Photoswarm.com

Terms & Conditions of Use


We (Aidan & Will at Photoswarm) run a service called Photoswarm.com and would love for you to use it. Our basic service can be trialled free for 14 days, after which time we offer paid subscriptions for continued use and advanced features such as domain names. Our service is designed to be a simple, straightforward way for you to share your photos online, however, be responsible in what you upload, use our service honestly and we promise to do our best by you too. In particular, make sure that none of the prohibited items listed below appear on your site or get linked to from your site (things like content that you don't own the copyright for, spam, viruses, or hate content).

If you find a Photoswarm.com site that you believe violates our terms of service, please contact us at support@photoswarm.com.

Terms of Service:

The following terms and conditions govern all use of the Photoswarm.com website and all content, services and products available at or through the website, including, but not limited to, the Photoswarm.com Free trial hosting service ("Free Trial Service"), the Photoswarm.com Light hosting service ("Light Service"), the Photoswarm.com Pro hosting service including it's associated separate domain names ("PRO Service"), (taken together, the Website). The Website is owned and operated by Photoswarm Limited ("Photoswarm"). The Website is offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, Photoswarm's Privacy Policy) and procedures that may be published from time to time on this Site by Photoswarm (collectively, the “Agreement”).

You understand and agree that we store and process your personal information on computers located in the United States.

Please read this Agreement carefully before accessing or using the Website. By accessing or using any part of the web site, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access the Website or use any services. If these terms and conditions are considered an offer by Photoswarm, acceptance is expressly limited to these terms. The Website is available only to individuals who are at least 13 years old.

1. Your Photoswarm.com Account and Site.

1.1 If you create an account or site on the Website, you are responsible for maintaining the security of your account and site, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the site. You must not describe or assign tags or album name to your site in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and Photoswarm may change or remove any description, tag or album that it considers inappropriate or unlawful, or otherwise likely to cause Photoswarm liability. You must immediately notify Photoswarm of any unauthorized uses of your site, your account or any other breaches of security. Photoswarm will not be liable for any acts or omissions by You, including any damages of any kind incurred as a result of such acts or omissions.

2. Responsibility of Contributors.

2.1 If you operate a Website, comment on a Website, post material to the Website, post links on the Website, or otherwise make (or allow any third party to make) material available by means of the Website (any such material, "Content"), You are entirely responsible for the content of, and any harm resulting from, that Content. That is the case regardless of whether the Content in question constitutes text, photography, video, graphics, an audio file, or computer software. By making Content available, you represent and warrant that:

  1. the downloading, copying, sale and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
  2. if your employer has rights to intellectual property you create, you have either (i) received permission from your employer to post or make available the Content, including but not limited to any software, or (ii) secured from your employer a waiver as to all rights in or to the Content;
  3. you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;
  4. the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
  5. the Content is not spam, is not machine or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
  6. the Content is not defamatory of any person; is not obscene, offensive, hateful or inflammatory; is not sexually explicit, indecent, obscene or pornographic; is not likely to harass, upset, embarrass, or alarm another person; it does not promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; it does not promote any illegal activity; it does not contain threats or incite violence, and it does not violate the privacy or publicity rights of any third party (all such Content listed being Inappropriate Content);
  7. your Website is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, other blogs and web sites, and similar unsolicited promotional methods;
  8. your Website is not named in a manner that misleads your readers into thinking that you are another person or company. For example, your Website’s URL or name is not the name of a person other than yourself or company other than your own; and
  9. you have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by Photoswarm or otherwise.

2.2 By submitting Content to Photoswarm for inclusion on your Website, you grant Photoswarm a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your Website. If you delete Content, Photoswarm will use reasonable efforts to remove it from the Website, but you acknowledge that caching or references to the Content may not be made immediately unavailable.

2.3 Without limiting any of the representations or warranties in 2.1 above, Photoswarm has the right (though not the obligation) to, in Photoswarm's sole discretion (i) refuse or remove any content that, in Photoswarm's reasonable opinion, violates any Photoswarm policy, violates any of the above clauses (including 2.1), or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in Photoswarm's sole discretion. Photoswarm will have no obligation to provide a refund of any amounts previously paid.

2.4 Photoswarm is not a backup service and Photoswarm will not be liable for any modification, suspension, or discontinuation of Photoswarm's Services, or any loss of Content. Photoswarm encourages you to maintain your own backup of your Content.

2.5 You also acknowledge and understand that any user content which is displayed within public areas of the Website may be accessed by the public and may be archived, linked to, downloaded, accessed, viewed and republished by others.

