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3. Terms of Service Agreement

Fotki has a number of regulations by which its members are expected to abide. Please familiarize yourself with our Terms of Service policy before you open your Fotki account. Check the checkbox in the "Terms of Service" section by clicking in it only if you understand and agree to observe our rules. If you attempt to submit this form without checking this box, you will be returned to the form and prompted to check it.

Terms of Service

FOTKI, INC. is the owner and operator of FOTKI.COM, an online photo sharing community. Registered members of Fotki can create online albums and upload graphic files to these albums.

Modifications

FOTKI, INC. reserves the right to modify any part of this Agreement at any time in its sole discretion, this includes but is not limited to the graphic file storage term, and any Fotki functionality. Any modification is effective immediately upon posting on this page. If any modification to this Agreement is unacceptable to you, you may immediately terminate the Services by closing your account. However, if you do not terminate the Services, or continue to use the Services following modification to this Agreement, your continued use will mean that you have accepted that modification. We will notify about any changes in the Fotki Blog.

Acceptable Use

Your use of the services provided by Fotki is subject to the following agreement. Violations of this agreement may result in termination of your account with or without notice. Fotki recommends that members maintain their own backups of any 'irreplaceable' content, as Fotki cannot warrant that no loss or corruption of data shall occur.

Age Requirements

Use of Fotki is limited to persons at least 13 years of age. Nobody under the age of 13 is allowed and no information of any person under the age of 13 will be knowingly collected by Fotki. If you become aware of any person under the age of 13 who uses Fotki, please contact us at support@fotki.com to report such occurrences. Fotki will immediately delete any information of and/or any accounts that we believe to belong to users under the age of 13.

Membership

Membership is available to anyone who provides all required information including your name, and an accurate and legitimate email address.

Premium Membership

If you upgrade your current account to Premium Account, you warrant that all the information that you submit is true and accurate, including your credit card number and expiration date, and you agree to pay the annual fee. We accept major credit cards, PayPal, money orders and checks payable in US dollars. Contact us if you have any questions. Your membership is personal to you and the members of your household, and you can not transfer or give your login and password to others. Premium Membership fees are non-refundable and we do not refund charges for unused services. By acquiring Fotki Premium Membership you agree to recurring billing: As a convenience to you, we can automatically renew your annual Premium membership when it is about to expire. You will be able to cancel the recurrent billing any time by contacting our Customer Service either through our Contact Form: http://myaccount.fotki.com/customer_service/new_inquiry/ or by telephone or email in any way convenient to you: http://about.fotki.com/contact_us/ (Fotki would appreciate your feedback and hearing the reasons why you are canceling - any criticism is welcome! - but a simple "Cancel my account" is enough for your account to be canceled.).

Prohibited Use

You may not use Fotki (1) in any manner that violates any law, regulation, treaty or tariff or infringes on the legal rights of any third party, (2) in any manner which is defamatory, fraudulent, indecent, offensive or deceptive, (3) to threaten, harass, abuse or intimidate others, (4) to damage the name or reputation of Fotki, FOTKI, INC., its affiliates, or subsidiaries, (5) to break security on any computer network, or to access an account that does not belong to you, and (6) in any manner that interferes with other customers' use and enjoyment of the services provided by Fotki.

Prohibited Content

As used herein, "content" shall mean all text, graphics (including avatars), photographs, pictures, drawings, animation, audio, video, and any other material submitted, posted, viewed, transmitted, reproduced and/or distributed by any person or entity in connection with Fotki.

You are prohibited from storing, posting, distributing or transmitting any unlawful content at Fotki. Examples of unlawful content include but are not limited to direct threats of physical harm, stalking, any kind of pornography, and copyrighted, trademarked and other proprietary material used without proper authorization.

As used herein, "pornography" shall mean any explicit depiction or exhibition of sexual activity and/or sexual imagery that is intended to stimulate erotic, rather than PURELY aesthetic or emotional feelings.

Other prohibited content includes but is not limited to: (1) programs containing Trojan horses, virus and/or tools to compromise the security of Fotki and/or other sites, (2) solicitations or advertisements, (3) suggestions or encouragement of illegal activity, (4) private information about any individual such as phone numbers, addresses, Social Security numbers or any other private information, and (5) duplicative posting or "spamming". Please note, that you can not upload images for which you don't have copyrights. Read carefully 10 Big Myths about copyright explained by Brad Templeton.

Protection of Intellectual Property

Fotki complies with The Digital Millennium Copyright Act (“DMCA”), respects the intellectual property rights and requires that all users respected DMCA and intellectual property rights of others. By using Fotki services you certify that your use does not infringe upon anybody’s intellectual property. Fotki has been and will continue to vigorously enforce DMCA and to respond quickly to any allegations of intellectual property infringement.

Fotki does not allow any copyright infringement and will, if notified properly and if not satisfied with a response by an accused party, remove or disable access to such content. Fotki reserves the right to remove or disable access to content without prior notice as well as to terminate accounts and/or Fotki membership of users whom Fotki determines to be repeat infringers and/or violators of any other clauses of Fotki Terms of Service.

Fotki may be required to disclose information to individuals asserting rights under the DMCA. By using Fotki you authorize Fotki to release information about you if required by law or subpoena, without any notice to you. By using Fotki, you agree that you, and not Fotki, are responsible for any violations of any intellectual property rights in any content that you upload to Fotki.

