These Terms are written in the English language. We do not guarantee the accuracy of any translated versions of these Terms. To the extent any translated versions of these Terms conflict with the English language version, the English language version of these Terms shall control.
These Terms affect your legal rights, responsibilities, and obligations, govern your use of the Digital Services, are legally binding, limit our liability to you, require you to indemnify us, and to settle certain disputes through arbitration which will, with limited exception, require you to submit claims you have against PhotoDay to confidential, binding, and final arbitration. You will only be permitted to pursue claims against PhotoDay on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis. Your continued use of the Digital Services affirms your agreement to these Terms. If you do not wish to be bound by these Terms or any future modifications or amendments to these Terms, do not use our Digital Services.
PhotoDay offers the Digital Services, including all information tools, services, goods, and products available, to you conditioned upon your acceptance of all terms, conditions, polices and notices stated herein or incorporated by reference.
By using the Digital Services, you agree that you are over the age of eighteen and that you will abide by all applicable federal, state, and local laws, and understand that you will be legally bound by these Terms. Such compliance includes any privacy laws and biometric data laws that may apply, such as obtaining consent from all individuals prior to collecting and processing biometric data.
You can review the most current version of the Terms at any time on this page. We reserve the right to update, change or replace any part of these Terms by posting the update version to our website. Any changes to the Terms will be effective immediately upon posting and you agree to the new posted Terms by continuing your use of the Digital Services. It is your responsibility to check this page periodically for changes. Your continued use of or access to the Digital Services following the posting of any changes constitutes acceptance of those changes.
You must follow any policies, licenses, or other terms made available to you within the Digital Services. The Digital Services may make goods or service available for sale at PhotoDay’s then-current rates, and you agree to pay all amounts as owed at PhotoDay’s then-current rates for all goods or services that you order. As a condition of your use of the Digital Services, you warrant to PhotoDay that you will not use the Digital Services for any purpose that is prohibited by these Terms or unlawful. You may not use the Digital Services in any manner which could damage, disable, overburden, or impair the Digital Services or interfere with any other party's use or enjoyment of the Digital Services. You may not obtain or attempt to obtain any materials not intentionally made available or provided on the Digital Services. You may not interfere with the Digital Services or try to access them using a method other than the interface and instructions that we provided.
Using the Digital Services does not give you ownership of any intellectual property rights in the Digital Services or the content you access. You may not use content from the Digital Services unless you obtain permission from its owner or are otherwise permitted by law. These Terms do not grant you the right to use any branding or logos used in the Digital Services. Don't remove, obscure, or alter any legal notices displayed in or along with the Digital Services.
Additionally, the Digital Services may make sales and marketing material templates and services available to you for contacting persons by text or email messaging - if you utilize any such materials, at all times, you must comply with all existing laws and regulations, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) when planning to send marketing or other commercial emails or texts. You may not market any of the Digital Services to children under the age of eighteen. You must refrain from making any false or misleading express or implied claims; ensure the “net impression” of any advertisement is truthful; have evidence (a “reasonable basis”) to back up all claims made in any advertisements before making the claims. Before engaging third parties, such as influencers, bloggers, and celebrities, to speak about products or services in social media, you must also adopt an internal policy on social media endorsements that complies with the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (Endorsement Guides).
Unless otherwise indicated, the Digital Services and all related content, including without limitation all product images, trademarks, illustrations, designs, icons, photographs, artwork, images, video and audio materials, logos, text, design, graphics, logos, icons, images, audio clips, downloads, interfaces, code and software, as well as the selection and arrangement thereof, patents, copyrights, trademarks, and all other intellectual property (collectively referred to as the “Content”), are all proprietary and owned or controlled by PhotoDay and its affiliates, or duly licensed by PhotoDay.
All right, title, and interest in and to the Content available via the Digital Services is the exclusive property of and owned by PhotoDay, our licensors, or certain other third parties, and is protected by United States and international copyright, trademark, trade dress, patent or other intellectual property and unfair competition rights and laws to the fullest extent possible.
You may not copy, reproduce, publish transmit, or otherwise use any Content without express written authorization to do so. You agree not to alter, delete, obscure, or change any Content or other proprietary rights affiliated with the Digital Services. PhotoDay shall retain all rights in and to its copyrights, trademarks, trade names, brand names, and trade dress depicted on the Digital Services.
