Acceptance of Terms of Use
Date of Last Revision: March 10, 2009
Please read our terms of use carefully before you use our services.
Welcome to PhotoBiz.com. PhotoBiz, LLC, a North Carolina Limited Liability Company, will be referred to throughout as “PhotoBiz.”
Among other things, through PhotoBiz.com, PhotoBiz provides a platform for uploading, sharing, and viewing various types of content. PhotoBiz's dynamic and collaborative service enables registered users and unregistered users (visitors and registered users are collectively referred to as "User(s)") to access a host of functionalities, including but not limited to various types of media submitted by Users.
These Terms of Use govern your use of PhotoBiz’s service. By using PhotoBiz.com and/or any tool, function or service of PhotoBiz’s website, you are indicating you agree to be bound by these Terms of Use as such terms may be modified from time to time. Please read the Terms of Use carefully.
1. Agreement
The content on Our Website, including without limitation any text, software, scripts, graphics, photos, sounds, music, videos, interactive features, and the like, and the trademarks, service marks, and logos contained therein (collectively, "Content"), is owned by or licensed to PhotoBiz and is subject to copyright and other intellectual property rights under United States and foreign laws and international conventions.
This Agreement governs your use of the Website and all PhotoBiz software, tools, functions, products, and services (collectively, the “Services”). By using the Website or any of the Services, you agree to be bound by all of these terms as such terms may be modified by PhotoBiz from time to time without notice to you. Please read these Terms of Use carefully and check the Website frequently to stay abreast of any changes or modifications. If you do not agree to be bound by all of these terms, then do not use the Website.
PhotoBiz may, in its sole discretion, modify or revise these terms and conditions and policies at any time, and you agree to be bound by such modifications or revisions. If you do not accept and abide by this Agreement, you may not use the Website. You also must be 18 years of age or older to use the service.
In consideration of the license granted herein below and your use of the Website and the Services, you represent you are of legal age to form a binding contract and you agree to comply with the Agreement and these Terms of Use. If you do not agree to the Agreement and these Terms of Use, we do not agree to provide you with access to the Website or the Services.
We reserve the right at any time to:
(a) Change these Terms of Use. Your continued use of the Services following any such change will signify your acceptance of such change;
(b) Change the Services, including eliminating or discontinuing any Content or feature of the Services;
(c) Impose fees, charges or other conditions for use of the Services (with reasonable notice); and/or
(d) Modify the Website with or without notice to you and without liability to you or any third party.
2. License
PhotoBiz grants you a personal, non-exclusive, non-transferable, limited, and revocable license to view the Content and Website subject to this Agreement. You may access or use the Website on such software, personal computers, and/or devices as authorized by us or our Content delivery providers.
PhotoBiz does not claim ownership of any content you make available via the Services. However, with respect to the content you make available via the Services, you grant PhotoBiz a worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such content. This license exists only for as long as you elect to continue to use the Services and shall terminate at the time your Plan is terminated for any reason.
3. Accuracy of Information/Registration
You represent and warrant the information that you provide to us during registration and at all other times will be true, accurate, current and complete, and you have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of you hereunder. You also agree to maintain and promptly update your registration data to keep it true, accurate, current and complete. This is especially important with respect to your email address, since that is the primary way in which we will communicate with you about your Plan and your orders.
4. Payment Terms
(a) Set-up & Activation Charges: All charges for the set-up and use-access for PhotoBiz products and interfaces are payable in advance in full and subject to an active plan account. These fees must be paid with one credit card and cannot be split between different owner cards. These fees cannot be paid over time; no partial payments accepted.
(b) Monthly Plan: All charges for your monthly plan (“Plan” and as more fully described on the Website) must be paid in advance according to the most current price of the Plan. All accounts are self service and the user must upgrade or downgrade the plan accordingly. Upon registration, you must pay for your Plan by credit card, check card, or debit card. PhotoBiz accepts Visa, MasterCard, American Express and Discover. Upon paying for your Plan, you thereby grant permission to PhotoBiz to charge any fees in accordance with your Plan. These fees must be paid all on one card but the card can be switched from month to month. You will receive an email notification after each recurring charge.
