FOTOBABBLE MAY, IN ITS SOLE DISCRETION, REVISE THE TERMS OF THIS AGREEMENT AT ANY TIME, AND YOU AGREE TO BE BOUND BY SUCH REVISIONS. THE REVISIONS WILL NOT BE BINDING ON YOU UNTIL THEY ARE POSTED ON FOTOBABBLE.COM. BUT FOTOBABBLE IS NOT REQUIRED TO EMAIL OR OTHERWISE PROVIDE YOU NOTICE OF THE REVISIONS. THE DATE OF THE MOST RECENT REVISIONS TO EACH SECTION OF THE AGREEMENT WILL BE SHOWN AT THE BEGINNING OF THAT SECTION. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOU ARE FAMILIAR WITH ALL POSTED REVISIONS, AND YOU AGREE TO BE BOUND BY THEM. IF YOU DO NOT ACCEPT AND ABIDE BY THE AGREEMENT, AS REVISED FROM TIME TO TIME, YOU MAY NOT USE THE FOTOBABBLE SERVICE. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO CONFER ANY THIRD-PARTY RIGHTS OR BENEFITS.
The most recent revisions to the General Terms and Conditions were posted on Fotobabble.com on December 28, 2009 at 9:00am(PST).
2. As-Is, As-Available Service; Exclusion of Warranties. YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED TO YOU ON AN AS-IS AND AS-AVAILABLE BASIS, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING REGARDING FITNESS OF THE SERVICE FOR ANY PURPOSE YOU MAY HAVE. Fotobabble does not warrant that the Service is or will be free from error or defect, and expressly disclaims any such representation or warranty. Fotobabble disclaims all responsibility and liability for the availability, timeliness, security or reliability of the Service. In the event there is a failure, error or defect in the Service, Fotobabble shall have no liability for any damage this may cause. You agree to use the Service at your own risk, and assume, to the maximum extent permitted by law, the liability for any loss resulting from your use of the Service, even if such loss is caused in whole or in part by the negligence of Fotobabble. Fotobabble also reserves the right to modify, suspend or discontinue the Service with or without notice at any time and without any liability to you, for any reason or no reason. Fotobabble reserves the right to refuse Service to anyone at any time without notice, for any reason or no reason.
THE SERVICE CURRENTLY AVAILABLE IS AN BETA VERSION. ACCORDINGLY, THE RISK OF FAILURE, ERROR AND DEFECT IS PARTICULARLY HIGH. YOU ASSUME AND ACCEPT THIS HEIGHTENED RISK. DO NOT USE THE SERVICE UNLESS YOU UNDERSTAND AND ASSUME THE RISKS THAT ATTEND USE OF AN ALPHA VERSION.
4. Use by Children The Children's Online Privacy Protection Act severely restricts what information may permissibly be collected from children under the age of 13 years. For this reason, children under the age of 13 years are prohibited from using the Fotobabble service. You may not provide your username or password to any child under the age of 13 years. Violation of any of the foregoing, or of any other term of this Agreement, including the Content Policy, may result in immediate termination of this Agreement, and may subject you to state and federal penalties and other legal consequences. Fotobabble reserves the right, but shall have no obligation, to investigate your use of the Service in order to (a) determine whether a violation of law or this Agreement has occurred or (b) comply with any applicable law, regulation, legal process or governmental request.
6. General Practices Regarding Use and Storage. You agree that Fotobabble has no responsibility or liability for the deletion of, or the failure to store or to transmit, any Content and other communications created, maintained, published or hosted by or through the Service. Fotobabble retains the right to create limits on use and storage at our sole discretion at any time with or without notice.
7. Content. Fotobabble takes no responsibility for any content (including, without limitation, any viruses or other disabling features) created, published, maintained or stored by users on or through the Service (the "Content"). Nor does Fotobabble have any obligation to monitor such Content. Fotobabble reserves the right at all times to remove or refuse to distribute, maintain or store any Content, including without limitation Content that is in violation of the terms of this Agreement. Fotobabble also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of Fotobabble, its users or the public. Fotobabble does not have any obligation to monitor or screen Content created, published or stored through the Service, and takes no responsibility for such Content. Instead, Fotobabble merely provides access to such Content as a service to you and other users of the Service. Content published by users of the Service may carry offensive, harmful, inaccurate or otherwise inappropriate material, and in some cases, postings that have been mislabeled or are otherwise deceptive. You acknowledge and agree that any such publication is not condoned, controlled or monitored by Fotobabble.
