Last Modified: October 11, 2019
These Terms are written in the English language. We do not guarantee the accuracy of any translated versions of these Terms. To the extent any translated versions of these Terms conflict with the English language version, the English language version of these Terms shall control.
This is an important document that you must consider carefully when choosing whether to use the Digital Services. Please be advised that these Terms contain provisions that govern how claims you and PhotoDay have against each other are resolved. It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against PhotoDay to confidential, binding, and final arbitration. You will only be permitted to pursue claims against PhotoDay on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
USER'S ACKNOWLEDGEMENT AND ACCEPTANCE OF TERMS
These terms and conditions may be changed from time to time, and your use of the Digital Services following any such changes shall confirm your agreement to be bound by the Terms as modified.
USING OUR SERVICES
You must follow any policies made available to you within the Digital Services. The Digital Services may make goods or service available for sale at PhotoDay's then-current rates, and you agree to pay all amounts as owed at PhotoDay's then-current rates for all goods or services that you order. As a condition of your use of the Digital Services, you warrant to PhotoDay that you will not use the Digital Services for any purpose that is prohibited by these Terms or unlawful. You may not use the Digital Services in any manner which could damage, disable, overburden, or impair the Digital Services or interfere with any other party's use or enjoyment of the Digital Services. You may not obtain or attempt to obtain any materials not intentionally made available or provided on the Digital Services. You may not interfere with the Digital Services or try to access them using a method other than the interface and instructions that we provided.
Using the Digital Services does not give you ownership of any intellectual property rights in the Digital Services or the content you access. You may not use content from the Digital Services unless you obtain permission from its owner or are otherwise permitted by law. These Terms do not grant you the right to use any branding or logos used in the Digital Services. Don't remove, obscure, or alter any legal notices displayed in or along with the Digital Services.
Additionally, the Digital Services may make sales and marketing material templates available to you for your use- if you utilize any such materials, at all times, you must comply with all existing laws and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) when planning to send marketing or other commercial emails. You may not market any of the Digital Services to children under the age of 13. You must refrain from making any false or misleading express or implied claims; ensure the "net impression" of any advertisement is truthful; have evidence (a "reasonable basis") to back up all claims made in any advertisements before making the claims.
The Digital Services display some content that is not posted or displayed by PhotoDay. We may review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display content that we reasonably believe violates our policies or the law. But that does not necessarily mean that we review content or that we have any responsibility to review content, so please do not assume that we do, or rely on the accuracy of content posted on the Digital Services.
In connection with your use of the Digital Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications by contacting us at support@PhotoDay.io.
YOUR PHOTODAY ACCOUNT
You may need a PhotoDay Account in order to use some of our Services. You may create your own PhotoDay Account, or your PhotoDay Account may be assigned to you by an administrator, such as a Photo Lab or a PhotoDay team member. If you are using a PhotoDay Account assigned to you by an administrator, different or additional terms may apply and your administrator may be able to access or disable your account.
If you learn of any unauthorized use of your PhotoDay Account, contact support@PhotoDay.io immediately.
LINKS TO THIRD PARTY WEBSITES
The Digital Services may contain links to other Digital Services ("Linked Sites"). The Linked Sites are not under the control of PhotoDay and PhotoDay is not responsible for the contents of any Linked Site, including without limitation to any link contained in a Linked Site, or any changes or updates to a Linked Site. PhotoDay is not responsible for webcasting or any other form of transmission received from any Linked Site. PhotoDay provides Linked Sites only as a convenience, and the inclusion of any link does not imply endorsement by PhotoDay of the Linked Sites or any association with its operators.
Your submission of contact information, no matter the type, to the Digital Services constitutes acceptance to receive certain PhotoDay communications. PhotoDay may contact you via surveys to conduct research or to solicit your opinion on current services or new services that may be offered. PhotoDay may, from time to time, contact you on behalf of external business partners about an offering that may be of interest to you. You may opt-out of these communications at any time using the means provided in the communication, as well as by contacting support@PhotoDay.io.
