Thank you for your interest in using the PhotoBin online service (the "Service") operated by Z58, Inc. ("Z58"). These Terms of Service (the "Terms") govern your use of the Service, your use of any software that Z58 makes available to users of the Service (the "Software"), and your use of the Z58 Web site currently located at www.photobin.com (the "Site"). In these Terms, the Service, the Software and the Site are collectively referred to as the "Z58 Network." Please read these Terms carefully. By using the Z58 Network, you are stating that you have read and understand, and agree to be bound by, these Terms. If you do not agree to these Terms, you may not use the Z58 Network. The Z58 Network may be accessed from certain third-party Web sites. Your use of such third-party Web sites may be subject to applicable terms and conditions that are different from these Terms.
1. YOUR RESPONSIBILITIES
You are responsible for obtaining and maintaining all equipment and services needed in order to access and use the Z58 Network and paying all related charges. In order to access some features of the Z58 Network, you may have to register to become a member of the Z58 Network. When you register to become a member, Z58 collects certain personal information about you. You agree that Z58 may use any information Z58 obtains about you in accordance with the provisions of Z58's "Privacy Policy". You also agree to: (a) provide true, accurate, current, and complete information when prompted (e.g., at registration) and (b) maintain and update such information so that it is true, accurate, current, and complete at all times.
As part of the set-up and registration process, you may be asked to select a username and password. Z58 may refuse to grant you a username for any reason in its 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 Service 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. Z58 WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM YOUR FAILURE TO ADEQUATELY SAFEGUARD YOUR PASSWORD OR FOR ANY ACTIONS OCCURRING UNDER YOUR PASSWORD.
In addition, you agree not to use the Z58 Network to: (i) violate any local, state, national, or international law or regulation; (ii) transmit any material that is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable; (iii) transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; (iv) knowingly transmit any material that contains adware, malware, spyware, software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (v) stalk, harass, or harm another individual; (vi) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or (vii) interfere with or disrupt the Z58 Network or servers or networks connected to the Z58 Network, or disobey any requirements, procedures, policies, or regulations of networks connected to the Z58 Network.
You further agree not to use or launch any automated system, including, without limitation, "robots," "spiders," "offline readers," or the like, that access the Z58 Network in a manner that sends more request messages to the Z58 Network servers in a given period of time than a human can reasonably produce in the same period by using a conventional Web browser. Notwithstanding the foregoing, Z58 allows operators of public search engines to use spiders to index materials from the Z58 Network for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. Z58 reserves the right to revoke these exceptions either generally or in specific cases.
2. OWNERSHIP OF Z58'S CONTENT; RESTRICTIONS ON USE
The content on the Z58 Network, other than User Submissions (defined below), including without limitation photos, clips, videos, text, software, scripts, graphics, sounds, music, interactive features and the like (collectively, the "Content") and the "PhotoBin " word mark and the PhotoBin design mark, as well as certain other of the names, logos, and materials displayed on or through the Z58 Network that constitute trademarks, tradenames, service marks or logos ( the "Marks") are owned by or licensed to Z58 and are subject to copyright, trademark, and other intellectual property rights under U.S. and international laws. You agree not to reproduce, duplicate, copy, download, stream capture, archive, upload, publish, broadcast, sell, resell, modify, translate, decompile, disassemble, reverse engineer or exploit for any purposes the Z58 Network or any portion of the Z58 Network, including, without limitation, the Content and the Marks, except as authorized by these Terms or as otherwise authorized in writing by Z58 and its applicable licensors. In addition, you are strictly prohibited from creating derivative works, or materials that otherwise are derived from or based on in any way the Content and the Marks, including montages, mash-ups and similar works, except as authorized by these Terms or as otherwise authorized in writing by Z58 and its applicable licensors.
The Z58 Network is provided for your personal use only. You must abide by all copyright notices, information, and restrictions contained in or associated with any Content. You must not remove, alter, interfere with, or circumvent any copyright, trademark, or other proprietary notices marked on the Content or any digital rights management mechanism, device or other content protection or access control measure associated with the Content.
