At FotoFinish Net, users of either FotoFinishÔ or SmartDrawÒ software can upload, edit, and organize their SmartDraw images at a location on the World Wide Web (that user's "Image Site"), and then share their images with their friends, family and colleagues. FotoFinish Net is owned and operated by SmartDraw.com, A California Corporation, ("SmartDraw.com").
If you access or use either FotoFinish Net, any Image Site on FotoFinish Net, or any of services, materials or features appearing on FotoFinish Net or any Image Site, then you agree automatically to all of the terms and conditions below, including but not limited to agreeing to SmartDraw.com's Privacy Policy (collectively, the "Agreement").
It is important that you read the Agreement. If you do not accept any term or condition of the Agreement, you may indicate this only by not seeking access to FotoFinish Net.
Please review the Agreement periodically, as it may be frequently revised and updated, at SmartDraw.com's sole discretion.
Terms and Conditions
Age Requirement. You must be at least 13 years of age to
access or use FotoFinish Net.
1. Change of
Terms or Conditions. SmartDraw.com may
change any term or condition of this Agreement, and change or discontinue any
service or access previously offered or provided, upon notice posted in any
area of FotoFinish Net reserved or created by SmartDraw.com for such
purpose. SmartDraw.com will use
reasonable efforts to inform you of such changes through e-mail, bulletins or
other comparable means, but you are responsible to check for SmartDraw.com's
postings of such changes.
2. Creating
and Maintaining an Image Site
This Section 3 applies only to those with an Image Site at FotoFinish Net,
except that the definitions in this Section apply throughout the Agreement.
a) Image
Storage. You may store up to a total of
20MB of images on FotoFinish Net, for use at the Image Site established in
connection with your account. If you
attempt to upload images exceeding this limit, you will be required to remove
previously uploaded images before FotoFinish Net will accept new images. All images, data and files transmitted or
uploaded to FotoFinish Net for use in connection with Image Sites is referred
to as "Content."
b) Inactive
Accounts. If your account is inactive
for more than 180 days, your account may be cancelled at SmartDraw.com's
discretion. SmartDraw.com will send you
an email message alerting you to the impending cancellation. If SmartDraw.com receives no response within
30 days afterwards, SmartDraw.com may terminate your account, and remove or
discard any images you may have stored.
Your account will be deemed "inactive" over a given period if SmartDraw.com
determines that during that period, you did not add to or change any of the
images on your Image Site, nor otherwise change your Image Site in any
significant way. Nothing in the
foregoing shall limit SmartDraw.com's authority to remove any or all of your
Content from FotoFinish Net at any time or terminate your account, with or
without notice to you.
c) Registration. You may not set up or maintain an Image Site
unless you have an active account for that purpose with SmartDraw.com. In order to create such an account, you must
register your copy of the SmartDraw or FotoFinish software with SmartDraw.com,
and submit to SmartDraw.com your correct name, email address and serial number
for your software copy.
d) No
Restricted Content. You may not
transmit or upload, or cause to be transmitted or uploaded, Restricted Content (as described below) to
your Image Site or elsewhere on FotoFinish Net. All content on FotoFinish Net is subject to review by
SmartDraw.com, but SmartDraw.com has no obligation to examine all or any part
of the submitted content. SmartDraw.com
may delete or remove any Content on FotoFinish Net in whole or part at any
time, for any reason, without notice, regardless of whether it qualifies as
"Restricted Content."
Restricted Content includes, but is not limited to:
· Content that is threatening, abusive, obscene, pornographic, defamatory, objectionable or inappropriate.
· Content that infringes or violates any copyright, trademark, patent or confidential agreement.
· Content that violates applicable state or federal law, or applicable orders or judgments of any government authorities.
· Content that promotes or assists in illegal activity.
· Content that in any way exploits or harms minors.
· Content intended for, or involved in, advertising or commercial solicitations.
· Content sent either from an anonymous or false address, or from a person or source whose description does not wholly correspond with the description of the account holder as recorded in SmartDraw.com's records.
