Terms of Service

READ THIS AGREEMENT CAREFULLY. WE ARE WILLING TO PROVIDE PHOTOCANNON’S SOFTWARE, CONTENT AND SERVICES ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE FOLLOWING TERMS.

BY REGISTERING WITH US AND/OR BY USING PHOTOCANNON, YOU ARE AGREEING ELECTRONICALLY TO THE FOLLOWING TERMS, WHICH IS AN AGREEMENT BINDING ON YOU (THE “AGREEMENT”). IF YOU DO NOT AGREE, DO NOT USE PHOTOCANNON.

1. ABOUT THIS AGREEMENT.

This Agreement governs your registration, access and use of PhotoCannon’s software (including any updates), services, Content and upgrades (”PhotoCannon”). The general terms of this Agreement may be supplemented by usage rules, terms, guidelines and policies (”Usage Rule(s)”) that will apply to your use of specific PhotoCannon features. Such Usage Rules will be posted with the applicable application and are binding on you as part of this Agreement. In this Agreement, the terms:

2. CHANGES TO THE AGREEMENT.

We may modify this Agreement and any Usage Rules at any time. You agree to assume all responsibility in reviewing this Agreement periodically so that you will be apprised of any changes. If you continue to use PhotoCannon after we post or notify you about changes to these terms, you are signifying your acceptance of the new terms.

3. PHOTOCANNON.

PhotoCannon provides online data sharing and storage resources. We offer PhotoCannon at different plans and price packages. The level of features that will be available to you will depend on the plan and price package selected by you. Certain premium features, such as additional storage space, additional recipients, etc., are available only with fee-based plans. The terms of the offer selected by you, including any fees associated with the plan, are binding on you. Purchases are final and non-refundable. In the event we offer any free trial promotions, we may limit the number of promotions we offer to you. Any trial promotion to a subscription plan (such as free trial time) must be used within the specified time of the trial. You must cancel your account before the end of the trial period to avoid being charged a fee.

We have no obligation to offer any specific feature or plan. Certain features or offerings may not be available in all geographic locations. We may change or discontinue PhotoCannon or any feature of PhotoCannon at any time and without notice.

4. GENERAL OPERATING RULES; BANDWIDTH LIMITATIONS.

YOU AGREE THAT WE MAY IN OUR COMPLETE DISCRETION ESTABLISH GENERAL OPERATING PRACTICES TO MAXIMIZE THE OPERATION AND AVAILABILITY OF PHOTOCANNON FOR THE GREATEST BENEFIT OF OUR USERS AND TO PREVENT ABUSES. AS PART OF THESE PRACTICES, WE RESERVE THE RIGHT TO MONITOR OUR SYSTEM TO IDENTIFY EXCESSIVE CONSUMPTION OF NETWORK RESOURCES AND TO TAKE SUCH TECHNICAL AND OTHER REMEDIES WE DEEM APPROPRIATE TO PREVENT ABUSES. YOUR CONSUMPTION OF PHOTOCANNON SERVICES MAY BE DEEMED EXCESSIVE IF, WITHIN ANY MONTH, YOUR USAGE GREATLY EXCEEDS THE AVERAGE LEVEL OF MONTHLY USAGE OF PHOTOCANNON’S CUSTOMERS GENERALLY. IN THE EVENT YOU ARE DEEMED TO HAVE VIOLATED THIS POLICY, WE RESERVE THE RIGHT IN OUR DISCRETION TO ARRANGE A CUSTOM PRICING PLAN THAT WILL PERMIT YOU TO CONTINUE TO USE PHOTOCANNON. PLEASE NOTE, INCIDENTS OF VIOLATION OF THIS POLICY HAVE BEEN INFREQUENT AMONG PHOTOCANNON USERS; HOWEVER, WE RETAIN THE RIGHT TO TERMINATE OR SUSPEND YOUR ACCOUNT WITHOUT PRIOR NOTICE IN THE EVENT OF A VIOLATION OF THESE TERMS.

5. YOUR REPRESENTATION.

You represent and warrant that you have adequate legal capacity to enter into this Agreement, that you will use PhotoCannon only for lawful purposes, that you are providing complete and accurate information about yourself when you register with us, that you will keep your registration information current, and that you will not violate the terms of this Agreement.

