YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICES OR BY SELLING OR PURCHASING A PRINT ON OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE THE RIGHT TO ACCESS OR USE THE SERVICES. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
Modifications to these Terms
Untamed Photographer reserves the right, at its sole discretion, to modify, discontinue or terminate the Services or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date”. By continuing to access or use the Services after we have posted a modification on the Services or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services. We encourage you to check back regularly to review these Terms.
Modifications to the Services
Untamed Photographer may make available through the Services text, graphics, audio, video and images of works of art (“Untamed Photographer Content”). We reserve the right to change the URL, modify or discontinue, and restrict or block access to, the Services without notice to you. We may remove any Prints (as defined below) or Untamed Photographer Content from the Services at any time without notice to you, including the removal of any works of art or content that we believe to be obscene, lewd, excessively violent, harassing, or otherwise objectionable.
Occasionally, there may be information on the Services that contains typographical errors, inaccuracies or omissions. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information if any such information on the Services is inaccurate at any time without prior notice. We undertake no obligation to update, amend or clarify information in the Services, except as required by applicable local, state, federal or international laws, regulations, or statutes. No specified update or refresh date applied to the Services should be taken to indicate that all information on the Services has been modified or updated.
The Services are intended solely for persons who are 18 or older. Any access to or use of the Services by anyone under 18 is expressly prohibited. By accessing or using the Services you represent and warrant that you are 18 or older.
Artist Terms and Conditions
Images to be Sold as Prints on the Services.
As an Artist that desires to sell your art through the Services, you must sign Untamed Photographer’s Image License Agreement (the “License Agreement”) which will be separately provided to you, and each Image must be scheduled on Exhibit A (as amended or supplemented from time to time) to the License Agreement.
The License Agreement will require you to provide a digital copy of certain photographs to be licensed to Untamed Photographer (“Image”) to be utilized for the production of limited edition prints or products (“Print”) that you desire to sell through the Services. You acknowledge that Untamed Photographer reserves the right to promote and market Prints through the use of sales and/or discounts. The sale or discount amount will apply to the listing price of Prints. Subject to the terms of the License Agreement, you retain the right to remove a listing for Images from the Services.
Responsibility for Images Sold through the Services
You acknowledge and agree that you are solely responsible for all Images that you make available through the Services. Accordingly, you represent and warrant that: (i) as to Images that you make available as Prints through the Services, you are the creator of the Images and you are the sole and exclusive owner of all such Images; (ii) you have duly and validly entered into the License Agreement with respect to the Images and Prints that you make available through the Services, and that you have all rights, licenses, consents and releases that are necessary to grant to Untamed Photographer the rights in such Images as contemplated under these Terms and the License Agreement; and (iii) neither the Images nor the Prints that you make available through the Services nor Untamed Photographer's use and commercialization thereof as contemplated under these Terms and the License Agreement will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, intellectual property rights or other third party rights, or result in the violation of any applicable law or regulation.
Pursuant to the License Agreement, if you submit Images for sale as Prints, you hereby appoint Untamed Photographer as an independent exclusive reseller with the right to sell such Prints through the Services and on third party websites. You acknowledge and agree that the foregoing license rights are granted on a royalty-free basis and that your sole compensation for the grant of such license rights, if any, will be in the form of the Artist Payment (defined in the License Agreement), which is payable only upon the sale of Prints via the online sales channel. Untamed Photographer may appoint one or more third party subcontractors (such as third-party print-on-demand vendors), who may exercise the license rights above for the purpose of enabling Untamed Photographer to process and fulfill orders for Prints. Untamed Photographer and/or its third party service providers will be responsible for collecting billing and shipping information from the purchaser, for processing payment for such purchases via the Services and shipping the Prints directly to a party purchasing a Print or Service (“Buyer”).
