1. REGISTRATION - As a condition to using Services, you are required to open an account with ViaPhoto and select a password and username, and to provide registration information. The registration information you provide must be accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of your ViaPhoto account. You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trade mark that is subject to any rights of another person or entity other than you without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene. You are responsible for maintaining the confidentiality of your password and are solely responsible for all activities resulting from the use of your password and conducted through your ViaPhoto account.
Services are available only to individuals who are at least 18 years old. If you have authorized a minor to use the Site, you are responsible for the online conduct of such minor, and the consequences of any misuse of the Site by the minor. Parents and legal guardians are warned that the Site does display photographs and images containing nudity and violence that may be offensive to some. The Services are for use by individuals who are photographers and graphic artists.
2. USER CONDUCT -All Content posted or otherwise submitted to the Site is the sole responsibility of the account holder from which such Content originates and you acknowledge and agree that you, and not ViaPhoto are entirely responsible for all Content that you post, or otherwise submit to the Site. ViaPhoto does not control user submitted Content and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Site you may be exposed to Content that is offensive, indecent or objectionable.
As a condition of use, you promise not to use the Services for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably intended by ViaPhoto. By way of example, and not as a limitation, you agree not to use the Services:
1. To abuse, harass, threaten, impersonate or intimidate any person;
2. To post or transmit, or cause to be posted or transmitted, any Content that is libellous, defamatory, obscene, pornographic, abusive, offensive, profane, or that infringes any copyright or other right of any person;
3. For any purpose (including posting or viewing Content) that is not permitted under the laws of the jurisdiction where you use the Services; 4. To post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any ViaPhoto user;
5. To create or transmit unwanted вЂ�spamвЂ™ to any person or any URL
6. To create multiple accounts for the purpose of voting for or against usersвЂ™ photographs or images;
7. To post copyrighted Content which doesnвЂ™t belong to you, with exception of Blogs, where you may post such Content with explicit mention of the authorвЂ™s name and a link to the source of the Content;
8. With the exception of accessing RSS feeds, you will not use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or (iii) bypass any measures we may use to prevent or restrict access to the Site;
9. To advertise to, or solicit, any user to buy or sell any products or services, or to use any information obtained from the Services in order to contact, advertise to, solicit, or sell to any user without their prior explicit consent;
10. To promote or sell Content of another person
11. To sell or otherwise transfer your profile.
To report a suspected abuse of the Site or a breach of the Terms (other than relating to copyright infringement which is addressed under вЂњCOPYRIGHT COMPLAINTSвЂќ below) please send written notice to ViaPhoto at email: firstname.lastname@example.org. You are solely responsible for your interactions with other users of the Site. ViaPhoto reserves the right, but has no obligation, to monitor disputes between you and other users.
3. CONTENT SUBMITTED - Please read this section carefully before posting, uploading, or otherwise submitting any Content to the site. By submitting content to the site you are granting ViaPhoto a worldwide, Non exclusive license to use the content and are representing and warranting to ViaPhoto That the content is owned or duly licensed by you, and that ViaPhoto is free to publish, Distribute and use the content as hereinafter provided for without obtaining permission Or license from any third party.
In consideration of ViaPhoto вЂ™s agreement to allow you to post Content to the Site and ViaPhotoвЂ™s agreement to publish such Content and for other valuable consideration the receipt and sufficiency of which are hereby expressly and irrevocably acknowledged, you agree with ViaPhoto as follows:
1. You acknowledge that:
1. By uploading your photographic or graphic works to ViaPhoto you retain full rights to those works that you had prior to uploading.
2. By posting Content to the Site you hereby grant to ViaPhoto a non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content in connection with the Services. This license will exist for the period during which the Content is posted on the Site and will automatically terminate upon the removal of the Content from the Site;
3. The license granted to ViaPhoto includes the right to use your Content fully or partially for promotional reasons and to distribute and redistribute your Content to other parties, web-sites, applications, and other entities, provided such Content is attributed to you in accordance with the credits (i.e. username, profile picture, photo title, descriptions, tags, and other accompanying information) if any and as appropriate, all as submitted to ViaPhoto by you;
4. ViaPhoto uses industry recognized software and measures to restrict the ability of users and visitors to the Site to make high resolution copies of Content posted on the Site. Notwithstanding this, ViaPhoto makes no representation and warranty that Content posted on the Site will not be unlawfully copied without your consent. ViaPhoto does not restrict the ability of users and visitors to the Site to make low resolution or вЂ�thumbnailвЂ™ copies of Content posted on the Site and you hereby expressly authorize ViaPhoto to permit users and visitors to the Site to make such low resolution copies of your Content; and
5. Subject to the terms of the foregoing license, you retain full ownership or other rights in your Content and any intellectual property rights or other proprietary rights associated with your Content.
