Terms of Service
Last Updated March 03, 2014
We may make changes to these Terms from time to time. When we do, we will revise the “last updated” date given above. It is your responsibility to review these Terms frequently and to remain informed of any changes to them. The then-current version of these Terms will supersede all earlier versions. You agree that your continued use of our Services after such changes have been published to our Services will constitute your acceptance of such revised Terms.
By accessing or using the Sites or Services you represent and warrant that you are of the age of majority or older in the jurisdiction in which you reside. YOU MUST NOT ACCESS THE SITES OR USE THE SERVICES IF YOU ARE NOT OF THE AGE OF MAJORITY OR OLDER IN THE JURISDICTION THAT YOU RESIDE.
All content displayed or otherwise accessible through the Sites or Services, including, without limitation, information, news, editorials, communications, text, charts, graphs, data, photographs, images, graphics, music, videos, sounds, user interfaces, features, applications, computer software and code (collectively, the “Site Content”) are protected under Canadian, U.S. and foreign copyright and other laws, and are owned by fotoClient, its licensors or the party accredited as the provider of the Site Content. You shall abide by all copyright notices, information and restrictions provided on or through the Sites or Services respecting the Site Content. You may access the Site Content for your personal use solely as intended through the functionality provided by the Sites or Services. You may not copy, reproduce, sell, license, lease, transfer, assign, modify, adapt, translate, arrange, publish, display, host, distribute, reverse engineer, decompile, disassemble, prepare derivative works based on, re-post, make available to any person, or otherwise use, either directly or indirectly, any of the Site Content, in whole or in part, in any form or by any means whatsoever, without the prior written consent of fotoClient or the provider of the Site Content.
The Sites or Services may provide features that allow you and other users to post or submit content (“User Content”) to or through the Sites or Services, including, without limitation, messages, commentary, documents, images, video, audio, software, files or other information or content.
In addition, by posting or submitting User Content to or through the Sites or Services: (a) you waive, and represent and warrant that you have obtained the waiver of, any and all moral rights in that User Content, including, without limitation, rights of attribution, rights of integrity, and any similar rights in any jurisdiction in the world; and (b) you represent and warrant that the exercise of any of the rights granted by you under the User Content License will not violate or infringe upon the rights of any person, including, without limitation, privacy or publicity rights, intellectual property rights, or other rights.
You are solely responsible for User Content that you post or submit to or through the Sites or Services. fotoClient does not monitor or approve User Content that is posted or submitted to or through the Sites or Services. fotoClient may, in its sole and unfettered discretion, edit, remove or delete any User Content that you post or submit to or through the Sites or Services. fotoClient is not responsible for, and does not endorse, any User Content made available on or through the Sites or Services. Under no circumstances shall any fotoClient Related Party (defined below) be held liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to you or any third party in connection with any User Content posted by a third party on or through the Sites or Services. If you become aware of misuse of the Sites or Services by any person, please contact fotoClient at hello@fotoclient.
fotoClient of fotoClient LLC. Other names, words, titles, phrases, logos, designs, graphics, icons and trademarks displayed on the Sites may constitute registered or unregistered trademarks of fotoClient or third parties. While certain trademarks of third parties may be used by fotoClient under license, the display of third party trademarks on or through the Sites or Services should not be taken to imply any relationship or agency between fotoClient and the owner of that trade-mark or to imply that fotoClient endorses the wares, services or business of the owner of that trademark. Nothing contained on the Sites, Services or in these Terms should be construed as granting you any license or right to use any trade-mark logo or design of fotoClient or any third party without the prior written permission of fotoClient or the relevant third party owner.
Third Party Services
Services operated by third parties (“Third Party Services”) may be made available to you on, through, or in connection with the Sites or Services. Third Party Services may include messaging services, mobile services, features, content, applications, software, data feeds, or other services offered to you by third parties from time to time. Third Party Services may be made available to you through website links, embedded applications, embedded content, applications installed on your computing or mobile device, cookies, and other technological mechanisms. Third Party Services may access your fotoClient user account information, profile information, activity information, content and other information related to your use of the Sites or Services, and share your information with third party websites and services, as authorized by you. Similarly, Third Party Services may disclose to or through the Sites or Services user account information, profile information, activity information, content and other information related to your use of the Third Party Services.
