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FotoFlexer Terms of Service

Welcome to FotoFlexer! We hope you enjoy your visit, and find that using our service is productive, easy and fun.

The FotoFlexer service and network (collectively, "FotoFlexer" or "the Service") are operated by Arbor Labs, Inc. and its corporate affiliates (collectively, "us", "we" or "the Company"). Before you begin setting up your account with FotoFlexer, please read the following Terms of Use ("Terms") carefully. By accessing or using the Service and/or our Web site, available at http://www.fotoflexer.com ("the Site"), you (the "User") signify that you have read, understand, have the legal capacity to, and hereby agree to be legally bound by these Terms of Use ("Terms of Use" or "Agreement"), whether or not you are a registered member of FotoFlexer. We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without further notice. If we do this, we will post the changes to these Terms of Use on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Service or the Site after any such changes constitutes your acceptance of the new Terms of Use. If you do not agree to abide by these or any future Terms of Use, do not use or access (or continue to use or access) the Service or the Site. It is your responsibility to regularly check the Site to determine if there have been changes to these Terms of Use and to review such changes.

1. Your submissions

You may submit certain material to FotoFlexer, including without limitation, photographic images, as part of your use of the Service ("Submissions").

Under these Terms, you agree that you will NOT post, place or transmit any of the following material or obtain any such material using the Service:

Your physical or electronic sharing of your images constitutes permission for reprinting by the recipient. In addition, by sharing your images, you grant other Users of FotoFlexer an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly display, reformat, excerpt (in whole or in part) and distribute your images for any purpose on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such images, and to grant and authorize sublicenses of the foregoing. This license will not expire upon your removal of the content from the Site or Service. FotoFlexer will not be liable for the content of any Submission and expressly disclaims all liability relating thereto.

While FotoFlexer is not responsible for, and does not review or comment on the content of Submissions provided by FotoFlexer users, FotoFlexer reserves the right in its discretion to (i) delete, move or edit Submissions that it, in its sole discretion, deems abusive, defamatory, obscene, inappropriate, or in violation of copyright or trademark laws, or otherwise unacceptable, or (ii) take any other action that FotoFlexer deems necessary relating to use or misuse of the Service. FotoFlexer may request confirmation of the copyright or trademark ownership from the submitter. If FotoFlexer does not receive any such confirmation or if there are continued claims of copyright or trademark infringement relating to certain Submissions, FotoFlexer reserves the right to (i) suspend the shipping of an order relating to the Submission in question, and/or (ii) share the submitter's account information with governmental organizations, law enforcement authorities or other third parties. If you, as a submitter, dispute any copyright or trademark infringement claims, we will share with you the contact information of any party claiming any such infringement. In the event of any such dispute, FotoFlexer reserves the right to suspend the display, viewing or sharing of any Submissions until the issue has been resolved. You hereby grant to FotoFlexer a non-exclusive, royalty-free license to use, publish, copy, modify, transmit, display and distribute your Submissions for the sole purpose of delivering the Service. In addition, you warrant that all moral rights in any Submissions and uploaded materials have been waived and do hereby waiver any such moral rights.

We recommend you keep back-up copies of your Submissions on your hard drive or other personal system. The Service is not intended as a guaranteed back-up solution.

Copyright Notice

FotoFlexer is committed to protecting photographers' copyrights and expects users of the Service to do the same. Each image submitter is required by US law to own the right to, or to obtain permission to, use any image before the image is uploaded or printed at FotoFlexer. At FotoFlexer's discretion and in appropriate circumstances, FotoFlexer may terminate the accounts of users or prevent access to the Service by users who infringe the intellectual property rights of others. If you believe that any material on the Site infringes upon any copyright which you own or control, you may send a written notification of such infringement to our Designated Agent as set forth below:

Name of Agent Designated to Receive Notification of Claimed Infringement: Jeremy Schiff
Full Address of Designated Agent to Which Notification Should be Sent: 1 Market Street, Spear Tower, 36th Floor, San Francisco, CA 94105
Telephone Number of Designated Agent: (650)-804-2130
Facsimile Number of Designated Agent: (415)-358-8151
E-Mail Address of Designated Agent: copyright@fotoflexer.com

