Terms of Use - PhotoCircle
Last Updated: May 9, 2024
PLEASE READ THE TERMS OF USE CAREFULLY. THE TERMS OF USE (“TERMS”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND PHOTOCIRCLE, INC.
SECTION 20 OF THESE TERMS CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THESE TERMS. IN PARTICULAR, SECTION 20 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT:
(1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND
(2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. PLEASE SEE SECTION 20 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
Table of Contents
3. Registration, Payment Terms & PhotoCircle+ Subscription
4. PhotoCircle+ Subscription Terms
5. Eligibility for the Services
6. Additional Service-Specific Terms
12. Good Samaritan & Inappropriate Content Policy
13. Intellectual Property Ownership
14. Copyright Policy & Disputes
21. Dispute Resolution And Binding Arbitration
PhotoCircle, Inc. (“PhotoCircle,” “we,” “us,” and/or “our”) provides a platform where users can upload, store, and share photos and videos with designated individuals.
These Terms set forth the terms and conditions regarding how you and other users (collectively, “you,” “your,” or “User(s)”) can and cannot access and use the PhotoCircle website at photocircleapp.com (the “Site”), the iOS and/or Android PhotoCircle App (the “App”), and any other services offered as part of the PhotoCircle® platform (collectively with the Site and App, the “Services”).
While we do our best to enforce the Terms, we cannot warrant or represent that other Users will in fact adhere to the Terms, nor can we act as insurers or accept any liability for their failure to do so.
| Circle | The shared Media space that PhotoCircle’s App enables, which can be created at any time by any User. |
| Active Circle | A Circle that has received one or more Content submissions from anyone within the last 30 days. |
| Comments | Text comments added to a Circle and/or associated with a particular piece of Media in that Circle. To the extent Comments include other User-generated content, such as ideas, concepts, techniques, data, or other information contained in any of these, such User-generated content is a part of the “Comment” for purposes of these Terms. |
| Content | Media that you or someone whom you are legally responsible for uploads to the Services. |
| Documentation | PhotoCircle-provided User documentation relating to Services, including Premium Services, found here, as may be updated by PhotoCircle from time to time. Documentation does not include content published by Users. |
| Media | Photos, videos, Comments, and/or Content capable of being uploaded or added to, or otherwise associated with, a Circle. |
| Permissible Minor Users | Users who are (i) under the age of 13 and a resident in the United States, or (ii) under the age of 16 (or such other minimum age as is specified in the relevant European Economic Area member state, the UK, or Switzerland) and a resident in the European Economic Area, the UK, or Switzerland. |
| PhotoCircle Community | PhotoCircle’s free, ad-supported offering for non-commercial, personal use. Ads can be removed with a PhotoCircle+ subscription through Apple or Google. |
| PhotoCircle Premium | A subscription to one of PhotoCircle’s paid Services, excluding PhotoCircle+. |
| PhotoCircle+ | The subscription managed by Apple or Google (depending on your device platform) that removes ads on PhotoCircle Community. PhotoCircle+ is not a PhotoCircle Premium offering. |
Registering for PhotoCircle Community. Users can register for a PhotoCircle Community account, a free, ad-supported offering for non-commercial, personal use.
Users have the option to subscribe to PhotoCircle+ 48 hours after creating their PhotoCircle Community account. Subscriptions are handled through the Apple App Store or the Google Play Store. A subscription is not required to use the App, but if you do not pay for a subscription, you will receive displayed advertisements.
PhotoCircle Community Circle Limits. A PhotoCircle Community User may have up to 10 Active Circles, but if a PhotoCircle Community User exceeds that amount, we reserve the right to either suspend the account or request the User upgrade by subscribing to a PhotoCircle Premium plan.
Users of the free, ad-supported offering of PhotoCircle Community may remove the display of advertisements by subscribing to PhotoCircle+ through the Apple App Store or the Google Play Store.
