Terms and Conditions
PHOTOS IN TUNE WEB SITE TERMS AND CONDITIONS OF USE
Last Updated: January 2008
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. BY ACCESSING OR USING THIS WEB SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND BY ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THIS WEB SITE.
These terms and conditions of use (“Site Terms”) apply to your use of this Web site (the “Site”), and do not alter in any way the terms or conditions of any other agreement you may have with Nevling, as defined below, its owners, subsidiaries or affiliates. By using this Site, you represent and warrant that you are over the age of 18 and are lawfully able to accept these Site Terms. In any case, you affirm that you are over the age of 13, as the Site is not intended for children under 13. If you are under 13 years of age, then please do not use the Site.
If you are using the Site on behalf of any entity, you further represent and warrant that you are authorized to accept these Site Terms on such entity’s behalf, and that such entity agrees to indemnify Nevling, its owners, subsidiaries or affiliates for violations of these Site Terms.
2. Ownership of the Site and its Contents
A. This Site is owned by Sharon Nevling (“Nevling”). Unless otherwise indicated, all of the content featured or displayed on this Site, including, but not limited to, text, graphics, data, photographic images, moving images, sound, illustrations, software, and the selection and arrangement thereof (“Photos In Tune Content”), is owned by Nevling, its licensors, or its third-party image partners.
B. All elements of the Site, including the Photos In Tune Content, are protected by copyright, trade dress, moral rights, trademark and other laws relating to the protection of intellectual property.
C. Third-Party Financial Information. Nevling may provide links to third-party Web sites or services that contain financial or investment information. Access to such Web sites and the information contained therein is provided as service to those interested in the information. Nevling neither regularly monitors nor has control over the content of third parties' statements or Web sites. Accordingly, Nevling does not endorse or adopt these Web sites or any information contained therein, including, without limitation, analysts’ reports and stock quotes. Nevling makes no representations or warranties whatsoever regarding the accuracy or completeness of the content, information, or opinions of third-party Web sites or other third-party information that is identified on the Site. Users visit these Web sites and use the information contained therein at their own risk.
3. Use of the Site
A. This Site and the Photos In Tune Content are intended for customers of Nevling. You may not use this Site or the Photos In Tune Content for any purpose not related to your business with Nevling. You are specifically prohibited from: (a) downloading, copying, or re-transmitting any or all of the Site or the Photos In Tune Content without, or in violation of, a written license or agreement with Nevling; (b) using any data mining, robots or similar data gathering or extraction methods; (c) manipulating or otherwise displaying the Site or the Photos In Tune Content by using framing or similar navigational technology; (d) registering, subscribing, unsubscribing, or attempting to register, subscribe, or unsubscribe any party for any Nevling product or service if you are not expressly authorized by such party to do so; and (e) using the Site or the Photos In Tune Content other than for its intended purpose. Such unauthorized use may also violate applicable laws including, without limitation, copyright and trademark laws, the laws of privacy and publicity, and applicable communications regulations and statutes.
B. Prohibited commercial uses include any of the following actions taken without Nevling’s express approval:
• sale of access to the Site or its related services on another Web site;
• use of the Site or its related services for the primary purpose of gaining advertising or subscription revenue;
• the sale of advertising, on the Site or any third-party Web site, targeted to the content of specific Photos In Tune Content;
• and any use of the Site or its related services that Nevling finds, in its sole discretion, to use Nevling’s resources with the effect of competing with or displacing the market for Site and/or Photos In Tune Content.
C. Nevling reserves the right to discontinue any aspect of the Site at any time.
D. You represent and warrant that you will comply with all applicable laws and regulations, including, without limitation, those relating to the Internet, data, e-mail, privacy, and the transmission of technical data exported from the United States or the country in which you reside.