(c) Payment Date: Except as otherwise provided herein below, all fees payable under the Terms of this Agreement shall be paid by you to PhotoBiz on the day your Plan is setup (billing date), as the case may be. All successive monthly fees must be paid by, and will be charged completely to your credit card on or before, the monthly “anniversary” of the date on which the Plan was set up. For example, if your Plan was set up on January 17, the monthly fees for each successive month must be paid, etc. by the 17th day of that month. Special pricing or promotional offers are to be paid under the terms set forth in the offer itself. Except as expressly provided in these Terms of Use, setup fees and/or other charges, including fees for monthly Plan(s), are non-refundable without limitation.
(d) Payments: All fees for PhotoBiz Services will be paid through our merchant service provider to PhotoBiz in US dollars. You hereby authorize PhotoBiz to bill your credit card or bank debit card each successive billing period until termination of the Services. You agree to immediately notify PhotoBiz of any changes in your credit card number or expiration date. If the card is not honored for any reason, PhotoBiz will endeavor to notify you. If an alternative billing method has not been established by you and PhotoBiz within five (5) days from the date the credit card is not honored, PhotoBiz shall be entitled to terminate your Plan at that time, except as may be otherwise provided herein.
(e) Reactivation: Plans in default are subject to an interest charge of 1.5% per month on the outstanding balance which will be due and payable upon reactivation. Termination of Plans shall not relieve you of your obligations to pay all outstanding invoices including any interest accrued thereon.
(f) If at any time PhotoBiz receives a “chargeback” from our merchant provider and is charged a fee, that fee (not to exceed twenty-five dollars ($25.00)) will be charged to your Plan. In addition, PhotoBiz will revoke the user’s access and will deny the user the ability to re-activate the account.
5. Plan Security
When you register with PhotoBiz you are asked to set up a password. You are solely responsible for maintaining the confidentiality of the password associated with your Plan and for restricting the access to your password and to your computer while logged into the Website. You agree to accept responsibility for all activities that occur under your Plan and/or from your computer. We use reasonable security measures to protect against unauthorized access to your Plan. You agree to immediately notify PhotoBiz of any unauthorized use of your Plan or password, or any other breach of security, and you accept all risks of unauthorized access to the registration data and any other information you provide to PhotoBiz.
You acknowledge, consent and agree that PhotoBiz may access and disclose your Plan information and content if required to do so by law or in a good faith belief that such access or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms of Use; (c) respond to claims that any content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or safety of PhotoBiz, its Users and the public. Further, PhotoBiz may share (but will not sell for money) your personally identifiable information with our affiliates and those companies that assist us in providing the Services to you (e.g., domain and hosting services, our financial institutions to effect payment for Services, etc.).
6. Plan Ownership
PhotoBiz understands that some client Users prefer a Developer/Web Designer to set up their PhotoBiz website. When the Plan is being set up it should be set up in the name of the client User and not the Developer/Web Designer. This will help to alleviate questions later on regarding domain and Plan ownership. PhotoBiz does not allow Web Developers to resell our services other than at the time of the initial website set-up. In disputes of ownership on one account by two or more people, the person who pays the monthly plan will be considered the owner, and any domain work to separate the account will be charged at a rate of $25 per domain.
7. Electronic Commerce
You will be solely responsible for the development, operation and maintenance of your online store and products and all contents and materials appearing online or on your products, including without limitation: (a) the accuracy and appropriateness of content and materials appearing within the store or related to your products; (b) ensuring that the content and materials appearing within the store or related to your products do not violate or infringe upon the rights of any third party; (c) ensuring that the content and materials appearing within the store or related to your products are not defamatory, libelous or otherwise illegal; (d) the final calculation and application of shipping and sales tax; (e) accepting, processing, and filling any customer orders, and for handling any customer inquiries or complaints arising therefrom; (f) the security of any customer credit card numbers and related customer information you may access as a result of conducting electronic commerce transactions through your website. You agree to keep all such information confidential and will use the same degree of care and security as you use with your own confidential information.
