Terms of Service
Last updated on: 2016-02-24
Photo.gifts may change these Terms of Service from time to time at Photo.gifts's sole discretion. Your continued use of the Service following the posting of such changes will constitute your agreement to all such changes. Please visit this section of the Site periodically to review the current version of these Terms of Service. If you disagree with the changed Terms of Service, do not use the Service any longer.
1. The Service and Products.
1.1 USE OF INFORMATION AVAILABLE ON THE SITE.
1.1 Photo.gifts provides various Internet-based services through the Site (collectively, the "Service"). One such service enables you, by interacting with Photo.gifts's computers using the Site, to upload photos or other images (collectively, "Images") and to customize size, layout, colors and other specifications of the Images (collectively, "Designs" and, together with the Images, "Content") for the manufacture of machine-printed, custom-made canvas prints and other photo print products ("Products").
1.2 We are constantly changing and improving our Service. We may add or remove functionalities or features, and we may suspend or stop the Service altogether without giving you prior notice.
2. Use of the Service.
2.1 ALL POSTED INFORMATION IS PUBLIC.
Photo.gifts will only knowingly provide the Service to parties that may lawfully enter into and form contracts under applicable law. If you are under the age of 18 (eighteen) years, you may use the Service under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Service. The Service is not intended for children under 13.
2.2 Compliance with Terms of Service and Applicable Laws.
When you use the Service, you must comply with all of the terms and conditions of these Terms of Service, as well as the applicable agreements and policies referred to below, and all applicable laws, regulations and rules.
2.3 Your License to Use the Service.(a) Except as expressly provided for in these Terms of Service, all intellectual property and other rights, title and interest in and to the Site and the Service are and will be the sole and exclusive property of Photo.gifts and/or its suppliers or licensors. Among other things, Photo.gifts owns the trademark Photo.gifts, the copyrights in and to the Site and certain technology used in providing the Service. You will not acquire any right, title or interest therein or thereto under these Terms of Service or otherwise.
(b) Photo.gifts grants you a limited revocable, non-exclusive, non-transferable license, without the right to sublicense, to access and use the Service for its intended purposes (the "License"), if and so long as you comply with these Terms of Service. The License does not include the right to collect or use information contained on the Site for purposes prohibited by Photo.gifts, compete with Photo.gifts, create derivative works based on the content of the Site, or download or copy the Site, other than page caching. If you use the Service in a manner that exceeds the scope of the License or if you otherwise breach these Terms of Service, Photo.gifts may and will revoke the License granted to you. Photo.gifts may also pursue other legal remedies permitted by applicable law against any person using the Site in violation of these Terms of Service.
(c) For further information regarding your intellectual property rights, please see paragraph.
2.4 Services by Third Parties.
3. Use of Your Content; License to Photo.gifts.
3.1 You will retain ownership of the Content that you upload to or design on the Site, particularly any Images to which you have the copyright or a license that permits you to upload such Images to the Site and to use the Service. By uploading Images to the Site or creating Designs and Content, you grant the following licenses to Photo.gifts: a fully-paid up, royalty-free, non-exclusive, worldwide, transferable, sublicensable right to reproduce, distribute, prepare derivatives works from, crop, or otherwise modify the Images and Designs.
3.2 You may remove Content at any time, and you retain all your copyright and other intellectual property rights, if any, in that Content. If you choose to remove Content, this will serve as a notice to Photo.gifts of your intention to terminate the licenses described in the above paragraph 3.1, and those licenses will terminate immediately and automatically, except that Photo.gifts will fulfill all orders for Products that are in any way derived from that Content placed prior to notice of termination.
4. Reservation of Rights.
4.1 Photo.gifts reserves the right to modify, revise or discontinue the Service, or any features, functionality or services provided as part thereof or in connection therewith, without prior notice to you.
4.2 Photo.gifts reserves the right, but does not assume any obligation, to monitor transactions and communications that occur using the Service. If Photo.gifts determines, in its sole and absolute discretion, that you or another Photo.gifts user has breached or will breach a term or condition of these Terms of Service or that such transaction or communication is inappropriate, Photo.gifts may cancel such transaction or take any other action to restrict access to the Site or restrict the availability of any material that may be considered objectionable, without any liability to you or any third party.
5. Prohibited Use.
5.1 You may only use the Service as expressly permitted by Photo.gifts. You may not cause harm to or take any action which may adversely affect the Site or the Service. Specifically, without limitation, you may not:
(a) interfere with the Service by using viruses or any other programs or technology designed to disrupt or damage any software or hardware;
(b) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the Service;
(c) use any device or process to monitor the activity on or copy pages from the Site, except in the operation or use of an internet "search engine", hit counters or similar technology;
(d) collect email addresses or other information from third parties by using the Service;
(e) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain Photo.gifts's name or trademarks; (vii) engage in any activity that interferes with another user's ability to use or enjoy the Service; or (viii) assist or encourage any third party in engaging in any activity prohibited by these Terms of Service. By using the Photo.gifts Site, you are promising that you are not using the Service or the Site for any of the Prohibited Uses.
6. Representations and Warranties.
6.1 You represent and warrant to Photo.gifts: (a) that you have the full power and authority to enter into and perform under these Terms of Service or, if you are a minor, your parent or legal guardian has approved and consented to your entering into these Terms of Service and agrees to be bound by these Terms of Service,
(b) the acceptance and performance of your obligations under these Terms of Service do not constitute a breach of or conflict with any other agreement or arrangement by which you are bound, and
(c) these Terms of Service are your legal, valid and binding obligation, enforceable in accordance with their terms and conditions.
