Last Updated: May 24, 2018
Shoot & Share Inc dba PASS (“PASS”) is a digital photo delivery mechanism and by using PASS to share photos you are agreeing that you own ALL REQUIRED LEGAL rights to the images you upload and are allowing others the right to download, share, print and create other products using the images that you have uploaded for THEIR personal and non-commercial use.
Please read these terms of service (these "Terms") carefully as they form a contract between you and Shoot & Share Inc dba PASS ("PASS", “PASS”, "we", "us", or "our") that governs your access and use of: (i) the hosted solution provided by PASS (the "Product") for online storage, sharing and processing of files, materials, data, text, audio, video, images or other content (collectively, "Content"); (ii) the PASS desktop application, mobile application, gallery desktop application and mobile applications and any other software provided or made available by PASS (the "Software"); (iii) passgallery.com and shootandshare.com (collectively the "Site"); and (iv) any written or electronic documentation provided or made available by PASS (the "Documentation") (collectively, the Product, the Software, any Content provided by PASS, and the Documentation are referred to herein as the "Services").
By using any of the Services you agree to be bound by these Terms. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and representing to PASS that you have the authority to bind that organization to these Terms (in which event, "you" and "your" will refer to that organization) unless that organization has a separate paid contract in effect with us, in which event the terms of that contract will govern your use of the Services. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICES. Should you have any questions concerning this Agreement, please contact email@example.com. Please note that, as more fully set forth below, PASS doesn't provide warranties for the Services, and this contract also limits our liability to you.
CHANGES TO THESE TERMS - We reserve the right to modify or replace these Terms at any time in our sole discretion. We will indicate at the top of these Terms the date these Terms were last updated. Any changes will be effective upon posting the revised version of these Terms on the Site (or such later effective date as may be indicated at the top of the revised Terms). Therefore, we encourage you to check the date of these Terms whenever you visit the Site to see if these Terms have been updated. Your continued access or use of any portion of the Services after the effective date of any changes means you accept and agree to the changes.
ACCESS TO THE SERVICES - You may use the Services, on a non-exclusive basis, solely in strict compliance with these Terms and all applicable laws, and only if you have the power to form a contract with PASS and are not barred under any applicable laws from doing so.
PHOTO UPLOADS – To properly use the Services, all photographs uploaded by Photographer must be free of watermarks, borders or photographer placed mark-ups, and a minimum of 4000 pixels on the long edge and 2666 pixels on the short edge. Photographs that include watermarks, borders or photographer placed mark-ups, or that are less than this minimum number of pixels may not be properly displayed on the Site or properly developed into photography products. Photographer takes full risk of loss and indemnifies and protects PASS from any claims arising from a violation of this standard as well as any and all matters involving the quality of photographs taken as further set forth below. Photographer is solely responsible for ensuring that all of Photographer’s images have sufficient resolution and have the correct settings to be developed into photography products. PASS and its print vendors are not responsible for any cost or losses resulting from incorrect resolution or other settings of the images.
USER CONTENT - Except for Content we provide, we don't claim ownership of any Content that is transmitted, stored, accessed, or processed in your account(s). We also don't control, verify, or endorse any Content that you and others make available on the Services. Content uploaded, expressed or submitted to the Services, other than any Content provided by PASS, is solely the responsibility of the person or entity submitting it and does not necessarily reflect the opinion of PASS. We are not responsible, or liable to you or any third party, for the content or accuracy of any Content posted by you or any other user of the Services. We provide functions that allow you to control who may access your Content. If you enable the features that allow you to share your Content with others, anyone you've shared content with (including the general public, in certain circumstances) may have access to your Content and may distribute it to others without your consent. You hereby grant PASS and its employees and contractors the right, to use, modify, adapt, reproduce, distribute, display and disclose Content you post on the Services solely to the extent necessary to provide the Services or as otherwise permitted by these Terms. You represent and warrant that you have all the rights in your Content necessary for you to use the Services and to grant the rights in this Section. You will: (a) be solely responsible for the nature, quality and accuracy of your Content; (b) must ensure that your Content (including the storage or transmission thereof) complies with these Terms and any and all applicable laws, and regulations; (c) promptly handle and resolve any notices and claims relating to your Content, including any notices sent to you or to PASS by any person claiming that any of your Content violates any person's rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (d) maintain appropriate security, protection and backup copies of your Content. PASS will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any of your Content. You must immediately notify PASS in writing of any unauthorized use of (e) any of your Content, (f) any account, or (g) the Services that comes to your attention. In the event of any such unauthorized use by any third party that obtained access through you, you will take all steps necessary to terminate such unauthorized use. You will provide PASS with such cooperation and assistance related to any such unauthorized use as PASS may reasonably request.