Buyer Terms and Conditions
Purchases of Prints
As a customer of Untamed Photographer, you may purchase Prints that are listed on the Services. When you purchase such a Print through the Services, you are purchasing the Prints from Untamed Photographer and not from the Artist identified on the listing for such work, [though a significant percentage of the purchase price will go directly to the Artist and charitable environmental causes]. Prices for Prints will be as specified on the applicable listing product page for such Print. You acknowledge that prices do not include shipping and handling charges or applicable Taxes (defined below), if any, for which you are responsible and which will be separately identified on your receipt at the time of checkout. Untamed Photographer and/or its third-party service providers (such as its third party print-on-demand and payment processing vendors) will collect your billing and shipping information and process your payment. Untamed Photographer and/or its third-party service providers will be responsible for shipping the Print directly to you or the shipping address provided upon checkout. The terms and conditions of Untamed Photographer's then-current Return Policy apply to any Prints that you purchase through the Services. Our Return Policy can be found here: www.untamedphotographer.com/returns
For any questions about purchases of Prints, including the status of any order or inquiries regarding the return of a previously received order, you may contact Untamed Photographer customer support at email@example.com
Untamed Photographer reserves the right to cancel any order for a Print placed via the Services if Untamed Photographer determines, in its sole and absolute discretion, that the item is out of stock, discontinued, or otherwise unavailable at the price listed via the Services. If Untamed Photographer cancels an order placed via the Services, Untamed Photographer will send you an email confirmation of such cancellation and you will not be charged for your order.
Terms for both Artists and Buyers
All prices, commissions, fees and other amounts referred to in these Terms, including any prices, commissions and fees set forth on the Services, are stated in U.S. dollars and do not include any sales, use, value added ("VAT"), goods and services ("GST") or similar taxes or withholding taxes or any customs, duties or tariffs that may be assessed by any governmental tax authority or that are otherwise payable under applicable law with respect to the purchase, sale and licensing transactions contemplated hereunder (collectively, "Taxes"). If you are an Artist which submits Images to Untamed Photographer, you acknowledge that Untamed Photographer will withhold the Taxes required to be withheld from the payments Untamed Photographer makes to you. Artist must fill out appropriate Tax forms prior to any Artist Payment.
If you are a Buyer of Prints, you acknowledge and agree that Untamed Photographer will add Taxes to the amounts charged, as a separate charge, when required or when allowed to do so. Each party will be responsible for complying with any and all obligations imposed on it under applicable law with respect to the collection and payment of any Taxes. Each party will cooperate with the other party, and furnish the other party with any customary written documentation or forms required under applicable law to enable the other party to comply with such obligations or to exercise any rights available under applicable law to minimize or to qualify for an exemption from any such obligations.
You understand and agree that Untamed Photographer uses commercially reasonable efforts to display the colors of the Prints accurately via the Services. However, because individual computer monitors may display colors differently, Untamed Photographer is not responsible for the color accuracy of any Prints displayed for sale on the Services, and disclaims all liability in this regard.
You agree not to do any of the following:
- Use, display, mirror or frame the Services, or any individual element within the Services, Untamed Photographer’s name, any Untamed Photographer trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Untamed Photographer’s express written consent;
- Access, tamper with, or use non-public areas of the Services, Untamed Photographer’s computer systems or network, or the technical delivery systems of Untamed Photographer’s providers;
- Attempt to probe, scan or test the vulnerability of any Untamed Photographer system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Untamed Photographer or any of Untamed Photographer’s providers or any other third party (including another user) to protect the Services, Images, or Prints;
- Attempt to access or search Services, download Images or Prints from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Untamed Photographer or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Untamed Photographer trademark, logo URL or product name without Untamed Photographer’s express written consent;
- Use the Services for any commercial purpose or the benefit of any third party in any manner not otherwise permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Untamed Photographer will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Untamed Photographer may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Untamed Photographer has no obligation to monitor your access to or use of the Services, but has the right to do so for the purpose of operating the Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Untamed Photographer reserves the right, at any time and without prior notice, to remove or disable access to any Images, listings for the Prints, or any other text, graphics, images, software, music, audio, video, information or other content or material that Untamed Photographer, at its sole discretion, considers to be objectionable, in violation of these Terms or otherwise harmful to the Services.
Additional Terms and Conditions
Untamed Photographer’s Intellectual Property
The Services are protected by copyright, trademark and other laws of the United States and foreign countries. Except as expressly provided in these Terms, Untamed Photographer and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
Untamed Photographer respects copyright law and expects its users to do the same. It is Untamed Photographer’s policy to terminate in appropriate circumstances any Artist or Buyer who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Untamed Photographer’s Copyright Policy at www.untamedphotographer.com/copyrightpolicy for further information.
