.1: Documentl FINKELSTEIN K-RINSK LLP JEFFREY R. KRINSK (109234) jrk@classactionlaw.com MARK L. KNUTSON (131770) rnlk@classactionlaw.corn WILLIAM R. RESTIS (246823) wrr@classactionlaw.corn 501 West Broadway, Suite 1250 San Diego, CA 92101 Tel: (619) 238-1333 Fax: (619) 238-5425 Attorneys for Plaintiff Lucy Funes UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Fi|ed12/21/12 Pagel 2 NC SAN FRANCISCO DIVISION Case No. LUCY FUNES, Individually, and on behalf of all others similarly situated, Plaintiff, VSI INSTAGRAM, INC., a Delaware Corporation; and INSTAGRAM, LLC, a Delaware LLC Defendants. ACTIOQ 6 4 8 2 COMPLAINT FOR: 1. BREACH OF CONTRACT - VIOLATION OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING VIOLATION OF CALIFORNIA CIVIL CODE 3344; BREACH OF BAILMENT VIOLATION OF CAL. BUS. PROF. CODE 17200, et seq.; DECLARATORY RELIEF PURSUANT TO THE FEDERAL DECLARATORY JUDGMENTS ACT, 28 U.S.C. 220] 57 JURY TRIAL DEMANDED o--Documentl Fi|ed12/21/12 Page2 of 27 COMES NOW Lucy Funes (''Plaintiff' or "Funes"), an individual who, based on the investigation of counsel' and on information and belief, hereby against defendants lnstagram, Inc. and Instagram LLC, (collectively, "Instagram" or "Defendants") as follows: INTRODUCTION 1. Instagram is a web-based photograph sharing platform, which Plaintiff and other California customers use to host and share photographs and artistic content. This action challenges the proposed shift in property rights and irreparable harm resulting from lnstagram's unilateral changes to their "Terms of Use" (the "New Terms") that are scheduled to go into effect on or about January 19, 2013. The New Terms transfer valuable property rights to Instagram while simultaneously relieving Instagram from any liability for commercially exploiting customers' photographs and artistic content, while shielding Instagram from legal liaibility. 2. The New Terms transfer to Instagram an irrevocable "transferrable and sub- licensable" worldwide license to the entirety of each customer's intellectual property and personality, including the customer's likeness and artistic content (the "Property"). In this same grab for customer Property rights, Instagram's New Terms seek to disclaim liability for damages, prevent customers from obtaining injunctive or equitable relief to ever stop Instagram, limit all statute of limitations to one year, and prevent customer's from challenging lnstagram's conduct in a court of law via a no-class-action arbitration clause. Instagram's New Terms: (3.) Limit all LOSSES OR CAUSES OF ACTION ONE HUNDRED UNITED STATES DOLLARS even though Califomia Civil Code 3344 provides for statutory damages of $750.00 for unauthorized commercial use of a person's personality or photograph, and individual damages from unauthorized commercial use of valuable photographic art could be much higher; Cause customers to explicitly agree that DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF ACTS OR OMISSIONS, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO -- 1 -- CLASS ACTION COMPLAINT Documentl Fi|ed12/21/12 Page3 of 27 --I ENTITLE YOU TO AN INJUNCTION explicitly disclaiming all TO Instagram's conduct; Waive all customer rights to judicial remedies, except small claims, by engrafiing a no-class action arbitration clause; and Artificially limit the statute of limitations for all claims against Instagram to one (1) year. 3. Instagram is taking its customers' Property rights, while insulating itself from all liability for doing so. Instagram is attempting to prohibit customers from ever stopping or changing Instagram's conduct by seeking a court's equitable and injunctive relief. 4. If customers do not agree with Defendant's scheme, they can cancel their profile with lnstagram. However, upon canceling, customers forfeit all right to retrieve the Property that was previously entrusted to Instagram, which retains rights thereto in perpetuity. In short, Instagram declares that "possession is nine-tenths of the law and if you don't like it, you can't stop us." 5. On behalf of a class of Instagram's California customers, Plaintiff is acting to preserve valuable and important property, statutory, and legal rights, through injunctive, declaratory and equitable relief issued by this Court before such claims are forever barred by adoption of Instagram's New Terms. For this reason, even though the New Terms are not yet effective, this case is "ripe" for adjudication. 6. Instagram's New Terms breach its Current Terms of use (see paragraph 15, below) by adding new and additional provisions that go far beyond the scope and subject matter of the Current Terms, thereby breaching the Current Terms and the attendant implied covenant of good faith and fair dealing. Similarly, the new "transferrable and sub--licensable" license to Plaintiff and the Class' self photographs and other likeness constitutes a nonconsensual commercial use of "name, voice, signature, photograph, or likeness" in violation of California Civil Code 3344. Instagram's New Terms also breach its bailment of Plaintiff and the Class' -- 2 .. CLASS ACTION COMPLAINT Documentl Fi|ed12/21/12 Page4 of 27 . Property because customers delivered their Property to Instagram for their own use and benefit and their individually desi'gi'r'ated audiences, not for commercial exploitatibnby Defendants. 7. Instagram's breach of the implied covenant of good faith and fair dealing incident to the Current Terms or other implied contract with Plaintiff and the Class, violations of California Civil Code 3344, and improper misappropriation of property and legal rights constitute unlawful and unfair business practices in violation of California's Unfair Competition Law (the CAL. BUS. PROF. CODE 17200, et seq.). And because Plaintiff is seeking a declaration of her and other Califomia customers' rights to the Property at issue, Plaintiff seeks relief under the Declaratory Judgment Act, 28 U.S.C. 2201. 8. Accordingly, Plaintiff respectfirlly requests that the Court grant Plaintiff and the Califomia Class the following injunctive, equitable and declaratory remedies: Change in the New Terms voiding Defendants' claimed "transferrable and sub- licensable" worldwide license to the Property; An injunction and/or declaration that lnstagram shall not claim or exercise ownership rights over the Property without Plaintiff and the Class' express authorization. A change in Terms and/or the implementation of processes and procedures providing customer controls as to how lnstagram and any transferees sub- licensees can commercially exploit Plaintiff and the Class' Property; A declaration or change in the Terms effecting that Plaintiff and the Class do not waive equitable, injunctive or declaratory remedies; A change in Terms and/or the implementation of processes and procedures allowing Plaintiff and the Class to download or otherwise obtain exclusive and actual possession of their Property; and A declaration or change in the Terms directing that Plaintiff and other California (0 customers do not waive damages upon Instagram or its sub-licensees' violation of Civil Code 3344. -- 3 CLASS ACTION COMPLAINT p..A IN) -B c--n ll! Os U-J xl I--I I I-4 Ix.) IN) u--I Is) l\J (40 IN) -5 IN) (II IN) Ix) (R) Documentl Fi|ed12/21/12 Page5 of 27 JURISDICTION AND VENUE 9. This Courthas jurisdiction over theisubject matter of this action pursuant to the Class Action Fairness Act, 28 U.S.C. 1446, and l453(b). Plaintiff further allege upon information and belief that the cumulative amount in controversy for Plaintiffs and the class exceed $5 million, exclusive of interest and costs. Venue is proper in this District pursuant to 28 U.S.C. ?1391(a) and because many of the acts and transactions giving rise to the violations of law complained of herein occurred in this District and because Defendants: conduct business themselves or through agent(s) in this district, by providing services to Class members located in this District; and/or are licensed or registered in this District; and/or otherwise have sufficient contacts with this District to justify them being fairly brought into court in this District. THE PARTIES 10. Plaintiff Lucy Funes is, and at all times material, was a resident of San Diego County, California. At all times relevant hereto, Plaintiff maintain an active account with containing at least one photograph of Plaintiff, and/or Plaintiffs likeness. Plaintiff maintains and uses the property with Instagram for personal, business and promotional purposes. Defendant Instagram, Inc. is, and at all times relevant to this Complaint was, a corporate citizen of the State of California, headquartered in San Francisco, California, where Instagram Inc.'s officers direct, control, and coordinate the cotporation's activities. 