8. Fotobabble Intellectual Property Rights. You acknowledge and agree that Fotobabble owns all right, title and interest in and to the Service and Fotobabble.com, including all intellectual property rights therein and with respect thereto, including without limitation copyrights, patents, trademarks, mask works, associated trade secrets and moral rights (the "Fotobabble IP Rights"). You agree that you will not copy, reproduce, alter, modify, reverse engineer, disassemble, decompile or create derivative works from or in connection with the Service, fotobabble.com or the Fotobabble IP Rights, or any component thereof, and that any such alterations or derivative works shall be the sole and exclusive property of Fotobabble. You agree not to challenge Fotobabble's exclusive ownership of the Fotobabble IP Rights. You also agree that you will not use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service, or allow to be introduced any virus, Trojan horse or the like into Fotobabble.com or the hardware or software systems supporting the Service. As described in the following Section A.9, the Fotobabble IP Rights do not include any rights in or to Content created, published or stored with or through the Service by users of the Service, including user Content appearing on the Fotobabble.com, except the right to copy, distribute maintain and store user Content in connection with providing the Service, as set forth in the following Section A.9.
9. Your Intellectual Property Rights. Fotobabble claims no ownership or control over any Content submitted, posted or displayed by you on or through the Services or on Fotobabble.com. You or a third party licensor, as appropriate, retain all rights of patent, trademark and copyright to any Content you submit, post or display on or through the Service and you are solely responsible for protecting those rights. By submitting, posting or displaying Content on or through the Service, you grant Fotobabble a worldwide, non-exclusive, royalty-free license to reproduce, publish and distribute such Content through the Fotobabble Service for the purpose of displaying and distributing Fotobabble Service. Fotobabble furthermore reserves the right to refuse to accept, post, display or transmit any Content in its sole discretion. You represent and warrant that you have all the rights, power and authority necessary to use the Content, to use the Content in connection with the Services and to grant the rights granted herein to any Content submitted. For avoidance of doubt, Fotobabble is not a party to any public license between you and any third party. Also, for avoidance of doubt, Fotobabble may choose to exercise the rights granted under (a) the public license or licenses, if any, you apply to your Content or (b) this Agreement.
10. No Resale of the Service; Trademarks. You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes (a) any portion of the Service, Fotobabble.com or the Fotobabble IP, (b) use of the Service, Fotobabble.com or the Fotobabble IP, or (c) access to the Service, Fotobabble.com or the Fotobabble IP. Any use of Fotobabble's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, including without limitation "Fotobabble" and "Fotobabble.com, is prohibited without the prior written consent of Fotobabble, which consent Fotobabble may withhold in its sole and absolute discretion.
11. Representations and Warranties. You represent and warrant that (a) all of the information provided by you to Fotobabble in connection with your use of the Service and Fotobabble.com is correct and current; (b) you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder.
12. Termination; Suspension. Fotobabble may, in its sole and absolute discretion, at any time and for any reason, terminate the Service, this Agreement and the limited license to use the Service granted in Section A.1 above, or suspend or terminate your account. In the event of termination or suspension, your license to use the Service is automatically terminated or suspended, as applicable. In addition, your account will be disabled and you may not be granted access to your account or any files or Content contained in your account although residual copies of information and Content may remain in our system for some time for back-up purposes. Sections 2- through 5, Section 8 and Sections and 12 through 19 of these General Terms and Conditions shall survive expiration or termination of this Agreement.
