IMAGECHEF TERMS OF SERVICE
Date of Last
Revision: May 1, 2013
ImageChef and ImageChef+ for iOS Users are also subject to the the terms and conditions of our monitoring partner AppBoy. See the AppBoy terms and conditions here.
These Terms of
Service (the Terms) explain the rights and responsibilities that you have
when you use any product developed by ImageChef Inc. (ImageChef), including
its website, http://www.imagechef.com (such products,
individually, an ImageChef Product, and collectively, ImageChef Products).
The Terms also cover all data, includingphotos, graphics, text, or other
materials uploaded to, downloaded from, or created usingImageChef Products
(collectively, the Content). If you violate any of these terms or engage in
any other activities that ImageChef deems harmful to the ImageChef Products or
the ImageChef community, we may, in our sole discretion, terminate of your
ImageChef account and you may be banned from using all ImageChef Products. In
using any ImageChef Product, you agree to follow and be bound by the Terms. If
you do not agree to be bound by all of these Terms, do not access or use the
ImageChef Products.
Please also
familiarize yourself with ImageChefs Privacy Policy, which can be found at http://www.imagechef.com/ic/privacy.htm. The Privacy
Policy explains how you can use ImageChef to share your digital content with
others, and also discusses restrictions on how we collect and use your content
and information. Your privacy is very important to ImageChef, and our Privacy
Policy explains the steps we take to protect your personal information.
Please note that
ImageChef reserves the right to change the Terms at any time, immediately and
without notice, without any liability to you, by updating the Terms at
http://www.imagechef.com/ic/tos.html. In the event of a change, we will update
the Date of Last Revision at the top of the Terms. It is your responsibility
to check the Terms of Service regularly to determine whether an update has been
issued, and you will be bound the new Terms as of the effective date. These
Terms will govern any disputes arising before the effective date of the any new
Terms.
1.
USER TERMS
a. You
must be 16 years or older to use ImageChef Products.
b. Registered
users of the ImageChef website are limited to 1,000 visits and 5,000 generated
personalized images per month per password. If you believe you may exceed these
numbers, you must notify ImageChef and seek permission in advance. Otherwise,
if your limit is exceeded, ImageChef reserves the right to remove and/or
restrict access to your album and ImageChef templates.
c. Only
active ImageChef Pro paid subscription users may use Content that they generate
or store on the site for a commercial or professional purpose, including
advertising, printing flyers, selling merchandise, preparing professional
presentations, t-shirt sales, or any other similar purpose.
d. ImageChef
Pro.
Paid subscribers of ImageChef Pro may use ImageChef created templates, as well
as images created with ImageChef tools such as Sketchpad, for commercial and
professional purposes during the term of their subscription. Such purposes
include publishing professional blogs with personalized images hosted by
ImageChef, advertising, printing flyers, preparing
professional presentations, selling real estate, and similar purposes. Images
created using User Made Templates created by other users, as well as images
made using Sketchpad tools that incorporate symbols and stickers created by
other users, are excluded from any commercial or professional use. Once
yourImageChef paid subscription has terminated, you may continue to use images
that were generated using the ImageChef Products during the subscription
period. Neither you nor any third-parties may resell or license your Content.
e. You
may not post violent, nude, partially nude, discriminatory, unlawful,
infringing, hateful, pornographic or sexually suggestive photos or other
content via the ImageChef Products.
f. You
are responsible for any activity that occurs through your account and you agree
you will not sell, transfer, license or assign your account, username, or any
account rights. With the exception of people or businesses that are expressly
authorized to create accounts on behalf of their employers or clients,
ImageChef prohibits the creation of and you agree that you will not create an account
for anyone other than yourself. You also represent that all information you
provide or provided to ImageChef upon registration and at all other times will
be true, accurate, current and complete and you agree to update your
information as necessary to maintain its truth and accuracy.
g. You
agree that you will not solicit, collect or use the login credentials of other
ImageChef users.
h. You
are responsible for keeping your password secret and secure.
i.
You must not defame, stalk, bully, abuse, harass,
threaten, impersonate or intimidate people or entities and you must not post
private or confidential information via the ImageChef Products, including,
without limitation, your or any other person's credit card information, social
security or alternate national identity numbers, non-public phone numbers or
non-public email addresses.
j.
You may not use the ImageChef Products for any
illegal or unauthorized purpose. You agree to comply with all laws, rules and
regulations (for example, federal, state, local and provincial) applicable to
your use of the ImageChef Products and your Content, including but not limited
to, copyright laws.
k. You
must not create or submit unwanted email, comments, likes or other forms of
commercial or harassing communications (a/k/a "spam") to any
ImageChef users.
l.
