TERMS OF SERVICE
Date of Last Revision: February 21, 2017
Welcome to Photo Butler!
Gnommme LLC (referred to in these Terms of Service as “Photo Butler,” “we,” “us” or “our”) facilitates users’ ability to share photos with friends and family and provides photo organization services (as described further below) through the Photo Butler mobile application (the “Photo Butler App”) and provides information about the Photo Butler App on our website located at www.photobutler.com (the “Site”) (the Site and the Photo Butler App collectively, including any new features or versions of the Photo Butler App and related services, the “Service”) subject to the following Terms of Service (as amended from time to time, these “Terms of Service”). We reserve the right, in our sole discretion, to change or modify portions of these Terms of Service at any time. If we make any changes, we will post them here and will indicate the date that these Terms of Service were last revised at the top of this page. We will also notify you of any material changes to these Terms of Service through a pop-up notice, the Service’s user interface, in an email notification or through other reasonable means. Your continued use of the Service after any such changes constitutes your acceptance of the revised Terms of Service. If you do not agree to abide by these or any future Terms of Service, do not use or access (or continue to use or access) the Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST PHOTO BUTLER ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Access and Use of the Service
Photo Sharing through Streams: The Service permits users to share photographs that they take with their mobile devices in real-time with friends and family by creating or contributing to photo streams (“Streams”) through the Service. To create a Stream through the Photo Butler App, a user (the “Host”) specifies a time window and a name for the Stream and selects which contacts to invite to view and/or contribute to the Stream. Each contact that the Host invites to the Stream (an “Invited Contact”) will receive a notification that the Host has shared a Stream with the Invited Contact. If the Invited Contact has downloaded the Photo Butler App and signed up for an account with Photo Butler, this notification may be a push notification; otherwise, the Invited Contact will receive a text message. By opening the Photo Butler App through the push notification or clicking on a link in the text message, an Invited Contact will be able to view the photos uploaded to the Stream by the Host and any other Stream contributor(s) through the Service. If you are an Invited Contact, please note that the Host may modify your ability to view and/or contribute to the Stream through the Service at any time.
If the Host selects an Invited Contact to contribute to the Stream, the Invited Contact will also be able to opt in through the Photo Butler App to contribute photos that the Invited Contact takes during the applicable time window to the Stream. All photos taken during a Stream by the Host or an Invited Contact who has opted in through the Photo Butler App to become a Stream contributor will be automatically uploaded from the user’s mobile device to the Stream. If an Invited Contact whom the Host selects to contribute to the Stream does not wish to contribute to the Stream for all or any portion of the Stream’s time window, the Invited Contact may choose to opt out as a contributor at any time. An Invited Contact may also remove any photos that the Invited Contact contributes to the Stream through the Photo Butler App, as long as the Host has not modified the Invited Contact’s ability to access the Stream. A Host may remove any photos from the Stream at any time through the Photo Butler App. For more information on removing photos from the Service that you have taken and uploaded to the Service, please see the section titled “Removal of Your Content” below.
Once a Stream has ended, photos taken during the Stream by the Host and Stream contributors will be collected in an album and made available to the Host and Invited Contacts to view on the Service. The Host and Invited Contacts will be able to save photos from the Stream to their own devices and share photos with others by (a) sending photos from the Stream in text messages, (b) providing the link to the Stream on the Service to others or (c) posting photos from the Stream on third-party social media services integrated with the Service. If you use the Service to share photos through Streams, you acknowledge and agree that Invited Contacts may save and share your photos in this manner and/or forward links to Streams or related albums to others, and that Photo Butler is not responsible for how Invited Contacts or others may use or further share photos on the Service or otherwise.
Automatic Photo Uploads and Organization: Once a user hosts or contributes to a Stream through the Photo Butler App, the user will be able to opt in to have all future photos taken using the camera on the user’s mobile device automatically uploaded to the Service and organized based on when and where they were taken, the people, places, and other visual information in them and other information provided to us. Users may turn off automatic photo uploads and organization at any time by modifying their account settings in the Photo Butler App. If a user does not opt in to automatic photo uploads and organization, the user will continue to be able to view photos from Streams in the Photo Butler App.
