Terms & Conditions of Use
Date of Last Revision: May 21, 2018
A. GENERAL TERMS
1. Additional Policies
Subscription Services Terms
SmugMug's subscription services (the "Subscription Services") provide an online platform that enables our users to upload and share photographs ("Photos") or videos ("Videos") using the Services. Photos and Videos may collectively be referred to herein as "Media". By subscribing to or using any Subscription Services, you agree to be bound by and accept the Subscription Services Terms set forth in Section B below.
Terms of Sale
Our Terms of Sale set forth in Section C below contain additional terms, conditions and policies applicable to your purchase of Products through the Services. By ordering Products through the Services, you agree to be bound by and accept the Terms of Sale.
SmugMug enables certain users who own or otherwise have the right to license Media (the "Content Owner") to use SmugMug to facilitate the license of their Media to other SmugMug users. Please refer to the terms of your Subscription Plan to determine whether you are a Content Owner with the right to license your Media through SmugMug. All such licenses are made directly between the user and the Content Owner and are merely facilitated by SmugMug. The scope of the license rights granted by the Content Owner to the SmugMug user under any license will vary depending on the type of license that the Content Owner designates to such Media.
By uploading Media to the SmugMug Services and indicating that the Media may be licensed by other SmugMug users, Content Owners agree to be bound by and accept the terms and conditions set forth in Section D below. By licensing any Media from a Content Owner through the Services, you agree to the terms of the applicable end user license agreement that has been chosen by the Content Owner (either the Commercial Use License or Personal Use License).
Please note that if you download Media from the Services, you are not automatically granted any license rights by the Content Owner to such Media. Any Media license will be expressly communicated by the Content Owner at the time such Media is downloaded or purchased (e.g., on the SmugMug shopping cart page). If you have any questions regarding Media licenses, please contact us at firstname.lastname@example.org.
SmugMug respects the intellectual property rights of others and expects its users to do the same. To that end, all SmugMug users are subject to the Copyright Policy set forth in Section E below.
The SmugMug Services and all images, software, platforms, tools, graphics, data, text, code, the SmugMug Marks (as defined below) and other content and materials available on the Services (excluding User Content) and the selection and arrangement thereof (collectively, the "SmugMug Materials") are the property of SmugMug or its third party licensors and are protected by United States and international intellectual property laws.
You acknowledge that (i) all right, title and interest in and to the SmugMug Materials, including all patents, copyrights, trade secrets, trademarks and other proprietary rights embodied therein or associated therewith, are and will remain with SmugMug or its third party licensors; (ii) no right or interest in the SmugMug Materials is conveyed other than the limited licenses granted herein; (iii) the SmugMug Materials are protected by copyright and other intellectual property laws; and (iv) SmugMug asserts that the SmugMug Materials embody valuable confidential and secret information of SmugMug or its licensors, the development of which required the expenditure of considerable time and money.
3. SmugMug Marks
You acknowledge that "SMUGMUG", the SmugMug logo, the look and feel of the Services, and any other Product or Service names, logos or slogans of SmugMug contained in the Services are trademarks of SmugMug (collectively, the "SmugMug Marks") and may not be copied, imitated or used without the prior written permission of SmugMug. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners.
SmugMug may provide users with tools to download the SmugMug Marks via the Services. If you download or otherwise obtain the SmugMug Marks using such tools, SmugMug grants you a limited right to (i) use the SmugMug Marks for the sole purpose of referencing the Services and (ii) to use only those SmugMug Marks that are made available to you by SmugMug through such tools. Your use of any SmugMug Marks must be consistent with the size, dimensions, color and other characteristics of the SmugMug Marks and consistent with any other policies concerning the SmugMug Marks that we may post on the Site or otherwise make available through the Services from time to time. You may not (i) alter or change the appearance of the SmugMug Marks, (ii) use the SmugMug Marks in any manner that suggests SmugMug sponsors or endorses a product, service, promotion, contest, or (iii) use the SmugMug Marks for any other purpose deemed by SmugMug to be inappropriate. SmugMug has the right to revoke your right to use the SmugMug Marks at any time at our sole discretion.