13. Indemnification. You agree to indemnify, defend and hold harmless Fotobabble, and its subsidiaries, shareholders, directors, owners, members, managers, affiliates, officers, agents, and employees, and their respective successors and assigns (together, the "Fotobabble Indemnified Parties") from and against any claim arising from or in any way related to your use of the Service (collectively, the "Claims"), including any liability or expense arising from all claims, losses, damages (actual and consequential), liabilities suits, judgments, litigation costs and attorneys' fees, of every kind and nature. You understand and agree that your obligation to indemnify, defend and hold harmless the Fotobabble Indemnified Parties pursuant to this Section A.13 applies to any Claims arising from or in any way related to your use of the Service, whether or not such use was in any way unlawful, negligent or in breach of the Agreement, provided that your obligation hereunder shall not apply to Claims to the extent they arise from the intentional misconduct of Fotobabble. Fotobabble will provide you with notice of any Claims. The Fotobabble Indemnified Parties, in their sole and absolute discretion, may elect to undertake defense of the Claims. You shall reasonably cooperate in such defense and shall immediately pay or reimburse all legal fees and costs as they are incurred by the Fotobabble Indemnified Parties as part of (and not in lieu of) your obligations hereunder. You shall have the right to retain separate counsel at your own expense, but this shall in no way limit your obligations hereunder. The Fotobabble Indemnified Parties shall have the right to compromise or settle any Claims in their sole and absolute discretion, provided that your consent shall be required in the event such compromise or settlement imposes any monetary obligation on you. You agree to abide by the terms of any settlement or compromise of Claims agreed to by the Fotobabble Indemnified Parties, and understand and agree that your consent to such settlement or compromise will only be required if it imposes a monetary obligation on you. The Fotobabble Indemnified Parties may at any time tender defense of the Claims to you in their sole and absolute discretion, and upon such tender you shall use best efforts to defend the Claims (at your sole cost and expense) with counsel reasonably acceptable to the Fotobabble Indemnified Parties. In such event, you may not settle or compromise any Claims without the prior written consent of Fotobabble Indemnified Parties, which consent may be withheld in their reasonable discretion. You shall also provide all information and materials reasonably requested by the Fotobabble Indemnified Parties in connection with Claims tendered to you, including communications subject to the attorney-client communication or attorney work product privileges, provided that the Fotobabble Indemnified Parties agree to abide by the reasonable terms of a joint defense agreement that protects the privileges afforded to such materials.
14. No Punitive Consequential or Incidental Damages. YOU AGREE THAT IN NO EVENT SHALL ANY LIABILITY OF FOTOBABBLE HEREUNDER INCLUDE PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS, WHETHER OR NOT FORSEEABLE.
16. Waiver and Severability of Terms. The failure of Fotobabble to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement shall remain in full force and effect.
17. Statute of Limitations. You agree that regardless of any statute or law to the contrary, to the maximum extent permitted by law, any claim or cause of action brought by you arising of or related to use of Fotobabble Service must be filed within the shorter of (a) the applicable statute of limitations, or (b) one (1) year after such claim or cause of action arose or be forever barred. You understand and agree that this limitation shall not apply to claims that Fotobabble may have against you hereunder, including with respect to your obligations under Section 13 of the General Terms and Conditions, which shall be governed solely by the applicable statute of limitations.
18. Choice of Law; Jurisdiction; Forum; Attorneys Fees. The Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions or your actual state or country of residence. Any claims, legal proceeding or litigation arising in connection with the Service will be brought solely in Alameda County, California, and you consent to the jurisdiction of such courts. In the event of any claims, legal proceeding or litigation arising in connection with the Service, the prevailing party shall be entitled to recover reasonable attorneys' fees.
19. Assignment. You may not assign this Agreement or any rights hereunder to any third party without the prior written consent of Fotobabble, which consent Fotobabble may withhold in its sole and absolute discretion. Fotobabble may assign its rights under this Agreement (including such rights as survive any termination), without prior consent or notice to you, provided that such assignee shall be required to assume the obligations of Fotobabble hereunder.
2. Privacy Standards. Fotobabble adheres to the U.S. Safe Harbor privacy principles of Notice, Choice, Onward Transfer, Security, Data Integrity, Access and Enforcement.
3. Information Fotobabble May Collect About You. We collect the following general types of information from users of the Service:
4. Disclosure of Your Personal and Aggregate Information.
Personal Information. Fotobabble will not sell or disclose your Personal Information to third parties without your consent except as set forth herein.
Aggregate Information: Fotobabble collects Aggregate Information about you and your use of the Service whenever you use the Service. Fotobabble may collect, compile, store, publish, promote, report, sell, or otherwise disclose or use any and all Aggregate Information, provided that it does not result in disclosure of any Personal Information that identifies or can be readily correlated to you.
5. Cookies. Fotobabble may make use of "cookies" in connection with the Service. However, you may block or remove cookies in your discretion at any time. Cookies are small text files that are stored on a user's computer by a web server based on the permissions set in a user's browser software. A cookie itself is not designed or intended to read any information from a user's computer (other than the contents of the cookie); rather, it is an identifier used by the service provider that originally placed it on your hard drive. The actual contents of the cookie information can be retrieved by the same server to identify the computer and subsequently to customize, monitor, or regulate the use of a site based on information stored in the cookie and the host server. Therefore, cookies only identify the user's computer to a service provider that may correlate other information, including personal information, with the cookie. Cookies allow Fotobabble to automate access and data entry functions of the Service such as login information, tailor the Service to your preferences or interests, or customize promotions or marketing. In addition, cookies allow us to track usage of the Service to determine which parts of the Service are useful or popular and which are not, thereby enabling us to improve and update the Service effectively.