3. USER PHOTOS, COMMENTS, REVIEWS
The Z58 Network enables you to submit, scan and store your photographs as well as post textual comments and other content to the Z58 Network (collectively, "User Submissions"), and such User Submissions will generally be available to all users of the Z58 Network. [When you provide Z58 with a User Submission, you grant to Z58 and its affiliates, representatives, and their successors and assigns a non-exclusive, fully-paid, royalty-free, transferable, world-wide license, with the right to grant sublicenses through multiple tiers of sublicensees, to display, publicly perform, distribute (including, without limitation, through third-party Web sites), store, transcode, broadcast, transmit, reproduce, edit, modify, create derivative works, and otherwise use and reuse your User Submissions (or any portions or derivative works thereof) in any manner, in any medium now known or hereinafter created, for any purpose.]
You acknowledge and agree that you have no expectation of compensation of any nature with respect to any User Submissions, except and only to the extent that the Service enables you to monetize your content.
You acknowledge and agree that you have no expectation of confidentiality of any nature with respect to any User Submissions. Because of the viral nature of social media, you should not submit any content to the Z58 Network that you do not want to be viewed by others. In certain instances, Z58 may enable you to elect to make your User Submissions "private" or to limit access to certain individual users. While this means that the applicable User Submissions will not be readily available through Z58's search feature, it does not mean that the other persons, including, persons whom you have not granted access to the applicable User Submissions, will be unable to access or view the User Submissions. Accordingly, Z58 does not, and cannot, guarantee that a "private" User Submission will remain private or will not be viewed by persons not granted access by you.
Z58 reserves the right to display advertisements in connection with your User Submissions.
If you remove or delete a User Submission from the Site, that User Submission will be removed from the Site within a reasonable period of time. Z58 may maintain copies of your User Submission for archival purposes. Z58 is not required to host, display, or distribute any User Submissions, and may remove them at any time. Z58 is not responsible for any loss, theft or damage of any kind to any User Submissions.
You represent and warrant that: (a) you own all rights in your User Submissions or, alternatively, you have acquired all necessary rights in your User Submissions to enable you to scan, store and display your User Submissions (as applicable) and to grant to Z58 the rights in your User Submissions described herein; (b) you have paid or satisfied and will pay or satisfy in full all license fees, clearance fees, royalties, and any other financial or third party obligations of any kind, arising from any use or commercial exploitation of your User Submissions, and Z58 will not be responsible for such obligations; (c) you are the individual pictured in your User Submissions, or, alternatively, you have obtained permission from each person (including consent from parents or guardians for any individual under the applicable age of majority); and (d) your User Submissions do not infringe the intellectual property rights, privacy rights, publicity rights, or any other legal or moral rights of any third party. You agree to keep all records necessary to establish that your User Submissions do not violate any of the foregoing representations and warranties and to make such records available to Z58 upon Z58's request.
You acknowledge that Z58 does not necessarily pre-screen any User Submissions uploaded by you or other users of the Z58 Network but that Z58 may pre-screen, or review after initial posting, your User Submissions for a variety of reasons, including, without limitation, for compliance with these Terms. Z58 and its designees shall have the right in its sole discretion to refuse or remove any User Submissions that violate the Terms or are otherwise objectionable, as well as terminate your access to the Z58 Network. Z58 disclaims any and all liability in connection with any and all User Submissions, and you agree to waive any legal or equitable rights or remedies you may have against Z58 with respect to such User Submissions.
4. FEEDBACK
You further agree that Z58 and its affiliates are free to use for any purpose whatsoever, ideas, know-how, concepts, techniques, comments, criticisms, reports, or other feedback or content posted in response to, as a supplement to, or in association with any other content available on or in connection with the Z58 Network ("Feedback"), whether oral, written or video/multimedia, that you may send to Z58 or its affiliates. You acknowledge and agree that you have no expectation of compensation or confidentiality of any nature, and that Z58 has no duties to you, with respect to such Feedback.
5. TECHNICAL SUPPORT
Z58 tech support is limited to email correspondence. Should you have a question or issue regarding the use of the Network that cannot be resolved through the information available on our site Help Guide, please email your question to: support@z58.com. Z58 is not responsible for providing support for your own computers, email, browser, internet connection or other software, equipment or systems that you may be using. While Z58 will try to respond to tech support emails in a timely manner, Z58 makes no representations or warranties regarding our technical support, including regarding our response times. You acknowledge and agree that there may be technical problems with the Network that we are unable to resolve.