LIMITS OF SERVICE - We reserve the right to withdraw or amend the Services, or any portion thereof, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. From time to time, we may restrict access to some or all Services to users. Disk space and bandwidth are not unlimited (see
AGE REQUIREMENTS - You must be at least 13 to use the Services.
DOMAIN NAMES - PASS reserves the right to revoke, deactivate, change or require you to change a Vanity URL for any reason, including but not limited to inappropriate URL names that do not represent who you are or the content of your galleries, a name that is the currently published business name and/or intellectual property right of another party, or any URL name that includes profanity or terms that could be interpreted to be derogatory in nature to a specific person or people group. PASS may exercise such right at any time, with or without prior notice.
TERMS OF PAYMENT FOR SERVICES - The Services are paid per month or per year subject to the current pricing available on the PASS pricing page. The price stated for the Services excludes all taxes and charges, unless specifically stated otherwise. You are responsible for any state or local taxes levied on software purchases. If payment is not received by PASS on the due date, your account will be frozen, inaccessible, and all shared links will be turned off until all outstanding payments have been processed by PASS. You retain the responsibility for settling all outstanding balances in a timely manner and maintaining updated billing information. If your account is past due for 90 days, your account will be deactivated and all files will no longer be retrievable. Except as specifically set forth in these Terms, all Services are prepaid one-month or one-year periods and are non-refundable. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorneys' fees and other legal fees and costs. We may suspend or cancel your access to the Services if you fail to pay in full on time.
PHOTO PRICE SETTING BY PHOTOGRAPHER – PASS may allow photographer users to set the pricing of certain products that are produced from the Photographer’s photos and sold on the Site (“Photographer Set Pricing”). In the event that Photographer Set Pricing is allowed, Photographer may earn credits as further agreed upon by PASS. If any products (digital, physical or otherwise) are offered through your gallery, you agree to the following PASS terms of sale and return/exchange policy: In the event of a photography product or products being returned due to Photographer’s noncompliance with these Terms, Photographer shall pay the cost of the product(s), the appropriate PASS transaction fee and all credit card processing fees associated with the product(s) or order at a rate of 2.9% per order total, plus $0.30 per transaction. This rate may change over time based on your plan and other variable factors. You are fully responsible for dealing with any customer disputes, cancellations/refunds and exchanges of orders relating to your non-compliance with these Terms.
PHOTOGRAPHER CREDITS - PASS may offer photographer users the ability to earn credits when products using the photographer's photos are sold on the Site. The number of credits to be earned shall be based upon the difference between the price paid by customers for certain products and the cost of those products, including any applicable fees associated with the order of those products (such as, but not limited to, shipping, handling, and credit card processing). The number of credits earned for product sales will be subject to change at any time. You may only earn credits via PASS's authorized product sale mechanisms. Once earned, credits can be redeemed for Services or, in limited circumstances, can be redeemed for cash. You understand that credits are not transferable, may not be auctioned, bartered or sold, may not be pooled with other users, and subject to the limitations set forth below, expire 5 years after issuance. PASS reserves the right to void credits earned if we suspect that the credits were earned in a fraudulent manner, in a manner that violates these Terms, or in a manner otherwise not intended by PASS. Additionally, if a product is not paid for by a customer or there is a return or refund of payment made by a customer due to a Photographer’s noncompliance with these Terms, including but not limited to Terms regarding uploading standards, credits earned may be voided. Any credits in your account will be automatically applied by PASS (redeemed to cover) any required payments for Services as they become due. You will also have the option to redeem your credits fin lieu of payment for new Services. If you owe PASS an amount exceeding your credits, we may charge or debit a payment instrument registered with your account to cover the amount owed. Your failure to pay fully any amounts owed to PASS on demand will be a violation of these Terms, and you will be liable not only for the amount collected but also for PASS's costs associated with collection, including without limitation attorney fees, court costs, collection agency fees, and any applicable interest. We will alternatively redeem your credits for cash according to the following rules: PASS will redeem your credits for cash (via electronic payment or check) only upon your request for a cash redemption, which may take up to thirty (30) days for us to process. We can redeem your credits for cash only if we have your current mailing address and any other information we need to make the redemption on record, including, if