To meet the notice requirements under the Digital Millennium Copyright Act, the notification must be a written communication that includes the following:

Repeat Infringer Policy

In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances and at Company's sole discretion, members who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Site and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

2. Age requirements

You must be at least 13 years of age to use our Service. Any registration by, use of or access to the Site by anyone under 13 is unauthorized, unlicensed and in violation of these Terms of Use. By using the Service or the Site, you represent and warrant that you are 13 or older and that you agree to and to abide by all of the terms and conditions of this Agreement. The Company may terminate your membership, delete your profile and any content or information that you have posted on the Site and/or prohibit you from using or accessing the Service or the Site (or any portion, aspect or feature of the Service or the Site) for any reason, at any time in its sole discretion, with or without notice, including without limitation if it believes that you are under 13. If you, your parent or guardian, have any concerns please feel free to contact us.

3. About your account

3a. Access to your account
You can allow other people to view selected images in your account through FotoFlexer's online share feature. The people you invite to view your images through online share will be able to see the images you have selected for them and will not have access to your entire account.

Linking directly to images on FotoFlexer's servers from external sites is expressly prohibited.

We need to be able to access your account for the following reasons:

3b. Account fee
There is no fee to open a FotoFlexer account.

4. Web addresses (URLs)

As part of FotoFlexer's sharing service, FotoFlexer may provide users with access to and use of pages on the FotoFlexer site and the corresponding online web addresses (URLs) that, in some cases, may be chosen by the user. FotoFlexer does not guarantee the availability of a particular web address. FotoFlexer also reserves the right, at any time and for any reason, to reclaim, suspend, terminate and/or transfer any web page or address provided by FotoFlexer to a user as it deems necessary in its sole discretion and, at FotoFlexer's option, to provide users with an alternative web page and address.

5. Canceling the service

If you violate any of these Terms, your permission to use the Service will terminate automatically. FotoFlexer reserves the right to cancel the Service or to discontinue accounts that have been inactive. We may do so at our discretion after sending an email warning to the address you used when you set up your account and waiting for a reasonable period for your response.

6. Third-party software

We may make third party software available to you from time to time. To access such third party software, you must first agree to the third party software provider's terms and conditions governing use of such software which agreement will be between you and the third party software provider. FotoFlexer is not a party to any such arrangement between you and a third party software provider and disclaims any liability, and provides no warranties relating to such software.

This means that we do not guarantee that any third party software you access will be free of any contaminating or destructive code, such as viruses, worms or Trojan horses. You acknowledge sole responsibility for and assume all risk arising from your download and use of any such software.

7. Third-party links

We may provide links to third-party sites that might be of interest to you, however, we have no control over the content or availability of the contents of these sites. You acknowledge and agree that FotoFlexer is not responsible or liable for the availability or accuracy of such sites or the content, products or services on or available from such sites. Links to third-party sites do not imply any endorsement by FotoFlexer of such sites or the content, products or services available from such sites. It is your responsibility to become familiar with each site's privacy and other policies and terms of service, and to contact that site's Webmaster or site administrator with any concerns. You acknowledge sole responsibility for and assume all risk arising from your use of any such sites.

8. Copyrighted material and software

All of the information, content, and materials we offer are protected by copyright and other applicable laws of both the United States and foreign countries. You may not copy or distribute such material without the copyright owner's prior written consent. You may use these materials for personal, non-commercial use only, subject to the restrictions set forth in these Terms, so long as you do not modify the materials or remove any copyright or other proprietary rights notices contained in the materials.

All right, title and interest in and to the FotoFlexer site and Service is and will remain the exclusive property of FotoFlexer and its licensors. The site and Service are protected by copyright, trademark and other laws of both the United States and foreign countries. You may not copy or modify the HTML code used to generate web pages on the site. You may not use the site or Service on, or in connection with, any other website, for any purpose.

