April 11, 2008

By using or accessing this website, (the “Site“), and sharing services provided via the Site (including without limitation the FotoViewr photo galleries) (”Services“) you agree to be bound by these Terms of Service and by the Privacy Policy of FotoViewr. (”FotoViewr”), which are collectively referred to as the “Agreement.” Please read the terms of this Agreement carefully. If you do not agree to the terms of this Agreement, then you may not use or access the Site or any of the Services..

FotoViewr may, in its sole discretion, modify this Agreement from time to time, and may modify, suspend, or terminate the Site and Services, for any reason, and without notice. Each revision will be marked with a revision date and will be posted on the Site. FotoViewr recommends that you review these terms from time to time to note any changes. Although you may be asked to indicate your assent to the terms of this Agreement only once (e.g., when you create a FotoViewr photo gallery), the terms of this Agreement, as modified by FotoViewr from time to time, will govern all use of the Site. By continuing to use or access the Site, you agree to be bound by the Terms of Service in effect at the time of such use or access.

1. Description of the Services

FotoViewr provides its Users with the ability to display a variety of content, including without limitation images and videos (including any audio accompanying the videos) (”Content“) that Users own or to which they have the necessary rights (”User Content“), in order to share User Content via the Web.

Although the Site and Services are normally available, there will be occasions when the Site or Services will be interrupted for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and equipment that are beyond the control of FotoViewr. Also, although FotoViewr will normally only delete Content that violates this Agreement, FotoViewr reserves the right to delete any Content for any reason, without prior notice. Deleted content may be stored by FotoViewr in order to comply with certain legal obligations and is not retrievable without a valid court order. Consequently, FotoViewr encourages you to maintain your own backup of your User Content. In other words, FotoViewr is not a backup service. As discussed further in Section 8, FotoViewr will not be liable to you for any modification, suspension, or discontinuation of the Services, or the loss of any Content.

2. Your License to FotoViewr

FotoViewr does not claim any ownership rights in any User Content that you choose to display through the Site or via the Services. After displaying User Content through the Site, you continue to retain all ownership or license rights in your User Content and you continue to have the right to use your User Content as you did prior to such posting. However, by posting or making User Content available through the Site and Services, you hereby grant to FotoViewr a nonexclusive, royalty-free, transferable, worldwide license to use, copy, modify, prepare derivative works from, distribute, publicly display and publicly perform (whether by means of a digital audio transmission or otherwise) and process your User Content, or any part of it, solely on and through the Site and Services,, including without limitation (a) adapting the format of your User Content (for example by encoding or transcoding) for suitable display on the Site; and (b) featuring, in FotoViewr’s sole discretion, your public User Content on the Site. In addition, where you have posted a link to your User Content on another website or otherwise shared a link to your User Content, you grant to FotoViewr a nonexclusive, royalty-free, worldwide right to sublicense the right to copy, modify, prepare derivative works from, and distribute your User Content as necessary to perform the Services. In connection with the above license, you provide your consent for FotoViewr personnel, including FotoViewr contractors and service providers, to view your User Content at any time for the purpose of providing the Services and for the purpose of filtering content that violates this Agreement. You acknowledge that you are solely responsible for all Content you submit to the Site or provide to the Service. You represent that you either own the User Content or have the rights necessary to grant FotoViewr this license.

3. FotoViewr’s Limited License to You

Subject to your compliance with the terms and conditions of this Agreement, FotoViewr grants you a non-transferable, non-sublicensable right to access, view public Content, only for your personal, non-commercial use. With the exception of your User Content, you may not distribute any Content to third parties, use any Content commercially (except as may be permitted by a separate license explicitly attached to a particular piece of Content), or otherwise copy, modify, distribute, publicly display or perform any Content (except as such acts may be permitted by a separate license explicitly attached to such Content).

4. Copyright

All content included on this site, such as text, graphics, logos, icons, images, photographs, audio clips, video clips, digital downloads, data compilations, and software, is the property of FotoViewr, or its subscribers who upload photographs or other media, or its content and software suppliers and is protected by United States and international copyright laws. FotoViewr’s selection, coordination and arrangement of all content on this site is the exclusive property of FotoViewr, and is protected as a compilation by U.S. and international copyright laws. All software used on this site or in conjunction with the Services is the property of FotoViewr or its software suppliers and is protected by United States and international copyright laws.

5. Restrictions

You will not do any of the following while using or accessing the Site or the Services:

a. Post, upload, email, or otherwise transmit (i) any Content that you do not have the lawful right to copy, transmit and display (including any Content that would violate any confidentiality or fiduciary obligations that you might have with respect to the Content); (ii) any Content for which you do not have the consent or permission of each identifiable person in the Content to use the name, voice, signature, photograph, or likeness of each such person (to the extent each is implicated by the Content); or (iii) any Content that infringes the intellectual property rights or violates the privacy rights of any third party (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity);

b. Delete, or in any manner alter, the copyright, trademark, or other proprietary rights notices appearing on any Content except your User Content;

c. Use any meta tags or other hidden text or metadata utilizing a FotoViewr name, trademark, URL or product name without FotoViewr’s express written consent;

d. Post, upload, email or otherwise transmit, without first obtaining the permission of FotoViewr, any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, “pyramid schemes,” Ponzi schemes or any other form of solicitation;

e. Post, upload, email, or otherwise transmit, via the Site or Services, any Content that is unlawful, obscene, harmful, threatening, harassing, defamatory, or hateful, or that contains objects or symbols of hate, invades the privacy of any third party, contains nudity or pornography (including without limitation any child pornography or child erotica), is deceptive, threatening, abusive, inciting to unlawful action, defamatory, libelous, vulgar or violent, or constitutes hate speech, or is otherwise objectionable in the opinion of FotoViewr;