PhotoCircle+ Subscription Terms. Using PhotoCircle+ requires selecting a payment option through Apple or Google. PhotoCircle+ subscriptions are normally assessed on a monthly or annual basis. Subscription fees are calculated from the day upon which User’s PhotoCircle+ subscription commences. Your subscription to the Services shall be for the initial term (e.g., monthly or annually) as selected by you.
PAYMENTS AUTOMATICALLY RENEW FOR INDEFINITE SUCCESSIVE TERMS FOR THE SAME PERIOD AS THE INITIAL TERM, UNTIL CANCELED BY YOU OR BY US IN ACCORDANCE WITH THESE TERMS.
The subscription fee, when paid, is non-refundable and accrues on the first day of each term or successive renewal term until canceled, regardless of whether you use our Services. Notwithstanding the language in this paragraph, if a subscription resulted from a special introductory promotional offer, then the terms of that specific promotional offer shall control.
Right to Modify Pricing. We reserve the right to raise or lower the cost of our subscription fees, in-app purchases, and other charges, and to create additional subscription tiers, at any time.
Cancellation. Either we or you may cancel your PhotoCircle+ subscription at any time and for any reason. In the event of a cancellation by us or you, all fees due to us up to the end of the then-current billing cycle at the time of cancellation shall remain payable. No refunds will be provided for partial billing periods, unless otherwise stated in an applicable promotional offer.
When your PhotoCircle+ subscription ends you may still use the App, but your App will include the display of advertisements.
Users may cancel their PhotoCircle+ subscription by visiting the Apple App Store or Google Play Store (depending on their device model), navigating to their current subscriptions, and canceling the PhotoCircle+ subscription.
If at any time we believe, in our sole discretion, that a User has violated any provision of these Terms, we may immediately terminate that User’s account and all other access to the Services without any refund or other remedy. Such termination will not limit any other right by us under contract, tort, or any other legal theory to pursue any claim or cause of action against the User for violating the Terms, including, without limitation, monetary damages, injunctive relief, attorney’s fees, and court costs.
By accessing or using the Services in any way, clicking on a button or taking similar action to signify your affirmative acceptance of these Terms, you hereby represent that:
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You have read, understand, and agree to be bound by these Terms and any future amendments and additions to these Terms as published from time to time at this link or through the Services;
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You are old enough to not be considered a Permissible Minor User, or if you are a Permissible Minor User, a parent or legal guardian has given sufficient Parental Consent in accordance with Section 10 of these Terms;
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You have the authority to enter into these Terms personally. Except as otherwise provided herein, if you do not agree to be bound by these Terms, you may not access or use the Services; and,
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You will comply with all applicable laws, including those of the country, state, and city in which you are present while using the Services.
These Terms help define our relationship with you as you interact with our Services. However, your use of certain PhotoCircle products and offerings may be subject to additional service-specific terms, such as the terms governing a PhotoCircle Premium subscription. In the event of a conflict between these Terms and the provisions of applicable additional service-specific terms, the terms of the additional service-specific terms shall apply.
By entering these Terms, you will be granted a revocable license to access our Services. Your access privileges, however, are conditioned on your adherence to these Terms. We reserve the right to temporarily deny you access to the Services or permanently terminate your access privileges at any time if, in our sole discretion, you have failed to abide by these Terms or appear to us likely to do so. By agreeing to grant you access, we do not obligate ourselves to do so or to maintain the Services, or to maintain it in its present form, and we expressly reserve the right to modify, suspend, or terminate your access privileges.
User Roles. Users may have comprehensive or limited rights to any given Circle, depending on the permissions allowed by their role within that Circle, as detailed in Documentation.
Prohibited Uses. You understand, acknowledge, and agree that any access or use of the Services shall be for your personal, non-commercial use only, and that you will not commercially exploit any portion of the Services or use any portion of the Services for any commercial gain. This prohibition includes, but is not limited to, renting, leasing, lending, sublicensing, redistributing, reselling, repackaging, or otherwise allowing third parties to access or use the Services, either directly or indirectly, without our express consent to do so.