6. Security. Fotobabble uses reasonable efforts to store and maintain Personal Information to protect it from loss, misuse, alteration or destruction by any unauthorized party. We store no social security information of users. We make reasonable efforts to attempt to prevent the unauthorized access of our systems containing Personal Information.
7. Breach of Security. In the event of a breach of our information system security that may compromise your Personal Information, we will promptly notify you of such breach at the e-mail address that we have on file for you. We reserve the right to reasonably delay such notification as may reasonably be necessary as part of any internal investigation or law enforcement efforts related to such breach. To respect the privacy of children and to comply with the Children's Online Privacy and Protection Act, we do not collect Personal Information from children under the age of 13. Children under the age of 13 are prohibited from using the Service.
8. Outside Links. In connection with the Service, Fotobabble may refer or provide you a link to third-party websites. A link to such a third party service does not imply endorsement of that site nor any ability to control that site's privacy practices. Be aware that third party services may collect data and personal information and operate according to their own privacy practices. Therefore, you should carefully review the privacy policies of third party services before submitting any Personal Information to them.
9. Opting Out; Removal of Personal Information and Contacting Us. Any time your provide us with Personal Information, we will provide you with the opportunity to opt out of receiving further communications from us, although this may limit or eliminate your access to the Service. To opt out of receiving further communications or to unsubscribe from any specific aspect of the Service, please email a request to info@FotoBabble.com If you have questions or concerns about this Policy, or the accuracy of any Personal Information we hold about you, please contact us at email@example.com. You may request removal of your Personal Information from our system(s) by contacting firstname.lastname@example.org. We will comply with your request except to the extent we are required to maintain your information in accordance with our document retention policies or applicable laws or regulations. If at any time you feel that Fotobabble has not adhered to this policy, please email us at email@example.com. We will do our best to respond promptly to your concerns.
The most recent revisions to the Content Policy were posted on Fotobabble.com on December 28, 2009 at 9:00am (PST).
2. Specifically Prohibited Uses.
3. Fotobabble Discretion to Remove and Prohibit Content Not Specifically Prohibited. Although Fotobabble has no obligation or intent to monitor, censor or screen all Content as a matter of practice, you agree and understand that Fotobabble has the authority to remove and prohibit any Content from the Service in its sole and absolute discretion. The foregoing prohibited types of Content are not meant to establish a comprehensive list, and Fotobabble may remove and prohibit any Content at any time for any reason, or no reason.
The most recent revisions to the Copyright Policy were posted on Fotobabble.com on December 21, 2008 at 9:00am (PST).
2. Copyright Infringement Notification. To file a copyright infringement notification with us, you will need to send a written communication that includes substantially the following (please consult your legal counsel and see Section 512(c)(3) of the Copyright Act to confirm these requirements):
4096 Piedmont Ave., Suite 610
Oakland, CA 94611 USA
Attention: Fotobabble Site Administration
Please also note that under Section 512(f) of the Copyright Act any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. Accordingly, if you are not sure whether certain material infringes the copyrights of others, we suggest that you first contact an attorney. DISCLAIMER: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY.
3. Counter-Notification. To file a counter notification with us, you must provide a written communication that sets forth the following:
Send the written communication to the following address:
4096 Piedmont Ave., Suite 610
Oakland, CA 94611 USA
Attention: Fotobabble Site Administration
4. Following Counter-Notification. After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes your personal information. By submitting a counter-notification, you consent to having your information revealed in this way. After we send out the counter-notification, the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the Content at issue. If we receive such notification we will be unable to restore the Content. If we do not receive such notification, we may restore the Content, but may also elect not to restore the Content, or to relocate the Content, in our sole and absolute discretion, without making any infringement determination one way or the other. Our restoration of the Content in no way limits or affects your retention of sole responsibility for the Content and your obligation to indemnify, defend and holder harmless Fotobabble in accordance with Section A.13 of the General Terms and Conditions.
Also, Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of subscribers who are repeat infringers. Accordingly, if you are not sure whether certain material infringes the copyrights of others, we suggest that you first contact an attorney.
DISCLAIMER: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY.