PhotoShelter Terms and Conditions
Welcome to www.photoshelter.com (the “Site”), where PhotoShelter, Inc. ("PhotoShelter", "we", "us" or "our") provides various photography-related tools, services and resources that photographers can use to store, display, market and distribute digital copies of their content (collectively with the Site, the “Services”). For clarity, the Services located on or accessible through the Site are solely intended for single-user accounts, and these Terms and Conditions only apply to the use of such single-user accounts. For businesses and entities that require access to the services by more than one user, PhotoShelter also provides a multi-user photograph-management and distribution solution called “Libris”, which is available at libris.photoshelter.com (“Libris”). Multi-user and Libris terms and conditions can be found here.
Applicability of Terms and Conditions.
- These Terms apply to anyone who uses the Services in any manner, including to anyone who visits, browses, purchases, or downloads from the Site, or from an individual photographer's PhotoShelter-hosted website (each, a "Photographer Site").
- Some services are accompanied by and subject to additional terms and conditions ("Supplemental Terms"). Supplemental Terms are incorporated herein by this reference, and your use of any Service that is governed by any Supplemental Terms will be deemed your acceptance and agreement to the applicable Supplemental Terms.
- You are solely responsible for ensuring that these Terms and your use of the Services comply with all laws, rules and regulations applicable to you. The right to access the Services is revoked where these Terms or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation.
- Single-User vs. Libris Services. The Services available on, or through, the Site are only intended for individual photographers (or individual photographers operating as business entities) and are not to be used by more than one individual per account. If you will have two or more individuals accessing the Services on your behalf, you must register for a Libris account, which is intended for use by larger organizations, institutions and businesses. If you are unsure of whether your use qualifies for a single-user or Libris account, please contact us at firstname.lastname@example.org. Terms for Libris accounts are available here.
- Eligibility. You represent and warrant that you are at least 13 years old. If you are under age 13, you may not use the Services. Additionally, if you are under age 18, you may only use the Services under the supervision and authorization of a parent or legal guardian that is at least 18 years old, who will be considered responsible for your conduct and the consequences of any such conduct. If you are a parent or legal guardian of a potential minor user, before authorizing any such use, please be warned that the Services may display content that some may find offensive. You must notify us immediately of any change in your eligibility to use the Services, breach of security or unauthorized use of your Account. We may, in our sole discretion, refuse to offer the Services to any person or entity and change our eligibility criteria at any time.
- Registration. Although unregistered users may be able to access some parts of the Services, certain features may only be available to users who have registered for an account on the Services (an "Account"). To register, you must provide accurate and updated information for your Account. In particular, you shall not select or use as a username: (a) a name of another person with the intent to impersonate that person; (b) a name subject to any rights of a person other than you without appropriate authorization; or (c) a name that is otherwise offensive, vulgar or obscene. You are solely responsible for any activity that occurs on your Account and for keeping your Account password secure. You may never use another person's Account without permission. Sharing Account information between multiple users, with or without the registered account-holder’s permission, is strictly prohibited.
- Definition. For purposes of these Terms, "Content" means all information, data, text, photographs, videos, audio clips, written posts, comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. "Content" also includes all User Content (as defined below).
- Notices and Restrictions. The Services contain Content from various sources, including us, our partners and users, and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. As members of the photography community, PhotoShelter strongly advocates for the respect of others' intellectual property rights. Accordingly, you shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services. You also agree to abide by any notices, information, and restrictions on any User Content (as that term is defined below) that you access through the Services. In particular, if you are accessing or downloading any Photographs (defined below), you agree to respect and abide by the photographers' copyright and any notices posted or agreements required by these photographers concerning your access to and use of their work.
- Use License From PhotoShelter. Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display on your browser or device in connection with the Services) Content (excluding our users' Photographs, as that term is defined below) solely for the purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us and, if applicable, the relevant copyright holder. Except as expressly permitted by us or the applicable copyright holder, you shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates these Terms or any third party right.
License Grants For User Content.
