Terms of Use

Last Updated: March 13, 2013

 

THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. 

 

Thank you for visiting www.webshots.com (the “Site”) operated by Threefold Photos, Inc. and trying our new service “Smile by Webshots” or downloading and installing our Applications (the “Apps”) (collectively, we refer to the Apps and all the Site as the “Service”). Your use and access of the Site and the Apps is governed by and subject to the following terms of use (“Terms”) If you do not agree to these Terms, or if you do not agree with our  Privacy Policy, please do not use the Site or the Service. For the purposes of these Terms, we refer to ourselves as “Webshots” throughout.  BY ACCESSING, BROWSING, OR OTHERWISE USING THE WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THESE TERMS OF USE.

 

1. ABOUT THE SERVICE; TRIAL USE AND BILLING—Webshots currently offers the Service on a free trial basis until the Service is officially launched. By signing-up to try the Service, you acknowledge and agree that you understand that the Service is intended to convert to a paid, subscription based Service in the near future and that you will need to convert to a paid subscription at that time at the then current rates or terminate your use of the Service. If you are an existing Webshots Gold or Platinum member, you understand and agree that your subscription will be converted to the Smile Service and that you will not be billed until your current Webshots Gold or Platinum membership expires, even if that expiration occurs after the launch date of the paid subscription version of the Service. Once your Webshots Gold or Platinum membership expires, you may either choose to automatically renew at the then current price or terminate your use of the Service.  Webshots does not offer partial refunds for unused portions of prepaid plans.

 

2. MEMBER ACCOUNTS—In order to use certain features of the Service, you will have to create an account (“Member Account”). You may never use another’s Member Account without permission. As part of the account set-up and registration process, you may be asked to select a username and password. We may refuse to grant you a username for any reason in our sole discretion, including in the event that we determine that such user name impersonates someone else, is illegal, vulgar, or otherwise offensive, or is protected by trademark or other proprietary rights law, or otherwise may cause confusion. You will be responsible for the confidentiality and use of your username and password and agree not to transfer or resell your use of or access to the Site to any third party. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD AND FOR ANY AND ALL ACTIVITIES (INCLUDING PURCHASES, AS APPSLICABLE) THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. UPON CONVERSION OF THE TRIAL VERSION OF THE SERVICE TO THE PAID VERSION OF THE SMILE SERVICE, YOUR MEMBER ACCOUNT WILL AUTOMATICALLY BE CONVERTED TO A PAID ACCOUNT UNLESS YOU TERMINATE YOUR USE OF THE SERVICE.

 

3. YOUR USE OF THE SERVICE—Subject to these Terms and our Privacy Policy, you are granted a limited license to use Service, including the functionality provided by the Site and the Apps to upload, store, display, aggregate, organize, and share your photographs (“Content”) and to copy, display, and use the functionality, materials, features, and services provided by the Service solely for your personal, non-commercial use.

 

4. INTELLECTUAL PROPERTY OWNERSHIP

Except for your Content, all text, content, documents, names, logos, trademarks, service marks, brand identities, characters, trade names, graphics, designs, copyrights, trade dress, or other intellectual property Appearing in the Website, and the organization, compilation, look and feel, illustrations, artwork, videos, music, software and other works on the Website (the “Materials”) are owned by Webshots and its affiliates or used with permission or under license from a third party (hereinafter collectively referred to as the “Owner”) and are protected under copyright, trademark and other intellectual property and proprietary rights laws.  As between Webshots and you, all right, title and interest in and to the Materials will at all times remain with Webshots and/or its Owners.  The words “Webshots” and “Smile,” the “Webshots” and “Smile by Webshots” logos, and other marks, logos and titles are registered and/or common law trade names, trademarks or service marks of Webshots.  All Content is the sole responsibility of the user who provided it and is stored upon Webshots’ servers and/or system solely at the direction of such user. Please see the Digital Millennium Copyright Act section below for more details. Webshots reserves all other rights.  Except as expressly provided herein, nothing on the Site shall be construed as conferring any license under Webshots’ and/or its Owner’s intellectual property rights, whether by estoppel, implication or otherwise.  Notwithstanding anything herein to the contrary, Webshots may revoke any of the foregoing rights and/or your access to the Site, or any part thereof, including the blocking of your IP Address, at any time without prior notice.

