Last Updated: April, 2020
Please carefully read these Terms and Conditions (this “Agreement”).
This Agreement between you and ImageKeeper LLC (“ImageKeeper”, “Company”,
“us”, “our”, or “we”) governs your use of www.imagekeeper.com and any other ImageKeeper-operated
websites and applications that link to this Agreement (collectively, the “Platform”)
and the training materials, content, and services available through the Platform
(collectively, Platform and all related materials, content, and services are
referred to herein as the “Services”).
By accessing the SERVICES,
you agree to be bound by this Agreement WITHOUT ANY MODIFICATION.
DO
NOT ACCESS OR USE THE SERVICES IN ANY WAY IF YOU DO NOT AGREE TO THIS
AGREEMENT. IF YOU ARE ACCESSING AND USING THE SERVICES ON BEHALF OF AN ENTITY,
YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACT ON BEHALF OF
SUCH ENTITY AND TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT.
IMPORTANT NOTICE: YOUR USE OF THE SERVICES IS SUBJECT
TO AN ARBITRATION PROVISION IN SECTION 11, REQUIRING ALL CLAIMS TO BE RESOLVED
VIA INDIVIDUAL BINDING ARBITRATION.
1.
Registration and Eligibility for Services
A.
Registration.
In order to utilize some of the Services’ features, you
must register and create an account. In order to create an account, you must
complete the registration process by providing ImageKeeper with complete and
accurate information as prompted by the registration form, including contact
information, and a username. You shall protect your password and take full
responsibility for your own and third-party activities that occur under your
account. You agree to notify ImageKeeper immediately of any unauthorized use of
your account or any other breach of security. If you create an account on
behalf of an entity, this Agreement binds both you and the entity.
B.
Refusal of Service.
ImageKeeper reserves the right, with or without notice, to
terminate the account of, or refuse service to, any persons that violate this
Agreement, violate any party’s intellectual property rights, abuse other users
of the Services, misuse the Services, or otherwise engage in inappropriate
conduct, as determined by ImageKeeper in its sole discretion.
C.
Information Submission and Age Restriction.
By submitting any information, including any User Content
as defined below, through the Services, you represent and warrant that you are
18 years of age or older, and, if under the age of majority in your state, you
are either an emancipated minor, or have obtained the legal consent of your
parent or legal guardian to enter into this Agreement and use the Services. ImageKeeper
does not intend to use the Services to collect any information from children
under age 18. Pursuant to 47 U.S.C. § 230(d), you are notified that parental
control protections (such as computer hardware, software, or filtering
services) are commercially available that may assist you in limiting access to
material that is harmful to minors. For information on providers of such
services, contact your information technology professional.
D.
Electronic Communications.
By accepting
this Agreement and using the Services, you consent to receive electronically
all communications or notices sent by
ImageKeeper
with regard to the Services or this
Agreement to any email address you provide to
ImageKeeper
. It is your responsibility to update your
contact information provided to
ImageKeeper
. In order to receive electronic communications, you must
have a working connection to the internet and meet any specifications required
by your email service provider.
ImageKeeper may send communications in a non-electronic format in ImageKeeper’s
discretion. Emails sent to any @imagekeeper.com email address are governed by our Privacy Policy https://www.imagekeeper.com/PrivacyPolicy
.
2.
Revisions to this Agreement.
We may revise and update this Agreement from time to time, and
will post the updated Agreement to the Services. Unless otherwise stated in the
amended version of the Agreement, any changes to this Agreement will apply
immediately upon posting. Other than updating the date at the top of the
Agreement, we generally will not notify you of any such changes by email or
other personal contact, but we reserve the right to do so. You should revisit
these Terms on a regular basis as revised versions will be binding upon you. Your
continued use of this Services will constitute your agreement to any new
provisions within the revised Agreement.
3.
Access to and Use of the Services; Proprietary Rights.
A.
Ownership.
All written content, videos, or other materials prepared
and posted by ImageKeeper (not including User Content), and the Services
design, layout, look, appearance, and graphics, as well as the trademarks,
service marks, and logos contained on our Services (collectively, “
ImageKeeper
Content
”) are owned by or licensed to ImageKeeper and are subject to
copyright, trademark, and other intellectual property rights under the United
States and foreign laws and international conventions. ImageKeeper reserves all
rights not expressly granted in, and to, the Services and the ImageKeeper
Content.
B.
Access and Use of the Services.
Subject to, and in accordance with, this Agreement, and
contingent upon all required payments, ImageKeeper agrees to provide you with a
non-exclusive, non-transferable account enabling you and/or your employees to
access and use the Services for your personal or internal business needs only
(and not for service bureau, time-sharing, or similar services). Each user
account is valid for one user only and may not be shared concurrently or
otherwise by or among multiple users.