6.2 You represent and warrant to Photo.gifts that, in connection with your use of the Service, you:
(a) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party and
(b) will comply with all applicable laws, rules, and regulations and
(c) that you have the right to grant the License to Photo.gifts in subsection 3.1. You further represent and warrant to Photo.gifts that:
(d) there are no claims, demands or any form of litigation, arbitration or investigation pending, or to the best of your knowledge, threatened with respect to any of your Content;
(e) Photo.gifts will not be required to make any payments to any third party in connection with its use of your Content, except for the expenses that Photo.gifts incurs in providing the Service;
(f) the use of any instructions, formulae, recommendations, or the like contained in your Content will not cause injury to any third party; and
(g) your Content does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
7. Disclaimers and Exclusions.
7.1 DISCLAIMER OF WARRANTIES.
PHOTO.GIFTS PROVIDES THE SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. PHOTO.GIFTS DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ITS USE:
(a) WILL BE UNINTERRUPTED OR TIMELY,
(b) WILL BE SECURE, FREE OF INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS,
(c) WILL MEET YOUR REQUIREMENTS, OR
(d) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PHOTO.GIFTS MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TERMS OF SERVICE, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
7.2 EXCLUSION OF DAMAGES. PHOTO.GIFTS OR ITS SUPPLIERS OR LICENSORS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES RELATING TO LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF USE OR EQUIPMENT OR FACILITIES, OR INTERRUPTION OF BUSINESS) ARISING IN ANY WAY OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SERVICE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 LIMITATION OF LIABLITY. IN NO EVENT WILL THE LIABILITY OF PHOTO.GIFTS OR ITS SUPPLIERS OR LICENSORS EXCEED THE PRICE PAID BY YOU FOR THE SERVICES RENDERED TO YOU OR, IF YOU PURCHASED ANY PRODUCT, THE PRODUCT. THE PRICE EXCLUDES THE COST OF SHIPPING OF ANY PRODUCTS TO YOU OR ANY TAXES OR ANY OTHER PAYMENT TO A THIRD PARTY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, THE RESPECTIVE LIABILITY OF PHOTO.GIFTS, ITS SUPPLIERS AND LICENSORS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
8.1 You agree to indemnify and hold Photo.gifts and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Indemnified Parties") harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Indemnified Parties alleging or threatening that, through any act or omission, you have breached any of these Terms of Service or have caused loss, damage or liability to such claimant. If you are required to indemnify Photo.gifts under this paragraph 8, Photo.gifts will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without Photo.gifts's express written permission.
9. Termination of Service.
9.1 Photo.gifts may, at any time and without notice to you, suspend or terminate your use of the Service if Photo.gifts determines, in its sole and absolute discretion, that you have breached a term of these Terms of Service.
9.2 Notwithstanding paragraph 9.1 above, these Terms of Service will survive indefinitely unless and until Photo.gifts chooses to terminate them.
9.3 If you or Photo.gifts terminates your use of the Service, Photo.gifts may delete any Content or other materials relating to your use of the Site or the Service on Photo.gifts's servers or otherwise in its possession without notice to you, and Photo.gifts will have no liability to you or any third party for doing so.
10.1 All notices required or permitted to be given under these Terms of Service must be in writing and delivered to the other party by any of the following methods: (i) certified U.S. mail, return receipt requested, (ii) tracked overnight courier service, or (iii) electronic mail. If you give notice to Photo.gifts, you must use the following addresses: Photo.gifts, 3443 NW 107th Street, Miami FL 33167, email: email@example.com. If Photo.gifts provides notice to you, Photo.gifts will use the contact information provided by you to Photo.gifts. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the second day after deposit with such courier service, or (iii) if by electronic mail, on the first business day after the message was sent, if no electronic notice of delivery failure or system error is provided to the sender. If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement.
10.2 These Terms of Service will be governed by and construed in accordance with the laws of the State of Florida without reference to such laws' conflict of law principles.
10.3 All disputes arising out of, relating to or connected with these Terms of Service or your use of any part of the Service will be exclusively resolved by the state or federal courts sitting in Dade County, Florida. You waive any defense against the exercise of jurisdiction of such courts, including but not limited to forum non conveniens. Notwithstanding anything to the contrary in this paragraph 10.3, Photo.gifts may seek equitable relief, including, without limitation, injunctive relief and specific performance, against you without the requirement of posting a bond or other security or proving money damages are insufficient, from any court of competent jurisdiction. You and Photo.gifts irrevocably waive the right to jury trial.
10.4 These Terms of Service will be binding upon each party hereto and its successors and permitted assigns. Photo.gifts may assign its rights and delegate the performance of its obligations under these Terms of Service to any affiliate of Photo.gifts. You may not assign your rights or delegate your obligations under these Terms of Service to any person without the prior written consent of Photo.gifts.
10.5 These Terms of Service (including all of the policies and other terms and agreements described therein , which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding their subject matter, and supersede all prior and contemporaneous agreements and understandings between the parties regarding their subject matter.
10.6 No failure or delay by a party in exercising any right, power or privilege under these Terms of Service will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.
10.7 You and Photo.gifts are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these Terms of Service.
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