Account, Password and Security: You are responsible for maintaining the confidentiality of your password and other account information you use to access the Service, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Photo Butler of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Photo Butler will not be liable for any loss or damage arising from your failure to comply with this section.
Communications with Users and Visitors: By downloading the Photo Butler App, signing up for an account, and/or otherwise consenting to receive communications from us, you agree that we and third parties acting on our behalf may communicate with you electronically via emails, SMS, MMS or text messages, telephone calls and push notifications. for administrative, marketing and other purposes. We may send text messages to or call the mobile telephone number you have provided to us for any of these purposes, even if that number is on a corporate, state or national Do Not Call Registry. Such communications may be prerecorded or made using an automatic telephone dialing system, and may be recorded or monitored. Standard charges, data rates and other fees may apply. You do not have to agree to receive such communications as a condition to purchasing any products or services from us.
You may opt out of receiving advertising and marketing emails, text messages and calls from us by following the instructions in the email or text message, as applicable, or by notifying us that you wish to opt out of receiving some or all communications from Photo Butler at firstname.lastname@example.org. Please note that opting out of receiving all text messages from us may affect your ability to use certain features of the Service.
Modifications to Service: Photo Butler reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Photo Butler will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that Photo Butler may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that your photos, data or other content will be retained by the Service and the maximum storage space that will be allotted on Photo Butler’s servers on your behalf. You agree that Photo Butler has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Photo Butler reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Photo Butler reserves the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
Mobile Services: The Service includes certain features or services that are available via a mobile device or may be available via a mobile device in the future, including (a) the ability for users to share photos with friends and family through the Service, (b) the ability for users to invite others to view and contribute to Streams, (c) the automatic upload of photos from users’ mobile devices and the automatic organization of such photos through the Photo Butler App, (d) the ability to submit other content to the Service and (e) the ability to browse the Service from a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you acknowledge and agree that certain information about your usage of the Mobile Services may be communicated to us. By providing us with your mobile telephone number and consenting to receive messages from us when you sign up for an account with the Service, you agree that we may communicate with you by SMS, MMS, text message or other electronic means to your mobile device to provide you with information regarding your account and the Service.
For additional terms and information on the Mobile Services and the Photo Butler App, please see the section titled “Mobile Applications” below.
Conditions of Use
User and Visitor Conduct: You are solely responsible for all code, images, information, data, text, software, photos, graphics, messages or other materials (“content”) that you transmit, upload, post, publish or display or cause to be transmitted, uploaded, posted, published or displayed (hereinafter, “upload”) to or through the Service, including content that is automatically uploaded from your mobile device to the Service, or that you send, cause to be sent or otherwise use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by Photo Butler. Photo Butler reserves the right to investigate and take appropriate legal action against anyone who, in Photo Butler’s sole discretion, violates this provision, including without limitation by removing the offending content from the Service, suspending or terminating the account of such violator and reporting the violator to the law enforcement authorities. You agree to not use the Service to:
Email, share, send or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software, viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Photo Butler, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Photo Butler or its users or visitors to any harm or liability of any type;interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; violate the legal rights of others; violate any applicable local, state, national or international law, or any regulations having the force of law; impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; solicit personal information from anyone under the age of 18, or harm minors in any way; harvest or collect email addresses or other contact information of other users or visitors from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications; advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized; further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Pricing and Payment Terms: We may make products or services available for purchase through the Service. By purchasing any products or services through the Service, you agree to the pricing and payment terms for such products or services, as may be updated from time to time. You are responsible for all taxes associated with such purchases, other than U.S. taxes based on Photo Butler’s net income. In connection with such purchases, you represent, warrant and agree to provide accurate, current and complete information regarding your credit card or other payment instrument to our third party payment processor, and represent and warrant that you are authorized to use the credit card or other payment instrument.
Special Notice for International Use; Export Controls: The technology and software underlying the Service or distributed or available in connection therewith (the “Software”) and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Commercial Use Not Permitted: Unless otherwise expressly authorized in these Terms of Service or on the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
Photo Butler offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”). With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
- Photo Butler and you acknowledge that these Terms of Service are concluded between Photo Butler and you only, and not with Apple, and that as between Photo Butler and Apple, Photo Butler, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
- You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
- Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Photo Butler’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- Photo Butler and you acknowledge that Photo Butler, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (a) product liability claims; (b) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Photo Butler and Apple, Photo Butler, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
- If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Photo Butler as follows: email@example.com.