You also agree
to ensure that you exit from your account at the end of each session. You
should use particular caution when accessing your account from a public or
shared computer so that others are not able to view or record your password or
other personal information.
You are not permitted to use, share or transfer access to
the Services in excess of the usage limitations set forth in this Agreement or
in any manner not expressly authorized by this Agreement or applicable law.
Unless multiple site subscriptions are purchased, the Services may only be used
by your employees or your wholly-owned affiliated entities that are based at a
single physical site or location. Your authorization to access and use the
Services is automatically revoked if you violate any of this Agreement. ImageKeeper
reserves the right to revoke your authorization to access or use the Services
at any time for any reason. Except as otherwise provided in this
Agreement, no part of the Services and no ImageKeeper Content may be copied,
reproduced, uploaded, posted, publicly displayed, transmitted, or distributed
in any way to any other computer, server, Services, or other medium for
publication or distribution or for any commercial use without ImageKeeper’s
prior express written consent. Your access to this Services is provided on a
temporary basis with no guarantee for future availability.
C.
Services Availability.
We reserve the right to withdraw
or amend th
ese Platform
, and any service or
material we provide on the
Platform
, in our
sole discretion without notice.
There may be times when the Services is
unavailable due to technical errors or for maintenance and support activities.
We do not represent, warrant, or guarantee that the Services will always be
available or is completely free of human or technological errors.
We will not be liable if, for any reason, all or any part
of the
Platform are unavailable at any time or for any period.
You must provide the equipment and Internet connections
necessary to access the Services at your own expense. We do not guarantee that
the Services will operate with your computer, mobile device, internet service
plans, or mobile provider service plans or with any particular computer or
other piece of hardware, software, equipment, or device you install on or use
with your computer.
D.
Security.
You shall be solely responsible for the security,
confidentiality and integrity of all information that you receive, transmit
through or store on the Services. You understand that we cannot and do not
guarantee or warrant that files available for downloading from the Internet or
the Platform will be free of viruses or other destructive code. You are
responsible for implementing sufficient procedures and checkpoints to satisfy
your particular requirements for anti-virus protection and accuracy of data
input and output, and for maintaining a means external to our Platform for any
reconstruction of any lost data. No data transmission over the Internet can be
guaranteed to be 100% safe. Thus, we cannot warrant that your information will
be absolutely secure. You shall be solely responsible for any authorized or
unauthorized access and use of your account by any person. You have the
affirmative responsibility to monitor and control access to your account information.
E.
Payment; Automatic Renewal.
You shall pay to ImageKeeper for use of the Services the
annual or monthly subscription fee, volume or per use as set forth in the
“Shopping Cart” located on the ImageKeeper Website, contract, software services
agreement or other applicable order form agreed to by the parties, the first
payment due and payable upon ordering of the subscription to the Services and
each successive payment due and payable on or prior to the date of the annual or
monthly anniversary of User’s ordering of the subscription to the Services
(collectively, “Fees”). ImageKeeper expressly reserves the right to change the
Fees at any time, upon notice to User or by posting such change in Fees on ImageKeeper’s
Website or advertising materials. If you do not cancel your subscription before
your annual or monthly anniversary date, your subscription will be
automatically renewed for another annual or monthly subscription period at the
current subscription price. The renewal fee will automatically be charged to
your credit card or other payment type, agreements, contracts on file with ImageKeeper.
ImageKeeper does not guarantee refunds for lack of usage or dissatisfaction
with the Services.
F.
Collection and Taxes.
All Fees, Taxes, purchase prices, and other charges under
this Agreement shall be billed to your credit or debit card, ACH or other
payment method by ImageKeeper or its third-party service provider, if any, at
the current international currency conversion rate. You shall be responsible
for and shall pay ImageKeeper 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 any governmental entity. You shall promptly pay ImageKeeper in
the event of any refusal of your credit or debit card issuer or other payment
provider or institution to pay any amount to ImageKeeper for any reason. You
agree to pay interest at the rate equal to the lesser of 1.5% per month, or the
maximum rate allowed by applicable law, on any outstanding balance, together
with costs of collection, including attorneys’ fees and costs. In the event
you fail to pay any amount when due, ImageKeeper may immediately suspend or
terminate this Agreement and your access to the Services.
G.
User Data after Termination.
In the event you cancel your subscription, you terminate
this Agreement, or your access to the Services is otherwise revoked, you will
no longer be able to access your user data through the Services. However, if requested
within thirty (30) days after the effective date of such cancellation,
termination, or revocation, ImageKeeper will make available to you for download
a file of your user data in comma separated value (.csv) format. After such thirty-day
period, ImageKeeper shall have no obligation to maintain or provide any user
data and may thereafter, unless legally prohibited, delete all user data in its
systems or otherwise in its possession or under its control. The cost to
provide you the user data pursuant to this section shall be $100.00 or such
other updated fee to be determined by ImageKeeper.