- User Content Generally. All Content you provide (or contribute, add, create, upload, submit, distribute or post) ("Contribute") to the Services is referred to as "User Content." User Content refers to both "Photographs" and "Non-Photographic Content." "Photographs" are any and all photographic or graphic works or other images you store, display or make available through the Services. All other User Content, whether User Content you contribute voluntarily (for example, text added to Photographs and galleries featuring Photographs, comments you make to blog posts, posts you contribute to forums or other public portions of the Services, or custom website pages that are created using PhotoShelter's templates) or User Content we collect automatically from your usage of the Services (for example, analytic data or metadata), is referred to in these terms as "Non-Photographic Content". We believe this distinction is important because we respect your intellectual property rights, especially in your Photographs, and we believe you should be able to grant a narrower license to your Photographs. For clarity, templates, layouts, or other arrangements of User Content (but not the User Content itself) are not considered User Content when they are made through tools offered through the Services, and shall remain the property of PhotoShelter or our licensors. User Content also does not include Feedback, which is defined and further described below.
- You Retain Your Rights to Your Content. Most importantly, you continue to own your User Content and can use such User Content in any way you want (provided you do not grant any rights to the User Content that interfere with the rights and licenses you grant to us).
- License to Your Photographs. In order for us to provide you with the Services, we need the rights to use your User Content in specific ways. The following license grants PhotoShelter these rights, solely in conjunction with the Services. For your Photographs, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable (solely to provide your Photographs to those third party service providers that you authorize us to do so) and transferable license to use, display, modify, crop, reformat, reproduce, distribute, and prepare derivative works of such Photographs, solely in connection with providing the Services. This license allows us to take actions such as creating thumbnails and other various sizes of the Photographs you list on your website, presenting your images in search results on the Site, allowing potential Purchasers (defined below) to browse your portfolio or online store, or to modify Photographs so that we can preview for you how they will look if you use one of our website templates. We have no right to use your Photographs in any manner that goes beyond providing the Services, and we claim no commercial rights to your Photographs themselves beyond these rights. If your images will appear in our independent marketing efforts, our team will ask permission beforehand.
- License to Your Non-Photographic Content. In addition to the limited rights to use your Photographs as detailed above, to provide the Services, we also need rights to use other User Content you contribute. The license in this section gives us the ability to, for example, support and display image captions and gallery descriptions, your "About" page, other custom website content, and other text you contribute to your Photographer Site, the Site or the Services. We will exercise these rights only in connection with the Site, the Services and our (and our successors' and assigns') businesses. Therefore by providing any Non-Photographic Content, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit, in connection with the Services and our (and our successors' and assigns') businesses, your Non-Photographic Content, including for promoting and redistributing part or all of the Site or the Services (and derivative works thereof) in any media formats and through any media channels (such as third party websites and feeds), until you remove, or until we remove pursuant to your request or as otherwise set forth herein, such Non-Photographic Content from the Services; provided that this license shall survive to the extent such Non-Photographic Content is included in any existing promotional or marketing materials.
- Public vs. Private Content. Certain User Content, including Photographs, can be designated either "Public" or "Private" through certain functionality on the Services. Additionally, certain portions of the Services are generally considered Public. By designating any of your User Content as "Public" or "Publicly searchable" or by posting User Content, including Photographs, to publicly viewable portions of the Services, such as your Photographer Site, through the search function at photoshelter.com, or on a "Lattice" board, you hereby do and shall grant other users of the Services (i.e. web site visitors) a non-exclusive, worldwide, royalty-free, perpetual license to access, display, and view such public User Content solely through the Site and/or the Services in connection with their use of the Services as permitted by these Terms. For clarity, you have ultimate control over whether User Content is designated Public or Private, and we will not alter the status of your User Content from Private to Public, unless dictated by you via the Services. This license conveys no rights to users of the Services (i.e. visitors to your website and ours) to use your Photographs in any manner that goes beyond the Services, and conveys no commercial rights to your Photographs themselves in any way beyond any rights additionally or specifically granted by you. The licenses contained herein will survive your termination of your Account or the Services.