2.6 The use of the Website, including but not limited to, Free hosting, Light hosting and Pro hosting services are designed and intended for personal use only. They are not intended for general commercial use by commercial entities, services or sites and as such, Photoswarm reserves the right to suspend, limit or terminate your use of the Website and any services should Photoswarm determine your use of these services to be of a commercial nature.

3. Payment and Renewal.

General

3.1 Optional premium paid subscription services such as Light hosting, Pro hosting, extra storage or domain purchases are available on the Website. By selecting a premium service you agree to pay Photoswarm the monthly or annual subscription fees indicated for that service (the payment terms for Light hosting and Pro hosting are described below). Payments will be charged on the day you sign up for a premium service and will cover the use of that service for a monthly or annual period as indicated. Premium service fees are not refundable.

Automatic Renewal

3.2 Unless you notify Photoswarm before the end of the applicable subscription period that you want to cancel an Upgrade, your Upgrade subscription will automatically renew and you authorize us to collect the then-applicable annual or monthly subscription fee for such Upgrade (as well as any taxes) using any credit card or other payment mechanism we have on record for you. Upgrades can be canceled at any time by contacting us at support@photoswarm.com.

4. Light and Pro Services.

General

4.1 By signing up for a Light or Pro Services account you agree to pay Photoswarm the setup fees and monthly hosting fees indicated at http://photoswarm.com/pricing in exchange for the services listed at http://photoswarm.com/pricing/. Applicable fees will be invoiced starting from the day your Light or Pro Services are established and in advance of using such services. Photoswarm reserves the right to change the payment terms and fees upon thirty (30) days prior written notice to you. Pro Services can be canceled by you at anytime on 30 days written notice to Photoswarm.

Support

4.2 Light & Pro Services include access to priority email support. “Email support” means the ability to make requests for technical support assistance by email at any time (with reasonable efforts by Photoswarm to respond within three business days) concerning the use of the Light and Pro Services. “Priority” means that support for Light and Pro Services customers takes priority over support for users of the standard, free Photoswarm.com services. All Light and Pro Services support will be provided in accordance with Photoswarm standard Light and Pro Services practices, procedures and policies.

Sale of Images

4.3 Pro Services include a function for users to offer content for sale to visitors. The use of this function by a visitor and/or user is a direct agreement between those parties and Photoswarm is not involved in any way. Fulfillment of any order or sale is carried by others (generally by the content owner who is offering the content for sale) and Photoswarm shall have no liability whatsoever in connection with any sales or orders.

5. Responsibility of Website Visitors.

5.1 You acknowledge that Photoswarm has no control over Content placed on the Website, and does not purport to monitor or moderate the Content of the Website. Photoswarm reserves the right to remove Content from the Website where it reasonably suspects such content is Inappropriate Content. Photoswarm shall notify you if it becomes aware of any allegation that Content on the Site may be Inappropriate Content. You shall indemnify Photoswarm against all damages, losses and expenses arising as a result of any action or claim that the Content or any other material posted to, or linked to, the Website constitutes Inappropriate Content. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Photoswarm disclaims any responsibility for any harm resulting from the use by visitors of the Website, or from any downloading by those visitors of content there posted.

6. Content Posted on Other Websites.

6.1 We have not reviewed, and cannot review, all of the material, made available through the websites and webpages to which Photoswarm.com links, and that link to Photoswarm.com. Photoswarm does not have any control over those non-Photoswarm websites and webpages, and is not responsible for their contents or their use. By linking to a non-Photoswarm website or webpage, Photoswarm does not represent or imply that it endorses such website or webpage. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Photoswarm disclaims any responsibility for any harm resulting from your use of non-Photoswarm websites and webpages.

7.1 As Photoswarm asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by Photoswarm.com violates your copyright, you are encouraged to notify Photoswarm via email at support@photoswarm.com. Photoswarm will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. Photoswarm will terminate a visitor’s access to and use of the Website if, under appropriate circumstances, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of Photoswarm or others. In the case of such termination, Photoswarm will have no obligation to provide a refund of any amounts previously paid to Photoswarm.

7.2 The Site and all text, photos, code, video and other content and materials on the Site and the selection and arrangement thereof (taken together, the Site Materials) are the property of Photoswarm or its users or licensors and are protected by international and United States intellectual property right laws.

