Photo Album Terms and Conditions
END USER TERMS AND CONDITIONS
Photo Album Terms and Conditions PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
The company or entity from which photo products and/or services are ordered hereunder (“Company,” “us” or “we”) offers certain software (“Software”) and personal print publishing services that allow its customers to create and design professional quality printed photo albums (referred to as “Photo Albums” or “Photo Products” as applicable in these Terms and Conditions). The services offered by Company includes Company’s personal print publishing services accessible via the Company’s website (the “Website”) and any other features, content, or services offered from time to time by Company in connection with the personal print publishing services (collectively, the “Services”). Use of the Services and Software is limited to customers located in the continental United States.
1. Eligibility of Use. By using the Services, you represent and warrant that: (a) you are authorized to enter into this Agreement on behalf of yourself and/or the entity that you purport to represent; (b) all required registration information you submit is truthful and accurate; (c) you will maintain the accuracy of such information; (d) you are eighteen (18) years of age or older or the applicable age of majority in your jurisdiction; and (e) your use of the Services does not violate any applicable law or regulation. Your account with the Company (the “Account”) may be deleted without warning if we believe that any of the foregoing terms have been violated.
2. Additional Terms; Order of Precedence. In order to participate in or receive certain Services, you may be required to download Software and/or agree to additional terms and conditions that may be required in connection with your use of the Services. Unless otherwise provided by the additional terms and conditions applicable to the Services in which you choose to participate or receive, those additional terms are hereby incorporated into this Agreement. To the extent that there is a conflict between the terms in this Agreement and the terms and conditions posted for a specific area of the Website or in connection with the Services, the latter shall have precedence with respect to your use of that area of the Website and/or Services.
3. Amendments. Company may modify this Agreement from time to time, at its discretion. The resulting modifications will be reflected in the terms and conditions page of the Website. It is your responsibility to regularly check the terms and conditions page of the Website for modifications. Any such modification shall be effective: (1) for newly registered users of the Software or Services who first use the Services, upon the posting of such modifications on the Website, or (2) for existing users, thirty (30) days after such modifications are posted on the Website. If you do not agree to the modification(s), you must cease your use of the Services and the Software.
4. Term and Termination. This Agreement shall remain in full force and effect while you use the Services or maintain an Account. You or Company may delete your Account at any time. COMPANY MAINTAINS THE RIGHT TO TERMINATE YOUR ACCOUNT AT ANY TIME AND FOR ANY REASON. Termination of this Agreement and your Account will result in the deletion of your profile information from our databases, as well as any content that you have uploaded to the Website, such as text, files, images, graphics, photos, clip art, designs, layouts, colors, styles and any other information and material you include in a Photo Product (“Content”). Company shall not be liable to you for the deletion of your Content occurring as a result of the termination of your Account. Company shall have no obligation to provide you with any information, materials or Content following the termination of your Account and this Agreement.
5. AVAILABILITY OF WEBSITE/SERVICES Subject to the terms and conditions of this Agreement and any applicable Company policies and procedures, we shall use commercially reasonable efforts to provide access to the Website and the Services on a twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that from time to time the Website may be inaccessible or inoperable for any reason, including, but not limited to: equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable, including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we have no control over the availability of the Website or the Services on a continuous or uninterrupted basis, and that we assume no liability to you or any other party with regard thereto.
6. Third Party Software. Company may make Software available to you from a third party provider in connection with the Services. By downloading such Software, you agree to the terms of the applicable software license agreement. You understand that the agreement to use such Software will be solely between you and the third party provider. Such Software is provided “as is.” Company does not make any representations or warranties concerning any Software you download using our Services regarding the Software’s performance, usefulness, effectiveness, or relevance. Furthermore, Company makes no representation or warranty that the Software is free from any harmful, contaminating, or destructive code, such as worms, viruses, or Trojan horses. Company and Company Affiliates (defined below) shall not be liable for any harm, destruction, or corruption of files, computers or hard drives, loss of data, business interruption or any other damages, whether direct or indirect, resulting from the download or use of such Software.