4. Purchase of Images
A. Fees and Payments. You can always find the current service fees posted in the license contract. All Users shall make all payments through PayPal (www.paypal.com). You agree to pay or have paid all fees and charges incurred in connection with the services ordered (including any applicable taxes) at the rates in effect when the charges were incurred. All fees and charges (including any applicable taxes) are nonrefundable. Nevling may change the fees and charges then in effect, or add new fees or charges, by giving you advance notice. All fees and charges (including any applicable taxes) incurred in connection with the services ordered will be billed to your credit card or account through PayPal You also are responsible for any fees or charges incurred to access the Site through an Internet access provider or other third party service. YOU, AND NOT NEVLING, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, WHICH WERE NOT AUTHORIZED BY YOU.
B. You agree that your purchase of a service and use of Photos In Tune Content constitutes your acceptance of and agreement to use the Site and services solely in accordance with the Terms of Service. The Terms of Service shall govern your rights with respect to the Site, Photos In Tune Content, in addition to any other terms or rules that may have been established between you and another party. Nevling reserves the right to modify the Terms of Service at any time.
C. You acknowledge that some aspects of the services provided by the Site, Photos In Tune Content, and administering the Terms of Service entail the ongoing involvement of Nevling. Accordingly, in the event that Nevling changes any part of its services or discontinues its services, which Nevling may do at its sole election, you acknowledge that you may no longer be able to use Photos In Tune Content and Site to the same extent as prior to such change or discontinuation, and that Nevling shall have no liability to you in such case.
D. Agreement to Pay.
• Payment for Services. You agree to pay for all services you order through the Site, and that Nevling may charge your credit card or account through PayPal (www.paypal.com) for any services ordered, and for any additional amounts (including any taxes and late fees, as applicable) as may be accrued by or in connection with such orders. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING NEVLING WITH A VALID CREDIT CARD FOR PAYMENT OF ALL FEES. All fees will be billed to the credit card or account you designate through PayPal. If you want to designate a different credit card or if there is a change in your credit card, you must change your credit card information online through PayPal.
• Right to Change Prices and Availability of Services and Photos In Tune Content. Prices and availability of any Photos In Tune Content and/or services are subject to change at any time.
E. Electronic Signatures and Contracts. Your use of the Site includes the ability to enter into agreements and/or to make purchases electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND PURCHASES. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
F. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
5. Digital Millennium Copyright Act
A. If you are a copyright owner or an agent thereof and believe that any content found or submitting to the Site infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online Web site are covered by a single notification, a representative list of such works at that Web site;
• 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 the service provider to locate the material;
• Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail address;
• A statement that you have 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
• A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Nevling’s designated Copyright Agent to receive notifications of claimed infringement is: Law Offices of Elsa Ramo, 315 S. Beverly Dr, Ste 508, Beverly Hills, CA 90212 email: firstname.lastname@example.org fax: 310-861-5246. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Nevling customer service through Photos In Tune, 221 North Hogan Street, #323, Jacksonville, FL 32202 Email: Photointune@aol.com. You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid.
A. You may not use a Photos In Tune logo or other proprietary graphic of Nevling to link to this Site without the express written permission of Nevling. Further, you may not frame any Photos In Tune logo or other proprietary information, including the Photos In Tune Content, without Nevling’s express written consent.
B. Nevling makes no claim or representation regarding, and accepts no responsibility for, directly or indirectly, the quality, content, nature or reliability of third-party Web sites accessible by hyperlink from the Site, or Web sites linking to the Site. Such Web sites are not under the control of Nevling and Nevling is not responsible for the contents of any linked Web site or any link contained in a linked Web site, or any review, changes or updates to such Web sites. Nevling provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by Nevling of any Web site or any information contained therein. When you leave the Site, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Web site to which you navigate from the Site.
C. Your participation, correspondence or business dealings with any third party found on or through the Site, regarding the payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You agree that Nevling shall not be responsible or liable for any loss, damage or other matters of any sort incurred as the result of any such dealings.
You agree to defend, indemnify and hold harmless Nevling, its subsidiaries, affiliates, licensors, employees, agents, third party information providers and independent contractors against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to your conduct, your use of or inability to use the Site, your breach or alleged breach of the Site Terms or of any representation or warranty contained herein, your unauthorized use of the Photos In Tune Content, or your violation of any rights of another.
