PhotoGuard Terms of Service
Last updated: May 18, 2019
1. PhotoGuard Service description
2. Changes to Agreements
4. PhotoGuard’s role
6. No reliance on third-party content
7. Assumption of risk
8. Accurate user information
PhotoGuard shall not be liable for any loss that You incur as a result of someone else using Your mobile device or accessing Your mobile device, including by accessing PhotoGuard either with or without Your knowledge. You may be held liable for any losses incurred by PhotoGuard, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of Your copy of PhotoGuard.
9. Consent to receive electronic communications from PhotoGuard
Without limitation, by registering for the Service and providing Your name and email address through the Service, You hereby expressly consent to receive electronic and other communications from PhotoGuard, over the short term and periodically, including email communications, regarding the Service, new product offers, promotions, and other matters. You may opt-out of receiving electronic communications at any time by (a) following the unsubscribe instructions contained in each communication; or (b) sending an email to photoguard-support [at] cubetix [dot] com.
10. Reserved Rights for PhotoGuard Fees
A limited version of the Service is currently provided at no charge to You. PhotoGuard may charge a fee for in exchange for Your use of the Service when You purchase the “Premium” version of the PhotoGuard mobile application (“Paid Goods and Services”). In all cases, fees for Paid Goods and Services are due and collected in full before the goods are delivered or the services are rendered.
You acknowledge and agree that PhotoGuard reserves the right to charge for access to the Service, in accordance with the PhotoGuard Fee Policy specified in Subsection (b) of this Section and subject to PhotoGuard’s amendment as specified in this Agreement. PHOTOGUARD RESERVES THE RIGHT, IN PHOTOGUARD’S SOLE DISCRETION, TO CHANGE THE FEES AND CHARGES IN EFFECT, OR TO ADD NEW FEES AND CHARGES, BY POSTING SUCH CHANGES OR PROVIDING NOTICE TO YOU. ALL FEES AND CHARGES ARE NONREFUNDABLE, AND THERE ARE NO REFUNDS. PhotoGuard’s decision not to exercise any specific right or require performance of any specific obligation under this Agreement, including without limitation the collection of regularly recurring fees from You, shall not affect PhotoGuard’s subsequent ability to exercise such right or require such performance at any time thereafter. Nor shall PhotoGuard’s waiver of Your breach constitute PhotoGuard’s waiver of any subsequent breach by You or any other user of the Service. By using the Service, You authorize PhotoGuard, and/or its payment processor, to charge PhotoGuard’s fees to the credit card, debit card, or other payment method You provide, in addition to applicable sales taxes and other taxes.
11. Third-party websites
12. User Content and Deletion warning
User Content” is any content, material, or information, not including personally identifiable information (e.g., first and last name, address, phone number, email address, etc.), that You submit, upload, and/or post to, or transmit, display, perform, or distribute by means of, the Service, whether in connection with Your use of the Service or otherwise. This includes without limitation personal photos and videos. PhotoGuard does not claim ownership of any User Content. You retain all right, title, and interest, including without limitation all worldwide intellectual property rights, in and to Your User Content. You hereby represent and warrant that You: (a) own all rights, title, and interest in and to any and all User Content You submit, or are otherwise authorized to grant the rights provided the PhotoGuard Parties under this section, OR (b) have written consent, release, and/or permission of each and every identifiable individual person in any User Content You submit to use the name and likeness of each and every such identifiable person in the User Content. PhotoGuard reserves the right, in its sole discretion, to reject any User Content for any reason. “Objectionable Content” specified in Section 17 are not exhaustive lists of content that PhotoGuard reserves the right to remove or deny.
Deletion warning: Please transfer all User Content to your built-in gallery before You delete the mobile application, because the mobile application will not provide this Service to You automatically.
13. Your responsibility for defamatory comments
14. Disclaimers; Limitation of liability
PHOTOGUARD, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICE, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NO ENCUMBRANCE, OR TITLE, IN ADDITION TO ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEITHER PHOTOGUARD NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. PHOTOGUARD DISCLAIMS ALL IMPLIED LIABILITY FOR DAMAGES ARISING OUT OF THE FURNISHING OF THE SERVICE PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT, ERRORS, REPRESENTATIONS, OR OTHER DEFECTS ARISING OUT OF THE FAILURE TO THE FURNISH THE SERVICE, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, OR ANY OTHER DAMAGE OCCURRING. PHOTOGUARD SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER CAUSED BY THE ACTS OR OMISSIONS OF PHOTOGUARD, PHOTOGUARD PARTIES, OR PHOTOGUARD USERS, OR THEIR AGENTS OR REPRESENTATIVES.
Your responsibility for loss or damage; Backup of data
YOU AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. YOU WILL NOT HOLD PHOTOGUARD OR ITS LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO AND/OR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS, MOBILE DEVICES, INCLUDING WITHOUT LIMITATIONS TABLETS AND/OR SMARTPHONES, OR DATA. THE SERVICE MAY CONTAIN BUGS, ERRORS, PROBLEMS, OR OTHER LIMITATIONS.
Limitation of liability
IMPORTANTLY, YOU HEREBY ACKNOWLEDGE THAT A CATASTROPHIC DISK FAILURE OR OTHER SIMILAR EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO YOUR ACCOUNT. YOU AGREE AND UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO BACKUP YOUR DATA TO YOUR PERSONAL COMPUTER OR EXTERNAL STORAGE DEVICE AND TO ENSURE SUCH BACKUPS ARE SECURE.
