Terms and Conditions of Use
- Description of the Website and Membership
- General Acknowledgements and Agreements
- Use of Works
- Notification of Claims of Infringement
- Management and Operation of the Website
- Daily quota and Downloading
- Membership Account
- Representations and Warranties
- Limitations and Disclaimer
- Term and Termination
- Effect of Termination
THIS IS A FAIRLY LENGTHY DOCUMENT, AND IT CONTAINS MANY IMPORTANT PROVISIONS THAT AFFECT YOUR RIGHTS AND OBLIGATIONS. BY CHECKING THE CORRECT BOX OF THESE TERMS AND CONDITIONS OF USE (THIS “AGREEMENT”), YOU HEREBY AGREE TO BE BOUND BY THIS AGREEMENT. WE ENCOURAGE YOU TO PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
This Agreement governs your use of the PhotoXpress.com website, including, without limitation, the downloading of photographs, illustrations, images or other pictorial or graphic works (“Works”) from the PhotoXpress.com website, and any and all services offered by PhotoXpress on or through the PhotoXpress.com website (the PhotoXpress.com website, together with all of the foregoing uses and services, to be hereinafter referred to as the “Website”).
The Website provides, among other things, an online creative contents database for downloading Works. Furthermore, the Website is divided generally into two sections: a public section and a private section. The public section offers to all visitors, among other things, general information about the Website, the ability to view Works on the Website, a search engine to search for Works on the Website, and a process by which visitors can register to become Members, as further described below. The private section is only accessible by Members. The private section offers to Members (in addition to all services available in the public section) the ability to download Works from the Website in accordance with the applicable Content Download Agreement and the ability to access their accounts on the Website (“Membership Accounts”).
When a visitor to the Website registers to become a Member, he or she will select an available user name (“Membership Name”) and a corresponding user password (“Membership Password”) to create a unique, personal Membership Account. Once such information is entered during registration, such information cannot be revised later.
A Member shall download a Work through his or her Membership Account, and such Work shall be subject to the applicable Content Download Agreement. A Member shall be able to download a Works for a particular use(s) on the Website only if he or she agrees to the applicable Content Download Agreement for such Work and such use(s).
Your use of the Website constitutes your acknowledgement and acceptance of the terms and conditions of this Agreement, and you shall be bound by such terms and conditions. If you do not agree to be bound by the terms and conditions of this Agreement, do not use or access any portions of the Website or use any services offered on the Website.
PhotoXpress shall have the right, in its sole discretion, to amend the terms and conditions of this Agreement, in whole or in part, at any time, and any such changes shall be effective immediately upon member notification and publication of such changes on the Website. Your continued use of the Website after the effectiveness of such changes and notice constitutes your acknowledgement and acceptance of the terms and conditions of this Agreement, as so amended. If you do not agree to be bound by the terms and conditions of this Agreement as so amended, do not use or access the Website.
If at any time the terms and conditions of this Agreement are no longer acceptable to you, whether or not as a result of an amendment by PhotoXpress, do not use the Website.
Services on the Website are available only to, and may only be used by individuals who can enter into legally binding contracts under applicable law. Without limitation to the foregoing, services on the Website are not available to minors (e.g., persons under the age of eighteen) except under the supervision of an adult parent or guardian, and such parent or guardian shall be responsible for all uses of the Website. Your Membership Account on the Website may not be sold or otherwise transferred to another person or entity. If your use of the Website is on behalf of an entity, you represent and warrant that you have the authority to bind such entity to this Agreement.
You may only download Works from the Website in accordance with the terms and conditions of this Agreement and of the applicable Content Download Agreement. You may not use, reproduce, distribute, display or create derivative works based on any Works that appear on the Website unless you enter into a Content Download Agreement, and you may do so only to the extent expressly permitted under the terms and conditions of the applicable Content Download Agreement.
You acknowledge and agree that no ownership of any Works can be transferred, and that no sale of any Works can be effectuated, on or through the Website. Only the rights expressly sublicensed in an applicable Content Download Agreement are granted on or through the Website. You acknowledge and agree that PhotoXpress or its licensors retain all ownership rights in and to the Works, and that such Works are covered and protected by copyright, trademark and other intellectual property rights of PhotoXpress or its licensors.
You agree that you shall not use the Website in any manner that is not permitted by this Agreement or that violates any law, regulation or statute in an applicable jurisdiction.
PhotoXpress does not permit copyright infringing activities and infringement of intellectual property rights on its website, and PhotoXpress will remove all Works if properly notified that such Work infringes on another's intellectual property rights.
You shall not use the Website to transfer, any Work or other material or content that contains or constitutes viruses, worms, Trojan horses or other code with malicious, disruptive and/or destructive features. You shall not to attempt to gain unauthorized access to any hardware or software systems or networks associated with the Website, or obtain any services or information not intentionally made available to you by PhotoXpress on or through the Website. You shall not attempt to gain unauthorized access to the Membership Account of any other person or entity, or otherwise interfere with any other person's or entity's use, of the Website.