fotoClient does not endorse any Third Party Services and is not responsible or liable for your use of Third Party Services or any losses or damages arising from your dealing with any Third Party Services. Your use of Third Party Services is solely at your own risk and in accordance with any agreements that you have with the third party providers of the Third Party Services. fotoClient does not make any representations or warranties, and disclaims all representations, warranties and conditions, whether expressed or implied, respecting any Third Party Services, including, without limitation: (a) the legality, accuracy, completeness, reliability, suitability, availability, security or timeliness of any Third Party Services, or the ability of any Third Party Services to meet your requirements or provide specific results; (b) the performance, merchantability, quality, fitness for a particular purpose, quiet enjoyment, non-infringement, or title of any information, material, content, software, goods or services on or made available through any Third Party Services; (c) the operation of any Third Party Services or that such services will be uninterrupted or error free, that defects or errors in such services will be corrected or that such services will be free from viruses or other harmful components; or (d) the collection, use, storage, disclosure or security of any information or content that you provide to such Third Party Services.
fotoClient is happy to receive your suggestions, comments and feedback (collectively “Feedback”) respecting the Sites, Site Content, Services and fotoClient’s business. However, by providing any Feedback to fotoClient, you agree, and represent and warrant, that fotoClient is free to use such Feedback for any purpose it desires, whether for the benefit of fotoClient or any other person, without any compensation or obligation to you or any other person.
General Use of the Sites and Services
In your use of the Sites and Services, you agree to act responsibly in a manner demonstrating the exercise of good judgment. You agree not to post or submit User Content or use the Sites or Services to send communications to others that: (a) are unlawful, threatening, abusive, libelous, defamatory, slanderous, obscene, vulgar, pornographic, profane or indecent, including, without limitation, User Content or communications constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, provincial, national or international law; (b) violate or infringe upon the rights of any person, including, without limitation, privacy or publicity rights, intellectual property rights (including, without limitation, copyright, patent, trade secret, and trade-mark rights), or other rights, without first obtaining permission from the rights holder; (c) promote racism, bigotry, hatred or physical harm of any kind against any group or individual, could be harmful to minors, harasses or advocates harassment of another person, provides material that exploits people under the age of majority in a sexual or violent manner, or provides instructional information about illegal activities; (d) solicits passwords, financial information or personal identifying information for commercial or unlawful purposes; (e) contains or creates viruses or other harmful components; (f) constitutes junk mail, chain letters, unsolicited mass mailing or spam; (g) contains advertising or which engages in commercial activities and/or sales, or which involve contests, sweepstakes, barter, advertising, and/or pyramid schemes; or (h) assist any person in doing any of the foregoing.
In addition, you agree not to: (a) use the Sites, Site Content or Services for any illegal or unauthorized purpose; (b) attempt to gain unauthorized access to any portion of the Sites, Site Content or Services; (c) sell, resell, rent, lease or sublicense any aspect of the Sites, Site Content, or Services; (d) interfere with or damage the Sites, Site Content or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology; (e) reproduce or circumvent the navigational structure or presentation of the Sites, Site Content or Services; (f) collect or store any information about any other user of the Sites or Services other than in the course of the permitted use of the Sites, Site Content or Services; (g) misrepresent or falsely state your true identity, including, without limitation, impersonating another person or entity; (h) remove any copyright, trade-mark or other proprietary right notices on or associated with the Sites, Site Content or Services; (i) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Sites, Site Content or Services; (j) use the Sites or Services to send communications to persons with whom you do not have an existing relationship or who are unlikely to recognize you as the source of the communication; (k) use the Sites or Services to send communications to distribution lists, newsgroups or other group aliases; (l) use the Sites or Services to harass, stalk, or send unsolicited or unwanted communications to another person, including, without limitation, junk mail, chain letters, unsolicited mass mailing or spam; or (m) assist any person in doing any of the foregoing.
You also agree to comply with all usage limits respecting the Sites, Site Content and Services as specified by fotoClient from time to time in its sole discretion, including, without limitation, limits on storage space, bandwidth usage, number of connections/collaborators/messages, number of simultaneous logins or instances of the Sites or Services, number/frequency of calls to the Sites or Services or application programming interfaces made available on or through the Sites or Services.
Interactions with Other Users
You are solely responsible for your interactions with other users of the Sites or Services, including, without limitation, the User Content you post on or through the Sites or Services and through your communications to other users. fotoClient will not be responsible for any damage or harm resulting from your interactions with other users.
You understand that fotoClient does not in any way screen users, nor does fotoClient inquire into the backgrounds or identities of its users or attempt to verify their statements. fotoClient reserves the right, but has no obligation, to monitor all interactions between you and other users and to take any action in good faith to restrict access to or the availability of any User Content that fotoClient may consider to be illegal or in violation of these Terms.