2. You represent and warrant that:
1. You are the owner of all rights, including all copy rights in and to all Content you submit to the site;
2. You have the full and complete right to enter into this agreement and to grant to ViaPhoto the rights in the Content herein granted, and that no further permissions are required from, nor payments required to be made to any other person in connection with the use by ViaPhoto of the Content as contemplated herein; and
3. The Content does not defame any person and does not infringe upon the copyright, moral rights, publicity rights, privacy rights or any other right of any person, or violate any law or judicial or governmental order.
3. You shall not have any right to terminate the permissions granted herein, nor to seek, obtain, or enforce any injunctive or other equitable relief against ViaPhoto, all of which such rights are hereby expressly and irrevocably waived by you in favour of ViaPhoto.
3. PREMIUM SERVICES - ViaPhoto provides premium services to holders of its вЂњStarterвЂќ, вЂњProвЂќ and вЂњMasterвЂќ ("premium") accounts. In addition to the general terms and conditions provided for by these Terms, the following terms and conditions apply specifically to premium account holders:
1. Services available to premium account holders are described on the account Pricing Terms & Conditions. Any feature or disputes that are not described on the account Pricing Terms & Conditions cannot be grounds for refund of an account.
2. ViaPhoto may modify, suspend or discontinue Services provided to premium account holders at any time at its sole discretion and without prior notice.
3. Any refund owing to you will be paid within 30 days of the Termination Date provided your request for termination included your username and full name as it appears in your PayPal account or on your credit card.
4. COPYRIGHT COMPLAINTS - ViaPhoto respects the intellectual property rights of others. It is our policy to respond promptly any claim that Content posted on the Site infringes the copyright or other intellectual property infringement (вЂњInfringementвЂќ) of any person. ViaPhoto will use reasonable efforts to investigate notices of alleged Infringement and will take appropriate action under applicable intellectual property law and these Terms where it believes an Infringement has taken place, including removing or disabling access to the Content claimed to be infringing and/or terminating accounts and access to the Site.
To notify ViaPhoto of a possible Infringement you must submit your notice in writing to the attention of вЂњCopyright InfringementвЂќ care of email@example.com and include in your notice a detailed description of the alleged Infringement sufficient to enable ViaPhoto to make a reasonable determination. Please note that you may be held accountable for damages (including costs and attorneysвЂ™ fees) for misrepresenting that any Content is infringing your copyright. If we remove or disable access to Content in response to a notice of Infringement, we will make reasonable attempts to contact the user who posted the affected Content. If you feel that your Content is not infringing, you may provide ViaPhoto with a counter notice in writing to the attention of вЂњCopyright Infringement Counter NotificationвЂќ at firstname.lastname@example.org. You must include in your counter notice sufficient information to enable ViaPhoto to make a reasonable determination. Please note that you may be held accountable for damages (including costs and attorneys' fees) if you materially misrepresent that your Content is not infringing the copyrights of others.
If you are uncertain whether an activity constitutes Infringement, we recommended seeking advice of an attorney.
5. RELEASE AND INDEMNITY - You hereby expressly and irrevocably release and forever discharge ViaPhoto, its affiliated and associated companies, and their respective directors, officers, employees, agents, representatives, independent and dependent contractors, licensees, successors and assigns of and from any and all actions, causes of action, suits, proceedings, liability, debts, judgments, claims and demands whatsoever in law or equity which you ever had, now have, or hereafter can, shall or may have, for or by reason of, or arising directly or indirectly out of your use of the Site and the Services. You hereby agree to indemnify and hold harmless ViaPhoto, its affiliated and associated companies, and their respective directors, officers, employees, agents, representatives, independent and dependent contractors, licensees, successors and assigns from and against all claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys' fees, resulting from or arising out of (i) a breach of these Terms, (ii) Content posted on the Site, (iii) the use of the Services, by you or any person using your account or ViaPhoto Username and password, (iv) the sale or use of your Store Images, or (v) any violation of any rights of a third party.
6. LIMITATION OF LIABILITY - In no event shall ViaPhoto be liable under contract, tort, strict liability, negligence or other Legal theory with respect to the site, the service or any content for any lost profits or Special, indirect, incidental, punitive, or consequential damages of any kind whatsoever.
7. TRADEMARKS - ViaPhoto, ViaPhoto.com and other ViaPhoto graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of ViaPhoto. ViaPhotoвЂ™s trademarks and trade dress may not be used in connection with any product or service without the prior written consent of ViaPhoto. The images and icons available in the ViaPhoto icon pack may used by partners and third party sites in connection with providing appropriate links to the ViaPhoto Site.
