TERMS AND CONDITIONS OF USE
These terms and conditions of use (“Terms”) govern your use of proflphoto (the “Company”) www.proflphoto.com (the “Site”). You must to comply with the Terms if you want to visit or use the Site. By using the Site, you automatically agree to the Terms, and the Terms are an agreement between you and the Company.
1. The Company owns the Site.
Other than embedded videos or other materials made available for viewing that are hosted on third-party sites (such as Vimeo or YouTube videos) or as otherwise indicated on the Site, the Site and any materials made available for download or viewing are the property of the Company. The Company is protected by United States and international intellectual property, copyright, and trademark laws. The contents of the Company website, including without limitation the files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through the Site may not be copied, distributed, modified, reproduced, published, or used, in whole or in part, except for purposes authorized or approved by the Company, including the provision of services or products to the Company, or in connection with a business relationship with the Company. You may not frame or utilize framing techniques to enclose or link to, any name, trademarks, service marks, logo, or other proprietary information (such as images, text, page layout, or form) from the Site without the Company’s express written consent.
2. Do not give out your username or password.
3. The Company can terminate your account and access to the Site.
The Company may, in its sole discretion, at any time and for any reason, terminate your access to the Site with or without cause, terminate this agreement (meaning the Terms – remember that these terms are an agreement between you and the Company), and suspend or delete your username and password and account. The Company may also block your access to the Site. If the Company decides to take any of the above-listed actions, your account may be disabled and you may not be granted access to your account or any files or other content contained in your account. The Company reserves the right to refuse service to anyone at any time without notice for any reason.
4. You agree to indemnify the Company for any damage you cause.
You agree to defend, indemnify, and hold the Company harmless from and against all third party claims, damages, and expenses (including reasonable attorneys’ fees) against or incurred by the Company arising out of your use of the Site, your access of the Site, or any breach of these Terms.
5. You cannot use the Site if you are under thirteen years of age.
You must be at least thirteen years of age to use the Site, and the Company forbids anyone under thirteen years of age from using the Site.
7. Disclaimer of warranties.
THE COMPANY DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. THE SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY COMPANY-RELATED SERVICE, IS PROVIDED “AS IS,” WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. THE COMPANY SPECIFICALLY DISCLAIMS ALL LIABILITY FOR ERRORS OR OMISSIONS IN, OR THE MISUSE OR MISINTERPRETATION OF, ANY INFORMATION OBTAINED THROUGH THE SITE.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE. THE COMPANY DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACKUP AND SECURITY. YOU AGREE THAT THE COMPANY SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING DIRECTLY OR INDIRECTLY FROM ANY SUCH CODE. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND OF THE INTERNET.
8. Limitation of liability regarding use of the Site.
THE COMPANY AND ANY THIRD PARTIES MENTIONED ON THE SITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SITE-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, AND/OR ANY HYPERLINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, SITE-RELATED SERVICES, AND/OR HYPERLINKED WEBSITES IS TO STOP USING THE SITE AND ANY ASSOCIATED SERVICES.
9. Revisions to the Terms, termination of access to the Site, mandatory arbitration, and choice of law and venue.
The Company reserves the right, in its sole discretion, to terminate your access to all or part of the Site, with or without cause, and with or without notice. In the event that any of the Terms are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect. These Terms constitute the entire agreement between the Company and you pertaining to the subject matter hereof. In its sole discretion, the Company may from time-to-time revise these Terms by updating this posting. You should, therefore, periodically visit this page to review the current Terms, so you are aware of any such revisions to which you are bound. It is your responsibility to visit this page to determine the current Terms, as the Company does not have an obligation to notify you whenever the Company changes these Terms. Certain provisions of these Terms may be superseded by expressly designated legal notices or Terms located on particular pages within the Site, or if you purchase products or services from the Company, to the extent these Terms conflict with the Terms and Conditions of Sale between you and the Company, the Terms and Conditions of Sale shall control.
The Company will try work in good faith to resolve any issue you have with these Terms, if you bring your issue to the attention of our customer service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer’s satisfaction.
You and the Company agree that any dispute, claim, or controversy arising out of or relating in any way to these Terms shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. You agree that, by agreeing to these Terms, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and the Company are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive any termination of these Terms and any other contractual relationship between you and the Company.
If you desire to assert a claim against the Company, and you therefore elect to seek arbitration, you must first send to the Company, by certified mail, a written Notice of your claim (“Notice”). The Notice to the Company should be addressed to: Proflphoto 4909 North US1 Unit B6, Cocoa FL, 32927(“Notice Address”). If the Company desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by the Company, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”).
If the Company and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or the Company may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by the Company or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association at www.adr.org. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of these Terms. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms, including this arbitration agreement.
Unless the Company and you agree otherwise in writing, any arbitration hearings will take place in the county (or parish) of your billing address. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including the AAA rules regarding the selection of an arbitrator). If your claim is for $10,000 USD or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000 USD, the right to a hearing will be determined by the AAA Rules.
Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as expressly set forth herein, the payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys’ fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’ fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and the Company agree otherwise in writing, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.