Terms of Service
ACCESS AND USE OF THE SERVICE
Description: The Service is designed to allow certain users (each, a “Seller”) to upload photographs which they have taken ("Images") and offer for sale and sell digital reproductions of the Images (“Digital Images”) and tangible reproductions of the Images ("Reproductions") to other users of the Service (“Buyers”) and other third parties. ALL sales of Digital Images are subject to Company’s then-current Image license agreement(s), which is/are available by clicking here or a written license agreement signed by both Company and the Digitial Image licensee (the foregoing click-through and signed agreements are collectively referred to as the “Image License Agreement(s). In the event of any conflict between these Terms and any Image License Agreement entered into between you and us with respect to the sale of a license to any Digital Image, or any subsequent use thereof, the terms of the Image License Agreement shall govern. The Reproductions may include, but are in no way limited to, canvases (in various sizes) suitable for hanging and/or framing, T-shirts, prints, pillows, magnets, etc., as we may approve and introduce from time to time, in our sole discretion. Reproductions may be licensed by Sellers to Buyers, or may be licensed by Company to a third party buyer, subject to these Terms. All “sales” refer to the sale of a license to an Image, or to the sale of a physical good bearing the Image, and not to the underlying copyright in any Image.
Purchase and Sale of Images and Reproductions by Users
Buyers may choose to purchase Digital Images and Reproductions that Sellers make available for sale. Sellers are responsible for their Images and obtaining all necessary rights to allow them to sell Digital Images and Reproductions via the Service. For example, before submitting an Image a Seller must obtain releases from the subjects in their Images, and any other required consents from intellectual property owners. Except as expressly set forth in the Image License Agreement between you and us with respect to Digital Images, Company cannot and does not control, endorse or guarantee the accuracy, integrity and quality of any Images, Digital Images or Reproductions. EXCEPT AS EXPRESSLY SET FORTH IN THE IMAGE LICENSE AGREEMENT BETWEEN YOU AND US WITH RESPECT TO DIGITAL IMAGES, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH IMAGES, DIGITAL IMAGES AND REPRODUCTIONS. Company’s only involvement in a transaction between Buyers and Sellers is to connect the Buyer and Seller via the Service, and facilitate the collection any payment of money as part of the transaction. Buyer and Seller must promptly provide Company with knowledge if either becomes aware of any claim or potential claim regarding any Digital Image, Reproduction, any use therof, or this Service.
Sellers agree to provide valid and accurate model releases for all Images that they contribute to the Service that contain an identifiable face or identifiable human figure or other identifiable attribute. A model release in the form provided by Cohley Photos in connection with the Services is hereinafter referred to as the “Model Release.” Images that depict an identifiable person, and are not accompanied by a model release , may be limited to "Editorial Use Only" by Cohley Photos in its sole discretion. Sellers are solely responsible for retaining all original model releases and maintaining complete and accurate model release records. The submission of falsified, inaccurate or otherwise defective model releases is a material breach of these Terms and can result in the immediate termination of Seller’s account without notice. Cohley Photos does not represent or warrant that the Model Release is sufficient in all jurisdictions and cases, and it is up to Sellers to verify the sufficiency of their release with their own legal counsel. Sellers agree that Cohley Photos may furnish Model Releases to Buyers (and other third parties), in order to respond to any potential or actual legal action or comply with applicable laws, regulations, and/or union reporting requirements. Sellers agree that all Images submitted by you for "Editorial Use Only" shall faithfully depict the subject and be accompanied by accurate titles and keywords.
From time to time in connection with the use of the Services, a Seller may be presented the option to identify in an Image (i) him/herself, and/or (ii) his or her child or ward under the age of 18 (“Seller’s Child”). By identifying him/herself or Seller’s Child, and by agreeing to terms of the Model Release, Seller acknowledges and agrees that he or she is bound by these Terms and that the terms of the Model Release shall apply to each subsequent Image provided by Seller with respect to which Seller identifies him/herself or Seller’s Child in such Image.
Company’s Sale of Images to Third Parties
Company may elect in its sole discretion to “sell” (or license) certain Digital Images uploaded to the Service to third party buyers (“Third Party Sale”). The terms of any Third Party Sale shall be determined solely between Company and such third party buyer under an Image License Agreement. If your Digital Images are part of the Third Party Sale, Company shall compensate you as set forth in the Fees section of these Terms. You hereby grant and will grant Company, its affiliated companies and its third party buyers a nonexclusive, worldwide, royalty free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to copy, publicly display, upload, publicly perform, transmit, distribute, store, modify, make derivative works of, and otherwise use your Digital Images in connection with their promotion and any Third Party Sale (whether sold by us or our sublicensees).
Modifications to Service
Company reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. We may also remove your Images from the Service at any time, for any reason, and without notice. You may remove Images from your account at any time on providing us with ten (10) days’ notice, provided that in any ninety (90) day period, you remove no more than (i) 100 Images and (ii) 10% of your Images, whichever is greater. We will use reasonable efforts to remove the specified Images. Please note that we may use third parties to resell Images, and that if your Image is removed from your account, our resellers have up to sixty (60) days to remove the Image from their services. Also, remember, that if your Image has been downloaded/licensed prior to removal from our Service, or any other service, those Buyers will continue to have the right to use that Image, even after you have removed the Image.You agree that Company will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service or removal of any Image.
General Practices Regarding Use and Storage
You acknowledge that Company may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Company’s servers on your behalf. You agree that Company has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Company reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Any Images, opinions, advice, statements, advertisements or other information or content expressed or made available on or through the Service, including without limitation any merchant offers or discount certificates, etc. (collectively, " Service Content"), are solely those of their respective author(s), and Company hereby expressly disclaims all responsibility and liability regarding all such Service Content. It is the responsibility of each User to evaluate the accuracy, completeness and utility of all Service Content.
The Service may include certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Company and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Company account information to ensure that your messages are not sent to the person that acquires your old number.
Account Registration; Passwords
Fees for Your Use of the Service: You acknowledge that Company reserves the right to charge for any portion of the Service and to change its fees (if any) from time to time in its discretion. You agree to pay all fees when due in accordance with the terms set forth on the Service.
Put simply, if you buy stuff from us, you promise to pay us.
Payment by Buyers who Purchase Digital Images or Reproductions: If you choose to purchase a Reproduction via the Service (“Transaction”), you will be required to select a payment plan and provide Company information regarding your credit card or other payment instrument. You represent and warrant to Company that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Company the amount that is specified in the Transaction in accordance with the terms of such Transaction and these Terms.
Payment Due to You if Your Images are Purchased by a Third Party
In the event that a Buyer chooses to purchase your Images or Reproductions, or Company elects to sell certain Digital Images as part of a Third Party Sale, Company shall compensate you as set forth in the Payments section of the Service. Payments to you for the sale of your Images or Reproductions will be made to you through PayPal. In order to receive payments, you must provide us with accurate and up-to-date PayPal account information. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
pple-Enabled Software Applications
Company offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
- Company and you acknowledge that these Terms of Service are concluded between Company and you only, and not with Apple, and that as between Company and Apple, Company, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
- You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
- Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Company’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- Company and you acknowledge that Company, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Company and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Company as follows: firstname.lastname@example.org
833 Broadway St. Fl. 2, New York, New York 10001
Company and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
Company imposes certain restrictions on your permissible use of the Service. You represent and agree that you will not:
i. assign; sublicense, sell, lease or otherwise transfer or convey your rights under these Terms;
ii. violate or attempt to violate any security feature of the Service;
iii. access or attempt to access any content, data, programs or other Company systems not intended for you, or log onto a server or account that you are not expressly authorized to access;
iv. attempt to probe, scan, or test the vulnerability of the Service or any associated system or network, or to breach security or authentication measures without proper authorization;
v. damage, disable, overburden or impair the Service or interfere or attempt to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Service, overloading, "flooding," "spamming," "mail bombing," or "crashing;"
vi. attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the hidden scripting or source code used by Company in providing the Service;
vii. attempt to modify, copy, distribute, transmit, display, perform, reproduce, publish, rent, lease, loan, license, or create derivative works based on the Service;
viii. frame in another web page, use on any other webService, transfer or sell any information, software, lists of users, databases, Company IP (as defined below) or other lists, products or services provided through or obtained through the Service, or engage in the practices of "screen scraping," "database scraping," or any other activity with the purpose of obtaining lists of users or other information from the Service;
ix. use any meta tags or any other "hidden text" utilizing Company IP (as defined below) without the express written consent of Company;
x. engage in, encourage others to engage in, or provide instructional information about, conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or any regulation having the force of law, including the Civil Rights Act of 1866, the Fair Housing Act, the Americans with Disabilities Act, and the Equal Credit Opportunity Act;
xi. harm minors in any way or solicit personal information from or about a minor;
xii. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
xiii. send email messages, post to any forum, or otherwise use the Service in any manner which intentionally or unintentionally violates any applicable local, state, national or international law or regulation (including without limitation, policies and laws related to spamming, privacy or defamation);
xiv. send email messages or make posts that contain falsified or misleading routing information, a return address that is either invalid or belongs to a third party and is used without permission, a misleading subject line and/or body copy, or promote a fraudulent scheme; and
xv. upload, download, post, email, transmit or otherwise make available any materials that: (a) are inappropriate to the mores of the Service community, misleading, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (b) you do not have a right to make available under any law or under contractual or fiduciary relationships (including but not limited to inside information regarding publicly traded companies, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements, etc.); (c) contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) contain unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; or (e) infringe any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party. You are solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any content you provide or transmit, or that is provided or transmitted using your user identification. The burden of proving that any content does not violate any laws or third party rights rests solely with you.