You agree that you will not (i) modify or alter the SmugMug Materials; (ii) create derivative works of the SmugMug Materials; (iii) decompile, disassemble, decode or reverse engineer the SmugMug Materials, translate the SmugMug Materials or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the SmugMug Materials or reduce the SmugMug Materials by any other means to a human-perceivable form; or (iv) bypass, delete or disable any copy protection mechanisms or any security mechanisms in the SmugMug Materials.
Except as otherwise expressly permitted herein, you may not use the Services or the SmugMug Materials to engage in any of the following prohibited activities:
- the collection, copying or distribution of any portion of the SmugMug Materials;
- any resale, commercial use, commercial exploitation, distribution, public performance or public display of the Services or the SmugMug Materials;
- modifying or otherwise making any derivative uses of the Services or the SmugMug Materials;
- scraping or otherwise using any data mining, robots or similar data gathering or extraction methods on or in connection with the Services;
- with the exception of Media made available by users for download, the downloading of any portion of the SmugMug Materials or any information contained therein; or
- any use of the Services or the SmugMug Materials other than for their intended purposes.
You may create a text hyperlink to the Site, provided such link does not portray SmugMug or any of its Products or Services in a false, misleading, derogatory or otherwise defamatory manner. This limited right may be revoked by SmugMug at any time. You may not frame the Site or utilize framing techniques to enclose the Site, SmugMug Materials, SmugMug Marks or other proprietary information without SmugMug's express prior written consent.
As a part of the Services, we may provide you with access to and use of certain personalized pages and corresponding web addresses ("URLs") that you may customize. SmugMug does not guarantee the availability of any particular web page or URL and reserves the right, at any time and at our sole discretion, to reclaim, suspend, terminate and/or transfer any such web page or URL.
6. User Content
The Services may enable you to upload, post and transmit Photos and Videos to the Site or other portions of the Services (including to your user photo galleries) and also provide you with access to discussion forums, blogs and other interactive areas in which you or other users may post or transmit Photos, Videos, text, music, messages, information or other content or materials (collectively, including Media, the "User Content").
You retain all intellectual property rights in and to any User Content you post, upload or otherwise make available through the Services, including the copyright in and to your Media. SmugMug does not claim any ownership, right, title or interest in and to your User Content.
Notwithstanding the foregoing, by uploading and/or posting any User Content to the Site or otherwise by using the Services, you grant SmugMug a perpetual, nonexclusive and royalty-free right to use the User Content (and the user name that is submitted in connection with such User Content) as is reasonably necessary in order to enable SmugMug to provide the Services, including to display the User Content on the Services, to facilitate (at the Content Owner's direction) the license of Photos, or to process the sale of Products through the Services.
7. Acceptable Use; Disclaimer
You are solely responsible for the User Content that you post or transmit using the Services and you agree not to post, transmit or otherwise publish through the Services any of the following:
- User Content that is unlawful, defamatory, obscene, pornographic, indecent, lewd, sexually suggestive, hateful, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable or harmful, including without limitation: Photos, Videos or other User Content containing nudity that would be unacceptable in a public museum where minors visit;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, endanger national security, or that would otherwise create liability or violate any local, state, national or international law;
- User Content that may infringe or violate any patent, trademark, trade secret, copyright or other intellectual or other proprietary right of any party;
- User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
- unsolicited promotions, political campaigning, advertising or solicitations;
- private information of any third party, including, without limitation: addresses, phone numbers, email addresses, social security numbers and credit card numbers;
- viruses, corrupted data or other harmful, disruptive or destructive files; and
- User Content that, in the sole judgment of SmugMug, is objectionable, harmful or which restricts or inhibits any other person from using or enjoying the Services, or which may expose SmugMug or its users to any harm or liability of any nature.
8. Your Account
9. Account Security
You are solely responsible for maintaining the confidentiality of the passwords associated with your account and for restricting access to your passwords and physical access to your computer while logged into the Services. You accept responsibility for all activities that occur under your user account.
User Content that you post, upload or otherwise make available via the Services may be accessed, used and downloaded by other SmugMug users. You understand and acknowledge that any User Content contained in public areas of the Services, including any user galleries or other portions of the Services, is accessible to the public and could be accessed, downloaded, indexed, archived, linked to and republished by others including, without limitation, appearing on other websites and in search engine results. SmugMug provides security options and settings for your content available in the settings section of your applicable user account (the "Account Settings"), including the ability for you to designate certain portions of your account as unlisted, private, hidden or password-protected.
