User Terms and Conditions
PLEASE READ THESE USER TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS SITE.User Terms and Conditions PLEASE READ
THESE USER TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS SITE. The following constitute the
terms of Terms and Conditions ("Terms and Conditions") between you
("you", "your", "purchaser") and Fotochatter,
Inc. (referred to as the "Company," "we," or "us")
with respect to your use of this web site at www.fotochatter.com ("Site")
and the mobile content distribution network service (the "Service").
The Company operates this Site as on-line and mobile photo sharing and
social networking platform including all text, surveys, audio-visual
works, communications, photographs, content, information, communications,
materials, documents, products, software, logos, graphics, sounds, images,
data, services, and the underlying intellectual property rights thereto
(collectively the "Content"). By accessing, using or downloading
any Content from this Site, or transmitting any Content through the
Service, you acknowledge your agreement to be bound by these Terms and
Conditions. If you do not agree to be bound by these Terms and Conditions,
please do not access this Site or otherwise use or download Content
from this Site. We reserve the right to update or modify these Terms
and Conditions at any time, and without prior notice to you. Your use
of the Site following such modification or update constitutes your acceptance
to be bound by these Terms and Conditions as changed or modified. We
encourage you to read through and review these Terms and Conditions
each time you access the Site or use the Service. IF YOU
DO NOT AGREE WITH ANY PART OF THESE TERMS AND CONDITIONS, YOU MUST NOT
USE THIS SITE. 1. Disclaimer.
The Content on this Site is presented in a summary fashion, and is intended
to be used for informational purposes only. Fotochatter, Inc. does not
endorse or warrant any product, service or Content contained in this
Site or distributed through the Service. You agree that by using this
Site or the Service, you will assume sole responsibility to exercise
your own judgment when participating in any activity, relying on or
distributing any Content, or otherwise engaging with other users on
the Service or within the Fotochatter communities, and we disclaim all
responsibility for any advice, suggestions, courses of action, statements,
instruction or inappropriate use or transmission of Content provided
on this Site, including without limitation, Content provided to you
by other users. Further, you should not rely upon claims of qualifications
or other authoritative assertions made by other users. 2. Nature of Services.
Our Site and Services contain a variety of online and mobile communication
tools and services including digital photo sharing, user communications,
bulletin boards, blogs, rating tools, personal pages, and other types
of features at no charge to you. We make no warranty regarding the quality
or availability of the Site or the Service, and we reserve the right
to suspend. modify or terminate access to the Site and the correlating
Services at any time and without notice. You agree that Company will
not be liable to you or any third party for any modification, suspension
or termination of the Site or the Service, including, without limitation,
loss of data, personal settings or other foreseeable or unforeseeable
damages related thereto. 3. Ownership.
You acknowledge that you are solely responsible for all photographs,
materials, text, entries, communications, content, information, chats,
contributions, materials, pictures, information, audio-visual and any
video links or other materials provided by or contributed by you on
this Site or through the Service (collectively, the "User Generated
Content"). You further agree that you either own all User Generated
Content provided by you or is properly obtained from the appropriate
owner with full permissions to post such User Generated Content on the
Site or transmit through the Service. The Content is protected by copyright,
trade dress and other laws and may not be copied or imitated in whole
or in part. All product names, company names, marks, logos, and symbols
may be the trademarks of their respective owners. As a condition of
using this Site and the Service, you hereby license to Fotochatter,
Inc., a non-exclusive, irrevocable, worldwide, perpetual, royalty-free
right and license solely to display or transmit the User Generated Content
to perform the Service. We reserve the right to block or remove User
Generated Content on its Site or transmitted through the Service at
any time and without notice at our sole and absolute discretion. Your
access and use of this Site and Service shall be construed as sufficient
consideration for such license. The foregoing license rights shall not
apply to User Generated Content posted to this Site or transmitted through
the Service by you, which violates or infringes upon third party intellectual
property, trade secrets or privacy rights and such license shall be
void as a matter of law. 4. License. We hereby
grant you the right to view and use this Site and the Service in accordance
with these Terms and Conditions. You may download and/or print a copy
of the Content for your personal and non-commercial use only (the "Permitted
Uses") provided the Content is not modified in any way and all
copyright and other proprietary notices are kept intact. You agree to
use the Content lawfully and only for the Permitted Uses. No other use
of the Content is permitted. Permission to reprint or electronically
reproduce any document or graphic in whole or in part for any other
purpose is expressly prohibited, unless prior written consent is obtained
from the respective copyright holder(s). Furthermore, you may not sell,
resell, modify, reverse engineer, decompile, disassemble, frame or create
derivative works of or otherwise exploit for any commercial purpose
the Site, the Service or any portion thereof without our prior written
consent in each instance. 5. Third Party Carrier Charges.
