing or creating an account with Visual Icon, or creating projects, if applicable, you affirm that you are fully able and competent to agree to these Terms and Conditions and any other obligations, affirmations, representations, and warranties set forth herein and on the Website or in our License Agreements, that you have the power and authority to agree to these terms on behalf of yourself or your principal, and that you have read and agree to such Terms and Conditions.

Ownership

The Website is owned and operated by Visual Icon, Inc.  All aspects of the Website, including, but not limited to the design and “look and feel” thereof, and all of the content featured or displayed therein, including, but not limited to text, graphics, photographs, images, moving images, animation, sound, illustrations and software and compilations thereof (together with the Marks (as defined below)) are referred to herein as “Content”) and are owned by Visual Icon, Inc and/or its licensors and/or Content providers. “Visual Icon,” its respective logo, and all other marks owned by Visual Icon (the “Marks”) are trademarks of Visual Icon, Inc and may not be used without the prior written permission of Visual Icon.  Any graphical marks, logos, other proprietary rights or slogans contained in the Website are trademarks of Visual Icon’s suppliers or licensors and may not be copied, or used, in whole or in part, without prior consent of Visual Icon or the applicable trademark owner.

All elements of the Website and Platform, including but not limited to, the Content thereof are protected by trade dress, copyright, moral rights, trademark, and other laws relating to property rights.  Except as explicitly permitted under separate agreement with Visual Icon, no portion or element of the Website, the Platform, or the Content may be reproduced, distributed, modified, publicly performed or displayed, transmitted, reverse engineered, decompiled, sold, sublicensed or otherwise exploited via any means or in any way, and the Website, the Platform, the Content, and all related rights shall remain the exclusive property of Visual Icon, its licensors, Content providers, and/or its Platform service customers unless otherwise expressly agreed.

Use of the Website and Content

The Website and any Content available for licensing via the Website or from Visual Icon are intended to be accessed and utilized by customers and registered users of Visual Icon. You are specifically prohibited from: (i) copying or re-transmitting any portion or the entire Website; (ii) downloading and/or using any of the Content available from Visual Icon without a valid license agreement with Visual Icon or absent other agreements between Visual Icon and Platform service customers; or (iii) manipulating or otherwise displaying the Website or any Content available from the Website or Visual Icon by using framing or other navigational technology.  You are also prohibited from using any data mining, automated, robotic or similar data aggregation or extraction methods or technologies on or in connection with this Website.  Any unauthorized use of this Website, the Platform, or any Content available from this Website or Visual Icon may violate applicable copyright and trademark laws, right of privacy or right of publicity, and/or other proprietary rights and applicable federal, state and local laws, rules, orders or regulations, which shall entitle Visual Icon to take action against you, your employer or principal including, without limitation, seeking injunctive relief, as well as damages in the form of actual damages for loss of income, profits derived from the unauthorized use and, where appropriate, attorneys’ fees, other costs of collection, and/or statutory damages.

By accessing the Website, the Platform, or logging into your account and utilizing the Website or Platform, including the viewing, licensing or downloading of any Content, you agree that you have read and agree to all the Terms and Conditions contained herein and in the Privacy Policy and that you will comply with all applicable laws and regulations, and all privacy and other intellectual property and export laws.

Downloading of Content

In order to download, license and use copyrighted Content from Visual Icon, you must enter into and agree to be bound by the terms and conditions set forth in our License Agreement or other applicable agreements with us for your use of Content prior to the delivery or download of such Content.  In the event you receive or download Content without a valid License Agreement, you must return the Content to Visual Icon, make no public use of the Content, and retain no copies of the Content.  In the event you make any commercial, editorial or public use of any Content without a valid License Agreement, your use shall constitute copyright infringement and entitle Visual Icon to all legal and equitable relief against you for such use, and you shall indemnify Visual Icon, its licensors, suppliers, officers, directors, employees, and agents against all claims, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, arising from or in connection with your use or exhibition of such Content, and for your negligent or willful misconduct.

Visual Icon may use certain technology including, but not limited to, watermarks or other digital rights management technologies to protect the data and Content on our Website.  This technology may be embedded within the Content available on this Website. Visual Icon reserves the right to use such technology to track, monitor and protect the Content and data available on this Website and distributed or otherwise made available by Visual Icon.  Failure to agree to the use of such technology requires that you discontinue use of the Website or any Content available or downloaded from the Website.  When you access the Website or download Content from Visual Icon, you agree not to disrupt the use of such technology by disabling such technology.  Further you will not attempt to remove any proprietary rights notices, including but not limited to copyright notices, embedded in the Content or anywhere on the Website.  Use of the Website represents your agreement not to engage in any activity that disrupts, evades, intercepts, impedes, or violates any technology enabled on the Website or that violates any applicable federal, state or local laws or regulations, or these Terms and Conditions.

All license fees reflected on an invoice or quote in connection with any Content you download or otherwise receive or license from Visual Icon include applicable fees associated with the access, processing, and fulfillment of Content through the Website and the Platform.   Depending on your requested or licensed use of Content and/or delivery method of Content, additional fees may apply and will be reflected on your invoice or quote associated with the Content you download or otherwise receive or license from Visual Icon.