8. TERMINATIONS - ViaPhoto may terminate or suspend any and all Services and/or your ViaPhoto account immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms. Upon termination of your account, your right to use the Services will immediately cease. If you wish to terminate your ViaPhoto account, you may simply discontinue using the Services. All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
It is your responsibility to remove all Content from your account prior to termination. Upon termination of your account ViaPhoto will automatically remove all Content posted to your account.
9. MISCELLANEOUS - No agency, partnership, joint venture, or employment is created as a result of the Terms and you do not have any authority of any kind to bind ViaPhoto in any respect whatsoever. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. ViaPhoto shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond ViaPhotoвЂ™s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). If any provision of the Terms is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and enforceable. ViaPhoto may transfer, assign or delegate the Terms and its rights and obligations without consent. The Terms shall be governed by and construed in accordance with the laws of California USA, as if made within California USA between two residents thereof, and the parties submit to the exclusive jurisdiction of California USA courts. Both parties agree that the Terms is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Terms, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein.
IF YOU ARE ACCESSING THIS AGREEMENT ON OUR WEBSITE AND NOT AS PART OF THE SOFTWARE DOWNLOAD PROCESS, THEN THE FOLLOWING TERMS AND CONDITIONS GOVERN YOUR USE OF THIS WEBSITE ('SITE') AND ANY SERVICES AND/OR SOFTWARE PROVIDED BY VIA PHOTO INC.. YOUR CONTINUED USE OF THIS SITE OR SERVICES SHALL CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT.
1. LICENSE GRANT. Subject to the terms of this Agreement, Via Photo Inc. Corporation (Company) hereby grants Licensee a limited, personal, non-sublicensable, non-transferable, nonexclusive and revocable license to use the software that Licensee is about to download ("Software"), the service that the software connects to (Service) and the Site (collectively, Technology) only for its personal, non-commercial, internal use and only in accordance with any documentation that accompanies it. Licensee may only install the Software on a computer running the Microsoft Windows or Mac OSX operating system. Licensee certifies that it is legally permitted to use the Technology. This Agreement is void where prohibited by law and the right to use the Technology in such jurisdictions is revoked. Moreover, to comply with the Children's Online Privacy Protection Act, Licensee must be at least 18 years of age.
2. LICENSE RESTRICTIONS. Except as expressly and unambiguously permitted by this Agreement, Licensee shall not, nor permit anyone else to, directly or indirectly: (i) copy (except for a reasonable number of backup copies), modify, reproduce, adapt, translate, create derivative works of, or distribute the Software; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code, structure, ideas, algorithms, file formats, programming, interoperability interfaces, or sequence and organization of the Software, (to the extent such restrictions are allowable under applicable law); (iii) rent, lease, loan, sell or use the Software for timesharing or service bureau purposes, or otherwise use the Software or any commercial purpose; (iv) use any device, spider, robot, automatic software or device or manual process to hinder or impede or attempt to obstruct or hinder the proper working of the Technology or to monitor use of the Technology, (v) use any network monitoring or discovery software or device to determine Technology architecture or extract information or statistics about usage or user identities, (vi) take any action that, in Company's sole discretion, imposes an unreasonable or disproportionately large load on the Technology, or (vii) use the Technology and in any way to disseminate content that is, in Company's sole discretion, abusive, defamatory, obscene or in violation of copyright or trademark laws. Licensee shall maintain and not remove or obscure any proprietary notices on the Software. As between the parties, title, ownership rights, and intellectual property rights in and to the Technology, and any copies or portions thereof, shall remain in Company and its suppliers or licensors. Licensee understands that Company may modify, suspend or discontinue offering any part of the Technology at any time including the availability of any feature, database or content. Company may also impose limits on certain features and services or restrict Licensee's access to parts or all of the Technology without notice or liability. The Software is protected by the copyright laws of the United States and international copyright treaties. This Agreement does not give Licensee any rights not expressly granted herein.
3. PRODUCT VERSIONS. The following terms apply to Licensee's use of all versions of the Technology notwithstanding anything to the contrary. Licensee agrees and acknowledges that (i) the Product is provided 'as is' without any warranties of any type and (ii) the Product, and compilations and media created with the Product, may not be compatible with future releases of the Technology and that additional Software may be required to continue to use the versions of the Service.