You must not create accounts with any ImageChef
Product through unauthorized means, including but not limited to, by using an
automated device, script, bot, spider, crawler or scraper.
m. You
must not attempt to restrict another user from using or enjoying the ImageChef
Products and you must not encourage or facilitate violations of these Terms or
any other ImageChef terms.
2.
CONTENT
a. You
retain your rights to any Content you submit, post or display on or through
ImageChef products, and ImageChef does not claim ownership of any Content that
you post on or through the ImageChef Products. By transmitting your Content to
any computer system controlled by ImageChef, including but not limited
uploading any Content from your computer or mobile device to ImageChefs
website, you grant ImageChef, subject to your privacy settings, a
non-exclusive, worldwide, transferable, sub-licensable, royalty-free license to
use, copy, reproduce, process, adapt, modify, publish, transmit, display and
distribute such Content in any and all media or distribution methods (now known
or later developed).Note that if you delete your Content from ImageChef, it may
still be present on ImageChef system backups, or other computer systems
controlled by ImageChef. The aforementioned license will extend to any such
deleted Content.
b. You
may adjust your Privacy Settings by going to your Account Settings, to the
Privacy Settings section. By adjusting your Privacy Settings, you can control
who has access to your Content, including your Remixes, Symbols and Photo
Albums, as well as your age.
c. All Content, whether publicly posted or privately transmitted,
is the sole responsibility of the person who originated such Content. We may
not monitor or control the Content posted via the ImageChef Products and we
cannot take responsibility for such Content. Any use or reliance on any Content
or materials posted via the ImageChef Products or obtained by you through the
ImageChef Products is at your own risk.
d. ImageChef does not endorse, support, represent or guarantee the
completeness, truthfulness, accuracy, or reliability of any Content or
communications posted via the ImageChef Products or endorse any opinions
expressed via the ImageChef Products. You understand that by using the ImageChef
Products, you may be exposed to Content that might be offensive, harmful,
inaccurate or otherwise inappropriate, or in some cases, postings that have
been mislabeled or are otherwise deceptive. Under no circumstances will
ImageChef be liable in any way for any Content, including, but not limited to,
any errors or omissions in any Content, or any loss or damage of any kind
incurred as a result of the use of any Content posted, emailed, transmitted or
otherwise made available via the ImageChef Products or broadcast elsewhere.
e. ImageChef may delete any templates,
images, content or other materials relating to your use of the ImageChef
website on ImageChef's servers or otherwise in its possession and ImageChef
will have no liability to you or any third party for doing so.
3.
GENERAL TERMS AND CONDITIONS
a. We
reserve the right to suspend, terminate, limit or alter access to the ImageChef
Products to anyone for any reason at any time, without any liability to you.
b. Upon
termination, all licenses, if any, and other rights granted to you in these
Terms will immediately cease.
c. You
are solely responsible for your interaction with other users of the ImageChef
Products, whether online or offline. You agree that ImageChef is not
responsible or liable for the conduct of any user. ImageChef reserves the
right, but has no obligation, to monitor or become involved in disputes between
you and other users. Exercise common sense and your best judgment when
interacting with others, including when you submit or post Content or any personal
or other information.
d. You
agree that you are responsible for all data charges you incur through use of
the Service.
e. ImageChef
retains the right to alter, supplement or discontinue any ImageChef Product or
feature thereof, at any time, without notice.
f. The
ImageChef Productsare supported by advertisements, which may be targeted to the
Content or other information. The types and extent of advertising by ImageChef
on the Services are subject to change without notice to you. In consideration
for ImageChef granting you access to and use of the ImageChef Products, you
agree that ImageChef and its third party providers and partners may place such
advertising on the ImageChef Products or in connection with the display of
Content or information from the ImageChef Products whether submitted by you or
others.
4.
INTELLECTUAL PROPERTY RIGHTS
a. 'ImageChef is a registered trademark of ImageChef
Incorporated. Any data obtained through the ImageChef Products, including
without limitation, the Content and the trademarks, service marks and logos
contained therein ("Marks"), are owned by or licensed to ImageChef,
subject to copyright and other intellectual property rights under United States
and foreign laws and international conventions. Content obtained through the
ImageChef Products is provided to you AS IS for your information and personal
use only and may not be used, copied, reproduced, distributed, transmitted,
broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes
whatsoever without the prior written consent of the respective owners.