8. Third Party Services
The Website may contain links to third party websites or provide content from third party websites that are not owned or controlled by PhotoBiz. PhotoBiz has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. You may order goods and services through PhotoBiz from other persons (“Seller”) not affiliated with PhotoBiz. All matters concerning the goods and services desired from Seller, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and Seller. PhotoBiz makes no warranties or representations whatsoever with regard to any goods or services provided by any Seller. You will not consider PhotoBiz, nor will PhotoBiz be construed as, a party to such transactions, whether or not PhotoBiz may have received some form of revenue or other remuneration in connection with the transaction, nor shall PhotoBiz be liable for any costs or damages arising out of, either directly or indirectly, any such transaction. By using the Website, you expressly relieve and release PhotoBiz and its affiliates from any and all liability arising from your use of any third-party website. Accordingly, we encourage you to be aware of when you are no longer on the Website, and to read the terms and conditions and privacy policy of each other website that you visit.
9. Termination
PhotoBiz reserves the right to terminate your Plan if PhotoBiz learns that you have provided false or misleading registration information. PhotoBiz reserves the right, at its sole discretion, to immediately, without notice, suspend or terminate (a) these Terms of Use; and/or (b) your Plan without ability by you to access PhotoBiz and/or any other service provided to you by PhotoBiz upon any breach by you of these Terms of Use or your failure to pay for Services. Further, PhotoBiz reserves the right to terminate your access to and/or use of the Website and remove and discard any Content at any time for any reason, including without limitation any failure to comply with any part of this Agreement. PhotoBiz also reserves the right to discontinue providing all or part of the Website. PhotoBiz reserves the right, in its sole discretion, to change or discontinue the Website and Content at any time, without notice. You agree that any termination of your access to or use of the Website and any discontinuation by PhotoBiz in providing the Website may be affected without notice to you and that PhotoBiz shall be under no obligation to retain any of your content, provide any further access to any content or return any content to you. You agree that PhotoBiz shall not be liable to you or any third party for any such termination or for any interruption or discontinuation of the Website.
If PhotoBiz terminates your Plan because you have breached this Agreement, you shall not be entitled to a refund of any unused portion of subscription fees or set-up costs.
10. Cancellation Policy
You may choose to cancel your Plan at any time, upon written request to PhotoBiz. All cancellation requests should be sent to:
PhotoBiz Customer Service
231 N. Spring Street
Greensboro, NC, 27401
Or
Submitted through the “SUPPORT” button within your account. All cancellations must be submitted in writing these ways.
Your request will be processed within three (3) business days of receipt. For cancellations made any time in the middle of a billing cycle, your Plan will be terminated at that point and no further payment will be drafted or billed. NO PRORATED REFUNDS WILL BE GIVEN.
Upon cancellation, any content you have stored on the Website may no longer be retrieved, so you should make a backup copy of any such content on a regular basis and before terminating your Plan. We will not be held liable for any loss of content.
11. 30-Day Money Back Guarantee
If you do not feel PhotoBiz has delivered the service you expected, or does not fit your needs, you may request to terminate your Plan within the first 30 days from your initial order date and request a refund. There will be no refunds when canceling your Plan with PhotoBiz after the first 30 days of your initial order date. All cancellation requests should be sent to:
PhotoBiz Customer Service
231 N Spring Street
Greensboro, NC, 27401
Or
Submitted through the “SUPPORT” button within your account. All refunds must be submitted in writing these ways.
Your request will be processed within three (3) business days of receipt. Your Plan will be terminated at that point and no further payment will be drafted or billed. NO REFUNDS ON PURCHASED DOMAINS ARE GIVEN THEY ARE DEDUCTED FROM SET-UP AT $25 PER DOMAIN. YOU WILL NOT BE ELIGIBLE IF YOU SIGN-UP AGAIN FOR AN ADDITIONAL 30 DAY REFUND.
Upon cancellation, any content you have stored on the Website may no longer be retrieved, so you should make a backup copy of any such content on a regular basis and before terminating your Plan. We will not be held liable for any loss of content.
12. Transfer of Membership
Subject to the prior approval of PhotoBiz (which shall not be unreasonably withheld or delayed), you may transfer or sell your PhotoBiz Plan (one time per account), provided the new owner agrees to abide by all of the terms of the Agreement. PhotoBiz will not charge a fee for any such approved transfer or sale, provided no domain work is required of PhotoBiz. This privilege of transferability is unique to you and, except as otherwise specified in this paragraph, your Plan with PhotoBiz is non-transferable and is not subject to any right of survivorship, and any rights to your PhotoBiz Plan, ID or Contents within your Plan shall terminate upon your death.