A. THIS SITE AND THE PHOTOS IN TUNE CONTENT ARE PROVIDED “AS IS” AND NEVLING AND ITS DIRECTORS, EMPLOYEES, CONTENT PROVIDERS, AGENTS AND AFFILIATES EXCLUDE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. NEVLING WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE OR THE PHOTOS IN TUNE CONTENT, OR THE UNAVAILABILITY OF THE SAME, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, AND DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES. THE FUNCTIONS EMBODIED ON OR IN THE MATERIALS OF THIS SITE ARE NOT WARRANTED TO BE UNINTERRUPTED OR WITHOUT ERROR. YOU, NOT NEVLING, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION DUE TO YOUR USE OF THIS SITE OR THE PHOTOS IN TUNE CONTENT. WE MAKE NO WARRANTY THAT THE SITE OR THE PHOTOS IN TUNE CONTENT IS FREE FROM INFECTION BY VIRUSES OR ANYTHING ELSE THAT HAS CONTAMINATING OR DESTRUCTIVE PROPERTIES.
B. Nevling uses reasonable efforts to ensure the accuracy, correctness and reliability of the Photos In Tune Content, but we make no representations or warranties as to the Photos In Tune Content's accuracy, correctness or reliability.
C. Nevling offers a search feature within the Site. Nevling explicitly disclaims any responsibility for the content or availability of information contained in our search index or directory. Nevling also disclaims any responsibility for the completeness or accuracy of any directory or search result.
D. Some US states and foreign countries do not permit the exclusion or limitation of implied warranties or liability for certain categories of damages. Therefore, some or all of the limitations above may not apply to you to the extent they are prohibited or superseded by state or national provisions.
9. Limitation of Liability
A. IN NO EVENT SHALL NEVLING, ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITE, THE SERVICES, THE PHOTOS IN TUNE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM NEVLING, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO NEVLING’S RECORDS, PROGRAMS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF NEVLING, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE SITE EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO NEVLING FOR ACCESS TO OR USE OF THE SITE.
Notwithstanding any of these Site Terms, Nevling reserves the right, without notice, and in its sole discretion, to terminate your account and/or to block your use of the Site.
11. Miscellaneous Provisions
A. Any waiver of any provision of the Site Terms will be effective only if in writing and signed by Nevling. If any clause in these Site Terms is found to be unenforceable, wherever possible this will not affect any other clause and each will remain in full force and effect. Any rights not expressly granted herein are reserved.
B. You agree that: (i) the Site shall be deemed solely based in California; and (ii) the Site shall be deemed a passive Web site that does not give rise to personal jurisdiction over Nevling, either specific or general, in jurisdictions other than California. These Site Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and Nevling that arises in whole or in part from the Site shall be decided exclusively by a court of competent jurisdiction located in Los Angeles County, California. These Site Terms, together with the Privacy Notice and any other legal notices published by Nevling on the Site, shall constitute the entire agreement between you and Nevling concerning the Site. If any provision of these Site Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Site Terms, which shall remain in full force and effect. No waiver of any term of this these Site Terms shall be deemed a further or continuing waiver of such term or any other term, and Nevling’s failure to assert any right or provision under these Site Terms shall not constitute a waiver of such right or provision. Nevling reserves the right to amend these Site Terms at any time and without notice, and it is your responsibility to review these Site Terms for any changes. Your use of the Site following any amendment of these Site Terms will signify your assent to and acceptance of its revised terms. YOU AND NEVLING AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
12. Changes to Site Terms
Nevling reserves the right to change any of the terms and conditions contained in the Site Terms or any policy or guideline of the Site, at any time and in its sole discretion. When we make changes, we will revise the "last updated" date at the top of the Site Terms. Any changes will be effective immediately upon posting on the Site. Your continued use of the Site following the posting of changes will constitute your acceptance of such changes. We encourage you to review the Site Terms whenever you visit one of our Web sites.
13. Questions and Contact Information
Questions or comments about the Site or Site Terms may be directed to Photos In Tune LLC at 221 North Hogan Street, #323, Jacksonville, FL 32202 or by email: email@example.com