ImageChef reserves all rights not expressly granted in and to the ImageChef
Products and the Content. You agree to not engage in the use, copying, or
distribution of any of the Content other than expressly permitted herein,
including any use, copying, or distribution of submissions of third parties
obtained through the ImageChef Products for any commercial purposes. If you
download or print a copy of the Content for personal use, you must retain all
copyright and other proprietary notices contained therein. You agree not to
circumvent, disable or otherwise interfere with security related features of
the ImageChef Products or features that prevent or restrict use or copying of
any Content or enforce limitations on use of the ImageChef Products or the
Content therein.
b. All
right, title, and interest in and to the ImageChef Products (excluding Content
provided by users) are and will remain the exclusive property of ImageChef and
its licensors. The ImageChef Products are protected by copyright, trademark,
and other laws of both the United States and foreign countries. Nothing in the
Terms gives you a right to use the ImageChef name or any of the ImageChef
trademarks, logos, domain names, and other distinctive brand features. Any
feedback, comments, or suggestions you may provide regarding ImageChef, or the
ImageChef Products is entirely voluntary and we will be free to use such
feedback, comments or suggestions as we see fit and without any obligation to
you.
c. We respect other people's rights, and expect you to do the
same. If you repeatedly infringe other people's intellectual property rights,
we will disable your account when appropriate.Infringement includes, among
other things, uploading, intentionally viewing or copying copyrighted content
without permission or using a company or business name, logo, or other
trademark-protected materials in a manner that may mislead or confuse others
with regard to its brand or business affiliation.
d. If you believe that your work has been copied in a way that
constitutes copyright infringementpursuant to the Digital
Millenium Copyright Act, please provide ImageChef with the following
information, pursuant to , 17 U.S.C. 512(c):
·
The copyright owner name (or company name),
your full legal name, your title or job position, your full mailing address,
telephone number, and email address
·
A description of the copyrighted work or
other intellectual property that you claim has been infringed
·
A description of where the material that you
claim is infringing is located on the site
·
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
·
A statement by you, made under penalty of
perjury, that the above information in your notice is accurate and that you are
the copyright or intellectual property owner or an authorized person to act on
the copyright or intellectual property owner's behalf
·
An electronic or physical signature of the
person authorized to act on behalf of the owner of the copyright or other
intellectual property interest
·
ImageChef's Agent for Notice of claims of
copyright or other intellectual property infringement can be contacted as
follows:
By Mail:
ATTN: Abuse
Agent
ImageChef Inc.
3255-1 Scott Blvd., Ste. 101
Santa Clara, CA 95054
Email Address of Designated Agent:support@imagechef.com
Telephone Number of Designated Agent:
408-217-1850
Fax Number of
Designated Agent: 408-675-0973
e. If an account is impersonating or violating the trademark of
your brand, email us at support@imagechef.com in
order to report the account and we will take a closer look. Please submit
requests from your company email address and provide all of the following
information:
·
Username of the reported account
·
Web link URL for the username of the
reported account
·
Your company name
·
Your company ImageChef account (if there is
one)
·
Company website
·
Your trademarked word, symbol, etc. (ex:
ImageChef)
·
Trademark registration number
·
Trademark registration office (ex: USPTO)
5. DISCLAIMER OF WARRANTIES
THE IMAGECHEF
PRODUCTS, INCLUDING, WITHOUT LIMITATION, IMAGECHEF CONTENT, IS PROVIDED ON AN
"AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS"
BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER IMAGECHEF NOR ANY OF
ITS EMPLOYEES, MANAGERS, OFFICERS OR AGENTS (COLLECTIVELY, THE "IMAGECHEF
PARTIES") MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY
KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE IMAGECHEF PRODUCTS; (B) THE
CONTENT; OR (C) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO
IMAGECHEF OR VIA THE IMAGECHEF PRODUCTS. IN ADDITION, THE IMAGECHEF PARTIES
HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND
FREEDOM FROM COMPUTER VIRUS.
THE IMAGECHEF PARTIES DO NOT REPRESENT OR WARRANT
THAT THE IMAGECHEF PRODUCTS WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS
WILL BE CORRECTED; OR THAT THE IMAGECHEF PRODUCTS, THE SERVER THAT MAKES THE
IMAGECHEF PRODUCTS AVAILABLE, OR ANY SITES HYPERLINKED THROUGH ANY IMAGECHEF
PRODUCT IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION,
VIRUSES. THE IMAGECHEF PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES
THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) PROVIDED THROUGH THE
IMAGECHEF PRODUCTS IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR
USE OF THE IMAGECHEF PRODUCTS IS AT YOUR SOLE RISK. IMAGECHEF DOES NOT
WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR
SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE IMAGECHEF PRODUCTS
OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND
IMAGECHEF WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING
ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY
ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE
APPROPRIATE.