13. Reselling
We at PhotoBiz pride ourselves on our quality service, support and products. Since quality is one of our primary goals PhotoBiz cannot and does not allow users to resell its services. Anyone reselling our monthly plans will be terminated immediately without refund.
14. Account Verification
PhotoBiz will need to verify the owner information before discussing any billing issue via the phone or email. We will ask the billing address, last 4 digits of your credit cards and other account information to ensure we are talking to the account owner before we disclose any information.
15. Domain Name Usage and Ownership
Although typically we purchase your domain name on your behalf, you will be and remain the legal owner/registrant of it. After the initial setup of your domain, any work you choose to have done to your domain will be a flat fee of twenty-five dollars ($25.00).
Upon publishing your website and selecting a domain name, it may take up to forty-eight (48) hours for your website to be viewable online. This is out of our control and due to the global domain registry. No discounts will be given if you want to use a domain name you already own with the website you host with PhotoBiz. PhotoBiz will host your website and set up your domain to display your website by DNS name change. If PhotoBiz does not purchase your domain and you or someone else manages the domain, PhotoBiz will not pay or reimburse you for the annual costs. If you wish to transfer your domain to PhotoBiz for management, you will have to pay your current provider a fee which PhotoBiz will not reimburse to you. All domains managed by PhotoBiz will be automatically renewed by PhotoBiz, as long as the account status is active and in good standing. If the account is not active, PhotoBiz will not renew the domain and it is the responsibility of the domain owner to make sure it is renewed. PhotoBiz takes no responsibility and shall not in any event be liable for failure of any owner to renew their domain or for owner’s otherwise allowing their domain to expire.
Upon any cancellation, if PhotoBiz is managing the domain, PhotoBiz will do an account change to you and you will be responsible to “pick it up” and transfer the domain to your own account. Failure to do so could result in the domain upon renewal date to become expired. PhotoBiz will not renew any domain of any cancelled or suspended account, and will not be responsible or liable for the domain expiration.
PhotoBiz will not manage more than one domain per client account. Any additional domain assistance is charged at a rate of $25 per domain, for domain switch, set-up, account change, etc.
If you wish to have more than one domain on the account, PhotoBiz will charge you $25 for domain transfers and $50 for new domains, if pre-approved by management.
16. Flash Website Template Policy
We offer our flash website templates as a service only and they can only be used within our server environment. In order to keep your flash website online you must have an active monthly Plan with PhotoBiz. The flash website template upgrade fee is a one-time fee to access our flash program and permits you to set-up your website with us. This upgrade fee does not license you to use it outside of your Plan with us nor does it give you rights to ownership of the template or any supporting programming. In addition, you are not permitted to copy the template or design and use in your own site, alternative site, marketing materials, non-PhotoBiz splash pages, blogs or elsewhere.
17. Copyright
YOU SHALL NOT USE THE WEBSITE AND/OR SERVICES TO TRANSMIT, ROUTE, PROVIDE CONNECTIONS TO, OR STORE ANY MATERIAL THAT INFRINGES COPYRIGHTED WORKS OR IN ANY WAY VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
PhotoBiz will respond expeditiously to all claims of copyright infringement that are reported to PhotoBiz. If you are a copyright owner, or are authorized to act on behalf of an owner of the copyright or of any exclusive right under the copyright, and believe that your work has been copied in a way that constitutes copyright infringement, please report your notice of infringement to PhotoBiz by providing PhotoBiz with the following information:
(a) Describe the copyrighted work that you believe has been infringed;
(b) Identify the material on the website that PhotoBiz powers that you believe infringes your work, with enough detail so that we may locate it;
(c) Provide your contact information, including: full name, address, telephone number, and email address;
(d) Provide a statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
(e) Declare under penalty of perjury that:
the information you have provided to us is accurate, and
(ii) You are the owner of the copyright interest involved or you are authorized to act on behalf of that owner; and
(f) Provide your physical or electronic signature.
Upon receiving your notice, PhotoBiz may remove the content that you believe infringes your copyright. In addition, PhotoBiz may terminate the Plan of the member who appears to be infringing your intellectual property rights. Please remember it is not PhotoBiz’s responsibility to monitor such activity.
