Terms of Service

1. Your Acceptance

This is an agreement between esQay Inc., a Delaware corporation (“esQay”), the owner and operator of picoprojector.org (the “esQay Site”), and collectively, including all features and content available through the esQay Site, the “esQay Service”, or the “Service”, and you (“you” or “You”), a user of the Service. BY USING THE SERVICE, YOU ACKNOWLEDGE AND AGREE TO THESE TERMS OF SERVICE, AND ESQAY’S PRIVACY POLICY, WHICH CAN BE FOUND AT http://www.picoprojector.org/privacy.html, AND WHICH ARE INCORPORATED HEREIN BY REFERENCE. If you do not agree to any of these terms, you may not use the Service.

2. esQay Service

These Terms of Service apply to all users of the Service. The esQay Site may provide status information and may contain links to third party websites that are not owned or controlled by esQay. esQay has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, esQay will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly acknowledge and agree that esQay shall not be responsible for any damages, claims or other liability arising from or related to your use of any third-party website.

3. esQay Access

A. Subject to your compliance with these Terms of Service, esQay hereby grants you permission to use the Service, provided that: (i) your use of the Service as permitted is solely for your personal, noncommercial use; (ii) you will not duplicate, transfer, give access to, copy or distribute any part of the Service in any medium without providing a hyperlink or other attribution back to the original content on the esQay Site; (iii) you will not attempt to reverse engineer, alter or modify any part of the esQay Site or Service; and (iv) you will otherwise comply with the terms and conditions of these Terms of Service.

B. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc. or “load testers” such as wget, apache bench, mswebstress, httpload, blitz, etc., that accesses the Service in a manner that sends more request messages to the esQay servers in a given period of time than a human can reasonably produce in the same period. Notwithstanding the foregoing, esQay grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. esQay reserves the right to revoke these exceptions either generally or in specific cases. You must secure our permission before you measure, test, health check or otherwise monitor any network equipment, servers or assets hosted on our domain. You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service for any commercial solicitation or spam purposes. You agree not to solicit, for commercial purposes, any users of the Service with respect to their User Submissions (as defined below).

4. Intellectual Property Rights

The design of the esQay Site along with esQay created text, scripts, graphics, interactive features and the like (“esQay Content”) except all User Submissions (as defined below), and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to esQay, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. The Service is provided to you AS IS for your information and personal use only. esQay reserves all rights not expressly granted in and to the Service and the esQay Content. You agree to not engage in the use, copying, or distribution of any of the esQay Content other than expressly permitted herein (see Section 3 A(ii)), including any use, copying, or distribution of User Submissions of third parties obtained through the Service for any commercial purposes.

5. User Submissions

A. The esQay Service may permit the submission of text and other communications submitted by you and other users (“User Submissions”) and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, esQay does not guarantee any confidentiality with respect to any submissions.

B. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. Because esQay is only acting as a repository of data, user submitted statuses do not necessarily represent the views or opinions of esQay, and esQay makes no guarantees as to the validity, accuracy or legal status of any User Submissions. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize esQay to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Service and these Terms of Service; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Service and these Terms of Service. By submitting the User Submissions to esQay, you hereby grant esQay a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the esQay Service and esQay’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the esQay Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each subscriber to your status on the esQay Service a non-exclusive license to access your User Submissions through the Service, Email, and mobile phone and to display parts of User Submissions as permitted through the functionality of the Service and under these Terms of Service. The foregoing license granted by you terminates once you remove or delete a User Submission from the esQay Service.

C. In connection with User Submissions, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant esQay all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage esQay or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; (v) impersonate another person; (vi) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (vii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (viii) attempt to gain unauthorized access to the Service or its related systems or networks.

D. Adult content must be identified as such. esQay does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and esQay expressly disclaims any and all liability in connection with User Submissions. esQay does not permit copyright infringing activities and infringement of intellectual property rights via its Service, and esQay will remove all esQay Content and User Submissions if properly notified that such esQay Content or User Submission infringes on another’s intellectual property rights. esQay reserves the right to remove esQay Content and User Submissions without prior notice. esQay may also terminate a user’s access to its Service, if they are determined to be a repeat infringer, or for any or no reason. A repeat infringer is a User who has been notified of infringing activity more than once and/or has had a User Submission removed from the Website more than twice.  esQay also reserves the right to decide whether content or a User Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to excessive length or limited interest. esQay may remove such User Submissions and/or terminate a User’s access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.

E. You understand that when using the esQay Service you will be exposed to User Submissions from a variety of sources, and that esQay is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions, and that such User Submissions are not the responsibility of esQay. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against esQay with respect thereto, and agree to indemnify and hold esQay, its officers, directors, agents, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.

F. esQay reserves the right to discontinue any aspect of the esQay Service at any time.

6. Warranty Disclaimer

YOU AGREE THAT YOUR USE OF THE SERVICE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, ESQAY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF. ESQAY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SERVICE’S CONTENT AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE THROUGH THE ACTIONS OF ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONSIN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. ESQAY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY USER STATUS SUBMISSION OR OTHER ADVERTISING, AND ESQAY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

7. Limitation of Liability

IN NO EVENT SHALL ESQAY, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVERS, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE ESQAY SITE OR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

YOU SPECIFICALLY ACKNOWLEDGE THAT ESQAY SHALL NOT BE LIABLE FOR USER SUBMISSIONS 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.

The Service is controlled and offered by esQay from its facilities in the United States of America. esQay makes no representations that the esQay Service is appropriate or available for use in other locations. Those who access or use the esQay Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.

8. Indemnity

You agree to defend, indemnify and hold harmless esQay, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the esQay Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the esQay Service.

9. Ability to Accept Terms of Service

You affirm that you are either more than 16 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are at least 16 years old as the esQay Service is not intended for children under 16. If you are under 16 years of age, you are not permitted to use the esQay Service.  You further represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a” terrorist-supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties.  esQay is the developer of the esQay Site and Service, with a mailing address at P.O. Box 390159, Mountain View, CA 94039, info@picoprojector.org.

10. Assignment

These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by esQay without restriction.

11. General

You agree that: (i) the esQay Service shall be deemed solely based in California; (ii) the esQay Service shall be deemed a passive server that does not give rise to personal jurisdiction over esQay, either specific or general, in jurisdictions other than California; and (iii) that you agree to subject to the jurisdiction of California in the event of any legal dispute. These Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and esQay that arises in whole or in part from the esQay Site or esQay Service shall be decided exclusively by a court of competent jurisdiction located in Santa Clara County, California. These Terms of Service, together with the Privacy Policy at http://www.picoprojector.org/privacy.html and any other legal notices published by esQay, including, but not limited to an end user license agreement, shall constitute the entire agreement between you and esQay concerning the esQay Site and esQay Service. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and esQay’s failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. esQay reserves the right to amend or modify these Terms of Service at any time, and it is your responsibility to review these Terms of Service for any changes. Your use of the esQay Site or esQay Service following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND ESQAY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE ESQAY SITE OR SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

Effective:  March 12, 2010