PhotoDay owns and uses several trademarks on the Digital Services, including but not limited to PHOTODAY, FACEFIND, and all related logos. All rights reserved.
These Terms permit you to use the Digital Services and Content for your personal, non-commercial use only. A limited, revocable, nontransferable license is granted to temporarily download one copy of the Content for personal, non-commercial transitory viewing only. This is not a transfer of title, right, or interest in the Digital Services or Content. The license does not give you the right to, and you are strictly prohibited from, copying the Content, modifying the Content, using the Content for any commercial purpose, publicly displaying the Content, attempting to decompile or reverse engineer the Content, removing any copyright, trademark, or other proprietary notations from the Content, or otherwise infringing upon the intellectual property rights of PhotoDay or its licensors. This license shall automatically terminate if you violate any of these restrictions, or any provision of the Terms, and may be terminated by PhotoDay at any time for any or no reason. Upon termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format. Except as expressly provided in these Terms, no assignments or license of intellectual property are granted by PhotoDay.
If you are a photographer or studio who has uploaded photos to the Digital Services (“Studio”), you are hereby granted a limited, revocable, nontransferable license to use the Digital Services to use the Digital Services and Content to facilitate the commercialization of your photographs including uploading the photographs, organizing the photographs, managing orders, and communicating with Customers (as defined below). This is not a transfer of title, right, or interest in the Digital Services or Content. The license does not give you the right to, and you are strictly prohibited from, modifying or copying the Content, using the Content for any commercial purpose, publicly displaying the Content, attempting to decompile or reverse engineer the Content, removing any copyright, trademark, or other proprietary notations from the Content, or otherwise infringing upon the intellectual property rights of PhotoDay. This license shall automatically terminate if you violate any of these restrictions and may be terminated by PhotoDay at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
If you are the subject of or purchaser of photos through the Digital Services (“Customer”), you are hereby granted a limited, revocable, nontransferable license to temporarily download one copy of the Digital Services for personal, non-commercial transitory viewing only subject to your full compliance with these Terms. This is not a transfer of title, right, or interest in the Digital Services or Content. The license does not give you the right to, and you are strictly prohibited from, modifying or copying the Content, using the Content for any commercial purpose, publicly displaying the Content, attempting to decompile or reverse engineer the Content, removing any copyright, trademark, or other proprietary notations from the Content, or otherwise infringing upon the intellectual property rights of PhotoDay. This license shall automatically terminate if you violate any of these restrictions and may be terminated by PhotoDay at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
The information presented on or through the Digital Services is made available solely for general information purposes. PhotoDay attempts to ensure that information on the Digital Services is complete, accurate, and current. However, despite our efforts, the information on the Digital Services may occasionally be inaccurate, incomplete, or out of date. Accordingly, we do not warrant the completeness, accuracy, timeliness, or usefulness of any information on the Digital Services, and any reliance you place on such information is strictly at your own risk. For example, products included may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on the Digital Services. In addition, we may make changes in information about price and availability without notice. While it is our practice to confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product. We reserve the right, without prior notice, to limit the order quantity on any product and to refuse service to any Customer. We also may require verification of information prior to the acceptance or shipment of any order.
The material on the Digital Services is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on the Digital Services is at your own risk.
The Digital Services may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of the Digital Services at any time, but we have no obligation to update any information on our Digital Services. You agree that it is your responsibility to monitor changes to our Digital Services.
We disclaim all liability and responsibility arising from any reliance placed on any materials or information by you or any other visitor to the Digital Services, or by anyone who may be informed of any of its contents. These Digital Services may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, or reporting services. All statements and opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the PhotoDay, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the PhotoDay. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
You may need a PhotoDay Account in order to use some of our Digital Services. You may create your own PhotoDay Account, or your PhotoDay Account may be assigned to you by an administrator, such as a Photo Lab or a PhotoDay team member. If you are using a PhotoDay Account assigned to you by an administrator, different or additional terms may apply and your administrator may be able to access or disable your account.