All claims of copyright infringement on or regarding this Website should be delivered to PhotoBiz at the following addresses:
PhotoBiz Compliance
231 N. Spring Street
Greensboro, NC 27401
And to copyrightinfringement@photobiz.com
18. Digital Millennium Copyright Act
PhotoBiz vigorously protects and respects its own intellectual property rights and those of third parties. Under the terms of the Digital Millennium Copyright Act of 1998 (“DMCA”), PhotoBiz has adopted a formal procedure as described in this policy to manage any claimed copyright violations involving materials made available on the PhotoBiz website.
Only the copyright owner or someone specifically authorized to act on behalf of the copyright owner may submit a DMCA notice under the DMCA. If you are the copyright owner or so authorized to act on the owner’s behalf, you may submit a DMCA Takedown Notice with respect to any material that you believe has been posted on this website without your consent. In order to be effective such a notice should contain all of the following:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(c) 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 the service provider to locate the material;
(d) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(e) 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 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 the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Regardless of whether our clients may be liable for such infringement under local country law or United States law, our response to these notices may include removing or disabling access to material claimed to be the subject of infringing activity and/or terminating subscribers. In the event that materials are taken down as the result of a valid DMCA takedown notice, the original poster of the material may submit a counter notice and a request that the material be re-posted. A valid counter notice under the DMCA will contain the following information:
(a) A physical or electronic signature of the subscriber;
(b) An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; and
(c) A statement under penalty of perjury that the User has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
(d) The User’s name, address, and telephone number, and a statement that the User consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the User’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the User will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
Upon any re-posting of the information, the person submitting the initial take down notice may notify us that relief has been sought in the form of a court action seeking an order restraining the infringing activity at which time the information will be taken down pending a decision by that court.
All notices should be submitted in electronic form to:
PhotoBiz Compliance
231 N. Spring Street
Greensboro, NC 27401
And to copyrightinfringement@photobiz.com
We may also document notices of alleged infringement on which we act. Please note that in addition to being forwarded to the person who provided the allegedly infringing content, a copy of this legal notice may be sent to a third party which may publish and/or annotate it.
19. Trademarks
PhotoBizR, the PhotoBiz logo, and any other product or service names or marks, logos or slogans of PhotoBiz contained in the Website are trademarks and/or service marks of PhotoBiz and may not be copied, imitated or used, in whole or in part, without the prior written permission of PhotoBiz. You may not use any metatags or any other “hidden text” utilizing “PhotoBiz” or any other name, trademark or product or service name of PhotoBiz without our prior written permission. In addition, the look and feel of the Website, including all page headers, custom graphics, button icon and scripts, is the service mark, trademark and/or trade dress of PhotoBiz and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, service marks, registered trademarks, and service marks, product names and company names or logos mentioned in the Website are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, and supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
20. Your Conduct
You are solely responsible for all of the content you upload, share or copy using the Services and any consequences therefrom. You must have the legal right to display each image that you upload or share, and to copy each image that you order prints of. Professional images that are provided to you by professional photographers or made available through websites, magazines, books or other resources, are protected by copyright and should not be uploaded, shared or copied using the Services.
You affirm, represent, and/or warrant that: (i) you own or have all necessary licenses, rights, consents, and permissions to use and authorize PhotoBiz to use all patent, trademark, trade secret, copyright, moral rights, or other proprietary rights in and to any and all such content to enable inclusion and use of the content in the manner contemplated by the Website and these Terms of Use; and (ii) you have the written consent, release, and/or permission of each and every identifiable person in the content to use the name or likeness of each and every such identifiable person to enable inclusion and use of the content in the manner contemplated by the Website and these Terms of Use.
In addition, the actions described below will constitute grounds for blocking your access to the Services, removal of posted material and non-fulfillment of your order (or any part of your order) without prior notice to you and in the sole discretion of PhotoBiz. As condition of your use of the Services, you shall not upload, post, order for print, email or otherwise transmit any content that: (a) is unlawful, harmful, threatening, harassing, derogatory, defamatory, obscene, vulgar, invasive of another's privacy, hateful, adult or mature (including without limitation images that contain or depict nudity, regardless of any artistic merit), depicts graphic or gratuitous violence, or is otherwise objectionable; (b) you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as, but not limited to, insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (c) infringes any trademark, trade secret, copyright or other proprietary rights of any party; (d) harms minors in any way, including, but not limited to, Content that violates federal and state child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct; (e) forges headers or otherwise manipulates identifiers in order to disguise the origin of any Content transmitted through the Website; (f) falsely states or otherwise misrepresents you affiliation with any person or entity; (g) is unsolicited commercial email or “spam” or is used for the purpose of engaging in any practice that is in any way connected with “spam”; (h) contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, limit the functionality of, or monitor, or persistently reside in or on any computer software or hardware; or (i) exceeds the scope of the Services you have signed up for.