Usage. When you choose to use the App and/or upload Media to the App, you agree, represent, and warrant, without any further consent, notice and/or compensation to you or to any third parties:
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To grant to PhotoCircle (to allow us to operate the App) a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the Content in connection with our business and in all forms now known or hereafter invented, without notification to and/or approval by you, except as otherwise required by law;
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To assume the risk of loss of any Content;
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That you are the owner of, or otherwise have the right to provide, all Content that you submit, post and/or otherwise transmit through the App;
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That you consent to the use and handling of any Content by the Services as described in our Privacy Policy;
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That any Content you choose to submit is accurate, not confidential, and not in violation of any contractual restrictions, any applicable law, or other third-party rights; and,
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You will only upload Content and invite Users to view it when your own rights in that Content are sufficient to do so, and to otherwise permit the type of private sharing our Services support.
By using our Services, you confirm that you have read, understand, and agree to be bound by our then-current Acceptable Use Guidelines.
We reserve the right to investigate, suspend, or terminate your account if you misuse our Services or act in a way that we regard as inappropriate, improper, unlawful, or not in conformance with these Terms, the Acceptable Use Guidelines, or our values and mission.
We allow you to create or join Circles to share your Content and engage with Media. We let Users control the selection of who can access their Content through an invitation process. Users in charge of Circles are considered moderators for those Circles.
You hereby acknowledge, understand, and agree that all Users of a Circle can view all Content in that Circle, and you are solely responsible for:
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Inviting other Users to your Circles only when you trust them, and when you believe that you have any required consent of other Users of the Circle to invite that new User.
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You acknowledge and agree that you should invite those you trust to use the Circle appropriately and invite others who will use the Circle appropriately.
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Joining Circles only upon the invitation of Users who you trust to maintain the level of privacy and security you want for your Content (including by only inviting others to the Circle who are trustworthy).
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Uploading Content to Circles only when you trust other Users to maintain the level of privacy and security you want for that Content.
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Inviting Users to your Circles only when they meet the eligibility guidelines set forth in these Terms.
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You acknowledge and agree that PhotoCircle will not monitor who Users invite to a Circle, whom a moderator chooses to remove from their Circles, or what Media are uploaded to a Circle or removed from that Circle. However, we may investigate the history, membership, and/or Media of a Circle when we have reason to believe a User has violated these Terms and/or broken the law.
PhotoCircle grants to you a limited, personal, revocable, nonexclusive, non-assignable, non-sublicensable right to access, through a generally available web browser or mobile device or application (but not through scraping, spidering, crawling or other technology or software used to access data without the express written consent of PhotoCircle), view information and use the Services that we provide in accordance with these Terms.
Any other use of the Services contrary to our mission and purpose is strictly prohibited and a material breach of these Terms.
We reserve all rights not expressly granted in these Terms, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in the Services.
If at any point you are concerned the privacy or security of your personal information and/or Content may have been compromised in the App, you agree to first email security@photocircleapp.com with a description of your concerns to provide us with a reasonable opportunity to investigate, respond to, and clarify those concerns.
PhotoCircle’s Privacy Policy (as updated from time to time) explains our data handling, privacy, and security practices in language we hope will be widely accessible, and all references in these Terms to the “Privacy Policy” refer to the latest version of this document. By agreeing to these Terms, you are automatically agreeing to our Privacy Policy, which is incorporated herein by reference.
If you choose to invite Permissible Minor Users into a Circle, you further agree:
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That you will do so only AFTER having sought and obtained verifiable parental consent from the parent or legal guardian of the Permissible Minor User. This consent should be memorialized in writing or in another permanent form sufficient to evidence consent to a court of law (a “Parental Consent”).
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You agree that, upon request, you will provide PhotoCircle with a copy of such Parental Consent.
