PhotoThen’s products and services are provided by Marcy Design Group, Inc. These Terms of Service (“Terms”) govern your access to and use of PhotoThen’s website, products, and services (“Products”). Please read these Terms carefully, and contact us if you have any questions. By accessing or using our Products, you agree to be bound by these Terms and by our Privacy Policy.
1. Using PhotoThen
a. Who can use PhotoThen?
You may use our Products only if you can form a binding contract with PhotoThen, and only in compliance with these Terms and all applicable laws. When you create your PhotoThen account, you must provide us with accurate and complete information. Any use or access by anyone under the age of 13 is prohibited. If you open an account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are authorized to grant all permissions and licenses provided in these Terms and bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf. Some of our Products may be software that is downloaded to your computer, phone, tablet, or other device. You agree that we may automatically upgrade those Products, and these Terms will apply to such upgrades.
b. Our license to you
Subject to these Terms and our policies, we grant you a limited, non-exclusive, non-transferable, and revocable license to use our Products.
2. Your Content and Member Conduct
a. Posting content
PhotoThen allows you to post content, including photos, comments, links, and other materials. Anything that you post or otherwise make available on our Products is referred to as “User Content.” You retain all rights in, and are solely responsible for, the User Content you post to PhotoThen. If you post your content on PhotoThen, it still belongs to you but we can show it to people and others can re-post it. You should always preserve your original User Content, or make back-up copies of such User Content on your personal system. You should not use PhotoThen as the only repository or source of your User Content.
b. How PhotoThen and other users can use your content
You grant PhotoThen and its users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, re-post, modify, create derivative works, perform, and distribute your User Content on PhotoThen solely for the purposes of operating, developing, providing, and using the PhotoThen Products. Nothing in these Terms shall restrict other legal rights PhotoThen may have to User Content, for example under other licenses. We reserve the right to remove or modify User Content for any reason, including User Content that we believe violates these Terms or our policies. Copies of content shared with others may remain even after you delete the content from your account.
c. How long we keep your content
Following termination or deactivation of your account, or if you remove any User Content from PhotoThen, we may retain your User Content for a commercially reasonable period of time for backup, archival, or audit purposes. Furthermore, PhotoThen and its users may retain and continue to use, store, display, reproduce, re-post, modify, create derivative works, perform, and distribute any of your User Content that other users have stored or shared through PhotoThen.
d. Prohibited content and conduct
You acknowledge and agree that all photographic and video material, and resulting digital images or video, (also, with the definition from above, collectively “Content” or “User Content”) submitted by you to the Products and/or created for you or by you by the Products are your sole responsibility.
By submitting User Content to PhotoThen, you represent and warrant to PhotoThen that you either own the User Content or have the written permission from the copyright owner to make such Content available to PhotoThen to access and use and agree to be bound by these Terms.
You agree to indemnify, and hold PhotoThen and its officers, directors, employees, shareholders, members, managers, affiliates, agents, licensors and business partners harmless, from and against any and all costs, damages, liabilities and expenses (including all attorneys’ fees and costs of defense) if PhotoThen or any other indemnified party incurs any such costs or damages relating to or arising from a breach of your representations and warranties.
PhotoThen does not control the User Content of members’ accounts and does not have any obligation to monitor such User Content for any purpose. You acknowledge that although PhotoThen is not required to monitor or remove any User Content or other information submitted by you or produced on your behalf, PhotoThen has the absolute right (but not the obligation), in its sole discretion to refuse to process, return, delete, remove, and edit User Content for any reason at any time without notice.
You agree not to use, or attempt to use, the Products to process or produce Prohibited Content. Generally, “Prohibited Content” includes User Content or other material that PhotoThen believes:
1. Is threatening, profane, abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, or otherwise inappropriate.
2. Contains nudity. PhotoThen will not accept or process any User Content with any nudity, including images that PhotoThen, in its sole judgment, deems to be erotic in nature. PhotoThen understands that nudes are a longstanding photographic tradition, however, this policy is necessary for our business.
3. Could give rise to any civil or criminal liability;
4. Could infringe upon rights of privacy, publicity, copyrights or other intellectual property rights without the express written permission of the owner of these rights and the persons (or their parents or legal guardians, where applicable) who are shown in the material if applicable.