 

You retain ownership of your Content, and you hereby grant Webshots and its designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, fully paid-up, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, and publicly display and perform (publicly or otherwise) your Content, solely in connection with the Service (including without limitation for purposes of promoting the Service). Please note that, while you retain ownership of your Content, any template or layout in which you arrange or organize such Content through tools and features made available through the Site or the Apps are not proprietary to you, and can be used by Webshots and others for any purposes. You acknowledge and agree that you have no rights in any such template and/or layout, and such template or layout shall be the sole and exclusive property of Webshots.  You represent, warrant and covenant that (i) you own or otherwise possess all necessary rights with respect to your Content, and (ii) your Content does not and will not infringe, misappropriate, use or disclose without authorization, or otherwise violate any intellectual property or proprietary right of any third party, and are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable.

 

5. RESTRICTIONS ON USE— No other use of the Service  or Materials is authorized. You agree that any copy of the Materials (or any portion of the Materials) that you make must retain all copyright and other proprietary notices contained herein or therein. Framing of the Site or Apps or posting of Materials on other Web Site is strictly prohibited.  The use or misuse of any Materials, except as provided in these Terms is strictly prohibited.  You shall not, without Webshots’ express written consent: (a) distribute text or graphics to others, (b) copy and retransmit, disseminate, broadcast, circulate, or otherwise distribute the Materials on any other server, or modify or re-use all or part of the Materials on this system or any other system, (c) use any tradename, trademark, or brand name of Webshots in metatags, keywords and/or hidden text, (d) copy, distribute, modify, transmit, perform, reuse, re-post, or otherwise display the Materials, in whole or in part, for public or commercial purposes or modify, translate, alter or create any derivative works thereof, (e) create derivative works from the Materials or commercially exploit the Materials, in whole or in part, in any way, (f) use the Site, the Materials, and/or any portion thereof, in any manner that may give a false or misleading impression, attribution or statement as to Webshots, the Owner, or any third party referenced therein, (g) use the Materials, and/or any services and products on the Site or accessible via the Site for unlawful purposes only; or (h) alter, remove or obscure any copyright notice, digital watermarks, proprietary legends or any other notice included in the Materials.

 

6. ACCEPTABLE USE—Your use of the Site is conditioned upon your compliance with the following rules (“Acceptable Use Restrictions”): 

 

You shall not upload to, transmit through, or display via the Website any Content  that: (i) is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights; (ii) contains confidential, proprietary, or trade secret information of any third party; (iii) violates the rights of others, including without limitation any privacy rights or rights of publicity; (iv) impersonates any person or entity, falsely states or otherwise misrepresents your affiliation with any person or entity, or uses any fraudulent, misleading or inaccurate email address or other contact information; (v) violates any Applicable laws or regulations; (vi) makes any statement, express or implied, that you are endorsed by Webshots; (vi) harms minors in any way, including, but not limited to, by depicting content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct; (vii) contains any unsolicited promotions, political campaigning, advertising or solicitations; (viii) in our sole judgment is inappropriate or objectionable or which restricts or inhibits any other person from using or enjoying the Website, or which may expose the Webshots, any of its officers, directors, or employees, or other users to any harm or liability of any type.

 

You shall not use the Service to engage in any of the following activities: (i) accessing, using, or uploading Content to, or attempting to access, use, or upload Content to another user’s account without permission; or (ii) transmitting, uploading, or downloading, any software or other materials that contain any viruses, worms, trojan horses, defects, date bombs, time bombs or other items of a destructive nature.

 

You shall not: (i) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Apps or any Site; (ii) remove any copyright, trademark or other proprietary rights notices contained in or displayed on any portion of the Service; (iii) “frame” or “mirror” any portion of the Site or Apps, or link to any Material other than via the homepage of  the URLs provided by us to you for such purposes, without our prior written authorization; (iv) use any robot, spider, site search/retrieval Application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Site; or (v) harvest or collect information about or from users of the Site without their express consent and, if such consent is provided, only pursuant to Applicable law. Webshots does not endorse any Content or any opinion, recommendation, or advice expressed therein, and Webshots expressly disclaims any and all liability in connection with Content. Webshots does not permit copyright infringing activities and infringement of intellectual property rights on the Site or via the Apps, and Webshots reserves the right to remove Content without prior notice and/or to terminate a user’s access to the Site, Apps, or the Service in its entirety, if the user has been notified of infringing activity and has had Content removed from the Site more than twice. Webshots also reserves the right to decide whether Content is Appropriate and complies with these Acceptable Use Restrictions at any time, without prior notice and at its sole discretion.