YOUR MOBILE PHONE CARRIER MAY CHARGE YOU FOR USE OF THE SERVICE AND
TRANSMISSION OF CONTENT OVER YOUR WIRELESS NETWORK.
Such charges my include, without limitation, SMS fees, email fees and
charges for used minutes. The nature and extent of such charges vary
from carrier to carrier and plan to plan. WE ARE NOT RESPONSIBLE
FOR SUCH CHARGES AND THE TERMS OF YOUR CARRIER MAY APPLY WITH RESPECT
TO BANDWIDTH, TRANSMISSION TIME AND USAGE FEES, AS APPLICABLE.
At any time, you may change your user preferences to minimize messages
and Content sent to you from others using the Service. 6. Trademarks. All of
the trademarks, service marks, and logos displayed on this Site and
through the Service (the "Trademarks") are registered and
unregistered trademarks of Fotochatter, Inc., its affiliates, or third
parties. Nothing in this Site or Service should be construed as
granting, by implication, estoppel, or otherwise, any license or right
in and to the Trademarks without our express written permission or the
express written permission of the applicable third party. Except as
expressly provided in this Agreement, any use of the Trademarks is expressly
prohibited. 7. Usage Rules. We reserve the right to deny
you access to any and all parts of this Site or Service and suspend,
block or terminate your account, for any reason or no reason, and at
our sole discretion. The following rules shall govern your conduct regarding
the use of the Site and Service. (a) Unlawful Purposes.
In order to create a hospitable environment for all of our users, certain
types of activities and communications are prohibited. As a condition
of your use of the Site and Service, you agree that you will not use
the Content for any purpose that is unlawful or prohibited by these
Terms and Conditions. You also agree that you are responsible for User
Generated Content that is sent through your account to any other user
or any other part of the Site or transmitted through the Service. You
may not post or transmit any message which is libelous, defamatory or
which discloses private or personal matters concerning any person other
than yourself. You may not post or transmit any message, data, image
or program which is indecent, obscene or pornographic. You will have
no expectation of privacy in such instances, and any unlawful behavior
will be reported to appropriate authorities. (b) Unsolicited Information.
This Site and Service may provide opportunities to provide us feedback
regarding the Site, the Service and our various offerings and other
unsolicited submissions (collectively "Unsolicited Information").
You may only provide Unsolicited Information that conforms to these
Terms and Conditions. We welcome your comments and feedback concerning
the Site and/or Service, but we do not accept or consider other unsolicited
ideas, including, without limitation, ideas for new advertising campaigns,
new promotions, new technologies, processes, materials or marketing
plans. Accordingly, please do not send such unsolicited ideas to us.
By providing Unsolicited Information, you thereby grant us a perpetual,
royalty-free, fully paid up and irrevocable right and license to use,
reproduce, modify, publicly display, distribute, transmit, sublicense,
create derivative works from, transfer, sublicense and sell such Unsolicited
Information to the extent that you own such rights. (c) Prohibition on Use by
Minors Under The Age of 14. This Site and Services are intended
for an adult audience and CHILDREN UNDER THE AGE OF FOURTEEN ARE NOT
PERMITTED TO SUBMIT ANY USER GENERATED CONTENT, PERSONAL DATA OR UNSOLICITED
INFORMATION. (d) No Monitoring of Forums.