The security of your account relies on your protection of your user profile information. You are responsible for maintaining the security of your user profile information, including your password and for all activities that occur under your account. You may not share your password with anyone. We will never ask you to send your password or other sensitive information to us in an email. Any email or other communication purporting to be from one of our Digital Service requesting your password or asking you to provide sensitive account information via email, should be treated as unauthorized and suspicious and should be reported to us immediately.
If you learn of any unauthorized use of your PhotoDay Account, contact support@PhotoDay.io immediately.
The Digital Services may contain links to other third-party websites, apps, or services ("Linked Sites"). The Linked Sites are not under the control of PhotoDay, and PhotoDay is not responsible for the contents of any Linked Site, including without limitation to any link contained in a Linked Site, or any changes or updates to a Linked Site. PhotoDay is not responsible for webcasting or any other form of transmission received from any Linked Site. PhotoDay provides Linked Sites only as a convenience, and the inclusion of any link does not imply endorsement by PhotoDay of the Linked Sites or any association with its operators.
PhotoDay has not reviewed all of the information on the Linked Sites, does not maintain any of the Linked Sites, and cannot control the completeness, accuracy, or security of the content contained on any Linked Site. The content of, including materials and information contained on, any Linked Site is solely the responsibility of the provider of that Linked Site.
The views and opinions expressed in Linked Sites are those of the authors or third parties and do not necessarily reflect the official policy or position of PhotoDay. If you decide to access any Linked Site, you do this entirely at your own risk. References to any names, marks, products, or services of any third parties, third-party information, or Linked Sites are provided solely as a convenience to you, and do not constitute or imply an endorsement, sponsorship or recommendation of, or affiliation with, the third party or its products and services. PhotoDay makes no representation or warranty as to any Linked Site, content, products or services, and you agree that PhotoDay shall 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 such third-party content, products, or services available on or through any Linked Site or similar resource.
AS PERMITTED BY APPLICABLE LAW, WE SHALL UNDER NO CIRCUMSTANCES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL OR SPECIAL LOSS, OR OTHER DAMAGE, WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT, DEFAMATION, INFRINGEMENT OF COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHTS, CAUSED BY THE EXHIBITION, DISTRIBUTION, OR EXPLOITATION OF ANY INFORMATION OR CONTENT CONTAINED WITHIN THESE THIRD-PARTY LINKS.
Creating or maintaining any link to any page or portion of the Digital Services, or running or displaying these Digital Services or any Content in any format without PhotoDay’s prior written permission, is strictly prohibited. Any permitted links to these Digital Services must comply will all applicable laws, rules, and regulations.
In the event you are permitted to link to these Digital Services, you must also do so in a way that is fair and legal and complies with our Terms, does not damage our reputation or take advantage of it, does not suggest any form of association, approval, or endorsement on our part. The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms.
You agree to cooperate with us in immediately ceasing any unauthorized display or linking of our Digital Services or Content. We reserve the right to withdraw permission without notice, and we may disable all or any social media features and any links at any time without notice in our discretion.
You may use the Digital Services only for lawful purposes and in accordance with these Terms. You agree not to use the Digital Services:
• In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
• For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
• To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards set out in these Terms.
• To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
• To impersonate or attempt to impersonate the PhotoDay, a PhotoDay employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Digital Services, or which, as determined by us, may harm the PhotoDay or users of the Digital Services, or expose them to liability.
Additionally, you agree not to:
• Use the Digital Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Digital Services, including their ability to engage in real time activities through the Digital Services.
• Use any robot, spider, or other automatic device, process, or means to access the Digital Services for any purpose, including monitoring or copying any of the material on the Digital Services.
• Use any manual process to monitor or copy any of the material on the Digital Services, or for any other purpose not expressly authorized in these Terms, without our prior written consent.
• Use any device, software, or routine that interferes with the proper working of the Digital Services.
• Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
• Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Digital Services, the server on which the Digital Services is stored, or any server, computer, or database connected to the Digital Services.
• Attack the Digital Services via a denial-of-service attack or a distributed denial-of-service attack.
• Otherwise attempt to interfere with the proper working of the Digital Services.