You also agree that you will not (a) link, or attempt to link, the PhotoBiz site to any site offering any images or photographs displaying any nudity; (b) link, or attempt to link, any site offering any images or photographs displaying any nudity to the PhotoBiz site; and/or (c) sell or offer for sale any services of a sexual nature or content through our Shopping cart services.
PhotoBiz reserves the right to refuse to fulfill any order, or any part of any order, if it believes that these Terms of Use have been violated. In addition, PhotoBiz reserves the right to disclose any Plan or order information when it believes in good faith that the law or legal process requires it, or when it is necessary to do so to protect the rights or property of PhotoBiz or others.
PhotoBiz shall determine in its sole discretion what action, if any, shall be taken in the event of any discovered or reported violation of the above-mentioned terms.
21. Equipment and Software
You agree to provide, at your own expense, Internet access, compatible software, and compatible equipment to access and use the Website. You may need to download certain software to use enhanced features and the Website. You may need to obtain updates or upgrades from time to time in order to continue using the Website. PhotoBiz may modify system requirements or the Software at any time. PHOTOBIZ MAKES NO WARRANTY THAT ANY PARTICULAR COMPUTER, PORTABLE DEVICE, OR OTHER RECORDING DEVICE WILL BE COMPATIBLE WITH THE SOFTWARE AND SERVICE PROVIDED TO YOU, THAT ANY DEVICE USING THE SOFTWARE AND SERVICE WILL FUNCTION, OR THAT THE WEBSITE WILL WORK ON THE EQUIPMENT AND SOFTWARE USED BY YOU.
22. Website Content (including all products)
PhotoBiz does not control the content of any User’s Plan and does not have any obligation to monitor, supervise or control content posted or stored on its servers at the direction of its Users. Accordingly, PhotoBiz does not guarantee the accuracy, integrity or quality of such content. All content provided by a User of the Services is the sole responsibility of that User. This means that you, and not PhotoBiz, are entirely responsible for all content that you upload, post, email or transmit via the Services and for complying with all applicable federal and state laws, including, without limitation, the copyright laws.
You represent and warrant that any and all display, performance and/or other use of any and all music, images, trademarks, service marks, fonts and all other content and material made available on or through your website does not violate any rights of any third parties, and that you have secured all necessary permission to lawfully display, perform and/or use (and, as applicable, allow others to use) said content and material.
PhotoBiz assumes no responsibility for monitoring the Website or Services for inappropriate content or conduct. If at any time PhotoBiz chooses, in its sole discretion, to monitor the Website or Services, however, PhotoBiz assumes no responsibility for the content, no obligation to modify or remove any inappropriate content, and no responsibility for the conduct of the User submitting any such content.
You acknowledge and agree that PhotoBiz and its designees shall have the right (but not the obligation), in their sole discretion, to refuse to publish, to remove, or to block access to any content that is available via the Website or the Services at any time, for any reason, or for no reason at all, with or without notice.
Without limiting the foregoing, PhotoBiz shall have the right, in its sole discretion and without notice, to remove any content that violates the Terms of Use or is otherwise objectionable, including without limitation, content that contains nudity or is pornographic, offensive, or otherwise unlawful. Upon discovery of such content, PhotoBiz shall be further entitled to terminate your Plan. You warrant that your content does not violate any laws, both international and domestic. Under no circumstances will PhotoBiz be liable in any way for any content, including without limitation, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any content posted, emailed or transmitted via the Services.
The Content on the Website is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited in any manner for any other purposes whatsoever without the prior written consent of the respective owners. PhotoBiz reserves all rights not expressly granted in and to the Website and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of any Content of third parties obtained through the Website for any commercial purposes. You agree not to circumvent, disable, or otherwise interfere with security-related features of the Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Website or the Content therein.
