PhotoRocket, Inc.

Terms of Service

Last Updated: February 20th, 2011

Acceptance of Terms of Service

Welcome to PhotoRocket.com. These Terms of Service ("Agreement") are a binding legal agreement between you and PhotoRocket, Inc. ("PhotoRocket" or "we"), regarding your use of the services available at the website www.PhotoRocket.com (the website and the services are collectively referred to as the "Service"). PhotoRocket also provides related software downloads ("Software"). Please read this Agreement carefully.

By downloading, installing, or using the Software, or accessing or using the Service, you accept this Agreement and any modifications that may be made to the Agreement from time to time. If you do not agree to any provision of this Agreement, you should not download, install, or use the Software, or access or use the Service.

BEFORE YOU CLICK ON THE "SIGN UP", "AGREE" OR "PROCEED TO LAUNCH" BUTTON, CAREFULLY READ THE TERMS OF THIS AGREEMENT. BY CLICKING ON THE "SIGN UP", "AGREE" OR "PROCEED TO LAUNCH" BUTTON, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SERVICE OR THE SOFTWARE.

The Service

The Service will allow you, in accordance with this Agreement, to upload and transmit data (for example, photos and video) via the web. The Software and Service also will allow you to transmit data from a wireless mobile device that you own ("Device") to your Internet-connected personal computer, to an email address specified by you, or to your account at a third-party partner destination ("Partner"). Your Device may come preloaded with Software by your wireless carrier ("Carrier"), or you may have to download Software from your Carrier to your Device.

PhotoRocket does not provide you with any equipment to access the Service. Please be aware that your Carrier may restrict or prohibit downloading, installing, or using the Software, and that the Service may not work with all wireless carriers or devices.

Account Registration

You must download and install the Software and register for an account to use certain features of the Service. When registering, you must provide accurate and complete information about yourself, including a verified email address, and promptly update this information if it changes.

You are solely responsible for all activities that occur through your account. To protect your account from unauthorized use, keep your user identification and password secure. Please notify PhotoRocket immediately of any unauthorized use of your account or any other breach of security. If we have reasons to believe of any unauthorized use of your account or any other breach of security, we may reset your password or ask you to reset your password.

Eligibility

You must be 13 years of age or older to use the Software or Service. Use of the Software or Service is void where prohibited. By using the Software or the Service, you represent and warrant that you are 13 years of age or older and are fully able and competent to enter into, and abide by, the terms of this Agreement. The Service is not intended for those under the age of 13.

Fees and Refunds

PhotoRocket offers some products for a fee, including printed photos. As of the date stated above, the Software and Service are provided to you free of charge, but we reserve the right to implement fees for the Software or Services and to change our product fees at any time by providing you notice on the Service or otherwise. When you place an order for a product, you are responsible for all fees and charges specified and all applicable taxes. Orders placed through the Service are processed by a third party. When purchasing a product, you authorize PhotoRocket or our third party service providers to bill your credit card for all fees and charges specified and all applicable taxes. If PhotoRocket does not receive payment from your credit card provider, you agree to pay all amounts due upon demand. UNLESS A PRODUCT IS DEFECTIVE AND YOU NOTIFY US OF THE DEFECT WITHIN 30 DAYS OF YOUR RECEIPT OF THE PRODUCT, PHOTOROCKET DOES NOT PROVIDE REFUNDS IN WHOLE OR IN PART.

YOUR USE OF THE SERVICE MAY INVOLVE THE TRANSMISSION OF DATA TO AND FROM YOUR DEVICE, WHICH MAY RESULT IN ADDITIONAL CHARGES BY YOUR CARRIER. FOR THIS REASON, PHOTOROCKET RECOMMENDS THAT YOU CHECK WITH YOUR CARRIER ABOUT DATA TRANSFER PRICING BEFORE USING THE SERVICE. PHOTOROCKET WILL NOT BE RESPONSIBLE FOR ANY CHARGES INCURRED IN CONNECTION WITH THE SOFTWARE OR SERVICE.