Your submission of contact information, no matter the type, to the Digital Services constitutes acceptance to receive certain PhotoDay marketing communications about the services we provide and certain deals or offers that may of interest to you. PhotoDay may also contact you via surveys to conduct research or to solicit your opinion on current services or new services that may be offered. PhotoDay may, from time to time, contact you on behalf of external business partners about an offering that may be of interest to you. You may opt-out of these communications at any time using the means provided in the communication, as well as by contacting support@PhotoDay.io.
PhotoDay complies with the copyright notice-and-takedown procedures set out in the United States Digital Millennium Copyright Act (DMCA), which applies to content reported and removed for violating U.S. copyrights. Please note that any notice or counter-notice you submit must be truthful and must be submitted under penalty of perjury. A false notice or counter-notice may give rise to personal liability. You may therefore want to seek the advice of legal counsel before submitting a notice or a counter-notice. We may share any notices and counter-notices submitted to us with others including your contact information, and by submitting any notices, you agree you have no expectation of privacy in your submission.
DMCA Takedown Notices
Content owners of copyrighted material or their representing agents may submit a DMCA notice to our registered Copyright Agent if they believe that infringing activity has taken place on our Digital Services. The abuse team will only consider valid reports of infringement, and you may submit a complete DMCA notice that features all of the points described below only if the representing party sending the request is the content owner or the authorized agent acting on behalf of the copyright owner. If you are not sure if PhotoDay has control over the allegedly infringed content, please obtain legal representation before contacting us. To be effective under the DMCA, any notification of claimed infringement must be in a written communication that includes substantially the following which must include a certification made under penalty of perjury:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, as well as information sufficient for PhotoDay to determine the legitimacy of the signature and the identity of the signatory;
2. Identification of the copyrighted work claimed to have been infringed, or, if a single notification covers multiple copyrighted works at a single online site, a representative list of such works at that site, including citation to the applicable copyright registrations where available;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit PhotoDay to locate the material, including a timestamp and visible identification of the material in a screenshot or comparable medium, with all metadata intact, as well as a hyperlink or URL to the website or online content at issue;
4. Information reasonably sufficient to permit PhotoDay to contact the complaining party, including an email address, telephone number, and, if available, physical mail address;
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Any such notifications of claimed infringement must be sent to the below contact with the subject line “DMCA NOTICE:”
PhotoDay Copyright Agent
1420 Edgewater Drive
Orlando, FL 32804
Please note if any notification of claimed infringement does not meet the above requirements, PhotoDay has no responsibility to respond to or act on any such defective notification of claimed infringement.
DMCA Counter Notification
If you receive a notification of claimed infringement, you may submit a counter notification to us under the DMCA. It must include the following, which includes a certification made under penalty of perjury:
1. Your physical or electronic signature, as well as information sufficient for PhotoDay to determine the legitimacy of the signature and the identity of the signatory;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District court (i) in the judicial district where your address is located if the address is in the United States, or (ii) located in Middle District of Florida, if your address is located outside the United States, and that you will accept service of process from the Complainant submitting the notice or the Complainant’s authorized agent.
Any such counter notification must be sent to:
PhotoDay Copyright Agent
1420 Edgewater Drive
Orlando, FL 32804
PhotoDay is based in the United States; as such, we provide the Digital Services for use only by persons located in the United States. We make no claims that the Digital Services or any of its Content is accessible or appropriate outside of the United States. Access to the Digital Services may not be legal by certain persons or in certain countries. If you access the Digital Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
PhotoDay offers a mobile messaging program as an option to users (the “Program”), where, if you opt-in to the Program, you agree to these Terms and to receive marketing text messages from us or from photographers and studios that use our Digital Services. The Program is optional and not a condition of purchase. The Program allows Users to receive SMS/MMS mobile messages by voluntarily and affirmatively opting into the Program, such as through online or application-based enrollment forms. The messages we send to you include marketing and promotional messages and messaging frequency may vary. You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Regardless of the opt-in method you utilized to join the Program, you agree that these Terms apply to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase through the Digital Services. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of PhotoDay’s mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Please consult your mobile service carrier’s pricing plan to determine the charges for browsing data and sending and receiving mobile messages. Under no circumstances will we be responsible for any messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number.