- Feedback. We appreciate our users' interest in improving and expanding the Services. If you choose to send us content, information, ideas, suggestions or other materials relating to our Site, Services or business ("Feedback"), you hereby assign such Feedback to us, and you agree that PhotoShelter is free to use any Feedback, for any purposes whatsoever, including, without limitation, developing and marketing products and services, without any liability or payment of any kind to you.
- Name and Trademarks. You hereby grant to PhotoShelter the right to use and publish your name, trademark, trade name, or other identifier in connection with identifying and attributing your Photographs and User Content and for advertising, publicizing, and promoting the Services ("Promotions") in our sole discretion. However, we do not have any intention to use your identification information in Promotions against your wishes, so if you do not want your name to be used in connection with any Promotions, you may send a notice stating such to email@example.com. After receipt of your notice, PhotoShelter will remove your name from any current promotions, and will not include your name in future promotions that commence ten (10) business days or more after the day we receive your notice.
Availability of Content.
- Our goal is to provide a service with outstanding uptime and reliability for photographers to upload, manage, and distribute content. Planned downtime and copyright claims against users may, however, cause us to make User Content unavailable (in addition to a specific user designating any User Content as private). Occasionally, circumstances may lead to some or all of the Services being unavailable for other reasons. Although we will try to keep the Services operating without interruption, we do not guarantee that any Content will be made available on the Site or through the Services.
- We reserve the right, but do not have any obligation, to remove, block, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason, including upon receipt of claims or allegations from third parties relating to such Content, provided that we shall only edit or modify Photographs as provided in Section 7c.
Rules of Conduct.
- a. You shall not (and shall not permit any third party to) either (1) take any action or (2) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
- infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity (see our Copyright Policy);
- violates any local, state, national or international law or regulation or any contractual duty;
- is false, misleading, untruthful, inaccurate, or incomplete;
- is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, illegal or otherwise objectionable or inappropriate as determined by us in our sole discretion;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail ("spamming");
- contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
- impersonates any person or entity, including any of our employees or representatives;
- includes anyone's identification documents or sensitive financial information; or
- harms minors in any way, including, but not limited to, by violating child pornography laws or laws prohibiting the depiction of minors engaged in sexual conduct.
- You also shall not (and shall not permit any third party to) violate or attempt to violate the security or operation of the Services or of our other systems or networks, including without limitation the following:
- taking any action that imposes or may impose an unreasonable or disproportionately large load on our (or our third party providers') infrastructure or violates the terms of the subscription plan or account for which you registered, including without limitation by exceeding the applicable bandwidth limits or sharing Account information between multiple individuals;
- interfering or attempting to interfere with the Services or any activities conducted on the Services;
- bypassing, circumventing or attempting to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services);
- running any form of auto-responder or "spam" on the Services;
- using software, devices, or other processes to "crawl" or "spider" any page of the Services;
- harvesting or scraping any Content from the Services;
- forging headers or otherwise manipulating identifiers in order to disguise the origin of any content transmitted through the Services; or
- otherwise taking any action in violation of our guidelines and policies.
- You shall not (directly or indirectly) take any actions that violate our intellectual property rights or the intellectual property rights of any other parties, including without limitation the following:
- deciphering, decompiling, disassembling, reverse engineering or otherwise attempting to derive any source code or underlying ideas or algorithms of any part of the Services (including any application), except to the limited extent applicable laws specifically prohibit such restriction;
- modifying, translating, or otherwise creating derivative works of any part of the Services; or
- copying, renting, leasing, timesharing, distributing, or otherwise transferring any of the rights that you receive hereunder.
- We reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to:
- satisfy any applicable law, regulation, legal process or governmental request;
- enforce these Terms, including investigation of potential violations hereof;
- detect, prevent, or otherwise address fraud, security or technical issues;
- respond to user support requests; or
- protect the rights, property or safety of us, our users and the public.