We use commercially reasonable security measures to protect your account and User Content consistent with your Account Settings. We cannot, however, guarantee absolute security of your account, your User Content or the Registration Data we collect, and we cannot promise that our security measures will prevent third party "hackers" from illegally accessing the Services or their contents. SmugMug is not responsible or liable for any third party access to or use of the User Content you post or your Registration Data. You are encouraged to read, understand and use the security settings and mechanisms in your Account Settings to manage how your User Content is accessed and used by the public and other users of the Services. You agree to immediately notify SmugMug of any unauthorized use of your account or passwords or any other breach of security, and you accept all risks of unauthorized access to the Registration Data, User Content and any other information you provide to SmugMug.
10. Third Party Services
SmugMug does not imply affiliation, approval, or control of any Third Party Services by making such Third Party Services available via the SmugMug Services. SmugMug makes no claim or representation regarding, and accepts no responsibility for, the quality, accuracy, nature, ownership or reliability of Third Party Services. YOUR USE OF ANY SUCH THIRD PARTY SERVICES IS SOLELY AT YOUR OWN RISK AND SUBJECT TO THE APPLICABLE TERMS AND CONDITIONS AND PRIVACY POLICIES APPLICABLE TO SUCH THIRD PARTY SERVICES.
11. Advertisements and Promotions
The Services may contain third party advertisements and promotions generated or posted by SmugMug users, SmugMug Vendors or other third party service providers.
Your business dealings or interactions with any third parties, including the SmugMug users or SmugMug Vendors, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. SmugMug does not endorse, approve, or control any such products, services, advertising or promotions posted to the Services by its users or the SmugMug Vendors. SmugMug is not responsible or liable for any loss or damage of any kind incurred as the result of your direct dealings with SmugMug users or a SmugMug Vendor or otherwise resulting from the presence of advertisements for third party products and services included on the Services.
12. DISCLAIMER OF WARRANTIES
THE SITE, SERVICES, THE SMUGMUG MATERIALS, AND THE PRODUCTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, SMUGMUG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT AS TO THE SITE, THE SERVICES, THE SMUGMUG MATERIALS, AND THE PRODUCTS.
SMUGMUG DOES NOT REPRESENT OR WARRANT THAT THE SMUGMUG MATERIALS OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SERVICES, ITS SERVERS OR EMAIL SENT FROM SMUGMUG OR THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SMUGMUG IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT, PHOTOS OR VIDEOS. SMUGMUG ALSO MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY, RELIABILITY OR SECURITY OF THE SERVICES AND WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR ANY MODIFICATION, SUSPENSION, UNAVAILABILITY, OR DISCONTINUANCE OF THE SERVICES OR THE PRODUCTS PROVIDED THEREON.
13. LIMITATION OF LIABILITY
IN NO EVENT WILL SMUGMUG OR ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE OR VIEW THE SITE, THE SERVICES, THE PRODUCTS, THE USER CONTENT OR THE SMUGMUG MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, INCLUDING ANY DAMAGES CAUSED BY OR RESULTING FROM YOUR RELIANCE ON ANY INFORMATION OBTAINED FROM SMUGMUG, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY TERMINATION, SUSPENSION OR OTHER FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SMUGMUG'S RECORDS, PROGRAMS OR SERVICES.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF SMUGMUG, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE, THE SERVICES, THE PRODUCTS, THE USER CONTENT OR THE SMUGMUG MATERIALS, EXCEED COMPENSATION YOU PAY, IF ANY, TO SMUGMUG FOR ACCESS TO OR USE OF THE SITE OR THE SERVICES OR FOR THE PURCHASE OF PRODUCTS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
15. Dispute Resolution
Agreement to Arbitrate & Waiver of Representative Actions
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH SMUGMUG AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. IF YOU DO NOT CONSENT TO THE TERMS OF THIS SECTION 15, YOU ARE NOT PERMITTED TO USE THE SMUGMUG SERVICES.
The arbitrator will not be bound by rulings in prior arbitrations involving different SmugMug users but is bound by rulings in prior arbitrations involving the same SmugMug user to the extent required by applicable law. The arbitrator's award will be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
YOU AND SMUGMUG AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND SMUGMUG AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER SMUGMUG USERS.