4.
User Representations; Restrictions on Use of Services.
You represent and warrant to ImageKeeper that: (a) all
information provided by you to ImageKeeper is truthful, accurate and complete;
(b) You are an authorized signatory of the credit or debit card, ACH
account or other payment method, if any, provided to ImageKeeper to pay the
Fees, Taxes, purchase prices, and other charges; (c) You shall comply with
all terms and conditions of this Agreement; (d) You have provided and will
maintain accurate and complete registration information with ImageKeeper,
including, without limitation, your legal name, address and telephone number;
(e) Your access to and/or use of the Services does not and will not constitute
a breach or violation of any other agreement, contract, terms of use, or
similar policy or understanding to which you are or may be subject; (f) You
will not use the Services to violate any statute, law, rule or regulation, to
violate any agreement between ImageKeeper and you or to otherwise violate the
legal rights of ImageKeeper or any third person; (g) You will not access or use
the Services in order to gain competitive intelligence about ImageKeeper, the
Services, or any product or service offered by ImageKeeper or to otherwise
compete with ImageKeeper; and (h) You are in fact
an
authorized representative of the entity on behalf of which you purport to act
.
In addition to complying with any other posted terms and
conditions applicable to your use of the Services, you agree that when using
the Services, you will not:
·
Use the Services or any ImageKeeper Content in any way or for any
purpose that would violate, or would have the effect of violating, any
applicable laws, rules or regulations or any rights of any third parties,
including without limitation, any law or right regarding any copyright, patent,
trademark, trade secret, or other proprietary or property right, false
advertising, telemarketing, unfair competition, defamation, invasion of
privacy, rights of celebrity, or other federal or state law, rule, or
regulation;
·
Delete, modify, or attempt to change or alter any of the ImageKeeper
Content or notices on the Services;
·
Introduce into the Services any virus, rogue program, time bomb,
drop dead device, back door, Trojan horse, worm or other malicious or
destructive code, software routines, denial of service attack, or equipment
components designed to permit unauthorized access to the Services, or to
otherwise harm other users, ImageKeeper Content, or any third parties, or
perform any such actions;
·
Use the Platform in any manner that could disable, overburden,
damage, or impair the Platform or interfere with any other party’s use of the
Platform, including their ability to engage in real time activities through the
Platform;
·
Use the Services to commit fraud or conduct other unlawful
activities;
·
Access or attempt to access any other person’s account,
information, or content without permission;
·
Copy, modify, create derivative works, reverse engineer,
decompile, disassemble, or otherwise attempt to learn the source code,
structure, or ideas upon which the Services is based;
·
Use any bot, spider, or other automatic or manual device or
process for the purpose of harvesting or scraping the information contained on
the Services for any reason;
·
Frame or mirror any part of the Services;
·
Connect to or access any ImageKeeper computer system or network
without authorization; or
·
Use the information in the Services to create or sell a similar
service.
In order to protect the integrity of the Services, ImageKeeper
reserves the right at any time in its sole discretion to block users from
certain IP addresses from accessing the Services. You may not use any technologies
or processes to circumvent any IP blocks or other mechanism put in place by ImageKeeper
to limit, restrict, or prevent access to the Services.
5.
User-Generated Content.
The Services includes features that allow you to upload,
submit, or send content through the Platform (e.g., reviews, ratings, photos,
or comments) (“User Content”). This Section provides the terms and
conditions governing your use of such features.
A.
User Obligations and License; Intellectual Property.
You alone own and are solely responsible for all User
Content you post, upload, or otherwise transmit (collectively “Post”)
through the Services and once Posted, it cannot always be withdrawn. You agree
not to Post through the Services any User Content which is false, defamatory,
infringes upon another party’s intellectual property, or is otherwise illegal.
By Posting User Content on the Services, you warrant and represent that you
have the right to post such information and that such information is truthful
and accurate.
B.
License to User Content.
By submitting User Content to the Services, you grant, and
represent and warrant that you have the right to grant, ImageKeeper a
worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable,
and transferable license to use, reproduce, distribute, create derivative works
of, adapt, display, and perform User Content in all media now known or
hereafter created without attribution for any purpose. You hereby waive all moral
rights to User Content.
C.
Prohibited Content.