6. COPYRIGHT INFRINGEMENT NOTICE PROCEDURE
(a) Copyright Infringement Notification. Z58 respects the intellectual property rights of others. Upon proper notice, Z58 will remove User Submissions that violate copyright law, suspend access to the Z58 Network (or any portion thereof) to any user who uses the Z58 Network in violation of copyright law, and terminate the accounts of repeat infringers.
Pursuant to Title 17 of the U.S. Code, Section 512, Z58 has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your work has been copied in a way that constitutes copyright infringement, please send Z58's copyright agent a notification of claimed infringement with all of the following information: (i) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (ii) identification of the claimed infringing material and information reasonably sufficient to permit Z58 to locate the material on the Z58 Network; (iii) information reasonably sufficient to permit Z58 to contact you, such as an address, telephone number, and, if available, an e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (v) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and (vi) your physical or electronic signature. Please provide us with a notice that includes all of the above enumerated information ("Notice of Infringement") and fax, email or mail it to the following Z58 copyright agent:
Z58 copyright agent
Z58, Inc.
10045 Mesa Rim Rd.
San Diego, CA 92121
info@z58.com
Fax: 858-869-9944
By submitting a Notice of Infringement, you acknowledge and agree that Z58 may forward your Notice of Infringement and any related communications to any users who posted the material identified in such notice.
Please do not send notices or inquiries unrelated to alleged copyright infringement to Z58's designated agent.
(b) Counter Notification. If you believe that your content has been wrongfully removed from the Z58 Network, you may send Z58 a counter notification. Pursuant to federal law you may be held liable for damages if you make material misrepresentations in a counter notification.
In compliance with Title 17 of the U.S. Code, Section 512, your counter notification, to be effective, must be in writing, sent to Z58's designated agent (as identified above in Section 4(a)), and include substantially the following information: (i) your physical or electronic signature; (ii) identification of the material that has been removed or to which access has been disabled and the location where the material previously appeared on the Z58 Network; (iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (iv) your name, address, and telephone number and a statement that you consent to the jurisdiction of the Federal District Court in the district in which your address is located (or in the Central District of California, for addresses outside the U.S.) and agree to accept service of process from the person who submitted the original Notice of Infringement that resulted in your User Submission being removed (or an agent of such person) in the event he or she elects to file suit.
By submitting a counter notification, you acknowledge and agree that Z58 may forward your counter notification and any related communications to the person who submitted the original Notice of Infringement that resulted in the removal of your User Submission or to other third parties.
7. PURCHASES
If you wish to purchase any products or services through the Service, Z58 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". Your purchases will be subject to Z58's "Purchasing Terms and Conditions".
8. TERMINATION
PhotoBin is highly committed to customer satisfaction and stands behind its products and services. All prints and photo products have a 30 days satisfaction guarantee. If you are unsatisfied with a product, you can return it for a full refund. (Less shipping costs). To initiate the return process, please contact us at info@z58.com.
Your right to use the Z58 Network automatically terminates if you violate these Terms or any rules or guidelines posted in connection with the Z58 Network. Z58 reserves the right, in its sole discretion, to terminate your access to all or part of the Z58 Network, for any reason, with or without notice. FURTHER, YOU AGREE THAT Z58 SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR REMOVING YOUR (OR ANY OTHER PERSON'S) USER SUBMISSIONS, FEEDBACK OR SUSPENDING OR TERMINATING YOUR (OR ANY OTHER PERSON'S) ACCESS TO THE Z58 NETWORK (OR ANY PORTION THEREOF).
9. MODIFICATIONS TO Z58 NETWORK
Z58 reserves the right to modify or discontinue the Z58 Network with or without notice to you. Z58 shall not be liable to you or any third party should Z58 exercise its right to modify or discontinue the Z58 Network.
10. LINKS
The Z58 Network may contain links to third party Web sites or Internet resources that are not owned or controlled by Z58. Z58's provision of a link to any other Web site or Internet resource is for your convenience only and does not signify Z58's endorsement of such other Web site or resource or its contents. Z58 SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY CONTENT, INFORMATION, SOFTWARE, MATERIALS OR PRACTICES OF ANY THIRD PARTY WEB SITE OR INTERNET RESOURCE, INCLUDING ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE Z58 NETWORK OR ANY LINKED WEB SITE OR FEATURED IN ANY ADVERTISING.
11. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF THE Z58 NETWORK IS AT YOUR SOLE RISK. THE Z58 NETWORK IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, Z58 AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE Z58 NETWORK (INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT).