12. Defendant Instagram, LLC is, and at all times relevant to this Complaint was, a corporate citizen of the State of California, headquartered in San Francisco, California, where Instagram LLC's officers direct, control, and coordinate the corporation's activities. 13. At all times mentioned in the causes of action alleged herein, each and every defendant was an agent, representative and/or employee of each and every other defendant. In doing the things alleged in the causes of action stated herein, each and every defendant was acting within the course and scope of this agency, authority, representation or employment and 4 -- CLASS ACTION COMPLAINT Documentl Fi|ed12/21/12 Page6 of 27 'man' was acting with the consent, permission and authorization of each of the remaining defendants. All actions of each defendant as alleged in the causes of action stated herein were ratified and approved by every other defendant, or their respective officers or managing agents. WRONGFUL UNLAWFUL ACTS AND EILACTICES 14. Defendants are operators of a social networking website that allows their customers to take, edit and share images. Instagram allows customers to take photographs from their Apple or Android powered mobile devices, or cameras, apply artistic filters to the images, and upload the results to their Instagram profile. These photographs can also be shared on other online social networks such as Fackbook and Twitter. Instagram's service has become increasingly popular, boasting over 100 million customers. 15. Instagram's service is governed by Defendants' "Terms of Use". The current version of lnstagram's terms of use is attached hereto as Exhibit (the "Current Terms"). The Current Terms provide in pertinent part: General Conditions 2. We reserve the right to alter these Terms of Use at any time. If the alterations constitute a material change to the Terms of Use, we will notify you via internet mail according to the preference expressed on your account. What constitutes a "material change" will be determined at our sole discretion, in good faith and using common sense and reasonable judgement. Proprietary Rights in Content on Instagram Instagram does NOT claim ANY ownership rights in the text, files, images. photos. video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Instagram Services. By displaying or publishing ("posting") any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly ("private") will not be distributed outside the Instagram Services. See, Ex. (Bold in original, underline added). .. 5 -- CLASS ACTION Documentl Fi|ed12/21/12 Page? of 27 16. On December 20, 2012 Instagram announced that it would be changing its Current Terms effective January 19, 2013. A copy of the New Terms are attached hereto as Exhibit and provide in pertinent partGeneral Conditions If we terminate your access to the Service or you use the form detailed above to deactivate your account, your photos, comments, likes, fiiendships, and all other data will no longer be accessible through your account users will not be able to navigate to your username and view your photos), but those materials and data may persist and appear within the Service if your Content has been reshared by others) Rights Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagrarn a non--exclusiveLful1y paid and royalty-free. transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service. Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agzee that a business or other entity may pay us to display your username, likeness. photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or prornotions,without any compensation to you. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, usemame, and/or photos (along with any associated metadata)) on your behalf. it It Limitation of Liability; Waiver UNDER NO CIRCUMSTANCES WILL THE INSTAGRAM PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND IN NO EVENT WILL THE INSTAGRAM PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED ONE HUNDRED UNITED STATES DOLLARS ($l00.0Ql. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES. LOSSES OR INJURIES THAT ARISE OUT OF ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INIUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE INSTAGRAM PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE INSTAGRAM PARTIES. -- 5 .- CLASS ACTION COMPLAINT h--I u--n g: 9--I v--I U) -Ii Documentl Fi|ed12/21/12 Page8 of 27 'if' BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE 0. OR SUSPECTED AND IN SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE It It Arbitration Except if you opt-out or for disputes relating to: (1) your or Instagram's intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents); (2) violations of the API Terms; or (3) violations of provisions 13 or 15 of the Basic Teims, above ("Excluded Disputes"), you agree that all disputes between you and Instagram (whether or not Such dispute involves a third party) with regard to your relationship with Instagram, including Without limitation disputes related to these Terms of Use, your use of the Service, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the American Arbitration Association's rules for arbitration of consumer-related disputes and you and Instagram hereby expressly waive trial by jury. As an alternative, you may bring your claim in your local "small claims" court, if permitted by that small claims court's rules. You may bring claims only on your own behalf. Neither you nor lnstaggam will participate in a class action or class-Wide arbitration for claims covered by this agreement. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Instaggain is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either Instagram or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law_ notwithstanding, the arbitrator will not have authority to__a_i_Ward damages, remedies or awards that conflict with these Terms of Use. You may opt out of this agreement to arbitrate. If you do so, neither you nor Instagram can require the other to participate in an arbitration proceeding. To opt out, you must notify Instagram in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out: Instagram, LLC ATTN: Arbitration Opt-out 1601 Willow Rd. Menlo Park, CA 94025 You must include your name and residence address, the email address you use for your Instagram account, and a clear statement that you want to opt out of this arbitration agreement. .- 7 -- CLASS ACTION COMPLAINT Documentl Fi|ed12/21/12 Page9 of 27 4. If the prohibition _against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding lflgifaEe"'Tn"this Arbitration section"'will 'be'null and arbitration agreement will survive the termination of your relationship with Instagram. Time Limitation on Claims You agree that any claim you may have arising out of or related to your relationship with Instagram must be filed within one year afier such claim arose; otherwise, your claim is permanently barred. See. Ex. (Bold in original, underline added). 17. Defendants originally posted an earlier version of the New Terms on the Instagram blog on December 18, 2012. Customer and media backlash against Instagram's New Terms were overwhelmingly negative. That same day, Defendants posted a purported clarification of the New Tenns on the Instagram Blog. Instagfiim stated that the New Terms were "interpreted by many that we were going to sell your photos to others without any compensation. This is not true and it is our mistake that this language is confusing. To be clear: it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear." 18. Instagram's December 18, 2012 press release also stated that the New Terms "also raised question [sic] about whether your photos can be part of an advertisement. We do not lhave plans for anything like this and because of that we're going to remove the language that raised the question." 19. Finally, Defendants' December 18, 2012 press release stated that "Instagram users lown their content and Instagram does not claim am; ownership rights over your photos. Nothing about this has changed." (Emphasis added). While technically true, lnstagram's unilateral grant 22 to itself of an irrevocable, transferrable and sub-licensable worldwide license appropriates significant rights to the Property while depriving Plaintiff and the Class of value and control over their Property. 20. On December 20, 2012, Instagram posted the final version of the New Terms on its website. The purported concessions by Instagram in its press release and final version of the New Terms were nothing more than a public relations campaign to address public discontent. -- 3 -- CLASS ACTION COMPLAINT 5.4 I--l pad 0-1 I9 U) I out ll'! 