The Services may contain links to third-party websites or resources. You acknowledge and agree that Untamed Photographer is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Untamed Photographer of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Termination and Account Cancellation
If you breach any of these Terms, Untamed Photographer will have the right to suspend or disable your access to the Services or terminate these Terms, at its sole discretion and without prior notice to you. In the event Untamed Photographer terminates these Terms for your breach, you will remain liable for any amounts due hereunder.
Mobile Services and Applications
“Mobile Services” means certain software and services that are available via a mobile device, including: (i) the ability to upload data to the Services via a mobile device; (ii) the ability to use the Services from a mobile device; and (iii) the ability to access certain features through a Mobile Application downloaded from the Services and installed on a mobile device.
- Wireless Carriers. To the extent you access the Mobile Services through a mobile device, your wireless carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
- Notifications and Messages. By using the Mobile Services, you agree that we may communicate with you regarding Untamed Photographer and other entities by SMS, MMS, text message or other electronic means to your mobile device for the purpose of providing the applicable service and that certain information about your usage of the Mobile Services may be communicated to us.
- Mobile Application. Subject to your compliance with these Terms, Untamed Photographer grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the applicable Untamed Photographer Mobile Application on a mobile device that you own or control and to run such copy of the mobile application solely to access the Mobile Services for your own personal non-commercial purposes. Furthermore, with respect to any Mobile Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
- App Stores. You acknowledge and agree that the availability of the Mobile Application and the Mobile Services is dependent on the third party from whom you received the Mobile Application license, e.g., the Apple or Android app stores (“App Store”). You acknowledge that these Terms are between you and Untamed Photographer and not with the App Store. Untamed Photographer, not the App Store, is solely responsible for the Mobile Application and the Mobile Services, the content thereof, maintenance, support services, and warranty thereof, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). You agree to pay all fees (if any) charged by the App Store in connection with the Mobile Application and the Mobile Services. You agree to comply with, and your license to use the Mobile Application and the Mobile Services is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Mobile Application and the Mobile Services. You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of these Terms and will have the right to enforce them.
- Accessing and Downloading the Mobile Application from the Apple App Store. The following applies to any Mobile Application accessed through or downloaded from the Apple App Store:
- You acknowledge and agree that: (i) these Terms are concluded between you and Untamed Photographer only, and not Apple; and (ii) Untamed Photographer, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the Apple App Store terms of service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Untamed Photographer and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Untamed Photographer.
- You and Untamed Photographer acknowledge that, as between Untamed Photographer and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and Untamed Photographer acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Untamed Photographer and Apple, Untamed Photographer, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- You and Untamed Photographer acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of these Terms and the conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
- Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
Untamed Photographer reserves the right at any time to charge fees for access to the Services, or any portion thereof. However, in no event will you be charged for access to the Services unless we obtain your prior agreement to pay such charges. You agree to pay all charges that may be incurred by you or on your behalf through the Services, at the price(s) in effect when such charges are incurred. In addition, you remain responsible for any and all Taxes including VAT that may be applicable to your purchase(s), and you agree that such Taxes including VAT, if any, are not our responsibility.
We reserve the right, with or without prior notice, to: change descriptions or references to artworks, products, subscriptions, software or services; limit the available quantity of any artworks, products, subscriptions, software, or services; honor, or refuse to honor, any coupon, coupon code, promotional code or other similar promotions; and/or refuse to provide any user of the Services with any products, subscriptions, software or services. We may modify any points, rewards, or the terms that govern their usage, at our sole discretion, and such modifications may make the points or rewards more or less common, valuable, effective, or functional.
THE SERVICES AND UNTAMED PHOTOGRAPHER CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, UNTAMED PHOTOGRAPHER EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. UNTAMED PHOTOGRAPHER MAKES NO WARRANTY THAT THE SITE, SERVICES, OR UNTAMED PHOTOGRAPHER CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. UNTAMED PHOTOGRAPHER MAKES NO WARRANTY REGARDING THE QUALITY OF ANY WORKS, SERVICES, CONTENT OR PRODUCTS PURCHASED OR OBTAINED THROUGH THE SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM UNTAMED PHOTOGRAPHER OR THROUGH THE SITE OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. NO ACTION SHOULD BE TAKEN OR PURCHASE MADE BASED UPON ANY OF THE INFORMATION CONTAINED IN THE SERVICES. YOU SHOULD SEEK INDEPENDENT ADVICE FROM A PROFESSIONAL AND/OR A PERSON WHO IS KNOWLEDGEABLE IN THE APPLICABLE AREA BEFORE ACTING UPON ANY OPINION, ADVICE, OR INFORMATION CONTAINED IN THE SERVICES.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, UNTAMED PHOTOGRAPHER DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ARTISTS OR OTHER USERS OF THE SERVICES, NOR DOES UNTAMED PHOTOGRAPHER MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF ANY ARTISTS OR USERS OF THE SERVICES.