License

If you comply with all the terms and conditions of this Agreement, PhotoRocket grants you a limited, personal, revocable, non-transferable, and non-exclusive license to: (a) use the Service to transmit data from your Device to the destinations that you choose and otherwise share your User Content as permitted by the Service; and (b) use the Software solely in connection with your use of the Service.

Special Provisions Regarding Third Party Software

The Software contains third party software that is covered by a different license terms ("Third Party Software"). The notices, license terms, and disclaimers applicable to Third Party Software are included at the end of this Agreement. This Agreement does not apply to any Third Party Software.

User Content

Once you have registered for an account, you may transmit and store certain materials and information via the Service, including photo and videos ("User Content"). When you share User Content with a third party (e.g., when you email a friend a link to your photos), your User Content becomes available to any person with whom this third party chooses to share your User Content. Please consider this before sharing your User Content, as PhotoRocket is not responsible for other parties misusing your User Content. You must not transmit or store User Content via the Service unless you own all necessary rights, or have permission from the rightful owner of the User Content, to do so. PhotoRocket reserves the right to reduce the file size allowed for registered accounts or to delete User Content after your account has been inactive for 365 days.

For any User Content that you post, transmit, or store via the Service: (a) in order for us to provide our service to you and to carry out the sharing, printing, storage and other requests that you make of us, you grant us and our subsidiaries and affiliates a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display the User Content throughout the world in any media subject to the privacy or other settings selected by you from within your PhotoRocket account (this right is granted to us by you only for the purpose of making such User Content available to yourself or others in the manner chosen by you); (b) you grant us and our affiliates, subsidiaries, and sublicensees the right to use the name that you submit in connection with the User Content, if we choose; (c) you represent and warrant that you own and control all of the rights to the User Content that yyou post, or you otherwise have the right to post that User Content to the Service; and (d) you represent and warrant that the use and posting of the User Content you supply does not violate this Agreement, will not violate any rights of or cause injury to any person or entity, and will not otherwise create any harm or liability of any type for us or for third parties. For purposes of clarification: you granting us this right does not transfer ownership of your User Content to us; we do not own your User Content, nor do you grant us the right, without your permission, to use or disclose it in any way other than as specified in these Terms of Service or our Privacy Policy.

Although PhotoRocket will not necessarily review User Content, PhotoRocket reserves the right to refuse, review, or delete any User Content in our sole discretion, for any reason or no reason. You remain solely responsible for: (i) any errors or omissions in your User Content; (ii) any liability arising out of your User Content or PhotoRocket's failure to transmit or store your User Content; and (iii) any liability arising out of your use of any content transmitted to you by another user of the Service. Under no circumstances will PhotoRocket or our stockholders, directors, officers, employees, agents, representatives, partners, or affiliates be held liable for any loss or damage caused by your User Content or by your reliance of any content obtained through the Service.

Modifications

PhotoRocket reserves the right to modify, discontinue, restrict, or monitor, temporarily or permanently, all or a part of the Software or Service, without notice. Neither PhotoRocket nor its Partners or your Carrier will be liable to you or to any third party for any modification, discontinuance, restriction, or monitoring of the Software or Service.

Restrictions

You must comply with all applicable laws when using the Software and Service. You will not, and will not permit anyone else to, access or use the Software or Service in any way we deem illegal or otherwise wrongful or inappropriate. You will not: (a) reverse engineer, decompile, or disassemble the Software; (b) modify translate, adapt, arrange, or create derivative works based on the Service or the Software; (c) export the Software in violation of applicable export control laws; (d) remove or alter any identification, copyright, or other notices included as part of the Software or Service; (e) use the Software or Service in a manner that threatens the integrity, performance, security, or availability of the Service, a Partner website, or your Carrier’s network, or in a way that may subject PhotoRocket, its licensors or suppliers, Partners, your Carrier, or any third party to harm or liability; (f) use the Service while driving a motor vehicle; (g) distribute, rent, loan, lease, sell, sublicense, copy or otherwise transfer all or part of the Software; (h) grant any access to the Software or the Service, or any of the rights granted hereunder, to any other person; (i) use the Service to transmit material that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent; (j) use the Service to transmit a photo or video of another person without that person’s consent; or (k) use the Service to transmit any photo or other data that infringes the intellectual property rights of any third party.