You acknowledge and agree that the Services and the software used in connection with the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly permitted herein by PhotoBiz, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services or the software.
You agree that you will not (a) link, or attempt to link, the PhotoBiz site to any site offering any images or photographs displaying any nudity; (b) link, or attempt to link, any site offering any images or photographs displaying any nudity to the PhotoBiz site; and/or (c) sell or offer for sale any services of a sexual nature or content through our Shopping cart services.
PhotoBiz will not power any website that contains nudity, pornographic, offensive, harassing, threatening, defamatory, obscene, vulgar, hateful or unlawful material. Upon discovery of such material, PhotoBiz reserves the right, in its sole discretion and without notice, to remove the material and terminate your subscription. You warrant that your images do not violate any laws, international or domestic, and do not violate any of the other restrictions or provisions contained in these Terms of Use.
PhotoBiz reserves the right to refuse to fulfill any order, or any part of any order, if it believes that these Terms of Use have been or will be violated. In addition, PhotoBiz reserves the right to disclose any account or order information when it believes in good faith that the law or legal process requires it, or when it is necessary to do so to protect the rights or property of PhotoBiz or others.
23. Shopping Cart
Our shopping PhotoBiz Cart™ (if set-up fee is paid for) will enable users to sell products through the internet. You shall not sell or attempt to sell, and we will not power any user that attempts to (a) sell, any products requiring a special permit or license such as (but not limited to) alcohol, firearms, pharmaceuticals, tobacco, and chemicals, or anything illegal, (b) anything requiring additional state or federal licensing or a specific age requirement, or (c) any other goods or services prohibited elsewhere in these Terms of Use, including but not limited to any goods or services of a sexual or pornographic nature. PhotoBiz reserves the right to refuse to fulfill any order, or any part of any order, if it believes that the Terms of Use have been, are being, or will be violated in any way. In addition, PhotoBiz reserves the right to disclose any account or order information when it believes in good faith that the law or legal process requires it, or when it is necessary to protect the rights or Property of PhotoBiz or others.
24. User Responsibility (photo uploads)
Photos uploaded through the Website are not original photo quality specifications, but rather are “versions” of the real photos uploaded at a lesser quality than the original. Uploads are seen online at a resolution of 72 dpi and in some cases 150 dpi. It is necessary, and it is your sole responsibility, to save all original photos or CD’s if needed for later use. Once the photos are uploaded they cannot be returned to or reproduced back in their original state.
25. Ability to Suspend Plan for up to 180 days
As part of our commitment to serve you to the best of our ability, we allow you to place your account on STANDBY at any time for a period of up to 180 days. STANDBY status will leave your account intact (all content and images) but we will not charge you the monthly fee and you will not be able to access your account and/or your cart, other products or website, which will display a maintenance page. We also will allow you to place your Plan on STANDBY for up to 180 days and then sign back on without having to pay another setup fee. If you try to sign back on after 180 days or more, you will be required to pay the then current setup fee in order to reactivate your Plan.
26. Limitation of Liability and Damages
You expressly agree that the use of the Services IS at your sole risk. The Services are provided on an “as is” and “as available” basis. to PhotoBiz expressly disclaims all warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose or non-infringement. You expressly agree that PhotoBiz (or its officers, directors, managers, affiliates or suppliers) will not be liable to you for any indirect, special, consequential, incidental or exemplary damages OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES, PUNITIVE DAMAGES, OR LEGAL EXPENSES, whether foreseeable or not, FOR ANY REASON.
OCCASIONAL SERVICE OUTAGES MAY OCCUR THAT PHOTOBIZ CANNOT CONTROL. IF ANY OUTAGES OCCUR, PHOTOBIZ WILL WORK TO TRY TO RESTORE SERVICE PROMPTLY. PHOTOBIZ MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. PHOTOBIZ WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, WHICH MAY RESULT FROM THE UNAVAILABILITY OR MALFUNCTION OF THE WEBSITE AND/OR THE SERVICES. IN NO EVENT WILL PHOTOBIZ OR ITS OFFICERS, DIRECTORS, MANAGERS, AFFILIATES OR SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR THEFT OR DESTRUCTION OF, ANY CONTENT MADE AVAILABLE FOR DISTRIBUTION OR DISPLAY THROUGH THE SERVICES.
