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 ImageChef’s 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 ImageChef’s 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 STATE’S 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.