Last Revised: January 18, 2012
Photoccino Ltd. and its affiliates (“Company” or “we”) welcome you (“User” or “you”) to our proprietary online platform featuring various tools for, inter alia, hosting, sorting and storing content such as images, and creating digital photo products such as photo albums, photobooks, videos and others using your content (the “Service”) available at the Internet address [http://photoccino.com] (the “Site”). Each User who meets the criteria set forth in Section 1.5 below is invited to enjoy the Site and the Service in accordance with the terms and conditions hereunder.
1. Acceptance of the Terms
1.2. The Terms may be revised and updated from time to time, with or without any notice. The Company shall make reasonable efforts to post a prominent notice in case the Terms change substantially. The Company urges you to check the “Last Revised” date which appears at the top of the Terms. You can review the most current version of the Terms at any time at: [www.photoccino.com\terms].
1.3. In order to use the Services and the Site, you must first agree to the Terms. IF YOU DO NOT AGREE TO THE TERMS, DO NOT CONNECT TO, ACCESS OR USE THE SITE OR THE SERVICE.
1.4. You can accept the Terms by:
(a) clicking ‘I agree’ upon signing upon for an account on the Site; or
(b) by way of using the Services or the Site. In this case, you understand and agree that the Company will treat your use of the Services or the Site as your acceptance of the Terms from that point onwards.
1.5. You may not use the Site or the Services if you are not of legal age to form a binding contract with the Company.
1.6. We recommend that you print and keep a copy of the Terms for your records.
2.1. You agree and understand that you are responsible for maintaining the confidentiality of any passwords associated with any account you use to access the Services. If you become aware of any unauthorized use of your account, you agree to immediately notify the Company of such at [email@example.com]
3. Use Restrictions
There are certain conducts which are strictly prohibited on the Site and the Service. Please read the following restrictions carefully. Your failure to comply with any of the provisions set forth herein may result in the termination of your access to the Site or the Service and may also expose you to civil and/or criminal liability.
You may not, whether by yourself or through anyone on your behalf:
· Use the Site and the Service for any illegal, unlawful or unauthorized purposes;
· Use the Site and the Service for sending or transmitting any form of spam, unsolicited mail or a similar conduct;
· Access (or attempt to access) the Service through any means other than through the interface that is provided by the Company on the Site. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers);
· Interfere with or violate Users' rights to privacy and other rights, or harvest or collect data and information about Users without their express consent, whether manually or with the use of any robot, spider, crawler, any search or retrieval application, or use any other automatic device, process or method to access the Site or the Service and retrieve, index and/or data-mine information;
· Interfere with or disrupt the operation of the Site, the Service or the servers or networks that host the Site and the Service, or disobey any laws or regulations or requirements, procedures, policies, or regulations of such servers or networks;
· Impersonate any person or entity or provide false information on the Site or through the Service, whether directly or indirectly;
· Falsely state or otherwise misrepresent your affiliation with any person or entity, or expressly state or imply that the Company or any third party endorses you, your website, your business or any statement you make, or present false or inaccurate information about the Site or the Service;
· Transmit, distribute, display or otherwise make available through or in connection with the Site or the Service any content, including User Generated Content, which may infringe third party rights, including Intellectual Property rights and privacy rights, or which may contain any unlawful content;
· Optional - [Transmit, distribute, display or otherwise make available through or in connection with the Site or the Service any content, including User Generated Content, which is patently offensive or promotes racism, bigotry, hatred or physical harm of any kind against any person or group, harasses or advocates harassment of another person, or exploits people in a sexual or violent manner including child pornography].
· Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our platform infrastructure or that may otherwise adversely affect the User’s experience in connection with the Site or the Service;
· Bypass any measures we may use to prevent or restrict access to the Site or the Service;
· Copy, modify, alter, adapt, make available, translate, port, reverse engineer, decompile, or disassemble any portion of the Site or the Service in any way;
· Create a browser, frame, border environment or GUI around the Site; or
· Reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
You agree that you are solely responsible for, and that the Company has no responsibility to you, or to any third party, for any breach of your obligations under the Terms and for the consequences (including without limitation any loss or damage which the Company may suffer) of any such breach.
