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.
1. WEBSHOTS DESKTOP APP BILLING AND PAYMENT:
If you are an existing Webshots Gold or Platinum member, you understand and agree that your subscription will be converted to the Webshots Premium 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 Webshots Premium 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 Webshots Premium service or convert to a Webshots Freemium account. Webshots does not offer partial refunds for unused portions prepaid payments.
2. WEBSHOTS DESKTOP APP MEMBER ACCOUNTS:
In order to use the Premium Service, you will have to create an account ("Premium Account"). You may never use the Premium Account of another person without permission. You will be responsible for the confidentiality and use of your account 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 ACCOUNT AND PASSWORD AND FOR ANY AND ALL ACTIVITIES (INCLUDING PURCHASES, AS APPLICABLE) THAT ARE CONDUCTED THROUGH YOUR ACCOUNT.
3. WEBSHOTS MOBILE APP BILLING AND PAYMENT:
Webshots offers a mobile application (Wallpaper Photos by Webshots) for free download. Within that mobile application, there is additional content available for purchase at $.99 per pack of photos. If you purchase a premium pack of photos, you are consenting to a charge of $.99 from the credit card or debit card you provide. 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.
4. YOUR USE OF THE APPS:
5. 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 Site or via the App, and the organization, compilation, look and feel, illustrations, artwork, videos, music, software and other works on the Site or via the App (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" "Webshots" logo, and other marks, logos and titles are registered and/or common law trade names, trademarks or service marks of Webshots. All Content is your sole responsibility and it is stored upon Webshots’ servers and/or system solely at your direction. 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.
6. 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.
7. ACCEPTABLE USE:
Your use of the Site is conditioned upon your compliance with the following rules ("Acceptable Use Restrictions"):
You shall not use the Service to engage in any of the following activities: (a) accessing, using, or uploading Content to, or attempting to access, use, or upload Content to another user’s account without permission; or (b) 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 App or Service; (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 App, 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 App, and Webshots reserves the right to remove Content without prior notice and/or to terminate your access to the Site, App, 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.
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 Site, Service, or App.
YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND WEBSHOTS ARE 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.
10. SUBMITTED IDEAS:
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 (a) be provided to Webshots’ designated agent, ("Copyright Agent"), as set forth below, and (b) 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: firstname.lastname@example.org. Or you may send the written document to the designated Copyright Agent:
Attn: Designated Copyright Agent
200 Tamal Plaza #200
Corte Madera, CA 94925
13. UNITED STATES ONLY:
WITHOUT LIMITING THE FOREGOING, THE MATERIALS AND ALL OTHER FEATURES ON OFFERED VIA THE SERVICE, INCLUDING VIA THE APP OR 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 APPLICABLE LAW NOT PERMIT THE FOREGOING EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, THEN WEBSHOTS HEREBY GRANTS THE MINIMUM EXPRESS OR IMPLIED WARRANTY REQUIRED BY SUCH APPLICABLE 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 APP OR THE SITE, WILL BE UNINTERRUPTED, SECURE OR ERROR FREE OR THAT YOUR USE OF THE SERVICE, APP, OR 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 APP OR SITE AT ANYTIME WITHOUT NOTICE.
15. LIMITATION OF LIABILITY:
17. 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.
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.
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.