You are granted a limited, revocable, and nonexclusive right to create hyperlinks to the Service, provided that (i) the links do not portray Service users, Company, its Merchants, or its or their products or services in a false, misleading, derogatory, or otherwise offensive manner; and (ii) except as provided herein, you may not use any Company or Merchant logo or other proprietary graphic or trademark as part of the link without express written permission. For example, prominently positioning the Cohley Photos trademark such that there is clear association between the trademark and the destination of the link would be acceptable. You agree that you will not juxtapose the Cohley Photos mark and the link with your name or any other material(s) in a manner which might create any confusion that there is any affiliation or association between Company, and you or any other person or entity. If Company, for any reason in its sole and absolute discretion, requests in writing that you remove any link or links to the Homepage (or to any other part of the Service), you agree to promptly comply. You agree that if you create any link to the Homepage, you will not employ any technology that results in the placement of content from the Service in a frame and/or a reduced pop-up window and/or any other display mechanism which changes the Service Content from how it normally appears in a browser.
Company reserves the right to investigate suspected violations of these Terms, though it undertakes no obligation to do so. If Company becomes aware of a possible violation, Company may initiate an investigation which may include gathering information from you or companies involved and the complaining party. If Company believes, in its sole discretion, that a violation of these Terms has occurred, it may take responsive action. Such action may include, but is not limited to, temporary or permanent blocking of your access to the Service and/or deleting from Company's system any materials you have previously posted or made accessible. Company, in its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of these Terms could also subject you to criminal or civil liability. Company reserves the right to release the contact information of users involved in violations of system security to system administrators at other Services, in order to assist them in resolving security incidents. Company intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms or of any applicable laws.
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Company, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith is the property of Company, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Company.
The Company name and logos are trademarks and service marks of Company (collectively the “Company Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Company. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Company Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Company Trademarks will inure to our exclusive benefit.
Put simply, our trademarks and code are ours. You promise not to steal or misuse them.
User Content: Company may now or in future allow various types of User Content (as defined below) in designated areas of the Service, in which case this Section will apply thereto. You retain all of your ownership rights in your User Content (as defined below). However, by submitting, posting, downloading, displaying, performing, transmitting, or otherwise distributing Images, any other information or other content (collectively, "User Content") to the Service (including without limitation your name and user name), you are: (i) granting Company and its affiliates, a worldwide, royalty-free, perpetual, sub-licensable, transferable, non-exclusive, non-revocable license to use the User Content in connection with the promotion and operation of Company, and its affiliates, including without limitation, a right to use, host, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, create derivative works of and reformat the User Content; (ii) representing and warranting that you own the rights to the User Content or are otherwise authorized to post, display, perform, transmit, or otherwise distribute the User Content, and to grant all licenses set forth herein; and (iii) representing and warranting that posting and use of the User Content as provided and permitted herein shall not violate any privacy rights, publicity rights, contract rights, intellectual property rights (including without limitation copyrights) or other rights of any third party, and that you have obtained all necessary consents and/or waivers required to be obtained in connection with all such User Content, if any. Except as expressly provided with respect to sales of Digital Images by you or the Company, you will not be compensated for any User Content. You expressly waive any artists' authorship rights or any moral rights (“droit moral”) that you would otherwise have under the laws of the State of New York, United States Copyright Act or other laws of any jurisdiction. You also give permission to Company to add, modify or remove information related to your User Content in order to manage and license your User Content.