Communications sent through the Sites or Services between you and other users that are not readily accessible to the general public may be reviewed by fotoClient for compliance with these Terms, but will be treated as private to the extent required by applicable law. You are solely responsible for, and agree to take reasonable precautions in, all interactions with other users. If you feel threatened by another user or believe someone else is in danger, you should contact your local law enforcement agency immediately.
To access and use certain portions or features of the Sites or Services, you may be required to register a user account (“User Account”). You represent and warrant that: (a) all information that you provide as part of the registration process or in association with your User Account is true, accurate, current and complete; and (b) you will maintain and promptly update such information to keep it true, accurate, current and complete. If fotoClient has reasonable grounds to suspect that any information that you provided as part of the registration process or in association with your User Account is untrue, inaccurate, not current, incomplete, or that you are not authorized to register the User Account, fotoClient has the right to suspend or terminate your access to and use of the Sites and Services (or any portion thereof). fotoClient’s use of any personally identifying information you provide as part of the registration process is governed by the terms of fotoClient’s Privacy.
You may be required to select a username and password when registering for a User Account. This username and password may be required to access certain portions and features of the Sites and Services and may only be used by you. Your username and password may not be disclosed to or used by any other person. You are solely responsible for maintaining the confidentiality and security of your username and password, and for all activities that occur under your username and password. fotoClient will not be responsible or liable for any loss or damage arising from any use of the Sites or Services that occurs using your username and password. You agree to notify fotoClient immediately of any unauthorized use of your username, password or User Account or any other breach of security, and to ensure that you log off from your User Account at the end of each session.
Paid Subscription Services
Certain portions or features of the Sites or Services may only be made available on paid subscription-basis (“Paid Services”). fotoClient reserves the right, to be exercised in its sole discretion, to convert any free portion or feature of the Sites or Services that it may make available from time to time, into a Paid Service, or vice versa. In addition to the terms and conditions provided in these Terms, Paid Services will be governed by the following:
(a) Free Trial
fotoClient may, from time to time, make certain Paid Services available on a free trial basis for a limited period of time (“Free Trial”). Except as explicitly provided otherwise by fotoClient in an authorized offer for a Free Trial, to be eligible for a Free Trial offered by fotoClient in respect of a particular Paid Service, you must satisfy the following criteria: (a) you must not already be subscribed to receive the Paid Service on a paid basis (b) you must not already be participating in a Free Trial for the Paid Service or have previously participated in a Free Trial for the Paid Service; and (c) you must register a valid User Account. Upon the earlier of the expiration of the Free Trial for a Paid Service or your election to subscribe to the Paid Service on a paid basis, the Free Trial will automatically terminate and you will no longer be eligible to participate in any future Free Trials for the Paid Service. fotoClient reserves the right to modify the terms of any Free Trial and the eligibility criteria required for participation in any Free Trial, at any time at its sole discretion.
(b) Paid Subscription
In order to subscribe for a Paid Service (other than as part of a Free Trial), you must register a valid User Account and provide current, valid and supported billing and payment information (“Payment Information”) to fotoClient. A Paid Service will not be activated until your Payment Information is validated and fotoClient receives payment for the Paid Service. In addition, you agree to maintain current, valid and supported Payment Information with fotoClient. You may update your billing and payment information through the “Account Billing Tab” available on the Sites. Currently, fotoClient supported payment methods are MasterCard, Visa or American Express. Payments will be charged in U.S. dollars. fotoClient reserves the right to modify its supported payment methods at any time at its sole discretion. fotoClient will endeavor to provide you with at least 30 days notice of any change to supported payment methods that will require a change to your Payment Information in order to continue receiving a Paid Service.
By registering for a Paid Service (other than as part of a Free Trial), you represent that you are authorized to use the Payment Information that you have provided to fotoClient, and you authorize fotoClient to charge the subscription fees (“Subscription Fee”) and all Applicable Taxes (defined below) associated with the Paid Service using your Payment Information. Subscription Fees and Applicable Taxes are due, and will be charged using your Payment Information, in advance, at the time of purchase and on a recurring basis near the beginning of each payment period (“Payment Period”) as selected or required with the Paid Service. Unless specifically specified otherwise, all subscriptions for Paid Services will automatically renew for successive Payment Periods upon the expiration of each Payment Period unless cancelled by you or terminated/discontinued by fotoClient in accordance with these Terms.