Disclaimer

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

  1. THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, VISUAL ICON EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

  2. VISUAL ICON MAKES NO WARRANTY THAT: (i) THE WEBSITE SHALL MEET YOUR REQUIREMENTS; (ii) THE WEBSITE SHALL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (iii) THE CONTENT OR THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE SHALL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE SHALL MEET YOUR EXPECTATIONS; (v) ANY ERRORS IN THE CONTENT OR WEBSITE SHALL BE CORRECTED; AND (vi) THE WEBSITE OR ANY CONTENT IS MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR DOES NOT INFRINGE UPON ANOTHER’S RIGHTS.

  3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM VISUAL ICON OR THROUGH OR FROM THE WEBSITE SHALL CREATE ANY WARRANTY, UNLESS EXPRESSLY STATED IN THESE TERMS AND CONDITIONS OR IN ANY APPLICABLE AGREEMENT, BETWEEN YOU AND VISUAL ICON.

YOU ACKNOWLEDGE THAT NEITHER VISUAL ICON NOR ITS CONTENT PROVIDERS SHALL BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES RESULTING FROM YOUR ACCESS TO OR USE OF THE WEBSITE OR THE CONTENT THEREON UNLESS OTHERWISE PROVIDED IN AN APPLICABLE AGREEMENT BETWEEN YOU AND VISUAL ICON. WITH RESPECT TO ALL OTHER CLAIMS RELATED TO YOUR USE OF THE WEBSITE OR CONTENT, EXCEPT AS OTHERWISE SET FORTH IN A LICENSE AGREEMENT FOR USE OF THE CONTENT WITH VISUAL ICON, VISUAL ICON’S LIABILITY SHALL NOT EXCEED $500.

VISUAL ICON USES REASONABLE ENDEAVORS TO ENSURE THAT THE WEBSITE AND THE PLATFORM AND ITS SERVICES ARE AVAILABLE 24 HOURS A DAY 7 DAYS A WEEK.  THERE WILL BE OCCASIONS, HOWEVER, WHEN THE WEBSITE, THE PLATFORM, OR VISUAL ICON’S SERVICES WILL BE INTERRUPTED FOR MAINTENANCE, UPGRADES, AND EMERGENCY REPAIRS OR DUE TO FAILURE OF THIRD PARTY EQUIPMENT OR TELECOMMUNICATION VENDORS THAT ARE BEYOND THE CONTROL OF VISUAL ICON.  EVERY REASONABLE STEP WILL BE TAKEN TO MINIMIZE ANY DISRUPTIONS.  YOU AGREE THAT VISUAL ICON SHALL NOT BE LIABLE TO YOU FOR ANY MODIFICATION, SUSPENSION, OR DISCONTINUANCE OF THE WEBSITE OR THE PLATFORM.  YOU ARE RESPONSIBLE FOR CREATING BACKUPS OF ANY CONTENT YOU POST TO THE WEBSITE OR THE PLATFORM.

Privacy Policy

Visual Icon is committed to respecting and protecting your privacy.  Please review our Privacy Policy for information regarding how we collect, use, and disclose personal information.

Indemnity

You shall defend, indemnify and hold harmless Visual Icon, its subsidiaries, affiliates, licensors, Content providers and their respective officers, directors, employees, agents, successors and assigns, from any and all loss, damage, liability, cost and expense, including without limitation attorneys’ fees and costs, incurred by any or all of them as a result of your breach of these Terms and Conditions or your unauthorized use of the Website, the Content, and/or other related rights.

No Unlawful or Prohibited Use

As a condition of your use of the Website or the Platform, if applicable, you represent and warrant to Visual Icon that you shall not use the Website or the Platform for any purpose that is unlawful or prohibited by these Terms and Conditions. You may not use the Website or the Platform in any manner that could damage, disable, overburden, or impair the Website or Platform or interfere with any other party’s use and enjoyment of the Website or Platform. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Website or Platform, if applicable.

Notice and Procedure for Making Claims of Copyright Infringement

Pursuant to Title 17, United States Code, Section 512, notifications of claimed copyright infringement on the Website should be sent to our designated agent. If you believe that your work has been used in a way that may constitute copyright infringement, please provide Visual Icon’s designated agent the following information:

  1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

  2. A description of the copyrighted work that you claim has been infringed;

  3. A description of where the material that you claim is infringing is located on the Website;

  4. Your address, telephone number, and email address;

  5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

  6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

To report alleged copyright infringements, please contact legal@visual-icon.com.

Miscellaneous

These Terms and Conditions shall be governed by and construed pursuant to the laws of the State of California, without regard to such state’s conflict of law rules. The courts located in California, shall have exclusive jurisdiction over these Terms and Conditions and you agree to submit to the personal and exclusive jurisdiction of such courts. The failure of Visual Icon to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision. If any part of these Terms and Conditions are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision shall be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and, in any case, the remainder of the Terms and Conditions shall continue in effect. Unless otherwise specified herein, these Terms and Conditions constitute the entire understanding between you and Visual Icon with respect to the Website and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Visual Icon with respect to the Visual Icon Website.

Contact Information

All questions regarding the Terms and Conditions should be directed to Legal Department at Visual Icon at legal@visual-icon.com.