4. Intellectual Property Rights
4.1. The Site, the Service and the Intellectual Property rights pertaining thereto or subsisting therein (other than User Generated Content), including, but not limited to, inventions, patents and patent applications, trademarks, trade names, copyrightable materials, graphics, text, trade dress, designs (including the "look and feel" of the Site), specifications, methods, procedures, algorithms, data, technical data, interactive features, source and object code, files, interface, GUI and trade secrets, whether or not registered (collectively, "Intellectual Property"), are owned and/or licensed to the Company and subject to copyright and other applicable intellectual property rights under Israeli law, US law, foreign laws and international conventions.
4.2. Nothing in the Terms gives you any right to use any of Company’s trademarks, trade names, trade dress, design, service marks, logos, domain names, and other distinctive brand features of the Site.
4.3. Other than the limited license set forth in Section 5.8 below, we acknowledge and agrees that we obtain no right, title or interest from you under these Terms in or to any User Generated Content you may submit, post, transmit or display on, or through, the Services, including any Intellectual Property rights which subsist in such User Generated Content. You agree that you are responsible for protecting and enforcing the foregoing rights in your User Generated Content and we have no obligation to do so on your behalf.
5. User Generated Content and License
5.1. The Service allows you to upload, post, publish and make available through it, your own copyrightable materials such as written text, music, audio files, or other sounds], photographs, [videos] or other images (the “User Generated Content”).
5.2. You represent and warrant that you own all copyrights in the User Generated Content, and that you have the right to upload such User Generated Content on the Site. You further represent and warrant that the User Generated Content does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or human rights of any third party.
5.3. As long as your User Generated Content is subject to the applicable copyright law, such User Generated Content shall remain at all times, and to the extent permitted by law, your sole and exclusive property.
5.4. You understand and agree that you are solely responsible for your User Generated Content and the consequences of posting or publishing such material in any way (including any loss or damage the Company may suffer).
5.5. You agree that you will not post or upload any User Generated Content containing content which is unlawful for you to possess, post or upload in the country in which you are resident, or which it would be unlawful for the Company to use or possess in connection with the Site or the Service.
5.6. The Company reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any and all User Generated Content from any Services. Company explicitly reserves the right to remove any User Generated Content for any reason, without a prior notice, at its sole discretion.
5.7. You are encouraged to create a backup your User Generated Content. Company is not responsible if any of your User Generated Content is deleted, or if any modification, suspension or discontinuation of the Site or Services causes you to lose any User Generated Content.
5.8. When you upload, post, publish or make available User Generated Content on the Site or through the Service, you grant to the Company an irrevocable, perpetual, non-exclusive, royalty-free, transferable, assignable, sub-licensable and worldwide license, to use, reproduce, distribute, transmit, prepare derivative works of, display, make available to the public and perform that User Generated Content in connection with the Site or the Service, whether through the Internet, any mobile device or otherwise, in any media formats and through any media channels known today and developed in the future.
6. User Representations and Undertakings
6.1. As a condition for your use of the Site, you hereby represent and warrant that:
· You possess the legal authority to enter into these Terms and to form a binding agreement under any applicable law, to use the Site in accordance with these Terms, and to fully perform your obligations hereunder;
· The execution of the Terms does not and will not violate any other agreement to which you are bound or any law, rule, regulation, order or judgment to which you are subject;
· You will not infringe or violate any of the Terms; and
· Any information you may be required to provide about yourself in order to access the Services will be accurate, correct, and updated.
6.2. You acknowledge and agree that:
· Company may remove any User Generated Content, and/or disable access to your account, and/or discontinue your use or the general use of the Site or the Service at any time, in its sole discretion, with or without any reason;
· While the Company may not yet have fixed a limit on the amount of storage space, processing capacity or other resources you may utilize through the Services, the Company may set such a limit at any time, at its discretion;
· The Company may integrate commercials and advertisements, whether within or beside the Site or the Service. All the information contained in such commercials and advertisements belongs solely to the advertisers and the Company makes no warranties or representations as to such advertisements, whether or not the Company has control over such advertisements. The Company, advertisers and/or third-parties related thereto may be entitled to certain shares of the earnings for such commercials. You agree, acknowledge and consent that you will not be entitled to any compensation of any kind whatsoever with respect to such monetary amounts.