Put simply, again, you guarantee that you own the rights to the images you sell on our site, and that you have releases from any recognizable people or protected brands, landmarks, etc.
All User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person(s) posting or otherwise making available such User Content, and the person(s) from which such content originated. You are solely responsible for all User Content uploaded or otherwise transmitted to or via the Service using your account, and for confirming the sufficiency and reliability of any User Content posted by others that you may use or rely upon. Company does not control or endorse any User Content, or any opinion, recommendation, or advice expressed therein, uploaded or otherwise transmitted by you or other users to or via the Service and, as such, does not guarantee the accuracy, integrity or quality of such User Content. COMPANY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH USER CONTENT. Company further expressly disclaims any obligation to review, police or otherwise screen User Content for noncompliance with these Terms or with applicable laws, though it reserves the right to do so in its sole discretion. Company and its designees shall have the right (but not the obligation) in their sole discretion to refuse or to remove any User Content contained on the Service at any time for any reason with or without notice. Always use caution when posting any personally identifying information about yourself, your children or other individuals on the Service.
Put simply, we cannot review everything that gets posted to the site and cannot therefore take responsibility for all of it. You promise to be responsible for what you post.
You acknowledge and agree that Company may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Company, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
YOU UNDERSTAND THAT WHEN USING THE SERVICE, YOU MAY BE EXPOSED TO USER CONTENT FROM A VARIETY OF SOURCES, AND THAT COMPANY IS NOT RESPONSIBLE FOR THE ACCURACY, UTILITY, SAFETY, OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO SUCH USER CONTENT. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO USER CONTENT THAT IS INACCURATE, OFFENSIVE, INDECENT, OR OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST COMPANY WITH RESPECT THERETO, AND AGREE TO INDEMNIFY AND HOLD COMPANY, ITS PARENT, SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS, HARMLESS TO THE FULLEST EXTENT ALLOWED BY LAW REGARDING ALL MATTERS RELATED TO YOUR USE OF THE SERVICE. You hereby waive California Civil Code 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
Any comments, feedback, suggestions and ideas disclosed, submitted or offered to Company in connection with your use of the Service, excluding for clarity any Images (collectively "Submissions") shall be owned exclusively by Company. You agree that Company shall: (i) not be under any obligation of confidentiality, express or implied, with respect to the Submissions; (ii) be entitled to use or disclose Submissions for any purpose, without restriction worldwide; and (iii) not owe you any compensation or reimbursement of any kind under any circumstances for use or disclosure of Submissions.
If we provide any voting/rating features through our Service, we may have instructions and limitations for submitting your votes/ratings. It is important that you follow those instructions. We reserve the right to disqualify any votes/ratings we receive from you in excess of any stated limitation. Also, in order to uphold the integrity of the vote/ratings, payment or other consideration in exchange for votes/ratings is prohibited. Votes/ratings generated by script, macro or other automated means or any other means intended to impact the integrity of the voting/rating process as determined by us may be void. We are not liable for incorrect/inaccurate voting/rating information or for any error, omission, interruption, deletion or delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, votes/ratings. We may modify, terminate, or suspend the voting/rating or void any vote/rating should a virus, bug, non-authorized human intervention, action of voter/rater, or other cause impair the administration, security, or fairness of the voting/rating. We may disqualify any individual we find to be violating this Agreement, tampering with the voting/rating process, or acting in an unsportsmanlike or improper manner and void all associated votes/ratings. Our decisions with respect to all aspects of any voting/rating element are final and binding.
THIRD PARTY SERVICES AND SITES
The Service may provide links or other access to Third Party websites or resources. Your business dealings with any Third Party found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations, associated with such dealings, are solely between you and such Third Party. Company makes no endorsement or guarantee about any Third Party Content, or goods or services provided by such Third Party. Company shall not be responsible for any loss or damage of any sort incurred as the result of: (i) any dealings or transaction between you and any Third Party or as the result of the presence of or access to such Third Party or Third Party Content on or through the Service; (ii) any insufficiency of or problems with any such Third Party's background, insurance, credit or licensing; or (iii) the quality of services performed or products offered by any such third party or any other legal liability arising out of or related to the performance of such services or offer or provision of such products. In the event that you have a dispute with any such Third Party, you release Company, its parent, subsidiaries, affiliates, directors, officers, employees, agents, partners and licensors, from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Unless expressly provided herein to the contrary, these Terms govern your access to and use of any and all Third Party Content accessed via the Service. You hereby waive California Civil Code 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
Put simply, if we link to another site or service, we can’t guarantee anything about them.