In order to promote a level of candor and trust as well as the prohibitive
traffic volume, the communications and use of the Site and Services,
in general, are not actively monitored for unacceptable use, nor is
there any guarantee that your User Generated Content will remain confidential
or secure. Further, no statements made on the Site or among users will
be authenticated or endorsed by us. However, we may in our sole discretion,
but without the obligation, choose to monitor all communications, chats,
transmissions, User Generated Content or any other communication feature
on the Site or Service as part of an investigation of reported abuses
or otherwise where we may deem appropriate. We reserve the right to
block transmission of, and or remove any User Generated Content that
you send to any group or user, at any time, for any reason, and without
prior notice to you. (e) Unauthorized access.
You shall not permit any other person (other than an agent acting on
your behalf and subject to your direct supervision) to access the Site
or the Service using your account for any purpose. (f) Infringing User Generated
Content. You shall not post or transmit any User Generated Content
that would violate the intellectual property, trade secrets or privacy
rights of others, including unauthorized copyrighted text, images or
programs, photographs, signatures, images, likenesses, voice, trade
secrets or other confidential proprietary information, copyrighted materials,
and trademarks or service marks used in an infringing fashion. (g) Interference with Other
Users' Use. You shall not interfere with other users' use of the
Site or the Service, including, without limitation, hacking into the
Site or Service, disrupting the normal flow of dialogue, communications
or transmissions, spamming or otherwise using abusive tactics to deter
others from participating in the Service. (h) Harmful Code. You
may not post or transmit any file to this Site or the Service or to
any other user which contains viruses, worms, time bombs, Trojan horses
or any other contaminating or destructive code. (i) Abusive Conduct.
You may not post or transmit any message which is harmful, threatening,
abusive or hateful. It is not our intent to discourage users from taking
controversial positions or expressing vigorously what may be unpopular
views; however, we reserve the right to take such action as we deem
appropriate in cases where the User Generated Content is being used
to disseminate statements which are deeply and widely offensive and/or
harmful. However, we are not obligated to take any action. (j) Unsolicited Communications
Prohibited. You may not post or transmit charity requests, petitions
for signatures, chain letters or letters relating to pyramid schemes.
You may not post or transmit any advertising, promotional materials
or any other solicitation of other users to use goods or services. 8. No Review of Postings
& Uploads. The Company does not and cannot review, and is therefore
not responsible for, any User Generated Content posted or uploaded to
the Site. MESSAGES, ADVICE, OPINIONS OR OTHER INFORMATION CONTAINED
ON THE SITE OR TRANSMITTED THROUGH THE SERVICE SHALL NOT BE CONSTRUED
AS AUTHORITATIVE ADVICE OR INSTRUCTION. 9. Procedures for Claimed
Copyright Infringement. We respect the intellectual property rights
of others, and ask that you do the same. As such, the infringement
of others' intellectual property rights will not be tolerated and
may result in the suspension or termination of the infringing party's
account. Please note that we can only address infringing materials posted
on our Site or transmitted through the Service that have been reported
to us, and cannot be responsible if any User Generated Content is repurposed
or otherwise copied from the Site or through the Service and used in
other mediums prior to us removing such infringing content. If you believe that your work
has been copied in a way that constitutes copyright infringement, in
accordance with the Digital Millennium Copyright Act, please provide
the following information to our agent: (a) an electronic or physical
signature of the person authorized to act on behalf of the copyright
owner; (b) a description of the copyrighted
work that you claim has been infringed; (c) a description of where
the material you claim is infringing is located on the Site or otherwise
the originating source from which it was transmitted; (d) your address, telephone
number, and email address; (e) 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; (f) A statement made by you,
under the penalty of perjury, that the above information in your notice
is accurate and that you are the copyright owner or duly authorized
to act on the copyright owner's behalf; and (g) Our agent may be contacted
as follows: 10. Data Back-up We are not responsible for
backing up your data or any User Generated Content or other type of
data attributed to your use of the Site or the Service. YOU EXPRESSLY
AGREE TO ASSUME THE SOLE RISK OF BACKING UP ALL USER GENERATED CONTENT
THAT YOU CONTRIBUTE TO THE SITE OR TRANSMIT THROUGH THE SERVICE AND
EXPRESSLY AGREE THAT WE WILL HAVE NO LIABILITY WITH RESPECT TO LOST
USER GENERATED CONTENT, WHETHER YOUR OWN OR THAT BELONGING TO THIRD
PARTIES. 11. Disclaimers. a. Geographic Disclaimer.