· Content that contains software viruses, worms, Trojan horses or other dangerous code, corrupt files, or any other content which may alter, impair, or affect access to FotoFinish Net, or any materials or information on FotoFinish Net, or any other system reachable through or via FotoFinish Net
· Links to any of the
foregoing content.
e) Your Responsibility. You are responsible for all of your
activities on FotoFinish Net, and any and all Content that you submit, or cause
to be submitted, to FotoFinish Net.
i) No
Infringement. You hereby represent
that each upload and/or transmission by you of Content or any other materials
to FotoFinish Net, and complete public or private display of any such Content
or other materials on your Image Site or anywhere else on FotoFinish Net, does
not and shall not violate or infringe any copyright, trademark right, patent
right, trade secret right, or other right of any other person or entity.
ii) Ownership.
You hereby represent that you
are the owner of all Content and other materials you may cause to be uploaded
or transmitted to FotoFinish Net, or that you have all necessary licenses for
all uses to which such Content and other materials may be applied after upload
or transmission.
iii) Backup
Copies. You are solely
responsible for keeping copies of all of your Content and all of your other
materials and data. SmartDraw.com has
no obligation to retain any copies of any Content that you upload or transmit,
nor to retain any copies of your Image Site in whole or part.
iv) Misuse of Account. You shall be fully responsible to SmartDraw.com for any and all use and misuse of any account assigned to or for you, whether by you or any other person or entity, regardless of whether such use or misuse is due to accident, recklessness, negligence, or deliberate act or omission, or without fault whatsoever. Such responsibility will include, but not be limited to, full indemnity for all injury, loss or damage incurred by SmartDraw.com in connection with such use or misuse, as further detailed in the Indemnity section below.
f) Third-Party Products. SmartDraw.com may make third-party
products available through FotoFinish Net for use in connection with your Image
Site. If you wish to take advantage of third-party offers or services, you must
agree to any terms and conditions imposed by the third party vendor.
g) Account Termination and Removal of
Content. At the sole discretion of
SmartDraw.com, your account may be terminated and your Content may be removed
or deleted without notice for, among other things:
· Conduct that violates this Agreement or the spirit of this Agreement.
· Conduct that violates SmartDraw.com's Copyright Policy.
· Conduct that violates SmartDraw.com's Privacy Policy.
· Conduct that impairs in any manner the operability or stability of FotoFinish Net.
· Conduct that violates
SmartDraw.com's Restricted Content Policy.
In addition, SmartDraw.com
may terminate your account and/or remove your Content, with or without notice,
at any time without cause. If
SmartDraw.com elects to explain or describe any reasons for terminating your
account or removing your Content, this shall not affect or limit
SmartDraw.com's power and right to terminate your account or remove your
Content without cause, including action by SmartDraw.com without cause at the
same time as, or at any different time from, any "for cause" action
by SmartDraw.com.
SmartDraw.com shall not be liable to you for any termination of your access to
the site.
h) Image
Site Rules. If you choose to implement any rules that
apply to visitors to your Image Site, then: (i) any and all such rules are
subject to review by SmartDraw.com, at SmartDraw.com's sole discretion, (ii) if
SmartDraw.com requires, at its sole discretion, that any such rule be changed
or deleted, you will immediately make such change or deletion, and (iii) no
such rule may conflict with, violate, or be inconsistent with this Agreement,
any SmartDraw.com or FotoFinish Net policy, or any applicable laws.
3. Privacy Policy. You accept
and agree to all aspects of FotoFinish Net's Privacy Policy, as published on
FotoFinish Net. The Privacy Policy may
be changed from time to time at SmartDraw.com's sole discretion, provided that
any change that increases access to your information by person or entities
outside Smartdraw.com's business organization shall not apply to your
information that was provided before such change. SmartDraw.com shall give reasonable advance notice of all changes
to the Privacy Policy whenever practicable through notices displayed on
FotoFinish Net.
4. Scope of Access. You agree to receive and use all services,
data and products on FotoFinish Net in strict accordance with this Agreement,
and all other rules, limitations, conditions, protocols and procedures as may
be prescribed or endorsed by SmartDraw.com from time to time. In no event may you seek any kind of access
to, within or through FotoFinish Net beyond the level and kind of access
expressly and knowingly authorized and provided by FotoFinish Net, nor may you
use FotoFinish Net or any other SmartDraw.com system or facility to gain
unauthorized access to the systems, information, materials or property of
SmartDraw.com or anyone else. If you
nonetheless seek or gain such access, you shall be conclusively deemed to be
exceeding your authorized access to FotoFinish Net for all purposes under the
law, and in violation of this Agreement.