USE OF COMMUNICATION SERVICES
The Digital Services may contain discussion boards, chat areas, news groups, forums, communities, web pages, calendars, or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, "Communication Services"). The Communication Services are considered part of the Digital Services. You agree to use the Communication Services only to post, send, and receive messages and material that are proper and related to the Communication Services.
The Communication Services cannot be used to conduct commercial activities, including, but not limited to, transactions, advertising, fundraising, contests, or other promotions, absent our prior written consent. PhotoDay has no obligation to monitor the Communication Services. However, PhotoDay reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion.
PhotoDay may, for any reason whatsoever, terminate your access to any or all the Communication Services (as well as the Digital Services) at any time without notice.
PhotoDay always reserves the right to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in PhotoDay's sole discretion.
PhotoDay does not control or endorse the content, messages, or information found in any Communication Service and, therefore, PhotoDay specifically disclaims any liability regarding the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized PhotoDay spokespersons, and their views do not necessarily reflect those of PhotoDay.
MATERIALS PROVIDED TO PHOTODAY
Some of the Digital Services allow you to upload, submit, store, sell, send, or receive content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours, with the below-defined license going to PhotoDay. You further agree, represent, and warrant that you have obtained the necessary permissions associated with the upload of any content to PhotoDay, and that PhotoDay relies on you to ensure you have the permissions necessary to upload any content via the Digital Services. When you upload, submit, store, sell, send, or receive content to or through the Digital Services, you give PhotoDay (and those we work with) a worldwide irrevocable and perpetual license to use, host, store, reproduce, print, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display, and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving the Digital Services, and to develop new ones. This license continues even if you stop using the Digital Services. Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services.
WEBSITE REVISIONS & ACCURACY
PhotoDay and its service provider may from time to time, revise the Digital Services and reserve the right to do so without recourse from you or any other user. You also agree that the Digital Services may contain inaccurate content–including potentially inaccurate pricing information associated with clerical or scriveners' errors–and PhotoDay reserves the right to change or alter all content, including but not limited to pricing, present on the Digital Services.
THE DIGITAL SERVICES AND ALL SERVICES, INFORMATION, GOODS, AND MATERIALS MADE AVAILABLE THROUGH THE DIGITAL SERVICES ARE PROVIDED TO YOU "AS IS" WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND WE DISCLAIM ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS, AND CONDITIONS WITH RESPECT TO THE DIGITAL SERVICES AND ALL SERVICES, INFORMATION, GOODS, AND MATERIALS MADE AVAILABLE THROUGH THE DIGITAL SERVICES, INCLUDING THE REPRESENTATIONS AND WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE.
WE MAKE NO REPRESENTATION OR WARRANTY THAT THE DIGITAL SERVICES (OR ANY PART THEREOF) WILL BE AVAILABLE, UNINTERRUPTED, RELIABLE, ACCURATE, COMPLETE, OR ERROR-FREE, NOR THAT ANY PARTICULAR SOFTWARE OR HARDWARE, WILL BE COMPATIBLE WITH THE DIGITAL SERVICES, AND YOU HEREBY AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO (A) OBTAIN AND PAY FOR ANY SOFTWARE, HARDWARE AND SERVICES (INCLUDING INTERNET CONNECTIVITY) NEEDED TO ACCESS AND USE THE DIGITAL SERVICES AND (B) ENSURE THAT ANY SOFTWARE, HARDWARE, AND SERVICES THAT YOU USE WILL FUNCTION CORRECTLY WITH THE DIGITAL SERVICES. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU SOLELY BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE DIGITAL SERVICES, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SITE.
WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH THE DIGITAL SERVICES, NOR FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE DIGITAL SERVICES, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. FURTHER, WE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF THE DIGITAL SERVICES OR FROM ANY INFORMATION OR MATERIALS ON THE SITE. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE DIGITAL SERVICES IS TO STOP USING THE SITE. OUR MAXIMUM LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO US TO ACCESS AND USE THE DIGITAL SERVICES.
IT IS POSSIBLE THAT APPLICABLE LAW MAY NOT ALLOW FOR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES OR EXCLUSIONS OR LIMITATIONS OF CERTAIN DAMAGES; SOLELY TO THE EXTENT THAT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. IF APPLICABLE LAW PROHIBITS THE LIMITATION OR EXCLUSION OF A PARTY'S LIABILITY WITH RESPECT TO DEATH OR PERSONAL INJURY CAUSED BY SUCH PARTY'S NEGLIGENCE, FRAUD, OR ANY OTHER MATTER, THEN SUCH PARTY'S LIABILITY WILL NOT BE LIMITED OR EXCLUDED TO THE EXTENT OF SUCH PROHIBITION UNDER SUCH APPLICABLE LAW.
Except to the extent prohibited under applicable law, you agree to defend, indemnify, and hold PhotoDay harmless from and against all claims, losses, costs, and expenses (including attorneys' fees) arising out of your use of, or activities in connection with, the Digital Services or your violation of the Terms. PhotoDay reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify PhotoDay or any other indemnitee hereunder and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of PhotoDay. PhotoDay will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
In connection with the foregoing, if you are a California resident or resident of a state with a similar applicable law, you hereby expressly waive California Civil Code section 1542 (or such other similar applicable law in Your state), which states: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."
In its sole discretion, PhotoDay may, for any reason whatsoever, reject and terminate your use of the Digital Services at any time without notice.
DISPUTES WITH PHOTODAY
You and PhotoDay agree that any claim or dispute at law or equity that has arisen or may arise between us will be resolved in accordance with the provisions set forth in this Section. Please read this Section carefully. It affects your rights and will impact how claims you and PhotoDay have against each other are resolved.
If a dispute arises between you and PhotoDay, we want to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. Please contact us regarding disputes between you and PhotoDay related to the Digital Services, including, without limitation, its products and services.
You and PhotoDay each agree that any and all disputes or claims that have arisen or may arise between you and PhotoDay, EXCEPT FOR A DISPUTE RELATING TO THE ENFORCEMENT OR VALIDITY OF YOUR, PHOTODAY'S, OR EITHER OF OUR LICENSORS' INTELLECTUAL PROPERTY RIGHTS, shall be resolved exclusively through confidential, final and binding arbitration. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
YOU AND PHOTODAY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND PHOTODAY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER PHOTODAY DIGITAL SERVICES USERS.
The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA's website at http://www.adr.org.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or PhotoDay may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and PhotoDay subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and PhotoDay, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Florida, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator's award shall be confidential, final, and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules.
CLAIMS AND DISPUTES MUST BE FILED IN ONE YEAR
To the extent permitted by law, and without limiting the effect of any disclaimer contained herein, any cause of action or claim you may have with respect to your use of the Digital Services, including, without limitation, any Digital Services related product, services, or other content must be commenced within one (1) year after the claim or cause of action arises. This section applies to you and your heirs, successors, and assigns.
ENTIRE AGREEMENT & ASSIGNMENT
Unless otherwise indicated, all of the content on the Digital Services including product images, trademarks, illustrations, designs, icons, photographs, artwork, images, and any video and audio materials are copyrights, trademarks, and other intellectual property owned or controlled by PhotoDay and its affiliates, or duly licensed by PhotoDay. You may not copy, reproduce, publish transmit, or otherwise use any copyrighted or trademarked materials present on the Digital Services without express written authorization to do so. You agree not to alter, delete, obscure, or change any proprietary rights affiliated with the Digital Services. PhotoDay shall retain all rights in and to its copyrights, trademarks, trade names, brand names, and trade dress depicted on the Digital Services.