THIS TERMS OF SERVICE AND USER AGREEMENT
(hereinafter “Agreement”) is made
between PhotoCog LLC (hereinafter “Company”) and any person (hereinafter “User”) who completes the
registration process to open and maintain an account with the Company’s web-based service
(hereinafter “Service”). Company and User are collectively referred to as the “Parties”.
The Service is proprietary to Company and is protected by intellectual
property laws and international intellectual property treaties. User’s access to the Service
is licensed and not sold. Subject to the timely payment of all Fees and the terms and
limitations set forth in this Agreement, Company agrees to provide User with a personal,
non-transferable and non-exclusive account enabling User to access and use the Service.
User agrees that from time to time the Service may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which Company may undertake from time to time; or (c) causes beyond the control of Company or which are not reasonably foreseeable by Company. User accepts the service “as-is” and “as-available” with all faults and without warranty of any kind. (See Section 11 for full disclaimer of Warranty).
User shall be solely responsible for providing, maintaining and ensuring compatibility with the Service, all hardware, software, electrical and other physical requirements for User’s use of the Service, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use the Service.
User shall be solely responsible for the security, confidentiality and integrity of all content that User receives, transmits, uploads, or stores on the Service. User shall be solely responsible for any authorized or unauthorized access to User’s account by any person. User agrees to bear all responsibility for the confidentiality of User’s password and all use or charges incurred from use of the Service with User’s password.
When reasonably practicable, Company will attempt to respect User’s privacy. Company will not monitor, edit, or disclose any personal information about User or User’s account, including its contents or User’s use of the Service, without User’s prior consent unless Company has a good faith belief that such action is necessary to: (a) comply with legal process or other legal requirements of any governmental authority; (b) protect and defend the rights or property of Company; (c) enforce this Agreement; (d) protect the interests of users of the Service other than User or any other person; or (e) operate or conduct maintenance and repair of Company’s services or equipment, including the Service as authorized by law. User has no expectation of privacy with respect to the Internet generally.
Company does provide certain information in aggregate form collected from and relating to User to third persons such as advertisers and sponsors.
User shall pay Company for the Service the subscription charge, with the first such payment due and payable upon commencement of the Service and each successive payment due and payable on or prior to the first day of each calendar month hereinafter (“Fees”). Company expressly reserves the right to change the Fees at any time, upon notice to User.
Collection and Taxes.
All Fees, Taxes and other charges shall be billed to User’s credit card. User shall promptly pay Company in the event of any refusal of User’s credit card issuer to pay any amount to Company for any reason. User agrees to pay interest at the rate of 1.5% per month on any outstanding balance, together with costs of collection, including attorney's fees and costs. In the event User fails to pay any amount in advance, Company may immediately suspend or terminate this Agreement and User’s access to the Service.
User represents and warrants to Company that: (a) User is over the age of eighteen (18) and has the power and authority to enter into and perform User’s obligations under this Agreement; (b) all information provided by User to Company is truthful, accurate and complete; (c) User is the authorized signatory of the credit or charge card provided to Company to pay the Fees; (d) User shall comply with all terms and conditions of this Agreement, including, without limitation, the provisions set forth at Section 5; and (e) User has provided and will provide accurate and complete registration information, including, without limitation, User’s legal name, address and telephone number.
User is solely responsible for any and all acts and omissions that occur under User’s account or password, and User agrees not to engage in unacceptable use of the Service, which includes, without limitation, use of the Service to: (a) disseminate, store or transmit material that may be deemed abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (b) disseminate, store or transmit files, graphics, or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (c) export, re-export or permit downloading of any image or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses or exemptions; (d) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Service or any other computer network; (e) disseminate, store or transmit viruses, trojan horses or any other malicious code or program; or (f) rent, lease, loan, sell, distribute, or create derivative works based on the Services (g) exploit the Services in any unauthorized way whatsoever, including trespass or burdening network capacity (h) engage in any other activity deemed by the Company to be in conflict with the intended use of this service and spirit of this Agreement.
This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full force until terminated. User may terminate this Agreement for any reason upon thirty (30) days prior notice to Company. Company reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Service; (b) suspend User’s access to or use of all or any portion of the Service; and (c) terminate this Agreement.
Disclaimer of Warranties.
THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE. COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICE.
Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID BY USER TO COMPANY HEREUNDER. IF USER IS DISSATISFIED WITH THE SERVICE, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE SERVICE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 10.
User agrees to indemnify, hold harmless and defend Company from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, arising out of or relating to: (a) this Agreement; (b) User’s use of the Service, including any data or work transmitted or received by User; and (c) any unacceptable use of the Service, including, without limitation, any data or content made, transmitted or republished by User which is prohibited as unacceptable at Section 9.
Governing Law and Venue.
This License is governed by and interpreted in accordance with the laws of the State of Colorado, U.S.A., without regard to conflict of law provisions. Venue and jurisdiction shall be exclusively in the State of Colorado, County of Jefferson, U.S.A. and each party hereto fully and irrevocably consents to such exclusive and personal jurisdiction and venue. The United Nations Convention on Contracts for the International Sale of Goods specifically does not apply.
If any part of this Agreement is determined to be void, invalid, inoperative or unenforceable by a court of competent jurisdiction or by any other legally constituted body having jurisdiction to make such determination, such decision shall not affect any other provisions hereof and the remainder of this Agreement shall be effective as though such void, invalid, inoperative or unenforceable provision had not been contained herein.
The failure of either party to enforce any rights granted under this Agreement or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement or rights or subsequent actions in the event of future breaches.
Understanding, Authority, and Binding Effect.
The User agrees and acknowledges that it has fully read, understood, accepted and agree to each and every provision, term and condition contained in this Agreement. By clicking on the “accept” button the User warrants and represents that such individual is fully empowered and authorized to bind User to the provisions, terms and conditions herein.
The Parties acknowledge and agree that this Agreement contains the entire agreement of the Parties and supersedes any and all prior representations or agreements, whether oral or written, relating to the subject matter contained herein.