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You agree that you will remain fully responsible for actions and concerns of the Permissible Minor User(s) you invite into a Circle in connection with the Services, including without limitation:
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Permissible Minor User’s full compliance with these Terms;
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Obtaining and maintaining any and all permissions, notices, consents, and other matters necessary to ensure that the Content uploaded by a Permissible Minor User also complies with these Terms;
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Participating in any law enforcement or governmental investigation or action relating to the actions of Permissible Minor User(s) you invited and/or or the Circle(s) they participate in; and,
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Accepting and adhering to the Indemnity obligations of these Terms with respect to these Permissible Minor Users.
It is the policy of our Services to not tolerate any acts of intellectual property infringement or violations of U.S. law or to allow for any child pornography or obscene or defamatory material to be posted at these Services. We will do our best, in good faith, to purge or otherwise restrict the availability of material that is infringing, racist, sexist, obscene, harassing, or otherwise objectionable. The provisions of this Section are intended to implement this policy but are not intended to impose a contractual obligation on us to undertake, or refrain from undertaking, any particular course of conduct.
Prohibited Activities. We reserve the right to investigate, suspend, or terminate a User if you misuse our Services or act in a way that we regard as inappropriate, improper, unlawful, or not in conformance with our values and mission. Such inappropriate, improper, and unlawful behavior includes, but is not limited to:
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Uploading any Media prohibited by these Terms;
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Interfering with or disrupting our Services or servers or networks connected to our Services, or disobeying any requirements, procedures, policies, or regulations of networks connected to our Services;
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Violating any applicable local, state, national or international law, or any regulations having the force of law;
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Harassing, intimidating, abusing, bullying, exploiting, threatening, or stalking others;
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Disclosing a User’s identity without their permission;
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Impersonating any person or entity, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
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Soliciting personal information from anyone under the age of 18;
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Soliciting payment from any User;
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Harvesting or collecting email addresses or other contact information of other Users from our Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
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Promoting, marketing, advertising, or offering to sell or buy any goods or services for any business purpose that is not specifically authorized;
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Interacting with others in an aggressive, disrespectful, distasteful, or otherwise improper way, as determined in our sole discretion;
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Making any statement, whether by posting Media or otherwise, that is hate speech, threatening, racist, pornographic, sexually explicit, libelous, defamatory, promoting violence or weapons, commercial in nature, or otherwise deemed improper in our sole discretion;
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Furthering or promoting any criminal activity or enterprise or providing instructional information about illegal activities;
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Obtaining or attempting to access or otherwise obtain any materials or information through any means not intentionally made available or provided through our Services;
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Misrepresenting your identity, status, qualifications, or affiliations; and,
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Disclosing information that you do not have the right to disclose.
Content Monitoring. You understand and agree that we may, but are not obligated to, monitor or review any Media you post as part of our Services. We may delete any Media, in whole or in part, that in our sole judgment violates these Terms or may harm our reputation.
Complaint Procedure & Flagging Inappropriate Content. If you believe that someone has posted material on our Services which infringes the intellectual property or other rights of third parties or which is in violation of U.S. law or which is racist, sexist, obscene, harassing, defamatory, or otherwise objectionable or inappropriate, or which constitutes child pornography, we ask you to bring the post to our attention by emailing us at support@photocircleapp.com.
When emailing us to report inappropriate or infringing content, please provide as much detail as possible, including:
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The nature of the right infringed or violated (including the registration numbers of any registered copyrights, trademarks, or patents allegedly infringed);
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All facts which lead you to believe that a right has been violated or infringed;
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The precise location where the offending material is located;
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Any grounds to believe that the person who posted the material was not authorized to do so or did not have a valid defense (including the defense of fair use); and,
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If known, the identity of the person or persons who posted the infringing or offending material.
We are committed to responding to all allegations of Media in violation of these Terms and seek to review all flagged Media without undue delay.
