eXaPhoto' Terms of Service

 

 

GENERAL TERMS

 

Please read and agree to the following Terms of Service (TOS) before using the eXaPhoto’ Service.  You should use the Service only after you have read, understand, and agree to this TOS. By using the Service, you acknowledge that you have read this TOS, understood it, and agreed to be bound by it.

 

1.   INTRODUCTORY REMARKS

1.1 This TOS constitutes an agreement between you and Company determining the use of the Service (the "Agreement").

1.2 This TOS shall form an integral part your use of the Service as well as the Service itself.

 

2.   DEFINITIONS

2.1 eXaPhoto, Inc. ("Company") is a Company with its registered office in Portland, Oregon.

2.3 eXaPhoto, Inc. is hereby known as Company.

2.4 eXaPhoto, Inc.’s Service and associated web sites is herby known as the Service.

2.5 Photofinishing labs (“Labs”) that have licensed eXaPhoto, Inc.’s Service and Services to provide prints and other digital image products on behalf of you are hereby known as Labs.

 

3.   COMPANY'S SERVICE

3.1 Company has the knowledge, the experience and the Service to share your digital images, through a simple and automatic application over the Internet or other networks, to anyone you choose. 

3.2. Either you or someone you have shared with can order prints to a Lab that will process your digital images.

3.2 Company will improve and update its Service from time to time. We may update the Service free of charge while the term of your account is in good standing, otherwise the COMPANY may charge a nominal fee to provide these updates, or because of technical difficulties in supporting older Service, your account might be disabled.

3.3 Company attempts - without any obligation to do so - to keep a reduced quality versions (i.e. thumbnails) of your digital images on its server as long as you have used the Service at least once in a 30-day period. 

3.4 The company is not archiving or preserving a copy of the full quality image on our servers.  The company is not responsible for the loss of such an original.  It is your sole responsibility to archive your own images.

 

4.   LICENSE

4.1 Company agrees to grant you a revocable, non-exclusive license to use our Service enabling you to view, share, and order your digital images while your account is in good standing. 

4.2 This Service is owned by Company and is protected by copyright laws and international treaty provisions. No title to intellectual property is being transferred.  You may not modify, reverse engineer, decompile or disassemble the Service.

4.3 You understand and agree to become a registered customer of Company while using our Service.

4.4 You understand that the Company can restrict or limit access to the Service at anytime.

4.5 This Service is not necessarily free, but may be provided free of charge while your account is in good standing.

4.6 The terms of this agreement can be altered at any time without notification.

 

5. PRIVACY STATEMENT

5.1 The Company collects information about you and your account, for example your email address is used as your account name and to let others you share with know who is sharing images with them.  We also collect information about which IP address you are using, the number of images, albums, and how you use the SOFTWARE.  This type of information is used for internal purposes to improve our SOFTWARE.

5.2 The Company may also collect personally identifiable information about you when you order from a Lab so that the Lab can process your order.

5.3 The Company does not rent, sell, or share personal information about you with other people or nonaffiliated companies except to provide products or services you've requested.

5.4 The Company may disclose information about you in the case that the Company must respond to subpoenas, court orders, or legal process, or to establish or exercise our legal rights or defend against legal claims; Or the Company believes it is necessary to share information in order to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, violations of this agreement, or as otherwise required by law.

5.5 The Company may use your account information to let you know about special offers, product enhancements or other offers.

5.6 The Company may update this policy. We will notify you about significant changes in the way we treat personal information by sending a notice to your email address or by placing a prominent notice on our site.

 

6.   LICENSEE'S OBLIGATIONS

6.1 You agree that you shall use the Service exclusively to view, share, and order your digital images to the Labs listed in the "Order Prints" selection of Service’s associated web site.

6.2 You agree to follow the recommendations and guidelines listed in our Frequently Asked Questions (FAQ) page at www.eXaPhoto.com.

6.3 You hereby confirm that you have good title and are authorized to transfer and print the images that you transmit and to use such images. You agree that you shall indemnify Company, and/or the Labs printing the images against any and all claims arising out of or in connection with the printing and the transfer of the images.

6.4 You understand that the Service uses propriety transfer mechanisms to transfer images to labs and if the Service is not able to complete that transfer for any reason your print order may be incomplete or otherwise fail to complete. 

