Foto Source Canada Inc.
Photo Album Services Agreement
Updated: October 28, 2007
PLEASE READ THIS DOCUMENT CAREFULLY.
IT SIGNIFICANTLY ALTERS YOUR LEGAL RIGHTS AND REMEDIES.
The Foto Source website, which is currently located at www.fotosource.com, allows registered customers to upload, view, store and share their photographs, subject to our policies and the terms of this Agreement. We call these services the "Photo Album Services".
Registered customers may also pay to have their uploaded photographs developed by a Foto Source store pursuant to the terms of a separate contract between the customer and the independent owner/operator of that store (the "Store Owner"). Please note that Foto Source is not involved in developing these photographs and does not provide any services relating to the development of photographs. Those services are provided solely by Store Owners, and they are not part of the "Photo Album Services".
This Customer Agreement is a legally binding agreement between Foto Source Canada Inc. ("Foto Source" or "we" or "us") and you. It governs your use of the Photo Album Services. If you do not agree with this Agreement, you may not use the Photo Album Services.
Changes to this Agreement
We may change the terms and conditions of this Agreement from time-to-time by posting the changes on the Foto Source website. Please check the Foto Source website regularly for changes; we will not give you any other notice of the changes.
The Photo Album Services
We will give you access to the Photo Album Services after you have accepted the terms of this Agreement and completed the registration process.
There is currently no charge for using the Photo Album Services, although we have the right to impose fees in the future after giving you at least 60 days' notice of those fees. If you do not agree to pay those fees, you may terminate your account with us at no charge. If you terminate your account you will not be able to use the Photo Album Services, however, you may be able to order printing services or products at a Store Owner's location.
Your Obligations, Representations and Warranties
You represent, warrant and promise to us that:
- you are an individual who can form a legally binding contract at law
- you are at least 18 years old and of the age of majority in the jurisdiction from which you access and use the Photo Album Services
- all information you have provided to us (and all information you will in the future provide to us) is (and will be, when you provide it to us in the future) true, current and accurate
- you will promptly notify us of any inaccuracies in, or changes to, your information
- any password you use for the Photo Album Services will be non-obvious and hard-to-guess
- you will safeguard the customer name, password and account you use to access the Photo Album Services, and you will not disclose them to any third party
- you will not permit any third party to use or access your customer name, password or account, and you will be solely responsible and liable for all activities or actions conducted under that name, password and account, regardless of whether or not you authorized those activities or actions
- you will immediately notify us of any unauthorized use of your customer name, password or account
- you will log out at the end of each session after using the Photo Album Services
- you will respond promptly to all email and other correspondence from us
- whenever you use, access, upload or download any photos and other content (collectively, "Content") in connection with the Photo Album Services, you will comply with all applicable laws and with all of our policies and rules, as updated from time to time
You understand and agree that:
- the customer name, password and account you use to access the Photo Album Services remain the property of Foto Source; we may cancel or suspend them any time without prior notice and without any liability to you or any third party
- if we provide you with a URL (e.g. http://yourname.fotosource.com) to use for your Content (the "URL"), that URL remains the property of Foto Source; we may change or revoke it at any time without prior notice to you
- you use the URL and your customer name, password and account, and you access the Photo Album Services, at your own risk
- you have no right, title or interest in the URL or your customer name, password and account, except for the limited permission to use them as authorized by us from time to time
- you are solely responsible for obtaining all computer equipment and Internet connections required to access and use the Photo Album Services, at your sole expense
- we will not be responsible for the workings or failures of your computer equipment, network, software or Internet access
You must not:
- link, or give any third party a link, directly to any images on our servers or on any other servers used to provide any of the Photo Album Services, except to the extent that we give you a URL for that purpose
- copy or modify the HTML code used to generate web pages on any of our websites or in connection with any of the Photo Album Services
- use the Photo Album Services on or in connection with any website other than our websites or Store Owners' websites
- hack, reverse engineer, disable, disrupt or interfere with the functioning of the Photo Album Services or any of our websites
- upload or transmit to us or any other person anything that (if reproduced, published, transmitted or used) may be defamatory, threatening, abusive, obscene, pornographic, harmful or invasive of anyone's privacy, may violate any law including intellectual property, privacy or other laws, or may give rise to civil or other liability
- upload to or transmit to us or any other person any data, file or software that contains a virus, Trojan horse, worm or other harmful component
- use any of the Photo Album Services for spamming, other advertising, or other bulk message transmission
- use abusive or offensive language in connection with any of the Photo Album Services or on any of our forums, chat rooms, blogs or websites
In addition to any other available remedies, we may suspend or terminate your access to the Photo Album Services and any of our websites or other services upon breach of any of the above obligations and prohibitions.