You shall not use any false or misleading information (e.g., false or misleading names, email addresses or URLs) when using the Website, including, without limitation, any identifying information for your Membership Account.
If you are a copyright owner or an agent thereof and believe that any user Work or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) 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;
(iii) 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 PhotoXpress to locate the material;
(iv) Information reasonably sufficient to permit PhotoXpress to contact you, such as an address, telephone number, and, if available, an electronic mail address;
(v) 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
(vi) 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.
PhotoXpress's designated Copyright Agent to receive notifications of claimed infringement is: Copyright Agent, PhotoXpress Inc, One Constitution Plaza, Hartford, USA; email: copyright [at] photoxpress.com; facsimile: 212-658-9082. For clarity, only DMCA notices should go to the Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this Section 5, your DMCA notice may not be valid.
You acknowledge and agree that PhotoXpress has no obligation to review any Works or other material or content available on the Website, and shall have no responsibility for any such Works or other material or content. PhotoXpress shall have the right, in its sole discretion, to delete, move or edit any Works or other material or content available on the Website.
You acknowledge and agree that PhotoXpress shall have no responsibility for any material or content on other websites to which you may hyperlink or otherwise access from the Website, including any web log, comments to any web log, or any forum on the Website. You acknowledge and agree that PhotoXpress shall have no responsibility for any material or content on websites from which you may be hyperlinked or otherwise be directed to the Website.
PhotoXpress reserves the right, in its sole discretion, to change or discontinue any or all of the services on the Website at any time. You acknowledge and agree that PhotoXpress has no obligation to make, or continue to make, the Website or any particular portion or related service available to you (whether or not such unavailability is voluntary on the part of PhotoXpress). PhotoXpress reserves the right, in its sole discretion, to suspend or terminate your Membership Account at any time, including, without limitation, your Membership Name and Membership Password.
By using this Website you acknowledge and agree that PhotoXpress may, in its sole discretion, preserve or disclose your personal information to its subsidiaries and/or parent companies for commercial purpose, or if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: comply with legal process; enforce this Agreement; respond to claims that any Work violates the rights of third-parties; or to protect the rights, property, or personal safety of PhotoXpress, its users or the general public.
By using this Website you acknowledge and agree to receive regularly commercial offers from PhotoXpress or its partners.
All use of the Service (the "Service") provided by PhotoXpress under Member's account must comply with the provisions of this Agreement. Member's registration information must be kept accurate and current. You acknowledge and agree to keep confidential your Membership Name and Membership Password selected by you and approved by PhotoXpress. Your Membership Name and Membership Password are personal to you and may not be shared with, or transferred to, any other person or entity.
You acknowledge and agree that you will be solely responsible for each and every use of your Membership Name and Corresponding Password, and that PhotoXpress may rely on the use of your Membership Name or Membership Password as conclusive evidence that you have used the Website.
You understand and agree that PhotoXpress may, in its sole discretion:
(i) monitor Member's use of the Service including the Works Member downloads;
(ii) flag Member's account if the number of daily downloads of Works exceeds daily maximums;
(iii) track any abuse of Member's Membership Name and Membership Password in connection with the Service or in connection with this Agreement; and
(iv) terminate this Agreement, without notice, if PhotoXpress believes there is a violation of this Agreement and/or abuse of Member's Membership Name and Membership Password.
If Member's Account is terminated because of any violation of this Agreement and/or any abuse of a Member's Membership Name or a Membership Password, Member loses all rights to use the Service and Works, including any rights which may survive termination of this Agreement, and Member must immediately delete and cease use of all Works acquired from the Service.
Member must maintain the confidentiality of Member's password. If Member believes that Member's Account is not secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of Member's password), Member must promptly change Member's password and inform PhotoXpress. Member agrees to take all steps necessary to prevent any third party from duplicating or distributing any Works or any elements of the Service. Defamatory, offensive, pornographic, or otherwise unlawful uses of Works are prohibited. Use of any logo or trademark without authorization from its owner is prohibited. If Member becomes aware of any activity that infringes any rights, including copyrights, in the Works or of the Service, Member must promptly notify PhotoXpress and provide all cooperation reasonably requested by PhotoXpress regarding such activity.
Any fraudulent, abusive or otherwise illegal activity may be grounds for termination of Member's Account, at PhotoXpress's sole discretion, and appropriate law enforcement agencies may be notified. Member may not use any means to circumvent the navigational structure or presentation of the Service or to index or improperly retrieve the Works, including but not limited to the use of any site search or retrieval application to "spider" the service. Member may not translate, reverse engineer, decompile, or disassemble the Service or the Works, including any software provided in connection with the Service except to the extent the foregoing restriction is expressly prohibited by applicable law.
All Works downloaded during the Term of the Agreement can be used after the Term, provided the use is in compliance with this Agreement and the applicable Content Download Agreement.
If Member downloads any Works from the Website, then Member's use of such Works shall be subject to the terms of the Content Download Agreement.