Compliance with Partner and Carrier Terms

If you use the Service to send photos to a Partner website, you must abide by that Partner’s terms and conditions, which may contain additional or different restrictions, obligations, or limitations. Your Carrier’s terms and conditions also apply to your use of the Service.

Termination

You may terminate your use of the Service at any time by disabling the Software on your Device. PhotoRocket or your Carrier may terminate this Agreement and your access to the Service, and a Partner may terminate your ability to send photos to your Partner account, at any time, for any reason. If PhotoRocket suspects that you have violated any provision of this Agreement, PhotoRocket may also seek any other available legal remedy. Your rights under this Agreement will terminate automatically if you breach any part of this Agreement.

You remain solely liable for all obligations related to use of the Service from your Device, even after you have stopped using the Service. Neither PhotoRocket, nor any Partner or your Carrier, are liable to you or to any third party for any loss caused by any termination of the Service or termination of your access to the Service.

Privacy

PhotoRocket may collect registration and other information about you through the Service. Our collection, use, and disclosure of this information is governed by the PhotoRocket Privacy Policy available at www.photorocket.com/privacy-policy/. Please be aware that Partners and your Carrier may collect information about your use of the Service. How a Partner or your Carrier collects, uses, and discloses your personal information is governed by that third party’s privacy policy, if any.

Ownership

PhotoRocket, its suppliers and licensors, and Partners own all right, title, and interest, including all intellectual property rights, in and to the Software and Service. Except for those rights expressly granted in this Agreement, no other rights are granted, either express or implied, to you.

Third-Party Content

The Service includes content provided by end users of the Service and other third parties, and may contain links to third party Web pages (collectively, "Third-Party Content"). We do not monitor, endorse, adopt, or control Third-Party Content. We undertake no responsibility to update or review any Third Party Content and can make no guarantee as to its accuracy or completeness.

Additionally, if you follow a link or otherwise navigate away from the Service, please be aware that these Terms will no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third-Party Content provider to which you navigate from the Service. You access and use Third-Party Content at your own risk. The Service may contain advertisements and promotions from third parties. Your business dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party.

Feedback

If you provide feedback to us regarding the Software or Service ("Feedback"), you authorize us to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to us perpetual and irrevocable license to use the Feedback for any purpose.

Disclaimer of Warranties

YOUR USE OF THE SOFTWARE AND SERVICE IS AT YOUR SOLE RISK. THE SOFTWARE AND SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. PHOTOROCKET, ITS LICENSORS AND SUPPLIERS, PARTNERS, AND YOUR CARRIER EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. PHOTOROCKET DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE SERVICE OR THAT ANY PHOTOS OR OTHER DATA SENT BY YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE AMOUNT OF TIME. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DELAY OR LOSS OF ANY KIND THAT RESULTS FROM YOUR ACCESS OR USE OF THE SOFTWARE AND SERVICE, INCLUDING LOSS OF ANY PHOTOS OR ANY LOSS OR HARM TO YOUR DEVICE OR PERSONAL COMPUTER. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PHOTOROCKET, THROUGH OR FROM THE SERVICE, OR FROM ANY PARTNER OR YOUR CARRIER, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.