Indemnification / Waiver of Certain Rights. By lodging a complaint, you agree that the substance of your complaint shall be deemed to constitute a representation made under penalty of perjury under the laws of the State of California. In addition, you agree, at your own expense, to defend us and indemnify us against any liability which we may incur by our response to your complaint.
Waiver of Claims and Remedies. We expect Users to take responsibility for their own actions, and, as set forth below in Sections 18 and 19, cannot assume liability for any acts of Users or third parties which take place at these Services. By these Terms, you acknowledge that in establishing a complaint procedure we are taking on the role of a Good Samaritan and, in order to allow us to do our best, in good faith, to purge or otherwise restrict the availability of material that is infringing, racist, sexist, obscene, harassing, or otherwise objectionable, you agree to waive any claims or remedies which you might otherwise be able to make against us under any theory of law (including, but not limited to, intellectual property laws) arising out of or relating in any way to the Media at these Services or our response, or failure to respond, to a complaint.
Investigation / Right to Purge Postings. You agree that we have the right (but not the obligation) to investigate any complaint received and, at any time and for any reason, to remove any material which you post to our Services, with or without your permission, and with or without cause, in our sole discretion. By reserving this right, we do not undertake any responsibility in fact to remove Media posted to our Services, whether or not a complaint has been received.
We (and our licensors, where applicable) shall own all rights, title, and interest, including all related intellectual property rights, in and to the Services. These Terms are not a sale and do not convey to you any rights of ownership in or related to the Services, or any intellectual property rights owned by us. Our name, logo, and the product names associated with the Services are our trademarks or belong to third parties, and no right or license is granted to use them. You agree that you will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services.
We respect the copyright and other intellectual property rights of others and expect Users of our Services to do the same. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, we have a policy of terminating, in appropriate circumstances and at our sole discretion, Users of the Services who are deemed to be repeat infringers. We also may, in our sole discretion, limit access to the Services and terminate the accounts of any Users of the Services who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you are a copyright owner or the legal agent of a copyright owner, and you believe that any Media infringes on your copyrights, you may submit a notification to us pursuant to our DMCA Notice procedure:
| Notification of Alleged Copyright Infringement | If you believe that Media available on or through our Services infringes one or more of your copyrights, please immediately notify our Copyright Agent by mail or email (“Notification”) providing the information described below, which Notification is pursuant to DMCA 17 U.S.C. § 512(c)(3). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification.All Notifications should include the following:* A physical or electronic signature (typing your full name within forward slashes (“/myname/”) will suffice) of the copyright owner or a person authorized to act on their behalf (“complaining party”); |
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Identification of the copyrighted work claimed to have been infringed (e.g., a link to the original work or clear description of the materials allegedly being infringed upon), or, if multiple copyrighted works at a single online website or webpage are covered by a single Notification, a representative list of such works at that website or webpage;
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Identification of the infringing material and information reasonably sufficient to permit PhotoCircle to locate the material on our Site or Services;
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Information reasonably sufficient to permit us to contact the complaining party, such as the name, account name, address, telephone number, and email address at which the complaining party may be contacted;
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A statement that the complaining party has a good faith belief that the use of the material in the manner asserted is not authorized by the copyright owner, its agent, or the law; and
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A statement that the information in the Notification is accurate, and, under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright owner. Please be advised that pursuant to federal law you may be held liable for damages, including court costs and attorney’s fees, if you materially misrepresent that Media on our Services infringes a copyright. Thus, if you are not sure that Media located on or linked to by our Services infringe your copyright, you should consider first contacting an attorney.Submit your Notification to our designated Copyright Agent using the information below:Jonathan KentPhotoCircle, Inc. 1968 S. Coast Hwy #2844 Laguna Beach CA 92651support@photocircleapp.comUpon receiving a proper Notification of alleged copyright infringement, we will remove or disable access to the allegedly infringing material and promptly notify the alleged infringer of your claim. We will also advise the alleged infringer of the DMCA statutory counter-notification procedure described below by which the alleged infringer may respond to the complaining party’s claim and request that we restore this material.Please note that our furnishing the complaining party’s claim to the alleged infringer will include the personal information provided in the Notification, which the alleged infringer may use to contact the complaining party directly. As such, by submitting a Notification of alleged copyright infringement, the complaining party consents to disclosure of their information in the aforementioned manner. | | | Counter Notification | If you believe your copyrighted material has been removed from the Services as a result of a mistake or misidentification, you may submit a written counter-notification letter to us. To be an effective counter-notification under the DMCA, the counter-notification must substantially include the following:* Your name, address, and telephone number;