Subscription Fees are exclusive of, and you shall be responsible for, all taxes, tariffs, duties and other charges or assessments imposed or levied by any government or governmental agency in connection with the Paid Services (“Applicable Taxes”), including, without limitation, any federal, provincial, state and local sales, use, goods and services, value-added and personal property taxes on any payments due to fotoClient in connection with the Paid Services, except for tax based solely on the net income of fotoClient. If fotoClient is required to pay any Applicable Taxes in connection with any Paid Services that you have subscribed to, you authorize fotoClient to charge those Applicable Taxes using your Payment Information.
(d) Modification of Paid Service/Subscription Fees by fotoClient
fotoClient reserves the right to modify the Paid Services and Subscription Fees from time to time at its sole discretion. fotoClient will provide you with notice (“Change Notice”) of any material modifications to a Paid Service or associated Subscription Fee for which you have subscribed by sending an email to the email address that you have registered under your User Account. If you do not cancel your Paid Services within 30 days from the date of the Change Notice, you will be deemed to have irrevocably accepted the modifications to the Paid Services and Subscription Fees identified in the Change Notice.
(e) Cancellation, Upgrade or Downgrade of Paid Service by You
Your subscription and obligation to pay for a subscribed Paid Service will continue indefinitely until cancelled by you or terminated/discontinued by fotoClient. For some Paid Services, you may entitled to upgrade or downgrade the Paid Service to the extent and on the terms permitted by fotoClient from time to time. By upgrading or downgrading a Paid Service, you authorize fotoClient to charge any associated changes to the Subscription Fee in accordance with the payment terms for Subscription Fees and Applicable Taxes described above.
The cancellation, upgrade or downgrade of a Paid Service may be requested through the “Account Billing Tab”, however, you acknowledge that such cancellation, upgrade or downgrade may not be effective for up to 5 business days after receipt of such request by fotoClient. Accordingly, in order to avoid being charged the then-current Subscription Fee for a Paid Service for the next Payment Period, you must cancel, upgrade or downgrade the Paid Service at least 5 business days prior to the start of the next Payment Period. UPON CANCELLATION, UPGRADE OR DOWNGRADE OF A PAID SERVICE BY YOU, OR UPON TERMINATION/DISCONTINUANCE OF A PAID SERVICE BY FOTOCLIENT, YOU WILL NOT BE REFUNDED OR PROVIDED CREDIT FOR SUBSCRIPTION FEES OR APPLICABLE TAXES FOR ANY REMAINING PORTION OF THE CURRENT PAYMENT PERIOD OR FOR ANY CHANGE TO THE SUBSCRIPTIONS FEES OR APPLICABLE TAXES RESULTING FROM AN UPGRADE OR DOWNGRADE OF THE PAID SERVICE.
You acknowledge and agree that fotoClient that upon cancellation of a Paid Service, fotoClient is entitled to immediately deactivate or delete your User Account and any User Content associated with the Paid Service.
(f) Late Payments
If fotoClient does not receive payment of the Subscription Fee and Applicable Taxes for a Paid Service when due, fotoClient reserves the right to terminate or suspend your subscription to the Paid Service at its sole discretion.
Discontinuance of Service
fotoClient reserves the right at any time to modify or discontinue, temporarily or permanently, any portion of the Sites, Site Content or Services without prior notice. You agree that fotoClient will not be liable to you or to any third party for any modification or discontinuance of the Sites, Site Content or Services .
fotoClient may at any time, without notice, in its sole discretion and without cause, terminate your right to access or use the Sites, Site Content and Services (or any portion thereof). fotoClient may also terminate your right to access and use the Sites, Site Content and Services (or any portion thereof) if you breach any of these Terms. You agree that any termination of your access to the Sites, Site Content or Services may be effected without prior notice, and acknowledge and agree that fotoClient may immediately deactivate or delete your User Accounts and any User Content and/or bar any further access to such User Accounts and User Content and the Sites, Site Content and Services. Further, you agree that fotoClient will not be liable to you or any third party for any costs or damages of any kind for or resulting from any termination of your access to the Sites, Site Content or Services or any deactivation or deletion of your User Accounts or User Content.
Access to the Sites, Site Content and Services requires Internet connectivity. You are solely responsible for all communication fees and charges that you incur in relation to your access of the Sites and Services, including without limitation, fees and charges respecting cellular, data, WiFi, Internet, and network access or usage.
