PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THESE TERMS OF SERVICE CONTAIN PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE MAY HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT.
IN PARTICULAR, THESE TERMS OF SERVICE INCLUDE OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE ALL DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ONLY ON AN INDIVIDUAL BASIS, AND WILL NOT BE PERMITTED TO PURSUE CLAIMS OR SEEK RELIEF AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, EXCEPT AS UNDER CERTAIN CONDITIONS SET FORTH BELOW IN THE SECTION OF THESE TERMS AND CONDITIONS ENTITLED “DISPUTE RESOLUTION AND BINDING ARBITRATION”; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW, TO HAVE A JURY TRIAL ON ANY AND ALL CLAIMS OR TO HAVE A JUDGE REVIEW YOUR CLAIMS.
THIS ARBITRATION AGREEMENT WILL ALSO AFFECT YOUR RIGHT TO PARTICIPATE IN ANY CLASS ACTION LITIGATION AGAINST THE COMPANY. PLEASE SEE THE SECTION OF THESE TERMS ENTITLED “DISPUTE RESOLUTION AND BINDING ARBITRATION AGREEMENT” FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
These Terms are updated and effective as of March 9, 2023.
You must agree to and accept all of the Terms, or you don’t have the right to use the Services. Any use you make of the Services means that you agree to all of these Terms. These Terms will remain in effect, and a binding contractual obligation between you and PhotoCircle, while you use the Services, and will extend beyond your use of the Services as indicated below.
Here are a few key definitions we use throughout these Terms of Service - please keep them in mind:
“Users” refers collectively to anyone who creates an App account.
A “Circle” refers to the shared Media space PhotoCircle’s App enables, which can be created at any time by any User.
A “Member” of a particular Circle is a User who creates or joins a Circle. Members of Circles can, but need not, have other roles in a Circle such as Moderator. Members may or may not contribute Content to a Circle. If they do, they are also a “Contributor” under these Terms, Contributors can view, add and delete their own Contributions. Members of Circles can invite other users to join a Circle of which they are a Member, whether or not they are a Contributor.
“Media” means photos, videos, and/or other content capable of being uploaded to a Circle. The capitalized term “Content” is used in these Terms to refer to Media that you, or someone whom you are legally responsible for under these Terms, actually upload to the Services.
“Comments” are text comments added to a Circle and/or associated with a particular piece of Media in that Circle. To the extent Comments include other User-generated content, such as ideas, concepts, techniques, data, or other information contained in any of these, such user-generated content is a part of the “Comment” for purposes of these terms.
“Contributions” means your Content, Reactions and Comments.
A “Moderator” is a User who has created at least one Circle, and they are the initial Moderator of any Circle which they create. Moderators have the ability to invite individual eligible Users to their Circles whether or not those Users already have an account. Moderators can (i) view, add, and delete Contributions from themselves or other Members of their Circles, (ii) invite and remove others from their Circles, (iii) create and delete their Circles, and (iv) add other Moderators to their Circles.
A “Viewer” is a Member of a Circle who can only view others’ Contributions to that Circle.
“PhotoCircle+” means the ad-free subscription for the App, accessible by following the prompts to “upgrade to PhotoCircle+” and your payment of a monthly subscription fee. Users who subscribe to PhotoCircle+ do not have advertisements included in their App experience.
“Reactions ” are emoji-based comments made on Content.
“SSO” means single sign-on authentication frameworks, such as those offered by Google and Microsoft, which are operated by third parties and may be used, upon your election, to help you more easily log into the Services. If you choose to use SSO to sign into PhotoCircle, you consent to PhotoCircle using it to authenticate you.
PhotoCircle is designed to enable private sharing of Media, but the privacy of your Media in the App depends on you. PhotoCircle cannot and does not control what actions Members of your Circles choose to take with respect to Media uploaded to your Circle. Your Contributions can be viewed and downloaded by those you invite to a Circle and by anyone else who is a Member of that Circle, including those others invited by others whom you may not know. You agree it is your sole responsibility to vet Users you choose to invite to your Circles, to join and remain a member of Circles only when you trust the other Members, and to upload Content to a Circle which you are comfortable with any current or future Member of that Circle accessing, downloading, and/or copying. These Terms discuss your obligations to vet your invitees in greater detail below.
Eligibility for the Services
Any person 18 or over may use the Services for their own personal, noncommercial purposes in accordance with these Terms and the Acceptable Use Guidelines, provided they accept and agree to these Terms. Enterprise License users may use the Services in accordance with their Enterprise License Agreement, provided that if these Terms conflict with such Agreement, the Agreement shall control.
The Services are intended solely for persons who are at least 13 years old. By using the Services you represent and warrant that you are at least 13 years old. If you are not 13 or older, you may not use the Services under any circumstances. Persons over 13 but under 18 may use the App only if their legal guardian created an account on their behalf and emails firstname.lastname@example.org affirming their parental rights and consent. Please reach us for more details about this.
