PhotoXpress Subscription Agreement
- Price and Payment
- Subscriber Account Responsibilities
4A Refund Policy
- Special Notice to California Subscribers
- No Carryover of Unused Downloads
- Representations and Warranties
This Subscription Agreement (the "Agreement") is by and between PhotoXpress LLC ("PhotoXpress") and the subscriber (the "Subscriber" or "you"). It sets forth the terms and conditions of Subscriber's subscription to sublicense selected images, photographs and other content (each, a "Work") from PhotoXpress (the "Subscription") pursuant to the PhotoXpress subscription program (the "Subscription Program"). As a condition of the Subscription, Subscriber must accept this Agreement in its entirety.
SUBSCRIBER SHOULD REVIEW THIS AGREEMENT CAREFULLY AND INDICATE SUBSCRIBER'S ACCEPTANCE BY CLICKING ON THE "I AGREE" CHECKBOX ("CHECKBOX"). BY CLICKING THE CHECKBOX, SUBSCRIBER AGREES TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.
1.1 The PhotoXpress Subscription Program is an electronic information service (the "Service") operated by PhotoXpress on the Internet (currently located at http://www.photoXpress.com) (the "Service Website"). The Service offers Subscribers access to Works owned or licensed by PhotoXpress. Subscriber acknowledges that not necessarily all, of the Works in PhotoXpress's catalog are available pursuant to the Subscription Program, and that only Works in the L file size will be provided by PhotoXpress pursuant to the Subscription Program.
1.2 Subscriber acknowledges that Subscriber is at least 18 years old, and Subscriber agrees to be bound by all of the terms in this Agreement. If Subscriber is subscribing to the Service in Subscriber's capacity as an employee of a corporation or other legal entity, Subscriber acknowledges that Subscriber has the authority to enter into this Agreement on its behalf. The right to use the Service may not be transferred.
1.3 This Agreement shall commence on the date the payment is received by PhotoXpress and shall continue for the duration of the Subscription Subscriber has chosen, unless otherwise terminated pursuant to this Agreement (the "Term").
2. Price and Payment
2.1 Subscriber authorizes PhotoXpress to charge the applicable Subscription fee ("Subscription Fee") to a valid credit card account designated by Subscriber and approved by PhotoXpress. Subscription Fees will be charged at the standard rate in effect at the time the fee is payable. Current Subscription Fees and other charges can be found at www.PhotoXpress.com/Info/Upgrade. Subscriber agrees to pay all sales, use, and other similar taxes imposed in connection with Subscriber's use of the Service. Subscriber is responsible for all Internet service provider fees, telecommunication and other charges required for Subscriber's connection to the Service.
2.2. PHOTOXPRESS WILL AUTOMATICALLY CHARGE SUBSCRIBER’S ACCOUNT FOR RENEWAL OF SUBSCRIBER’S SUBSCRIPTION AT THE APPLICABLE SUBSCRIPTION RATE UNLESS SUBSCRIBER CANCELS SUBSCRIBER’S SUBSCRIPTION AT LEAST FIFTEEN (15) DAYS BEFORE THE APPLICABLE SUBSCRIPTION RENEWAL DATE BY CONTACTING PHOTOXPRESS SUPPORT AT FEEDBACK@PHOTOXPRESS.COM; PROVIDED HOWEVER THAT THE FOREGOING SHALL NOT APPLY TO THOSE TYPE(S) OF SUBSCRIPTIONS OFFERED BY PHOTOXPRESS WHICH DO NOT AUTOMATICALLY RENEW (IF ANY). IN THE EVENT PHOTOXPRESS IS UNABLE TO CHARGE SUBSCRIBER'S ACCOUNT THE APPLICABLE SUBSCRIPTION FEE, PHOTOXPRESS RESERVES THE RIGHT TO TERMINATE SUBSCRIBER'S RIGHT TO USE THE SERVICE. PHOTOXPRESS WILL USE REASONABLE EFFORTS TO SEND A REMINDER PRIOR TO THE END OF SUBSCRIBER’S CURRENT SUBSCRIPTION PERIOD TO THE E-MAIL ADDRESS SUBSCRIBER PROVIDED IN CONNECTION WITH SUBSCRIBER’S REGISTRATION ON THE PHOTOEXPRESS SITE.
3. Subscriber Account Responsibilities
3.1 All use of the Service under Subscriber's account ("Subscriber's Account") must comply with the provisions of this Agreement. Subscriber's registration information must be kept accurate and current.
3.2 Subscriber is responsible for all usage or activity on Subscriber's Account. SUBSCRIBER, AND NOT PHOTOXPRESS, IS RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO SUBSCRIBER'S CREDIT CARD INCLUDING THOSE MADE BY A THIRD PARTY THAT WERE NOT AUTHORIZED BY SUBSCRIBER.
3.3 Subscriber understands and agrees that PhotoXpress may, in its sole discretion: (i) monitor Subscriber's use of the Service including the Works Subscriber downloads; (ii) flag Subscriber's account if the number of daily downloads of Works exceeds daily maximums; (iii) track any abuse of Subscriber's subscriber ID and 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 Subscriber's ID and password. If Subscriber's subscription is terminated because of any violation of this Agreement and/or any abuse of an ID or password, Subscriber loses all rights to use the Service and Works, including any rights which may survive termination of this Agreement, and Subscriber must immediately delete and cease use of all Works acquired from the Service.
3.4 Subscriber must maintain the confidentiality of Subscriber's password. If Subscriber believes that Subscriber's Account is not secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of Subscriber's password), Subscriber must promptly change Subscriber's password and inform PhotoXpress. Subscriber 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 is prohibited. Use of any logo or trademark without authorization from its owner is prohibited. If Subscriber becomes aware of any activity that infringes any rights, including copyrights, in the Works or of the Service, Subscriber must promptly notify PhotoXpress and provide all cooperation reasonably requested by PhotoXpress regarding such activity.