7.3 Photoswarm grants you a limited, non-exclusive, non-sublicensable, revocable license to access and use the Site solely in accordance with, and subject to, the terms in these Terms and Conditions of Use. Except, unless expressly permitted in writing, the license does not include, and you are prohibited from:

(a) any use of the Site or the Site Materials other than for their intended purposes; (b) with the exception of your own photos, or others’ photos available for download, the downloading of any portion of the Site, the Site Materials or any information contained therein; (c) scraping or otherwise using any data mining, robots or similar data gathering or extraction methods; (d) modifying or otherwise making any derivative uses of the Site or any of the Site Materials; (e) any distribution, commercial exploitation, commercial use, resale, public performance or public display of the Site or any of the Site Materials or; (f) the copying, distribution or collection of any portion of the Site or the Site Materials;

7.4 Any use of the Site or of any Site Materials other than as specifically authorized herein, without the express prior written permission of Photoswarm or the Content Owner, is strictly prohibited and will terminate and constitute a breach of the license granted herein.

8. Intellectual Property.

8.1 This Agreement does not transfer from Photoswarm to you any Photoswarm, or third party, intellectual property, and all right, title and interest in and to such property will remain solely with Photoswarm or any such third party. Photoswarm, Photoswarm.com, the Photoswarm.com logo, and all other trademarks, service marks, graphics and logos used in connection with Photoswarm.com, or the Website, are trademarks or registered trademarks of Photoswarm or Photoswarm's licensors. Other trademarks, service marks, graphics and logos used in connection with the Website may be the trademarks of other third parties. Your use of the Website grants you no right or license to reproduce or otherwise use any Photoswarm or third-party trademarks.

9. Advertisements.

9.1 Photoswarm reserves the right to display advertisements on your Website unless you have purchased an Ad-free Upgrade.

10. Attribution.

10.1 Photoswarm reserves the right to display attribution links such as ‘Powered by Photoswarm.com’ in your Website footer or toolbar. Footer credits and the Photoswarm.com toolbar may not be removed regardless of upgrades purchased.

11. Domain Names.

11.1 If you are registering a domain name, using or transferring a previously registered domain name, you acknowledge and agree that use of the domain name is also subject to the policies of the Internet Corporation for Assigned Names and Numbers ("ICANN"), including their Registration Rights and Responsibilities.

11.2 The details (such as your name and address) that you provide to Photoswarm to use the Website shall be the details used in respect of administration, billing, contact details and technical contact details for your domain name, unless otherwise notified to Photoswarm.

12. Changes.

12.1 Photoswarm reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Website following the posting of any changes to this Agreement constitutes acceptance of those changes. Photoswarm may also, in the future, offer new services and/or features through the Website (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.

13. Termination.

13.1 Photoswarm may terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your Photoswarm.com account (if you have one), you may simply discontinue using the Website. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

14. Disclaimer of Warranties.

14.1 The Website is provided “as is”. Photoswarm and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Photoswarm nor its suppliers and licensors, makes any warranty that the Website will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, the Website at your own discretion and risk.

15. Limitation of Liability.

15.1 In no event will Photoswarm, or its suppliers or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for:

  1. any special, incidental or consequential damages; or
  2. the cost of procurement or substitute products or services; or
  3. for interruption of use or loss or corruption of data.

15.2 The total aggregate liability of Photoswarm arising out of or in connection with this Agreement shall be limited to the fees paid by you to Photoswarm under this Agreement during the twelve (12) month period immediately prior to when the cause of action arose. Photoswarm shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.

16. General Representation and Warranty.

16.1 You represent and warrant that (i) your use of the Website will be in strict accordance with the Photoswarm Privacy Policy, with this Agreement and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside) and (ii) your use of the Website will not infringe or misappropriate the intellectual property rights of any third party.

17. Indemnification.

17.1 You agree to indemnify and hold harmless Photoswarm, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website, including but not limited to your violation of this Agreement.

17.2 You shall indemnify Photoswarm against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Photoswarm arising out of or in connection with any claim made against Photoswarm for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with your provision and/or use (as applicable) of the Content, the Website, or the services.

18. Miscellaneous.

18.1 This Agreement constitutes the entire agreement between Photoswarm and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Photoswarm, or by the posting by Photoswarm of a revised version.

18.2 Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Website will be governed by the laws of the United Kingdom., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the courts located in London, United Kingdom. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the relevant arbitration rules of the United Kingdom, by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in London, United Kingdom, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys' fees. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining portions will remain in full force and effect.

18.3 A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.

18.4 You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Photoswarm may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.

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