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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 (the description from the copyright notice will suffice);
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A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
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A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which PhotoCircle is located;
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A statement that you will accept service of process from the complaining party within the Notification or an agent of such person; and,
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A physical or electronic signature (typing your full name will suffice).You may submit the written counter-notification to our Copyright Agent by mail, email, or fax using the contact information set forth above. Please note that if you materially misrepresent that the disabled or removed Media was removed by mistake or misidentification, you may be liable for damages, including costs and attorney’s fees.Filing a false counter-notification constitutes perjury.If you send us a valid, written counter-notification meeting the requirements described above, we will restore the removed or disabled Media after 10 business days but no later than 14 business days from the date we receive the written counter-notification, unless our Copyright Agent first receives notice from the complaining party informing us that such party has filed a court action to restrain you from engaging in infringing activity related to the Media in question. |
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Services (“Feedback”). You agree that any Feedback submission is at your own risk and that we have no obligations (including, without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and hereby grant to us a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback, except as otherwise required by law.
You can send any Feedback you may have to support@photocircleapp.com.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, OR THE TEXT, GRAPHICS, OR LINKS.
WE DO NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE OR THAT THE SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.
No advice or information, whether oral or written, obtained from PhotoCircle or through the Services, will create any warranty or representation not expressly made herein.
Because some states do not permit disclaimer of implied warranties, you may have additional consumer rights under your local laws. These terms do not disclaim warranties where such disclaimers are prohibited by applicable law.
If there is a dispute between Users of our Services, or between Users and any third party, you agree that PhotoCircle is under no obligation to become involved.
In the event that you have a dispute with one or more other Users, you hereby release PhotoCircle, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR:
(A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR DATA BREACH, OR
(B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES (INCLUDING ATTORNEYS’ FEES) IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS.
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, OR ANY OTHER ITEMS OR SERVICES PROVIDED BY US, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY OF NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT THE SERVICES (INCLUDING ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY US IN CONNECTION WITH THE SERVICES) ARE PROVIDED “AS IS” AND THAT WE MAKE NO WARRANTY THAT THE SERVICES WILL BE FREE FROM BUGS, FAULTS, DEFECTS OR ERRORS OR THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED.
The Services may contain links to or display content originating from third-party websites and advertisements (collectively, “Third-Party Websites & Advertisements”). Such Third-Party Websites & Advertisements are not under our control. We are not responsible for any Third-Party Websites or any Third-Party Advertisements. We do not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their products or services. When you click on a link to a Third-Party Website or Advertisement, we will not warn you that you have left our Services and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. You use all links in Third-Party Websites & Advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
You agree to indemnify and hold harmless PhotoCircle and its officers, directors, employees, agents, and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines, and expenses, including without limitation attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from:
(a) your Content;
(b) your misuse of the Services;
(c) your violation of these Terms; or
(d) your violation of any applicable laws, rules or regulations through or related to the use of the Services.
In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this Section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services. You agree that the provisions in this Section will survive any termination of your account, these Terms, or your access to the Services.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION OF THE TERMS SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT.”