6. YOUR INFORMATION.

The PhotoCannon Privacy Policy located at http://www.photocannon.com/terms/ discloses our information practices regarding your registration and use of PhotoCannon and the choices that you can make about the use of your information. By signing up for PhotoCannon and/or by using PhotoCannon, you consent to the information practices disclosed in our privacy policy.

7. EQUIPMENT AND SOFTWARE.

You must provide at your own expense Internet access, compatible software and compatible equipment to access and use PhotoCannon. You must ensure that you meet the system requirements that we will disclose to you when you sign up for PhotoCannon. You may need to download from us certain software to use PhotoCannon features. Please go to the “Help” area located at http://www.photocannon.com/help/ for more information. You may need to obtain updates or upgrades from time to time in order to continue using PhotoCannon. We may modify system requirements or the Software at any time.

WE MAKE NO WARRANTY THAT ANY PARTICULAR COMPUTER OR OTHER DEVICE WILL BE COMPATIBLE OR FUNCTION WITH THE PHOTOCANNON SOFTWARE AND SERVICE. We may modify the system requirements for PhotoCannon at any time.

8. YOUR RESPONSIBILITIES.

PhotoCannon is for your personal use only. You are responsible for all activities under your account, including all legal liability incurred from the use or access of your account by you and others. You are solely responsible for the Content you store, make available or retrieve from your account and from all public folders. You are responsible for keeping your password confidential. You may not submit or transmit through PhotoCannon any Content, material, or otherwise engage in any conduct that:

You may not:

We may take any legal and technical remedies to prevent the violation of this provision and to enforce this Agreement, including without limitation, immediate termination of your account or access to PhotoCannon if we believe in our discretion you are violating this Agreement.

9. PROPRIETARY RIGHTS.

PhotoCannon, its licensors and contributors own all right, title and interest in PhotoCannon (”PhotoCannon Rights”). The PhotoCannon Rights are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and also may have security components that protect digital information. All PhotoCannon Rights are reserved by their respective owners. You may only use PhotoCannon as authorized by this Agreement.

10. POSTING CONTENT AND DATA.

You may only share or post Content on PhotoCannon that you created or that you have permission to share or post. You are solely responsible for the Content you post on PhotoCannon, including without limitation, the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Content. We shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Content. You may not post or share Content that violates this Agreement. We do not claim ownership of any Content that you may post on or share through PhotoCannon; however, if you elect to submit Content on areas of PhotoCannon that are generally available to the public, you grant us, our parent, affiliates, and distributors the right to use, copy, display, perform, distribute, adapt and promote this content in any medium.

11. MONITORING.

We are not liable for Content that is provided by others. We have no duty to pre-screen such Content. We reserve the right to remove Content for any reason, but we are not responsible for any failure or delay in removing such material. We are not responsible for Content made available on the Internet.

12. FEES AND PAYMENT.

You agree to pay the applicable fees and charges for any purchases that you make from us. All charges are nonrefundable unless provided otherwise by us. We may limit the number of promotions for which you may be eligible in a given period. You must select a payment method to pay us for any usage or subscription fees and all purchases made from us. You must give us accurate billing and payment information. We will bill you through the PayPal system. You agree to pay us for all charges incurred by your usage, including all applicable taxes, fees and surcharges. You authorize us to charge your designated payment method for these charges and to retain information about the payment method associated with your account. If we do not receive payment from your designated payment method, you agree to pay all amounts due upon demand by us. We may, in our discretion, post charges to your payment method individually or may aggregate your charges with other purchases you make from us.

Every time you make a purchase or use PhotoCannon, you reaffirm that (i) we are authorized to charge your designated payment method; (ii) we may submit charges incurred under your Account for payment; and (iii) you will be responsible for such charges, even if your membership is canceled or terminated. You are responsible for all charges incurred under your account made by you or anyone who uses your account (including your children, family or friends).

Any monthly service fees will be charged one month in advance and are not refundable. We will automatically charge your payment method for your monthly service charges, and any applicable fees and taxes, after the last day of the billing period. Any pre-paid services or other subscription plans, such as seasonal passes, will be subject to supplemental terms that will be disclosed to you when you make your purchase and that will supplement this contract.