THE IMAGECHEF PARTIES DO NOT WARRANT THAT YOUR
USE OF THE IMAGECHEF PRODUCTS IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE
IMAGECHEF PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS
LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE
ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S LAW IS
APPLICABLE TO YOU AND THESE TERMS OF SERVICE.
BY ACCESSING OR USING THE IMAGECHEF PRODUCTS YOU
REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION
WHERE YOU ACCESS OR USE THE IMAGECHEF PRODUCTS.
THE IMAGECHEF PARTIES DO NOT ENDORSE CONTENT AND
SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY
FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE),
INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR
RESULTING FROM ANY CONTENT.
6. LIMITATION OF LIABILITY; WAIVER
UNDER NO CIRCUMSTANCES
WILL THE IMAGECHEF PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND
(INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY,
SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE
DIRECTLY OR INDIRECTLY RELATED TO: (A) THE IMAGECHEF PRODUCTS; (B) THE CONTENT;
(C) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE IMAGECHEF
PRODUCTS; (D) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE
IMAGECHEF PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER
PARTY'S USE OF THE IMAGECHEF PRODUCTS; (E) ANY ACTION TAKEN IN CONNECTION WITH
COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (F) ANY ERRORS OR OMISSIONS IN
THE IMAGECHEF PRODUCTS OPERATION; OR (G) ANY DAMAGE TO ANY USER'S COMPUTER,
MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION,
DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD,
ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION,
COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION,
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS
OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR
MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE IMAGECHEF PARTIES HAVE BEEN
ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN
AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT
LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD,
TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE IMAGECHEF PRODUCTS).
IN NO EVENT WILL THE IMAGECHEF PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR
LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL
INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, AND THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
YOU WITH RESPECT TO SUCH A STATES LAWS. IN NO EVENT WILL THE IMAGECHEF PARTIES
TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED ONE
HUNDRED UNITED STATES DOLLARS ($100.00).
YOU AGREE THAT IN THE EVENT YOU INCUR ANY
DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF IMAGECHEF'S ACTS OR OMISSIONS,
THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE
YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE,
PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE IMAGECHEF
PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION,
DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE,
PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE
IMAGECHEF PARTIES.
BY ACCESSING THE IMAGECHEF PRODUCTS, YOU
UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT
THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU
ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE
BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW
OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE
DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST
IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
IMAGECHEF IS NOT RESPONSIBLE FOR THE ACTIONS,
CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR
DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN
AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE
AGAINST ANY SUCH THIRD PARTIES.
7. INDEMNIFICATION
You (and also
any third party for whom you operate an account or activity on the ImageChef
Products) agree to defend (at ImageChef's request), indemnify and hold the
ImageChef Parties harmless from and against any claims, liabilities, damages,
losses, and expenses, including without limitation, reasonable attorney's fees
and costs, arising out of or in any way connected with any of the following
(including as a result of your direct activities on the ImageChef Products or
those conducted on your behalf): (i) your Content or your access to or use of
the ImageChef Products; (ii) your breach or alleged breach of these Terms;
(iii) your violation of any third-party right, including without limitation,
any intellectual property right, publicity, confidentiality, property or
privacy right; (iv) your violation of any laws, rules, regulations, codes,
statutes, ordinances or orders of any governmental and quasi-governmental
authorities, including, without limitation, all regulatory, administrative and
legislative authorities; or (v) any misrepresentation made by you. You will
cooperate as fully required by ImageChef in the defense of any claim. ImageChef
reserves the right to assume the exclusive defense and control of any matter
subject to indemnification by you, and you will not in any event settle any
claim without the prior written consent of ImageChef.
