Terms of Use

These Terms of Use (the “Terms”) are a binding contract between you and Circle38, Inc., a California corporation, doing business as PhotoCircle (“PhotoCircle”, “we”, “us”, and/or “our”). These Terms set forth the terms and conditions regarding your access to and use of the PhotoCircle website at photocircleapp.com (the “Site”), the iOS and/or Android PhotoCircle App (the “App”) and any other services offered as part of the PhotoCircle platform (collectively with the Site and App, the “Services”).

These Terms are updated and effective as of August 4, 2022

We refer to you (our App Users and Site visitors) collectively in these Terms using “you” and/or “your.” These Terms govern your use of the Services. You must be 18 years of age to use the Services unless you have the parental consent required by these Terms (see below). No one 13 years of age or younger may use the App under any circumstances.

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.

PLEASE NOTE THAT, EXCEPT AS PROVIDED BELOW, THESE TERMS REQUIRE RESOLUTION OF DISPUTES THROUGH USE OF AN ARBITRATION SERVICE. YOU HEREBY AGREE THAT ALL DISPUTES ARISING FROM, RELATED TO, OR IN CONNECTION WITH YOUR USE OF THE SERVICES WILL BE RESOLVED IN ACCORDANCE WITH THE ARBITRATION AND GOVERNING LAW PROVISIONS SET FORTH BELOW. YOU HAVE THIRTY (30) DAYS FOLLOWING THE LATER OF YOUR INITIAL ACCEPTANCE OF THESE TERMS OR YOUR FIRST USE OF OUR SERVICE TO OPT-OUT OF OUR ARBITRATION REQUIREMENT.

Key Definitions

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.

“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 uploaded 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 both Media 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, and (iii) create and delete their Circles.

A “Contributor” is a Member of a Circle who can (i) view, add and delete their own Contributions, and (ii) invite other users to join a Circle of which they are a Member.

A “Viewer” is a Member of a Circle who can only view others’ Contributions to that Circle.

Users can, but are not required to use “SSO” - single sign-on authentication frameworks, such as those offered by Google or Facebook, 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, you consent to PhotoCircle using it to authenticate you

“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.

Privacy Policy

PhotoCircle’s Privacy Policy (as updated from time to time) explains our data handling, privacy, and security practices in language we hope will be widely accessible, and all references in these Terms to the “Privacy Policy” refer to the latest version of this document. However, these Terms alone set forth your legal obligations with respect to your access to our Services and constitute your contract with PhotoCircle. In the event of a conflict between the interpretation of our Privacy Policy and these Terms, these Terms will control. You agree that you understand and accept the activities described in our Privacy Policy or any subsequent privacy and data handling practices when you use the App.

Eligibility for the Services

Any person over 18 may use the Services for their own personal, noncommercial purposes in accordance with these Terms and the Acceptable Use Guidelines below, provided they accept and agree to these Terms.

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.

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 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 below.

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. 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 in these Terms.

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 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:

  • terminate their account, provided we may take a reasonable time to remove your personal information from our systems after receiving notice that you wish to terminate;
  • leave any Circle they previously joined as 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 all 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 support@photocircleapp.com with a description of your concerns to provide us with a reasonable opportunity to investigate, respond to, and clarify those concerns. You and PhotoCircle agree to attempt informal dispute resolution, as detailed in these Terms, before you make any public filing or accusation of wrongdoing related to such dispute.

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 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, 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, the 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.
  • That you consent to the use and handling of any Content by the Services as described in our then-current Privacy Policy.
  • 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, and to permit the type of private sharing our Services support.
  • That, if you are a free User, we can direct advertisements to your device as described in our Privacy Policy, provided you have not chosen to opt-out as explained in our Privacy Policy.
  • 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 variable 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.

Parental Consent

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 the Circle they participate in
    • Accepting and adhering to the Indemnity obligations of these Terms with respect to these Permissible Minor Users

Copyright Disputes

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 support@photocircleapp.com:

  1. 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;
  2. 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);
  3. Identification of the infringing material and information reasonably sufficient to permit PhotoCircle to locate the material on our website or services;
  4. Your contact information, including your address, telephone number, and an email address;
  5. 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
  6. 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:

  1. A physical or electronic signature (typing your full name will suffice);
  2. 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);
  3. 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
  4. 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.

Termination

To cancel your 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 as a result of your changes to the applicable platform subscription settings, we delete your account, any Contributions you have made to any Circle, and any Circles for which you are the Moderator (including the Contributions therein or all Members of that Circle).

Certain anonymous or anonymized information relating to your past access to the Services will be retained by PhotoCircle after termination of your account, provided that any such records will be de-identified and your personal information will not be present in those records. Please refer to our Privacy Policy for more information about account removal.

PhotoCircle may immediately and without notice terminate these Terms with you and disable your access to the Services if PhotoCircle determines, in its sole discretion, that (a) you have materially 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.

