This Terms of Use Agreement (the “Agreement”) is an agreement between you and EZ Prints, Inc. (“EZP”). Our Web site (the “Web Site”) allows users to access and use various services via the Web Site, including, without limitation, photographic editing, processing and distribution services (collectively, the “Services”), and to purchase the Products offered via the Web Site (as such term is defined in Section 2(A) below). The following terms and conditions apply to your use of our Web Site and the Services and the purchase of Products. Please read this Agreement carefully before you enter our Web Site. In this Agreement, “you” or “your” means any person or entity using the Web Site, any Service or purchasing the Products. Unless otherwise stated, “we” or “our” will refer collectively to EZ Prints, Inc. and its subsidiaries, affiliates, directors, officers, employees, agents and contractors.
By clicking “I Agree” you agree to the Agreement, the EZ Prints, Inc. Privacy Policy located on the Web Site and any other documents incorporated in the preceding by reference, all as may be amended from time to time. You further agree that this Agreement forms a legally binding contract between you and EZP, and that this Agreement constitutes “a writing signed by you” under any applicable law or regulation effective at any time you use the Web Site, the Services or purchase Products. If you do not agree to be bound by this Agreement, you must exit the Web Site immediately, and you cannot use the Services or purchase Products. As a result of entering this Agreement, a digital confirmation of your acceptance will be noted in your account record with us as verification of your assent to this Agreement.
1. ACCOUNTS
A. Eligibility
To use the Services or purchase Products, you must open an account with us, which means you must register with us on the Web Site and agree to the terms of this Agreement (thereby creating an “Account”). You must be at least 18 years of age to use the Services or purchase Products. By using our Services or purchasing our Products, you certify that you are at least 18 years of age and that you agree to be bound by this Agreement. If you do not agree to be bound by this Agreement or if you are not at least 18 years of age, please immediately exit the Web Site.
B. Use
Your Account is available for your non-commercial, personal use. Your Account can be utilized to post photographs (such photographs shall be referred to herein as “Your Photographs”) and make prints or other photographic products and you may want to let other specified people view and use Your Photographs for the same purpose. You can also use your Account to view photographs in other Accounts if you have been authorized by that Account holder. Your Photographs are password protected unless you allow other Account holders access to such photographs. We reserve the right to cancel or discontinue Accounts in various circumstances described herein, including, but not limited to, the cancellation of Accounts which have been inactive for more than 60 days (in that particular case, an “Inactive Cancellation”). We execute an Inactive Cancellation at our discretion after sending an email warning to the address you used when you set up your Account. If you do not take action responsive to that email within 10 days, your Account may be removed. You may not use your Account to create an internet link to eBay or any other Web site without our express written permission, whether or not such link or affiliation is created for commercial use.
2. PHOTOGRAPHS AND PRODUCTS
A. Order and Delivery
In addition to the service of maintaining, printing and otherwise manipulating Your Photographs, we offer many types of products on our Web Site, such as photographic prints, picture frames, photo albums, key chains, tee shirts, greeting cards, coasters, magnets and other items (collectively, the “Products”). You can purchase these Products on the Web Site. You acknowledge that all Products are custom-made to your order and have no market beyond your purchase thereof. As such, all Products are non-returnable and payment for all Products is required to be made in full in advance. All items purchased through us and shipped to you are subject to a shipment contract under which the risk of loss and title for such items pass to you upon our delivery to our shipping carrier.
B. Restrictions on Use of Products
We own the Products and you own Your Photographs. Certain Products may contain, or have affixed to them, Your Photographs. While you may modify Your Photographs, you may not resell, reproduce, distribute or otherwise exploit or manipulate the Products without our prior written consent (whether or not they contain, or have affixed to them, Your Photographs).
C. Photographic Content
While we use reasonable efforts to ensure compliance with applicable laws relating to rights of privacy or publicity, including the use of subject releases when necessary and requiring the photographers to screen the photographs posted on the Web Site, we make no representations or warranties as to the accuracy, correctness or reliability of the photographs, nor can we ensure that all persons depicted in the photographs have consented to the display of their image on the Web Site.
3. COPYRIGHTS
We respect the copyrights of photographers, artists and/or other copyright holders. We will not knowingly print and/or distribute images without the consent of the creator or owner of the copyrights. The copyrights in the photographs are owned by the photographers thereof who have licensed to us the right to post them on the Web Site and provide the Services and Products offered. We make no claim of ownership to any images uploaded to our servers by our customers. Since we cannot research every image transmitted to us or printed by us, it is your sole responsibility to ensure that you have the necessary authorizations and/or permissions to use the images. If you believe your copyright in a work has been violated through this service, please contact us.
4. USER-SUPPLIED AND USER-PROCURED CONTENT
A. Limits
You may NOT post or obtain any content using the Web Site which is threatening, obscene, pornographic or profane, or any other material that could give rise to any civil or criminal liability under applicable law. We recommend that you use an “adult-content” warning label when pictures are being shared that include legal adult content. Additionally, you may NOT post or obtain any content using the Web Site that infringes rights of privacy, publicity or copyrights, or otherwise uses content without the permission of the owner of these rights and the persons (or their parents or legal guardians, where applicable) who are shown in the material.