 

The Site or Apps may include access to bulletin boards, blogs, chat rooms, comments sections, and other community forums which allow you to post information, provide feedback and comments, and otherwise interact with other users, either through postings or by interacting in real-time.  In connection with such services, you agree to abide by any rules that Webshots publishes in connection therewith, including but not limited to, the prohibition on use of the Site for any unlawful purpose.   Although Webshots may from time to time review discussions, chats, comments, transmissions, bulletin boards, blogs, chat rooms, and other community forums available via the Site (the “Community Forums”), you acknowledge Webshots is under no obligation to monitor or control, and shall have no liability for, any information available the Community Forums.  You acknowledge that any opinions, statement, recommendation, offers, advice or other information presented or disseminated on the Community Forums are those of their respective authors who are solely responsible and liable for their content. Webshots reserves the right, in its sole discretion, to refuse to post or remove any material submitted or posted on the Community Forums.

 

7. MAKING PURCHASES – If you wish to purchase any products via the Service, we will ask you to supply certain information applicable to your purchase, including, without limitation, payment and other information. Any such information will be treated as described in our Privacy Policy. All information that you provide to us or our third party payment processor must be accurate, current and complete. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the prices in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your purchases. Verification of information applicable to a purchase may be required prior to our acceptance of any order.

 

Descriptions, images, references, features, content, specifications, products, price and availability of any products or services are subject to change without notice, and our current prices will be listed on the Site following conversion of the Service from a trial service to a full launch paid version. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products or services on the Site at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased through the Service. By placing an order, you represent that the products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all purchase(s); and/or to refuse to provide any user with any product or service.

 

Title and risk of loss for any purchases pass to you upon our delivery to our carrier. When you place an order, we will not charge you until we ship the items ordered. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment.

 

8. ARBITRATION; APPLICABLE LAW

 

PLEASE READ THIS CAREFULLY.  IT AFFECTS YOUR RIGHTS.

 

Except for a claim by Webshots of infringement or misappropriation of Webshots’ patent, copyright, trademark, or trade secret, any and all disputes between you and Webshots arising under or related in any way to these Terms must be resolved through binding arbitration as described in this section.  This agreement to arbitrate is intended to be interpreted broadly.  It includes, but is not limited to, all claims and disputes relating to your use of the Apps.

 

YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND WEBSHOTSARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.  YOU AND DEVELOPER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.  

 

The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section.  For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and Developer must abide by the following rules:  (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.  If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in San Francisco, California.  The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction.  In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in San Francisco, California.  Claims of infringement or misappropriation of Developer’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in San Francisco, California.

 

The laws of the State of California, excluding its conflicts of law rules that would result in the laws of a State other than California, govern your use of the Site and the Service.

 

9. LINKS—The Site may contain links allowing you to leave the Site for other Site that are not under our control (“Linked Site”).  Webshots provides the linked Site to you only as a convenience and does not endorse any Linked Site.  Webshots is not responsible for the contents or transmission of any Linked Site or any link contained in a Linked Site or for ensuring that the Linked Site contain no errors or viruses.  Webshots is not responsible for the terms of use or privacy practices of the Linked Site or any link contained in the Linked Site.  Your linking to any Linked Site or any other off-site page or other site is entirely at your own risk.  Webshots encourages you to carefully read the policies of each site you visit.

