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TERMS OF SERVICE – Updated 4-21-2011
THIS TERMS OF SERVICE AGREEMENT (“Agreement”) is made between Focus in Pix (“Company”) and any person (“User”) who completes the registration or use process to open an account or otherwise uses the Company’s interactive online personal publishing, printing, development and related services (“Service”). Company and User are collectively referred to as the “Parties”.
BY ACCESSING, USING OR INSTALLING ANY PART OF THE SERVICE, USER ACKNOWLEDGES THAT THEY HAVE READ, UNDERSTAND AND EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT INCLUDING THE COMPANY PRIVACY POLICY.
1. Service Terms and Limitations.
a. Description. The Service is proprietary to Company and is protected by intellectual property laws and international intellectual property treaties. User’s access to the Service is licensed and not sold. Subject to the timely payment of all fees and the terms and limitations set forth in this Agreement, Company agrees to provide User with a personal, non-transferable and non-exclusive account enabling User to access and use the Service.
b. Accessibility. User agrees that from time-to-time, the Service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time-to-time; or (iii) causes beyond the control of Company or which are not reasonably foreseeable by Company.
c. Equipment. User shall be solely responsible for providing, maintain and ensuring compatibility with the Service, all hardware, software, electrical and other requirements for User’s use of the Service, including telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use the Service.
2. Limitations.
a. Security. User shall be solely responsible for the security, confidentiality and integrity of all messages and the content that User receives, transmits through or stores on the Service. User shall be solely responsible for any authorized or unauthorized access to User’s account by any person. User agrees to bear all responsibility for the confidentiality of User’s password and all use or charges incurred from use of the Service with User’s password.
b. Privacy. The parties agree they shall be subject to the terms of the Company’s Privacy Policy.
3. Fees.
a. Payment. User agrees to pay all fees and charges relating to your purchase of the Service and related products (“Fees”). User shall pay the Fees set forth herein when a Product or Service is ordered. All Fees are deemed final and accepted by User unless written notification of any objection to the Fees are received by Company within fourteen (14) days following receipt of the User order, product and/or Services.
b. Collection of Taxes. All Fees, taxes and other charges shall be billed to User’s credit card at the current international currency conversion rate upon ordering the Services. No additional consent is required before the Company or the authorized processor invoices the credit card. User shall be responsible for and shall pay all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (“Taxes”), whether imposed now or hereinafter by an governmental entity. User shall promptly pay Company in the event of any refusal of User’s credit card issuer to pay any amount to Company for any reason. If the Company is not paid for the ‘Services, User shall pay interest at the rate of 1.5% per month on any outstanding balance, together with costs of collection, including attorneys’ fees and costs. If User fails to pay any amount in advance, Company may immediately suspend or terminate this Agreement and User’s access to the Service.
4. User Representation.
a. General Representations. User represents and warrants to Company that: (a) User is over the age of eighteen (18) and has the power and authority to enter into and perform User’s obligations under this Agreement; (b) all information provided by User to Company is truthful, accurate and complete; (c) User is the authorized signatory of the credit or charge card provided to Company to pay the Fees; (d) User shall comply with all terms and conditions of this Agreement, including, without limitation, the provisions set forth in Section 5; and (e) User has provided and will provide accurate and complete registration information, including, without limitation, User’s legal name, email, address and telephone number.
b. Representation Relating to Submission of Images or Content. When submitting images or content to the Company, User represents and agrees that User: (i) owns or possesses all right, title and interest with respect to the content submitted, whether design templates, images, photos, videos, sounds or other works of authorship (“Content”); (ii) User’s Content does not and will not infringe upon, misappropriate, use or disclose without authorization, or otherwise violate any intellectual property or other proprietary right of a third party, and the Content is not otherwise unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable; (iii) User consents to the use of User’s likeness and has obtained the written consent, release and permission of every identifiable individual appearing in the submitted Content to use such individuals likeness for purposes of using the Content in the manner contemplated by this Agreement (or written consent from a parent or guardian of individuals under the age of eighteen), and will provide the Company with a copy of any such release or consent upon request; (iv) Company is granted a non-exclusive, world-wide, fully paid and royalty free license to reproduce or distribute the Content for the purpose of printing books or Content that User orders or authorizes for purchase by others; and (v) User is solely responsible for any and all Content posted by or through User’s account on any of the Company’s Services.