5. FotoFinish Net System Rules. You agree to comply fully with any and all
rules and terms that SmartDraw.com may prescribe from time to time for use of
FotoFinish Net ("System Rules").
System Rules include all rules posted by SmartDraw.com in one or more
special areas of FotoFinish Net set aside for System Rules, plus all other
rules, warnings, disclaimers and notices that SmartDraw.com may post at various
points around FotoFinish Net. Some
System Rules extend the provisions of this Agreement, others cover areas not
touched by this Agreement. In any
event, if you violate any System Rule, it shall be deemed a violation of this
Agreement.
6. Your Limited Use Rights. You may download and use Content and any other information received through FotoFinish Net within your own personal computer or terminal, provided you legally obtained such information, and subject to any restrictions by the owner of, or legitimate claimants against, such information. You may not use any of the Content or other information received through FotoFinish Net for any other purpose, including but not limited to distributing, modifying, transmitting, displaying, performing or otherwise exploit any such Information, except where any such activity is expressly and clearly authorized to you by the owner of such information.
7. Problem Transmissions. A transmission by you shall be considered a
"Problem Transmission" if it, in SmartDraw.com's opinion, is or may
be: (i) in conflict with any of your warranties, representations or
undertakings in this Agreement, (ii) illegal, or (iii) harmful in any manner
either to SmartDraw.com or third parties.
If at any time SmartDraw.com discovers that all or any part of a
transmission by you is or may be a Problem Transmission, then SmartDraw.com may
act upon and dispose of such Problem Transmission as it deems prudent under the
circumstances in its sole discretion, including but not limited to destroying
all or any part of the Problem Transmission, returning all or any part of the
Problem Transmission to you, holding all or any part of the Problem
Transmission as potential evidence, and turning over all or any part of the
Problem Transmission over to any government agent or authority, and monitoring
other messages or transmissions from you or others where SmartDraw.com deems
such monitoring necessary or helpful to protect itself or others. SmartDraw.com shall use good faith best
efforts to avoid intruding upon your privacy
when possible, though in no event shall such obligations apply so as to
place SmartDraw.com or other persons or entities at possible legal or other
risk relating to your transmissions or your other activities.
8. Disclaimer
Of Warranty. All Content
and other information and materials received or available through FotoFinish
Net and any Image Site are provided on an "As Is" basis without
warranties of any kind, either express or implied, including, but not limited
to, any implied warranties of merchantability, fitness for a particular
purpose, title and non-infringement.
Neither SmartDraw.com nor any other supplier of information, products or
services at FotoFinish Net makes any warranty that FotoFinish Net or any
products or services at FotoFinish Net will be available without interruption,
timely, secure, or error free, nor that FotoFinish Net or any products or
services at FotoFinish Net is free of viruses or other harmful software, data
or materials.
9. Assumption of Risk. You understand that
your access to and use of FotoFinish Net, or any Content, products or services
at FotoFinish Net, is entirely at your own risk. If you are dissatisfied with
or injured by any of FotoFinish Net's Content, products or services, your sole
remedy is to discontinue your access to and use of such Content, product or
service.
10. Third Party Sites. You acknowledge that SmartDraw.com has no
control whatsoever over the contents of third party Web sites that link to or
from FotoFinish Net or any Image Site. SmartDraw.com makes no assurance whatever that such third party
content will be accurate, legal and/or inoffensive. Furthermore, SmartDraw.com
does not endorse the content of any third party Web site, whether or not it is
linked to FotoFinish Net, nor can SmartDraw.com warrant that such third party
sites and/or content will not contain viruses or otherwise impact your
computer. You understand and agree that neither SmartDraw.com, nor its owners,
executives, employees or affiliated entities shall be responsible for damages
or losses resulting from your use or accessing of any third party Web sites or
any of the content, services, products or features contained therein.
11. Damage to Equipment or Data. Neither SmartDraw.com nor its owners, executives, employees, officers, directors or affiliated entities shall be responsible for any of the following: (a) damage caused to your computer or viruses which may affect your computer as a result of accessing FotoFinish Net or any Image Site, or utilizing any of the services, data or products at FotoFinish Net; or (b) any damage or loss to any of your data, files or correspondence posted, housed, or stored on SmartDraw.com's computer systems or servers.