7. Trademarks and Trade Names
“Photoccino”, Company's box logo and all other proprietary identifiers used by the Company in connection with the Site and the Service (“Company Trademarks”) are all trademarks and/or trade names of the Company, whether or not registered. All other trademarks, service marks, trade names and logos which may appear on the Site belong to their respective owners (“Third Party Marks”). No right, license, or interest to the Company Trademarks and the Third Party Marks is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to the Company Trademarks or the Third Party Marks.
8. Links to Third Party Sites
9. Disclaimer and Warranties
9.1. THE SITE AND THE SERVICE, INCLUDING WITHOUT LIMITATION ANY CONTENT, DATA AND INFORMATION RELATED THERETO, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9.2. THE COMPANY DOES NOT WARRANT THAT THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT IT WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVIES WILL BE CORRECTED. THE COMPANY MAY CORRECT, MODIFY, AMEND, ENHANCE, IMPROVE AND MAKE ANY OTHER CHANGES TO THE SITE AND/OR THE SERVICE AT ANY TIME OR TO DISCONTINUE DISPLAYING OR PROVIDING ANY INFORMATION, CONTENT OR FEATURES WITHOUT A NOTICE TO YOU.
9.3. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE USE OF THE SITE OR THE SERVICE, INCLUDING BUT NOT LIMITED TO THE AVAILABILITY, RELIABILITY, OR QUALITY OF THE SITE OR THE SERVICE, AND IS NOT AND SHALL NOT BE RESPONSIBLE FOR ANY ERROR, FAULT OR MISTAKE RELATED TO ANY CONTENT AND INFORMATION RECEIVED THROUGH THE SITE OR THE SERVICE. THE COMPANY DOES NOT ENDORSE ANY ENTITY, PRODUCT OR SERVICE MENTIONED IN ANY USER GENERATED CONTENT.
9.4. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR FOR ANY LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
10. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT THE USE OF THE SITE AND THE SERVICE IS SOLELY AT YOUR OWN RISK. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTIONS RESULTING FROM OR ARISING OUT OF THE SITE OR THE SERVICE, OR THE USE OR INABILITY TO USE THE SITE OR HE SERVICE, REGARDLESS OF WHETHER THE COMPANY OR AN AUTHORIZED REPRESENTATIVE OF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WHERE LIABILITY IS MANDATORY, IN WHICH EVENT LIABILITY FOR DAMAGES SHALL BE LIMITED TO TEN US DOLLARS ($10).
11.1. You agree to defend, indemnify and hold harmless the Company, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney's fees) arising from: (i) your use of the Site or the Service; (ii) your violation of any term of these Terms; (iii) your violation of any third party rights, including without limitation any intellectual property rights or privacy rights of such third party; (iv) your breach of any of the representations made herein; and (v) any damage of any sort, whether direct, indirect, special or consequential, you may cause to any third party with relation to the Site or the Service.
11.2. It is hereby clarified that this defense and indemnification obligation will survive these Terms, and even if you close your account or we terminate your right to use the Site or Services, you will still be responsible for indemnifying the Company for breaches that took place while you used the Site or Service. Obligations owed to the Company and users of the Site or Service which by their nature are intended to survive closing or termination will survive the termination of these Terms.
12. Copyright Agent
The Company respects the intellectual property rights of others. If you believe that your work has been copied or otherwise used in a way that constitutes copyright infringement, please provide the following information in writing to the Company's Copyright Agent: (i) the contact details of the person authorized to act on behalf of the owner of the copyright; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the material that you claim to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information sufficient to permit the Company to locate the material; (iv) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (v) a statement that the information in the notification is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed. The Company's Copyright Agent can be reached through the following address:
Full Address 40, Hanamal St Haifa, 33032 Israel
13. Additional Terms Applicable to Sales of Products (“Terms of Sale”)
13.1. Terms of Sale These Terms of Sale shall form a part of the Terms applicable to your purchases of any reprints of any User Generated Content from the Site. Other than as specifically provided in any separate written agreement between you and Company, the Terms of Sale may not be altered, supplemented, or amended by the use of any document, such as purchase orders, and all sales are expressly conditioned upon your agreement to these Terms of Sale. In the event of any conflict between these Terms of Sale and the other provisions of the Terms, these Terms of Sale shall control.