9. Privacy policy

When you create an account with FotoFlexer, you need to provide some personal information, such as your email address. We protect and use this information as set forth in our Privacy Policy.

10. U.S. Government Restricted Rights

All materials, information, software and other products supplied by or through the Service are provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in these Terms and as provided in FAR 12.212(a) (1995), FAR 52.227-19, FAR 52.227-14 (ALT III), DFARS 227.7202-1(a) and 227.7202-3(a) (1995) and DFARS 252.227-7013(c)(1)(ii) (OCT 1988) et seq. or their successors. Use of any of such by the Government constitutes acknowledgment of our or our suppliers' proprietary rights in them. In the event that the Terms, or any part thereof, are deemed inconsistent with the minimum rights identified in the Restricted Right provisions, the minimum rights shall prevail.

11. Indemnification

You agree to indemnify, defend and hold us, our officers, directors, employees, agents, licensors, suppliers and any third-party information providers to the Service harmless from and against all claims, liabilities, losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from (i) any violation of these Terms, or any activity related to access to or use of your account (including negligent or wrongful conduct) by you or any other person accessing the Service using your account and/or (ii) a claim that a Submission infringes third party intellectual property rights.

12. Claims

Any action hereunder must be brought, if at all, within one (1) year from the accrual of the cause of action. The parties agree that these Terms and any claims hereunder shall be governed by and subject to the state and federal laws of the state of California, without regard to its conflict of law provisions, and hereby consent to jurisdiction and venue in the courts of the Northern District of California located in San Francisco, California.

13. Export

You are responsible for compliance with all local laws, and you are required to comply with U.S. export laws and regulations when you use or export any software or materials provided through the Service.

14. Disclaimer of warranties

THE SERVICE, CONTENT AND/OR MATERIALS AVAILABLE THROUGH PHOTOFLEXER'S SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PHOTOFLEXER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PHOTOFLEXER MAKES NO WARRANTY THAT ITS SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT THIS SITE OR ITS SERVER IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PHOTOFLEXER MAKES NO WARRANTY REGARDING ANY SOFTWARE, GOODS, SERVICES, SPECIAL OFFERS, OR THE DELIVERY, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS OR RELIABILITY OF ANY SOFTWARE, GOODS OR SERVICES, PURCHASED, ACCESSED OR OBTAINED THROUGH PHOTOFLEXER'S SITE OR ADVERTISED THROUGH PHOTOFLEXER'S SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PHOTOFLEXER OR THROUGH THE SITE OR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

15. Limitation of liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL PHOTOFLEXER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF PHOTOFLEXER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT RESULT FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, PHOTOFLEXER'S SITE OR SERVICES, FROM ANY CHANGES TO THIS SITE OR ITS SERVICES, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SUBMISSIONS OR DATA, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT PHOTOFLEXER IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, PHOTOFLEXER WITH HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THROUGH THE SERVICE. YOU AGREE THAT THE AGGREGATE LIABILITY OF PHOTOFLEXER TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SITE OR SERVICE IS LIMITED TO $100. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT PHOTOFLEXER HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

16.Customer Policy for Idea Submission

Many of our customers are interested in submitting ideas for products and services to be used at FotoFlexer, either independent of, or in conjunction with, our internally developed concepts. We appreciate our customers' interest in improving our service; however, please note our policy on external idea submission:

If you intend to own the intellectual property rights of your ideas in any way (patent, trade secrets, copyright, trademark, etc.) please do not submit your concepts or prototype samples to FotoFlexer, Inc. or its employees.

Instead:

Send a message to ideasubmission@FotoFlexer.com and describe ONLY the general application.

If we think there is opportunity to pursue your idea further, we will contact you. Please note that a legal agreement may be required by FotoFlexer in order to evaluate your concept(s).

17. Miscellaneous

We may assign our rights and responsibilities hereunder without notice to you.

If any part of this Agreement is held to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision most closely matching the intent of the original provision and the remainder of the Terms will continue in effect.

These Terms constitute the entire agreement between you and us with respect to this Service, and supersede all other communications, written or oral, with regard to the Service. The failure of FotoFlexer to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.