We welcome feedback from our users regarding ideas and suggestions for improvements to the Site, Services and Products. SmugMug will be entitled to use any such feedback without restriction, even if you designate such feedback as confidential. You hereby grant SmugMug a royalty-free, sublicensable, transferable, perpetual, irrevocable license in and to any feedback to use in any matter related to the operation of our business.
18. International Users
SmugMug is located in the State of California in the United States of America. If you access the Services from a country other than the United States, you agree that your transactions with SmugMug occur in the United States. You are responsible for compliance with all applicable laws, rules and regulations applicable to your use of the Services.
21. Questions or Comments
SmugMug is committed to keeping our users happy and satisfied with their use of the Services. If you have any questions, concerns, complaints or comments in any way related to your use of the Services, please contact us at email@example.com.
B. ADDITIONAL TERMS APPLICABLE TO SUBSCRIPTION SERVICES ("SUBSCRIPTION SERVICES TERMS")
The Subscription Services are available to users (i) who register for a free trial (when available) or for a subscription to the Subscription Services ("Subscription") and (ii) who pay in full the Subscription fees ("Subscription Fees") applicable to the level of Subscription selected by such user (the "Subscription Plan").
2. Free Trials
When you first register for the Subscription Services, SmugMug may offer you the ability to use the Subscription Services without charge for a limited trial period (a "Free Trial"). The duration of a Free Trial will be the number of days specified by SmugMug at the time of your registration for such Free Trial. You do not need to provide SmugMug with a credit card or other Payment Information in order to register for a Free Trial. At the conclusion of your Free Trial, your user account will automatically terminate unless you elect to continue to use the Subscription Services by selecting a Subscription Plan and providing SmugMug (or our applicable third party payment processor) with valid Payment Information. Upon SmugMug's receipt of your Payment Information, you will be charged for the Subscription Fee applicable to your selected Subscription Plan. SmugMug may offer you the ability to register for a Subscription directly without the need to participate in a Free Trial.
3. Subscription Plans
SmugMug offers a variety of Subscription Plans designed to reflect the diverse needs of our users, each with its own features, descriptions, functionality and terms with respect to the use of the Services. A description of each Subscription Plan that is currently offered by SmugMug is available here. By purchasing a Subscription, (i) you agree to pay all applicable Subscription Fees and other charges in accordance with your selected Subscription Plan, pursuant to the renewal and termination provisions described below (including any applicable taxes, such as sales tax), and (ii) you agree that you are only entitled to the features and services applicable to the Subscription Plan that you select at the time you purchase a Subscription.
Each Subscription is personal to the individual SmugMug user. You may not transfer or assign your Subscription to another individual, entity or SmugMug user unless such transfer or assignment is expressly permitted by the terms of your Subscription Plan.
4. Term and Automatic Renewal
Your Subscription is valid commencing on the date in which SmugMug provides you with access to the Services pursuant to its receipt of your valid Payment Information (the "Commencement Date") and will last for the duration of the Subscription term that you select at the time of your registration for the Subscription Services (the "Subscription Term").
YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF EACH SUBSCRIPTION TERM FOR SUCCESSIVE SUBSCRIPTION TERMS OF THE SAME DURATION AS THE SUBSCRIPTION TERM ORIGINALLY SELECTED UNLESS THE SUBSCRIPTION IS TERMINATED AND/OR CANCELED BY YOU OR SMUGMUG PRIOR TO THE END OF SUCH SUBSCRIPTION TERM. SUCH RENEWAL WILL OCCUR AUTOMATICALLY ON THE APPLICABLE ANNIVERSARY OF THE COMMENCEMENT DATE. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME PRIOR TO THE END OF THE SUBSCRIPTION TERM THROUGH YOUR ACCOUNT SETTINGS IN THE SUBSCRIPTION SECTION, OR BY SENDING AN EMAIL TO HELP@SMUGMUG.COM PROVIDING CLEAR WRITTEN NOTICE OF SUCH REQUEST. You agree that upon such renewal, the credit card or other designated payment method in your Account Settings will be billed the applicable Subscription Fee for your Subscription Plan then in effect at the time of renewal. If you disagree with these automatic renewal provisions, your sole remedy is to cancel or terminate your Subscription.
You may upgrade your Subscription Plan at any time during the Subscription Term by notifying SmugMug using your Account Settings. If you upgrade your Subscription Plan, the credit card or other designated payment method in your Account Settings will be billed for the difference in price, pro-rated for the remainder of your Subscription Term.
