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Terms Of ServiceEffective Date: February 1, 2015.
Welcome to the JustSayCheeseTM Website, which is located at JustSayCheese.comTM (the "Website"). The following Terms of Service ("TOS") contain the terms that govern your use of the Website and JustSayCheese.comTM Service (as defined below). These TOS describe your rights and responsibilities and what you can expect from the JustSayCheeseTM Service. Use of the JustSayCheeseTM Website constitutes acceptance of these TOS. JustSayCheese.comTM is a Trademark of JustSayCheeseTM.
JustSayCheeseTM reserves the right to add, delete and/or modify any of the terms contained in this TOS, at any time and in its sole discretion, by posting a new agreement on the JustSayCheeseTM Website. If any modification is unacceptable to you, your only recourse is to not use the Website and the JustSayCheese.comTM Service. Your continued use of the JustSayCheeseTM Website following posting of a new TOS on the JustSayCheeseTM Website will constitute binding acceptance of the changes.
- The JustSayCheeseTM Service. JustSayCheeseTM provides a number of Internet-based services through the Website (all such services, collectively, the "JustSayCheese.comTM Service"). One such service enables users to create customized photographs and prints (collectively, "Products"). JustSayCheeseTM users may create and purchase individual Products for their own use.
Use of the Website and JustSayCheeseTM Service
- Eligibility. JustSayCheeseTM will only knowingly provide the JustSayCheese.comTM Service to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the JustSayCheese.comTM Service only under the supervision of a parent or legal guardian who agrees to be bound by these TOS. The JustSayCheese.comTM Service is not intended for children under the age of 13.
- Compliance with TOS and Applicable Law. You must comply with all of the terms and conditions of these TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the JustSayCheese.comTM Service and the Website.
- Your License to Use the Website and the JustSayCheese.comTM Service.
- JustSayCheeseTM solely and exclusively owns all intellectual property and other rights, title and interest in and to the JustSayCheese.comTM Service and Website, except as expressly provided for in these TOS. For example and without limitation, JustSayCheeseTM owns the trademark JustSayCheese.comTM(TM), the copyrights in and to the Website, and certain technology used in providing the JustSayCheese.comTM Service. You will not acquire any right, title or interest therein under these TOS or otherwise.
- JustSayCheeseTM grants you a limited revocable license to access and use the Website and the JustSayCheese.comTM Service for its intended purposes, subject to your compliance with these TOS. This license does not include the right to collect or use information contained on the Website for purposes prohibited by JustSayCheeseTM; to compete with JustSayCheeseTM; create derivative works based on the content of the Website; or download or copy the Website (other than page caching). If you use the Website in a manner that exceeds the scope of this license or breach this TOS, JustSayCheeseTM may revoke the license granted to you, AND PURSUE ANY OTHER LEGAL COURSE OF ACTION PERMITTED UNDER APPLICABLE STATE OR FEDERAL LAW.
- This Section 2.3 does not pertain to your intellectual property rights. For information regarding your intellectual property rights, please see Section 4.1.
- Prohibited Use. You may only use the JustSayCheese.comTM Service as expressly permitted by JustSayCheeseTM. You may not cause harm to the Website or the JustSayCheese.comTM Service. Specifically, but not by way of limitation, you may not: (i) interfere with the JustSayCheese.comTM Service by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the JustSayCheese.comTM Service; (iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Website, except in the operation or use of an internet "search engine", hit counters or similar technology; (iv) collect electronic mail addresses or other information from third parties by using the JustSayCheese.comTM Service; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain JustSayCheeseTM's name or trademarks; (vii) engage in any activity that interferes with another user's ability to use or enjoy the JustSayCheese.comTM Service; or (viii) assist or encourage any third party in engaging in any activity prohibited by these TOS.
- Prohibited Use Promise. By using the JustSayCheeseTM Website, you are promising that you are not using the JustSayCheese.comTM Service or the Website for any of the Prohibited Uses.
Right of RefusalJustSayCheese reserves the right to refuse to process any order for one or more products at its sole and absolute discretion and shall not incur any liability, cost or expense for any such refusal. JustSayCheese reserves the right to refuse to process any order for one or more products at its sole and absolute discretion and shall not incur any liability, cost or expense for any such refusal.
- Use of Your ContentYou do not lose ownership of the content that you design on, or upload to, the Website (“Content”). By uploading Content to the Website or creating Content with JustSayCheeseTM's design tools, however, you grant the following licenses to JustSayCheeseTM: the nonexclusive, worldwide, transferable, sublicensable right to copy, crop, reproduce, publicly display, and distribute the Content in advertising, marketing, samples, and promotional materials for the purpose of promoting the Website and Products; and the right to make modifications to your Content as JustSayCheeseTM, in its sole discretion, finds necessary to achieve the above listed purposes. You may remove the Content you designed at any time, and you retain any copyright and other intellectual property rights in that Content. If you choose to remove Content that you designed or uploaded and notify JustSayCheeseTM of your intention to terminate the licenses described in the above paragraph, those licenses will terminate, except that JustSayCheeseTM may fulfill all orders that are in any way derived from that Content placed prior to notice of termination and may continue to use said Content in marketing and promotional materials.
Reservation of Rights
- Monitoring. JustSayCheeseTM reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Website. If JustSayCheeseTM determines, in its sole and absolute discretion, that you or another JustSayCheeseTM user have breached or will breach a term of these TOS or that such transaction or communication is inappropriate, JustSayCheeseTM may cancel such transaction or take any other action to restrict access to or the availability of any material that we may consider objectionable, without any liability to you or any third party.