You agree to defend, indemnify, and hold Untamed Photographer, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Services, Untamed Photographer Content, or your violation of these Terms.
Limitation of Liability
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Services, Untamed Photographer Content remains with you. Neither Untamed Photographer nor any other party involved in creating, producing, or delivering the Services or Untamed Photographer Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Terms or from the use of or inability to use the Services or Untamed Photographer Content, or from any communications, interactions or meetings with other users of the Services or other persons with whom you communicate or interact as a result of your use of the Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Untamed Photographer has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
In no event will Untamed Photographer's aggregate liability arising out of or in connection with these Terms or from the use of or inability to use the Services or Untamed Photographer Content exceed: (i) if you are an Artist who has sold Prints and has received any Artist Payments from Untamed Photographer from the sale of such Prints, the total payments made or credited to you by Untamed Photographer for the sale of your Prints based on the License Agreement during the six (6) month period preceding the date a claim for liability arises under these Terms; and (ii) if you are a Buyer who has purchased Prints, the total payments that you made to Untamed Photographer for the Prints that are the subject of a claim. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Untamed Photographer and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Untamed Photographer used herein are trademarks or registered trademarks of Untamed Photographer or its licensors. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Resolution of Disputes
Governing Law and Jurisdiction
These Terms will be governed by the laws of the State of Florida, without regard to conflict of law provisions. Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
It is our goal that the Services meet your expectations and provide excellent service. However, there may be instances when you feel that we have made a mistake or left you disappointed in some way. In those instances, we are committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your concern. Therefore, for any problem or dispute that you may have with us, you acknowledge and agree that you will, as an initial matter, email us at firstname.lastname@example.org to describe to us the nature of your complaint or dissatisfaction. This should lead to resolution, but if for some reason your problem or dispute is not resolved satisfactorily within thirty (30) days after our receipt of your written description of it, you agree to the further dispute resolution provisions below. To the extent permitted by applicable law, the informal resolution process described in this paragraph is a precondition to pursuing any other process, so please do not forget to contact us first.
Mutual Agreement to Arbitrate
PLEASE READ THIS AGREEMENT TO ARBITRATE CAREFULLY TO UNDERSTAND YOUR RIGHTS. BY ELECTING ARBITRATION, YOU AND WE AGREE TO ARBITRATE ANY CLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, UNLESS YOU OPT-OUT. YOU AND WE AGREE THAT ALL SUCH CLAIMS WILL BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT AS A PROPOSED CLASS ACTION. WHETHER OR NOT YOU OPT-OUT, HOWEVER, YOU ARE GIVING UNTAMED PHOTOGRAPHER A RIGHT TO A TRIAL BY JURY. YOU AND WE UNDERSTAND THAT DISCOVERY AND APPEAL RIGHTS ARE MORE LIMITED IN ARBITRATION.
The arbitrator, and not any federal, state, local, or other court or agency, will have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of these Terms and this Agreement to arbitrate, including but not limited to, any claim that all or any part of these Terms or this Agreement to Arbitrate is void or voidable.
You and we agree that, except as expressly set forth below, the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of your use of the Services and these Terms or to any products or services sold or distributed through the Services, will be final and binding arbitration, except to the extent that either party has, in any manner, infringed upon or violated, or threatened to infringe upon or violate, the rights of either party or any third party’s patent, copyright, trademark, trade secret, privacy or publicity rights or is seeking to vindicate public rights, in which case both sides acknowledge that arbitration is not an adequate remedy and that injunctive or other appropriate relief may be sought by either party and/or the applicable third party(ies). You and we acknowledge that this Agreement to Arbitrate affects interstate commerce and that the Federal Arbitration Act and federal arbitration law apply to arbitrations under this Agreement to Arbitrate (despite any other choice of law provision). As a limited exception to this mutual Agreement to Arbitrate, you and we agree that either party may take claims to small claims court, if the claims qualify for hearing by such court.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent.