12. User Generated Content. SmartDraw.com is not responsible to any third party for any
injuries or damage caused by user generated Content, including but not limited
to all Image Sites and all Content on Image Sites. You acknowledge that: (a) none of the user generated Content on
FotoFinish Net, including without limitation Web pages, photos, artwork,
images, articles, text, links, and data files, necessarily represents the view
or opinions of SmartDraw.com, and (b) SmartDraw.com has no policy or business
practice of previewing of user generated Content prior to its appearance on
FotoFinish Net.
13. Limitation of Liability. To
the fullest extent permitted by applicable law, under no circumstances shall
SmartDraw.com be liable to you, or anyone claiming under or through you, for
any indirect, incidental, special or consequential damages, including, but not
limited to, damages for loss of profits, use, data or other intangibles, even
if SmartDraw.com has been advised of the possibility of such damages, that
result from the use, or inability to use, FotoFinish Net or any products or
services at FotoFinish Net, from any changes to FotoFinish Net or any products
or services at FotoFinish Net, from information, data or other materials
available on FotoFinish Net, or from alteration of, or any access to, your
transmissions, data, or information regarding your activities at FotoFinish Net
or any Image Site. 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.
14. Indemnity. You agree to indemnify, defend and hold harmless SmartDraw.com
and its officers, directors, employees, agents, licensors, suppliers and
third-party information providers, from and against any and all losses, claims,
proceedings, judgments, orders, expenses, damages and costs (including
reasonable attorneys' fees and costs) resulting from or relating to: (a) any
violation of your obligations, (b) the falsity or alleged falsity of any of
your representations, or (c) any activity related to your account (including
but not limited to any negligent or wrongful conduct) by you or any other
person accessing the services using your account.
15. General.
a) Assignment. You may not assign or delegate any of your rights or obligations under this Agreement without the prior written consent of SmartDraw.com.
b) Notices. All notices to you may be sent to your e-mail address, and/or
street address, and/or any other location for which SmartDraw.com has contact
information for you. All notices to SmartDraw.com
shall be in writing and shall be forwarded by registered or certified mail or
by overnight express courier requiring signature of the recipient to complete
delivery, and sent to SmartDraw.com at the following address:
SmartDraw.com
10085 Carroll Canyon Road, Suite 220
San Diego, California 92131
USA
Notices sent by registered or certified mail shall be deemed delivered seven
(7) business days after mailing; notices sent by express courier shall be
deemed delivered the next business day after they are given to the courier by
the notifying party; notices sent to you by e-mail shall be deemed delivered
within one (1) hour after they are sent by SmartDraw.com.
c) Governing
law. All matters relating to
this Agreement will be governed by the laws of the State of California, U.S.A.,
without regard to California's choice-of-law rules. Exclusive jurisdiction and
proper venue for all proceedings relating to this Agreement shall be in courts
and other fora located in the State of California, U.S.A., and you hereby
consents to such jurisdiction and venue.
d) Waiver.
The failure of either SmartDraw.com or you to insist upon
strict performance of any provision of this Agreement shall in no way
constitute a waiver of future violations of the same or any other provision.
e) Severability.
If any part, term or provision of
this Agreement shall be held illegal, unenforceable or in conflict with any law
of a federal, state or local government having jurisdiction over this
Agreement, the validity of the remaining portions or provisions shall not be
affected thereby.
f) Force
majeure. No party shall be in default if failure to
perform any obligation hereunder is caused solely by supervening conditions
beyond that party's control, including acts of God, civil commotion, strikes,
labor disputes or governmental demands or requirements.
g) Entire
Agreement. You acknowledge that you have read this Agreement,
understand it, and agree to be bound by your terms. You further agree that this
Agreement is the complete and exclusive statement of agreement and supersedes
all proposals, oral or written, understandings, representations, conditions,
warranties, covenants, purchase orders and all other communications with
Smartdraw.com relating to this Agreement. No additional terms, whether
consistent or inconsistent with those contained in this Agreement, shall be
binding on either party absent mutual and prior specific written consent.
h) Survival. All provisions of this Agreement relating to post termination
actions and indemnities, and your obligation to pay all amounts due for
services rendered by SmartDraw.com, shall survive any termination or expiration
of this Agreement.
i) Headings. The headings in this Agreement are intended for convenience of reference and shall not affect its interpretation.
j) No Third Party Beneficiaries. There shall be no third party beneficiaries of any of SmartDraw.com's undertakings, representations or warranties in this Agreement