5. Advocates illegal activity.
6. Harms anyone, including, but not limited to, minors in any way.
7. Promotes bigotry, racism, hatred or harm against any individual or group.
8. Provides a link to any of the above.
The above list of Prohibited Content is merely an example and is not intended to be complete, exhaustive or exclusive. PhotoThen has the sole discretion to determine whether User Content is Prohibited Content. PhotoThen reserves the right to terminate your access to your account or the Products with or without cause and with or without notice, or for any action that PhotoThen determines is or may be disruptive to the Products or other property or applications owned or operated by PhotoThen or any entity affiliated therewith. PhotoThen may report to law enforcement authorities any actions that may be illegal. When legally required, or at PhotoThen’s sole discretion, PhotoThen will cooperate with law enforcement agencies in any investigation of your use of the Products for any reason whatsoever and you hereby waive any and all rights, claims or causes of action against PhotoThen or any of its affiliated entities as a result of any action or inaction taken by any law enforcement or any other governmental institution or agency.
3. Copyright Policy
PhotoThen has adopted and implemented the PhotoThen Copyright Policy in accordance with the Digital Millennium Copyright Act. For more information, please read our Copyright Policy set forth herein and otherwise. We respect copyrights. You should, too.
4. Copyright
When you use PhotoThen you become a participant in an online community of people who enjoy videos and photography. In order for PhotoThen to provide our services to you and others, as a condition to your use of PhotoThen you hereby grant to PhotoThen, solely for providing or improving our services, the right to copy, display, modify, distribute, transmit and make any derivative works of your User Content. As a condition to your use of PhotoThen, you represent and warrant to PhotoThen that you either own your User Content or have written permission from the copyright owner to make such User Content available on PhotoThen.
The services provided by PhotoThen are protected by US International Copyright Laws and by other applicable laws. You may not process the User Content owned by someone else without the written consent of owner of such User Content. You are solely responsible for any copyright violations that you may incur as a result of your activities on PhotoThen.
If you believe that your User Content or that of another has been copied in a way that constitutes a copyright infringement, please contact PhotoThen so that we may respond to your concerns.
5. Security; Information Disclosure
We care about the security of our users. While we work to protect the security of your content and account, PhotoThen cannot guarantee that unauthorized third parties will not be able to defeat our security measures. Please notify us immediately of any compromise or unauthorized use of your account. Your use of the Products is governed by these terms and PhotoThen’s Privacy Policy. You further acknowledge and agree that PhotoThen may, in its sole discretion, preserve or disclose your User Content, as well as your information, such as email addresses, IP addresses, timestamps, and other user information, if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: comply with legal process; enforce these Terms; respond to claims that any User Content violates the rights of third-parties; or protect the rights, property, or personal safety of PhotoThen, its members or the general public.
6. Third-Party Links, Sites, and Services
Our Products may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by PhotoThen. We do not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access any third party website, service, or content from PhotoThen, you do so at your own risk and you agree that PhotoThen will have no liability arising from your use of or access to any third-party website, service, or content.
7. Termination
PhotoThen may terminate or suspend this license at any time, with or without cause or notice to you. Upon termination, you continue to be bound by Sections 2 and 6-12 of these Terms. We reserve the right to refuse service to anyone.
8. Indemnity
If you use our Products for purposes in violation of these Terms, as determined in our sole and absolute discretion, you agree to indemnify and hold harmless PhotoThen and its officers, directors, shareholders, members, managers, employees and agents, from and against any and all claims, suits, proceedings, disputes, demands, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and accounting fees (including costs of defense of claims, suits or proceedings brought by third parties), in any way related to (a) your access to or use of our Products, (b) your User Content, or (c) your breach of any of these Terms. If we are sued because of something you or your business does on PhotoThen, you have to pay our costs. Also, you should have created a business account and agreed to our commercial terms in the first place.
9. Disclaimers
The Products and all included content are provided on an “as is” basis without warranty of any kind, whether express or implied.
PHOTOTHEN SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
PhotoThen takes no responsibility and assumes no liability for any User Content that you or any other user or third party posts or transmits using our Products. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose.
10. Electronic Communication
By using the Products, you consent to receiving electronic communications from PhotoThen. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Products. These electronic communications are part of your relationship with PhotoThen and you receive them as part of your subscription to the Products. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing. PhotoThen offers no warranty or guarantee that the turnaround time quoted on the website, or otherwise communicated to you, will be met. PhotoThen will use commercially reasonable efforts to maintain a reasonable turnaround time and to meet the turnaround time stated on the website or otherwise communicated to you.