0-: Kl n--l\J Documentl Fi|ed12/21/12 Pagelo of 27 --if Specifically, the concessions in Instagram's press release were not binding, and the revised New Terms failed to address: Defendants' irrevocable grant of a "transferrable and sub-licensable" worldwide license to Plaintiff and the Class' Property; Defendants' waiver of important legal, equitable, and substantive rights to, inter alia, damages, injunctive and equitable remedies, and judicial process; and Defendants' future ability to sell, appropriate, transfer or otherwise encumber Plaintiff and the Class' Property after Defendants' class-action waiver, waiver of damages and injunctive and equitable relief comes into effect after January 16, 2013. 21. Defendants' need only implement a two step process to fully appropriate the Property of Plaintiff and the Class. First, New Terms incorporate the class-action waiver, waiver of damages, as well as injunctive and equitable relief. After the New Terms become effective, lnstagram can add additional terms and conditions that allow Defendants to misappropriate and otherwise commercially exploit the Property with no recourse available to Plaintiff and the Class. CLASS ACTION ALLEGATIONS 22. Plaintiff brings this action as a class action pursuant to Federal Rules of Civil Procedure 23(a), and for the following Class of persons: All natural persons who, while residents of the State of California, maintain an active Instagram account subject to Instagram's Terms in effect prior to January 19, 2013, containing at least one photograph of the owner of the account. Excluded from the Class are all governmental entities, Defendants herein and any person, firm, trust, corporation, or other entity related to or affiliated with Defendants, as well as any judge, justice or judicial officer presiding over this matter and members of their immediate families and judicial staff. 23. The members of the Class are so numerous that joinder of all Class members is impracticable. While the exact number of Class members is unknown to Plaintiff at this time and will be ascertained through appropriate discovery, Plaintiff is informed and believes that there are tens of thousands of members in the proposed Class. As Plaintiff and members of the Class .- 9 -- CLASS ACTION COMPLAINT Documentl Fi|ed12/21/12 Page11of27 'f provide, at the least, their name, and email address to Instagram upon registering for an account, such that membersfiof Class can be identified from records maintained by Defendants. 24. Plaintiffs claims are typical of the claims of the other members of the Class. All members of the Class will be similarly affected by Defendants' wrongful conduct, as complained of herein, in violation of California law. Plaintiffs have no interests adverse to the Class. 25. Plaintiff will fairly and adequately protect the Class members' interests and has retained counsel competent and experienced in consumer class action lawsuits and complex litigation. 26. Defendants have acted, with respect to the Class, in a manner generally applicable to each Class member. Common questions of law and fact exist as to all Class members and predominate over any questions wholly affecting individual Class members. There is a well- defined community of interest in the questions of law and fact involved in this action, which affect all Class members. Among the questions of law and fact common to the Class are, inter aliaz Whether Defendants' unilateral change of contract terms goes beyond what Defendants' current Terms permit, thus violating the implied covenant of good faith and fair dealing; Whether Defendants' new "transferrable and sub-licensable" license to Plaintiff and the Class' self photographs and other likeness constitutes a nonconsensual commercial use of "name, voice, signature, photograph, or likeness" in violation of California Civil Code 3344; 'Whether Plaintiff and the Class transfer of their Property to Defendants constituted a bailment, and whether Defendants breached that bailment; Whether Defendants' new Terms constitute unlawful and/or unfair business practices in violation of the UCL, including: -- 10 -- CLASS ACTION COMPLAINT Documentl Fi|ed12/21/12 Page12 of 27 27. -ad' Whether Defendants' new Terms constitute "unfair" business practices because: consumer injury outweighs any countervailing benefits to consumers or competition, and because such injury could not be reasonably avoided by consumers; (ii) Whether Defendants' new Terms constitute "unfair" business practices by violating established public policy; Whether Defendants' new Terms constitute "unfair" business practices because they are immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers. Whether Defendants can unilaterally limit damages, statutes of limitation(s), access to judicial process and bar equitable injunctive relief; Whether Plaintiff and the Class are entitled to declaratory relief under 28 U.S.C. 2201, or otherwise; Whether Defendants acted in concert or were otherwise each others' agent, alter ego, aiders and abetters, enablers, or duly authorized representatives with respect to the new Terms or otherwise aided and abetted or enabled the misconduct of other defendants as alleged herein; The nature and extent of damages, equitable remedies, and injunctive relief to which Plaintiff and the other members of the Class are entitled; and Whether Plaintiff and the members of the Class should be awarded attorneys' fees and the costs of suit herein. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy since joinder of all members is impracticable. Furthermore, as the damages injury suffered by individual Class members may be relatively small, the expense and burden of individual litigation make it virtually impossible for Class members to individually redress the wrongs done to them. There will be no difficulty in managing this action as a class action. -- 11 CLASS ACTION COMPLAINT 3 50 ON ll! -5 L8 Ix) find IO 4-4 1.4-) o--n -35 LII u--a ON o--I O0 0-: IxDocumentl Fi|ed12/21/12 Page13 of 27 28. Defendants have acted on grounds generally applicable to the entire Class with respect to the matters complained of herein, thereby making appropriate the relief sought herein with respect to the Class as a whole. 29. Plaintiff reserves the right to revise the above class definition based on information learned during discovery. FIRST COUNT (Breach of Actual and Implied Contract - Violation of the Implied Covenant of Good Faith and Fair Dealing) 30. Plaintiff incorporates by reference each and every forgoing paragraph, as though fully set forth at length herein. 31. Plaintiff and each Class member are subject to lnstagram's current Terms, for which Instagram has an implied covenant of good faith and fair dealing. 32. Instagrarn interferes with and frustrates Plaintiff and the Class' use of the Instagrarn's service, as provided by Defendants' current Terms and Defendants' conduct, by attempting to add provisions that were not reasonably anticipated by the current Terms, and not in accordance with the subject matter, and or scope of the current Terms. 33. Defendants' unreasonable change of Terms accordingly violates the implied covenant of good faith and fair dealing inherent in Instagram's current Terms. 34. As a direct and proximate result of Defendants' breaches of the implied covenant of good faith and fair dealing, Plaintiff and each member of the Class sustain loss of valuable rights in their Property in an amount to be proved at the trial of this matter. 35. An injunction prohibiting Defendants from implementing the new Terms is in the public interest. Absent an injunction, Plaintiff and each member of the Class will suffer irreparable harm, and the continuing threat of wrongful misappropriation of their Property by Defendants. SECOND COUNT (Violation of California Civil Code 3344) 36. Plaintiff incorporates by reference each and every forgoing paragraph, as though fully set forth at length herein. -- 12 -- CLASS ACTION COMPLAINT -Documentl Fi|ed12/21/12 Page14 of 27 "if" 37. California's Right of Publicity Statute, California Civil Code 3344 et seq., protects persons from the unauthorized appropriation of the person's identity by another for commercial gain. 38. Instagram's new Terms allows Defendants to knowingly use Plaintiff and the Class' names, photographs, or likenesses to directly advertise or sell a product or service. 39. Instagram does not have Plaintiff or the Class' consent to do so. 40. Plaintiff and the Class receive no compensation or other consideration from Instagram for using Plaintiff and the Class' names, photographs, and/or likenesses to directly advertise or sell a product or service. 41. Plaintiff and the Class will be irreparably harmed by Instagram's actions. 42. Use of Plaintiff and the Class' names, photographs, and likenesses are necessarily directly connected to Instagram's commercial use, as opposed to news, public affairs, a sports broadcast or account, or a political campaign. 