- a. You shall not (and shall not permit any third party to) either (1) take any action or (2) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
- Terms for Both Sellers and Purchasers.
- Subject to the terms set forth herein and any applicable Supplemental Terms, PhotoShelter hereby grants to you a license to access and use the e-commerce tools made available on the Services (collectively, the "E-Commerce Services") solely for the purpose of displaying, hosting, sharing, delivering, Selling, and Purchasing rights to Photographs or other applicable Content made available through the E-Commerce Services in accordance with any terms relevant thereto. For clarity, a "Purchase" or "Sale" through the E-Commerce Services refers to a purchase or sale of certain rights to or a physical print or product of the relevant Photograph or applicable Content, or the license of a digital download that includes limited usage rights. Unless otherwise expressly agreed to between the parties in writing, ownership in the actual Photograph or applicable Content remains with the original copyright holder, even after a Sale on the Services. A user who "Purchases" or "Sells" Content is referred to as a "Purchaser" or "Seller", respectively.
- PhotoShelter reserves the right to change the manner in which it offers Services for the licensing of Photographs from time to time at its sole discretion.
- If you either Purchase or Sell Content through the Services, you hereby authorize PhotoShelter to disclose your contact and relevant billing information to the other party in the transaction as well as any Third Party Service Provider (defined below) engaged by PhotoShelter to provide services in connection with such transaction, to the extent necessary or desirable to process and facilitate the transaction, such as a print vendor responsible for the automated fulfillment of e-commerce orders from your website.
- Additional Terms for Sellers.
- If you will be Selling Photographs through the Services, you will need to obtain a merchant account from one of the billing services supported by the Services (currently PayPal, Stripe, and Authorize.net) (each, a "Billing Service"). Funds can only be collected through one of our authorized Billing Services. You agree and acknowledge that use of such Billing Services may be subject to additional terms, which you are responsible for reviewing and complying with. Please note that we may in our sole discretion, change the Billing Services we support from time to time.
- You agree and acknowledge that you are the merchant of record. This means that purchasers will transact directly with you, not with PhotoShelter.
- You agree to pay PhotoShelter a fee for each completed transaction that is initiated through the Services, which is applied to your monthly statement ("Transaction Fee"). The Transaction Fee varies by Account tier and can be found here, the terms of which are incorporated herein by this reference.
- In the event you choose to use one of our third party fulfillment partners, you will also be charged for the wholesale cost of printing and shipping, according to the fee schedule available here.
- You will have the sole authority to set and control the prices for any Photographs you are Selling through the Services. PhotoShelter will never alter any prices of a Seller's Photographs. Therefore, you acknowledge that you are solely responsible for any and all prices of Photographs you are Selling and that PhotoShelter takes no responsibility with respect thereto. You further acknowledge that when setting the price for any Photographs you are Selling, you have taken into account the Transaction Fee that will be assessed by PhotoShelter as set forth herein.
- You represent and warrant that you have all rights and licenses necessary to Sell and make such Photographs and/or applicable Content available for Purchase through the E-Commerce Services, and that you have obtained and have copies of model or other applicable releases from all individuals, locations or other subjects depicted in your Content as well as voluntary consent from all necessary parties for the publication and/or dissemination of their likeness and/or property for all legal purposes.
- You agree and acknowledge that your Photographs and/or applicable Content will be licensed to Buyers in accordance with the license arrangement you designate for such Photograph and/or applicable Content when making such Photograph available for Purchase ("License Agreement"). For additional information on the various licenses available through the E-Commerce Services, please visit this article.
- You hereby irrevocably waive all moral rights in your Photographs. This means that once you license Photographs and/or applicable Content to someone through the Services, you cannot control how they further use the Photographs and/or applicable Content as long as they stay within the scope of the applicable License Agreement.
- Additional Terms for Purchasers (including clients of PhotoShelter users).
- By Purchasing a Photograph, you hereby agree to access, display, distribute or otherwise use such Photograph only as expressly authorized by and in accordance with the terms set forth in the License Agreement designated for such Photograph and in no other manner and for no other purposes.