11. Limitation of Liability; Shipping
TO THE MAXIMUM EXTENT PERMITTED BY LAW, PHOTOTHEN SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE PRODUCTS; (B) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE PRODUCTS, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; OR (C) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. IN NO EVENT SHALL PHOTOTHEN’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE PRODUCTS EXCEED ONE HUNDRED U.S. DOLLARS (U.S. $100.00).
PHOTOTHEN IS NOT LIABLE FOR THE USER CONTENT, OR ANY OTHER MATERIALS, WHILE IN TRANSIT THROUGH OR IN POSSESSION OF ANY THIRD PARTY CARRIER, INCLUDING, BUT NOT LIMITED TO, THE UNITED STATES POSTAL SERVICE, UNITED PARCEL SERVICE OR FEDERAL EXPRESS. YOU AGREE TO ACCEPT COMPLETE LIABILITY FOR ANY CONTENT, OR ANY OTHER MATERIALS, SHOULD THEY BE MISDIRECTED, LOST, STOLEN, OR DAMAGED WHILE IN THE POSSESSION OF, IN TRANSIT THROUGH OR OTHERWISE UNDER THE CONTROL OF ANY THIRD PARTY CARRIER. ALL ITEMS PURCHASED THROUGH PHOTOTHEN OR THE PRODUCTS ARE MADE PURSUANT TO A SHIPMENT CONTRACT. THIS MEANS THAT THE RISK OF LOSS AND TITLE FOR SUCH ITEMS PASS TO YOU UPON OUR DELIVERY TO YOUR SELECTED CARRIER. DUE TO THE NATURE OF THE CONTENT, NO INSURANCE IS AVAILABLE FOR THE SHIPPING OR THE HANDLING OF YOUR ORDER, AND PHOTOTHEN OFFERS NO WARRANTY OR GUARANTEE AGAINST DAMAGE OR LOSS WHILE YOUR ORDER IS IN TRANSIT THROUGH OR IN POSSESSION OF ANY THIRD PARTY CARRIER.
12. Embedded Information
Certain information concerning the User Content being optically scanned by the Products is digitally embedded by PhotoThen into the resulting image files utilizing the Extensible Markup Platform standard and EXIF/IPTC standards (“Embedded Information”). This Embedded Information may include, but is not limited to, PhotoThen contact information, a unique order number, a unique member number, information or descriptive “tags” and the operator and the time and date which the Products were provided. This Embedded Information is necessary for PhotoThen to effectively perform the production and distribution processes of the Products. Because of its nature, this Embedded Information can also be used to identify the source and history of an image or video independent of the Products. You hereby acknowledge that you have been informed that this Embedded Information may (but does not necessarily) exist in every photo or video scan performed by the Products and that you have been informed that distributing your images or video would result in the distribution of this Embedded Information. You hereby agree to take full responsibility for the distribution of this Embedded Information should you distribute your images or video either intentionally or unintentionally.
13. Governing Law and Jurisdiction
These Terms shall be governed by the laws of the State of Ohio, without respect to its conflict of laws principles. We each agree to submit to the personal jurisdiction of the Franklin County Court of Common Pleas located in Franklin County, Ohio or the United States District Court for the District of Ohio.
Our Products are controlled and operated from the United States, and we make no representations that they are appropriate or available for use in other locations.
14. General Terms
a. Notification Procedures and changes to these Terms. PhotoThen reserves the right to determine the form and means of providing notifications to you, and you agree to receive legal notices electronically if we so choose. We may revise these Terms from time to time and the most current version will always be posted on our website. If a revision, in our sole discretion, is material we will notify you. By continuing to access or use the Products after revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new terms, please stop using the Products.
b. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by PhotoThen without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
c. Entire Agreement/Severability. These Terms, together with the Privacy Policy Acceptable Usage Policy, Copyright Policy, and any amendments and any additional agreements you may enter into with PhotoThen in connection with the Products, shall constitute the entire agreement between you and PhotoThen concerning the Products. If any provision of these Terms is deemed invalid, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.
d. No Waiver. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and PhotoThen’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.