THE ABOVE DISCLAIMERS, WAIVERS, AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN ANY OTHER AGREEMENT BETWEEN YOU AND PHOTOGUARD OR BETWEEN YOU AND ANY OF PHOTOGUARD’S LICENSORS AND SUPPLIERS. PHOTOGUARD’S LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS, AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICE OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
15. Your representations and warranties
16. Indemnity by you
Without limiting any indemnification provision of this Agreement, You (the “Indemnitor”) agree to defend, indemnify, and hold harmless PhotoGuard and the PhotoGuard Parties (collectively, the “Indemnitees”) from and against any and all claims, actions, demands, causes of action, and other proceedings (individually, “Claim,” and collectively, “Claims”), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to PhotoGuard, including the choice of legal counsel and all related settlement negotiations, arising out of or relating to: (i) the relationship between You and PhotoGuard, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) Your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) Your access to or use of the Service; (iv) Your provision to PhotoGuard or any of the Indemnitees of information or other data; (v) Your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) Your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
The indemnities each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by You of any Claim as to which You are required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. You may not settle any Claim without the prior written consent of the concerned PhotoGuard Parties.
17. Governing law
1-Year Limitations Period
ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE SERVICE, OR THIS AGREEMENT, MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH ABOVE.
If You and PhotoGuard cannot resolve a Claim through negotiations, either party may elect to have the Claim finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other(s). YOU HEREBY ACKNOWLEDGE THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT WITH A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), as modified by this Agreement, available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Except as otherwise provided for herein, PhotoGuard will pay the AAA filing, administration, and arbitrator fees. If, however, the arbitrator finds that either the substance of Your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In that case, You hereby agree to reimburse PhotoGuard for all payments disbursed that are Your obligation to reimburse under the AAA Rules. If You are unable to pay the arbitration fee, PhotoGuard will pay it directly upon receiving a written request and a sworn statement that You are unable to pay. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to resolve, except that issues relating to the enforceability of the arbitration provision are for a Court of Competent Jurisdiction to resolve. The arbitration may be conducted in person, through document submission, through telephone, or online. The arbitrator will issue a decision in writing, but need only provide a statement of reasons if requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. PhotoGuard may litigate to compel arbitration in court, to stay proceedings pending arbitration, or to modify, confirm, vacate, or enter judgment on the award entered by the arbitrator.
Restrictions Against Joiners of Claims
You and PhotoGuard agree that any arbitration shall be limited to each Claim individually. YOU AND PHOTOGUARD HEREBY AGREE THAT EACH MAY ONLY BRING CLAIMS AGAINST THE OTHER IN YOUR OR PHOTOGUARD’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. In the event that this specific provision is found to be unenforceable in a Court of Competent Jurisdiction, the Claim will still be finally and exclusively resolved by binding arbitration upon the election of either party, and any election to arbitrate by one party shall be final and binding on the other(s). In addition: (1) no arbitration shall be joined with any other arbitration, and (2) there is no right for any Claim to be arbitrated on a class-action basis or to employ class action procedures, and (3) there is no right of authority for any dispute to be brought in a purported representative capacity on behalf either of the general public or any other individuals.
Laws of the State of Nevada
This Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in the State of Nevada and shall be governed by and construed in accordance with the laws of the State of Nevada without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party. THE PROPER VENUE FOR ANY JUDICIAL ACTION ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT WILL BE THE STATE AND FEDERAL COURTS LOCATED IN OR NEAREST TO LAS VEGAS, NEVADA. THE PARTIES HEREBY STIPULATE TO, AND AGREE TO WAIVE ANY OBJECTION TO, THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS, AND FURTHER EXPRESSLY SUBMIT TO EXTRATERRITORIAL SERVICE OF PROCESS.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, PHOTOGUARD RESERVES THE RIGHT TO, IN PHOTOGUARD’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY USE OF THE SERVICE TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR ANY BREACH OR SUSPECTED BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION.
Automatic termination upon breach by you
This Agreement shall automatically terminate in the event that You breach any of this Agreement’s representations, warranties, or covenants. Such termination shall be automatic, and shall not require any action by PhotoGuard.
You may terminate this Agreement and Your rights hereunder at any time, for any or no reason at all, by providing to PhotoGuard notice of Your intention to do so, in the manner required by this Agreement.
Effect of termination
Any termination of this Agreement automatically terminates all rights and licenses granted to You under this Agreement, including all rights to use the Service. Upon termination, PhotoGuard may, but has no obligation to, in PhotoGuard’s sole discretion, rescind any services and/or delete from PhotoGuard’s systems all Your Personal Information and any other files or information that You made available to PhotoGuard or that otherwise relate to Your use of the Service. Upon termination, You shall cease any use of the Service. Subsequent to termination, PhotoGuard reserves the right to exercise whatever means it deems necessary to prevent Your unauthorized use of the Service, including without limitation technological barriers such as IP blocking and direct contact with Your Internet Service Provider.
If PhotoGuard, in PhotoGuard’s discretion, takes legal action against You in connection with any actual or suspected breach of this Agreement, PhotoGuard will be entitled to recover from You as part of such legal action, and You agree to pay, PhotoGuard’s reasonable costs and attorneys’ fees incurred as a result of such legal action. The PhotoGuard Parties will have no legal obligation or other liability to You or to any third party arising out of or relating to any termination of this Agreement.