7. Fees; Payment; Acceptance. All prices are in U.S. currency and payment must accompany your order. If Company authorizes the use of a credit card as a payment option to pay for Photo Products and Services, you will be required to enter a valid credit card number and associated payment information at the time you order any Photo Products hereunder, including all of the following: (a) your name as it appears on the card, (b) the credit card type, (c) the date of expiration of your credit card, (d) billing address, and (e) any activation numbers or codes needed to charge your card. You agree to immediately notify Company of any change in your billing address or to the credit card used for payment. Failure to submit a valid credit card payment will result in cancellation/termination of your order.
Your credit card issuer agreement governs your use of your designated credit card and it is your responsibility to refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. By providing Company with your credit card number and associated payment information, you agree that Company is authorized to immediately invoice your account for all fees and charges due and payable to Company as a result of your purchase of Photo Products. You agree that no additional notice or consent is required before Company invoices the credit card for all amounts due and payable. Company reserves the right, at any time, to change its prices and billing methods for any Photo Products or Services sold, without prior notice.
If Company authorizes the use of a payment processor [“Authorized Payment Processor” or “Processor”] as a payment option to pay for Photo Products and/or other Services, your use of such payment method through such Authorized Payment Processor shall be subject to such Processor’s terms and conditions.
Your receipt of an electronic order confirmation does not signify Company’s acceptance of your order, nor does it constitute confirmation of our offer to sell. Company reserves the right at any time after receipt of your order to accept or decline your order for any reason. Your order will be deemed accepted by Company upon our delivery of the Photo Products that you have ordered. We may require additional verifications or information before accepting any order. Failure to provide any requested verification or information may result in a cancellation/termination of your order. 8. Photo Product Quality; Returns. You are responsible for reviewing your final file and approving the electronic proof through Company’s Software provided for use in connection with the Services, and you bear full responsibility for the content and accuracy of the Photo Products. You should not upload a file unless it has been fully proofed and you are satisfied that the Photo Products are ready to be printed. CONTENT CANNOT BE EDITED ONCE UPLOADED TO THE WEBSITE. Company is not responsible for any errors in design, text, background, border, and/or any other layout effect in the Photo Products. Company does not proof, edit, or change any of the Content in the Photo Products that you submit to the Services. As a result, Company shall have no obligation to correct any Content, including, but not limited to: (a) typographical errors, mistakes in grammar, unfinished text, or other text errors; (b) low resolution images that may appear blurry in print; (c) design issues such as book format, organization, style, color and page layout; or (d) any other creative choices you make in relation to the Photo Products.
Because Photo Products ordered via the Website are custom made goods, only items which have been damaged or lost in transit are eligible for return and replacement. The only remedy available to you in the event the Photo Products are lost or damaged is replacement of the Photo Products you ordered through the Website. No cash refunds or credits will be given.
You must contact the Company within ten (10) days of your order to be eligible for replacement Photo Products due to loss of or damage to your order. Only returns that have been pre-authorized may be returned. After contacting the Company, you will receive detailed return procedures.
After you have received a return authorization, the Photo Products must be returned to Company within ten (10) business days of the date you notify Company of the damage to the Photo Products. Returns after the foregoing ten (10) day period will not be accepted.
Any damaged product that you wish to return must be returned in the same condition it was received. PLEASE SAVE ALL ORIGINAL PACKING ITEMS AND FILLERS INCLUDED WITH YOUR ORDER. Include the reason for the return and your order number along with your documentation. If not re-packed as it was originally shipped, Company will not authorize replacement of your order.
8.a. File Size/Color Management. Company is not responsible for any of the following problems, among others, that may impact the print quality of the Photo Products resulting in a Photo Product that is unappealing to the user, such as: (a) submitted files that are too small; (b) photos that have a less than desirable or optimal resolution; and (c) files that are not properly color corrected. The Software may not alert the user of most files that are too small to print well, or alert the user of any color management issues that may exist with the file(s). You should not upload a file unless it has been fully proofed and you are satisfied that it is ready to be printed.
8.b. Tests and Proofs. If you order more than one Photo Album where layout and color management are important, we highly recommend that you order one physical proof to serve as a test print. A test print may be ordered at full price to allow you to approve all elements of the Photo Product. Additional charges will apply to any changes you make to the Photo Product that are re-submitted after a test print is purchased.
8.c. Copyright/Trademark Information. The trademarks, logos and service marks (“Marks”) displayed on the Website or in connection with the Services (such as those that may appear on certain Photo Products created through the Software and produced by Company and/or Company Affiliates (defined below)) are the property of Company, Company Affiliates or the person(s) or entities that own the Mark(s), as applicable. You are not permitted to use these Marks without the prior written consent of the Company or the person(s) or entities that own the Mark(s).