Photo Butler and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
App Updates: You acknowledge and agree that we may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Software, the Photo Butler App and the Service. If you install the Photo Butler App, you consent to these updates and agree such updates may be automatically installed without Photo Butler providing any additional notice or receiving any additional consent from you. If you do not want such updates, your remedy is to uninstall and stop using the Photo Butler App. You acknowledge that you may be required to install updates to use the Photo Butler App, and you agree to promptly install any updates Photo Butler provides if the update does not automatically install. By continuing to use the Photo Butler App after an update, you renew your agreement to the then-current Terms of Service.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Photo Butler, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own content that you legally upload to or through the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Photo Butler from accessing the Service, you agree not to implement any measures to circumvent such blocking. Any use of the Service or the Service Content other than as specifically authorized in these Terms of Service is strictly prohibited. The Software is the property of Photo Butler, our affiliates and our partners. You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, or sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted in these Terms of Service are reserved by Photo Butler.
The Photo Butler name and logos are trademarks and service marks of Photo Butler (collectively, the “Photo Butler Trademarks”). Other company, product and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners, who may or may not endorse or be affiliated with or connected to Photo Butler. Nothing in these Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Photo Butler Trademarks displayed on the Service without our prior written permission in each instance. All goodwill generated from the use of Photo Butler Trademarks will inure to our exclusive benefit.
Third Party Material:Under no circumstances will Photo Butler be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Photo Butler may not pre-screen content, but that Photo Butler and our designees will have the right (but not the obligation) in our or their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Photo Butler and our designees will have the right to remove any content that violates these Terms of Service or is deemed by Photo Butler, in our sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Service: With respect to the content or other materials you upload to the Service and share with other users or recipients through the Service, you represent and warrant that you own all right, title and interest in and to such content, including, without limitation, all copyright and rights of publicity contained therein, or that you otherwise have the right to upload and share such content and grant the license to Photo Butler set forth in this paragraph. You acknowledge and agree that content that you make available to other users or recipients through the Service may be accessed, viewed, downloaded, saved, stored, displayed or shared by them, and we are not responsible for how others may use or share such content. You are solely responsible for your content and you or a third-party licensor, as appropriate, retain all rights in your content not expressly granted in these Terms of Service. By uploading any content, you hereby grant and will grant Photo Butler and our affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicenseable, perpetual, irrevocable license to copy, display, upload, perform, distribute, host, store, modify and otherwise use your content in connection with the operation of the Service, in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”) provided by you to Photo Butler are non-confidential and Photo Butler will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Photo Butler may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Photo Butler, our users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve transmissions over various networks; processing of your information within the United States ; and changes to conform and adapt to technical requirements of connecting networks or devices.
Use of User Content on the Service: You understand and agree that you will not obtain, as a result of your use of the Service, any right, title or interest in or to others’ content or in any intellectual property rights (including, without limitation, any copyrights, patents, trademarks, trade secrets or other rights) in such content. Except as provided in these Terms of Service, you may not copy, modify, publish, broadcast, transmit, distribute, perform, display or otherwise use others’ content.
Copyright Complaints: Photo Butler respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Photo Butler of your infringement claim in accordance with the procedure set forth below.
Photo Butler will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Photo Butler’s Copyright Agent at firstname.lastname@example.org (Subject line: “DMCA Takedown Request”). You may also contact us by mail or telephone at:
One Boston Place
201 Washington St, Suite 2810
Boston, MA 02108
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- 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 Service, with enough detail that we may find it on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property 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 authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice: If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the District of Massachusetts and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Photo Butler will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Photo Butler has adopted a policy of terminating, in appropriate circumstances and at Photo Butler’s sole discretion, the accounts of or access by users who are deemed to be repeat infringers. Photo Butler may also at our sole discretion limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Websites and Services
The Service may provide, or third parties may provide, links or other access to other sites and services. Photo Butler has no control over such sites and services, and Photo Butler is not responsible for and does not endorse such sites and services. You further acknowledge and agree that Photo Butler will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or services. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Photo Butler is not liable for any loss or claim that you may have against any such third party.