Limitation of Liability

NEITHER PHOTOROCKET NOR ITS LICENSORS OR SUPPLIERS, PARTNERS, OR YOUR CARRIER WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PHOTOROCKET, ANY LICENSOR OR SUPPLIER, PARTNER, OR YOUR CARRIER HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM YOUR ACCESS OR USE OF THE SOFTWARE OR SERVICE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

THE MAXIMUM TOTAL LIABILITY OF PHOTOROCKET, ITS LICENSORS AND SUPPLIERS, PARTNERS, AND YOUR CARRIER TO YOU FOR ANY CLAIM UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS $50. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Indemnity

You will defend, indemnify and hold PhotoRocket, its affiliates, directors, officers, agents, employees, licensors and suppliers, Partners, and your Carrier harmless from any costs, damages, expenses, and liability caused by your use of the Software or Service, your violation of this Agreement, or your violation of any rights of a third party through use of the Software or Service.

Updates to this Agreement

We may periodically make changes to this Agreement. When we do, we will revise the "last updated" date on the Agreement, and we will notify registered users by email of any material changes to this Agreement, so please keep your registered email address current. By accessing or using the Service or the Software, you accept this Agreement and any modifications that we may make to this Agreement. It is your responsibility to review the most recent version of this Agreement frequently and remain informed of any changes to it. If you continue to use the Service or Software after we modify this Agreement, you will be deemed to have consented to terms of the modified Agreement for your use of the Service after the date of the modification. If you do not agree to any provision of this Agreement, you must not use the Service. Certain terms and conditions of this Agreement may be superseded by the end user license agreement accepted by you, if any, for the personal computer version of the Software.

Copyright Infringement

PhotoRocket respects the intellectual property rights of others, and asks you to do the same. PhotoRocket will terminate the access privileges of those who repeatedly infringe the copyright rights of others. If you believe that your work has been transmitted by the Service in a way that constitutes copyright infringement, please contact PhotoRocket at the address below and provide the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed, and identification of the time(s) and date(s) the material that you claim is infringing was transmitted by the Service; (3) your address, telephone number, and email address; (4) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

PhotoRocket’s designated agent for notice of copyright infringement can be reached at:

PhotoRocket
Attention: Copyright Compliance Officer
83 South King Street, Suite 107
Seattle, Washington, 98104

General Legal Notices

By using the Service, you consent to receiving electronic communications from PhotoRocket. These communications will include notices about your account and information concerning or related to the Software or Service. You agree that any notice, agreements, disclosure or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

PhotoRocket’s failure to act in a particular circumstance does not waive its ability to act with respect to that circumstance or similar circumstances. Any provision of this Agreement that is found to be invalid, unlawful, or unenforceable will be severed from this Agreement, and the remaining provisions of this Agreement will continue to in full force and effect.

This Agreement is governed by the laws of the State of Washington, excluding conflicts of law principles. Any controversy or claim arising out of or relating to the Software, Service, or this Agreement must be commenced within one year after the claim arose and will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in Seattle, Washington, and judgment on the arbitration award may be entered into any court of competent jurisdiction. The award of the arbitrator will be final and binding upon the parties without appeal or review except as permitted by Washington law. Either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party's rights or property pending the completion of arbitration.

This Agreement is the entire agreement between you and PhotoRocket concerning the Software and the Service, and supersedes all prior agreements or communications between you and PhotoRocket regarding the subject matter of this Agreement.

Contacting PhotoRocket

If you have any questions or concerns about this Agreement, the Software, or the Service, please send us a thorough description by email to support@photorocket.com.

Third Party Licenses

The Software may contain or be distributed with the following Third Party Software, which is licensed under the separate and distinct Third Party Licenses set forth below. Further, the Third Party Software is subject to the notices and disclaimers set forth below:

Third Party Software: Chromium and Chromium Embedded Framework

Third Party Software license text (New BSD):

Copyright (c) Chromium Project Contributors
All rights reserved.

Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
- Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
- Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
- Neither the name of the Chromium Project nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Third Party Software: Cajun C++ API for JSON v2.01

Third Party Software license text (New BSD):

Copyright (c) tcaton
All rights reserved.

Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
- Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
- Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
- Neither the name of tcaton nor the names of any contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Third Party Software: JSON Framework

Third Party Software license text (New BSD):

Copyright (c) sbrautaset
All rights reserved.

Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
- Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
- Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
- Neither the name of sbrautaset nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.