Last Updated: November 29th, 2022
Welcome to FotoSets (“FotoSets,” “we,” “our,” or “us”). We provide the online ordering service and video and photography portal, located at fotosets.co, including all of its webpages and subpages (collectively, the “Site”) and may provide software that may be downloaded to your smartphone or tablet to access services (each a “Mobile Applications”). The Site, the Mobile Applications, and the photoshoot and content creation services that we provide to you in connection with the Site and Mobile Applications, are referred to as the “Services”.
These Terms of Service (these “Terms”) are a legal agreement between FotoSets and you, or, if you represent an entity or other organization, that entity or organization (in either case “you” or “your”) and governs your access to and use of the Services.
If you are accessing the Site or using the Services on behalf of a third party customer (a “Customer”) that has entered into a separate agreement with FotoSets for the Services (“Services Agreement”), your use of the Site and Services is, at all times, subject to the terms and conditions of the Services Agreement. Nothing in these Terms modifies Customer’s or FotoSets’ rights or obligations under the Services Agreement.
BY REGISTERING FOR THE SITE OR SERVICE, OR BY OTHERWISE ACCESSING THE SITE OR USING ANY OF THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
You represent and certify that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdictions. To register an Account with FotoSets, you must be 18 years or over.
1. Services.
1.1. Orders and Shotlists
Our Services help you to create high-quality photos, videos, and other content. Through the Services, you can create a “Shot List” for a photoshoot. The photos, videos, and other content we develop in connection with a Shoot is referred to as “Deliverables.”
1.2. Samples
FotoSets will provide samples of Deliverables for your review (“Samples”). Samples may, but will not necessarily, contain watermarks or similar markings. You may use Samples solely in order to review and select the Deliverables that you will license, and for no other purpose. You may not remove or modify any notice of copyright or similar marking encoded, embodied, or displayed in connection the Samples. Any such attempt to remove a watermark or copyright notice will result in the associated user account being suspended.
1.3. Selecting Deliverables; License
You may select Samples that FotoSets presents for licensing (“Licensed Content”). Subject to your compliance with these Terms and upon payment of all applicable fees, FotoSets grants to you a non-exclusive, perpetual, worldwide, transferable, and sublicensable license to reproduce, distribute, publicly display, publicly perform, prepare derivative works of (including to translate, alter, and modify), and otherwise use the Deliverables.
1.4. User-Provided Images and Copyrights
When utilizing the FotoSets platform, users may have the option to upload their own images or assets for integration or usage within the Deliverables. By doing so, users represent and warrant that:(i) They either own the copyright to such images or assets or have a valid license to use them.(ii) They have secured all necessary rights and permissions if the uploaded images or assets contain trademarks, logos, copyrighted material, or likenesses of individuals.FotoSets assumes no responsibility or liability for any copyright infringements related to the images or assets uploaded by the user. It remains the sole responsibility of the user to ensure they are not violating any copyrights or intellectual property rights. Any claims or disputes related to such violations will be addressed directly with the user, and FotoSets will be held harmless in such cases.
1.5. Restrictions on Use
While FotoSets strives to offer a versatile platform for creating Deliverables, certain guidelines must be adhered to for the betterment of all parties involved:
(i) Users may not utilize the Deliverables in a manner that promotes illegal activities, hatred, discrimination, or violence against individuals or groups based on race, ethnicity, religion, gender, or other protected classes.
(ii) Deliverables should not be used in a manner that misrepresents or defames an individual, brand, or organization.
(iii) Users agree not to reverse engineer, decompile, or attempt to derive the source code of the FotoSets platform or any related technology.
(iv) Deliverables may not be resold, rented, or licensed without the express written consent of FotoSets.
(v) Any attempt to remove or tamper with the watermark or copyright notice, other than through the licensed purchase process, is strictly prohibited and will result in appropriate action, which may include account suspension.