You agree that you will not use the Services to send,
Post, or publish:
o
Any content that is obscene, defamatory, threatening, harassing,
abusive, slanderous, racially or ethnically offensive, hateful, or embarrassing
to any other person or entity;
o
Any review or rating that does not reflect your lawful, honest,
and good faith opinion or discloses any material conflict of interest or
relationship that might influence your opinion (e.g., if you are a paid
endorser of a product that you review);
o
Any message, data, code, or software that would violate our, or
any third party, proprietary, or intellectual property rights, including
unauthorized copyright text, images, programs, trade secrets, or other
confidential or proprietary information, or use trademarks or service marks in
an infringing fashion;
o
Any personal information of a third party, or images that include
a third party or depict a third party’s likeness, without the third party’s
consent;
o
Any advertisements or solicitations of business, chain letters,
pyramid schemes, or bulk e-mail lists or upload;
o
Any materials that violate, could cause us or a third party to
violate, or encourage us or a third party to violate any applicable law,
statute, ordinance, or regulation; or
o
Any content or communications intended to impersonate someone
else.
D.
Your Responsibility for User Content.
Your User Content is your sole responsibility and you
assume all risks associated with your Posted User Content. Under no
circumstances will we be liable in any way for User Content or for any loss or
damage of any kind incurred as a result of the use of any of User Content. ImageKeeper
further reserves the right to monitor, delete or modify any User Content that
it deems offensive, inappropriate, advertising, illegal, off-topic or which otherwise
violates this Agreement.
E.
Communications Decency Act.
As provided in 47 U.S.C. § 230(c)(1), ImageKeeper is
only a distributer, and not the publisher or speaker, of any User Content. As
such, ImageKeeper cannot be held liable for making available any User Content
which may be false or inaccurate. Any information or opinions contained in the
User Content made available through the services are those of their respective
authors alone. ImageKeeper does not guarantee the accuracy, completeness, or
truthfulness of any User Content. Under no circumstances will ImageKeeper be
responsible for any loss or damage resulting from any person’s reliance on any
User Content.
F.
Reservation of Rights.
Subject to Section 13 below regarding the DMCA, ImageKeeper
reserves the right to remove or not remove any User Content from the Services
for any reason or no reason at all, in ImageKeeper’s sole discretion. This
reservation includes the exclusive right to decide whether to publish,
withdraw, postpone, or alter any User Content. ImageKeeper reserves the right,
but does not undertake any affirmative obligation, to screen, monitor, or
filter User Content.
G.
Information Storage and Access.
ImageKeeper reserves the right, in its sole discretion, to
determine whether and how long to store User Content and user data in
accordance with its Privacy Policy. ImageKeeper will not be responsible for
any liability related to the deletion or removal or any data or content
maintained on the Services or ImageKeeper’s servers.
H.
Your Suggestions.
We welcome your comments regarding the Services and ImageKeeper
Content, and our services. In addition to the license you grant to us, above,
for User Content, if you elect to provide or make available suggestions,
comments, ideas, improvements, or other information or materials (collectively,
“Suggestions”) to us in connection with or related to the Services, ImageKeeper
Content or our services (including any related technology), whether you send
such Suggestions to us through the Services or through a separate communication
channel, you grant us a worldwide, perpetual, irrevocable, non-exclusive, royalty-free,
sub-licensable, and transferable license under any and all rights in and to the
Suggestions to use, reproduce, distribute, create derivative works of, adapt,
display, perform, and otherwise exploit, and to make, have made, sell, offer to
sell, and import any products and services incorporating or based on,
Suggestions in any manner. Please do not send us such information or materials
if you do not wish to grant us the rights set forth in this Section.
6.
User Privacy.
The Services are governed by the ImageKeeper Privacy Policy
which is located at https://www.imagekeeper.com/PrivacyPolicy.
Please read the Privacy Policy before accessing the Services or providing any
personal information through the Services.
7.
Changes to the Platform.
We may update the content on the Platform from time to time,
but its content is not necessarily complete or up-to-date. Any of the material
on the Platform may be out of date at any given time, and we are under no
obligation to update such material.
We may from time to time develop and provide Platform
updates, which may include upgrades, bug fixes, patches and other error
corrections or new features (collectively, including related documentation,
“Updates”). Updates may also modify or delete in their entirety certain
features and functionality. You agree that we have no obligation to provide any
Updates or to continue to provide or enable any particular features or
functionality. Based on your mobile device settings, when your mobile device is
connected to the internet either:
-
the Application will automatically download and
install all available Updates; or
-
you may receive notice of or be
prompted to download and install available Updates.
You will promptly download and install all Updates and
acknowledge and agree that the Application or portions of it may not properly
operate if you fail to do so. You further agree that all Updates will be deemed
part of the Application and be subject to all terms and conditions of this
Agreement.
8.
Third Party Websites and Services.
The Services may use or provide access to one or more third parties
to process payments, process account or user registrations, or provide other
services. Your interactions with any of these third parties is controlled by
the terms and conditions imposed by those third parties. Any disputes arising
regarding a third party’s services must be resolved directly between user and
the third party. ImageKeeper disclaims all warranties or representations
regarding any third-party services. ImageKeeper, in its sole discretion, and
without notice to you or any user, may subcontract any services related to the Services
to be performed by a third party.