For educational purposes, we welcome educators to use PhotoCircle for private photo sharing. However, if you are an educator and/or authorized User, you agree to only invite persons younger than 18 years of age to join a Circle if all of the following are true:
You have obtained and saved or stored specific written and/or verifiable parental consent from the individual’s parent or legal guardian
You take responsibility for your invitee’s acceptable use of the App in accordance with these Terms
You ensure that only Content permitted by these Terms is uploaded by your invitees when they use the App
The person is NOT 13 years of age or younger.
Users who meet each of these conditions (or whose legal guardians have followed the email notice and guardian account creation process above) are referred to in these Terms as “Permissible Minor Users.”
Only real individual humans using the App for personal purposes may create an account, as further explained in our Acceptable Use Guidelines.
To be a User, you agree to:
sign up for an account, and select a password and display name, which can be anything you choose (“Display Name”). We recommend a Display Name that does not easily identify you, but this choice is solely yours.
provide us with accurate, complete, and updated registration information about yourself.
If you use SSO, use only SSO credentials for accounts you have all necessary rights to use.
select a Display Name that does not misrepresent your identity as that of another user or identifiable individual.
use a profile photo that meets our Acceptable Use Guidelines.
Using our App
You can create or join as many Circles as you like. We let our users control the selection of who can access their Content through our invitation process. You hereby acknowledge, understand, and agree that all members of a Circle can view all Content in that Circle, and you are solely responsible for:
Inviting other Members to your Circles only when you trust them, and when you believe that you have any required consent of other Members of the Circle to invite that new Member. You acknowledge and agree that Contributors you invite can also invite others, so you should invite those you trust to use the Circle appropriately and invite others who will use the Circle appropriately.
Joining Circles only upon the invitation of Users who you trust to maintain the level of privacy and security you want for your Contributions (including by only inviting others to the Circle who are trustworthy)
Uploading Contributions to Circles only when you trust other Members to maintain the level of privacy and security you want for that Contribution.
Inviting Members to your Circles only when they meet the eligibility guidelines set forth in these terms.
Inviting Members to your Circles only when you believe they will follow the Acceptable Use Guidelines.
You acknowledge and agree that PhotoCircle will not monitor who Members invite to a Circle, whom a Moderator chooses to remove from their Circles, or what Contributions are uploaded to a Circle or removed from that Circle. However, we may investigate the history, membership, and/or and Contributions of a Circle when we have reason to believe a User has violated these Terms and/or broken the law.
At any time, any User may:
leave any Circle they previously joined as a Contributor, which will result in the removal of Contributions the Contributor made to that Circle;
Delete any Circle or which they are Moderator, which will result in the removal of the Circle itself, as well as any Contributions made to it
Submit Feedback (defined below)
PhotoCircle grants to you a limited, personal, revocable, nonexclusive, non-assignable, non-sublicensable right to access, through a generally available web browser or mobile device or application (but not through scraping, spidering, crawling or other technology or software used to access data without the express written consent of PhotoCircle), view information and use the Services that we provide in accordance with these Terms.
Any other use of the Services contrary to our mission and purpose is strictly prohibited and a material breach of these Terms - for example, seeking to connect to someone you do not know or trust using the App or using information gathered from the Services commercially without PhotoCircle’s express, written consent. We reserve all rights not expressly granted in these Terms, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in the Services.
If at any point you are concerned the privacy or security of your personal information and/or Content may have been compromised in the App, you agree to first email email@example.com with a description of your concerns to provide us with a reasonable opportunity to investigate, respond to, and clarify those concerns.
Content on the PhotoCircle App
You are the owner of Contributions you upload to PhotoCircle. You also grant PhotoCircle certain limited license rights to your Contributions which allow us to operate the Services. Nothing in this section (including without limitation our right to commercialize) will be construed to give PhotoCircle a right to sell personal information of Users or Users’ copyrighted material to third parties.
When you choose to use the App and/or upload Contributions to the App, you agree, represent, and warrant, without any further consent, notice and/or compensation to you or to any third parties:
To grant to PhotoCircle (to allow us to operate the App, not to sell to any third-party) a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, transferable, sublicenseable, fully paid up and royalty-free right to copy, modify, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered, your Contributions and any feedback you choose to provide to us or our agents, including without limitation any written, oral, or visual communications of any kind you choose to provide to us related to the Services (collectively, your “Feedback”).
To assume the risk of loss of any Contributions. For example, if you make a Contribution and a Moderator deletes it, we are not responsible or capable of providing you with a backup of your Media file.
That you have, and will maintain during your use of the App and/or the term of these Terms, any and all rights necessary or desirable to submit the Content to the App and PhotoCircle and grant us the foregoing license. For example, and not as a limitation, if you upload a photo to a Circle that was taken by another individual, you agree, represent, and warrant that you have obtained the consent of the photographer to upload that Content in accordance with these Terms and grant PhotoCircle the licenses granted herein.
That any Content you choose to submit is accurate, not confidential, and not in violation of any contractual restrictions, any applicable law, or other third party rights.