SMS/MMS MOBILE MESSAGING OPT-OUT: If you do not wish to continue participating in the Program, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from PhotoDay in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting that we remove you from our list, is not a reasonable means of opting out.
DUTY TO NOTIFY AND INDEMNIFY REGARDING SMS/MMS MOBILE MESSAGING: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the opt-out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events. Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with us. For support regarding the Program, text “HELP” to the number you received messages from or email us at support@PhotoDay.io Opt outs should be submitted in accordance with the procedures set forth above. The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt or delivery of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of our control.
We endeavor to comply with all applicable telemarketing laws, including but not limited to the Telephone Consumer Protection Act (“TCPA”), Florida Telemarketing Act, and Florida Do Not Call Act. For purposes of compliance, you agree that we may assume that you are a resident of a certain state if, at the time of opt-in to Program, (1) your shipping address, as provided, is located in that state or (2) the area code for the phone number used to opt-into the Program is an area code for that state. You agree that the requirements of a state’s telemarketing laws do not apply to you, and you shall not assert that you are resident of that state, if you do not meet either of the foregoing criteria or, in the alternative, do not affirmatively advise us in writing that you are a resident of the state by sending written notice to us. You further agree that mobile messages sent by us in direct response to mobile messages or requests from you (including but not limited to response to keywords, opt-in, help or stop requests, and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” (e.g., for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616)), “telephone solicitation” (e.g., for purposes of the TCPA and state laws such as the Utah Telephone and Facsimile Solicitation Act and Washington Commercial Telephone Solicitation Act), or an otherwise unsolicited call or message that is subject to a telemarketing law, to the extent such laws are relevant and applicable.
MMS DISCLOSURE: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
The Digital Services may contain discussion boards, chat areas, news groups, forums, communities, web pages, calendars, or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, "Communication Services"). The Communication Services are considered part of the Digital Services. You agree to use the Communication Services only to post, send, and receive messages and material that are proper and related to the Communication Services.
The Communication Services cannot be used to conduct commercial activities, including, but not limited to, transactions, advertising, fundraising, contests, or other promotions, absent our prior written consent. PhotoDay has no obligation to monitor the Communication Services. However, PhotoDay reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion.
PhotoDay may, for any reason whatsoever, terminate your access to any or all the Communication Services at any time without notice.
PhotoDay always reserves the right to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in PhotoDay’s sole discretion.
PhotoDay does not control or endorse the content, messages, or information found in any Communication Service and, therefore, PhotoDay specifically disclaims any liability regarding the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized PhotoDay spokespersons, and their views do not necessarily reflect those of PhotoDay.
Some features of the Digital Services may now or in the future allow you as a Customer to upload, submit, store, sell, send, or receive content, such as written comments or reviews, to be published or displayed on public areas of the Digital Services, or you may submit unsolicited ideas, suggestions, proposals, plans or other materials by email, mail, or other means to us (“Customer Content”). All content submitted by you to the Digital Services may be retained by us indefinitely, even after you terminate your account. By submitting any Customer Content, you grant to PhotoDay a perpetual, worldwide, irrevocable, non-exclusive, royalty-free license to use the Customer Content in any manner, including to create derivative works, without any compensation or notice to you, and you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, transmit, publish, broadcast, develop, manufacture, market, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose whatsoever. Your Customer Content may be posted and transmitted to others at your own risk. We cannot control the actions of other users of the Digital Services with whom you may choose to share your Customer Content.
We are, and shall be, under no obligation (1) to maintain any Customer Content in confidence; (2) to pay compensation for any Customer Content; or (3) to respond to any Customer Content. We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms.
You agree that your Customer Content will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your Customer Content will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Digital Services or any related website. You may not use a false email address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any Customer Content. You are solely responsible for any Customer Content you submit. We take no responsibility and assume no liability for any Customer Content posted by you or any third-party.
Some features of the Digital Services may now or in the future allow you as the photographer or studio to upload, submit, store, sell, send, or receive content, namely photographs taken by you or your studio and uploaded to the Digital Services (“Studio Content”). You retain ownership of any intellectual property rights that you hold in the Studio Content. In short, what belongs to you stays yours, with the below-defined license going to PhotoDay.