The Site and Service is administered by the Company from Los Angeles,
California and is intended solely for users who are US residents. Access
to the Site and Content and use of the Service as well as the terms
of our Privacy Policy may not be legal for some persons or in some countries
outside the United States. Additionally If you elect to access and use
the Site, Service and Content from outside of the United States, you
do so at your own risk and are solely responsible for complying with
all applicable laws and regulations. b. DISCLAIMER OF WARRANTIES.
THIS SITE, THE SERVICE AND THE CONTENT ARE PROVIDED "AS IS",
WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS
FOR A PARTICULAR PURPOSE., TITLE, AND NON-INFRINGEMENT, WITH REGARD
TO THE CONTENT, PRODUCTS, SERVICES AND ALL OTHER INFORMATION CONTAINED
ON AND/OR MADE AVAILABLE THROUGH THIS SITE OR SERVICE, INCLUDING BUT
NOT LIMITED TO THE AVAILABILITY OF THIS SITE, LACK OF VIRUSES, WORMS,
TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE
PROPERTIES, OR ANY FAILURE TO PROVIDE THE SITE, THE SERVICE OR ACCESS
THERETO BY USERS. WE DO NOT GUARANTEE THE TIMELINESS, VALIDITY, COMPLETENESS
OR ACCURACY OF THE CONTENT. ALTHOUGH WE MAY UPDATE THE CONTENT ON THIS
SITE AND SERVICE FROM TIME TO TIME, PLEASE NOTE THAT INFORMATION CONTAINED
HEREIN MAY BE OUT OF DATE AND/OR MAY CONTAIN INACCURACIES OR TYPOGRAPHICAL
ERRORS. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN
WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU. 12. Indemnification.
You agree to indemnify, defend and hold harmless the Company, its affiliates,
officers, directors, employees, agents, information providers, partners,
advertisers and suppliers (the "The Protected Parties") from
and against all losses, expenses, damages and costs, including reasonable
attorney's fees, resulting from (a) provision of Unsolicited Information
or User Generated Content by you, or (b) your use of the Content, the
Service or Site; and/or (c) your breach of the terms of these Terms
and Conditions, (including infringement of third parties' worldwide
intellectual property rights or negligent or wrongful conduct) by you
or any other person accessing the Site or Service using your account. 13. WAIVER, RELEASE AND
LIMITATION OF LIABILITY. YOU AGREE THAT NONE OF THE PROTECTED PARTIES
SHALL HAVE ANY LIABILITY TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY
IN CONNECTION WITH YOUR USE OF THE SITE OR SERVICE. YOU HEREBY RELEASE
AND FOREVER WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST THE PROTECTED
PARTIES (INCLUDING BUT NOT LIMITED TO CLAIMS BASED UPON THE NEGLIGENCE
OF ANY OF THE PROTECTED PARTIES) FOR LOSSES OR DAMAGES YOU SUSTAIN IN
CONNECTION WITH YOUR USE OF THE SITE OR SERVICE. NOTWITHSTANDING THE FOREGOING
PARAGRAPH, THE TOTAL LIABILITY OF THE PROTECTED PARTIES, IF ANY, FOR
LOSSES OR DAMAGES SHALL NOT EXCEED THE FEES PAID BY THE USER TO THE
COMPANY FOR THE PARTICULAR INFORMATION OR SERVICE PROVIDED. IN NO EVENT
SHALL ANY OF THE PROTECTED PARTIES BE LIABLE TO YOU FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE ARISING FROM ANY USE
OF THIS SITE, SERVICE OR THE CONTENT EVEN IF THE PROTECTED PARTIES HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NONE OF PROTECTED PARTIES WILL
BE LIABLE OR HAVE ANY RESPONSIBILITY OF ANY KIND FOR ANY LOSSES, DAMAGE
OR DESTRUCTION OF DATA, INCLUDING, WITHOUT LIMITATION, LOSS OF ALL YOUR
USER GENERATED CONTENT, THAT AND DAMAGES OR LOSSESS YOU INCUR IN THE
EVENT OF ANY FAILURE OR INTERRUPTION OF THIS SITE OR OUR EQUIPMENT,
OR RESULTING FROM THE ACT OR OMISSION OF ANY OTHER PARTY INVOLVED IN
MAKING THIS SITE OR SERVICE AVAILABLE TO YOU OR COLLECTING THE DATA