required, identification and tax and business formation documentation, such as a Form W-9. Credits will be redeemed only in United States Dollars whether being paid in cash or used in lieu of payments on your account. No cash redemption for accumulated credits will be made if it would be less than Fifty United States Dollars ($50.00), unless your account is being deactivated or deleted. We may delay payout related to any investigation we are conducting regarding the appropriateness of credits issued or any other matter, but in no case longer than 180 days after the transaction. Credits can only be redeemed for cash within one (1) year from their date of issuance. We may deduct from payout any amounts for which you are past due to PASS on any payment in connection with any PASS Service. You are responsible for any tax liabilities arising from any redemption of cash made to you by PASS. You must provide written notification of any disputed redemption of cash within 30 days of receipt of the associated redemption. Failure to do so constitutes a waiver by you of any claim relating to the redemption. The credit program is void where prohibited by law. PASS reserves the right to modify or terminate the credit program at any time, although credits accrued shall be valid for one year from the date of any such termination. Should there be any tax liability for the accumulation and/or use of credits, such taxes are the sole responsibility of the participant. If PASS makes a redemption of cash to you in error, you are liable for the full amount of that redemption. You agree to reverse the redemption of cash or to permit PASS to reverse the redemption. You must provide written notification of any disputed redemption of cash within 30 days of receipt of the associated payment. Failure to do so constitutes a waiver by you of any claim relating to the payout. If we are unable to pay you because you have not provided valid payment information or, where required, valid identification information, we may terminate your credits to the extent permissible by law, and process any remaining credits in accordance with applicable law. PASS is not a bank and does not offer banking services. You will not earn interest on your credits. Credits are not deposit obligations and are not insured by the Federal Deposit Insurance Corporation, the Financial Services Compensation Scheme, or any other entity or insurance scheme, whether governmental or private. All credits are held and expressed in United States Dollars; if your transaction was in a different currency, proceeds from the sale will be converted at the time of the transaction according to the day's published exchange rate before being credited to your credits.
STATISTICS AND ANALYTICS - Statistics and Analytic data is updated once per day. The Services use third-party data to derive visitors' geographic locations from their IP address. Due to the nature of geolocation technology and other factors beyond our control, we cannot guarantee any specific accuracy level.
CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION - By registering with PASS, you understand that we may send you communications or data regarding the Services, including but not limited to (a) notices about your use of the Services, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding PASS's products and services, via electronic mail. We give you the opportunity to opt-out of receiving electronic mail from us by following the opt-out instructions provided in the message. SOFTWARE - If you receive Software from us, its use is governed in one of two ways: if you're presented with separate license terms that you must accept in order to use the Software, those terms apply; if no separate license is presented to you, these Terms apply. We reserve all other rights to the Software. We may automatically check your version of the Software. We may also automatically download to your computer or device new versions of the Software. Any Software is licensed, not sold. Unless we notify you otherwise, the Software license ends when your subscription to the Services ends. You must then promptly uninstall the Software, or we may disable it. You must not work around any technical limitations in the Software.
COPYRIGHT COMPLAINTS AND REMOVAL POLICY - PASS does not tolerate content that appears to infringe any copyright or other intellectual property rights or otherwise violates these Terms and will respond to notices of alleged copyright infringement that comply with the law and are properly provided to us. We reserve the right to delete or disable Content alleged to violate these Terms and to terminate access to the Services for repeat infringers. Our designated agent for notice of alleged copyright infringement is: PASS Inc Attn: DMCA Copyright Agent 1001 SW Emkay Drive - Suite 100 - Bend, OR 97702 Phone: (888) 391-9424 Email: firstname.lastname@example.org. Federal law requires your DMCA Notice to include the following information: Identification of the copyrighted work that you claim has been infringed; Identification of the material, including URL, that you claim is infringing, with enough detail so that we may locate it; Your address, telephone number, and e-mail address; A statement declaring under penalty of perjury that (a) you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (b) the above information in your notice is accurate, and (c) you are the owner of the copyright interest involved or you are authorized to act on behalf of that owner; and Your physical or electronic signature.