If you believe that you are the owner of intellectual property which was copied in such a way by someone on Fotki site that such copying represents violation of your intellectual property rights, please support@fotki.com with the following information included in your Claim Letter (please note that ALL information listed below is required from you in order for us to act upon your complaint):

  1. Your/your company/organization name and contact information and a description of your rights including a signature of the owner of the claimed rights or a party duly authorized to act on behalf of the owner
  2. A description of the property in question which you claim to be yours including the URL (location) of the media on Fotki Website and a statement that you have a good faith belief that the use of said material has not been authorized by the copyright owner, its agent, or the Law
  3. A statement by you (the owner or representative), made under penalty of perjury, that the above information in your Claim Letter is accurate and that you are either the owner of copyright or intellectual property or authorized to act on behalf of the owner.

Upon receipt of a proper notice as described above, Fotki will confirm the existence of the alleged infringing content on Fotki site, notify the user(-s) who posted the alleged infringing content, and take whatever action, in its sole discretion, it deems appropriate, including removal of the alleged infringing content from Fotki site if Fotki, at its sole discretion, deems evidence submitted in the claim sufficient and/or infringement obvious. A user who posted an alleged infringing content may respond to Fotki notice by showing that either: (1) the infringing content has been removed or (2) the he/she has a an appropriate trademark registration or an appropriate valid license covering the use of the content or (3) that posting of the content does not, in fact, infringe upon the alleging party’s rights. If Fotki determines, at its own full discretion, that the user who had posted content allegedly violating someone’s intellectual property rights, does not, in fact, infringe upon the alleging party’s rights and does not violate DMCA, then Fotki will not remove, or will restore, the content in question.

Notwithstanding the foregoing, Fotki will promptly comply with the terms of any court order relating to alleged trademark infringement by any user of Fotki.

Sales Taxes

Fotki.com shall automatically charge applicable sales tax for orders to be delivered to addresses within New York.

Fotki may terminate any membership and delete any and all information, communications, postings, albums and image files at any time, without notice, for conduct violating this Agreement or other policies or guidelines set forth by FOTKI, INC. and elsewhere on the Fotki web site.

Arbitration Clause

In the event a dispute shall arise between the parties to this agreement, it is hereby agreed that the dispute shall be referred to a United States Arbitration and Mediation (USA&M) office to be designated by USA&M National Headquarters for arbitration in accordance with the applicable USA&M Rules of Arbitration. The arbitrator's decision shall be final and legally binding and judgment may be entered thereon. Each party shall be responsible for its share of the arbitration fees in accordance with the applicable Rules of Arbitration. In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator's award, or fails to comply with the arbitrator's award, the other party is entitled to costs of suit, including a reasonable attorney's fee for having to compel arbitration or defend or enforce the award.

Force Majeure

Fotki shall not be liable for any failure or delay in performance under this Agreement to the extent said failures or delays are proximately caused by causes beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, failure of suppliers, subcontractors, and carriers, or party to substantially meet its performance obligations under this Agreement, provided that, as a condition to the claim of non-liability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL Fotki and FOTKI, INC. ITS AFFILIATES AND ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR AGGRAVATED DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF DATA, NEGLIGENCE OR FAILURE TO MONITOR CONTENT OF THE WEBSITE, SHOPPING CART OR ANY OTHER CONTENT, LOSS OF INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY AND THIRD PARTY CLAIMS) ARISING OUT OF YOUR USE OR INABILITY TO USE FOTKI.COM OR INABILITY TO USE FOTKI.COM PROPERLY OR TO YOUR FULL SATISFACTION, ANY OF FOTKI.COM'S CONTENT, SERVICES, PRODUCTS AND/OR ANY RELATED SOFTWARE, EVEN IF FOTKI.COM OR AN AUTHORIZED FOTKI.COM REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL FOTKI.COM'S and FOTKI, INC.'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE FOTKI.COM WEB SITE.

In recognition of the relative risks and benefits of Internet business to Fotki, Inc., the risks have been allocated such that you agree, to the fullest extent permitted by law, to limit the liability Fotki for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys’ fees and costs and expert witness fees and costs, so that the total aggregate liability of Fotki shall not exceed $500, or your total fees and costs, whichever is smaller. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law.

PROVISIONS OF THIS CHAPTER ("LIMITATION OF LIABILITY") SHALL SURVIVE THE TERMINATION OF YOUR RIGHT TO USE THIS SITE.

YOU ACKNOWLEDGE THAT YOU WILL BE FULLY LIABLE FOR ALL DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THIS SITE.

Privacy

Fotki and FOTKI, INC. will not release any details regarding the member to any third party, except as required by law. Fotki and FOTKI, INC. understand and respect your desire for privacy. Fotki and FOTKI, INC. will not disclose any content posted by you unless required to do so by law or in the good-faith belief that such action is necessary to: (1) comply with the law or comply with a legal process served on Fotki, (2) protect and defend the rights of Fotki and FOTKI, INC., or (3) act in an emergency to protect the personal safety of our guests or the public. Read our Privacy Policy here.

Copyright and Trademark

It is the obligation of the individual members to ensure that the posting of their photos is not violating any copyright. Members are solely responsible for the content of their photo albums. If you feel a member is violating your copyright, please contact that member.

Fotki and FOTKI, INC. claim no ownership rights in the content you place on your Fotki albums. We will not use Member's images for marketing purposes or any other purposes without obtaining the Member's express permission.

Fotki is a registered trademark, and other FOTKI.COM and FOTKI, INC. product names, service names, slogans or logos referenced in this web site are trademarks or registered trademarks of FOTKI, INC. All other company, product or service names referenced in this web site are used for identification purposes only and are trademarks of their respective owners.

All images, text and any other content on this site are protected by copyright, trademark, patent or other proprietary rights and laws. Fotki and FOTKI, INC. reserves its rights in and to all other content contained in the web site. Unless otherwise noted, all content, other than that contained in the Member's photo album, is copyrighted by Fotki: © FOTKI, INC. All Rights Reserved.


Written on 2003-09-17 18:32:13 and updated on 2009-12-23 21:22:08.