CONTAINED THEREIN, OR FROM ANY OTHER CAUSE RELATING TO YOUR ACCESS TO
OR YOUR INABILITY TO ACCESS THE SITE, THE CONTENT, THE SERVICE, OR YOUR
USER GENERATED CONTENT WHETHER OR NOT THE CIRCUMSTANCES GIVING RISE
TO SUCH CAUSE MAY HAVE BEEN WITHIN THE CONTROL OF ANY OF THE PROTECTED
PARTIES. SOME STATES DO NOT ALLOW THE
EXCLUSION OF DAMAGES OR LIMITATION OF LIABILITY AS SET FORTH ABOVE,
SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. IF ANY PART OF
THIS LIMITATION DOES NOT APPLY TO BE INVALID OR UNENFORCEABLE, FOR ANY
REASON, THAN UNDER THOSE CIRCUMSTANCES, THE AGGREGATE LIABILITY OF THE
PROTECTED PARTIES SHALL NOT EXCEED ONE HUNDRED ($100) DOLLARS. IF ANY
REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE;
ALL LIMITATIONS OF LIABILITY, DISCLAIMERS OF LIABILITY, AND EXCLUSIONS
OF LIABILITY SHALL REMAIN IN EFFECT. 14. Third Party Rights.
The provisions of paragraphs 12 (Indemnification) and 13 (Waiver, Release
and Limitation of Liability) are for the benefit of the Protected Parties.
Each of the Protected Parties shall have the right to assert and enforce
those provisions directly against you on its own behalf. 15. User Representations.
You represent and warrant that you are at least 18 years of age and
that you possess the legal right and ability to enter into these Terms
and Conditions and to use the Site and Service in accordance with these
Terms and Conditions. If you are not at least 18 years old, but are
over the age of 13, you may have a parent or guardian accept these terms
on your behalf . You agree to be financially responsible for your use
of the Site and the Service (as well as for use of your account by others
(whether authorized or unauthorized), including use by any minors living
with you) and to comply with your responsibilities and obligations as
stated in these Terms and Conditions. 16. Miscellaneous. These
Terms and Conditions shall be governed by and construed in accordance
with the laws of the State of California, without regarding provisions
relating to conflicts of law. You agree that any legal action or proceeding
between the Company and you for any purpose concerning these Terms and
Conditions or the parties' obligations hereunder shall be brought exclusively
in the state or federal courts located at Los Angeles, California, USA,
and we both expressly consent to such jurisdiction. These Terms and
Conditions constitute the entire Agreement between Fotochatter, Inc.
and you with respect to your access and use of the Site or the Service.
Any failure by us to insist upon or enforce strict performance of any
provision of these Terms and Conditions shall not be construed as a
waiver of any provision or right. Neither the course of conduct between
the parties nor trade practice shall act to modify any provision of
these Terms and Conditions. If any provision hereof shall be held to
be invalid or unenforceable, then such provision shall be reformed to
the extent necessary to make such provision valid and enforceable when
so applied. We may assign our rights and duties under these Terms and
Conditions to any party at any time without notice to you. 16. Notice. We may deliver
notice to you under these Terms and Conditions by means of electronic
mail, a general notice on the Site or by link to your mobile phone via
the Service, or by written communication delivered by first class U.
S. mail to your address on record in your account information, if any.
You may give notice to us at any time by letter delivered by first class
postage prepaid U. S. mail or overnight courier to the following address: Fotochatter, Inc. Attn: Legal Department 903 Pacific Ave. Venice, CA 90291 |