INTELLECTUAL PROPERTY NOTICES - All contents of the Services including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are: Copyright © 2018 PASS, Inc. and/or the proprietary property of its suppliers, affiliates, or licensors. All Rights Reserved. PASS and the PASS logo are either trademarks, service marks or registered trademarks of PASS, Inc., and may not be copied, imitated, or used, in whole or in part, without PASS's prior written permission or that of our suppliers or licensors. Other product and company names may be trade or service marks of their respective owners. PASS may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter that is part of the Services. Unless we have granted you licenses to our intellectual property in these Terms, our providing you with the Services does not give you any license to our intellectual property. Any rights not expressly granted herein are reserved.
LICENSE AGREEMENT - IMPORTANT! READ CAREFULLY: This End-User License Agreement ("Agreement") is a legal agreement between PASS, Inc. dba PASS ("PASS") and you (either an individual or a single entity) as a user, for the use of and access to the Services(s). YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY ACCESSING, INSTALLING, COPYING, OR OTHERWISE USING ANY SOFTWARE AND/OR ACCESSING THE SERVICES. IF YOU DO NOT AGREE, DO NOT ACCESS, INSTALL OR USE ANY SOFTWARE OR ACCESS THE SERVICES. PASS is only willing to grant you the rights and licenses contained in this Agreement if you obtained the Software from PASS, or a PASS authorized distributor or reseller. If you obtained the Software from any other source you may not install or use the Software or access the Services.
1. Ownership. The Services are proprietary to PASS. The Services are licensed, not sold, to you notwithstanding any reference herein to "purchases". You acknowledge and agree that: (a) the Services are protected under U.S. copyright and other laws; (b) PASS and its licensors retain all copyrights and other intellectual property rights in the Services; (c) there are no implied licenses under this Agreement, and any rights not expressly granted to you hereunder are reserved by PASS; (d) you acquire no ownership or other interest (other than your license rights) in or to the Services; and (e) PASS owns all copies of the Services, however made. You agree that you will not, at any time, contest anywhere in the world PASS's ownership of the Services, nor will you challenge the validity of PASS's rights in the Services. You have no rights hereunder to use any trademark or service mark belonging to PASS. In the event that you provide comments, suggestions and recommendations to PASS with respect to the Services (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Services) (collectively, "Feedback"), you hereby grant to PASS a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Services.
2. Grant of License and Scope of Use. Subject to all the terms and conditions of this Agreement, and in consideration of your payment(s) to PASS, PASS hereby grants to you a limited, nonexclusive, nontransferable, nonsublicensable, perpetual license to install, use, access and display the Software to share your Content and/or access Content from other users, subject to termination as provided in this Agreement. This Agreement defines your rights to the Services during the license term.
3. Services and Restrictions. For the sole purpose of using the Software, you are granted a limited non-exclusive, non-transferable, non-sublicensable, perpetual and royalty-free license to access the Services, subject to termination as provided in this Agreement. You may not take any action which imposes an unreasonable or disproportionately large load on our infrastructure. You may not disclose or share your password with any third parties or use your password for any unauthorized purpose. Only you may use your Services account. You must keep your account and passwords confidential and not authorize any third party to access or use the Services on your behalf, unless we provide an approved mechanism for such use. You must contact us immediately if you suspect misuse of your account or any security breach in the Services. You are responsible for all activities that take place with your account. PASS will not be liable for any loss or damage arising from any unauthorized use of your accounts. The functionality of the Services depends, among other things, on the availability of internet connectivity, net congestion and other factors. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Services or any transaction conducted on our site. PASS makes no warranties or guarantees as to the availability or reliability of the Services or the information provided to you or to any other user nor makes any commitment to provide you with on-going operational Services.
7. Monitoring of Content, Removal of Content and Enforcement. We have the right to: (a) Remove or refuse to post any Content for any or no reason in our sole discretion. (b) Take any action with respect to any Content that we deem necessary or appropriate in our sole discretion if we believe that such Content violates the Terms, infringes any intellectual property right or other right, threatens the personal safety of users of the Services and the public or could create liability for PASS. (c) Disclose your identity to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy. (d) Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any Content on or through the Services.
YOU WAIVE AND HOLD HARMLESS PASS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY PASS DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER PASS OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review Content before it is posted on the Services, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or Content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this paragraph.