The Service may be used only by one individual (i.e., by Member, or by one individual on behalf of Member if Member is an entity) and Member may not transfer Member's right to use the Service to any other person or entity.
In addition to the representations and warranties you have made above, each of PhotoXpress and you hereby represent and warrant that it, or he or she, has the right to enter into this Agreement.
You agree to indemnify, defend and hold harmless PhotoXpress and its affiliates, and their respective officers, directors, employees, owners, agents, representatives, licensors and (sub)licensees (collectively, “Indemnitees”) from and against all claims, expenses (including attorney fees) or other liability arising from your breach of any of your representations, warranties or obligations under this Agreement, and from any and all uses by you of the Website (including any uses under your Membership Account or Membership Name, whether or not authorized by you), including, without limitation, any claims or actions based on infringement or violation of intellectual property rights, libel or slander or other defamation, right of privacy or “false light”, right of publicity or blurring or distortion or alteration of any Work or other material or content whether or not intentional. PhotoXpress shall have the right, in its sole discretion, to control the defense of any claim, action or matter subject to indemnification by you with counsel of its own choosing. You shall fully cooperate with PhotoXpress in the defense of any such claim, action or matter.
You agree that neither PhotoXpress nor its affiliates, nor any of their respective officers, directors, employees, owners, agents, representatives, licensors and (sub)licensees (other than yourself, as applicable), shall be liable for any damages, whether direct, incidental, indirect or consequential, arising from any use by you of the Website, even if such parties have been advised, or advised of the possibility, of such damages.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FOR CLARIFICATION PURPOSES, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, PHOTOXPRESS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE WWW.PHOTOXPRESS.COM WEBSITE OR THE SERVICES ON THE WWW.PHOTOXPRESS.COM WEBSITE, OR ANY WORKS OR OTHER MATERIALS OR CONTENT AVAILABLE ON THE WWW.PHOTOXPRESS.COM WEBSITE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NON-INFRINGEMENT OF COPYRIGHT, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS, OR FREEDOM OF ANY SERVICES, OR ANY WORKS OR OTHER MATERIALS OR CONTENT, FROM VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE WITH MALICIOUS, DISRUPTIVE AND/OR DESTRUCTIVE FEATURES.
PhotoXpress shall have no responsibility for any Works or other material or content available on the Website.
This Agreement shall continue in perpetuity unless terminated in accordance with this Section 12. PhotoXpress at any time may terminate this Agreement in its sole discretion, including, without limitation, for breach by you of any of your representations, warranties or obligations under this Agreement, or for inactivity by you with respect to use of the Website. You may at any time terminate this Agreement by logging into your Membership Account on the Website and then sending a termination request to PhotoXpress. In the event termination is by PhotoXpress, PhotoXpress shall notify you of such termination. PhotoXpress reserves the right, in its sole discretion, to terminate your Membership Account at any time, including, without limitation, deactivating your Membership Name and Membership Password.
Upon any termination of this Agreement Your Membership Account shall be cancelled and closed and your Membership Name and Membership Password shall be deactivated.
Termination of this Agreement shall not relieve you from any payment obligations that may have arisen prior to such termination, or any other obligations pursuant to any other agreement that has not been specifically terminated, such as a Content Upload Agreement or Content Download Agreement. The provisions of Sections 8, 10, 11, 13 and 15 shall survive the termination of this Agreement.
PhotoXpress reserves the right, in its sole discretion, to suspend your Membership Account at any time and for any length of time. In the event, and for so long as, PhotoXpress suspends your Membership Account, you shall have no ability to download any Works from the Website, but you may continue to access your Membership Account using your Membership Name and Membership Password.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to any conflict of laws principles. Any legal action, suit or proceeding arising out of or relating to this Agreement shall be instituted in a court of competent subject matter jurisdiction in the federal or state courts of the State of New York, and you and PhotoXpress each submit to the personal jurisdiction of such court and waive any right each might otherwise have to claim lack of personal jurisdiction or inconvenience of forum.
The relationship between PhotoXpress and you under this Agreement is that of independent contractors. For clarification purposes, the parties are not joint venturers, partners, principal and agent, or employer and employee. Neither party shall have the power to bind or obligate the other in any manner.
You agree that you shall be responsible for all use, sales, value-added and similar taxes and duties imposed by any governing authority in any jurisdiction in connection with your use of the Website.
No waiver on the part of PhotoXpress to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of PhotoXpress to exercise any such power, right, privilege or remedy, shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
PhotoXpress shall have the right, in its sole discretion, to assign any or all of its rights or obligations under this Agreement. You shall have no right to assign any of your rights or obligations under this Agreement.
This Agreement shall be inure to the benefit of, and be binding upon, PhotoXpress and you, and its and your respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than PhotoXpress and you, and its and your respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
Whenever the context so requires, the singular number shall include the plural and vice versa, and the masculine, feminine and neutral genders shall include each other.
If any term or provision of this Agreement is invalid, illegal or unenforceable, all other terms and conditions of this Agreement shall nevertheless remain in full force and effect.
The underlined headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.