2. Accounts; Access to Services.
2.1. Accounts and Registration
You may access and use certain features of the Services by creating a FotoSets user account (your “Account”). You may log into your Account to use such Services using a unique username and password. You are responsible for safeguarding your password and you agree not to disclose your password to any third party. You are solely responsible for any activities or actions taken under your username, whether or not you have authorized such activities or actions. You agree that the information that you provide to FotoSets about yourself upon registration of your Account, and at all other times (the “Registration Information”) will be true, accurate, current and complete, and you further agree that you will maintain and promptly update the Registration Information to ensure that it remains true, accurate, current and complete. You may not impersonate any other person or use a username or password that you are not authorized to use. FotoSets reserves the right to require you to change your password for any reason at any time. If you become aware of any unauthorized use of your Account, you agree to notify FotoSets immediately at legal@myFotoSets.com. FotoSets is not liable for any loss or damage arising from your failure to comply with the above requirements. If you connect us with a third party services such as Facebook, Google, or LinkedIn, you give us permission to access and use your information from that third party service as permitted by that service, and to store your login credentials for that service.
2.2. Site License
Subject to these Terms and any Services Agreement (if applicable), FotoSets grants you a personal, limited, revocable, non-exclusive, non-transferable, and non-sublicensable right to: (a) access and use the Services specifically made available to you as permitted by FotoSets (the “Permitted Purpose”), and (b) download, install, and use the Mobile Application(s) made available by FotoSets for public use on your own handheld mobile device solely for the Permitted Purpose. This license is exclusive to you and you may not sublicense the use of the Services.
2.3. Push Notifications
By registering an Account and/or receiving any Services, you agree to be contacted via email, SMS and/or text messaging by us, including via push notifications, regarding our Services, the Site, and by third parties, if relevant, for third party notifications and/or advertisements.
2.4. Limitations
You expressly agree that you are solely responsible for any and all acts and omissions that occur through your use of the Site, and you agree not to engage in any unacceptable uses of the Services, which include, without limitation, use of the Services to: (a) register an Account or otherwise access or use the Services if you have not acknowledged reading and agreed to abide by these Terms; (b) interfere, disrupt or attempt to gain unauthorized access to other accounts for the Services or any other computer network; (c) create user accounts by automated means or under fraudulent or false pretenses; (d) create or transmit unsolicited electronic communications such as spam to users or promote any products or services; (e) adapt, modify or reverse engineer any portion of the Services; (f) use any spider, robot, retrieval application, or any other device to retrieve any portion of the Services; (g) disseminate, store or transmit viruses, worms, Trojan horses or other malicious code or program; (h) violate any applicable federal, state, local or international law or regulation; (i) submit false or misleading information to FotoSets; (j) access the Services in order to build a similar or competitive service; or (k) engage in any other activity deemed by FotoSets to be in conflict with the spirit of these Terms or our Privacy Policy. You agree that you (and not FotoSets) are responsible for ensuring that you comply with any applicable laws when you use the Services.
2.5. App Store Terms
You acknowledge and agree that the availability of a Mobile Application is dependent on the third party websites from which you download mobile applications, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that these Terms are between you and FotoSets, and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with, and your license to use the Mobile Apps is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
3. Products; Product Materials.
3.1. Provision of Product Materials
In connection with your access to, or use of, the Services, you may provide samples, products, materials, or other goods to FotoSets (collectively, “Products”). You may also provide or identify certain trade names, trademarks, service marks, logos, Product details, and similar content relating to you and/or your Product that you desire FotoSets to use in connection with the Services and Deliverables (the “Product Content,” and together with the Products, the “Product Materials”). You retain all right, title, and interest in and to your Product Materials. By submitting Product Materials, you unconditionally grant to FotoSets a non-exclusive, perpetual, irrevocable, worldwide, fully-paid, transferable right and license, with the right to sublicense through multiple levels of sublicensees, under all of Your intellectual property rights in the Product Materials, to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use the Product Materials in connection with the Deliverables and/or the performance of the Services.
3.2. Product Warranty
You may not provide any Products Materials to FotoSets that are illegal, harmful, or hazardous, or that infringe or violate any third party’s rights, including any copyright, patent, trademark, or other proprietary or contractual right. FotoSets reserves the right to remove or exclude Product Materials that it, in its sole discretion, deems abusive, defamatory, obscene, in violation of the law, or otherwise harmful. You represent and warrant that all Products provided to FotoSets: (a) comply with all applicable laws, rules, and regulations and (b) are provided to FotoSets in accordance with all such laws, rules, and regulations. In the event of a violation of the foregoing representations and warranties, FotoSets may, with or without notice: (i) dispose of such Products and charge you for all costs related to such a disposal, and/or (ii) if applicable, contact appropriate law enforcement authorities.