After 30 days from the date of any unpaid charges, your account will be deemed delinquent and we may terminate or suspend your account for nonpayment. We reserves the right to assess an additional 1.5 percent (or the highest amount allowed by law, whichever is lower) per month late charge if your payment is more than 30 days past due and to use alternate means to collect any unpaid charges. You are liable for any fees, including attorney and collection fees incurred by us in our efforts to collect any remaining balances from you.

13. BILLING DISPUTES.

You must notify us about any billing problems or discrepancies within 60 days after they first appear on the statement you receive from your bank or credit card company. If you do not bring such problems or discrepancies to our attention within 60 days, you agree that you waive the right to dispute such problems or discrepancies.

14. LICENSE; SOFTWARE.

We grant you a personal, non-exclusive, non-transferable, limited and revocable license to use PhotoCannon for your own use and provided that you comply and remain in compliance with this Agreement. You may not circumvent any mechanisms for preventing the unauthorized reproduction or distribution of PhotoCannon. Your license terminates immediately upon cancellation or termination of your PhotoCannon account or if we believe you are in violation of this Agreement. Unless provided otherwise in a separate license agreement, any software we provide to you may be installed on any single computer or device from which you wish to access and use PhotoCannon. You may not (a) sell or redistribute PhotoCannon, (b) incorporate any aspect of PhotoCannon into another product, or (c) reverse engineer, decompile or disassemble PhotoCannon or otherwise attempt to derive the source code from PhotoCannon (except where expressly permitted by law). You may not modify, adapt or create derivative works from PhotoCannon in any way or remove proprietary notices posted on PhotoCannon. You may access PhotoCannon only through the software, interfaces and protocols provided or authorized by us. Also, you may not authorize or assist any third party to do any of the things prohibited in this paragraph. Any rights not specifically licensed to you for any PhotoCannon software are reserved by the owner of the rights in the software. We may automatically check your version of PhotoCannon software. We may automatically update PhotoCannon software on your computer to improve the performance and capabilities of such software. If you shut down the PhotoCannon software during an automatic update or otherwise interfere with the installation of the update, the software may be damaged and/or cease to operate.

Your license will end on the date your PhotoCannon service ends. Your license will also end if we modify PhotoCannon in a way that no longer supports the service.

PhotoCannon (including its software) is a “commercial item,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 27.405(b) (2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government end users acquire the Software with only those rights as set forth herein.

We are under no obligation to provide you with any error corrections, updates, upgrades, bug fixes and/or enhancements to PhotoCannon, although we may do so in our sole discretion.

15. DISCLAIMER OF WARRANTIES.

We provide PhotoCannon “as is”, “with all faults” and “as available.” We, our vendors and distributors (”Service Providers”) make no express warranties or guarantees about PhotoCannon. TO THE EXTENT PERMITTED BY LAW, THE SERVICE PROVIDERS DISCLAIM IMPLIED WARRANTIES THAT PHOTOCANNON IS MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. THE SERVICE PROVIDERS DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF PHOTOCANNON, INCLUDING ANY SUPPORT SERVICES, WILL BE EFFECTIVE, RELIABLE, ACCURATE, MEET YOUR TASTES, OR MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE PHOTOCANNON (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OUR REPRESENTATIVES SHALL CREATE A WARRANTY. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE INEGRITY OR SECURITY OF YOUR FILES OR CONTENT. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, APPROPRIATENESS AND COPYRIGHT OF ANY DATA OFFERED OR SHARED BY OTHERS ON PHOTOCANNON. You may have additional consumer rights under your local laws that this contract cannot change. You use PhotoCannon at your own risk.

16. LIMITATION OF LIABILITY.

YOUR EXCLUSIVE REMEDY REGARDING ANY SOFTWARE PROVIDED BY US SHALL BE THE REPLACEMENT OF ANY SUCH SOFTWARE FOUND TO BE DEFECTIVE. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY OTHER DISPUTE WITH THE SERVICE PROVIDER OR PHOTOCANNON IS TO DISCONTINUE YOUR USE OF PHOTOCANNON OR TO CANCEL ANY SUBSCRIPTION THAT YOU MAY HAVE WITH US. IN NO EVENT SHALL OUR CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF PHOTOCANNON EXCEED THE TOTAL AMOUNT OF SERVICE FEES THAT YOU PAID DURING A ONE-YEAR PERIOD FOR THE SPECIFIC SERVICE AT ISSUE.