It is the policy of fotoClient to respond to claims of intellectual property infringement. fotoClient will promptly process and investigate notices of alleged infringement and will take any actions, in its sole discretion, it deems appropriate. Notifications of claimed intellectual property infringement should be sent to email@example.com
To be effective, the notification of infringement must be a written communication that includes the following:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the intellectual property claimed to have been infringed;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit fotoClient to locate the material;
4. Information reasonably sufficient to facilitate contact of the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
5. A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the intellectual property owner, its agent or the law and;
6. A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Disclaimer of Warranties
THE SITES, SITE CONTENT AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BY ACCESSING OR USING THE SITES OR SERVICES YOU ACKNOWLEDGE AND AGREE THAT USE OF THE SITES, SITE CONTENT AND SERVICES IS ENTIRELY AT YOUR OWN RISK. FOTOCLIENT MAKES NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION: (A) THAT THE SITES, SITE CONTENT OR SERVICES WILL BE ACCURATE, COMPLETE, RELIABLE, SUITABLE, AVAILABLE, SECURE, TIMELY, MEET YOUR REQUIREMENTS, OR PROVIDE SPECIFIC RESULTS; (B) REPRESENTATIONS, WARRANTIES AND CONDITIONS OF PERFORMANCE, MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, NON-INFRINGEMENT, TITLE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW, EQUITY, OR FROM A COURSE OF DEALING OR USE OF TRADE; (C) THAT THE OPERATION OF THE SITES OR SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR FREE; (D) THAT DEFECTS OR ERRORS IN THE SITES, SITE CONTENT OR SERVICES WILL BE CORRECTED; (E) THAT THE SITES, SITE CONTENT OR SERVICES WILL BE FREE FROM VIRUSES OR HARMFUL COMPONENTS; OR (F) THAT COMMUNICATIONS TO, FROM ,THROUGH OR IN CONNECTION WITH THE SITES OR SERVICES WILL BE SECURE OR NOT INTERCEPTED.
NOTE: THE LAWS OF CERTAIN JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Limitation of Liability
SUBJECT TO APPLICABLE LAW, IN NO EVENT SHALL FOTOCLIENT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, LICENSORS, OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “FOTOCLIENT RELATED PARTIES”) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY LOSS OR DAMAGES IN THE NATURE OF OR RELATING TO LOST BUSINESS, LOST SAVINGS, LOST DATA, LOST USE, LOST OPPORTUNITIES, LOST PROFITS, LOSS OF GOODWILL, DAMAGE TO PROPERTY, THIRD PARTY CLAIMS, OR ANY OTHER ECONOMIC LOSS, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THE FOREGOING LIMITATION SHALL APPLY EVEN IF A FOTOCLIENT RELATED PARTY KNEW OF OR OUGHT TO HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL THE FOTOCLIENT RELATED PARTIES’ AGGREGATE AND COLLECTIVE LIABILITY RESPECTING ANY MATTER ARISING FROM, RELATING TO OR CONNECTED WITH THE SITES, SITE CONTENT, SERVICES OR THESE TERMS, WHETHER ARISING IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE LESSER OF (A) THE TOTAL AMOUNTS THAT YOU HAVE PAID TO FOTOCLIENT, IF ANY, AND (B) FIFTY CANADIAN DOLLARS (CDN$50); EVEN IF A FOTOCLIENT RELATED PARTY HAD BEEN ADVISED OR OUGHT TO HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL ANY FOTOCLIENT RELATED PARTY BE LIABLE FOR ANY LOSS, DAMAGE OR ARISING FROM THE FAILURE OF A FOTOCLIENT RELATED PARTY OR YOUR FAILURE TO PROTECT YOUR USERNAME OR PASSWORD.
THE FOTOCLIENT RELATED PARTIES EXPRESSLY DISCLAIM ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS OR CONDUCT OF ANY THIRD PARTY USER, SERVICE PROVIDER, ADVERTISER OR SPONSOR OF THE SITES, SITE CONTENT OR SERVICES (COLLECTIVELY, “THIRD PARTY USERS”). UNDER NO CIRCUMSTANCES SHALL ANY FOTOCLIENT RELATED PARTY BE LIABLE FOR ANY INJURY, LOSS, DAMAGE (INCLUDING SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY AND PUNITIVE DAMAGES) OR EXPENSE ARISING IN ANY MANNER WHATSOEVER FROM (A) THE ACTS, OMISSIONS OR CONDUCT OF ANY THIRD PARTY USER, OR (B) ANY USE OR INABILITY TO USE ANY INFORMATION, MATERIALS, SOFTWARE, CONTENT, GOODS OR SERVICES LOCATED ON OR MADE AVAILABLE THROUGH ANY WEB SITE OR SERVICE LINKED TO OR FROM THE SITES, SITE CONTENT OR SERVICES. IF YOU DECIDE TO ACCESS OR USE ANY WEB SITE OR SERVICE LINKED TO OR FROM THE SITES, SITE CONTENT OR SERVICES (OR ANY INFORMATION, MATERIALS, SOFTWARE, CONTENT, GOODS OR SERVICES ON OR MADE AVAILABLE THEREFROM), YOU DO SO ENTIRELY AT YOUR OWN RISK.