You acknowledge that the amount of the recurring charge at the time of Subscription renewal may differ from the Subscription Fees you originally paid for the Subscription Services if: (i) the Subscription Fee for your Subscription Plan changes during your applicable Subscription Term, or (ii) if you change your Subscription Plan or Subscription Term during the previous Subscription Term. SmugMug will notify you of any changes to the Subscription Fee prior to the date on which your Subscription Term will renew. You hereby agree to any such revised Subscription Fees and your sole remedy if you disagree with such changes is to terminate your account and stop using the Subscription Services.
SmugMug reserves the right at any time, at its sole discretion and without notice, to suspend, modify, discontinue or permanently cancel the Subscription Services or any portions thereof, including the Subscription Plans and any policies, features and terms applicable thereto. If the Subscription Services, or any part thereof, to which you subscribe are permanently discontinued or canceled by SmugMug, your Subscription will terminate, and we will have no further liability to you. You acknowledge that the Subscription Services may be interrupted from time to time, with or without notice, for maintenance, upgrades, system updates or in the event of equipment failure or for any other foreseeable or non-foreseeable cause.
SMUGMUG WILL HAVE NO LIABILITY TO YOU FOR ANY INTERRUPTION, SUSPENSION, DISCONTINUANCE OR UNAVAILABILITY OF THE SUBSCRIPTION SERVICES FOR ANY REASON, OR FOR ANY LOSS OR INABILITY TO ACCESS ANY MEDIA OR MATERIALS ON THE SERVICES.
6. Termination of Services
You may request the termination of your Subscription at any time by canceling your account in the Subscription section of your Account Settings, or by sending an email to firstname.lastname@example.org providing clear written notice of such request. When SmugMug receives your termination request, SmugMug will terminate your Subscription and notify you of such termination via email. SmugMug may request additional information from you prior to terminating your Subscription. Your Subscription is not terminated until you receive confirmation of such termination from SmugMug. If you terminate your Subscription, such termination will be effective immediately upon your receipt of such confirmation from SmugMug, regardless of whether there is any period of time remaining in your Subscription Term. By way of example and not in limitation of the foregoing, if you request the termination of your Subscription and you have two months remaining in your Subscription Term, such termination is effective immediately and you will not have access to the Subscription Services for the remaining two months of such Subscription.
All Subscription Fees are nonrefundable. Upon termination, cancellation or discontinuation of your Subscription for any reason, you will not be entitled to receive a refund for any Subscription Fees or other amounts previously charged to you, or for any unused portion of any Subscription Fees if such termination, cancellation or discontinuation occurs prior to the expiration of the applicable Subscription Term.
You may change your email, credit card information or other Payment Information for your account by using the Account Settings available in your user profile. It is solely your responsibility to keep your account information and Payment Information accurate and up-to-date. If the Payment Information for your account is invalid and cannot be billed for the renewal Subscription Fee at the time such Subscription Fee is payable and due, then SmugMug may terminate your account for nonpayment. If SmugMug does not have a current, working email address for your user account, then you may not receive important notices from us regarding your account, including notices regarding termination. SmugMug cannot guarantee that you will receive notice of the termination of your account.
7. "SmugVault" Account
8. Backup Policy
YOU ARE SOLELY RESPONSIBLE FOR CREATING AND MAINTAINING BACKUP COPIES OF ANY USER CONTENT YOU UPLOAD, POST OR MAKE AVAILABLE THROUGH THE SERVICES DURING ANY APPLICABLE SUBSCRIPTION TERM AT YOUR SOLE COST AND EXPENSE. YOU MAINTAIN RESPONSIBILITY AND LIABILITY FOR ANY LOSSES OR DAMAGES YOU INCUR FOR FAILURE TO MAINTAIN BACKUP COPIES OF YOUR USER CONTENT. SMUGMUG IS NOT LIABLE TO YOU FOR ANY DAMAGES OR LOSSES THAT RESULT FROM THE LOSS OR BREACH OF YOUR USER CONTENT IN CONNECTION WITH YOUR USE OF THE SMUGMUG SERVICES.