9.
Disclaimer of Warranties.
EXCEPT AS WE OTHERWISE EXPRESSLY PROVIDE IN THIS AGREEMENT,
THE PLATFORM AND SERVICES AND ALL RELATED SERVICES OF IMAGEKEEPER ARE
PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT
YOUR SOLE RISK. WE, OUR THIRD-PARTY LICENSORS, AND BUSINESS PARTNERS DO NOT
WARRANT OR MAKE ANY PROMISES REGARDING THE COMPLETENESS, CORRECTNESS, QUALITY, USEFULNESS,
ACCURACY, AVAILABILITY, OR RELIABILITY OF: (i) YOUR USE OR THE RESULTS OF YOUR
USE OF THE SERVICES; (ii) ANY ADVICE YOU GLEAN FROM THE SERVICES WHETHER
PROVIDED BY US OR A THIRD PARTY; OR (iii) ANY OTHER CONTENT AVAILABLE THROUGH
THE SERVICES. WE DO NOT PROMISE THAT THE SERVICES WILL BE UNINTERRUPTED OR
ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. WE GIVE NO WARRANTY OF ANY
KIND, INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR
FITNESS FOR A PARTICULAR PURPOSE. WE, OUR THIRD-PARTY LICENSORS, AND BUSINESS
PARTNERS WILL HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY,
OR FAILURE TO STORE ANY COMMUNICATION, OR CONTENT.
We do not make any representation or warranty concerning errors,
omissions, delays, or defects in the Services or any information supplied to
you via the Services, or that files available through Services are free of
viruses, worms, Trojan horses, or other code that include or manifest
contaminating or destructive characteristics. ImageKeeper is not a backup
service for storing User Data, and ImageKeeper shall have no liability
regarding any loss of User Data. Users are solely responsible for creating
backups of any User Data uploaded using the Online Services.
WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A
DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL
MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR
OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE
PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM
OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON
ANY WEBSITE LINKED TO IT.
WHILE IMAGEKEEPER USES COMMERCIALLY REASONABLE EFFORTS TO
UPDATE THE SERVICES IN ACCORDANCE WITH continually changing laws, codes,
standards, REQUIREMENTS AND regulations (COLLECTIVELY, “LAWS”), information and
forms, USER must always examine THE most current laws, information and forms to
ensure that USER IS in full compliance WITH ANY AND ALL APPLICABLE LAWS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMERS, IMAGEKEEPER DOES
NOT WARRANT THAT USE OF THE SERVICES WILL RESULT IN USER’S COMPLIANCE WITH ANY
APPLICABLE LAWS, AND USER UNDERSTANDS AND ACKNOWLEDGES THAT IT IS SOLELY
RESPONSIBLE FOR ENSURING ITS COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS. BY
PROVIDING THE SERVICES, IMAGEKEEPER IS NOT PROVIDING USER WITH LEGAL ADVICE.
THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL
PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED
WARRANTY, SO THESE DISCLAIMERS MAY NOT APPLY TO YOU. ALL PRODUCTS YOU PURCHASE THROUGH
THE SERVICES ARE SOLD BY THE SELLER AND NOT BY IMAGEKEEPER.
10.
Limitation of Liability.
A.
Services and Related Conduct.
NEITHER IMAGEKEEPER, NOR ANY OF ITS SUBSIDIARIES,
AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, CONTRACTORS,
BUSINESS PARTNERS, LICENSORS, EMPLOYEES, ASSIGNEES, AND SUCCESSORS-IN-INTEREST
(COLLECTIVELY, THE “IMAGEKEEPER PARTIES”), WILL BE LIABLE TO YOU OR ANY
THIRD PARTY FOR ANY CLAIMS, DEMANDS, OR CAUSES OF ACTION, DIRECT OR INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE DAMAGES OR LOST
PROFITS, BODILY INJURY OR EMOTIONAL DISTRESS, OR REPUTATIONAL HARM, WHETHER
BASEDON A CLAIM OR ACTION FO CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY,
OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITTY OR CONTRIBUTION, OR
OTHERWISE, RELATING TO THIS AGREEMENT, YOUR USE OF THE SERVICES, OR ANY
INFORMATION YOU OBTAIN ON IT, OR ANY OTHER INTERACTION WITH THE SERVICES,
AND YOU VOLUNTARILY AND UNEQUIVOCALLY WAIVE ANY LIABILITY OF THE IMAGEKEEPER
PARTIES EVE IF YOU HAVE ADVISED IMAGEKEEPER PARTIES OF THE POSSIBILITY OF SUCH
DAMANGES SOME STATES DO NOT DO NOT ALLOW THE LIMITATION OR EXCLUSION OF
LIABILITY FOR INCDIENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR
EXCLUSIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU. IMAGEKEEPER IS NOT AN
INSURER WITH REGARD TO PERFORMANCE OF THE SERVICES. THE DISCLAIMER OF
WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE
RISKS ASSUMED BY THE PARTIES IN ORDER FOR USER TO OBTAIN THE RIGHTS TO USE THE
SERVICES AT THE SPECIFIED PRICE, IF ANY. USER AGREES TO ASSUME THE RISK FOR:
(i) ALL LIABILITIES DISCLAIMED BY IMAGEKEEPER CONTAINED HEREIN; AND (ii) ALL
ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED
HEREUNDER. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES
WILL BE TO STOP USING THE SERVICES.