43. lnstagram's actions are a substantial factor in causing Plaintiff and the Class harm. 44. An injunction prohibiting Defendants from implementing the new Terms is in the public interest. Absent an injunction, Plaintiff and each member of the Class will suffer irreparable harm, and the continuing threat of wrongful misappropriation of their Property by Defendants. THIRD COUNT (Breach of Bailment) 45. Plaintiff incorporates by reference each and every forgoing paragraph, as though fully set forth at length herein. 46. Plaintiff and the Class each delivered to Defendants their Property. 47. Under Instagram's current Terms -- those in effect prior to January 16, 2012 -- Instagram agreed to disclaim any ownership rights in Plaintiff and the Class' property, and to hold and maintain the Property for the exclusive benefit of Plaintiff and the Class. .- 13 -- CLASS ACTION COMPLAINT Documentl Fi|ed12/21/12 Page15 of 27 -.4 48. While Defendants are in possession of Plaintiff and the Class' Property, they were .. in dominion and control of themPr.operty. The new Terms misappfopriate Plaintiff and the Class' rights to their Property, which Plaintiff and the Class are not able to avoid unless they delete their lnstagrarn account. Even then, Plaintiff and the Class are not able to demand redelivery of their Property from lnstagram, which maintains rights thereto in perpetuity. 49. Defendants' change in Terms constitutes a breach of ordinary care and diligence in the handling of Plaintiff and the Class' Property, and in fact misappropriates valuable and important property rights of Plaintiff and the Class. 50. As a direct and proximate result of Defendants' breach of bailment of the Property, Plaintiff and the Class suffer injury and lost rights to their Property in an amount to be proved at trial. 51. An injunction prohibiting Defendants from implementing the current Terms is in the public interest. Absent an injunction, Plaintiff and each member of the Class will suffer irreparable harm, and the continuing threat of wrongful misappropriation of their Property by Defendants. FOURTH COUNT (Violation of CAL. Bus. PROF. Conn 17200, et seq.) 52. Plaintiff incorporates by reference each and every forgoing paragraph, as though fully set forth at length herein. 53. Defendants acts, conduct and practices, as described herein, constitute unlawful and unfair business acts and practices within the meaning of Califomia Business and Professions Code sections 17200, et seq. 54. Defendants' unilateral change of the Terms constitutes "unfair" business practices because: injury to Plaintiff and the Class outweighs any countervailing benefits to consumers or competition, and because such injury could not be reasonably avoided by Plaintiff and the Class. 55. Defendants' unilateral change of the Terms constitutes "unlawful" and "unfair" Fbusiness practices by violating established public policy as embodied in Califomia Civil Code 33-14. -. 14 .- CLASS ACTION COMPLAINT -4 p-0 p--n :1 [0 DJ --I 45- v--I U1 0-: *4 n--n n--l\3 Documentl Fi|ed12/21/12 Page16 of 27 at 56. Defendants' unilateral change of the Terms constitutes "unfair" business practices because they are immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers. 57. Defendants acted in concert and/or were otherwise each others' agent, alter ego, aiders and abettors, enablers, or duly authorized representatives with respect to the Adaptive Memberships or otherwise aided and abetted or enabled the misconduct of other defendants as alleged herein. 58. As a direct and proximate result of Defendants' unlawful and unfair business practices as alleged herein, Plaintiff is wrongfully deprived of intellectual and personal property. Plaintiff suffer injury-in-fact as a result of Defendants' change in the current Terms because Defendants irrevocable "transfeI'rable and sub-licensable" worldwide license to Plaintiff and the Class' Property deprives Plaintiffs of significant property rights, and the ability to obtain statutory damages for Defendants violations of Civil Code 3344. 59. An injunction prohibiting Defendants from implementing the new Terms is in the public interest. Absent an injunction, Plaintiff and each member of the Class will suffer irreparable harm, and the continuing threat of wrongful misappropriation of their Property by Defendants. FIFTH COUNT (Declaratory Relief Pursuant to the Declaratory Judgment Act 28 U.S.C. 2201) 60. Plaintiff incorporates by reference each and every forgoing paragraph, as though fully set forth at length herein. Defendants seek to irrevocably change the legal rights between Plaintiff and the Class in the form of Instagram's new Terms that become effective on January 13, 2012. 62. Plaintiff and the Class are entitled to have this Court establish by declaration their rights and legal relations under Instagram's terms of service. -- 15 -- CLASS ACTION COMPLAINT Case3:12--cvQfi482--NC Documentl Fi|ed12/21/12 Page17 of 27 hi' DEMAND FOR TRIAL BY JURY 63. Pursuwantmto Rule 38(b) of the Federal Rules of Civil Procedure, and the Seventh Amendment to the United States Constitution, Plaintiff hereby demands a trial by jury of all of the claims asserted in this Complaint so triable. PRAYER FOR RELIEF WHEREF ORE, Plaintiff and the Class pray for relief and judgment as follows: A. For an order declaring that this action is properly maintained as a class action and certifying a class representative in accordance with Rule 23 of the Federal Rules of Civil Procedure; B. For an order enjoining Defendants from enacting and/or enforcing the Terms as alleged herein; C. For injunctive, declaratory and other equitable relief as follows: Change in the New Terms voiding Defendants' claimed "transferrable and sub-licensab1e" worldwide license to the Property; (ii) An injunction and/or declaration that Instagram shall not claim or exercise ownership rights over the Property without Plaintiff and the Class' express authorization. A change in Terms and/or the implementation of processes and procedures providing customer controls as to how Instagram and any transferees sub-licensees can commercially exploit Plaintiff and the Class' Property; (iv) A declaration or change in the Terms effecting that Plaintiff and the Class do not waive equitable, injunctive or declaratory remedies; A change in Terms and/or the implementation of processes and procedures allowing Plaintiff and the Class to download or otherwise obtain exclusive and actual possession of their Property; and (vi) A declaration or change in the Terms directing that Plaintiff and other California customers do not waive damages upon Instagrarn or its sub-licensees' violation of Civil Code 3344. 16 .. CLASS ACTION COMPLAINT Documentl Fi|ed12/21/12 Page18 of 27 D. E. Dated: December 21, 2012 For an order awarding attomeys'. fees and costs of suit, including experts' witness fees as permitted by 'law; and Such other and further relief as this Court may deem just and proper. Respectfully submitted, FINKEL TEIN KRI LLP 0 A wn'@c'l'assaction w.co Jeffrey R. Krinsk, Esq. jrk@classactionlaw.com Mark L. Knutson, Esq. mlk@classaction1aw.com 501 West Broadway, Suite 1250 San Diego, CA 92101 Tel: (619) 238-1333 Fax: (619) 238--5425 Attomeys for Plaintiff and the Class -- 17 CLASS ACTION COMPLAINT Documentl Fi|ed12/21/12 Page19 of 27 EXHIBIT A Documentl Fi|ed12/21/12 'Page2O of 27 Log in ABOUT Jobs FAQ LEGAL Terms Privacy API Terms Libraries Terms of Use We are updatirlp our Terms of Use: Our updated terms of Use will be effective on January 16. 2013. By using the instagr.afrl'instagrarrLcom website and lnstagram service you are agreeing to be bound by the following terms and conditions ("Tome of Use')? Basic Terms GUILIJRIA 15. . You must be 13 years or older to use this site. . You may not post nude. partially nude. or sexually suggestive photos. . You are responsible for any activity that occurs under you screen name. . You are responsible for keeping your password secure. . You must not abuse. harass. threaten. irrpersonate or lntirridate other Instagram users. . You may not use the Instagram service for any illegal or unauthorized purpose. International users agree to with all local laws regarding onine conduct and acceptable content. . You are solely responsible for you conduct and any data. text. Infonmtlon. screen names. graphics. photos. profiles. audio and video clips. links ('Content') that you submit. post. and display on the Instagram service. . You must not modify. adapt or hack tnstagram or rnodlly another website so as to falsely that it is associated with Instagram. . You must not access lnstagrarrfs private API by any other means other than the histogram application itself. . You must not crawl. scrape. or otherwise cache any content from instagram including but not limited to user profiles and photos. . You must not create or subrrit unwanted entail or comments to any lnstagram members 12. 