5. INTELLECTUAL PROPERTY; CONTENT. The content, software, graphics, logos, names and services ('Assets') offered as part of the Technology as well as their selection and arrangement are protected by copyright, trademark, patent and/or other intellectual property laws and any unauthorized use of these Assets, in whole or in part, violates the law and the terms of the Agreement. Via Photo is a trademark or registered trademark of Via Photo Inc. Licensee may not remove or alter any trademark, trade names, product names, logos, copyrights or other proprietary notices in the Software. As a condition to Licensee's use of the Technology, Licensee represents, warrants and covenants that Licensee will not use the Technology: (i) to infringe the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) to violate any applicable law, statute, ordinance or regulation; (iii) to disseminate or transmit information or materials in any form or format ("Content") that Licensee should know is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable under applicable laws or (iv) to disseminate any software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. Licensee, not Company, remains solely responsible for all Content that Licensee uploads, posts, e-mails, transmits, or otherwise disseminates using, or in connection with, the Software and Service. Licensee may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other Licensee. Licensee acknowledges that all Content that Licensee accesses using the Software is at Licensee's own risk and Licensee will be solely responsible for any damage to any party resulting therefrom. Moreover, Licensee acknowledges that Company is not responsible for screening, policing, editing or monitoring any Content posted, viewed, transmitted, disseminated, reproduced or distributed by any person using the Software or Service.
6. COPYRIGHT AND DISPUTE POLICY. Licensee represents and warrants that Licensee has all rights necessary to create, share and print media that Licensee uses in conjunction with the Technology. Please contact customer support at email@example.com if Licensee believes that material or content residing on or accessible through the Service infringes a copyright.
7. SERVICE ACCESS, SUPPORT, UPGRADES AND AUTOMATIC COMMUNICATIONS. This Agreement does not entitle Licensee to any support, upgrades, patches, enhancements, or fixes for the Software (collectively, 'Support'). Any such Support for the Software that may be made available by Company, in its sole discretion, shall become part of the Software and subject to this Agreement. It is recommended that prior to installation of the Software, the Licensee review any installation instructions, release notes, system requirements and documentation. Licensee acknowledges that the Software and Service performs automatic communications with Company servers over the Internet periodically and by default in order to provide the Service, transmit bug fixes, patches, upgrades and enhancements. Licensee hereby consents to such communications. Licensee's User ID may be transmitted to Company servers in order to allow Company to perform the Services. Licensee is responsible for all telecommunications or other connectivity charges incurred through the use of the Technology.
8. THIRD PARTY SOFTWARE. Features included in the Technology itself may contain third party software, which requires notices and/or additional terms and conditions. Company is not responsible for any third party software.
9. INDEMNITY. Licensee agrees that Company shall have no liability whatsoever for any use Licensee makes of the Technology. Licensee shall indemnify and hold harmless Company from any claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from Licensee's use of the Technology as well as from Licensee's failure to comply with any term of this Agreement.
10. WARRANTY DISCLAIMER. COMPANY AND ITS LICENSORS AND SUPPLIERS PROVIDE THE TECHNOLOGY "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
11. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL COMPANY OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA, OR DAMAGES RESULTING FROM YOUR USE OF THE SOFTWARE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF COMPANY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
12. TERM AND TERMINATION. This Agreement shall continue until terminated as set forth in this section. Licensee may terminate this Agreement at any time. Company may terminate this Agreement immediately if Licensee violates any provision of this Agreement or without cause. In the event that Company terminates this Agreement without cause, Company will refund Licensee any prepaid fees pro rata based on the number of unused months if such fees were paid by Licensee. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Software. Sections 2 and 6 through 13, shall survive termination of this Agreement.
13. ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18USC 2701-2711). COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED THROUGH USE OF THE SOFTWARE. Company will not be liable for the privacy of e-mail addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other content stored on Company's equipment, transmitted over networks accessed by the Software, or otherwise connected with Licensee's use of the Software.
14. GOVERNMENT USE.GOVERNMENT USE. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227- 7014(a)(5) or otherwise, all Software and accompanying documentation provided in connection with this Agreement are 'commercial items','commercial computer software' and/or 'commercial computer soft ware documentation.' Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the US. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
15. EXPORT CONTROLS. Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (OFAC), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By downloading or using the Software, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
16. MISCELLANEOUS. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. This Agreement may be amended at any time by Company, at its discretion, and Company will post a notice on its site or send Licensee a notice via email. Licensee shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Technology by Licensee following such notification constitutes Licensee's acceptance of the terms of the Agreement as modified. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Company to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Company's rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving Licensee) without Company's consent and any action or conduct in violation of the foregoing shall be void and without effect. Company expressly reserves the right to freely assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under California law without regard to conflicts of law principles.