- You hereby agree and acknowledge that any Photograph you Purchase is the sole responsibility of the Seller and Purchaser, and not PhotoShelter, and PhotoShelter makes no representations, warranties, or guaranties to you regarding the Photograph, including without limitation regarding the quality, authenticity, legality, appropriateness or accuracy of such Photograph.
- Terms for Both Sellers and Purchasers.
- Downloading User Photos. This term applies to visitors and clients of PhotoShelter users, regarding the image download capabilities available to you via the PhotoShelter user’s Photographer Site. If you are not directly purchasing or licensing a Photograph using the PhotoShelter E-Commerce Services, but rather downloading a Photograph or other User Content from a PhotoShelter user in another manner, you acknowledge that the ability to download does not constitute a grant of usage rights. You also acknowledge that all usage restrictions still apply to you, and you agree that you will still fully comply with the photographer’s copyright, usage restrictions, and any other terms of any direct arrangements you have made with the photographer regarding usage of the User Content, including any compensation terms. If you are unclear about your usage rights to Photographs downloaded directly from a Photographer Site, please contact the photographer directly via the contact information link on their respective website.
- Security Features. PhotoShelter employs a number of industry standard or better technology to restrict the ability of other users to make high resolution copies of Content on the Services (such as the Watermark described below). However, we cannot guarantee, and make no representations or warranties that any Content will not be copied or otherwise exploited without your consent. We also cannot control how a party will use your Content after you have authorized a Purchase, and therefore we cannot make any representations, warranties or guarantees about your Content outside of our performance of the Services.
Payments and Billing.
- Paid Services. Certain of our Services, or certain of the services provided in connection with the Services by our third party business partners, may be subject to payments now or in the future (the "Paid Services"). Please see our Pricing page for a description of the current Paid Services. You acknowledge that all prices are subject to change at PhotoShelter's sole discretion. Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of this Agreement.
- Billing. We use a third-party payment processor (the "Payment Processor") to bill you through a payment account linked to your Account (your "Billing Account") for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. By choosing to use Paid Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms, and you authorize us, through the Payment Processor, to charge your chosen payment provider (your "Payment Method"). You agree to make payment using that selected Payment Method. Although we are not responsible for error by the Payment Processor, we reserve the right to correct any errors or mistakes that the Payment Processor makes, even if the Payment Processor has already requested or received payment. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
- Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
- Recurring Billing; Subscription Services. You can pay for your Account subscription, or other Paid Services that may have such options available, with a monthly or annual payment, on a recurring basis. All Services for which recurring payment is an option are referred to as the "Subscription Services." Your exact recurring payment amount may vary as a result of charges such as your authorized storage add-ons (billed monthly or annually, separate from your primary account), e-commerce sales transaction fees, or bandwidth overages associated with your Account. By choosing a recurring payment plan, you acknowledge that such Subscription Services have a recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. Subscription Services automatically renew for successive renewal periods of the same duration as the original subscription term, at the then-current non-promotional rate, unless and until you cancel the Subscription Service. You can access and view invoices for your recurring payments for certain Subscription Services through your Account. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD OR SUBSCRIPTION SERVICE, GO TO YOUR ACCOUNT SETTINGS HERE. Any such change or termination will take effect after your then-current term expires. We do not provide prorated refunds for any termination or cancellation, even if during a term.
- Current Information Required. You must provide current, complete and accurate information for your Billing Account. You must promptly update all information to keep your Billing Account current, complete and accurate, and you must promptly notify us or our payment processor if your Payment Method is canceled or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password. Changes to such information can be made here. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
- Change in Amount Authorized. Except as provided herein, if the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. For clarity, Transaction Fees assessed in connection with the E-Commerce Services will vary on a monthly basis, based on the number of Photographs Sold during the preceding calendar month.
- Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
- Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service (a "Free Trial") must be used within the specified time of the trial. Some Free Trials may require you to input your credit card or other Payment Method, while other Free Trials may be available without such requirement. If you are using a Free Trial that does not require you to specify a Payment Method, and you do not enter Payment Method information after the Free Trial period ends, we will treat that as a cancellation, and we will not save your uploaded Photographs or website designs after the Free Trial period ends. For Free Trials that require you to input Payment Method information, you must stop using the applicable Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Service, please contact us at firstname.lastname@example.org.
- Watermark. In addition to other security features we offer through the Services, PhotoShelter offers the option to include a visual overlay that is placed upon all publicly viewable Photographs, adding an important layer of image security ("Watermark"). You will not see Watermarks on your Photographs in your image browser on the Services ("Image Browser"), only on your public website (and private client galleries). Watermarking is a global setting, meaning that if enabled, all publicly viewable images will display the Watermark, except when the Photographs are added to a Lattice board, as further detailed below. However, you may disable Watermarking for specific galleries – including on the portfolio portion of your Photographer Site - from within your Image Browser, if you so choose. More information about Watermarks can be found here.
- Lattice. PhotoShelter's Lattice feature is designed to drive more traffic and visibility for PhotoShelter Photographs by enabling PhotoShelter staff members, guests, visitors to the Site and other users to search the full database of Users' publicly searchable images and create, curate and contribute to image showcases ("boards") that are organized by themes (e.g. "Fall leaves" or "U.S. Open"). Lattice boards can only be created using only images that are publicly viewable. In order to encourage a rich and interesting variety of images on Lattice boards, we allow users to create or contribute to Lattice boards using any images that are publicly viewable on the Services, including those that have been contributed by other users. Accordingly, by making Photographs publicly viewable on the Services, you acknowledge and agree that such Photographs may become a part of Lattice boards, including based on someone else's selection of the Photograph, and that such Photograph may be shared as part of Lattice boards when the Lattice boards are displayed, which may include display outside of the Services due to the public nature of the Lattice boards. As a user of the Services, you may also add your Photographs to any Lattice board's "stream". Please note that Lattice board thumbnail images are currently displayed without a Watermark in order to provide a consistent and aesthetically pleasing visual experience for curators and viewers. If you do not want your Photographs to be included in Lattice boards or streams, please do not make them publicly searchable. You may also opt-out of having your Photographs included in Lattice boards entirely, from inside your Account settings. As with all other parts of PhotoShelter, unauthorized usage of any Photographs made available through the Lattice feature is strictly prohibited.
- Third Party Services. The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. PhotoShelter may also allow certain third parties ("Third Party Service Providers") to provide services ("Third Party Services") to you through the Services. The inclusion of any such link does not imply our endorsement or any association between us and their operators. When you access third party resources on the Internet or purchase or use any Third Party Services, you do so at your own risk. These other resources are not under our control, and you acknowledge that any such transaction is solely between you and the applicable Third Party Service Provider, and we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource. Please review the policies of any Third Party Services you share information with or through for additional information about how they may use your information or your User Content.
- Sharing Content via Social Media. Sometimes the Services will give you the opportunity to share Content with others, including through your social networks ("Third Party Accounts"). We will clearly identify the Content you are authorized to redistribute and the ways you may redistribute it, usually by providing a "share" button on or near the Content. If you share information from the Services with others through your Third Party Accounts, you authorize PhotoShelter to share that information with the applicable Third Party Service and such relevant users. Please note that if you redistribute Content not owned by you, you must be able to edit or delete any Content you redistribute, and you must edit or delete it promptly upon our request.