13. 14. You must not use web URLs in your name without prior written consent from lnstawam. inc. You must not transnit any womts or viruses or any code of a destructive nature. You must not, in the use of lnstagrarn. violate any laws in your Jurisdiction (including but not llrnited to copyright laws). Violation of any of these agreements will result in the termination of your lnstag-am account. While lnstegram prohibits such conduct and content on its site. you understand and agree that Inslagram cannot be responsible for the Content posted on its web site and you nonetheless may be exposed to such materials and that you use the tnstagrem service at you own risk. General Conditions . We reserve the right to modify or terminate the Instagram service for any reason, without notice at any line. . We reserve the right to alter these Temts of Use at anytime. if the alterations constitute a materiai change to the Temts of Use. we will notify you via intemet mail according to the preference expressed on your account. what constitutes a 'material change' will be determined at our sole discretion. in good faith and using common sense ard reasonable Judgement. 3. We reserve the right to refuse service to anyone for any reason at any time. . we reserve the to force forleiture of any username that becomes inactive. violates trademark. or my mislead other users. . We nay. but have no obligation to, remove Content and accounts containing Content that we detenrine in our sole discretion are unlawful. offensive. threatening. libelous. defamatory. obscene or otherwise objectionable or violates any party': intellectual property or these Terms of Use. . We reserve the right to reclaim usernarnes on behalf of businesses or individuals that hold legal claim or trademark on those usarnarnas. Proprietary Rights in Content on lnstagram 1. lnstagram does NOT cialmANY ownership rights in the text. files. images. photos. video. sounds. musical works. works of authorship. applications. or any other materials icolectively. "Content') that you post on or throughthe Instagram Services. By displaying or ('posting') any Content on or through the Instagram Services. you hereby grant to lnstagram a non--excluslve. fully paid and royalty-free. lirrited license to use. modify. delete from. add to. publicly perform. publicly display. reproduce and translate such Content. including without linitation distributing part or all of the Site in any media formats through any media channels. except Content not shared publicly ('prlvate') will not be distributed outside the Instagram Services. . some of the Instagram services are supported by advertising revenue and my display advertisements and prormtlons. and you hereby agree that lnstagram may place such advertising and promotions on the Instaoram Services or on. about. or in conjunction with your Content. The manner. mode and extent of such adva and prormtlons are sublect to change without specitlc notice to you. . You represent and warrant that: (I) you own the Content posted by you on or through the instagram Services or otherwise have the right to grant the license set forth in this section. (ii) POWNII U59 0' through the lnstagram Services does not violate the privacy rights, publicity rights. copyrights. contract rights. intellectual property fights or any other rights of any person, and (Ill) the posting of your content on the Site does not result in a breach of contract between you and a third party. You agree to pay for all royalties. fees. and any other rnonles owing any person by reason of Content you post on or through the Instagram Services. NC Docu mentl Filed 12/21/12 Page21 of 27 4. The lnstegram Services contain Content of Instegrarn ('Inste ant'). lnstagram Content is protected by copyright. trederrant, patent. trade secret and other laws. and lnstegram owns and retains all rights in the lnehwam Cement and the Instagram Services. lnstagram hereby grants you a limited. revocable. nonsublicensable icense to reproduce and display the lnstagram Content (excluding any software code) solely for your personal use in connection with viewing the site and using the lnstegram Services. 5. The lnstegram Services contain Content of Users and other lnstagram llcensors. Except as provided within this Agreement. you nay not copy. rrndify. translate. publish. broadcast. transmit, distribute. perform. display. or sell any Content appearing on or through the Instagram Services. 6. lnstagram performs technical functions necessary to offer the Instagram Services, includng but not limited to -- 7. Although the Site and other lnstagram Services are normally available. there will be occasions when the Site or other lnstawam Services will be interrupted for scheduled maintenance or upgrades. for emergency repairs. or due to failure of links and equipment that are beyond the control of lnstagram. Also. although lmtagram will normally only delete Content that violates this Agreement. instagram reserves the right to delete any Content for any reason. without prior notice. Deleted content may be stored by lnstagram in order to comply with certain legal obligations and is not retrievabie without a valid court order. Consequently. instagram encourages you to rraintaln your own backup of your Content. in other words. Instegram is not a backup service. lnstagram will not be liable to you for any rmdification. suspension. or discontinuation of the lnstagram Services. or the loss of any Cement. voua ACCOUNT - ABOUT us - sur=r=on'r - BLDG API -- JOBS - PRWACY - reams Documentl Fi|ed12/21/12 Page22 of 27 if EXHIBIT Documentl Fi|ed12/21/12 Page23 of 27 Log in ABOUT Terms of Use These Terms of use are on January 19. 2013. To access our previous Terms of Use. please click here. 5 By. accessing or using the lnstagram website. the Instagram service. or any appiic aliens (including mobile applications) rriade available by Instagram (together. the 'ServIce'). however accessed. you gree to be bound by these tern: of use ('Term of Use'). The Service is owned or controlled by lnstagrarn. LLC Tsrn-is of Use sttact your legal rights and obligations. it you do not agree to be bound by all of these Terms of Use. do not access or use the Service. There may be times when we offer a special feature that has its own toms and conditions that apply in addition to these 'terms at Use. In those cases. the lame specitic to the special feature control to the extent there is a conflict Pmacy with these of Use. API Terms NOTICE: EXCEPT YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW. YOU AGREE THAT DISPUTES BETWEEN YOU AND Libraries INSTAGRAM WILL BE RESOLVED BY BINDING. INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. Basic Terms 1. You must be at least 13 years old to use the Service. 2. You rmy not post violent. nude. partially nude. unlawful. lniringing. hateful, pornographic or sexualy suggestive photos or other content via the Service. 3. You are responsible for any activity ttat occurs through your account and you agree you will not sell. transfer. Icense or assigt your account. Iolowers, usernarne. or any account rights. With the exception of people or businesses that are expressly authorized to create accounts on behalf of their errployers or clients. lnstagram prohibits the creation of and you agree that you will not create an account for anyone other than yourself. You also represent that all information you provide or provided to Instagram upon registration and et all other times will be true. accurate. current and complete and you agree to update your information as necessary to maintain its truth and accuracy. 4. You agree that you will not soicit. collect or use the logln credentials of other instagram users. 5. You are responsible for keeping your password secret and secure. 6. You must not defame. stalk, bully. abuse. harass. threaten. impersonate or intimidate people or entities and you must not post private or confidential intomtation via the Service. Including. without iinitation. your or any other person's credit card social security or alternate national identity numbers. non-public phone numbers or non-public entail addresses. 7. You may not use the Service for any illegal or unauthorized purpose. You agree to comply with all laws. rules and regulations (for eirarrple. federal. state. local and provincial) applicable to your use of the Service and your Content (defined below), Including but not imited to. copyriglt laws. 8. You are solely responsible for your conduct and any data. text. files. lnfomntion, usernames. images. graphics. photos. profiles. audio and video clips, sounds, musical works, works of authorship. applications. links and other content or materials (collectively. 'Content') that you submit. Post or display on or via the Service. 