B.
ImageKeeper’s Maximum Liability for Any Claim.
IN ANY EVENT, THE MAXIMUM CUMULATIVE AND TOTAL LIABILITY
OF THE IMAGEKEEPER PARTIES, FOR ANY CLAIMS WHATSOEVER RELATING IN ANY WAY TO
THIS AGREEMENT OR YOUR USE OF THE SERVICES OR PURCHASE OF A PRODUCT THROUGH THE
SERVICES OR YOUR USE OF ANY SUCH PRODUCT, INCLUDING CLAIMS FOR BREACH OF
CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND
YOUR SOLE REMEDY, SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED
ONE THOUSAND U.S. DOLLARS ($1000.00 USD).
C.
State Law Waiver.
In entering into this release you expressly waive any
protections (whether statutory or otherwise), including Section 1542 of the
California Civil Code if applicable (and any other comparable statute), that
would otherwise limit the coverage of this release to include only those claims
which you may know or suspect to exist in your favor at the time of agreeing to
this release. Section 1542 of the California Civil Code reads as follows: “
A general release does not extend to
claims that the creditor or releasing party does not know or suspect to exist
in his or her favor at the time of executing the release and that, if known by
him or her, would have materially affected his or her settlement with the
debtor or released party.”
11.
Indemnification.
To the fullest extent permitted by applicable law, you agree
to hold harmless, indemnify, and defend the ImageKeeper Parties from and
against any and all claims (including liabilities, fines, damages, losses, judgments,
awards, costs, expenses, and fees (including reasonable attorneys’ fees))
arising out of or relating to (i) your breach of any term or condition of this
Agreement, (ii) your Posting of User Content (including any claims that such
User Content violates or infringes any third party’s intellectual property,
proprietary or privacy rights or rights of publicity), (iii) your acts or
omissions during use of the Services, (iv) your unauthorized acts or omissions
during use of the Services, or (v) your use of the Services.
You will have the right to defend and compromise such claim
at your expense for the benefit of the ImageKeeper Parties; provided, however,
you will not have the right to obligate the ImageKeeper Parties in any respect
in connection with any such settlement without the written consent of the
indemnified party; provided, further, ImageKeeper will have the right to
participate in the defense of such claim at its expense using counsel of its
choice. Notwithstanding the foregoing, if you fail to assume your obligation to
defend or if ImageKeeper elects to defend such claims itself, the ImageKeeper
Parties may do so to protect their interests and you will reimburse all costs
incurred by the ImageKeeper Parties in connection with such defense.
12.
Agreement to Arbitrate and Prohibition on Class Actions.
A.
Choice of Law.
The validity, construction, and effect of this Agreement,
the Platform, and the Services, will be governed by the laws of the state of Nevada,
without giving effect to that state’s conflict of laws rules.
Any legal suit, action or proceeding arising out of, or
related to, these Terms of Use or the
Platform
shall be instituted exclusively in the federal courts of the United States or
the courts of the State of Nevada, in each case located in the City of
Las
Vegas
, and Clark County, although we retain the right
to bring any suit, action or proceeding against you for breach of these Terms
of Use in your country or county of residence, or any other relevant country or
county.
You waive any and all objections to the exercise of jurisdiction
over you by such courts and to venue in such courts.
B.
Arbitration Procedure.
If you have any issue or dispute with the Company, you
agree to first contact us at info@imagekeeper.comand attempt to resolve the dispute with us
informally. All disputes arising out of, or relating to, this Agreement
(including formation, performance, breach, enforceability, and validity of this
Agreement), our operation of the Services, or a purchase made through the Services
that are not resolved informally by shall be resolved by final and binding
arbitration pursuant to the Commercial Arbitration Rules of the American
Arbitration Association that are in effect at the time of the arbitration,
except as provided herein. The arbitration will be held in Las Vegas, Nevada or
another location if ImageKeeper consents to such other location, which consent
may be withheld in the sole discretion of ImageKeeper. The arbitrator, and not
any federal, state, or local court or agency, shall have exclusive authority to
resolve any dispute relating to the interpretation, applicability,
enforceability, or formation of this Agreement, including any claim that all or
any part of this Agreement is void or voidable. The award rendered by the
arbitrator shall include costs of arbitration, reasonable attorneys' fees, and
reasonable costs for expert and other witnesses, and any judgment on the award
rendered by the arbitrator may be entered in any court of competent
jurisdiction.