That, if we discover or have reason to believe that a User’s email address on our systems to be inaccurate or misappropriated, we may terminate the account associated with that email in accordance with these Terms.
That you own the information you provide PhotoCircle under these Terms, and may request its deletion from our systems at any time by deleting the Contribution from within the applicable Circle. You acknowledge and agree that deleting your personal information and/or Media from our systems cannot and does not constrain the downstream use of that information if you have (1) shared that item of information or Content with others who have not deleted and/or shared it, or (2) other members of your Circle copied, screenshot or downloaded it before you removed it. You will only upload Content and invite Members to view it when your own rights in that Content are sufficient to do so, to allow the use of that Content by other Members of the Circle, and to otherwise permit the type of private sharing our Services support.
That you will not submit or upload to PhotoCircle information relating to a child younger than 13 unless (1) you are the parent or legal guardian of that child or (2) you have obtained the verifiable consent of the parent or legal guardian of that child in accordance with the “Parental Consent” section below.
That you will protect the privacy and security of your own account, including without limitation by
keeping your password secure and confidential;
not permitting others to use your account;
refraining from using other Users’ accounts;
refraining from selling, trading, or otherwise transferring your PhotoCircle account to another party;
refraining from charging anyone for access to any portion of the App, or any information therein.
remaining responsible for anything that happens through your account unless you have previously terminated your account, or proving that your account security was compromised due to no fault of your own.
That, if you believe that you are entitled or obligated to act contrary to these Terms under any law to which you are Subject, you will provide us with detailed and substantiated explanation of your reasons in writing at least 30 days before you act contrary to these terms, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so.
If you choose to invite Permissible Minor Users into a Circle, you further agree:
That you will do so only AFTER having sought and obtained verifiable parental consent from the parent or legal guardian of the Permissible Minor User. This consent should be memorialized in writing or in another permanent form sufficient to evidence consent to a court of law (a “Parental Consent”).
You agree that, upon request, you will provide PhotoCircle with a copy of such Parental Consent.
You agree that you will remain fully responsible for actions and concerns of the Permissible Minor User(s) you invite into a Circle in connection with the Services, including without limitation:
Permissible Minor User(s) full compliance with these Terms
Obtaining the maintaining any and all permissions, notices, consents, and other matters necessary to ensure that the Content uploaded by a Permissible Minor User also complies with these Terms
Participating in any law enforcement or governmental investigation or action relating to the actions of Permissible Minor User(s) you invited and/or or the Circle they participate in
Accepting and adhering to the Indemnity obligations of these Terms with respect to these Permissible Minor Users
Submitting a Dispute
PhotoCircle responds to copyright complaints submitted under the Digital Millennium Copyright Act (“DMCA”). Section 512 of the DMCA outlines the statutory requirements necessary for formally reporting copyright infringement, as well as providing instructions on how an affected party can appeal a removal by submitting a compliant counter-notice. Such complaints must be related to alleged or actual copyright infringement, rather than trademarks, parodies, commentary, defamation and other types of claims. Keep in mind that fair use is a defense to copyright infringement, so please consider this before submitting a DMCA complaint.
Prior to submitting a formal complaint with PhotoCircle, please be aware that under 17 U.S.C. § 512(f), you may be liable for any damages, including costs and attorneys’ fees incurred by us or our Users, if you knowingly materially misrepresent that material or activity is infringing. If you are unsure whether the material you are reporting is in fact infringing, you may wish to contact an attorney before filing a notification with us. If you’re unsure whether or not you own the copyrights to a work, or if you’re infringing upon someone else’s work, please consult an attorney or another advisor. It may be helpful to remember that it is usually the photographer who owns the copyright in a photo, rather than the subject.
To submit a notice of claimed copyright infringement, please provide PhotoCircle with the following information to us at firstname.lastname@example.org:
A physical or electronic signature (typing your full name within forward slashes (“/myname/”) will suffice) of the copyright owner or a person authorized to act on their behalf;
Identification of the copyrighted work claimed to have been infringed (e.g., a link to your original work or clear description of the materials allegedly being infringed upon);
Identification of the infringing material and information reasonably sufficient to permit PhotoCircle to locate the material on our website or services;
Your contact information, including your address, telephone number, and an email address;
A statement that you have a good faith belief that the use of the material in the manner asserted is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the complaint is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Filing a DMCA complaint is the start of a predefined legal process. We’ll review your complaint for accuracy, validity, and completeness. If your complaint has satisfied these requirements, we will take action on your request - which includes forwarding a full copy of your notice (including your name, address, phone and email address) to the user(s) who posted the allegedly infringing material in question.
Please be aware that under 17 U.S.C. § 512(f), you may be liable for any damages, including costs and attorneys’ fees incurred by us or our users, if you knowingly materially misrepresent that material or activity is infringing. If you are unsure whether the material you are reporting is in fact infringing, you may wish to contact an attorney before filing a copyright complaint.