SmugMug uses third party vendors to host and store any Media that you upload to SmugMug through your use of the Subscription Services. We may require our vendors to maintain certain standards with respect to your User Content, but SmugMug does not guarantee that your User Content will be secure and/or available at all times during the Subscription Term. SmugMug does not guarantee that your User Content will be available on the Services after the termination of your Subscription, irrespective of the reason for such termination. It is your sole responsibility to create and maintain backup copies of any such User Content on a regular basis.
Please note that when User Content or other files are deleted (or your account is cancelled), those files will be deleted as soon as reasonable pursuant to SmugMug's data destruction policies and cannot be recovered by SmugMug or any third party vendor following deletion (including Amazon S3 if you have subscribed to a SmugMug Vault account).
9. Use of User Information
10. Independent Contractors
Use of the SmugMug Subscription Services does not create a partnership, agency, joint venture or any employee-employer relationship between you and SmugMug. At all times the relationship between you and SmugMug will be that of independent contractors. You are responsible for all state, local, federal or other taxes that you are obligated to pay in connection with your use of the Subscription Services.
11. Terms and Conditions Applicable to SmugMug Pro
Certain Subscription Plans include access to the "SmugMug Pro" services, which include platforms, tools and other features designed for our users who are photography professionals. All SmugMug Pro users must be paid subscribers to a qualifying SmugMug Subscription Plan. For information regarding whether a Subscription Plan constitutes a "SmugMug Pro" plan, please see the description of Subscription Plans available here.
SmugMug Pro users with certain Subscription Plans may be eligible to participate in the SmugMug profit-generation program (the "Profit Program"). The Profit Program enables qualifying SmugMug Pro users to generate, track and collect payments based on the sale of such user's Photos, Videos and other Products ("Profit Payments"). In exchange for your participation in the Profit Program, SmugMug will collect a percentage commission on the sale of your Photos, Videos or other Products. In order to participate in the Profit Program, you must at all times be an active subscriber to a qualifying Subscription Plan and you must have paid your Subscription Fee for the applicable Subscription Term. You are not entitled to Profit Payments that are generated during a Free Trial unless you subsequently subscribe to a full Subscription and pay all Subscription Fees associated with a qualifying SmugMug Pro Subscription Plan.
SmugMug may provide additional terms and conditions or policies regarding the Profit Program (including SmugMug's commission percentage) at the profit-generation program home page available here. Any such terms and conditions or policies with respect to the Profit Program are incorporated herein by reference. SmugMug has the right to change the terms and conditions or other policies governing the Profit Program at any time (including the calculation of earned fees) at its sole discretion by posting such revised terms to the Site.
SmugMug Pro users with certain Subscription Plans may be eligible to offer coupons, discounts, or credits that reduce the charge to the customer for Products purchased and/or branding tools, boutique packaging and other services that increase your cost to SmugMug for the Products sold. These discounts and services may result in the total amount paid by such customer to fall below what you owe SmugMug for that order. In such case, you will be liable for reimbursing SmugMug for the difference between the amount paid by such customer and what you owe SmugMug for that order and, in the case of a print credit, for SmugMug's stated share of the markup on such order. You hereby authorize SmugMug to bill the credit card designated in your Account Settings for such difference. If you have not provided valid credit card information in your Account Settings, you will be responsible for directly reimbursing SmugMug for all such amounts by any designated payment method that SmugMug deems appropriate (including by reducing your Profit Payments). Your failure to provide such reimbursement to SmugMug may result in SmugMug pursuing legal action against you in order to recover such amounts.
Any Profit Payments that you earn through your participation in the Profit Program will be paid to you in connection with the preferences and user settings available in your Account Settings. Any Profit Payments will be paid via electronic bank deposit for all U.S. SmugMug Pro users. For any international SmugMug Pro users, Profit Payments will be paid by electronic means or other payment method offered or used by SmugMug at such time. You are not entitled to any interest payments on Profit Payments, regardless of your preferences for the timing of such Profit Payments. Further, you are not entitled to receive Profit Payments if you have a negative balance on your account or if you currently owe SmugMug any amounts in connection with your participation in any SmugMug programs. In order to be paid Profit Payments, you must submit to SmugMug (i) all requested tax information applicable to you or your business ("Tax Information") by correctly filling out and successfully submitting the online tax and payment form available here and (ii) valid and current Payment Information to facilitate the payout of your Profit Payments (including applicable bank information for U.S. SmugMug Pro users). You may be asked to submit Tax Information and Payment Information through your Account Settings or by submitting any other online forms requested by SmugMug from time to time. It is your sole responsibility to keep your Tax Information and Payment Information updated, valid and current throughout the duration of your participation in the Profit Program.