13.2. Pricing; Payment All prices are listed in U.S. dollars or Israeli New Shekels and are valid until altered by Company. Company currently accepts [Paypal, VISA, MasterCard, Discover and American Express credit cards]. Company reserves the right to change the payment methods it accepts at any time without notice. If Company is unable to process a payment using your credit card on file, it may, but is under no obligation to, call you using your telephone number on file to ask whether you wish to use an alternative form of payment. Company may terminate your account or your order for Products, withhold upgrades to the Services, and take such other action as appropriate if it is unable to process your credit card payment and you do not provide an alternative form of payment. You agree to reimburse Company for any and all costs incurred in collecting amounts owed by you to Company, including, without limitation, attorneys' fees and costs of collection agencies.
13.3. Shipping Terms and Policies Company endeavors to ship all orders for User Generated Content prints within 1-3 business days. However, orders may take longer to ship, depending on the items. The estimated delivery time applicable to various methods of shipping are available on the Site at the time you place your order. Company is not responsible for any delays in shipping. For orders in North America, our standard business hours are Monday through Friday 8 a.m. to 4 p.m. Pacific Standard Time, US and for orders in Israel, out standard business hours are Sunday through Thursday 8 a.m. to 5 p.m. Israel Standard Time. Orders placed after hours or on holidays, in the respective location, will be counted as being placed the next business day. We reserve the right to substitute another carrier of equal or lesser cost to deliver your order at our discretion. All shipping charges are the responsibility of the customer and are listed on the Site. Please see our Shipping Charges. Shipping charges will be included in your shopping cart and can be viewed on a summary screen prior to finalizing your order. However, the shipping charge shown during the checkout process is subject to verification and to correction or change without notice, provided that if the actual shipping charge is more than the amount shown in your shopping cart, Company will contact you with the correct shipping costs before processing your order, and you will have an opportunity to cancel your order. All orders are shipped FOB shipping point. Title to the physical medium of the products ordered from the Site passes from Company to you upon shipment.
13.4. Return Policy Company unconditionally guarantees your satisfaction. If you are unsatisfied with any products you purchase from Company, we will gladly accept the return of any product you have ordered from us for any reason within thirty (30) days of receipt and reprint the product or refund the purchase price. Upon completion of the return procedure and receipt of the returned product, we will resend you the product or issue you a full refund of the purchase price paid for such product, whichever you prefer. However, we will generally not refund your original shipping cost unless your order is defective in some manner. Contact Company at firstname.lastname@example.org regarding the replacement or refund of any product. Please do not contact your credit card company to dispute a charge before contacting Company.
13.5. Product Pricing All prices on the Site are subject to change without notice.
13.6. Disclaimer of Warranties THE FOREGOING RIGHT TO RETURN ANY ORDER WITHIN THIRTY (30) DAYS IS YOUR SOLE AND EXCLUSIVE REMEDY, AND COMPANY’S SOLE AND EXCLUSIVE LIABILITY, WITH RESPECT TO THE PURCHASE OF ANY PRODUCTS FROM THE SITE, AND COMPANY EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PURCHASE OF ANY PRODUCTS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
14.1. These Terms do not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto.
14.2. Any claim relating to the Site, the Service or the use thereof will be governed by and interpreted in accordance with the laws of the State of New York without reference to its conflict-of-laws principles.
14.3. Any dispute arising out of or related to the Site or the Service will be brought in, and you hereby consent to exclusive jurisdiction and venue in, the competent courts of New York, New York. You agree to waive all defenses of lack of personal jurisdiction and forum non-convenience and agree that process may be served in a manner authorized by applicable law or court rule.
14.4. If any provision of this Terms is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Terms and will not affect the validity and enforceability of any remaining provisions.
14.5. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
14.6. These Terms constitutes the entire terms and conditions between you and the Company relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and the Company.
For information or questions, please contact:
Full Address 40, Hanamal St Haifa, 33032 Israel