9. File and Information Storage. You acknowledge and agree that Company shall use commercially reasonable efforts to store the Content you upload through the Services for a period of ninety (90) days from the date you complete the purchase of the Photo Products. After such ninety (90) day period, all Content will be deleted and Company will not store or be responsible for backing up any Content you upload through the Services. Notwithstanding the foregoing, Company has no obligation to store your Content and it is your responsibility to maintain, store and back up your Content on your personal computer system, as Company is not a data repository system and shall not be liable for, and disclaims any responsibility in connection with, the loss of or damage to your information or Content.
10. License; Copyright and Content. You hereby grant Company and Company Affiliates a non-exclusive, royalty-free license to use, publish, copy, modify, transmit, display and distribute your Content for the purpose of delivering the Services and you warrant that you have a right to grant such a license. In addition, you warrant that all moral rights in any Content and uploaded materials have been waived and you hereby waive any such moral rights. You certify that Company has been authorized by you and the company you represent to manufacture the Photo Products. COMPANY HAS NO OWNERSHIP IN ANY OF YOUR CONTENT. As a condition of the Services, you represent and warrant to Company that you either own your Content or have written permission from the copyright owner(s) to make such Content available to the Services, including the authorization to allow Company to manufacture Photo Products containing such Content. You may not use any Content owned by someone else without the prior written consent of the owner. You are solely responsible for any copyright violations that arise as a result of your use of the Services. Company does not guarantee the accuracy, quality, or appropriateness of the information, materials and content available through the Services. If you believe that your work or the work of another individual or entity has been copied in a way that constitutes copyright infringement or other infringement of a third party right, please contact Company immediately.
11. Prohibited Content. Any Content posted by you in your Photo Products may not contain nudity, violence, sexually explicit or offensive subject matter, or any other Prohibited Content (defined below). You may not post or submit for print services a photograph of another person without that person's prior written permission.
“Prohibited Content” includes content that:
(i) promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
(ii) bullies, harasses or advocates stalking or harassment of another person;
(iii) involves the transmission of “junk mail,” “chain letters,” unsolicited mass mailing, or “spamming;”
(iv) is false or misleading;
(v) promotes, endorses, or furthers illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
(vi) promotes, reproduces, performs or distributes an illegal or unauthorized copy of another person’s work that is protected by copyright or trade secret law, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protection devices, or providing pirated music or links to pirated music files;
(vii) is involved in the exploitation of persons under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under the age of 13;
(viii) provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses and other harmful code;
(ix) solicits personally identifying information for commercial or unlawful purposes from others;
(x) contains viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files or similar software;
(xi) violates any applicable law, including, but not limited to laws and regulations governing export control, unfair competition, anti-discrimination and false advertising;
(xii) involves commercial activities that are detrimental to the interests of Company and Company Affiliates; or
(xiii) otherwise violates this Agreement or creates liability for Company and/or Company Affiliates.
Company reserves the right to refuse to print any Photo Products containing Content that it determines, in its sole discretion, is Prohibited Content. You agree to defend, indemnify and hold harmless Company and Company Affiliates for any claims arising out of or relating to any breach of your obligations under this Section.
12. Content Review and Report to the Authorities. At any time, and without notice, Company has the right (but not the obligation) to review, refuse to print, and delete any Content that in the sole judgment of Company: violates this Agreement, is Prohibited Content, is illegal, violates the rights of others, harms or threatens the safety of any other person, or creates liability for Company, Company Affiliates, or any other person or entity. Company reserves the right (but has no obligation) to investigate and take action against you, in its sole discretion, if you violate this provision or any other provision of this Agreement. Without limitation, such action may include some or all of the following: refusing your order, reporting you to law enforcement authorities, and/or taking legal action against you.