10. SUBMITTED IDEAS—While Webshots appreciates your interest in Webshots and the Site, Webshots does not want and cannot accept any ideas or information you consider confidential and/or proprietary.  Except with respect to your personally identifiable information (as expressly provided for in the  Privacy Policy ) all comments, suggestions, ideas, notes, drawings, concepts, or other information disclosed or offered to us by you through the Site or in response to solicitations on the Site shall be deemed to be non-confidential and non-proprietary and shall be the exclusive property of Webshots.  Further, you understand and acknowledge that Webshots employs both internal and external resources which may have developed or may in the future develop ideas identical to or similar to your suggestions or comments to suggestions and that Webshots is only willing to consider the suggestion on these terms.  In any event, you acknowledge and agree that Webshots assumes no obligation of confidentiality or nondisclosure, express or implied by considering your suggestion or idea.  Without limitation, Webshots shall exclusively own, and you hereby irrevocably transfer and assign to Webshots, all now known or hereafter existing rights in and to the suggestion, and Webshots shall be entitled to unrestricted use of the suggestion for any purpose whatsoever, commercial or otherwise without any form of compensation.

 

11. WEBSHOTS ONLINE PRIVACY POLICY—Webshots takes your privacy very seriously. Webshots’ online  Privacy Policy is incorporated herein by reference and describes the collection, use, and sharing of certain personally identifiable information that may be provided in connection with the use of the Site. Please read and understand our Privacy Policy before accessing our using the Site.

 

12. DIGITAL MILLENNIUM COPYRIGHT ACT—Webshots is committed to respecting and protecting the legal rights of copyright owners. As such, Webshots adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.).  If you believe any of the Materials infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a “DMCA Takedown Notice”).  To be valid, a DMCA Takedown Notice must (i) be provided to Webshots’ designated agent, (“Copyright Agent”), as set forth below, and (ii) include the following:

 

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

 

Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;

 

Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;

 

Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;

 

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

 

A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.

 

 

Webshots’ Copyright Agent to receive DMCA Takedown Notices is: copyright@webshots.com. Or you may send the written document to the designated Copyright Agent:

 

Webshots

Attn: Designated Copyright Agent

200 Tamal Plaza #200

Corte Madera, CA 94925

 

13. PROMOTIONS—In addition to the terms and conditions of these Terms, any contests, sweepstakes, surveys, games or similar promotions (collectively, “Promotions”) made available through the Site may be governed by specific rules that are separate from this Agreement. By participating in any such Promotion, you will become subject to those rules, which may vary from the terms and conditions set forth herein. We urge you to review any specific rules applicable to a particular Promotion, which will be linked from such Promotion, and to review our Privacy Policy which, in addition to these Terms, governs any information you submit in connection with such activities. To the extent that the terms and conditions of such rules conflict with these Terms, the terms and conditions of such rules shall control.

 

14. UNITED STATES ONLY—By using the Site, you agree and acknowledge that the Site is hosted in the United States. If you are attempting to access the Site from a physical location within the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure that differ from United States laws, please be advised that through your continued use of this Site, which is governed by U.S. law, this Terms of Use, and the Webshots Privacy Policy, you are transferring your personal information to the United States and you consent to (i) such transfer, (ii) the application of the laws of the United States and/or the State of California with respect to any dispute arising from or related to the Privacy Policy and/or your use of the Site, other than such rules, regulations, case law, and/or international treaties that would result in the application of the laws of a jurisdiction other than the United States or the State of California, and (iii) the exclusive jurisdiction of the courts of the United States and the State of California. Any claim or dispute between you and Webshots that arises in whole or in part from your use of the Site or in connection with the Privacy Policy shall be decided exclusively by a court of competent jurisdiction located in San Francisco, CA U.S.A. Each party hereby agrees that such court shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam jurisdiction and venue of such courts and waives any objection based on inconvenient forum.

 

15. DISCLAIMERS—WITHOUT LIMITING THE FOREGOING, THE MATERIALS AND ALL OTHER FEATURES ON OFFERED VIA THE SERVICE, INCLUDING THE APPS OR ANY SITE, ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND WITH RESPECT TO THE SITE AND/OR MATERIALS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. SHOULD APPSLICABLE LAW NOT PERMIT THE FOREGOING EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, THEN WEBSHOTS HEREBY GRANTS THE MINIMUM EXPRESS OR IMPLIED WARRANTY REQUIRED BY SUCH APPSLICABLE LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WEBSHOTS, ITS EMPLOYEES, AGENTS, SUPPLIERS OR ANY OTHER PERSONS SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS SECTION. ADDITIONALLY, WEBSHOTS DOES NOT MAKE ANY WARRANTIES THAT THE SERVICE, INCLUDING THE APPS OR ANY OF THE SITE, WILL BE UNINTERRUPTED, SECURE OR ERROR FREE OR THAT YOUR USE OF THE SERVICE, APPS, OR ANY SITE WILL MEET YOUR EXPECTATIONS, OR THAT THE SERVICE, MATERIALS, OR ANY PORTION THEREOF, IS CORRECT, ACCURATE, OR RELIABLE. COMPANY RESERVES THE RIGHT TO CHANGE ANY PART OF THE SERVICE, INCLUDING THE APPS OR ANY SITE AT ANYTIME WITHOUT NOTICE.