You consent to receiving communications from us electronically, including by e-mail and by our posting notices to a Foto Source website. You agree these electronic communications will satisfy any legal obligation that we might have to communicate with you in "writing".
We may allow you to store your Content on our servers, however:
- you are responsible for keeping back-up copies of all of your Content; we will not be liable for any loss or damage to any of your Content
- we may impose limits on the quantity and size of the Content stored on our servers, and the duration that Content is stored on our servers
- we will normally only delete Content that violates this Agreement or our policies; however, we reserve the right to move or permanently delete Content at any time, for any reason, without any notice to you
- without limiting the above sentence, we may delete Content that we believe is abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, or otherwise inappropriate, comprises copyrighted material used without the express permission of the owner, violates or otherwise encroaches on the rights of others, contains viruses, worms, corrupt files, Trojan horses or other forms of corruptive code, or any other content which may compromise our services, advocates illegal activity, harms anyone, including minors; or, provides a link to any of the above
Licence regarding your Content
In order for us to make your Content available to you and third parties, you hereby grant us and our service providers and licensees a perpetual, irrevocable, world-wide, non-exclusive, royalty-free licence (the "Licence") to copy, publicly display, modify, transmit, telecommunicate, make derivative works of, use and distribute your Content, solely for the purpose of providing the Photo Album Services to you.
You represent and warrant to us that: (a) you either own your Content or have written permission from the copyright owner to make the Content available through the Photo Album Services and on our websites; (b) you have the right to grant the Licence; and (c) our exploitation of the Content (and our service providers' and licensees' exploitation of the Content) as permitted by the Licence will not infringe or violate the rights of any third party.
You will indemnify and hold us and our affiliates, and the directors, officers, shareholders, employees and representatives of us and our affiliates, harmless from and against all damages, injuries, liabilities, costs, expenses and legal fees that we may incur in connection with: (a) your use of our websites and services, or (b) the untruthfulness or inaccuracy of any of your representations and warranties to us, or (c) your breach of any obligation or prohibition in this Agreement.
Ordering Prints and Related Services
Foto Source does not develop prints or provide related services (collectively, the "Print Services"). If you wish, you may contract with a Store Owner to provide Print Services to you.
Upon a Store Owner's request, we will give the Store Owner access to your Content to allow the Store Owner to provide the Print Services to you. You consent to us doing so.
YOU AGREE THAT FOTO SOURCE WILL HAVE NO LIABILITY TO YOU WHATSOEVER IN RELATION TO ANY OF THE PRINT SERVICES. YOUR SOLE REMEDIES FOR ANY INJURY, BREACH OF CONTRACT, DAMAGE OR OTHER CLAIMS RELATING TO THE PRINT SERVICES WILL BE THE REMEDIES, IF ANY, DESCRIBED IN THE CONTRACT YOU ENTER INTO WITH THE STORE OWNER REGARDING THE PRINT SERVICES.
Our services, websites and the contents thereof are protected by Canadian and international copyright, trademark and other applicable laws. All right, title and interest to our services, websites and the contents thereof are and will remain the exclusive property of us and our licensors. You are solely responsible for any copyright violations that you may incur as a result of using our website or the Photo Album Services.
Submission of Ideas
We do not accept unsolicited ideas for new products, services, packaging, marketing, advertising, research, business operations and the like. If you submit an idea to us, you agree that the idea becomes and remains our sole and exclusive property without further liability or compensation to you.
We and our representatives may collect personal information about you including your name, contact information, birth date, gender, numerical identifiers, personal preferences, Content and other information. You acknowledge that we and our representatives and suppliers may use your personal information for the following purposes:
- to allow us to communicate with you, manage your accounts with us, monitor your compliance with this Agreement, and manage any services we provide to you or other customers
- to provide you with information about our services
- to customize the advertising and content that is presented to you on our websites
- to verify your personal information
We may disclose your personal information electronically or in writing to our service providers and licensees and to the Store Owners as necessary for them and us to provide services to you. Likewise, our service providers and licensees and the Store Owners may disclose your personal information electronically or in writing to us as necessary for them or us to provide services to you.