5. Prohibited Uses.
User is solely responsible for any and all acts and omissions that occur with respect to User’s account, Content or password, and User agrees not to engage in unacceptable use of the Service, which includes, without limitation, use of the Service to: (a) disseminate, store or transmit unsolicited messages, chain letters or unsolicited commercial email; (b) disseminate or transmit material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, offensive, threatening or malicious; (c) disseminate, store or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (d) create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication; (e) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses or exemptions; (f) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Service or any other computer network; (g) disseminate, store or transmit viruses, Trojan horses or any other malicious code or program; or (h) engage in any other activity deemed by the Company to be in conflict with the spirit or intent of this Agreement. THE COMPANY RESERVES THE RIGHT TO REFUSE TO PRINT USER CONTENT THAT IT DETERMINES, IN ITS SOLE DISCRETION, CONTAINS PROHIBITED CONTENT, AND USER AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE COMPANY AND ITS AFFILIATES FROM ANY CLAIMS, LOSSES OR LIABILITIES RESULTING FROM SUCH A BREACH.
6. Termination.
This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full force until terminated. User may terminate this Agreement for any reason upon thirty (30) days prior notice to Company. Company reserves the right, in its sole discretion and without notice or liability, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Service; (b) suspend User’s access to or use of all or any portion of the Service; and (c) terminate this Agreement.
7. Disclaimer of Warranties and Return Policy.
a. Warranty Disclaimer. THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SERVICE IS AT USER’S SOLE RISK. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE. COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICE.
b. Returns and Objections. Please notify Company of any product or Service defect or deficiency within fourteen (14) days of receipt. If orders for Services are cancelled within one (1) hour of receipt, Company may (but cannot guarantee) be able to cancel the order. If an objection or defect notice is not received by Company within fourteen (14) days following receipt of the order or Services, the order, product or Service shall be deemed accepted by User. Please note that Company does not proof or edit the Product delivered as part of the Services, and that it is the User’s sole obligation to review your order or product for typos, formatting, image resolution, color, layout and general format. User should review and edit the order or Product in detail before printing.
8. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE SERVICE OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OF RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICES, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID BY USER TO COMPANY HEREUNDER. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER. IF USER IS DISSATISFIED WITH THE SERVICE, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE SERVICE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 6.
9. Indemnification.
User agrees to indemnify, hold harmless and defend Company, its shareholders, directors, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorneys’ fees, asserted by any person, arising out of or relating to: (a) this Agreement; (b) User’s use of the Service or creation of Content, including any data or work transmitted or received by User; and (c) any unacceptable use of the Service, including, without limitation, any statement, data or content made, transmitted or republished by User which is prohibited as unacceptable under Sections 4 and 5. The Company shall be entitled to recover reasonable attorney fees and costs in enforcing or defending its rights under this Agreement.
10. Miscellaneous.
a. Independent Contractor. The Parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
b. Amendment. Company shall have the right, at any time and without notice, to add to or modify the terms of this Agreement. User accepts terms and conditions by clicking accept when ordering through the software. User’s access to or use of the Service after the date such amended terms are delivered to User shall be deemed to constitute acceptance of such amended terms.
c. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise shall constitute a waiver of any other term, provision or condition hereof unless executed in writing by the party making the waiver.
d. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
e. Notice. All notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid, or when sent by facsimile or email to either parties’ last known post office, facsimile or email address, respectively. User hereby consents to notice by email. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time-to-time, provide to the other party.
f. Law. This Agreement is made in and shall be governed by the laws of the State of Minnesota without reference to conflicts of laws, and any dispute, claim or action relating to this Agreement shall be subject to the jurisdiction of the courts of the State of Minnesota.
g. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any natural disaster, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused to the extent that it is prevent, hindered or delayed by such causes.
h. Survival. The terms and provision of Sections 2, 3, 4, 5, 7, 8, 9 and 10 shall survive any termination or expiration of this Agreement.
i. Entire Agreement. This Agreement and the Privacy Policy constitute the entire agreement between the parties with respect to the Service and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Service.