- Referrals. You may be eligible to receive a referral credit ("Referral Credit") for referring other users ("Referral") to the Services. You can only be eligible for a Referral Credit if such Referral (a) did not previously have an Account, and (b) identifies you as the sole referral source in accordance with the instructions provided during the Referral's registration process (making such Referral, a "Qualified Referral"). You shall receive a Referral Credit for any Qualified Referral in the amount specified here. You will receive the Referral Credit on the billing date for your Account that follows the Qualified Referral's second full month of service (the "Credit Issue Date"). Your Referral Credit will be automatically applied to pay any charges to your Account incurred after the Credit Issue Date. If you do not use the Referral Credit within the twelve (12) month period following the Credit Issue Date, the Referral Credit will expire. Referral Credits will also automatically expire if your Account is terminated for any reason. Referral Credit are not redeemable as cash and may not be used to pay any past due balance; you must pay in full your past due balance and return your account to good standing in order to redeem your Referral Credits. If you are using a Free Trial, you can collect Referral Credits but may only use them if and when you transfer to a paying account. PhotoShelter reserves the right to change any aspect of the referral program at any time, including, without limitation, the redemption value of any Referral Credits that have not already been issued. We reserve the right to suspend your right to receive Referral Credits or to not issue you a Referral Credit if you have violated any of these Terms.
- Termination and Cancellation. Our goal is to build a large and active community of people who are as passionate about photography as we are. Therefore, we try to avoid terminating anyone's access to the Services and will rarely do so. We will usually only exercise our right to terminate an Account when a user is in violation of these Terms, especially if a user is infringing on another user's, or our, intellectual property rights. However, since we may not be able to predict all the events that may require termination, we also reserve the right to terminate or suspend an Account with or without cause and/or without notice, and termination may be effective immediately. If your use of the Services violates the terms in this Agreement, is improper, substantially exceeds or differs from normal use by other users, violates any Account usage restrictions (such as through use of a Single-User Account by an entity with multiple users), or otherwise involves fraud or misuse of the Services or harms our interests or those of another user of the Service, we reserve the right to terminate or suspend your use of the Services. Termination may result in the forfeiture and destruction of all information associated with your membership, including your User Content. If you wish to cancel or delete your Account, you may do so either directly through the Services or through a request made to one of our employees. We do not provide any refunds in the event of termination or cancellation.
- Termination for Nonpayment. The credit card you place on file in the Billing Info section of your account is the card we will charge for any and all of the possible charge types. It is important to keep this information up to date to avoid any service interruptions for nonpayment. When this credit card is due to expire, we will send numerous account reminders (if necessary) by email in an attempt to avoid any service interruption. If this credit card is declined, your account immediately enters a lockout state, which does not affect your service (e.g. your website will continue to display as intended) but will require you to update your card info before you may access your PhotoShelter account. After the account has been in lockout for 60 days, your account will be suspended, and the following actions will be taken:
- Homepage and image display pages are temporarily disabled.
- Cart checkout is disabled.
- Buyers will not be able to purchase your images.
- Any presence you may have had on the PhotoShelter site (e.g. Buyer's Slideshow or Featured Photographers section) is hidden.
- If no new billing info is entered for two months, your account will enter a freezing and de-privileging process that will eventually result in account termination at 180 days. At this time, any images stored with PhotoShelter will be deleted.
- Effect of Cancellation or Termination. Any fees paid hereunder are non-refundable. If, at the time of your cancellation, you still owe wholesale fees or transaction fees from completed image sales, we reserve the right to charge your credit card on file, post-cancellation. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability. We are happy to provide you with a copy of your Photographs upon your termination or cancellation of your Account, at your request, as long as you (a) satisfy the entire outstanding balance on your Account, including any fees or other expenses charged by PhotoShelter at the time of such termination for creating and distributing such copy of your Photographs, and (b) are not in violation of any of the Terms. Although PhotoShelter will make commercially reasonable efforts to store and preserve the material archived on the Services, you acknowledge and agree that PhotoShelter is not responsible or liable in any way for the failure to store, preserve or access Photographs or other User Content you transmit or archive on the Services. You are strongly urged to take measures to preserve copies of any data, material, content or information you post or upload on the Services.