8. Links to Third Party Sites. You may link to third party sites through the use of the Services. The third party sites are not under the control of PASS, and PASS is not responsible for the contents of any third party sites, any links contained in third party sites, or any changes or updates to third party sites. Any such activities, and any terms associated with such activities, are solely between you and the applicable third party and PASS shall have no liability, obligation or responsibility with respect to any such activities. Similarly, we are not responsible for any third party content you access with the Services, and you irrevocably waive any claim against us with respect to such sites and third party content.
9. Services; Updates; Product Changes. PASS is not required under this Agreement to provide any installation, training or other support services to you. Such services, if available, must be purchased separately. If, pursuant to a separate support agreement or otherwise, PASS provides you with a new release, error correction, update, upgrade or other modification to the Product, such modification will be deemed part of the Product, and subject to the terms of this Agreement, unless the modification is expressly provided subject to a separate license agreement. PASS reserves the right at any time not to release or to discontinue release of any of the Services and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of any of the Services. PASS reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Services at any time. We may add or remove functionalities or features, and we may suspend or stop the Services altogether.
10. Warranty Disclaimer. You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Services for any reconstruction of any lost data.
WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT. YOUR USE OF THE SERVICES, ITS CONTENT AND ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, ALL CONTENT AND ANY ITEMS OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER PASS NOR ANY PERSON ASSOCIATED WITH PASS MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SITE. WITHOUT LIMITING THE FOREGOING, NEITHER PASS NOR ANYONE ASSOCIATED WITH PASS REPRESENTS OR WARRANTS THAT THE SERVICES, ANY CONTENT OR ANY ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES OR ANY ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. PASS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
11. Confidentiality. The Services (including their underlying source code) contain confidential information of PASS. You agree to hold this information in confidence, not disclose it to any person, and not use it for any purpose other than the use and operation of the Services as permitted under this Agreement. These restrictions do not apply to any information which is or becomes (through no fault of yours) publicly available. If you are required by law or order of a court or other government authority to disclose PASS's confidential information, then you will immediately notify PASS as soon as possible, but in any event prior to the disclosure, and will cooperate with PASS, at its expense and request, in any lawful action to contest or limit the scope of such required disclosure.
12. LIMITATION OF LIABILITY. IN NO EVENT WILL PASS AND ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE TO ANY PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY OR DATA, ARISING FROM OR RELATING TO THIS LICENSE OR THE SERVICES OR ANY CONTENT, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, EVEN IF PASS AND ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS KNEW, SHOULD HAVE KNOWN OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PASS AND ITS AFFILIATE'S OR THEIR LICENSOR'S, SERVICE PROVIDER'S, EMPLOYEE'S, AGENT'S, OFFICER'S OR DIRECTOR'S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY YOU FOR USE OF THE SERVICES. THIS SECTION 12 WILL APPLY EVEN IF AN EXCLUSIVE REMEDY HEREUNDER HAS FAILED OF ITS ESSENTIAL PURPOSE.
13. Indemnification. You agree to defend, indemnify and hold harmless PASS, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) resulting from your violation of these Terms, your use of the Services, including without limitation any use of the Services' content, services and products other than as expressly authorized in these Terms or your use of any information obtained from the Services, or the quality of your photographs.
14. Termination and Suspension. You may stop using the Services at any time. We reserve the right to temporarily suspend or terminate your access to all or any part of the Services at any time in our sole discretion, with or without cause, and with or without notice, without incurring liability of any kind. For example, we may suspend or terminate your access to or use of the Services for: (a) the actual or suspected violation of these Terms; (b) the use of the Services in a manner that may cause PASS to have legal liability or disrupt others' use of the Services; (c) the suspicion or detection of any malicious code, virus or other harmful code by you or in your account; (d) scheduled downtime and recurring downtime; (e) use of excessive storage capacity or bandwidth; or (f) unplanned technical problems and outages. If, in PASS's determination, the suspension might be indefinite and/or PASS has elected to terminate your access to the Services, PASS will use commercially reasonable efforts to notify you through the Services. If you stop using the Services or we permanently terminate your access to the Services, you must destroy all copies of the Software and Documentation and discontinue access of the Services. You acknowledge that if your access to the Services is suspended or terminated, you may no longer have access to the Content that is stored with the Services. Upon termination by PASS, for reasons other than cause, or at your direction, you may request access to your Content, which we will make available for an additional fee. You must make such request with thirty (30) days following termination. Otherwise, any Content you have stored with the Services may not be retrievable, and we will have no obligation to maintain any data stored in your account.