Integrated Third-Party Services
In addition, Photo Butler is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Integrated Services. As such, Photo Butler is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Integrated Services. Photo Butler enables these features merely as a convenience, and the integration or inclusion of such features does not imply an endorsement or recommendation of any Integrated Services.
Indemnity and Release
You agree to release, indemnify and hold Photo Butler and our affiliates and our and their officers, employees, directors and agents (each such party, an “Indemnified Party”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnified Party from or against any liability, losses, damages, expenses or costs incurred as a result of any action or inaction of such Indemnified Party.
If you are a California resident, you waive California Civil Code Section 1542, which says: “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.”
If you are a resident of another jurisdiction, you waive any comparable statute or doctrine to the extent permitted under applicable law.
IF YOU ARE A USER OR VISITOR FROM NEW JERSEY, THE FOREGOING INDEMNITY AND RELEASE ARE INTENDED TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED UNDER LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PHOTO BUTLER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
PHOTO BUTLER MAKES NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT PHOTO BUTLER WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PHOTO BUTLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL PHOTO BUTLER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID PHOTO BUTLER IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH IN THE SECTIONS ABOVE TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” MAY NOT APPLY TO OR BE ENFORCEABLE WITH RESPECT TO USERS OR VISITORS FROM SUCH JURISDICTIONS. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER OR VISITOR FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Waiver of Jury Trial; Dispute Resolution by Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to Arbitrate: This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Photo Butler, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Service, any advertising or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Service, you and Photo Butler are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief: YOU AND Photo Butler AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND Photo Butler AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
Pre-Arbitration Dispute Resolution: Photo Butler is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Photo Butler should be sent to Gnommme LLC, One Boston Place, Suite 2810, Boston, MA 02108 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Photo Butler and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Photo Butler may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Photo Butler or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Photo Butler is entitled.
Arbitration Procedures: Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Photo Butler and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Photo Butler agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration: Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Photo Butler will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Photo Butler will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Photo Butler will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
Confidentiality: All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability: If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void. The remainder of these Terms of Service will continue to apply.
Future Changes to Arbitration Agreement: Notwithstanding any provision in these Terms of Service to the contrary, Photo Butler agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of or visitor to the Service, you may reject any such change by sending Photo Butler written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that Photo Butler, in our sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Photo Butler believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Service may be referred to appropriate law enforcement authorities. Photo Butler may also in our sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that Photo Butler may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Photo Butler will not be liable to you or any third party for any termination of your access to the Service.
You may terminate your account at any time and for any reason by deleting the Photo Butler App and notifying us via email at firstname.lastname@example.org. Termination of your account will be effective within a commercially reasonable time after we receive notification from you.
You understand that your content may remain on the Service at Photo Butler’s discretion following the termination of your account unless you expressly request the removal of your content by contacting us at email@example.com. You also understand that your content may remain on portions of the Service visible to others if it has been posted or reposted by other users, and that your content may remain on our servers or in our records after it has been removed from your account.
You agree that you are solely responsible for your interactions with any other user of or visitor to the Service in connection with the Service and Photo Butler will have no liability or responsibility with respect thereto. Photo Butler reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of or visitor to the Service.
These Terms of Service and the additional terms referred to in these Terms of Service constitute the entire agreement between you and Photo Butler and govern your use of the Service, superseding any prior agreements between you and Photo Butler with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Service will be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Photo Butler agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Boston, Massachusetts. The failure of Photo Butler to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Photo Butler, but Photo Butler may assign or transfer these Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you regarding the Service, including changes to these Terms of Service, may be made via either email or through displaying notices or links to notices generally on the Service, or by push notification or text message if you have downloaded the Photo Butler App, set up an account with Photo Butler and consented to receive such notifications or messages.
Notice to California Users and Visitors
Under California Civil Code Section 1789.3, users of and visitors to the Service are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Photo Butler at:
One Boston Place
201 Washington St, Suite 2810
Boston, MA 02108
Questions? Concerns? Suggestions?
Please contact us at firstname.lastname@example.org to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Service.