YOU HEREBY RELEASE EACH FOTOCLIENT RELATED PARTY FROM ANY DAMAGES THAT YOU INCUR, AND AGREE NOT TO ASSERT ANY CLAIMS AGAINST ANY FOTOCLIENT RELATED PARTY, ARISING FROM YOUR PURCHASE OR USE OF ANY THIRD PARTY GOODS, SERVICES, SOFTWARE, MATERIALS, INFORMATION OR CONTENT MADE AVAILABLE THROUGH THE SITES, SITE CONTENT OR SERVICES OR LINKED TO OR FROM THE SITES, SITE CONTENT OR SERVICES.
NOTE: THE LAWS OF CERTAIN JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
You agree to indemnify, defend and hold harmless the fotoClient Related Parties from and against any and all loss, liability (including, without limitation, settlements and judgments) and expense (including, without limitation, actual attorneys’ fees and expenses and court costs) arising out of: (a) any third party claim against any fotoClient Related Party alleging that User Content or communications posted or submitted to or through the Sites or Services by you infringes the third party’s intellectual property rights, privacy rights, publicity rights or other rights; (b) any breach by you of any provision of these Terms and/or any representation or warranty set out herein; and (c) any cost or expense incurred by any fotoClient Related Party in the enforcement of this provision. fotoClient will have the right, in its sole and unfettered discretion, to control the defense and settlement of any action or proceeding against any fotoClient Related Party that you are bound to defend pursuant to the foregoing.
Governing Law and Jurisdiction
The Sites and Services are controlled by fotoClient from its offices within the state of Minnesota, USA. By accessing or using the Sites or Services, you agree that all matters relating to your access to, or use of, the Sites and Services shall be governed by the laws of the state of Minnesota and the laws of United States of America applicable therein, without regard to the conflict of laws principles thereof. Subject to the Dispute Resolution provision below, you agree and hereby submit to the non-exclusive jurisdiction of the Courts located in Minneapolis, Minnesota, United State of America with respect to such matters. You agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Except where prohibited by applicable law, any controversy, claim or dispute arising out of or relating to these Terms, your access and use of the Sites and Services, including, without limitation, the performance, breach, enforcement, existence or validity of the matters provided for in these Terms which cannot be amicably resolved, even if only one of the parties declares that there is a difference (collectively, a “Claim”), will be referred to at the request of either party and finally settled (to the exclusion of the Courts) by private and confidential binding arbitration before a single arbitrator held in Minneapolis, Minnesota, United States of America in accordance with the International Institute for Conflict Prevention and Resolution Global Rules for Accelerated Commercial Arbitration (the “Rules”) then in effect (except to the extent inconsistent with and therefore superseded by this section). There shall be one arbitrator agreed to by the parties or, if the parties are unable to agree within thirty days after a request for arbitration is made, selected in accordance with the Rules. Each party shall pay its own attorneys’ fees and one-half of the costs of the arbitration. The arbitrator shall issue a written award, stating reasons therefore (including, without limitation, both findings of fact and conclusions of law), and may award any remedy available at law (subject to the limitations of these Terms); but shall have no power to amend, supplement or reinstate these Terms; to award remedies other as permitted by these Terms or to fail to follow applicable law. The award will be final, binding on the parties, and may be confirmed by the judgment of a court of competent jurisdiction. Any such Claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim, controversy or dispute of any other party. You agree to waive any right you may have to commence or participate in any class action against any fotoClient Related Party related to any Claim and, where applicable, you also agree to opt out of any class proceedings against any fotoClient Related Party. Notwithstanding the foregoing, fotoClient reserves the right to pursue the protection of the Sites, Site Content, Services, and its intellectual property rights, through injunctive or other equitable relief through the Courts.