Scope of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services or as a consumer of our Services, to any advertising or marketing communications regarding us or our Services, to any products or services sold or distributed through the Services that you received as a consumer, or to any aspect of your relationship or transactions with us as a consumer of our Services will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or PhotoCircle may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement.
IF YOU AGREE TO ARBITRATION WITH US, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST US IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
Informal Resolution. You and PhotoCircle agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and PhotoCircle therefore agree that, before either you or PhotoCircle demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify us that you intend to initiate an informal dispute resolution conference, email support@photocircleapp.com, providing the email associated with your PhotoCircle account (if any), the email address associated with your PhotoCircle account (if any), and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Kayleigh Miles, 1968 S. Coast Hwy, Laguna Beach, CA 92651. The arbitration will be conducted by JAMS under its rules and pursuant to the terms of this Agreement. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com (under the Rules/Clauses tab) or by calling JAMS at 800-352-5267. Payment of all filing, administration, and arbitration fees will be governed by JAMS’s rules. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver of fees from JAMS, we will pay them for you. In addition, we will reimburse all such JAMS filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the county where you live or at another mutually agreed location.
Arbitrator Powers. 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 Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and PhotoCircle. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and PhotoCircle.
Waiver of Jury Trial. YOU AND PHOTOCIRCLE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and PhotoCircle are instead electing to have claims and disputes resolved by arbitration, except as specified in the Scope of Arbitration Agreement paragraph above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
Waiver of Class or Consolidated Actions. YOU AND PHOTOCIRCLE AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor PhotoCircle is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 21.
Batch Arbitrations. To increase efficiency of resolution, in the event 100 or more similar arbitration demands against us, presented by or with the assistance of the same law firm or organization, are submitted to an arbitration provider selected in accordance with the rules described above within a 30-day period, the arbitration provider shall (i) group the arbitration demands into batches of no more than 100 demands per batch (plus, to the extent there are less than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); and (ii) provide for resolution of each batch as a single arbitration with one set of filing and administrative fees and one arbitrator assigned per batch. You agree to cooperate in good faith with PhotoCircle and the arbitration provider to implement such a batch approach to resolution and fees.
Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor PhotoCircle can force the other to arbitrate as a result of this Agreement. To opt out, you must notify PhotoCircle in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your email address (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: support@photocircleapp.com. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.
Survival. This Arbitration Agreement will survive any termination of your relationship with us.
Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if we make any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to us.
To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and PhotoCircle agree that all claims and disputes arising out of or relating to the Terms will be litigated exclusively within the State of California for courts situated in Orange County, California, or in federal court for the Central District of California.
At our sole discretion, we may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, these Terms will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of these Terms.
| Electronic Communication | For contractual purposes, you (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. This subparagraph does not affect your statutory rights. |
| No Waiver | The failure of PhotoCircle to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. |
| Assignment | You may not assign or transfer these Terms, by operation of law or otherwise, without PhotoCircle’s prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and of no effect. PhotoCircle may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties. |
| Severability | Except as otherwise provided herein, if for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect, and that invalid provision will be enforced to the maximum extent permissible. |
| Entire Agreement | These Terms constitute the entire agreement between you and PhotoCircle regarding your use of PhotoCircle’s Services, and supersede all prior written or oral agreements. Additional terms may apply to certain PhotoCircle products or offerings. |
| Choice of Law | These Terms are governed by the laws of the State of California consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction. |
| Modification | PhotoCircle reserves the right, at its sole discretion, to modify these Terms at any time and without prior notice. If we materially modify these Terms, as determined by PhotoCircle in its sole discretion, we will either post a notification of the modification on our Site or otherwise provide you with notice of the change. The date of the last modification will also be posted at the beginning of these Terms. It is your responsibility to check from time to time for updates. By continuing to access or use the Service, you are indicating that you agree to be bound by any modified Terms. |
If you have questions about these Terms, please contact us at:
PhotoCircle, Inc.
1968 S. Coast Hwy #2844
Laguna Beach CA 92651