3.3. Return of Products
If you request that FotoSets return any Products to you, you agree to pay FotoSets for all shipping charges (including any customs fees or duties), or provide a prepaid return shipping label. You further agree that FotoSets will have no liability for any delay, damage, or loss of such items in transit. If you do not request that FotoSets return a Product, or if you fail to provide payment or a prepaid shipping label for return shipping, within two (2) weeks following notice of the completion of the Services relating to such Product, then FotoSets may either donate, dispose of, or continue to store (at FotoSets’s then-current rates) your Products and charge you for any associated costs or expenses. You will indemnify and hold harmless FotoSets, and its officers, directors, employees, contractors, and service providers (“FotoSets Parties”) from and against any damage, expense (including reasonable attorney’s fees), penalty, judgment, liability, settlement cost, and any other loss suffered by FotoSets in connection with FotoSets’s receipt, use, storage, return, disposal, or donation of Products.
3.4. Title and Risk of Loss of Product; Release
You, at all times, shall retain title to your Product and risk of loss or damage to your Products. In no event will FotoSets be liable to you or any third party for any loss or damage to the Products, howsoever caused, and whether such loss or damage could have been prevented by FotoSets. To the maximum extent permitted by law, you, on behalf of your affiliates, officers, directors, owners, employees, successors, heirs, and assigns (the “Releasing Parties”) hereby release the FotoSets Parties, from and against any and all claims, demands, actions, or proceedings relating to the Products or any loss or damage thereto. The Releasing Parties will forever refrain and forbear from commencing, instituting or prosecuting any lawsuit, action or other proceeding of any kind whatsoever, by way of action, defense, set-off, cross-complaint or counterclaim, against the FotoSets Parties arising out of, or in connection with the Products or any loss or damage thereto.
4. Pricing and Payment
4.1. Pricing and Billing Information
Pricing for the Services is described on the Site, and is subject to change without notice to you. You agree to pay FotoSets in advance any applicable fees for the Services to be provided by FotoSets under these Terms. FotoSets will bill your credit card for all fees. You will provide FotoSets with accurate and complete billing information including legal name, address, telephone number, and credit card or debit card billing information. If such information is false or fraudulent, FotoSets reserves the right to terminate your use of, or access to, the Services in addition to seeking any other legal remedies. FotoSets is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by FotoSets. Each charge will be considered valid unless disputed by you in writing within thirty (30) days after the billing date. No adjustments will be made for disputed charges made more than thirty (30) days after the billing date. All fees will be paid in U.S. dollars and are due as set forth on the Site. FotoSets’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on FotoSets’s income.
4.2. Deposits
We require that you place a deposit with us when submitting a shot list. (a “Deposit”). All Deposits are forfeited, and will be retained by FotoSets. All required deposits are subject to change without notice to you.
4.3. Refund Policy
There will be no refunds for any Deposits made to submit a shot list. There will be no refunds for any purchased Deliverables.
5. Suspension and Termination
You’re free to stop using the Services or to close your Account at any time. FotoSets reserves the right to suspend or terminate your Account and your access to and/or use of the Services, at any time, without notice. FotoSets reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that FotoSets shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services. FotoSets may, but is not required to, maintain the Deliverables relating to your Shoots after termination of your Account
6. Retaining Deliverables.
FotoSets will retain Samples in accordance with its then-current content retention policies, but not less than 90 days from the date of the applicable Shoot. Following termination of your Account, FotoSets may, but is not required to, retain Samples or other Deliverables relating to your Shoots.
7. Ownership of the Services.
You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the Services are owned by FotoSets its licensors. Your access to or use of the Services does not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. FotoSets and its affiliates and licensors and suppliers reserve all rights not granted in these Terms. You may not copy or incorporate any of the content of the Services into any work, including your own website without FotoSets’s written consent. You must have a license from us before you can post or redistribute any portion of the Services. Other than with respect to your User Materials, FotoSets retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You may not modify the Services, create derivative works of the Services, or reverse engineer, reverse compile, reverse assemble or do any other operation with the Services that would reveal any source code, trade secrets, know-how or other proprietary information. Nothing in these Terms shall be construed or interpreted as granting or providing rights to you to use, reproduce, modify, distribute, perform, display, possess or control the source code or any other aspect of the Services. You may not remove or modify any notice of confidentiality, trade secret, trademark or copyright encoded, embodied, or displayed in connection the Services. You may use the Services only while these Terms remain in effect. Under no circumstances shall you have any rights of any kind in or to the Services after any termination or expiration of your agreement to these Terms for any reason.