Means and Fees
In the interest of efficiency and fairness, you and we agree that the arbitration proceeding will be based solely on written submissions, unless the arbitrator deems an oral hearing strictly necessary. Should the arbitrator deem an oral hearing to be necessary, such hearing will be conducted via telephone or other electronic or technical means, or if that’s not possible, in person in the jurisdiction where you reside or at another mutually agreed upon location. The language of the arbitration will be English. The arbitrator’s award will be final and binding, and judgment may be entered upon it by any court having jurisdiction thereof. Each party will have the right to use legal counsel in connection with arbitration at its own expense.
Right to Opt-Out
You have a right to opt-out of this agreement to arbitrate by sending an email to email@example.com or by mailing us, postage prepaid, to 3191 Grand Avenue, #1819 Miami, FL 33233. Such opt-out must be given within the earlier of thirty (30) days of approving your first purchase of products on the Services or your first upload of artwork to the Services or if we make any changes to this Agreement to Arbitrate which alter your rights, within thirty (30) days after the effective date of such revision to this Agreement to Arbitrate. Any opt-out received after such deadline will be ineffective and this Agreement to Arbitrate will remain in full force and effect, except as expressly provided above. If you opt-out of this Agreement to Arbitrate, we also will not be bound by the terms of this Agreement to Arbitrate.
Class Action Waiver
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION OR OTHER CLAIM UNDER THESE TERMS WILL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS, COLLECTIVE, AND/OR REPRESENTATIVE ARBITRATION PROCEEDINGS WILL BE PERMITTED. In the event that this CLASS ACTION WAIVER is deemed unenforceable with respect to any particular claim otherwise subject to arbitration, then that claim will not proceed in arbitration but rather will be resolved in a court of competent jurisdiction. If that occurs, however, this Agreement to Arbitrate and this Class Action Waiver still will be fully enforceable as to all other claims, which must be resolved in arbitration on an individual basis.
Waiver of Trial by Judge or Jury
YOU AND WE AGREE AND UNDERSTAND THAT BY USING ARBITRATION TO RESOLVE DISPUTES YOU AND WE ARE GIVING UNTAMED PHOTOGRAPHER ANY RIGHT THAT YOU OR WE MAY HAVE TO A JUDGE OR JURY TRIAL WITH REGARD TO ALL CLAIMS SUBJECT TO THIS AGREEMENT TO ARBITRATE. YOU AND WE FURTHER AGREE THAT ANY CLAIM HEARD IN A COURT OF COMPETENT JURISDICTION WILL BE HEARD BY A JUDGE INSTEAD OF A JURY, EXCEPT WHERE A JURY TRIAL WAIVER IS NOT PERMISSIBLE UNDER APPLICABLE LAW.
Limitation of Actions
You and we agree that regardless of any statute or law to the contrary, any claim of cause of action arising from or relating to use of the Services, or these Terms must be filed within one (1) year after such claim or cause of action arose, or will be forever barred.
Notice for California Users
Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
Users from Other Jurisdictions
The Services are controlled and operated by Untamed Photographer from the United States. We do not represent or warrant that the Services, or any part thereof, are appropriate or available for use in any particular jurisdiction. Those who choose to access the Services, do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. You also are subject to United States export controls in connection with your use of the Services and are responsible for any violations of such controls, including, without limitation, any United States embargoes or other federal rules and regulations restricting exports. We may limit the availability of the Services, in whole or in part, to any person, geographic area or jurisdiction that we choose, at any time and in our sole discretion.
These Terms constitute the entire and exclusive understanding and agreement between Untamed Photographer and you regarding the Services and these Terms supersede and replace any and all prior oral or written understandings or agreements between Untamed Photographer and you regarding the Services.
You may not assign or transfer these Terms, by operation of law or otherwise, without Untamed Photographer’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Untamed Photographer 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.
Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by Untamed Photographer via email (in each case to the address that you provide) or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of Untamed Photographer to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Untamed Photographer. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason 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.
Contacting Untamed Photographer
If you have any questions about these Terms, please contact Untamed Photographer at firstname.lastname@example.org