C.
Waiver of Class Actions; Jury Trials.
We each agree that any dispute resolution proceedings will
be conducted only on an individual basis and not in a class, consolidated or
representative action. Class actions and class arbitrations are prohibited.
If
for any reason a claim proceeds in court rather than in arbitration we each
waive any right to a jury trial.
D.
Limitation on Claims.
No action arising under this Agreement may be brought by
User more than one (1) year after the cause of action has accrued.
E.
Injunctive Relief.
Without prejudice to the agreement to resolve disputes in
binding arbitration set forth in the previous paragraph, either party to this
Agreement may obtain preliminary injunctive relief in a court of competent
jurisdiction, for the purpose of enforcing any of the terms of this Agreement
pending a final determination in arbitration or permanent relief for the
purpose of enforcing arbitral awards.
13.
Intellectual Property Rights of Third Parties
In the event you become aware of any material on the
ImageKeeper platform that you believe infringes upon any copyright that you own
or control, you may send a written notification of such alleged infringement to
ImageKeeper’s agent for notification of claims of copyright in accordance with
the following requirements:
1.
an electronic or physical signature of the person authorized to act on
behalf of the owner of the exclusive right which is allegedly being infringed;
2.
identification of the copyrighted work that is alleged to have been
infringed or, if more than one, a representative list;
3.
identification of the material which needs to be removed or altered and
a sufficiently detailed description of the location of the protected material
on the site (e.g., URL);
4.
a sufficient means for ImageKeeper to contact you, such as your address,
telephone number, and e-mail address (if available);
5.
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 and that
you have authority to make such a statement; and
6.
a statement by you, made under penalty of perjury, that the above
information in your notice is accurate and that you are the copyright owner or
authorized to act on the copyright's owner's behalf.
The foregoing information shall be sent to the following
address: DMCA@imagekeeper.com with
the Subject Line “DMCA Notification.
After receiving a valid DMCA notification of claimed
infringement, we will process and investigate the claim and will take
appropriate actions under the DMCA, including expeditiously removing or
disabling access to any material claimed to be infringing or claimed to be the
subject of infringing activity. We will take reasonable steps promptly to
notify the user who submitted the material that we have removed or disabled
access to such material. We reserve the right, at our sole discretion, to
remove any User Content without prior notice.
Counter-Notification. If you posted or submitted
material to ImageKeeper which ImageKeeper removed or disabled access to
pursuant to a DMCA notification of claimed infringement, and you believe your
material is not infringing and the material was removed or disabled as a result
of a mistake or misidentification, you may send a counter-notification
containing the following information in writing to ImageKeeper’ designated
agent listed above:
1.
Your physical or electronic signature;
2.
Identification of the material that has been removed or to which access
has been disabled and the location at which the material appeared before it was
removed or access to it was disabled;
3.
A statement under penalty of
perjury that the 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;
and
4.
Your name, address, and
telephone number, and a statement that you consent to the jurisdiction of
Federal District Court for the judicial district in which the address is
located, or if the your address is outside of the United States, for any
judicial district in which ImageKeeper may be found, and that you will accept
service of process from the person who provided the notification of claimed
infringement or an agent of such person.
If a valid counter-notification is received by our designated
agent, we will send a copy of the counter-notification to the original
complaining party informing that person that we will replace the removed
material or cease disabling access to it in 10 business days. Unless our
designated agent first receives notice from the original complaining party that
such party has filed an action seeking a court order to restrain the alleged
infringement, we will replace or restore access to the material in 10 to 14
business days after our designated agent’s receipt of the counter-notification,
at our sole discretion.
ImageKeeper reserves the right, in its sole discretion, to
terminate accounts for users that are deemed to be repeat copyright infringers.
14.
Hyperlinks.
A link from the Services to a non-ImageKeeper website does
not mean that ImageKeeper endorses or accepts any responsibility for the
content, functioning, policies, or use of such Services, and you enter any such
website at your own risk. It is your responsibility to take precautions to
ensure that whatever website or other online materials that you select for use
are free of viruses and other items of a destructive nature. Additionally, we
suggest you review the linked site’s terms of service and privacy policy, and
if you do not agree to be bound by the terms of that site, terminate your visit
to that site. We are not responsible for the privacy policies and practices of
the sites operated by our business partners or other third parties. ImageKeeper
expressly disclaims any liability related to such sites. ImageKeeper also
prohibits unauthorized hypertext links to the Services or the framing of any
content available through the Services. ImageKeeper reserves the right to
disable any unauthorized links or frames.