9. You must not change. rnodify. adapt or alter the Service or change. modify or alter another website so as to falsely that It is associated with the Service or lnstagram. 10. You must not access lnstagram's private API by means other than those permitted by lnstagrsm. Use oi instagram's API is subject to a separate set of terms available here: Tame'). 11. You must not create or submit unwanted erreil. 'comments. likes or other iom1s oi comrriarcial or harassing communications (alkla "spem') to any users. 12. You must not use domain names or web URLs in your without prior written consent from lnstagram. 13. You must not intertere or disrupt the Service or servers or networks connected to the Service. including by transmitting any worms, viruses. spyware. maiware or any other code of a destructive or disruptive nature. You may not Inlect content or code or otherwise alter or interfere with the way any lnstagram page is rendered or displayed in a users browser or device. 14. You must comply with lnstagram's Community Guidelines. avilabla here: -'(help mstagram /articlesl262 15. You must not crate accounts with the Service through unauthorized means. including but not limited to. by using an automated device. script. bot. spider. crawler or scraper. 16. You must not atterrpt to restrict another user from using or enjoying the Service and you must not encourage or facilitate violations of these Tamts of Use or any other lnstagram terms. 17. Violation of these Terms of Use may. in lnstagram's sole discretion. result in ternination of your Instagram account. You understand and agree that lnstagram cannot and will not be responsible for the Content posted on the Service and you use the Service at your own risk. if you violate the letter or spirit of these Terms of Use. or otherwise create risk or possible legal exposure for instagram. we can stop providing all or part of the Service to you. General Conditions 1. We reserve the right to modify or terminate the Service or your access to the Service for any reason. without notice. at any tints. and without liability to you. You can deactivate your lnstagram account by logging into the Documentl Fi|ed12/21 Page24 of 27 Service and completing the form available here: if we your access to the Service or you use the form detailed above to deactivate your account. your photos. comments. likes. friendships. and all other data will no longer be accessible through your account users will not be able to navigate to your usemarne and view your photos), but those materials and data may persist and appear within the Service if your Content has been reshared by others). . Upon all licenses and other rights granted to you in these Temrrs of Use will immediately cease. 3. We reserve the right. in our sole discretion. to change these Terms of Use ('Updated Terms') from tlrne to tlrne. Unless we make a change for legal or adntnistrative reasons. we will provide reasonable advance notice before the Updated Terms become effective. You agree that we my notify you of the Updated Terms by posting them on "the Service. and that use of the'S'ervice after the effective date of the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore. you should review these Terms of Use and any Updated Temts before using the Service. The Updated Terms wil be effective as of the tlrne of posting. or such later date as may be specified in the Updated and will apply to you' use oi the Service from that point forward. These Terms of Use will govern any disputes arising before the effective date of the Updated Terms. . We reserve the rim! to refuse access to the Service to anyone for any reason at any line. 5. We reserve the riglt to force forfeiture of any username for any reason. 6. We nay. but love no obligation to. remove. edit. block. andlor monitor Cement or accomts containing Content that we determine in our sole discretion violates these Terms of Use. . You are solely responsible for your interaction with other users of the Service. whether onllne or affine. You agree that lnstagram is not responsible or liable for the conduct of any user. lnstagram reserves the right. but has no obflatlon. to monitor or becorna involved in disputes between you and other users. Exercise common sense and you' best 'pdgment when interacting with others. including when you submit or post Content or any personal or other inforrmtion. . There may be links from the Service. or from you receive from the Service, to third-party web sites or features. There may also be links to third-party web sites or features in images or cormrents within the Service. The Service also includes third-party content that we do not control. maintain or endorse. Functionality on the Service may also permit interactions between the Service and a third-party web site or feature, including applcations that connect the Service or your profile on the Service with a third-party web site or feature. For example. the Service may incline a feature that enables you to share Content from the Service or your Content with a third party. which may be publicly posted on that third party': service or application. Using this iunctionalty typically requires you to log'n to your accomt on the third-party service and you do so at your own risk. lnstagram does not control any of these third-party web services or any of their content. You expressly acknowledge and agree that lnstagram is in no way responsible or liable for any such third-party services or features. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND THROUGH THE SERVICE ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. You rray choose. at your sole and absolute discretion and risk, to use applications that connect the Service or your profile on the Service with a third-party service (each. an 'Applicalion") and such Application may interact with. connect to or gather andlor pull infomlation from and to your Service profile. By using such Applcatlons, you acknowledge and agree to the following: if you use an Application to share infomlation. you are consenting to infomiatlon about your profile on the Service being stared; (it) your use of an Application may cause personally identifying infomiation to be publicly disclosed andlor associated with you. even if Instagram has not itself provided such infomtation; and (ill) your use of an Application is at your own option and risk, and you will hold the instagram Parties (defined below) harmless for activity related to the Application. . You agee that you are responsible for all data charges you incur through use of the Service. 10. We prohibit crawling. scraping. caching or othenvise accessing any content on the Service via automated means. including but not limited to. user profiles and photos (except as may be the result of standard search engine protocols or technologies used by 31 search engine with insiagr-an-is express consent). Rights 1. lnstagrem does not claim ownership of am Content that you post on or through the Service. instead. you hereby gar! to instagram a non--exclusive. fuly paid and royalty-free. transferable. sub-iicensabla, worldwide license to use the Content that you post on or throuyt the Service. subject to the Service's Privacy Policy. available here including but not Inited to sections 3 ('Sharing of Your Information'). 4 ('How We Store Your inforrm lion'). and 5 ('Your Choices About Your information"). You can choose who can view your Content and activities. including your photos. as described in the Privacy Policy. . Sonia of the Service is supported by advertising revenue and may display advertisements and promotions. and you hereby agree that lnstagrsm my phce such advertising and promotions on the Service or on. about. or in coriunction with your Content. The manner, made and extent of such advertising and are subject to change without specific notice to you. . You acknowledge that we may not always identify paid services. sponsored content. or corrmunlcatlons as such. . You represent and warrant that: you own the Content posted by you on or through the Service or otherwise have the right to grant the rlgits and licenses set forth in these Terms of Use; (ll) the posting and use of your Content on or through the Service does not violate. mleapproprlate or infringe on the rights of any third party, including. without limitation. privacy rights. publicity copyrights. trademark andlor other intellectual property rights: (til) you agree to pay for all royalties. fees. and any other owed by reason of Content you post on or through the Service; and (iv) you have the legal right and capacity to enter into these Terms of Use in your . The Service contains content owned or licensed by lnstagram ('lnstagram Content'). lnstagram Content is protected by copyright. trademark. patent. trade secret and other laws. and. as between you and instagram. lnstagram owns and retains all rights in the lnstegram Content and the Service. You wil not remove. alter or conceal any copyright. trademark. service mark or other proprietary rights notices incorporated in or accompanying the lnstagram Content and you will not reproduce. modify. adapt. prepare denvative works based Documentl Fi|ed12/21/12 Page25 of 27 on. perform. display. publish. distribute. transrrit. broadcast. seas-lines or otherwise exploit the lnsta gram Content. 