WE SHALL NOT BE LIABLE FOR LOSS OF CONTENT THAT YOU STORE WITH PHOTOCANNON. WE ARE NOT RESPONSIBLE FOR CIRCUMSTANCES BEYOND OUR CONTROL, INCLUDING WITHOUT LIMITATION, ACTIONS OF THIRD PARTIES OR NATURAL DISASTERS.

THE SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF PHOTOCANNON AND ITS SOFTWARE. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF THE SERVICE PROVIDERS KNEW OR SHOULD HAVE KNOWN THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE SERVICE PROVIDERS’ LIABILITY IN SUCH STATE OR JURISDICTION IS LIMITED TO THE EXTENT PERMITTED BY LAW.

17. CANCELLATION.

Unless you are on a plan that requires a time commitment, you may cancel a subscription that you may have with PhotoCannon at any time, for any reason. Please go to the “Help” area on PhotoCannon at http://www.photocannon.com for instructions on how to cancel a subscription. If you are participating in any trial period offer, you must cancel PhotoCannon before the end of the trial period to avoid incurring charges. Certain plans may require cancellation charges, and you will pay all cancellation charges as specified in the materials describing the offer.

18. TERMINATION; DEACTIVATION.

We may cancel or suspend your access to PhotoCannon at any time, without cause and/or without notice.� We may (in our sole discretion) remove and/or purge the data sent via the PhotoCannon service within a certain time period after the data is uploaded to the service.� The PhotoCannon service will inform you of this time limit upon each usage of the service.

Your right to use PhotoCannon will end once your PhotoCannon account is cancelled or terminated, and any data you have stored on PhotoCannon may be unavailable later. You remain responsible for paying any amounts owed on your account at the time your account is terminated or cancelled.

19. INDEMINIFICATION.

Upon a request by us, you agree to defend, indemnify, and hold harmless us and our subsidiaries, parent and other affiliated companies, and their employees, contractors, officers, and directors from all liabilities, claims, and expenses, including attorney’s fees that arise from your use or misuse of PhotoCannon and for any violation by you of this Agreement. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.

20. ELECTRONIC CONTRACTING AND NOTICES.

Your affirmative act purchasing or registering for PhotoCannon constitutes your electronic signature to this Agreement and your consent to enter into agreements with us electronically. You agree that we may send to you in electronic form any privacy, disclosures or other notices about PhotoCannon, including without limitation, notices about changes to pricing or changes to this Agreement (collectively, “Notices”). We can send you electronic Notices (1) to the e-mail address that you provided to us during registration, or (2) by posting the Notice on the PhotoCannon web site at http://www.photocannon.com. The delivery of any Notice from us is effective when sent by us, regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by canceling or discontinuing your PhotoCannon account. In order to receive Notices electronically, you must have a personal computer with a modem connected to a communications source (telephone, wireless or broadband), and a Windows-based operating system with an Internet browser or a Macintosh-based operating system with an Internet browser. You will need a printer attached to your personal computer to print any Notices. You can retrieve an electronic copy and a printable version of this contract by clicking on the “Terms of Service” (or “Terms of Use”) link on the home page of http://www.photocannon.com. All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing.

21. ENTIRE AGREEMENT.

This Agreement and any Usage Rules, price package offers, supplemental terms, policies, rules and guidelines posted on PhotoCannon constitute the entire agreement between you and us and supersede all previous written or oral agreements. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Sections 6, 9, 13 to 16, 18, and 20 to 22 survive the termination of this Agreement.

22. CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES.

You agree that the law of the State of North Carolina governs this contract and any claim or dispute that you may have against us, without regard to North Carolina’s conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims that you may have against us will be resolved by a court located in the State of North Carolina.

PLEASE NOTE THAT BY AGREEING TO THIS AGREEMENT, YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST US BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE OR FEDERAL COURTS IN THE STATE OF NORTH CAROLINA OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS LOCATED IN THE STATE OF NORTH CAROLINA FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS

23. ASSIGNMENT.

We may assign this contract at any time without notice to you. You may not assign or transfer this contract to anyone else.

24. PROCEDURES FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.

We respect the intellectual property of others. If you believe that your work has been copied and is accessible on PhotoCannon in a way that constitutes copyright infringement, please use the information in the Contact section of http://www.photocannon.com to contact us to report possible copyright infringement.


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