6.5 You agree not to use the Service for any purposes contrary to applicable laws and public order.

 

7.   CONTENT

7.1 You agree that you shall be fully and solely liable for the content of the data transmitted using the Service. You agree not to use the Service for transmitting images of a pornographic nature, or which contain nudity or sexually explicit content, or images which are otherwise against public order.  You agree to hold Company harmless from and against any claims related therewith and to indemnify Company for any and all damage caused by not complying with this obligation.

7.2 You agree to not use the Service to:

  1. upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
  2. harm minors in any way;
  3. impersonate any person or entity, including, but not limited to, an Company  official, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  4. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
  5. upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
  6. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation.
  7. upload, post, email, transmit or otherwise make available any material that contains Service viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer Service or hardware or telecommunications equipment;
  8. interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
  9. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
  10. "stalk" or otherwise harass another; or collect or store personal data about other users.

 

8.   WARRANTIES AND LIABILITIES

8.1 Company shall make reasonable efforts to ensure that your digital images are transmitted through the Service to the Labs of your choice, or any designated Lab, and that you get a warning signal when you intend to transmit images of either poor quality, or when you are uploading is not completed. However, Company cannot guarantee in any way the performance of your order and shall not be liable for the outcome of your final pictures.

8.2 The Service is provided "as is". Neither the Lab nor Company warrants that the Service shall meet all of your requirements or that its operation shall be uninterrupted or error-free. You should therefore carry out appropriate testing of the Service before using it. Should the Service prove defective, we shall attempt to correct it but Company does not assume any liability for your costs incurred. Correction of the Service shall be your sole remedy and Company's entire liability. In no event shall Company be liable to you for any damages, including any lost profits, lost earnings or indirect damages such as lost or destroyed data, disruption of planning, claims of third parties, or other special, incidental or consequential damages whatsoever arising out of the use of or inability to use the Service or for any other claim by you or by any other party even if an authorized distributor has been advised of the possibility of such damages in any of the foregoing cases.

8.3 Company cannot warrant the access to and the uninterrupted and/or error-free functioning of the Internet. The Internet is an open network and Company makes reasonable efforts to protect your privacy. However, Company cannot guarantee the confidentiality of your digital images and that your digital images are kept confidential when being transmitted or those third parties have no access to them and to the information (including but not limited to your credit card numbers) contained in your order.

8.4  To the maximum extent permitted by law, Company shall not be liable for any damage (including but not limited to direct or consequential damages) incurred by you or any other person or entity or for the alternation, confusion, loss, destruction, theft, or any other form of misuse of the digital images provided by you. The liability of Company shall be limited to the price payable by you for the pictures that give rise to the claim.

8.5 The warranties set out above constitute the only warranties of Company with respect to the performance of the Service. They are in lieu of all other warranties, written or oral, statutory, expressed or implied, including, without limitation, the warranty of merchantability or fitness for a particular purpose. Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.

 

9.   MISCELLANEOUS

9.1 This Agreement shall be entered into for an indefinite term and can be terminated by either party at any time by informing the other party in writing, including by posting a message on the Internet. Upon termination of this Agreement, you shall immediately erase the Service from any carrier on which it is stored or destroy such carrier.

9.2 Company has the right to update these General Terms & Conditions at any time. You agree that you shall be bound to such new General Terms & Conditions from the point in time when you receive notice of such change.

10. YOUR ACCOUNT, PASSWORD AND SECURITY

10.1 Your email address is your user account designation.  It is your responsibility to assign yourself a password.  You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to immediately notify Company of any unauthorized use of your password or account or any other breach of security.  Company cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.

11. MODIFICATIONS TO SERVICE

The Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service  (or any part thereof) with or without notice. You agree that the Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service

12. INDEMNITY

You agree to indemnify and hold Company, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of the Agreement, or your violation of any rights of another.

13. NO RESALE OF SERVICE

You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service (including your account), use of the Service, or access to the Service.

14.  JURISDICTION AND APPLICABLE LAW

14.1 Any and all disputes arising out of or in connection with Service and your order(s) and the transfer of your digital images (the "Dispute") shall be submitted to confidential arbitration in Oregon, except that, to the extent you have in any manner violated or threatened to violate Company's intellectual property rights, Company may seek injunctive or other appropriate relief in any court in the United States, and you consent to exclusive jurisdiction and venue in such courts.  Arbitration under these General Terms and Conditions shall be conducted under the rules then prevailing of the State of Oregon.  The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.

14.2 These General Terms & Conditions shall be subject to Oregon law.