8. The lnstagrsm name and logo are trademarks ol lnstagram. and may not be copied. irritated or used. in whole or in part. without the prior written ol lnstagram. except in accordance with our brand guidelines. available here: in addition. all page headers. custom graphics. button icons and scripts are service marks. trademarks andlor trade dress oi lnstagram. and may not be copied. irritated or used. in whole or in part. without prior written pemission from instagrarn. 7. Alhougl-i it is lnstagranfs intention for the Service to be available as much as possible. there will be occasions wnenjhefigwice rnsy_ps interguplaed. including. wilhout lirritatjon, for scheduled rreintenancs or upgrades. for emergency repairs. or due to laiiure ol telecormtunications links and/or equ'pment. Also. lnstagram reserves the right to remove any Content from the Service for any reason. without prior notice. Content removed from the Service tray continue to be stored by instagram. including. without limitation. in order to with certain legal obligations. but may not be retrievable without a valid court order. Consequently. inslaglam encourages you to rmintaln you own backup or your Content. in other words. lnstagram is not a backup service and you agree that you will not rely on the Service for the purposes oi Content backup or storage. lnstagam wil not be liable to you for any rrodllication. suspension. or discontinuation of the Services. or the loss of any Content. You also acknowledge that the Internet may be stbiecl to breaches oi security and that the submission ol Content or other information may not be secure. 8. You agree that lnstagram is not responsible for. and does not endorse, Content posted within the Service. lnstagram does not have any obligation to prescreen. monitor, edit. or remove any Content. If your Content violates these Terms oi Use. you may bear legal responsibility tor that Content. 9. Except as otherwise described in the Service's Privacy Policy. available at as between you and lnstagram. any Content will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of Content. You acknowledge and agree that your relationship with lnstagram is not a contidentlal. liduciary. or other type of special relationship. and that your decision to any Content does not place Inetawam in a position that is any different from the position held by members of the general public. including with regard to your Content. None of your Content will be subject to any obligation of confidence on the part of inslawam. and lnstagram will not be liable for any use or disclosure oi any Content you provide. 10. it is inslagram's polcy not to acceptor consider content. information. ideas. suggestions or other materials other than those We have requested and to which certain specific terms, conditions and requirements my apply. This is to avoid any rrisuridersterldings if your ideas are similar to those we have developed or are developing independently. Accordingly. lnstagram does not accept unsolicited materials or ideas, and takes no responsibility for any materials or ideas so transrnitted. it. despite our policy. you choose to send us content. information. ideas, suggestions. or other materials. you further agree that instagram is free to use any such content. information. ideas. suggestions or other materials. for any purposes whatsoever. including. without limitation. and marketing products and services. without any liability or payment of any kind to you. Reporting Copyright and Other IP Violations 1. We respect other people's rights. and expect you to do the same. 2. We provide you with tools to help you protect your intellectual property riyrts. To learn more about how to report claims of intelectual property visit: 3. If you repeatedly infringe other people's intellectual property rights. we will disable your account when appropriate. Disclaimer of Warranties THE SERVICE. INCLUDING. WITHOUT LIMITATION. INSTAGRAM CONTENT. IS PROVIDED ON AN AIND ALL BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER INSTAGR-AM NOR ITS PARENT COMPANY NOR ANY OF THEIR EMPLOYEES. MANAGERS. OFFICERS OR AGENTS (COLLECTIVELY. THE MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER. EXPRESS OR IMPLIED, AS TO: (A) THE SERVICE: (B) THE INSTAGRAM ICI USER CONTENT: OR (0) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO INSTAGRAM OR VIA TIE SERVICE. IN ADDITION. THE INSTAGRAM PARTIES HEREBY DISCLAIM ALL WARRANTIES. EXPRESS OR IMPLIED. INCLUDING, BUT NOT LIMITED TO. THE WARRANTIES OF MERCHANTABILITY. FITNESS FOR A PARTICULAR PURPOSE. NON-INFRINGEMENT. TITLE. CUSTOM. TRADE. QUIET ENJOYMENT. SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. THE INSTAGRAM PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR--FREE OR UNINTERRUPTED: THAT DEFECTS WILL BE CORRECTED: OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE NAILABLE IS FREE FROM ANY HARMFUL COMPONENTS. INCLUDING. WITHOUT LIMITATION. VIRUSES. THE INSTAGRAM PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT TI-E INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICE IS ACCURATE. COMPLETE. OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE INSTAGRAM PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION. AM) THE INSTAGRAM PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTIONS LAW IS APPLICABLE TO YDU AND THESE TERMS OF USE. BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE. THE INSTAGRAM PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS. DAMAGE (WHETHER ACTUAL. CONSEQUENTIAL. PUNITIVE OR OTI-ERWISE). INJURY. CLAIM. LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT. Documentl Fi|ed12/21/12 Page26 of 27 Limitation of Liability; Waiver UNDER NO CIRCUMSTANCES WILL THE INSTAGRAM PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING. WITHOUT LIMITATION. FOR ANY DIRECT. INDIRECT. ECONOMIC. EXEMPLARY. SPECIAL. PUNITIVE. INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) TI-I.AT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE (B) THE INSTAGRAM CONTENT: (C) USER CONTENT: (D) YOUR USE OF. INABILITY TO USE. OR THE PERFORMANCE OF THE SERVICE: (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE INSTAGRAM PARTIES OR LAW ENFORCEMENT ANY. ACTION TAKEN IN COMECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWIERS: (G) ANY ERRORS OR OMISSIONS IN THE OR (H) ANY DAMAGE TO ANY COMPUTER. MOBILE DEVICE. OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING. WITHOUT LIMITATION. DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS. TAMPERING, FRAUD. ERROR. OMISSION. INTERRUPTION. DEFECT. DELAY IN OPERATION OR TRANSMISSION. COMPUTER LIBE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION. INCLUDING. WITHOUT LIMITATION. DAMAGES FOR LOST PROFITS. LOSS OF GOODWILL. LOSS OF DATA. WORK STOPPAGE, ACCURACY OF RESULTS. OR COMPUTER FAILURE OR MALFUNCTION. EVEN IF FORESEEABLE OR EVEN IF THE INSTAGRAM PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. WHETIER IN AN ACTION OF CONTRACT, NEGLIGENCE. STRICT LIABILITY OR TORT (INCLUDING. WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE. ACTS OF GOD. TELECOMMUNICATIONS FAILURE. OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE INSTAGRAM PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS. DAMAGE OR INJURY. INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. SO THE ABOVE LIMITATION OR BICL USION MAY NOT APPLY TO YOU. IN NO EVENT WILL TI-E INSTAGRAM PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES. LOSSES OR CAUSES OR ACTION EXCEED ONE HUNDRED UNITED STATES DOLLARS YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES. LOSSES OR INJURIES THAT ARISE OUT OF ACTS OR OMISSIONS, THE DAMAGES. IF ANY. CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE. SERVICE. PROPERTY. PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY INSTAGRAM PARTIES. AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION. DISTRIBUTION, ADVERTISING. EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY. PRODUCT, SERVICE. OR OTHER CONTENT OWNED OR CONTROLLED BY THE INSTAGRAM PARTIES. BY ACCESSING TI-E SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED. AND IN ACCORDANCE WITH SUCH WAIVER. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND. AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA. AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY. WHICH PROVIDES AS FOLLOWS: GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTIM5 THE REL EASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE INSTAGRAM IS NOT RESPONSIBLE FOR THE ACTIONS. CONTENT, INFORMATION. OR DATA OF THIRD PARTIES. AND YOU RELEASE US. OUR DIRECTORS. OFFICERS. EMPLOYEES. AND AGENTS FROM ANY CLAIMS AND DAMAGES. KNOWN AND UNKNOWN. ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. lndem You (and also any third party for whom you operate an account or activity on the Service) agree to defend (at lnslagranfs request). indermily and hold the Instagram Parties harmless from and against any claims. liabilities. damages. losses. and expenses. including without limitation. reasonable attorney's tees and costs. arising out of or in any way connected with any of the iollowing (including as a result at your direct activities on the Service or those conducted on your behalf): (I) your Content or your access to or use of the Service; (ii) you breach or alleged breach of these Tamra of Use: your violation oi any third-party rig-it, including without limitation. any intellectual property right. ptblicity. confidentiality. property or privacy right; (iv) your violation of any laws. rules. regulations. codes. statutes, ordinances or orders of any governrrental and quasi-governmental allhorities. including, without limitation, all regulatory. administrative and legislative authorities; or any misrepresentation made by you. You wil cooperate as iuly required by lnstagrarn in the delense oi any claim instagram reserves the rigwt to assume the exclusive defense and control of any matter subject to indemnification by you. and you will not in any event settle any claim without the prior written consent of lnstagram. Arbitration Except if you opt-out or for disputes relating to: (1) your or intellectual property (such as traderrerlis. trade dress, domain names, trade secrets. copyrights and patents): (2) violations oi the API Terms; or (3) violations oi provisions 1 3 or 15 of the Basic Terms. above ('Excluded Disputes'). you agree that all disputes between you and lnstagram (whether or not such dispute involves a third party) with regard to your relationship with lnstagram. including without linitatlon disputes related to these Terms of Use. your use of the Service. andlor rights of privacy andlor publicity. will be resolved by binding, individual under the American Arbitration Association's rules for arbitration of consurnewelated disputes and you and lnatagram hereby expressly wive trial by jury. As an alternative. you may bring your claim in you local 'entail claims' court. if permitted by that small ciairrls cotti's rules. You may bring claims only on you own behalf. Neither you nor instagram will participate in a class action or class-wide arbitration for any claims covered by this agreement. You also agree not to participate in claims brought in a private attorney general or representative capacity. or consolidated claims involving another person': account. if inslagam is a party to tie proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. in the event the American Arbitration Association is unwilling or unable to set a hearing data within one hundred Documentl Fi|ed12/21/12 Page27 of 27 and sixty (160) days of filing the case. than either inslagram or rm elect to have the arbitration edrrinlstered instead by the Judicial Arbitration and Mediation Services. on the award rendered by the arbitrator may be entered in any court having corrpetent Any provision of applicable law notwithstanding. the arbitrator will not have authority to award damages. rermdies or awards that conflict with these Terms of Use. You may opt out of this to arbitrate. if you do so. neither you nor inetagram can require the other to participate in an arbitration proceeding. To opt out. you met notify instagram in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out: instegram. LLC ATTN: Arbitration Opt-out 1601 Willow Rd. Menlo Park. CA 94025 You mufi include your fume and restdenlze sddr'"e"s's". account, and a clear steternent that you want to opt out of this arbitration agreement. if the prohibition against class actions and ottler claims brought on behalf of third parties contained above is found to be unenforceable. then all of the preceding lnguage in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with lnstagram Time Limitation on Claims You agree that any claim you may have arising out of or related to your relationship with lnstagram must be filed within one year after such claim arose; otherwise, your claim is permanently barred. Governing Law Venue These Terms of Use are governed by and construed in accordance with the laws of the State of California. without uvlng effect to any principles of conflicts of law AND WILL SPECIHCALLY NOT BE GOVERNED BY THE NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. IF APPLICABLE. For any action at law or in equity relating to the arbitration provision of these Terms of Use. the Excluded Disputes or it you opt out of the agreenant to arbitrate, you agree to resolve any dispute you have with lnstagrsm exclusively in a state or federal court located in Santa Clara. California. and to submit to the personal iurisdotlon of the courts located in Santa Clara County for the purpose of litigating all such dsputes. if any provision of these Terms of Use is held to be unlawful. void. or for any reason unenforceable during arbitration or by a court of corrpetent jurisdiction, then that provision will be deemed severable from these Terms of Use and will not affect the validity and enforceability of any remaining provisions. instagram's failure to insist upon or enforce strict performance of any provision of these Terms will not be construed as a waiver of any provision or right. No waiver of any of these will be deemed a further or continuing waiver of such term or condition or any other term or condition. lnstagram reserves the right to change this dispute resolution provision. br.rt any such changes will not apply to disputes arising before the effective date of the arnendrrerrt. This dispute resolution provision will survive the termimtion of any or all of your transactions with instagram. Entire Agreement if you are using the Service on behalf of a legal entity. you represent that you are authorized to enter into an agreement on behalf of that legal entity. These Temts of Use constitute the entire agreement between you and Instagram and governs your use of the Service, supersedlng any prior agreements between you and You will not assign the Terms of Use or assign any rights or delegate any obligations hereunder. in whole or in part. whether voluntarily or by operation of law. without the prior written consent of Any purported assignment or delegation by you without the appropriate prior written consent of Instagram wil be null and void. instagram may assign these Terms of Use or any rights hereunder without your consent. if any provision of these Terms of Use is found by a court of corrtpetent jurisdiction to be invalid or otherwise utenforceabie, the parties nevertheless agree that such portion will be deemed severable from these Terms of Use and will not affect the validity and enforceability of the provisions. and the remaining provisions of the Terms of Use remain in full force and effect. Neither the course of conduct between the parties nor trade practice will act to modify the Tents of Use. These Temts of Use do not confer any third-party beneficiary rights. Territorial Restrictions The information provided within the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject instegram to any registration requirermnt within such jurisdiction or country. We reserve the right to limit the availability of the Service or any portion of the Service. to any person, geographic area, or jurisdiction. at anytime and in our sole discretion. nd to limit the quantities of any cement. program. product. service or other feature lnstagram provides. Software related to or made available by the Service may be subject to United States export controls. Thus. no software from the Service may be downloaded. exported or re-exported: ta) into for to a national or resident of) any country to which the United States has ernbargoed goods: crib) to anyone on the U.S. Treasury Department's list of Specialty Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to the Service. you represent and warrant that you are not located in. under the control of. or a national or resident of. any such country or on any such list. The effective date of these Terms of Use is January 19. 2013. These Terms of Use were written in English (US). To the extant any translated version of these Temts of Use conflicts with the English version. the English version controls. yous ACCOUNT - ABOUT us - SUPPORT - awe - ear - JOBS - PRIVACY - TERMS