When we receive DMCA complaint, we (1) may suspend or remove the applicable Content from our systems in our reasonable discretion and (2) will provide the alleged infringer with instructions for how to submit a counter-notice, along with a copy of the complaint, including the reporter’s full name, email, street address, and any other information included in the complaint.
You may use an agent to report DMCA complaints to us if you like, provided both you and the agent are clearly identified to PhotoCircle.
Responding to a complaint against you
If you receive a copyright complaint, simply removing the material subject of that complaint does not fully resolve the complaint. You may endeavor to resolve the complaint through providing a counter-notice. A counter-notice is a request for PhotoCircle to reinstate the removed material, and it has legal consequences. Alternatively, you may be able to seek a retraction of the copyright complaint from the person or entity that submitted it.
You may file a counter-notice if you believe that this material was misidentified, or you have a good faith belief that the material should not have been removed. If you’re unsure whether or not you should file a counter-notice, you may want to consult with an attorney.
To submit a counter-notice, you will need to provide us with the following information:
A physical or electronic signature (typing your full name will suffice);
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (the description from the copyright notice will suffice);
A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which Twitter may be found, and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
To submit a counter-notice, please respond to our original email notification of the removal and include the required information in the body of your reply as we will discard all attachments for security reasons. We will promptly transmit the counter-notice to the actor who submitted the original complaint, and they will have 14 business days thereafter to sue you.
After 14 business days, we will replace the disputed Content unless the complaining party has filed suit.
Fees and Payments
If you access the Services directly through the App and elect to subscribe to PhotoCircle+, you agree to be billed in advance for a monthly subscription at PhotoCircle’s then-current subscription rates through your applicable App Store and/or Play Store account. Subscription fees are nonrefundable. A subscription is not required to use the App, but if you do not pay for a subscription you agree to receive the display of advertisements.
To cancel your PhotoCircle+ subscription, use your device’s subscription settings to turn off your subscription. Subscription fees are nonrefundable. You agree to pay for the remainder of any period in which you provide notice that you’d like to terminate or turn off your subscription that has been billed in advance.
When your subscription ends you may still use the App, but your App will include the display of advertisements.
PhotoCircle may immediately and without notice terminate these Terms with you and suspend or disable your access to the Services if PhotoCircle determines, in its sole discretion, that (a) you have breached these Terms; (b) you have violated applicable laws, regulations or third-party rights; (c) such action is needed to protect the safety or property of, or present serious harm to, other users, PhotoCircle, or third parties; and/or (d) we have reason to believe you have violated these Terms. If we intend to remove your account in accordance with this section, we will try to provide advance notice to you prior to our removal of your account, but we need not provide notice if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of PhotoCircle to provide such notice.
Provisions that, by their nature, should survive termination of these Terms shall survive any termination of your account. As an example and not a limitation, any obligation you have to pay us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us are provisions that will survive the termination of your account and/or these Terms.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Services (“Feedback”). You agree that PhotoCircle has the right, but not the obligation, to copy, store, publish, display, and use such Feedback in any manner without any obligation to provide you credit, royalty payment, or ownership interest in the changes to the Service.
You can send any Feedback you may have to email@example.com.
Disclaimer of Warranties; Disputes with Other Users
YOUR ACCESS TO AND USE OF THE SERVICES OR ANY CONTRIBUTIONS ARE AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND PHOTOCIRCLE, ITS AFFILIATES AND ITS THIRD PARTY SERVICE PROVIDERS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, RELIABILITY, MERCHANTABILITY, NON-INFRINGEMENT, SECURITY, SAFETY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM. PHOTOCIRCLE, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE PROVIDERS DO NOT REPRESENT OR WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED INFORMATION, OR THAT NO VIRUSES OR OTHER HARMFUL SOFTWARE CODE WILL BE TRANSMITTED THROUGH THE SERVICES.
PhotoCircle makes no warranties or representations regarding the Services whatsoever, and specifically disclaims all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services or any Content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services or any Content; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services; and (iv) whether the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from the PhotoCircle or through the Services, will create any warranty or representation not expressly made herein.
Because some states do not permit disclaimer of implied warranties, you may have additional consumer rights under your local laws. These terms do not disclaim warranties where such disclaimers are prohibited by applicable law.
If there is a dispute between Users of our Services, or between Users and any third party, you agree that PhotoCircle is under no obligation to become involved. In the event that you have a dispute with one or more other Users, you hereby release PhotoCircle, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.
Limitation of Liability
TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL PHOTOCIRCLE (OR ITS LICENSORS, PARTNERS, AGENTS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (C) ANY CONTENT OBTAINED FROM THE SERVICES; OR (D) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PHOTOCIRCLE, EXCEED THE LESSER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO PHOTOCIRCLE IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM. PHOTOCIRCLE SHALL HAVE NO LIABILITY FOR ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT PHOTOCIRCLE HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
THESE LIMITATIONS OF LIABILITY ARE A MANDATORY CONDITION OF OUR OFFERING FREE OR SUBSCRIPTION-BASED SERVICES TO YOU AT THEIR CURRENT PRICE.