Acceptable Use Guidelines

You agree that you understand, and your use of the Services will at all times adhere to, the following restrictions and obligations:

  1. You will upload Contributions to the Services only where you own those Contributions (or have permission to use them in connection with the Services and in accordance with these Terms and our Privacy Policy).
  2. You will not upload any Contributions that are private, sensitive, or introduce a security risk to yourself, such as using your phone number as your display name. You are responsible for taking reasonable measures to protect your own privacy and security when using the Services.
  3. You may only use the Services for personal, non-commercial use (except for Enterprise License users, who may use in accordance with the applicable Enterprise License Agreement). You may not transfer your access to others, or allow others to access the Services through your own access without PhotoCircle’s prior, express written permission. You may not create a user profile for anything other than a natural, human person. If you wish to use an account for commercial purposes, please contact PhotoCircle at support@photocircleapp.com to learn more about our enterprise options.
  4. You may only use the Services for lawful activity. It is your responsibility to comply with all applicable local, state, and federal laws and regulations. We may, in our sole discretion, cooperate in law enforcement investigations relating to your Contributions and use of the Services.
  5. You may not interfere with or damage the Services, and may not take any action in connection with the Services which presents a risk of interference with or damage to the Services, including, without limitation, through the use of viruses, bots, harmful code, denial-of-Services attacks, ransomware, keystroke loggers, backdoors, packet or IP address spoofing, forged routing, or any similar methods or technology that may exist now or come to exist in the future.
  6. Except as specifically enabled by the standard functionality of the App, you may not copy, rip, or capture any content encountered on the Service.
  7. You may not use the Services to reverse engineer, recreate, duplicate, mimic, and/or otherwise recreate all or any part of the Services. You may not use manual or automated software, devices, scripts, robots, other means or processes to access, “scrape,” “crawl”, “spider” or use an automated mechanism such as a bot to interact in any way with any portion of the Services. From the time you accept these Terms, you agree not to attempt to compete with the Services or use the Services in any way as a part of competing with PhotoCircle. If you are an owner, operator, or employee of a business whose products and services can be deemed to compete with PhotoCircle, you may not install or use the App in any manner whatsoever.
  8. You may not use the Services to upload, transmit, or promote any Contributions or related material that infringes or violates the intellectual property rights, privacy rights, and/or any other rights of anyone else (including PhotoCircle). For example, and not as a limitation, this means that if you upload photos that portray illegal content, photos that you don’t have permission to upload, or abusive comments, you have violated these Terms.
  9. You may not use the Services to upload, transmit, or promote any Contributions or related material that is inappropriate, inaccurate, objectionable, and/or abusive using the Services, nor use the Services to harass, abuse or harm another person in any way, including without limitation, to market goods and services to them, “Spam” them, and/or populate marketing lists.
  10. You may not rent, lease, loan, trade, sell/re-sell access to PhotoCircle’s Services or any information therein, or the equivalent, in whole or part;
  11. You may not imply or state, directly or indirectly, that you are affiliated with or endorsed by us unless you have entered into a separate written agreement with us that expressly permits such statements;
  12. You may only use SSO to sign onto the Service if you have the necessary rights and permissions from the SSO provider.
  13. You may not take any action which attempts to override the privacy and security features of the Services in any manner.
  14. You may not take any action which attempts to or actually does interrupt, disrupt, or delay the Services in any manner.

Conditioned upon your compliance with these Terms, PhotoCircle grants you a limited, non- exclusive, non-transferable license, to (i) access, view, and use the Services solely for your personal use and (ii) access and view any Contributions to which you are permitted access. You have no right to sublicense the license rights granted in this section. You may not and will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, transmit, broadcast or otherwise exploit Services, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by PhotoCircle or its licensors, except for the licenses and rights expressly granted in these Terms.

Further, you acknowledge that the Services, including all associated intellectual property rights, are the exclusive property of PhotoCircle and its licensors.

Feedback

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 support@photocircleapp.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.

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.

Indemnity

PhotoCircle Indemnity

We will defend Users from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Services as permitted under these Terms infringes or misappropriates a third party’s intellectual property rights (a “Claim Against User”), and will indemnify User for all reasonable attorney’s fees incurred and damages and other costs finally awarded against User in connection with or as a result of, and for amounts paid by User under a settlement we approve of in connection with, 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; and (b) any modification, combination or development of the Services that is not performed by PhotoCircle. 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’ 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.

General

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) or (b) by posting to the Site, App, or other PhotoCircle Service.

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.

Arbitration. These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled by arbitration on an individual basis in San Francisco, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Service, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in San Francisco, California.

If you do not agree to the terms of this Arbitration Provision, you may opt-out of Arbitration within thirty (30) days of signing this Agreement by notifying PhotoCircle in writing of your intention to opt-out of the Arbitration Provision. This notice must contain (1) your first and last name, (2) your Display Name, (3)the email you used to sign up for the Services, (4) the effective date of your notice, and (5) a clear statement of your intention to opt out, such as “I wish to opt-out of the Arbitration provision in the PhotoCircle Terms of Service.” Your opt-out request must be sent either via email from an account carrying the same name and email address as the account subject of the opt-out request to support@photocircleapp.com OR by postal mail to:

Attn: Arbitration Opt-out
Circle 38, Inc.

1968 S. Coast Hwy #2844
Laguna Beach CA 92651

YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND PHOTOCIRCLE ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY.

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 support@photocircleapp.com.

Or

Circle 38, Inc.
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.