8. ARBITRATION
Except if you
opt-out or for disputes relating to your or ImageChef's intellectual property
(such as trademarks, trade dress, domain names, trade secrets, copyrights and
patents), you agree that all disputes between you and ImageChef (whether or not
such dispute involves a third party) with regard to your relationship with
ImageChef, including without limitation disputes related to these Terms, your
use of the ImageChef Products, and/or rights of privacy and/or publicity, will
be resolved by binding, individual arbitration under the American Arbitration Association's
rules for arbitration of consumer-related disputes and you and ImageChef hereby
expressly waive trial by jury. As an alternative, you may bring your claim in
your local "small claims" court, if permitted by that small claims
court's rules. You may bring claims only on your own behalf. Neither you nor
ImageChef will participate in a class action or class-wide arbitration for any
claims covered by this agreement. You also agree not to participate in claims
brought in a private attorney general or representative capacity, or
consolidated claims involving another person's account, if ImageChefis a party
to the proceeding. This dispute resolution provision will be governed by the
Federal Arbitration Act. In the event the American Arbitration Association is
unwilling or unable to set a hearing date within one hundred and sixty (160)
days of filing the case, then either ImageChef or you can elect to have the
arbitration administered instead by the Judicial Arbitration and Mediation
Services. Judgment on the award rendered by the arbitrator may be entered in
any court having competent jurisdiction. Any provision of applicable law
notwithstanding, the arbitrator will not have authority to award damages,
remedies or awards that conflict with these Terms.
If the prohibition against class actions and
other claims brought on behalf of third parties contained above is found to be
unenforceable, then all of the preceding language in this Arbitration section
will be null and void. This arbitration agreement will survive the termination
of your relationship with ImageChef.
9. TIME LIMITATION ON CLAIMS
You agree that
any claim you may have arising out of or related to your relationship with
ImageChef must be filed within one year after such claim arose; otherwise, your
claim is permanently barred.
10. GOVERNING
LAW AND VENUE
These Terms are
governed by and construed in accordance with the laws of the State of
California, without giving effect to any principles of conflicts of law AND
WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON
CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. For any
action at law or in equity relating to the arbitration provision of these
Terms, the Excluded Disputes or if you opt out of the agreement to arbitrate,
you agree to resolve any dispute you have with ImageChef exclusively in a state
or federal court located in San Francisco, California, and to submit to the
personal jurisdiction of the courts located in San Francisco County for the
purpose of litigating all such disputes.
If any provision of these Terms is held to be
unlawful, void, or for any reason unenforceable during arbitration or by a
court of competent jurisdiction, then that provision will be deemed severable
from these Terms and will not affect the validity and enforceability of any
remaining provisions. ImageChef's failure to insist upon or enforce strict
performance of any provision of these Terms will not be construed as a waiver
of any provision or right. No waiver of any of these Terms will be deemed a
further or continuing waiver of such term or condition or any other term or
condition. ImageChef reserves the right to change this dispute resolution
provision, but any such changes will not apply to disputes arising before the
effective date of the amendment. This dispute resolution provision will survive
the termination of any or all of your transactions with ImageChef.
11. ENTIRE
AGREEMENT
If you are using
the ImageChef Products on behalf of a legal entity, you represent that you are
authorized to enter into an agreement on behalf of that legal entity. These
Terms constitute the entire agreement between you and ImageChef and governs
your use of the ImageChef Products, superseding any prior agreements between
you and ImageChef. You will not assign the Terms or assign any rights or
delegate any obligations hereunder, in whole or in part, whether voluntarily or
by operation of law, without the prior written consent of ImageChef. Any
purported assignment or delegation by you without the appropriate prior written
consent of ImageChef will be null and void. ImageChefmay assign these Terms or
any rights hereunder without your consent. If any provision of these Terms is
found by a court of competent jurisdiction to be invalid or otherwise
unenforceable, the parties nevertheless agree that such portion will be deemed
severable from these Terms and will not affect the validity and enforceability
of the remaining provisions, and the remaining provisions of the Terms remain
in full force and effect. Neither the course of conduct between the parties nor
trade practice will act to modify the Terms. These Terms do not confer any
third-party beneficiary rights.
12. TERRITORIAL
RESTRICTIONS
The information
provided within the ImageChef Products is not intended for distribution to or
use by any person or entity in any jurisdiction or country where such
distribution or use would be contrary to law or regulation or which would
subject ImageChef to any registration requirement within such jurisdiction or
country. We reserve the right to limit the availability of the ImageChef
Products or any portion of the ImageChef Products, to any person, geographic
area, or jurisdiction, at any time and in our sole discretion, and to limit the
quantities of any content, program, product, service or other feature that
ImageChef provides.
Software related to or made available by
theImageChef Products may be subject to United States export controls. Thus, no
software from the ImageChef Products may be downloaded, exported or
re-exported: (a) into (or to a national or resident of) any country to which
the United States has embargoed goods; or (b) to anyone on the U.S. Treasury
Department's list of Specially Designated Nationals or the U.S. Commerce
Department's Table of Deny Orders. By downloading any software related to the
ImageChef Products, you represent and warrant that you are not located in,
under the control of, or a national or resident of, any such country or on any
such list.