Any consent by fotoClient to, or waiver of, a breach of these Terms, which you have committed, whether express or implied, shall not constitute a consent to, or waiver of, any other, different or subsequent breach. You may not assign or transfer these Terms or any right or obligation hereunder. If any term or provision of these Terms is held by a court of competent jurisdiction to be invalid, it shall be severed and the remaining provisions shall remain in full force without being invalidated in any way. These Terms are not intended to create a partnership, joint venture, or agency relationship between the parties. Except for any applicable agreements with fotoClient or policies of fotoClient that expressly reference these Terms, these Terms form the entire agreement between you and fotoClient relating to the matters contained herein.
Last Updated March 02, 2014
What is Personal Information?
Unless permitted by law, we will not collect, use or disclose your Personal Information for any purpose without first obtaining your consent. However, we may seek consent to use and disclose Personal Information after it has been collected in those cases where we wish to use the Personal Information for a new or different purpose.
In most cases, and subject to legal and contractual restrictions, you are free to refuse or withdraw your consent at any time upon reasonable advance notice. It should be noted that there may be certain portions of the Sites or Services that will only be made available to you if you provide specific Personal Information to us. Consequently, if you choose not provide us with any required Personal Information, we may not be able to make available to you such portions of the Sites or Services. We will endeavour to inform you of the consequences of the any such refusal or withdrawal of consent.
Why We May Collect Personal Information
We may collect Personal Information from you when you voluntarily provide it to us in order to: provide the Sites and Services to you and other persons in accordance with your settings of the Sites and Services; improve the Sites and Services; process payments relating to the Sites and Services; provide you with information relating to the Sites and Services, including, without limitation, products, services, promotional offerings and contests (including direct marketing); provide you with support in respect of the Sites and Services; conduct surveys and customer research; meet legal and regulatory requirements; or such other purposes consistent with the foregoing purposes.
How We Collect and Use Personal Information
We only collect, use and disclose Personal Information for purposes that would be considered reasonable in the circumstances and we only use fair and lawful methods to collect Personal Information. For example, we may collect Personal Information when you: fill in forms, register or configure accounts or services (including third party services available through the Sites or Services) participate in surveys, tests, or assessments; purchase products or services; submit content or communications, including, through forums, blogs, chat rooms, messaging services, personal web pages or other services available through the Sites or Services (including third party services); select advertisements or content, navigate the Sites or Services, or otherwise interact with the Sites or Services (including third party services); or otherwise participate in the Sites or Services (including third party services).
When We May Disclose Your Personal Information
We may disclose your Personal Information:
1. to individuals or organizations who are involved in:
2. providing the Sites or Services, or information relating to the Sites and Services (including, without limitation, products, services, promotional offerings and contests or other products, services, promotional offerings or contests), on our behalf;
3. maintaining, reviewing or developing our business systems, procedures or infrastructure, including, without limitation, testing or upgrading of our computer systems;
4. a transfer of all or part of the assets or business of fotoClient; or
5. a corporate re-organization of fotoClient; or
6. for any other purpose to which you consent.
Please note that there are circumstances where the use and/or disclosure of Personal Information may be justified or permitted or where we are obliged to disclose Personal Information without consent. Such circumstances may include:
1. where required by law or by order or requirement of a court, administrative or law enforcement agency or governmental entity;
2. where we believe, upon reasonable grounds, that it is necessary to protect the rights, privacy, safety or property of fotoClient, or its licensors, affiliates, users or other third parties;
3. where it is necessary to establish or collect monies owing to us, our licensors or affiliates;
4. where required to identify, contact, communicate or take action against an individual who is suspected of violating the Terms of Service; or
5. where the information is publicly available.
Where obliged or permitted to disclose your Personal Information without consent, we will disclose no more Personal Information than is reasonably required.
The Accuracy and Retention of Personal Information
We endeavor to ensure that any Personal Information in our possession is as accurate, current and complete as necessary for the purposes for which we use and/or disclose such Personal Information. If we become aware that your Personal Information in our possession is inaccurate, out-of-date or incomplete, we will endeavor to revise such Personal Information accordingly.
We will retain your Personal Information only for so long as it is required for the purposes it was collected. This period may extend beyond the end of your relationship with us, but it will be only for so long as it is reasonably necessary for us to have sufficient information to respond to any issues that may arise after the end of your relationship with us. When your Personal Information is no longer required, we will destroy, delete or convert it into an anonymous form.