 

16. LIMITATION OF LIABILITY—YOUR USE OF THE SERVICE, INCLUDING ANY SITE OR APPS IS AT YOUR OWN RISK. NEITHER COMPANY, ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS OR OTHER REPRESENTATIVES WILL BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME, PROFIT OR GOODWILL, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES ARISING OUT OF YOUR ACCESS TO OR USE OF THE SERVICE OR ARISING OUT OF ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY MATERIALS OR OTHER INFORMATION AVAILABLE ON THE SITE, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY OR OTHERWISE. THE FOREGOING SHALL APPSLY EVEN IF COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IF YOU BECOME DISSATISFIED IN ANY WAY WITH THE SERVICE, ANY SITE OR APPS, OR ITS TERMS OF USE OR PRIVACY POLICY, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF THE SERVICE. YOU HEREBY WAIVE ANY AND ALL CLAIMS AGAINST COMPANY AND ITS AFFILIATES, AGENTS, REPRESENTATIVES AND LICENSORS ARISING OUT OF YOUR USE OF THE SITE.  BECAUSE SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, THESE PROVISIONS MAY NOT APPSLY TO YOU. IF ANY PORTION OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF COMPANY AND ITS AFFILIATES SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.)  THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE SITE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIVE REMEDIES SPECIFIED HEREIN WILL SURVIVE EVEN IF FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.

 

17. ABILITY TO ACCEPT TERMS OF USE—You affirm that you are more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the Terms of Use, and to abide by and comply with these Terms.

 

18. NO ARCHIVE – Notwithstanding anything contained herein, the functionality provided to you by the Service and the Webshots’ systems, networks and servers are not an archive and Webshots shall have no liability to you or any other person for loss, damage, or destruction to your Content or any other information submitted to or via the Service.  You shall be solely responsible for (i) uploading your Content, (ii) preventing any loss or damage to your Content, and (iii) maintaining independent archival and backup copies of any Content.

 

19. ASSIGNMENT—These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Webshots without restriction.

 

20. NOTICE— From time to time, Webshots may revise these Terms.  To help you stay current of any changes, Webshots takes the following two steps:  (1) Webshots notes the date these Terms was last updated below and (2) when Webshots makes a change to these Terms, Webshots posts conspicuous announcements of such changes on the homepage of the Site for 30 days following the date these Terms was updated.  Your use of the website following the posting of any revised Terms of Use shall be deemed acceptance of the revised policy.  Webshots strongly recommends checking Terms of Use periodically. If, and only if, Webshots makes revisions to these Terms that result in a material lessening of the restrictions on Webshots’ use or disclosure of your Personal Information, Webshots will make a commercially reasonable attempt to obtain your consent before implementing such revisions with respect to such Personal Information.  If you disagree with the provisions of these Terms at any time, your sole remedy is to terminate your use of the Site and inform us of such termination as described in these Terms. Continued use of the Site constitutes your agreement to these Terms as in effect.

 

21. TERMINATION. – Webshots may cancel, suspend or block your use of the Site without notice if there has been a violation of these Terms or our Privacy Policy.  Your right to use the Site will end once your Member Account is terminated, and any data you have stored on the Site, including Content and Materials, may be unavailable later, unless Webshots is required to retain it by law. Webshots is not responsible or liable for any records or information that is made unavailable to you as the result of your termination of your Member Account.  YOU AGREE THAT COMPANY WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE, CONTENT OR MATERIALS.  Any limitations on liability that favor Webshots will survive the expiration or termination of these Terms for any reason.

 

22. MISCELLANEOUS—Webshots’ failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision.  If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect.  A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.