We may, and have the right to elect to, defend Users from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the App as permitted under these Terms infringes or misappropriates a third party’s intellectual property rights (a “Claim Against User”); provided, however, that we will have no liability if a Claim Against User arises from (a) User Content or Third party products and services; (b) any modification, combination or development of the Services that is not performed by PhotoCircle; (c) any breach of these Terms. User must provide us with prompt written notice of any Claim Against User and allow us the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting our defense and settlement of such matter. This section states our sole liability with respect to, and User’s exclusive remedy against PhotoCircle and its officers, agents, employees, and representatives (collectively, “PhotoCircle Parties”) for any Claim Against User.
Users’ Indemnification of PhotoCircle
User will defend PhotoCircle Parties from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to User’s or any of its Permissible Minor Users’ use of the Services or violation of these Terms (a “Claim Against Us”), and will indemnify the PhotoCircle Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a PhotoCircle Party in connection with or as a result of, and for amounts paid by a PhotoCircle Party under a settlement User approves of in connection with, a Claim Against Us. We must provide User with prompt written notice of any Claim Against Us and allow User the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting User’s defense and settlement of such matter. This section states your sole liability with respect to, and the PhotoCircle Parties’ exclusive remedy against User for, any Claim Against Us.
Limitations on Indemnifications
Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
Notices. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by PhotoCircle (a) via email (in each case to the address that you provide in connection with your Account) or (b) by posting to the Site, App, or other PhotoCircle Service. You agree to provide notice to PhotoCircle under these Terms by emailing firstname.lastname@example.org
No Waiver. The failure of PhotoCircle to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.
Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without PhotoCircle’s prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and of no effect. PhotoCircle may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
Severability. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Entire Agreement. These Terms constitute the entire agreement between you and PhotoCircle regarding your use of PhotoCircle’s Services, and supersede all prior written or oral agreements. Additional terms may apply to certain products or Services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
Contact Us. If you have questions about these Terms, or about our use of your information, please contact us at email@example.com.
1968 S. Coast Hwy #2844
Laguna Beach CA 92651
Modification. PhotoCircle reserves the right, at its sole discretion, to modify these Terms at any time and without prior notice. If we materially modify these Terms, as determined by PhotoCircle in its sole discretion, we will either post a notification of the modification on our website or otherwise provide you with notice of the change. The date of the last modification will also be posted at the beginning of these Terms. It is your responsibility to check from time to time for updates. By continuing to access or use the Service, you are indicating that you agree to be bound by any modified Terms.
DISPUTE RESOLUTION AND BINDING ARBITRATION
Applicable Law. This Arbitration Agreement is incorporated into and forms a part of these Terms, and is governed by the Federal Arbitration Act, (9 U.S.C. § 1, et seq.; hereafter the “FAA” or “Act”) and governs all aspects of your relationship with PhotoCircle. This agreement reflects a transaction involving commerce within the meaning of the Act. The Act and cases interpreting the Act will govern the interpretation and enforcement of this Dispute Resolution and Binding Arbitration Agreement.
Scope of this Arbitration Agreement. You understand and agree that you and PhotoCircle will arbitrate any past, present and future disputes controversies or claims (“Dispute”) relating to PhotoCircle, your engagement with, access to or use of PhotoCircle’s App and/or use of a PhotoCircle+ Subscription, your use of any other services provided by PhotoCircle, any advertising or marketing communications regarding PhotoCircle or any Service Provider, any products or services sold or distributed through PhotoCircle or to any aspect of your relationship or transactions with PhotoCircle as a User of our Services or that you may otherwise have against (i) PhotoCircle; (ii) PhotoCircle’s officers, directors, employees or agents; (iii) PhotoCircle’s parent, subsidiary and affiliated companies or entities (and any of their officers, directors, employees or agents); and/or (5) all successors and assigns of any of these persons or entities.
Types of Disputes Subject to this Agreement. The types of Disputes that are covered by this agreement include, but are not limited to, contract claims, tort claims, claims against PhotoCircle in any way related to residential cleaning services or use of PhotoCircle’s platform; claims related to your registration for an account to use PhotoCircle’s technology or Platform or any background check-related claims, claims related to the payment any Service Provider receives from you or is entitled to receive from you pursuant to your hiring of a Service Provider for cleaning services, and claims for violation of any federal, state, or local government law, statute, regulation, or ordinance, except if those claims not arbitrable as a matter of applicable law not preempted by the Federal Arbitration Act. will be resolved by binding arbitration, rather than in court. Except for those limitations set forth below, this Arbitration Agreement shall otherwise apply, without limitation, to all Disputes between you and PhotoCircle, including any Disputes that arose or were asserted before the Effective Date of this Agreement.