Protection of Personal Information
We endeavour to maintain appropriate physical, procedural and technical safeguards with respect to our offices and information storage facilities in order to prevent any loss, misuse, or unauthorized access, disclosure, or modification of Personal Information.
PLEASE NOTE: Some or all of your Personal Information that we collect may be stored or processed on servers located outside your jurisdiction of residence, whose data protection laws may differ from the jurisdiction in which you live. As a result, this information may be subject to disclosure to governments, courts, or law enforcement agencies in those jurisdictions according to the laws in those jurisdictions and without notice to us or you. Subject to applicable laws in such other jurisdictions, we will use reasonable efforts to ensure that appropriate protections are in place to require the data processor in that jurisdiction to maintain protections of your Personal Information that are equivalent to those that apply in the jurisdictions in which you live.
Access to Your Personal Information
We will permit you to access and correct your Personal Information as reasonably requested by you, and will endeavor to provide such access within a reasonable period, generally no later than 30 days following the request. To guard against fraudulent requests for access, we may require additional information to allow us to confirm that the individual making the request is authorized to do so before granting access or making corrections to such Personal Information.
We reserve the right to refuse, but have not obligation, to apply requested changes to your Personal Information if we reasonably believe that such changes are inaccurate, out-of-date or incomplete. Where we refuse to make changes to your Personal Information requested by you, we will inform you as to the reasons for our refusal.
We reserve the right, but have no obligation, to refuse to provide access to Personal Information where the Personal Information requested:
1. would disclose: (i) Personal Information (including, without limitation, opinions) about another individual or about a deceased individual; or (ii) trade secrets or other confidential information that may harm fotoClient, or its licensors, affiliates, users or a third party;
2. would interfere with contractual or other negotiations of fotoClient, or its licensors, affiliates, users or another third party;
3. is subject to solicitor-client, litigation or other legal privilege;
4. is not readily retrievable and the burden or cost of retrieving such Personal Information would be disproportionate to the nature or value of such Personal Information;
5. does not exist, is not held, or cannot be located by us;
6. could reasonably result in (i) serious harm to the treatment or recovery of the individual concerned, (ii) serious emotional harm to the individual concerned or another individual, or (iii) serious bodily harm to another individual;
7. may harm or interfere with law enforcement activities or other investigative or regulatory functions of a body authorized by law to perform such functions; or
8. is requested to be withheld by law or by order or requirement of a court, administrative or law enforcement agency or governmental entity.
Where we refuse to provide access to Personal Information, we will inform the individual making the request as to the reasons for our refusal.
We will not charge you for accessing or correcting your Personal Information, however, to the extent permitted by applicable law, we may charge you a fee if you request a copy of any records containing your Personal Information.
How Do We Gather Data By Automatic Means?
We may use cookie technology, web beacons and other similar devices on or with the Sites or Services to enhance functionality and navigation for our users. Information tracked through these mechanisms includes, but is not limited to: (i) user IP address; (ii) the type of web browser and operating system being used; (iii) the pages of the website a user visits; (iv) other websites a user visited before visiting the Sites or Services; and (v) session information. If you wish to disable cookies, refer to your web browser instruction manual or help facilities. Please note that if you disable cookies, you may be unable to access some of the features of the Sites or Services. Cookies that we use in association with the Sites or Services do not collect or contain your Personal Information.
Internet tags, graphic tags and similar web beacon type functions allow us to count the number of users who have visited a particular web page or to access certain cookies. We may use web beacons on or with the Sites or Services to count users and to recognize users by accessing our cookies. Being able to access our cookies allows us to personalize the Sites and Services and improve your experience with the Sites and Services. We may also include web beacons in HTML-formatted email messages that we send to determine which email messages were opened. Like cookies, the web beacons used by us in association with the Sites and Services do not collect or contain your Personal Information.
Third Party Websites and Services
The Sites or Services may provide features that permit you to share information with other persons (for example, chat rooms, message boards, forums, messages and other user communications). You should be aware that when you voluntarily disclose your Personal Information using any of these features, your Personal Information may be collected, used or disclosed by such persons without restriction. This may result in unsolicited messages from third parties, identity theft and other harm to you. Any Personal Information that you disclose to such persons is entirely at your own risk. fotoClient assumes no responsibility or liability as to any harm that you may suffer as a result of such activities.
Resolving Your Privacy Concerns
· access or correct your Personal Information in our possession;
· request that we not send you mailings or otherwise contact you; or
Please contact us at firstname.lastname@example.org