B. Content Monitoring
While we do not and cannot review all content provided to us, and are not responsible for such content, we reserve the right to delete, edit or rearrange content that we, in our sole discretion, deem abusive, defamatory, obscene or in violation of copyright or trademark laws or otherwise unacceptable. You acknowledge that any content may be removed, published, copied, modified, transmitted and displayed by us. All content provided by a user of the Web Site is the sole responsibility of that user, and is not our responsibility.
C. Retention of Unauthorized Content and Payment for Associated Requested Products or Services
If you send any image to the Web Site which violates any term of this Agreement or any applicable law or regulation, for example copyrighted or pornographic material, we reserve the right to retain the image and charge your Account the full amount for the Products or Services that you requested.
5. DISCLAIMERS
THE WEB SITE AND ITS CONTENT (INCLUDING WITHOUT LIMITATION THE PHOTOGRAPHS) ARE PROVIDED “AS IS” AND WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ABOUT THE IMAGES OR THE WEB SITE INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. WE DO NOT WARRANT THAT ACCESS TO THE WEB SITE OR ITS CONTENTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEB SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY CONTENT ON THE WEB SITE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. ACCORDINGLY, YOU ACKNOWLEDGE THAT YOUR USE OF THE WEB SITE IS AT YOUR OWN RISK. YOU (AND NOT EZP) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RESULTING FROM COMPUTER MALFUNCTION, VIRUSES OR THE LIKE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
6. LIMITATION OF LIABILITY
Neither we, nor our licensors or representatives, shall be responsible or liable for any damages of any kind including, without limitation, lost business or profits or direct, indirect, incidental, consequential, compensatory, exemplary, special or punitive damages that may result from your access to or use of either the Web Site, the Services, the photographs or the Products.
7. INDEMNIFICATION
In the event that you reproduce, display, transmit, distribute or otherwise exploit the photographs, Products or Services, or any portion thereof, in any manner not authorized by us and this Agreement, or if you otherwise infringe any intellectual property rights or any other rights relating to the photographers, photographs, Products, Services or the Web Site, you agree to indemnify and hold us, our subsidiaries, affiliates, licensors and representatives, harmless against any losses, expenses, costs or damages, including reasonable attorneys’ fees, incurred by them as a result of unauthorized use of the photographs or Products or Services and/or your breach or alleged breach of these terms of this Agreement.
8. OWNERSHIP OF THE WEB SITE
All of the content (other than the photographs) on the Web Site, including without limitation, the graphics, design, and look and feel are owned by us and are protected by United States and international copyright, trademark, patent, trade secrets and other intellectual property rights protection. Our logos are trademarks owned by us and may not be used or reproduced without our written permission. In addition, you may not reverse engineer, de-compile or otherwise disassemble, or make commercial use of, the software included on the Web Site. Additionally, you may not claim any affiliation with us or the Web Site.
9. THIRD-PARTY SOFTWARE
We may make software or applications from our third-party licensors available to you. To download such software, you may be required to agree to the respective software license terms applicable to such third-party software. We do not guarantee that any software you download will be free of any contaminating or destructive code, such as viruses, worms or Trojan horses. We do not offer any warranty on any third-party software you download using the Web Site.
10. LINKING
A. Third-Party Links
The Web Site may provide a link to other sites by allowing the user to leave the Web Site to access third-party material or by bringing the third-party material into the Web Site via “inverse” hyperlinks and framing technology (a “Linked Site”). We have no discretion to alter, update, or control the content on a Linked Site. The fact that we have provided a link to a site is not an endorsement or sponsorship of such site, its owners, or its providers. There are inherent risks in relying upon using or retrieving any information found on the internet, and we urge you to make sure you understand these risks before relying upon, or retrieving any such information on a Linked Site. It is your responsibility to become familiar with each site’s privacy and other policies and terms of service, and to contact that site’s webmaster or site administrator with any concerns.
B. You May Not Create a Link to the Web Site
We prohibit caching, unauthorized hypertext links to the Web Site and the framing of any content available through the Web Site. We reserve the right to disable any unauthorized links or frames, and specifically disclaim any responsibility for the content available on any other Internet sites linked to the Web Site. You may not create a link to the Web Site without our express written permission.
12. INTERNATIONAL USE
We make no representation that materials on the Web Site are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access the Web Site from other locations do so of their own initiative and are responsible for compliance with local laws.
13. OTHER TERMS
These terms shall be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to these terms shall be filed only in the state or federal courts located in Fulton County, Georgia and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. You acknowledge and agree that except as specified herein, no representations, warranties or promises of any kind have been made to you by us regarding the use of the Web Site or the use or purchase of the photographs, Services or the Products.