When Arbitration Does Not Apply. To the extent that any claim is not arbitrable as a matter of applicable law and not otherwise preempted by the Federal Arbitration Act, this arbitration agreement does not apply. Nothing in this Arbitration Policy prevents, or is intended to prevent, the investigation by a federal or state governmental agency of any report, claim or charge related to PhotoCircle or your use of its service that otherwise would be required to be arbitrated under this agreement. This arbitration agreement does not prevent federal or state administrative agencies from adjudicating claims and awarding remedies based on those claims, even if this arbitration agreement or other terms of service would otherwise cover the claims. Nothing in this Arbitration Policy prevents or excuses a party from satisfying any required conditions precedent and/or exhausting any required administrative remedies under applicable law before bringing a claim in arbitration which is related to a Dispute relating to PhotoCircle or your use of the service.
Concurrent Governmental or Administrative Jurisdiction. Nothing in this Arbitration Agreement prevents, or is intended to prevent, the investigation by a federal or state governmental agency of any report, claim or charge related to PhotoCircle or your use of its platform that otherwise would be required to be arbitrated under this agreement. This arbitration agreement does not prevent federal or state administrative agencies from adjudicating claims and awarding remedies based on those claims, even if this arbitration agreement or other terms of service would otherwise cover the claims; provided, however, that if you and PhotoCircle have completed the arbitration process contemplated by this agreement prior to the date upon which a federal or state administrative agency commences its adjudicative process, the decision of the arbitrator may be submitted by PhotoCircle to the administrative agency as evidence that the Dispute giving rise to the investigation or adjudication has been successfully resolved by and between the parties themselves and that the agency should therefore give deference to that arbitration decision.
Conditions Precedent Not Excused. Nothing in this Arbitration Agreement prevents or excuses a party from satisfying any required conditions precedent and/or exhausting any required administrative remedies under applicable law before bringing a claim in arbitration which is related to a Dispute or which relates to PhotoCircle, a Service Client, or your use of the platform.
Exception for Small Claims and Intellectual Property Disputes. You and PhotoCircle also each retain the right to bring an action in small claims court so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; or to seek injunctive or other equitable relief on an individual basis in a federal or state court located in the county in which you resided at the time the events giving rise to the Dispute occurred, including with respect to any dispute, claim or controversy related to the actual or threatened infringement, misappropriation or violation of a party’s intellectual property or proprietary rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
Attempt to Informally Resolve Disputes Required. You and PhotoCircle agree that good-faith informal efforts to resolve disputes often result in a prompt, low-cost and mutually beneficial outcome. To expedite resolution and reduce the cost of any Dispute, before proceeding with arbitration or any matter which is not required to be arbitrated under the terms of this Agreement you and PhotoCircle agree to first attempt in good faith to resolve any Dispute (except those Disputes expressly excluded below) informally through negotiation for at least ninety (90) days before initiating any arbitration or court proceeding.
How We Will Conduct Informal Negotiations: You agree that we will personally meet and confer, via telephone or videoconference, to undertake a good-faith effort to resolve informally any Dispute covered by this mutual Arbitration Agreement. If you are represented by an attorney, your attorney may participate in the conference, but you must still also fully participate in the conference.
Notice Required to Start Informal Negotiations: If one of us wishes to seek resolution of a Dispute related to any aspect of your relationship with PhotoCircle must give notice to the other party in writing of its, his, or her desire for an informal dispute resolution conference. To notify PhotoCircle that you intend to initiate an informal dispute resolution conference, you must send written notice to PhotoCircle by mail or facsimile transmission at the address and phone numbers provided in the Notice section of these terms of service or email the request for informal dispute resolution to firstname.lastname@example.org. The notice must provide your name, telephone number associated with your PhotoCircle account (if any), the email address associated with your PhotoCircle account, and a description of the Dispute.
Timing: The informal conference required by this section will occur within 60 days after the other party receives notice of a desire to conduct a conference, unless you and PhotoCircle mutually agree to an extension of time. In the interval between the sending of notice and the date of the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration or any court proceeding relating to a Dispute. While the informal dispute resolution process takes place, any statute of limitations and any filing deadlines which govern the Dispute shall be tolled until you and PhotoCircle agree to (or, alternatively, PhotoCircle notifies you in writing of its intent to), conclude the informal negotiation process. If the informal dispute resolution process does not fully and finally resolve the Dispute within ninety (90) days of the date upon which one party notifies the other of a desire to engage in informal dispute resolution, the parties can agree to continue the informal dispute resolution process or, if they do not reach agreement to do so, conclude the informal dispute resolution process.
The Arbitration Process. You and PhotoCircle agree that the following will apply if the informal dispute conference does not end with a full and final resolution of any Dispute governed by this arbitration agreement that is not otherwise exempted from arbitration by the terms of this agreement.
Notice of Intent to Arbitrate: Before you may begin an arbitration proceeding, you must send notice of an intent to initiate arbitration to PhotoCircle. The notice must be in writing and include a certification by you that the pre-filing informal dispute resolution process has been completed. If notice of arbitration is being sent to PhotoCircle, it must be sent by email to the attorney who represented PhotoCircle in the informal dispute resolution process with you. If PhotoCircle did not have an attorney during the informal dispute process, then this notice must be sent by mail to the Notice address provided in PhotoCircle’s terms of service. The notice required by this section must include (1) the name, telephone number, mailing address, and e-mail address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (4) the signature of the party seeking arbitration.