You further agree, represent, and warrant that you have obtained the necessary permissions associated with the upload of any content to PhotoDay, and that PhotoDay relies on you to ensure you have the permissions necessary to upload any content via the Digital Services. Such permissions include but are not limited to obtaining consent from all individuals prior to collecting and processing biometric data namely, facial imagery including characteristics derived by facial recognition software.
When you upload, submit, store, sell, send, or receive Studio Content to or through the Digital Services, you give PhotoDay (and those we work with) a worldwide irrevocable and perpetual license to use, host, store, reproduce, print, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display, and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving the Digital Services, and to develop new ones. This license continues even if you stop using the Digital Services. Some Digital Services may offer you ways to access and remove content that has been provided to that Digital Service. Also, in some of our Digital Services, there are terms or settings that narrow the scope of our use of the content submitted in those Digital Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Digital Services.
We are, and shall be, under no obligation (1) to pay compensation for any Studio Content; or (2) to respond to any Studio Content. We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms.
You agree that your Studio Content will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your Studio Content will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Digital Services or any related website. You may not use a false email address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any Studio Content. You are solely responsible for any Studio Content you submit. You also represent and warrant you have obtained consent from all Customers as is legally necessary to ensure that all functionalities you have enabled are legally permissible under state, federal, and local laws, and that you are responsible for obtaining your own legal counsel to ensure the adequacy of your consents with Customers. We take no responsibility and assume no liability for any Studio Content posted by you or any third-party, and we rely on your obtaining legally necessary consents from any Customers.
YOUR USE OF THE DIGITAL SERVICES IS AT YOUR OWN RISK. THE DIGITAL SERVICES AND ALL SERVICES, INFORMATION, GOODS, AND MATERIALS MADE AVAILABLE OR PURCHASED THROUGH THE DIGITAL SERVICES ARE PROVIDED TO YOU "AS IS" WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND WE DISCLAIM ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS, AND CONDITIONS WITH RESPECT TO THE DIGITAL SERVICES AND ALL SERVICES, INFORMATION, GOODS, AND MATERIALS MADE AVAILABLE OR PURCHASED THROUGH THE DIGITAL SERVICES, INCLUDING THE REPRESENTATIONS AND WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE, AND WITH RESPECT TO THE PRODUCTS LISTED OR PURCHASED ON OR THROUGH THE DIGITAL SERVICES.
WE MAKE NO REPRESENTATION OR WARRANTY THAT THE DIGITAL SERVICES (OR ANY PART THEREOF) WILL BE AVAILABLE, UNINTERRUPTED, RELIABLE, ACCURATE, COMPLETE, OR ERROR-FREE, NOR THAT ANY PARTICULAR SOFTWARE OR HARDWARE, WILL BE COMPATIBLE WITH THE DIGITAL SERVICES, AND YOU HEREBY AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO (A) OBTAIN AND PAY FOR ANY SOFTWARE, HARDWARE AND SERVICES (INCLUDING INTERNET CONNECTIVITY) NEEDED TO ACCESS AND USE THE DIGITAL SERVICES AND (B) ENSURE THAT ANY SOFTWARE, HARDWARE, AND SERVICES THAT YOU USE WILL FUNCTION CORRECTLY WITH THE DIGITAL SERVICES. THE MATERIALS ON THE DIGITAL SERVICES MAY BE OUT OF DATE, AND PHOTODAY MAKES NO COMMITMENT AND ASSUMES NO DUTY TO UPDATE SUCH MATERIALS. PHOTODAY MAKES NO WARRANTY THAT THE DIGITAL SERVICES WILL BE AVAILABLE, UNINTERRUPTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT YOU WILL ACHIEVE SUCCESSFUL RESULTS FROM FOLLOWING ANY INSTRUCTIONS OR DIRECTIONS ON THE SERVICE. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU SOLELY BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE DIGITAL SERVICES, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, TIMELINESS, OR USEFULNESS OF ANY INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE DIGITAL SERVICES.
