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Terms of Use

Updated: November 8, 2012

 

Thank you for visiting smile.webshots.com (the "Site"), which is owned and provided by Threefold Photos, Inc., ("TPI"). Your use and access of the Site 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 any services offered by the Site. BY ACCESSING, BROWSING, OR OTHERWISE USING THE WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THESE TERMS OF USE.

 

1. MEMBER ACCOUNTS

In order to use certain features of the Site, 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 APPLICABLE) THAT ARE CONDUCTED THROUGH YOUR ACCOUNT.

 

2. YOUR USE OF THE SITE

Subject to these Terms and our Privacy Policy, you are granted a limited license to use Site and the functionality provided by the Site 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 Site solely for your personal, non-commercial use.

 

3. 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 TPI 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 TPI and you, all right, title and interest in and to the Materials will at all times remain with TPI and/or its Owners. The words "Getsmileapp", and "Threefold Photos," the "Getsmileapp" and "Threefold Photos" logos, and other marks, logos and titles are registered and/or common law trade names, trademarks or service marks of TPI. All Content is the sole responsibility of the user who provided it and is stored upon TPI's servers and/or system solely at the direction of such user. Please see the Digital Millennium Copyright Act section below for more details. TPI reserves all other rights. Except as expressly provided herein, nothing on the Site shall be construed as conferring any license under TPI's and/or its Owner's intellectual property rights, whether by estoppel, implication or otherwise. Notwithstanding anything herein to the contrary, TPI 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. 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 are not proprietary to you, and can be used by TPI 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 TPI. 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.

 

4. RESTRICTIONS ON USE

No other use of the Site 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 Site Materials or posting of Materials on other Web Sites is strictly prohibited. The use or misuse of any Materials, except as provided in the Terms of Use or in the Materials, is strictly prohibited. You shall not, without TPI's 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 TPI 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 TPI, 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.

 

5. 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 TPI; (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 TPI, any of its officers, directors, or employees, or other users to any harm or liability of any type.


You shall not us the Site 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 Site; (ii) remove any copyright, trademark or other proprietary rights notices contained in or displayed on any portion of the Site; (iii) "frame" or "mirror" any portion of the Site, or link to any Material other than via the homepage of the URL located at http://smile.webshots.com/ or 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. TPI does not endorse any Content or any opinion, recommendation, or advice expressed therein, and TPI expressly disclaims any and all liability in connection with Content. TPI does not permit copyright infringing activities and infringement of intellectual property rights on the Site, and TPI reserves the right to remove Content without prior notice and/or to terminate a user's access to the Site, if the user has been notified of infringing activity and has had Content removed from the Site more than twice.TPI also reserves the right to decide whether Content is appropriate and complies with these Acceptable Use Resrictions at any time, without prior notice and at its sole discretion.


The Site may include 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 TPI publishes in connection therewith, including but not limited to, the prohibition on use of the Site for any unlawful purpose. Although TPI 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 TPI 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. TPI reserves the right, in its sole discretion, to refuse to post or remove any material submitted or posted on the Community Forums.

 

6. MAKING PURCHASES

If you wish to purchase any products or services through the Site, 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 can be found on the Site. 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 Site. 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.

 

7. LINKS

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

 

8. SUBMITTED IDEAS

While TPI appreciates your interest in TPI and the Site, TPI 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 TPI. Further, you understand and acknowledge that TPI 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 TPI is only willing to consider the suggestion on these terms. In any event, you acknowledge and agree that TPI assumes no obligation of confidentiality or nondisclosure, express or implied by considering your suggestion or idea. Without limitation, TPI shall exclusively own, and you hereby irrevocably transfer and assign to TPI, all now known or hereafter existing rights in and to the suggestion, and TPI shall be entitled to unrestricted use of the suggestion for any purpose whatsoever, commercial or otherwise without any form of compensation.

 

9. TPI ONLINE PRIVACY POLICY

TPI takes your privacy very seriously. TPI's 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.

 

10. DIGITAL MILLENNIUM COPYRIGHT ACT

TPI is committed to respecting and protecting the legal rights of copyright owners. As such, TPI adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. ยง 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 TPI's 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.


TPI's Copyright Agent to receive DMCA Takedown Notices is copyright@getsmileapp.com. Or you may send the written document to the designated Copyright Agent:

 

11. 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.

 

12. 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 TPI 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 Colorado 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 Colorado, and (iii) the exclusive jurisdiction of the courts of the United States and the State of Colorado. Any claim or dispute between you and TPI 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 Boulder, Colorado, 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.

 

13. DISCLAIMERS

WITHOUT LIMITING THE FOREGOING, THE MATERIALS AND ALL OTHER FEATURES ON THE 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 COMPANY 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 COMPANY, ITS EMPLOYEES, AGENTS, SUPPLIERS OR ANY OTHER PERSONS SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS SECTION. ADDITIONALLY, COMPANY DOES NOT MAKE ANY WARRANTIES THAT THE SITE WILL BE UNINTERRUPTED, SECURE OR ERROR FREE OR THAT YOUR USE OF THE SITE WILL MEET YOUR EXPECTATIONS, OR THAT THE SITE, MATERIALS, OR ANY PORTION THEREOF, IS CORRECT, ACCURATE, OR RELIABLE. COMPANY RESERVES THE RIGHT TO CHANGE ANY PART OF THE SITE AT ANYTIME WITHOUT NOTICE.

 

14. LIMITATION OF LIABILITY

YOUR USE OF THE SITE 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 SITE 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 APPLY EVEN IF COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU BECOME DISSATISFIED IN ANY WAY WITH THE SITE OR ITS TERMS OF USE OR PRIVACY POLICY, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF THE SITE AND ITS SERVICES. 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 APPLY 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.

 

15. CHOICE OF LAW AND ENFORCEMENT

Your access to the Site as well as the terms and conditions and the agreement they create are governed and interpreted by the laws of the State of Colorado, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Colorado.

 

16. 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 the Terms of Use.

 

17. NO ARCHIVE

Notwithstanding anything contained herein, the functionality provided to you by the Site and the TPI's systems, networks and servers are not an archive and TPI 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 Site. 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.

 

18. ASSIGNMENT

The Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by TPI without restriction.

 

19. NOTICE

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

 

20. TERMINATION

TPI 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 TPI is required to retain it by law. You may terminate your Member Account at any time. TPI 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 TPI will survive the expiration or termination of these Terms for any reason.

 

21. MISCELLANEOUS

TPI's failure to enforce any provision of the Terms of Use shall not be deemed a waiver of such provision nor of the right to enforce such provision. If any part of the Terms of Use 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 the Terms of Use shall continue in effect. A printed version of the Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

© 2012 Threefold Photos