15. Export Restrictions. You acknowledge that the Product is of U.S. origin and subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Product, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. Without limitation, you may not transfer any part of the Services without U.S. government permission to anyone on U.S. government exclusion lists (see the Commerce Department's compliance list at http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm). You represent and warrant that neither you nor any of your affiliates are on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.
16. Restricted Rights Legend. Any software which is provided for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is PASS, Inc.
17. Canadian Transactions. If you are subject to Canadian law, you agree to the following: The parties hereto have expressly required that the present License and its Exhibits be drawn up in the English language. / Les parties aux presentes ont expressement exige que la presente Convention et ses Annexes soient redigees en langue anglaise.
18. Governing Law; Venue and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of Oregon, without giving effect to any conflicts or choice of laws principles that would require the application of the laws of a different jurisdiction. The parties expressly exclude the application of the 1980 United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act (if applicable). Subject only to the provisions of Section 20, any legal action, suit or proceeding arising out of or relating to this Agreement must be instituted exclusively in a court of competent jurisdiction, federal or state, located within the State of Oregon, County of Deschutes, and in no other venue. Each party further irrevocably consents to personal jurisdiction and venue in, and agrees to service of process issued or authorized by, any such court.
19. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable for any reason, then such provision will be enforced to the maximum extent permissible and the remainder of the provisions of this Agreement will remain in full force and effect.
20. Equitable Relief. The parties acknowledge and agree that it is impossible to measure in money the damages that will accrue to PASS by reason of your breach of this Agreement and that such a breach will cause irreparable harm to PASS. In addition to any other right or remedy available at law or in equity PASS will be entitled to specific performance or injunctive relief to enforce or prevent any breach of confidentiality or any breach of any license granted hereunder without posting a bond or other security, and may apply to any court of competent jurisdiction for such relief notwithstanding the provisions of Section 18.
21. Attorneys' Fees. In any action, suit or proceeding arising out of or relating to this Agreement, PASS, if it is the prevailing party, will be entitled to recover from you its reasonable attorneys' fees and expenses in addition to any other relief that may be awarded.
22. Assignment. You may not assign this Agreement or assign any of your rights or delegate any of your obligations under this Agreement, by operation of law or otherwise (including by merger, sale of assets, change of voting control or consolidation), without PASS's prior written consent, which may be granted, conditioned or withheld in PASS's sole discretion. Any attempted assignment by you in violation of this Section 22 will be void and will constitute a material breach of this Agreement. Notwithstanding the foregoing, PASS may assign this Agreement at any time in its sole discretion. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
23. Waiver and Modifications. All waivers must be in writing. Any waiver or failure to enforce a provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or such provision on any other occasion.
24. Notices. We may send you, in electronic form, information about the Services, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for the Services or by access to a website that we identify. Notices emailed to you will be deemed given and received when the email is sent. If you don't consent to receive notices electronically, you must stop using the Services. You may provide legal notices to us via email to email@example.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: 1001 SW Emkay Drive - Suite 100 - Bend, OR 97702. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.
25. Entire Agreement; Severability. This Agreement constitutes the entire, final and exclusive agreement between you and PASS regarding the specific license transaction described herein. No prior agreements, understandings, statements, proposals or representations, written or oral, apply. No written or oral statement, advertisement or product description not expressly contained in this Agreement can be used to alter or supplement its terms. You may not rely on any representations or statements not contained in this Agreement. Headings in this Agreement are for reference only and have no effect on any provision's meaning. These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, you and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of this Terms will remain in effect.
26. Independent Contractors; No Third-Party Beneficiaries. PASS and you are not legal partners or agents; instead, our relationship is that of independent contractors. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors.
27. Claims. Claims must be filed within one year. You must bring any claim related to these Terms or the Services within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If it isn't filed in time, the claim is permanently barred.
PASS reserves the right to delete all abandoned accounts. This includes all of the photos, data, account history, and anything else associated with the account. An abandoned account is an account that has not been logged into by the account owner for 6 months or longer.