You understand and agree that the submission of digital images to PhotoBiz, and the upload/download of any material through the Services are done at your own discretion and risk. You are solely responsible for any loss or damage to your images, your computer system, or other data that may result from the upload/download of any material. You are solely responsible for creating back-ups of your digital images. You acknowledge and agree that PhotoBiz accepts no responsibility or liability for, and employs no control over, the Content of the information passing through the PhotoBiz host servers, network hubs, or the Internet. All services performed hereunder are performed "as is" and without warranty against failure of performance including, BUT NOT limited to, any failure due to computer hardware or communication systems. Except as expressly provided in this Agreement, PhotoBiz does not make, and hereby disclaims, and you hereby waive all reliance on, any representations or warranties, arising by law or otherwise, in reference to the Services, including without limitation, implied warranties of merchantability, fitness for a particular purpose, non-infringement, or developing from course of dealing, course of performance, or usage in trade.
THE FOREGOING LIMITATION OF LIABILITY AND DAMAGES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
27. Indemnification
You agree to indemnify and hold harmless PhotoBiz, its members, affiliates, officers, directors, agents, employees, successors and assigns, from and against any and all claims, demands, liabilities, losses, costs, expenses (including reasonable attorneys' and consultants’ fees and court costs), causes of action, or judgments directly or indirectly made by any third party due to or arising out of your use of the Website or Services, your violation of any of these Terms of Use, your violation of any third party right, including without limitation any copyright, property, or privacy right or any claim that any content submitted by you caused damage to a third party. The obligations set forth herein shall survive these Terms of Use and your use of the Website.
28. Entire Agreement
These Terms of Use, including the PhotoBiz Privacy Policy, which is incorporated herein, and any future amendments constitute the entire agreement between you and PhotoBiz and governs your use of the Services, superseding any prior agreements between you and PhotoBiz with respect to the Services.
29. Choice of Law and Arbitration
This Agreement and the relationship between you and PhotoBiz shall be governed by the laws of the State of North Carolina without regard to its conflict of law provisions.
You agree that any dispute arising out of or relating in any way to your use of this Website or the Services requires that such claim be resolved exclusively by binding arbitration. The arbitration shall be conducted by a single arbitrator in Greensboro, North Carolina, U.S.A., in accordance with the rules of the American Arbitration Association ("AAA"). No claims of any other parties may be joined or otherwise combined in the arbitration proceeding. Unless otherwise expressly required by applicable law, each party shall bear its own attorneys fees without regard to which party is deemed the prevailing party in the arbitration proceeding. Subject to these Terms of Use, the arbitrator shall be authorized to award either party any remedy permitted by applicable law.
BECAUSE THE USE OF THIS WEBSITE REQUIRES THE ARBITRATION OF ANY CLAIMS OR DISPUTES EXISTING BETWEEN US, NEITHER PARTY WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION OR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR'S DECISION WILL BE FINAL AND BINDING. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, INCLUDING WITHOUT LIMITATION THE RIGHT TO CONDUCT DISCOVERY OR TO APPEAL, MAY BE LIMITED OR UNAVAILABLE IN ARBITRATION.
Should this arbitration agreement be deemed invalid or otherwise unenforceable for any reason, it shall be severed and the parties agree that exclusive jurisdiction and venue for any claims will be in state or federal courts in Greensboro, Guilford County, North Carolina, and you and PhotoBiz agree to submit to the personal and exclusive jurisdiction and venue of such courts, and you waive any objections that you might otherwise have thereto.
Notwithstanding the foregoing, in recognition of the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. If you are a resident of any country outside the United States, you understand and agree that we store and process your information on computers located in the United States, and that by providing any information to PhotoBiz, you acknowledge and consent to the transfer of such information to the United States.
30. Waiver and Severability of Terms
PhotoBiz’s failure to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision or of any other rights or provisions in this Agreement. If a court of competent jurisdiction should find that one or more rights or provisions set forth in this Agreement are invalid, you agree that the remainder of this Agreement shall be enforceable and that the invalid provision shall be enforceable to the fullest extent permitted by law.
31. Limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or in connection with this Agreement which you assert must be commenced within one (1) year after such claim or cause of action arose or be forever barred.
32. Section Titles
The section titles in these Terms of Use are for convenience only and have no legal or contractual effect.
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