Initiation of Arbitration: The arbitration will be conducted by an arbitrator affiliated with Judicial Arbitration and Mediation Services (“JAMS”) under its rules and pursuant to the terms of this Agreement. A demand for JAMS arbitration demand must be submitted to JAMS in writing and served upon PhotoCircle by sending it to the attorney who represented PhotoCircle in the informal dispute resolution process with you. If PhotoCircle did not have an attorney during the informal dispute process, then this notice must be sent by mail to the Notice address provided in PhotoCircle’s terms of service.
Time Limits for Commencing Arbitration: Any party to this Arbitration Agreement asserting that a Dispute or other type of claim exists by and between you and any PhotoCircle Party must give written notice of the dispute and/or claim to the other party not later than the expiration of the statute of limitations that the law prescribes for resolution of the type of Dispute at issue between the parties; provided, however, that the statute of limitations shall be tolled during the time that the parties are engaged in the informal dispute resolution process set forth above. Filing a government complaint will not extend the statute of limitations for commencing arbitration except to the extent required by applicable law not preempted by the Federal Arbitration Act. The parties acknowledge that they are encouraged to give written notice of any Dispute as soon as possible after the event or events in dispute so that arbitration of any disputes may take place promptly. The Arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration.
Selection of the Arbitrator: The arbitrator will be selected utilizing the rules for appointment in effect at JAMS at the time arbitration is initiated. You and PhotoCircle will each have those rights to participate in the selection of a neutral arbitrator provided for by JAMS’s rules. If no arbitrator is available through JAMS to arbitrate, the parties will then proceed with arbitration through either JAMS or another alternative arbitral forum.
Rules to be Used in Arbitration: The arbitration will be commenced and conducted under JAMS’ Comprehensive Arbitration Rules & Procedures (“JAMS Rules”). You may review these rules at JAMS website (https://www.jamsadr.com/rules-comprehensive-arbitration/#Rule-7). In the event that an alternative arbitral forum is required to be chosen for any reason, the arbitration rules used by that alternative forum for the type of Dispute at issue shall apply to the arbitration.
Costs of Arbitration: Your duty to pay arbitration fees and your share of arbitrator compensation will be governed by the JAMS Rules (and, where appropriate, limited by JAMS Rules) governing the particular type of dispute. All disputes regarding the payment of arbitrator or arbitration-organization fees, including the timing of such payments and remedies for nonpayment, shall be determined exclusively by the arbitrator, and not by any court.
Location for Arbitration: The arbitration may be conducted through the submission of documents, by phone or remotely online or by videoconference or, if the arbitrator so orders, in person. In the event that the arbitrator orders that the arbitration take place in person, the arbitration will take place in the county (or comparable governmental unit) in which you last received services from a Service Provider. No Dispute subject to this arbitration agreement will be subject to in-person arbitration in any other venue or forum absent agreement between you and PhotoCircle.
Powers and Duties of the Arbitrator. Only the arbitrator, and not any federal, state, or local court or agency, shall have the authority to resolve any Dispute. This power and authority includes the authority to resolve all matters relating to the interpretation, applicability, validity, breach, enforceability, or formation of this arbitration agreement, including without limitation any claim that all or part of this arbitration agreement is void or voidable. The arbitrator shall have exclusive authority to resolve all threshold arbitrability questions relating to a Dispute.
Procedural Decisions During Arbitration: The arbitrator shall have the sole authority to rule upon requests for discovery or make procedural rulings as provided for under JAMS rules, and to consider and rule upon motions brought by either party which are dispositive of all or part of any Dispute. The arbitrator will have the authority to award, on an individual basis, compensatory monetary damages and any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and PhotoCircle’s terms of service. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have; provided, however, that the arbitrator shall have no power to award punitive or exemplary damages except where permitted by statute, and you and PhotoCircle waive any right to recover punitive and/or exemplary damages.
Statement of Decision: Upon the conclusion of the arbitration process, the arbitrator will issue a decision about the Dispute in writing but need not provide a statement of the reasons for the decision unless you or PhotoCircle request one. If requested, the arbitrator will include in his or her statement of decision the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator’s decision is final and binding on you and PhotoCircle.
Non-Precedential Nature of Award: The arbitrator’s award shall be binding only among the parties to the arbitration. The award shall have no preclusive effect in any other arbitration or other proceeding involving a different party and may not be used by any party to the arbitration as evidence in any subsequent or different arbitration or in any court proceeding other than one arising from or relating to the Dispute which resulted in the arbitration award.
Mutual Assent to Court Proceedings in Furtherance of Arbitration: By accepting this arbitration agreement, you and PhotoCircle mutually consent to the personal and subject matter jurisdiction of the federal and state courts located in the county (or comparable governmental unit) in which the address you last received services from a Service Provider is located. By accepting this arbitration agreement, you and PhotoCircle mutually consent to the jurisdiction of the federal and state courts solely for the purposes of (a) compelling arbitration pursuant to the terms of this agreement; (b) staying any pending court proceeding pending arbitration; or (c) to confirm, modify, vacate and/or enter judgment on any award made by the arbitrator.