You acknowledge and agree that Company may at any time in its sole discretion terminate your account and/or bar your access to and use of the Service, or any part thereof, and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Company believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Company may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Company may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Company will not be liable to you or any third party for any termination of your access to the Service.. You agree that upon termination of your account, Company may delete all files and information related to your account, if any, without any obligation to archive/store or return/transmit to you any such files and/or information.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY AND ALL WARRANTIES OR ENDORSEMENTS OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY USER CONTENT. WITHOUT LIMITING THE FOREGOING, COMPANY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, SAFETY, USABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY UNDERLYING PRODUCT OR SERVICE SOLD OR PURCHASED BY YOU THROUGH THE SERVICE. YOUR PURCHASE AND USE OF ANY USER CONTENT VIA THE SERVICE ARE AT YOUR SOLE RISK.
IN ADDITION, COMPANY MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY, ITS PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, CUSTOMERS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE FOR AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, INTERRUPTION OF BUSINESS, ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SERVICE, OR TO OTHER WEBSERVICE(S) YOU MAY ACCESS THROUGH THE SERVICE, CONTENT NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, GOODWILL, USE, CONTENT OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) ANY INFORMATION USER CONTENT, OR UNDERLYING PRODUCTS AND/OR SERVICES, PURCHASED OR OTHERWISE OBTAINED THROUGH OR FROM THE SERVICE, OR OTHERWISE ARISING OUT OF OR RELATED TO THE USE OF THE SERVICE; (III) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES RESULTING FROM ERROR OR INADEQUACY OF ANY INFORMATION OR USER CONTENT PURCHASED OR OTHERWISE OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (VI) ANY CLAIM OF DEFECT, FAILURE, OR OTHER INADEQUACY OF ANY INFORMATION OR USER CONTENT PURCHASED OR OTHERWISE OBTAINED THROUGH OR FROM THE SERVICE; (VII) INJURY TO PERSON OR PROPERTY ARISING FROM OR RELATED TO YOUR ACCESS TO AND USE OF THE SERVICE; (VIII) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (IX) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (X) ANY BUGS, VIRUSES, TROJAN HORSES, SPYWARE, ADWARE OR OTHER ACTUALLY OR POTENTIALLY HARMFUL CODE, WHICH MAY BE TRANSMITTED TO, FROM OR THROUGH THE SERVICE; AND/OR (XI) ANY OTHER MATTER RELATING TO THE SERVICE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, COMPANY'S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU SPECIFICALLY ACKNOWLEDGE THAT COMPANY, ITS OFFICERS, EMPLOYEES, CUSTOMERS, AGENTS AND LICENSORS, SHALL NOT BE RESPONSIBLE OR LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
IN NO EVENT WILL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID COMPANY IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
Put simply, if you don’t love the service, what you should do is stop using it.
You agree to defend, indemnify and hold Company, its parent, subsidiaries, affiliates, directors, officers, employees, agents, customers, partners, licensors and licensees, harmless from and against any and all claims, demands, losses, liability, costs and expenses (including but not limited to attorneys' fees) arising from User Content and any other content you submit, post, transmit, link to or otherwise make available on or through the Service, any transaction between you and another user, your use of the Service, your connection to the Service, your violation of these Terms, or your violation of any third party's rights, including but not limited to infringement of any intellectual property right, violation of any proprietary right and invasion of any privacy or similar rights. For avoidance of doubt, and without limitation, this Section (Indemnity) will survive the expiration or earlier termination of your account, your access to the Service, and/or these Terms, for any reason.
CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
Company has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Service. Company will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated, you should notify Company with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed 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 Company to locate the material; (d) information reasonably sufficient to permit Company to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Company's designated agent at:
Attn.: Copyright Agent Goldfish Social Inc. d/b/a Cohley Photos 833 Broadway St. Fl. 2, New York, New York 10001 U.S.A. Email: email@example.com
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Company will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Put simply, we do our best to quickly deal with issues of trademark or copyright infringement, but we aren't perfect.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances and at Company's sole discretion, users who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
SOCIAL NETWORKING SERVICES
In addition, Company is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Company is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Company enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
At Company’s or your election, all disputes, claims, or controversies arising out of or relating to the Terms of Service or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in Los Angeles, California before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in the Terms of Service. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Terms of Service, or any other agreement between you and Company, and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms of Service or any other agreement between you and Company, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
Put simply, if we ever have legal problems resulting from these terms, we will use arbitration as a means of solving the problems.
Entire Agreement These Terms and any documents referenced herein constitute the entire agreement between you and Company regarding their subject matter, and govern your use of the Service (including, without limitation, all purchases made through the Service), superseding any prior agreements between you and Company (including, but not limited to, any prior versions of these Terms) with respect to the same subject matter. Provided that if we enter into an Image License Agreement with you, that agreement shall control your purchase and use of any Digital Images through the Services. You also may be subject to additional terms and conditions that may apply when you purchase Merchant Offers, use affiliate or other Company services or products, third-party content or third-party software. Except in the case of Image License Agreements that we and you enter into, in the event any of these Terms conflict with any other provision contained in any other agreement referenced in these Terms, these Terms shall control. Except as otherwise provided in these Terms, these Terms may only be modified in a writing signed by an authorized officer of Company.
Consent to Email Communications You consent to receive communications from us electronically and agree that we may communicate with you by email or by posting notices on the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Put simply, it’s ok if we email you. We promise we will not abuse this privilege.
Assignment; Waiver You may not assign these Terms or any rights granted herein. Company may assign or transfer these Terms or its rights or obligations hereunder without notice and without your prior approval. These Terms are for the sole benefit of the parties hereto and do not create any third-party beneficiaries, whether intended or incidental. These Terms will inure to the benefit of Company and its successors and assigns. The failure of Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. No waiver, express or implied, by either party of any breach of or default under these Terms will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
Governing Law; Venue; Disputes These Terms are governed exclusively by the laws of the State of California, without reference to its conflicts of law principles, and without regard to the United Nations Convention on the International Sale of Goods. The parties hereby submit to the exclusive personal jurisdiction of, and agree that, except for controversies and claims arbitrated under these Terms, any controversy, claim or legal proceeding with respect to or arising under these Terms shall be brought exclusively in, the state or federal courts located in Orange County, California. You further irrevocably consent to the service of process in any such action or proceeding by the delivery of a copy of such process to you at the address set forth in the Registration Data. The prevailing party in any claim or proceeding shall be entitled to reimbursement of court and reasonable attorneys', accountants' and experts' fees and costs. You hereby acknowledge that a breach of these Terms may cause irreparable harm and significant injury to Company that may be difficult to ascertain, and that a remedy at law may be inadequate. Accordingly, you agree that Company shall be entitled, without waiving any additional rights or remedies otherwise available to Company at law or in equity and without the necessity of posting bond, to seek injunctive and other equitable relief in the event of a breach or intended or threatened breach by You. Notwithstanding anything to the contrary, Company shall be entitled to seek and obtain injunctive relief in any court of competent jurisdiction. You are solely responsible for your interactions with other users of the Service. Company reserves the right, but has no obligation, to monitor disputes between you and other users of the Service. YOU AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE OR THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED, NOTWITHSTANDING ANY STATUTE OR LAW TO THE CONTRARY.
Put simply, this agreement is made under the laws of California.
Legal Compliance You agree to comply with all local laws and rules regarding online conduct and acceptable content. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of these Terms. The Site is controlled and operated by Company from its offices in the State of California, in the United States of America. Company makes no representation that any of the Site are available or appropriate for use outside of the United States of America. If you access the Site from outside the United States of America, you do so on your own initiative and must bear all responsibility for compliance with local laws, if applicable. Your use of or access to the Service should not be construed as Company's purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
Severability If any provision(s) of these Terms, including without limitation, the warranty disclaimers and liability limitations set forth above, are found by a court of competent jurisdiction to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect.
Legal Equivalency These Terms and any other electronic documents, policies and guidelines incorporated herein shall be: (i) deemed for all purposes to be a "writing" or "in writing," and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable against any party hereto as a signed writing; and (iii) deemed an "original" when printed from electronic records established and maintained in the ordinary course of business. Any electronic documents introduced as evidence in any judicial, arbitration, mediation or administrative proceeding shall, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
Notice for California Users Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at firstname.lastname@example.org.