f. Post, upload, email, or otherwise transmit any Content that contains software viruses or any other computer code, files, or programs designed to (i) interrupt, destroy, or limit the functionality of any computer software; or (ii) interfere with the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;

g. Post, upload, email or otherwise transmit any Content that includes code that is hidden or otherwise surreptitiously contained within the images, audio or video of any Content that is unrelated to the immediate, aesthetic nature of the Content;

h. Attempt to probe, scan or test the vulnerability of any FotoViewr system or network or breach any security or authentication measures;

i. Forge any TCP/IP packet header or any part of the header information in any posting, or in any way use the Site to send altered, deceptive, or false source-identifying information;

j. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure protecting the Site;

k. Collect or store personal data about other users without their express permission;

l. Impersonate or misrepresent your affiliation with any person or entity, through pretexting or any other form of social engineering, or otherwise commit fraud;

m. Resell the Services, in whole or in part;

n. Violate any applicable law, regulation, or ordinance; or

o. Use the Site or Services in any manner not permitted by this Agreement.

FotoViewr does not control the Content in Users photo galleries and does not have any obligation to monitor such Content for any purpose. FotoViewr reserves the right at all times to delete any and all Content, in whole or in part, for any reason including without limitation violations of this Section, or of any part of this Agreement. FotoViewr reserves the right at all times to disclose, in its sole discretion, any Content as necessary to (a) satisfy any law, regulation, or governmental request or (b) reduce or prevent what FotoViewr considers to be, in its sole discretion, a serious or imminent threat to your health or safety, or the health or safety of another. For information regarding FotoViewr’s handling of your personally identifiable information, refer to the FotoViewr Privacy Policy.

6. Reviews, Comments, Communications and Other Content

Use of the Services by you is subject to all applicable local, state, national and international laws and regulations. You may post reviews, comments, suggestions, bugs, ideas, questions, or other information (collectively “Content”), so long as the Content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” FotoViewr reserves the right (but not the obligation) to remove or edit Content, but does not regularly review posted Content.

7. Age Requirements

Users of the Services must be at least 14 years of age. Children under the age of 14 are not permitted to use the Service and no information of children under the age of 14 will be knowingly collected by FotoViewr. If a parent or guardian becomes aware that his or her child has provided us with personally identifiable information without the parent or guardian’s consent by, for example, misrepresenting his or her age, that parent or guardian should contact us at the Contact Us page. If FotoViewr determines that it has collected personal information of children under the age of 14, FotoViewr will immediately delete such information.

8. Objectionable Material

You understand that by using FotoViewr, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit subject matter. Nevertheless, you agree to use FotoViewr at your sole risk and that FotoViewr shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.

9. Disclaimer of Warranty

THE SERVICES, CONTENT, SITE, AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, FOTOVIEWR DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

10. Limitations of Liability

You understand that Content is posted by users and that FotoViewr has only limited control over the Content that is made available via the Site and Services. You understand that by using the Site and Services, you may be exposed to this Content. You acknowledge that FotoViewr will not be liable for (a) Content, including without limitation the subject matter of any Content, any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use or download of any Content posted, emailed, transmitted, or otherwise made available via the Site or Services; (b) the deletion, failure to store, mis-delivery, or untimely delivery of any information or material; (c) Site unavailability or Service interruptions; or (c) the defamatory, offensive, or illegal conduct of any third party.

IN NO EVENT WILL FOTOVIEWR BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER FAILURE, OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SITE OR ANY SERVICES, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR STRICT LIABILITY OR OTHER THEORY EVEN IF FOTOVIEWR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT WILL FOTOVIEWR’S AGGREGATE LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY AND ALL CLAIMS ARISING OUT OF THE USE OF THE SITE OR ANY SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO FOTOVIEWR.

11. Indemnification

You agree to defend, indemnify, and hold harmless FotoViewr and its officers, directors, employees, and agents, from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site or Services, or your violation of this Agreement. FotoViewr reserves the right, at its own expense, to assume the exclusive defense and control of any such claim otherwise subject to defense by you, in which event you will cooperate with FotoViewr and its counsel, as necessary, in the conduct of such defense.

12. Links to Third Party Sites

The Site may contain links to third-party websites or resources. You acknowledge and agree that FotoViewr is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by FotoViewr of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources. For the terms and conditions governing your use of Partner Sites, refer to the terms of service governing those websites.

13. Forum and Choice of Law

This Agreement will be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflicts of law rules. You expressly agree that the exclusive jurisdiction for any claim or action arising out of or relating to this Agreement or your use of the Services will be filed only in the federal courts located in the State of Illinois, or state courts located Cook County, Illinois. You further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, or related to, use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose, or be forever barred.

14. General

You may not assign any rights granted to you or delegate any of your duties hereunder; any attempt to do so is void and of no effect. FotoViewr may assign its rights and delegate its duties under this Agreement in their entirety in connection with a merger, reorganization or sale of all, or substantially all, of its assets relating to this Agreement. The failure of FotoViewr at any time to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same unless the same is waived in writing. If a court should find that one or more rights or provisions contained in this Agreement are invalid, you agree that the remainder of the Agreement will be enforceable. The headings and captions are for convenience only and are not to be used in the interpretation of this Agreement. This Agreement constitutes the complete and exclusive understanding and agreement between you and FotoViewr regarding its subject matter, and supersedes all prior and contemporaneous agreements or understandings relating to such subject matter.