8. Usage Data
You acknowledge and agree that FotoSets has the right to collect, extract, compile, synthesize, and analyze usage data, analytics, statistics, and other information resulting from your access to and use of the Services (“Usage Data”). FotoSets retains ownership of all right, title, and interest in and to Usage Data, which may be used by FotoSets in connection with its performance of its obligations under these Terms and for any other lawful business purpose, including, but not limited to, benchmarking, data analysis, and to improve the Services.
9. Privacy
FotoSets respects the privacy of its users. FotoSets collects, uses, and discloses information about you in accordance with the FotoSets Privacy Policy (the “Privacy Policy”). You understand and agree that, notwithstanding any measures taken to prevent unauthorized disclosure, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to confidential information. Accordingly, FotoSets cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet.
10. User Content; Forums
10.1. User Content License
The Site may offer forums, blogs, comments areas, bulletin boards and chat rooms (collectively, “Forums”). We do not endorse the accuracy or reliability of any advice, opinions, statements, or information posted on these Forums. By using the Services, you grant us: (a) permission to access your Account and those messages, data, information, text, graphics, audio, video, photographs or other material (“User Content”) posted, uploaded, or transmitted to or through the Site using your Account, (b) a non-exclusive, perpetual, irrevocable, worldwide, fully-paid, transferable right and license, with the right to sublicense through multiple levels of sublicensees, under all of your intellectual property rights in the User Content, to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use the User Content in any medium or format, whether now known or hereafter discovered, and to exercise any and all other present or future rights in the User Content.
10.2. User Content Restrictions
You agree that you will not distribute any User Content on any Forums that: (a) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; is bigoted, hateful, or racially or otherwise offensive; is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or otherwise harms or can reasonably be expected to harm any person or entity; (b) is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including a submission that is, or represents an attempt to engage in, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity; (c) infringes or violates any right of a third party including any copyright, patent, trademark, trade secret or other proprietary or contractual rights, right of privacy (specifically, you must not distribute another person’s personal information of any kind without their express permission) or publicity, or any confidentiality obligation; (d) is commercial, business-related or advertises or offers to sell any products, services or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations); (e) contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Site or any connected network, or otherwise interferes with any person or entity’s use or enjoyment of the Site; (f) does not generally pertain to the designated topic or theme of the Site; (g) violates any specific restrictions applicable to a public forum, including its age restrictions and procedures; or (h) is antisocial, disruptive, or destructive, including “flaming,” “spamming,” “flooding,” “trolling,” and “griefing” as those terms are commonly understood and used on the Internet.
11. Third Party Software and Linking
11.1. Open Source Software
Certain items of software included with the Services may be subject to “open source” or “free software” licenses (“Open Source Software”). Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Company makes such Open Source Software, and any Company’ modifications to that Open Source Software, available by written request to Company at the email or mailing address included in these Terms.
11.2. Third Party Sites
The Site may contain links to other websites operated by third parties (each, a “Third Party Site”). Such Third Party Site are not under our control. FotoSets provides these links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Site. Your use of these Third Party Site is at your own risk.
12. Disclaimers of Warranty
12.1 THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND. FotoSets EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION GIVEN BY FotoSets, ITS EMPLOYEES OR AFFILIATES SHALL CREATE A WARRANTY.
12.2. FotoSets MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE SERVICES WILL BE AVAILABLE, OR THAT DATA WILL BE SECURE FROM UNAUTHORIZED ACCESS. 12.3. FotoSets MAKES NO REPRESENTATIONS CONCERNING ANY USER CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND FotoSets WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES.