ADDITIONALLY, IN NO EVENT WILL PHOTODAY, ITS RESPECTIVE MEMBERS, EMPLOYEES, AFFILIATES, AGENTS, SUCCESSORS, ASSIGNS, RETAIL PARTNERS, OR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION, OR TRANSMISSION OF THE DIGITAL SERVICES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH THE DIGITAL SERVICES, NOR FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF OTHER INTANGIBLES, BUSINESS INTERRUPTION, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE DIGITAL SERVICES, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. FURTHER, WE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF THE DIGITAL SERVICES OR FROM ANY INFORMATION OR MATERIALS ON THE DIGITAL SERVICES, ANY LINKED SITES, OR THE MATERIALS, INFORMATION, OR SERVICES CONTAINED AT ANY OR ALL SUCH LINKED SITES. . IN THE EVENT OF ANY PROBLEM WITH THE DIGITAL SERVICES OR ANY CONTENT, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE DIGITAL SERVICES IS TO STOP USING THE SITE. OUR MAXIMUM LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO US TO ACCESS AND USE THE DIGITAL SERVICES.
IT IS POSSIBLE THAT APPLICABLE LAW MAY NOT ALLOW FOR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES OR EXCLUSIONS OR LIMITATIONS OF CERTAIN DAMAGES; SOLELY TO THE EXTENT THAT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. IF APPLICABLE LAW PROHIBITS THE LIMITATION OR EXCLUSION OF A PARTY’S LIABILITY WITH RESPECT TO DEATH OR PERSONAL INJURY CAUSED BY SUCH PARTY’S NEGLIGENCE, FRAUD, OR ANY OTHER MATTER, THEN SUCH PARTY’S LIABILITY WILL NOT BE LIMITED OR EXCLUDED TO THE EXTENT OF SUCH PROHIBITION UNDER SUCH APPLICABLE LAW.
In connection with the foregoing, if you are a California resident or resident of a state with a similar applicable law, you hereby expressly waive California Civil Code section 1542 (or such other similar applicable law in Your state), which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
In its sole discretion, PhotoDay may, for any reason whatsoever, reject and terminate your use of the Digital Services at any time without notice.
This section deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and we agree that we intend that this section satisfies the “writing” requirement of the Federal Arbitration Act.
We believe that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that you may have with us. Therefore, pursuant to these Terms, if you have any dispute or disagreement with us regarding (i) your use of or interaction with the Digital Services, (ii) any purchases, transactions or relationships related to your use of the Digital Services, or (iii) any data or information you may provide to us or that we may gather in connection with such use, interaction, purchases, transactions or relationships (collectively, “Transactions or Relationships”), you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the Digital Services, or engaging in any other Transactions or Relationships with us, you agree to binding arbitration as provided below.
We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with us. If those efforts fail, by using the Digital Services, you agree that any complaint, dispute, or disagreement you may have against us, and any claim that we may have against you, arising out of, relating to, or connected in any way with these Terms or any Transactions or Relationships shall be resolved exclusively by final, confidential and binding arbitration (“Arbitration”) before a single arbitrator administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances). If JAMS (or, if applicable, AAA) at the time the arbitration is filed has Minimum Standards of Procedural Fairness for Consumer Arbitrations in effect that would be applicable to the matter in dispute, we agree to provide the benefit of such Minimum Standards to you to the extent they are more favorable than the comparable arbitration provisions set forth in this section, provided, however, that in no event may such Minimum Standards contravene or restrict the application of subpart (e) or (i) below. Furthermore, this section shall not prevent any party from seeking provisional remedies (that is, a temporary restraining order or preliminary injunction) from a court of appropriate jurisdiction. You further agree that:
a. Single Arbitrator.
The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and us (the “Arbitrator”).
b. Arbitrator Will Interpret This Agreement.
The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms or these arbitration provisions, including but not limited to any claim that all or any part of these Terms is void or voidable.
c. Location of Arbitration.
The Arbitration shall be held either: (i) at a location determined pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and us; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission.
d. Governing Law.
The Arbitrator (i) shall apply internal laws of the State of Florida consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with Florida or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief.
e. No Class Relief.
The Arbitration can resolve only your or our individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated.
f. Written Award.
The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets.
g. Arbitration Costs.
In the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith.
h. Reasonable Attorney’s Fees.
In the event you recover an Award greater than our last written settlement offer, the Arbitrator shall also have the right to include in the Award our reimbursement of your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but we shall in all events bear our own attorneys’ fees.
i. Interpretation and Enforcement of Arbitration Clause.