13. Indemnity. BY USING THE SOFTWARE AND THESE SERVICES AND AGREEING TO THIS AGREEMENT, YOU AND ANY ENTITY YOU PURPORT TO REPRESENT AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS COMPANY AND COMPANY AFFILIATES FROM AND AGAINST ALL CLAIMS DUE TO OR RESULTING FROM: (i) YOUR USE OF THE SERVICES AND ANY ACTIVITY RELATED TO THE SERVICES (INCLUDING NEGLIGENT OR WRONGFUL CONDUCT) BY YOU OR BY ANY OTHER PERSON ACCESSING THE SERVICES AS YOUR INVITEE; (ii) YOUR BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR OBLIGATION SET FORTH IN THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, YOUR VIOLATION OF THE TERMS OF SECTION 11); (ii) YOUR VIOLATION OF ANY LAW; OR (iii) YOUR VIOLATION OF THE RIGHTS OF A THIRD PARTY, INCLUDING THE INFRINGEMENT BY YOU OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY, WHETHER WITH RESPECT TO THE CONTENT YOU UPLOAD TO THE SERVICES OR OTHERWISE. THE FOREGOING INDEMNITY OBLIGATIONS WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
14. Release. You hereby release Company and Company Affiliates from claims, demands, any and all losses, damages, rights and actions of any kind including, without limitation, personal injuries, death, and property damage, that are either directly or indirectly related to or arising from the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor."
15. Disclaimer of Warranties. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY AND COMPANY AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SOFTWARE AND THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY THAT (i) THE SOFTWARE AND THE SERVICES WILL BE PROVIDED IN A MANNER THAT IS UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (ii) THE SOFTWARE OR THE SERVICES ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (iii) THE SOFTWARE OR THE SERVICES WILL MEET YOUR REQUIREMENTS. NEITHER COMPANY NOR COMPANY AFFILIATES MAKE WARRANTIES OF ANY KIND WITH RESPECT TO SOFTWARE OR SERVICES THAT ARE PURCHASED, ACCESSED, OR OBTAINED THROUGH THE SERVICES OR THAT ARE ADVERTISED ON THE WEBSITE. ANY SOFTWARE OR MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH SOFTWARE OR OTHER MATERIALS.
16. Limitation of Liability. Company uses commercially reasonable efforts to maintain the availability of Services and provide you with your ordered Photo Products within the time period specified to you at the time of your order. NOTWITHSTANDING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT IN NO EVENT WILL COMPANY OR COMPANY AFFILIATES BE LIABLE FOR ANY CLAIM OF ANY NATURE (WHETHER ARISING IN CONTRACT, WARRANTY OR TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE) FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING ANY LOSS OF REVENUE, OR PROFIT) ARISING FROM OR RELATED TO (I) INFORMATION AND MATERIALS (SUCH AS THIRD PARTY CONTENT) MADE AVAILABLE ON OR THROUGH THE SERVICES (INCLUDING WITHOUT LIMITATION ERRORS OR OMISSIONS IN SUCH INFORMATION AND MATERIALS); (II) USE OF OR INABILITY TO USE THE SOFTWARE OR THE SERVICES; (III) CORRUPTION, LOSS OF OR DAMAGE TO YOUR CONTENT, DATA OR SUBMITTED PHOTO PRODUCTS; (IV) CORRUPTION, LOSS OR DAMAGE TO YOUR COMPUTER OR LOSS OR DAMAGE TO DATA RESULTING FROM THE DOWNLOADING OR USE OF THE SOFTWARE; (V) LOSS OR DAMAGE RESULTING FROM DISRUPTION OF SERVICES OR OUTAGES; (VI) COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE AND SERVICES; (VII) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS BY THIRD PARTIES; AND (VIII) ANY OTHER MATTER RELATING TO THE SOFTWARE OR THE SERVICES.
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SOFTWARE OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED. IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF COMPANY OR COMPANY AFFILIATES EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE PARTICULAR SERVICES THAT ARE THE SUBJECT OF THE CAUSE OF ACTION. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
17. No Waiver. The failure of Company to exercise or enforce any term of the Agreement shall not constitute a waiver of such term.
18. Severability; Survival. If any term of this Agreement is found by a court of competent jurisdiction to be illegal by any court or tribunal of competent jurisdiction, such provision shall be null and void with respect to the jurisdiction of that court or tribunal and all the remaining provisions of this Agreement shall remain in full force and effect. Any provisions in this Agreement which by their nature are intended to survive termination, shall so survive.
19. Headings. The headings used in this Agreement are for convenience only and do not form a part hereof.
20. Entire Agreement. This Agreement constitute the entire agreement between you and Company governing your use of the Website, Software and Services and supersede all other communications, written or oral.