Z58 and its affiliates make no warranties or representations about the accuracy or completeness of content available on or through the Z58 Network or the content of any Web sites linked to the Z58 Network and assume no liability or responsibility for any: (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of the Z58 Network; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information and/or financial information stored therein; (iv) any interruption or cessation of transmission to or from the Z58 Network; (v) any bugs, viruses, Trojan horses, or the like which may be transmitted to or through the Z58 Network by any third party; and/or (vi) for any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available on or through the Z58 Network.
12. LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL Z58 OR ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, SUBSIDIARIES, AFFILIATES, AGENTS, OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM YOUR (OR ANYONE USING YOUR ACCOUNT'S) USE OF THE Z58 NETWORK.
YOU SUBMIT YOUR USER SUBMISSIONS ENTIRELY AT YOUR OWN RISK. Z58 WILL HAVE NO LIABILITY WHATSOEVER IF YOUR USER SUBMISSIONS, WHETHER PHYSICALLY OR DIGITALLY TRANSMITTED TO US, ARE LOST, STOLEN OR DAMAGED.
13. EXCLUSIONS AND LIMITATIONS
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent Z58 may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Z58's liability shall be the minimum permitted under such applicable law.
14. INDEMNIFICATION
You agree to indemnify, defend, and hold harmless Z58, its subsidiaries, affiliates, officers, directors, employees, consultants and agents from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and costs) that they may incur as a result of or arising from (a) any information (including, without limitation, your User Submissions, Feedback, or any other content) you (or anyone using your account) submit, post, or transmit on or through the Z58 Network; (b) your (or anyone using your account's) use of the Service and the Z58 Network (including; without limitation, any and all purchases) (c) your (or anyone using your account's) violation of these Terms; or (d) your (or anyone using your account's) violation of any rights of any other person or entity, including, without limitation, any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. Z58 reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Z58 in asserting any available defenses.
15. MINORS; ABILITY TO ACCEPT TERMS OF SERVICE
The Z58 Network is not intended for children under 13. If you are under 13 years of age, please do not use the Z58 Network. Some Content on the Z58 Network may be intended for mature audiences and, depending upon your age, you may be restricted from accessing such Content.
You affirm that you are the applicable age of majority or older, or that you have obtained the consent of your parent or legal guardian or that you are an emancipated minor. You also affirm that you are fully able and competent to enter into these Terms and to abide by and comply with them.
16. CHOICE OF LAW; VENUE
This Agreement shall be governed exclusively by, and construed in accordance with the laws of the State of California, without reference to any conflict of laws principles. The exclusive forum for any disputes arising out of or relating to this Agreement shall be an appropriate federal or state court located in Los Angeles, California and you hereby expressly consent to personal jurisdiction in such courts and waive all venue, jurisdiction and choice of law challenges or defenses.
17. INTERNATIONAL USE.
We do not represent or warrant that the Z58 Network, or any part of it, is appropriate or available for use in any particular jurisdiction. You access the Z58 Network on your own initiative and at your own risk, and are responsible for complying with all local laws, rules and regulations. We may limit the availability of Z58 Network, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
18. MISCELLANEOUS
These Terms constitute the entire and exclusive and final statement of the agreement between you and Z58 with respect to the subject matter hereof, and govern your use of the Z58 Network, superseding any prior agreements or negotiations between you and Z58 with respect to the subject matter hereof. To the extent you enter or are otherwise eligible for any contest, sweepstakes or other promotion, you may be subject to separate or additional terms and conditions that govern such contest, sweepstakes or other promotion, which will be made available on the Site at such time. The failure of Z58 to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If for any reason any provision of these Terms is found to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties as reflected in that provision, and the remainder of these Terms shall continue in full force and effect. The section titles in these Terms are for convenience only and have no legal or contractual effect.
19. MODIFICATIONS TO TERMS
Z58 may, in its sole and absolute discretion, change these Terms from time to time. In case of any material change to these Terms, we will replace the "Terms of Service" link on our home page with a link entitled "Terms of Service: Updated" for no less than 30 days. All changes to the Terms or the Privacy Policy will be effective when posted, and your continued use of the Service after the posting will constitute acceptance of, and agreement to be bound by, those changes. If you object to any such changes, your sole recourse shall be to cease using the Z58 Network.
The effective date of these Terms is July 23, 2009.
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