- The Services act as a passive conduit for the archival, display, access, delivery, Purchase, and Sale of Photographs, digital images, information and other data. PhotoShelter may, but has no obligation to, screen or monitor such images, information, data or other content or any of the activity occurring on the Services. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. All User Content is the sole responsibility of the person who originated such User Content. YOU HEREBY ACKNOWLEDGE AND AGREE THAT ANY TRANSACTION MADE OVER THE SERVICES WILL BE BETWEEN YOU AND THE APPLICABLE USER OR OTHER INDIVIDUAL OR ENTITY AND THAT PHOTOSHELTER IS NOT AND WILL NOT BE A PARTY TO ANY SUCH TRANSACTION. YOU HEREBY AGREE TO INDEMNIFY AND HOLD HARMLESS PHOTOSHELTER AND THE PHOTOSHELTER INDEMNITEES AGAINST ANY CLAIM OR LOSS ASSOCIATED WITH ANY TRANSACTION RELATING TO YOUR POSTED CONTENT OR YOUR USE OF THE SERVICES.
- We have no special relationship with or fiduciary duty to you. You release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
- You shall and hereby do waive California Civil Code Section 1542 or any other similar law of any jurisdiction, which says in substance: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
- THE SERVICES AND CONTENT ARE PROVIDED "AS IS", "AS AVAILABLE" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE ON OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
- Informational Purposes. The Content and information available through the Services published by PhotoShelter are intended solely for informational purposes and not as a substitute for professional services or advice. We cannot guarantee the accuracy or timeliness of any Content or information made available through the Services.
- Indemnification. You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives (the "PhotoShelter Indemnitees") from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, Photographs or otherwise from your User Content, violation of these Terms, or infringement by you, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
- Limitation of Liability. IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF $100.00.
- Governing Law and Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of the State of New York, including its conflicts of law rules, and the United States of America. You agree that subject to Section 27, any dispute arising from or relating to the subject matter of these Terms shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of New York County, New York.
- Class Action Waiver – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
- Arbitration. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS, YOUR USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION IN NEW YORK, NEW YORK UNDER THE AMERICAN ARBITRATION ASSOCIATION'S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. As an alternative, you may bring your claim in your local "small claims" court, if permitted by that small claims court's rules and if within such court's jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by JAMS. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
- Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this section will be null and void. This section will survive the termination of your relationship with us.
- Modification. In an effort to deliver the best service experience possible, we are constantly changing our Services. We reserve the right, in our sole discretion, to modify or replace any of these Terms, or change, suspend, or discontinue the Services (such as the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may stop providing specific features entirely, or introduce new limits to features, at any time. We know that Users use and rely on many different PhotoShelter features, so if we discontinue a feature, where reasonably possible, we will give you reasonable advance notice. Your continued use of the Services following notification of any changes to these Terms or features constitutes acceptance of those changes.
- Entire Agreement and Severability. These Terms are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
- Force Majeure. Neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party's reasonable control (except for payment of any fees due hereunder), such as mechanical, electronic or communications failure or degradation.
- Assignment. These Terms are not assignable, transferable or sublicensable by either party except with the prior written consent of the other party; except that we may assign, transfer or delegate any of our rights and obligations hereunder without consent to any successor to all or substantially all of our business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise).
- Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect.
- Notices. Unless otherwise specified in these Terms, all notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com for PhotoShelter, and we will send electronic notices to you, when applicable, to the email address we have on file for you.
- No Waiver. Neither party's failure to enforce any part of these Terms or exercise any rights hereunder shall constitute a waiver of such party's right to later enforce that or any other part of these Terms or exercise that or any other right. Waiver of compliance in any particular instance does not mean that the waiving party will waive compliance in the future. In order for any waiver of compliance with these Terms to be binding, it must be in a writing provided by one of the waiving party's authorized representatives.
- Interpretation. The section and paragraph headings in these Terms and the sidebar summary of these Terms are for convenience only and shall not affect their interpretation. Any use of "including" "for example" or "such as" in these Terms shall be read as being followed by "without limitation" where appropriate.
Contact. You may contact us at PhotoShelter, Inc., 33 Union Square West, 2nd Floor, New York, NY 10003
Effective Date of Terms and Conditions: November 9, 2015