- Modification of the Service. JustSayCheeseTM may modify the JustSayCheese.comTM Service at any time with or without notice to you, and will incur no liability for doing so.
- SubmissionsWhen you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information ("Submissions"), you grant JustSayCheeseTM permission to use such Submissions for marketing and other promotional purposes, including the right to sublicense. You agree that JustSayCheeseTM will have no obligation to keep any Submissions confidential. You will not bring a claim against JustSayCheeseTM based on "moral rights" or the likes arising from JustSayCheeseTM's use of a Submission. This Section does not apply to your Content that will appear as part of your product that you use in connection with JustSayCheese.comTM Service.
Representations and Warranties
- Mutual Representations and Warranties. You represent and warrant to JustSayCheeseTM and JustSayCheeseTM represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under these TOS, (ii) the execution and performance of your or its obligations under these TOS do not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) these TOS are a legal, valid and binding obligation of the party entering into these TOS, enforceable in accordance with their terms and conditions.
- By You. You represent and warrant to JustSayCheeseTM that, your use of the JustSayCheese.comTM Service and any order that you place with JustSayCheeseTM: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or any other legal right of any third party and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to JustSayCheeseTM that: (i) there are no claims, demands or any form of litigation pending, or to the best of your knowledge, threatened with respect to any of your Content; (ii) JustSayCheeseTM will not be required to make any payments to any third party in connection with its use of your Content, except for the expenses that JustSayCheeseTM incurs in providing the JustSayCheese.comTM Service; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Content will not cause injury to any third party; and (iv) your Content does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
Disclaimers and Exclusions
- DISCLAIMER OF WARRANTIES. JustSayCheeseTM PROVIDES THE WEBSITE AND JustSayCheese.comTM SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. JustSayCheeseTM DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, JustSayCheese.comTM SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. JustSayCheeseTM MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
- EXCLUSION OF DAMAGES. JustSayCheeseTM WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE JustSayCheese.comTM SERVICE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Limitation of Liability. LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THESE TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THESE TOS, IN NO EVENT WILL THE LIABILITY OF JustSayCheeseTM EXCEED THE VALUE OF SIGNS RECEIVED OR SERVICES RENDERED. THE VALUE OF SIGNS OR SERVICES ARE LIMITED TO THE STATED VALUE ON THE JustSayCheeseTM WEBSITE OR AS STATED BY AN AUTHORIZED JustSayCheeseTM AGENT.
- IndemnificationYou agree to indemnify and hold JustSayCheeseTM and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Parties") harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Parties alleging that you have breached any of these TOS through any act or omission, including but not limited to any claim that your Content infringes or violates the legal rights of any other party. If you have to indemnify JustSayCheeseTM under this Section, JustSayCheeseTM will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without JustSayCheeseTM's express written permission.
- Termination. JustSayCheeseTM may suspend or terminate your use of the Website or JustSayCheese.comTM Service if it believes, in its sole and absolute discretion, that you have breached a term of these TOS.
- Survival. Notwithstanding Section 10.1 above, these TOS will survive indefinitely unless and until JustSayCheeseTM chooses to terminate them
- Effect of Termination. If you or JustSayCheeseTM terminates your use of the Website or the JustSayCheese.comTM Service, JustSayCheeseTM may delete any Content or other materials relating to your use of the JustSayCheese.comTM Service on JustSayCheeseTM's servers or otherwise in its possession and JustSayCheeseTM will have no liability to you or any third party for doing so.
- NoticeAll notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to JustSayCheeseTM, you must use the following addresses: 5670 Washington Street. Denver, CO 80216. If JustSayCheeseTM provides notice to you, JustSayCheeseTM will use the contact information provided by you to JustSayCheeseTM. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated. If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement.
- Dispute ResolutionAll disputes arising out of, relating to or connected with these TOS or your use of any part of the JustSayCheese.comTM Service will be exclusively resolved under confidential binding arbitration held in Denver, Colorado before and in accordance with the Rules of the American Arbitration Association, by a sole arbitrator applying Colorado law (without regard for conflicts of law principles). The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these TOS will be joined to an arbitration involving any other party subject to these TOS, whether through class arbitration proceedings or otherwise. Any action to enforce an arbitrator's award will be brought exclusively in a federal or state court located in Denver, Colorado. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and Colorado State courts in Denver County. By entering into these TOS, you hereby irrevocably waive any right you may have to join claims with those of others in the form of a class action or similar procedural device. Any claim arising out of, relating to or connected with these TOS or your use of any part of the JustSayCheese.comTM Service must be asserted individually. Notwithstanding anything to the contrary in this Section 12, either party may seek equitable relief, including, without limitation, injunctive relief and specific performance, without the requirement of posting a bond or other security or proving money damages are insufficient, from a court of competent jurisdiction.
- MiscellaneousThese TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of Colorado without reference to conflict of law principles. These TOS will not be assignable or transferable by you without the prior written consent of JustSayCheeseTM. These TOS (including all of the policies and other Agreements described in this TOS, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under these TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and JustSayCheeseTM are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these TOS. The invalidity or unenforceability of any provision of these TOS will not affect the validity or enforceability of any other provision of these TOS, all of which will remain in full force and effect.