We may use aggregate, non-identifiable information about you and our other members for promotional and advertising purposes, but we will not sell your personal information to third parties.
If we suspect you of fraudulent or other prohibited activities, we may disclose your personal information to the police or other authorities. We will not otherwise disclose your personal information except as permitted or required by law.
YOU HEREBY CONSENT TO US AND OUR REPRESENTATIVES, SERVICE PROVIDERS AND LICENSEES AND THE STORE OWNERS COLLECTING, USING AND DISCLOSING YOUR PERSONAL INFORMATION IN THE MANNER DESCRIBED ABOVE.
We may suspend or terminate some or all of the Photo Album Services, our websites, your account with us, and your ability to use our websites, services and URLs at any time without notice, for any reason, at our sole discretion.
Upon termination of any of the above, we may delete all of your Content without prior notice to you, and you will immediately stop accessing our websites and services.
The following parts of this Agreement will survive termination or expiration of the Agreement: "Indemnity", "Copyright", "Submission of Ideas", "Termination", "Disclaimer", "Limitation of Liability", "Maximum Liability" and "Governing Law".
WE STRIVE TO PROVIDE QUALITY WEBSITES, PRODUCTS AND SERVICES TO YOU, HOWEVER, THE PHOTO ALBUM SERVICES AND OUR WEBSITES ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT ANY WARRANTY WHATSOEVER.
WE DISCLAIM ALL TERMS, CONDITIONS, GUARANTEES, REPRESENTATIONS AND WARRANTIES (EXPRESS, IMPLIED, STATUTORY AND OTHERWISE), IN RESPECT OF The photo album SERVICES, our websites and THE CONTENT THEREON, INCLUDING THOSE OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
WE DO NOT WARRANT THAT THE PHOTO ALBUM SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE PHOTO ALBUM SERVICES AND OUR WEBSITES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR CONTENT, OR THAT YOUR DATA AND CONTENT WILL NOT BE LOST OR DAMAGED.
Limitation of Liability
YOU USE THE PHOTO ALBUM SERVICES, OUR WEBSITES AND THE CONTENT THEREON AT YOUR OWN RISK. WE WILL NOT BE LIABLE TO YOU FOR ANY LOSS SUFFERED IN CONNECTION TO THE USE OF, OR INABILITY TO USE, THE PHOTO ALBUM SERVICES, OUR WEBSITES AND THE CONTENT THEREON. WITHOUT LIMITING THE PREVIOUS SENTENCE, WE WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF WE ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS, INJURY OR DAMAGE AND EVEN IF THAT LOSS, INJURY OR DAMAGE IS FORESEEABLE. FURTHER, WE WILL NOT BE LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGE TO YOUR ACCOUNT.
IF, DESPITE THE ABOVE LIMITATIONS, WE BECOME LIABLE TO YOU IN RESPECT OF ANY OF THE PHOTO ALBUM SERVICES, OUR WEBSITES OR THE CONTENT THEREON, THE TOTAL CUMULATIVE LIABILITY OF FOTO SOURCE WILL BE LIMITED TO $100.
This Agreement will be governed by and construed in accordance with the laws in effect in Ontario, Canada. You hereby attorn irrevocably to the exclusive jurisdiction of the Ontario courts sitting in Toronto, Ontario; however, we may apply to a court of competent jurisdiction for interim protection or equitable relief such as an interlocutory or interim injunction.
The parties have expressly agreed that this document and all ancillary agreements, documents or notices relating thereto be drafted in English. Les parties aux présentes ont expressément convenu que ce document et tout autre convention, document ou avis y afférent soit rédigé en anglais.
- Waiver: No waiver, delay, or failure to act by us regarding any particular default or omission will prejudice or impair any of our rights or remedies regarding that or any subsequent default or omission that are not expressly waived in writing
- Entire Agreement: This Agreement, and any software licence agreement relating to the Photo Album Services supersede all prior agreements of the parties regarding the subject matter of this Agreement, and constitute the whole agreement with respect to that subject matter
- Assignment and Sublicensing: You may not assign or sublicense this Agreement or any of your rights under this Agreement without our prior written consent, which may be withheld without cause
- Enurement: This Agreement will enure to the benefit of and be binding upon the parties and their lawful successors and permitted assigns