Waiver of Court or Jury Trial: BY AGREEING TO ARBITRATE, YOU AND THE COMPANY ARE EACH GIVING UP ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND TO HAVE ANY DISPUTE HEARD THERE BY A JUDGE OR JURY. You and PhotoCircle are instead electing to have any and all of your claims and disputes against each other resolved by arbitration, except as expressly specified in these terms of service. You and PhotoCircle are making this election knowing that there is no judge or jury in arbitration proceedings, and that court review of an arbitration award is limited.
Waiver of Right to Participate in Third-Party, Class or Consolidated Actions: IF YOU AGREE TO ARBITRATION WITH PHOTOCIRCLE, YOU ARE AGREEING IN ADVANCE THAT NEITHER YOU NOR PHOTOCIRCLE WILL PARTICIPATE IN, OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN, ANY CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. YOU AND PHOTOCIRCLE AGREE TO WAIVE ANY RIGHT TO RESOLVE ANY DISPUTE, CONTROVERSY OR CLAIM WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS.
If Waiver Deemed Unenforceable: If for any reason this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular Dispute, neither you nor PhotoCircle is entitled to arbitration of such Dispute. Instead, all such Disputes will then be resolved in a court of law unless you and PhotoCircle agree to resolve the Dispute in another fashion.
Class Action Settlement: This waiver of class or consolidated action does not prevent PhotoCircle or you from entering into, or participating in, a class-wide settlement of claims.
Third-Party Cases: Cases may be filed against PhotoCircle that attempt to assert individual or class-action claims against the company. BY ACCEPTING PHOTOCIRCLE’S TERMS OF SERVICE, YOU AGREE NOT TO PARTICIPATE IN SUCH CASES AS A PARTY, EXCEPT AS IT RELATES TO A CLASS-WIDE SETTLEMENT OF CLAIMS.
Batch Arbitrations. If within any 30-day period 100 or more similar arbitration demands against PhotoCircle are submitted to an arbitration provider selected in accordance with PhotoCircle’s Dispute Resolution and Binding Arbitration party and presented by, or with the assistance, of the same law firm or organization, the arbitration provider shall (i) group the arbitration demands into batches of no more than 100 demands per batch (or, to the extent there are less than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); and (ii) provide for resolution of each batch as a single arbitration with one set of filing and administrative fees and one arbitrator assigned per batch. You agree to cooperate in good faith with PhotoCircle and the arbitration provider to implement such a batch approach to resolution and arbitration fees. Except as provided for here, YOU AND PHOTOCIRCLE AGREE THAT ALL DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND MAY NOT BE ARBITRATED ON A CLASS OR COLLECTIVE BASIS EXCEPT AS SET FORTH IN THIS AGREEMENT. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER EXCEPT AS SET FORTH IN THIS AGREEMENT.
- Opting Out for Existing Customers: If you are an ongoing customer of PhotoCircle, and you receive notice from the company of a change to these “Dispute Resolution and Binding Arbitration” terms of service, you may also opt out of the new version of the arbitration agreement by following the procedures set forth above for opting out if you were a new user. However, as an ongoing customer, your choice to opt out of any new version of the “Dispute Resolution and Binding Arbitration” terms of service has no effect on any previous, other, or future arbitration agreements that you may have with us. If you accepted a previous version of these Terms that included an arbitration agreement and did not timely opt out of the arbitration agreement reflected in that previous version, you remain bound by the last arbitration agreement you agreed to. Upon receipt of a valid opt-out notice from you, PhotoCircle will provide you with a copy of the arbitration agreement from the last version of PhotoCircle’s terms of service that you accepted.
Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if PhotoCircle makes any future material change to this Arbitration Agreement, the modification will not apply to any Dispute for which you had already given notice of the claim to PhotoCircle prior to the effective date of the change.
Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be kept strictly confidential for the benefit of all parties except to the degree that disclosure of the existence of an arbitration and subsequent arbitration award is necessary for you or PhotoCircle to seek vacation, modification, confirmation and/or enforcement of the award in court.
Severability. If a court or the arbitrator decides that any term of this Arbitration Agreement (other than the subsection above titled “Waiver of Right to Participate in Class or Consolidated Actions”) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Dispute Resolution by Binding Arbitration provision will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions in the subsection above titled “Waiver of Right to Participate in Third-Party, Class or Consolidated Actions” are invalid or unenforceable, the remaining portions of this agreement to Dispute Resolution by Binding Arbitration shall remain valid.
Survival of this Agreement. This Arbitration Agreement will survive the termination of your relationship with PhotoCircle and shall continue to govern the handling of all Disputes after such termination, unless and until a new agreement between you and PhotoCircle expressly terminates the arbitration agreement.
Attn: Arbitration Opt-out
1968 S. Coast Hwy #2844
Laguna Beach CA 92651