13. Indemnity
Unless prohibited by state or federal laws to which you are subject, you will indemnify, defend (at FotoSets’s option), and hold FotoSets, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, arising out of or in any way connected with (a) your access to or use of the Services; (b) any Product Materials or User Content, (c) your violation of these Terms; or (d) your violation of any third party right, including without limitation any intellectual property right or any publicity, confidentiality, property or privacy right. FotoSets reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify FotoSets and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without FotoSets’s prior written consent. FotoSets will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
14. Limitation of Liability
14.1. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL FotoSets BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, IMAGES, DATA OR OTHER INTANGIBLES, EVEN IF FotoSets HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT RESULT FROM THE USE OR THE INABILITY TO USE THE SERVICES, FROM ANY CHANGES TO THE SERVICES OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR USER MATERIALS OR USER CONTENT. YOU SPECIFICALLY ACKNOWLEDGE THAT DOWN-TIME AND COMPUTER VIRUSES ARE RISKS INHERENT IN THE USE OF THE INTERNET AND SOFTWARE PRODUCTS, AND YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM THESE POSSIBLE HARMS. YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT YOU MAY BE DISCLOSING SENSITIVE, PRIVATE AND CONFIDENTIAL INFORMATION ABOUT YOURSELF IN YOUR USE OF THE SERVICES AND YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM YOUR RELEASE OF SUCH USER MATERIALS OR USER CONTENT.
14.2. IF YOU ARE DISSATISFIED WITH THE SERVICES OR WITH ANY OF THESE TERMS, OR FEEL FotoSets HAS BREACHED THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. THE TOTAL LIABILITY OF FotoSets TO YOU FOR ANY CLAIM ARISING FROM OR RELATING TO THESE TERMS OR USE OF SERVICES SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICES DURING THE SIX MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. IT IS THE INTENTION OF YOU AND FotoSets THAT THIS PROVISION BE CONSTRUED BY A COURT AS BEING THE BROADEST LIMITATION OF LIABILITY CONSISTENT WITH APPLICABLE LAW.
14.3. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. NOTHING IN THESE TERMS AND IN PARTICULAR WITHIN THIS “LIMITATION OF LIABILITY” CLAUSE SHALL ATTEMPT TO EXCLUDE LIABILITY THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
15. Release
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present, and future dispute, claim, controversy, demand, right, obligation, liability, action, and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other users of the Service, or any Third Party Site. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
16. International Use
We control and operate the Services from our offices in Oregon. We do not represent that the Services are appropriate or available for use in other locations outside of the United States. Persons who choose to access the Services from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. You agree to comply with all applicable laws, rules and regulations in connection with your use of the Services. Without limiting the generality of the foregoing, you agree to comply with all applicable laws regarding the transmission or transfer of any data or technical information in connection with your access to or use of the Services.
17. General
17.1 Modification
FotoSets may modify these Terms at any time. Modifications become effective immediately upon your first access to or use of the Site or Services after the “Last Revised” date at the top of these Terms. Your continued access to or use of the Site or Services after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms. If you do not agree with the modifications, do not access or use the Site or Services.
17.2. Applicable Law and Dispute Resolution
These Terms shall be governed by the laws of the State of Oregon without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction. If you believe that FotoSets has not adhered to these Terms, please contact us by e-mail at legal@myFotoSets.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation. If you and FotoSets are unable to reach a resolution to the dispute, you and FotoSets will settle the dispute exclusively under the rules of the American Arbitration Association (www.adr.org) at its Portland Oregon office. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. YOU AND COMPANY AGREE THAT ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN COMPANY AND YOU INDIVIDUALLY. YOU ACKNOWLEDGE AND AGREE THAT YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and FotoSets otherwise agree in writing, an arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or these Terms must be brought, if at all, within one year from the accrual of the claim or cause of action or be forever barred. Notwithstanding the foregoing, FotoSets may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction. If you are subject to any state or federal law requiring that the laws of a different jurisdiction apply or that prohibit dispute resolution in the manner required in this Section, then this Section shall be deemed revised to conform with such laws.
17.3. Independent Contractors
No joint venture, partnership, employment, or agency relationship exists between you and FotoSets as a result of these Terms or use of the Services.
17.4. Waiver
The failure of FotoSets to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by FotoSets in writing.
17.5. Construction
The headings of Sections of these Terms are for convenience and are not to be used in interpretation.
17.6.Contact
FotoSets is located in Portland Oregon. Any questions, comments or suggestions, including any report of violation of these Terms should be provided FotoSets as follows:
By E-mail: coolpics@fotosets.co
By Postal Mail: 1355 NW Everett. St. Suite 100, Portland OR 97209
17.7. Entire Agreement
These Terms constitute the entire agreement between you and FotoSets with respect to the Services, superseding any prior agreements between you and FotoSets. The failure of FotoSets to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you and FotoSets nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect.