3.5 Any fraudulent, abusive or otherwise illegal activity may be grounds for termination of Subscriber's Subscription, at PhotoXpress's sole discretion, and appropriate law enforcement agencies may be notified. Subscriber 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. Subscriber 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.
3.6 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 PhotoXpress's Standard Royalty Free download agreement.
3.7 If Subscriber downloads any Works from the Service Website, then Subscriber's use of such Works shall be subject to the terms of PhotoXpress's Content Download Agreement.
3.8 The Service may be used only by one individual (i.e., by Subscriber, or by one individual on behalf of Subscriber if Subscriber is an entity) and Subscriber may not transfer Subscriber's right to use the Service to any other person or entity...
4.1 Either Subscriber or PhotoXpress may terminate this Agreement and Subscriber's Account at any time, with or without cause. Additionally, Subscriber's right to use the Service and/or any Work will terminate immediately upon Subscriber's breach of any material term of this Agreement. In the event that Subscriber is dissatisfied with the Service for any reason whatsoever the only right available to Subscriber is to terminate Subscriber's Account by providing notice to PhotoXpress pursuant to this Agreement. PhotoXpress may suspend or terminate Subscriber's Account, without notice, in the event of Subscriber's breach of this Agreement or for other conduct which PhotoXpress, in its sole discretion, considers to be unacceptable. Suspension or termination of Subscriber's Account means that the Service will no longer be accessible to Subscriber. PhotoXpress shall not be responsible for any consequences of such lack of access.
4.2 The provisions concerning payment obligations, Subscriber responsibilities, subscriber information, ownership of copyright and other intellectual property rights, limitations on use, disclaimers, limitations of liability, indemnification, termination, and the miscellaneous provisions of this Agreement shall survive the termination of the Agreement or Subscriber's Account, whether by Subscriber or PhotoXpress.
4.3 Subscriber agrees that Subscriber is responsible for all charges incurred up to the time the account is deactivated.
4A Refund Policy
4A.1 All amounts paid or payable in respect of the Subscription are non-refundable, except as explicitly set forth below:
a. In the event that you cancel your Subscription within 72 hours of ordering the Subscription, the applicable fee for the Subscription will be refunded to you (or waived, if payment has not yet been made by you), minus any administrative fees which may apply; provided that no Works were downloaded prior to the cancellation. In the event that a Work has been downloaded prior to the cancellation, no refund or waiver of fees will be made. If you cancel your Subscription following the passage of more than 72 hours, this refund/waiver will not apply.
b. If you have made an advance order for a Subscription, where such Subscription is set to commence at a later date, then, in the event that you cancel your Subscription no later than 15 days prior to the commencement of the Subscription, the applicable fee for the Subscription will be refunded to you (or waived, if payment has not yet been made by you), minus any administrative fees which may apply; provided that no Works were downloaded prior to the cancellation; and further provided that the Subscription was not a one year Subscription or longer. In the event that a Work has been downloaded prior to the cancellation, no refund or waiver of fees will be made. If you cancel your Subscription with less than 15 days remaining prior to the commencement of the Subscription, this refund/waiver will not apply. For greater clarity, the refund/waiver set forth in this subsection (b) will not apply to a Subscription of one year or more; however a refund/waiver may be applicable to such one year Subscription under subsection (a) above.
c. To qualify for a refund/waiver, all notices of cancellation must be sent in writing via email to firstname.lastname@example.org. Any other form of notice will not entitle the Subscriber to any refund or waiver of fees.
5. Special Notice to California Subscribers
5.1 As required by California Code Section 1789.3, this notice is to advise Subscriber of the following: (a) The Service is a service provided by PhotoXpress LLC, One Constitution Plaza, Hartford, USA. PhotoXpress's email email@example.com and telephone number is 718-577-1321. (b) For a description of all current fees and charges, see www.PhotoXpress.com/Info/Upgrade. PhotoXpress reserves the right to change the amount of any fee or charge and to institute new fees or charges, pursuant to the terms of this Agreement. (c) If Subscriber has a complaint regarding the Service or desire further information on use of the Service, contact PhotoXpress by telephone at 718-577-1321. For complaints, Subscriber may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 "R" Street, Sacramento, California 95814 or by telephone at 1-916-445-1254.
6. No Carryover of Unused Downloads
6.1 If Subscriber does not download the maximum number of Works that Subscriber is entitled to download under the terms of Subscriber's Subscription plan during any applicable time period, the unused number of permissible downloads will automatically be forfeited and will not carry over to any future time period.
7. Representations and Warranties
7.1 In addition to the representations and warranties made by Subscriber above, each of PhotoXpress and Subscriber hereby represent and warrant that it, or he or she, has the right to enter into this Agreement.
8.1 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 Subscriber 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.
8.2 The relationship between PhotoXpress and Subscriber under this Agreement is that of independent contractors. For clarification purposes, the parties are not joint ventures, partners, principal and agent, or employer and employee. Neither party shall have the power to bind or obligate the other in any manner.
8.3 Subscriber agrees that he or she 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 the license granted to him or her under this Agreement.
8.4 No waiver on the part of PhotoXpress.com 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.
8.5 PhotoXpress shall have the right, in its sole discretion, to assign any or all of its rights or obligations under this Agreement. Subscriber shall have no right to assign any of his or her rights or obligations under this Agreement.
8.6 This Agreement shall be inure to the benefit of, and be binding upon, PhotoXpress and Subscriber, and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than PhotoXpress and Subscriber, and their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
8.7 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.
8.8 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.
8.9 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.