With the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitrate any dispute between us and you, and must instead bring any claims subject to subsection (k) below and the Dispute Resolution (Only if a Tribunal has Ruled that Arbitration is Prohibited by Applicable Law) section.
j. Modification of Arbitration Clause With Notice.
We may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after we have given notice of such modifications and only on a prospective basis for claims arising from Transactions or Relationships occurring after the effective date of such notification. If any modification pursuant to this subpart (j) is deemed to be invalid, unenforceable, or illegal, then the arbitration provisions effective at the time of your agreement to these Terms shall govern any dispute or disagreement between you and us regarding Transactions or Relationships.
k. Small Claims Matters are Excluded. No Class Relief or Joinder of Claims.
Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim for damages you have against us in your local small claims court within the U.S., if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.
l. Confidentiality of Arbitration.
You and we agree to maintain the confidential nature of the Arbitration and shall not disclose the fact of the Arbitration, any documents exchanged as part of any mediation, proceedings of the Arbitration, the Arbitrator’s decision and the existence or amount of any Award, except as may be necessary to prepare for or conduct the Arbitration (in which case anyone becoming privy to such confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by applicable law or court order.
Dispute Resolution (Only if a Tribunal has Ruled that Arbitration is Prohibited by Applicable Law)
This section applies only where applicable law, as determined by a court with appropriate jurisdiction, prohibits arbitration of disputes in accordance with the previous section regarding arbitration.
If any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the Digital Services, the Content, these Terms or to any of our actual or alleged intellectual property rights (collectively, a “Non-Arbitration Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Non-Arbitration Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this section. Your notice to us must be sent to: support@PhotoDay.io.
For a period of sixty (60) days from the date of receipt of notice from the other party, we and you will engage in a dialogue in order to attempt to resolve the Non-Arbitration Dispute, though nothing will require either you or us to resolve the Non-Arbitration Dispute on terms with respect to which you and us, in each of our sole discretion, are not comfortable.
The parties agree that the state or federal courts in Florida shall have non-exclusive jurisdiction of any Non-Arbitration Dispute.
n. Governing Law.
To the maximum extent permitted by the mandatory laws in your country of residence, these Terms and any Non-Arbitration Dispute arising out of or in connection with these Terms or their subject matter or formation (including non-contractual disputes), will be governed by, and construed in accordance with, the laws of the U.S. and the State of Florida without regard to its conflicts of law provisions.
o. Injunctive Relief.
The foregoing provisions of this section will not apply to any legal action taken by us to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Digital Services, any Content, your User Contribution or our intellectual property rights (including such as we may claim may be in dispute), our operations, or our products or services.
The failure of PhotoDay to enforce any term or condition set out in these Terms shall not be deemed a waiver of such term or condition or a waiver of any other term or condition.
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
By accessing the Digital Services, you agree that the laws of the United States and the state of Florida without regard to conflicts of laws principles, will apply to these Terms and all matters relating to the Digital Services.
Subject to the arbitration provisions above, and other than small claims actions as permitted therein, any action or proceeding arising from, relating to or in connection with these Terms will be brought exclusively in the federal or state courts located in Orange County, Florida, and you irrevocably consent to the personal jurisdiction of such courts and agree that it is a convenient forum and that you will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise.
You agree that regardless of any statute or law that establishes a different statute of limitations, to the maximum extent permitted under applicable law, any claim or cause of action (including any arbitration) arising out of, related to or connected with the use of the Digital Services, or these Terms, or other Transactions or Relationships must be filed within one (1) year after such claim or cause of action arose or be forever barred.
We may provide you information regarding your account and the Digital Services in electronic form only. You agree that such notices and other communications sent electronically satisfy any legal communication requirements, including that requirements must be in writing.
If you have any questions about these Terms, please contact us at support@PhotoDay.io.
Although PhotoDay will in most circumstances be able to receive your communications, PhotoDay does not guarantee that it will receive such communications timely and accurately and shall not be legally obligated to read, act on, or respond to any such email or other information. Be aware that your email communications to PhotoDay may not be secure and will not be treated as confidential.