15.
Special Admonitions for International Use.
We make not claims that the Platform or Services is
accessible or appropriate outside of the United States. Access to the Platform
may not be legal by certain persons or in certain countries. If you access the
Platform form outside the United States, you do so on your own initiative. Recognizing
the global nature of the Internet, you agree to comply with all local rules
regarding online conduct and acceptable content. Specifically, you agree to
comply with all applicable laws regarding the transmission of technical data
exported from the United States or the country in which you reside and to
comply with any other local laws affecting the transmission or posting of
content or affecting the privacy of persons.
The U.S. Department of the Treasury, through the Office of
Foreign Assets Control ("OFAC"), prohibits U.S. companies from
engaging in all or certain commercial activities with certain sanctioned
countries (each a "Sanctioned Country") and certain individuals,
organizations or entities, including without limitation, certain
"Specially Designated Nationals" ("SDN") listed by OFAC. If
you are located in a Sanctioned Country or are listed as an SDN, you are
prohibited from registering or signing up with, subscribing to, or using the
Services. If Company determines that the Services are being used by prohibited
persons, Company will terminate any impacted accounts. Company reserves the
right to also provide notification of any such usage to the US DOT/OFAC.
16.
Cooperation with Law Enforcement and Regulatory Bodies
We
have the right to fully cooperate with any law enforcement authorities,
regulatory agencies, or court order requesting or directing us to disclose the
identity or other information of anyone sharing information with us through the
Platform
. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS
AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY
ACTION TAKEN BY THE COMPANY AND/OR ANY OF THE FOREGOING PARTIES DURING OR AS A
RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF
INVESTIGATIONS BY EITHER THE COMPANY OR SUCH PARTIES OR LAW ENFORCEMENT
AUTHORITIES.
17.
Miscellaneous Terms.
A.
Term and Termination.
You may terminate this Agreement at any time by closing
your account, discontinuing your use of the Services, and providing ImageKeeper
with a notice of termination; however, you will not be entitled to any refund
of any prepaid amounts. Please review this Agreement and our Privacy Policy for
information about what we do with your account when terminated. We may
terminate your account, suspend your ability to use certain portions of the
Services and/or ban you altogether from the Services for any or no reason, and
without notice or liability of any kind. Any such action could prevent you
from accessing your account, the Services, your User Content, other content on
the Services, or any other related information. In the event of any termination
of this Agreement, any provisions which by their nature should continue
following termination shall so continue.
B.
Complete Agreement.
This Agreement, along with the Privacy Policy, constitutes
the entire agreement between you and ImageKeeper relating to your use of, and
access to, this Services and supersedes any prior or contemporaneous agreements
or representations. This Agreement may not be amended except as set forth
herein.
C.
Independent Contractors.
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.
D.
Force Majeure.
ImageKeeper shall not be liable for any failure to perform
any services or other obligation related to this Agreement or the Services to
the extent that performance of its obligations are delayed or prevented by
reason of any act of God, fire, natural disaster, accident, riots, acts of
government, shortage of materials or supplies, or any other cause beyond the
reasonable control of ImageKeeper.
E.
Severability.
If any portion of this Agreement is ruled invalid or
otherwise unenforceable, it shall be deemed amended in order to achieve as
closely as possible the same effect as originally drafted. Any invalid or
unenforceable portion should be construed as narrowly as possible in order to
give effect to as much of the Agreement as possible.
F.
No Waivers.
Our failure to enforce or exercise any provision of this
Agreement or related right will not constitute a waiver of that right or
provision. This Agreement shall not be modified by any course of performance
or course of dealing.
G.
No Assignments and Transfers.
No rights or obligations under this Agreement may be
assigned or transferred by you, either voluntarily or by operation of law,
without our express prior written consent and in our sole discretion.
H.
No Third-Party Beneficiaries.
Subject to Sections 10 and 11, nothing in this Agreement
will confer upon any person or entity, other than the parties, any rights,
remedies, obligations, or liabilities whatsoever.
I.
Notices.
You shall provide any notices to us under this Agreement
by e-mail or mail using the contact information provided below. Unless you tell
us otherwise, or the law requires otherwise, you agree to receive all
communications from us by e-mail or through posting notices to your account.
You are responsible for providing ImageKeeper with up-to-date contact
information, which you may do by updating your account information through the Services
or by sending a message to us via the contact information provided below. You
agree that all communications that we send to you electronically satisfy any
legal requirement that a communication be in writing. You may print the
communications for your records.
18.
Contact Us.
If you have any questions or need to contact us for any
reason relating to this Agreement, please e-mail: info@imagekeeper.com.
You may also send us mail at the following address:
ImageKeeper, P.O. Box 27740, Las Vegas, NV 89126