In the event a customer requests a refund or otherwise disputes or changes any order made in connection with the Profit Program (including, but not limited to, the return or destruction of physical Products), SmugMug may adjust any current or future Profit Payments to which you are entitled to reflect such refund, dispute or change. If you do not have a current balance of unpaid Profit Payments sufficient to cover the amount at issue in such refund, dispute or change, you will be responsible for directly reimbursing SmugMug for all such amounts by any designated payment method that SmugMug deems appropriate. Your failure to provide such refunded, disputed or changed Profit Payment amount to SmugMug may result in SmugMug pursuing legal action against you in order to recover such amounts.
Termination & Forfeiture of Profits
If your Subscription is terminated for any reason (including non-payment of Subscription Fees) or if you no longer qualify for the Profit Program for any reason (e.g., you downgrade your Subscription Plan), you are no longer eligible to participate in the Profit Program. In the event of such termination, SmugMug will pay you any outstanding earned Profit Payments if (i) you have provided SmugMug with valid and current Tax Information and Payment Information and (ii) your outstanding Profit Payment amount exceeds the cost of SmugMug's processing fees for such payment. If you do not provide SmugMug with valid and current Tax Information and Payment Information prior to the termination, cancellation, downgrade or other applicable change to your Subscription, or if your outstanding Profit Payment amount does not exceed the cost of SmugMug's processing fees for such payment, you thereby forfeit and waive your rights to any Profit Payments that you have earned as a participant in the Profit Program. IN THE EVENT OF SUCH FORFEITURE, YOU HEREBY AGREE THAT SMUGMUG WILL HAVE NO LIABILITY TO YOU FOR ANY DAMAGES, LOSSES, CLAIMS OR OTHER FEES OR PAYMENTS RELATED TO OR OTHERWISE ARISING OUT OF THE FORFEITURE OF YOUR PROFIT PAYMENTS.
You are responsible for all costs and expenses incurred in connection with your performance of any activities related to the Profit Program, including, but not limited to, compensation, bonuses, and benefits, if any, for your personnel, and any and all taxes, fees, duties, tariffs or charges that may be imposed on you in connection with your participation in the Profit Program. As such, you acknowledge that any Profit Payments belong to you and not to SmugMug. The Profit Payments represent the only compensation payable by SmugMug to you in connection with your participation in the Profit Program and no other compensation of any kind is payable to you for participating in the Profit Program. In certain jurisdictions, SmugMug may be required to withhold, collect and/or remit certain sales or other taxes in connection with the purchase of Products or your participation in the Profit Program and any such taxes will reduce the Profit Payments you receive.
C. ADDITIONAL TERMS APPLICABLE TO SALES OF PRODUCTS ("TERMS OF SALE")
SmugMug facilitates your purchase of Photos, Videos or Products through the SmugMug Services through its relationships with the SmugMug Vendors. If you purchase Photos, Videos or other Products through the SmugMug Services, you acknowledge that the printing of any Photos or creation of other physical medium Products is performed by such SmugMug Vendors and SmugMug's role is to assist, facilitate and support such order process pursuant to these Terms of Sale.
1. Pricing; Payment Terms
In order to purchase Products through the SmugMug Services, you are required to provide valid Payment Information as required by SmugMug. SmugMug may terminate your order for Products and take such other action as appropriate if we are unable to process your Payment Information and you do not provide an alternative form of payment upon SmugMug's request. You agree to reimburse SmugMug for any and all costs incurred in collecting amounts owed by you to SmugMug or a SmugMug Vendor, including, without limitation, attorneys' fees and costs of collection agencies.
You are responsible for any taxes that you are obligated to pay or that SmugMug may collect from you in connection with your purchase of Products. If you do not pay the sales or other taxes or fees on a transaction, you will be responsible for the taxes or fees in the event they are later determined to be payable on the sale, and SmugMug reserves the right to collect the taxes or other related fees from you at any time. In certain jurisdictions, SmugMug may be required to collect and remit sales tax in connection with your purchase of Products. Any such taxes will be added to the purchase price and reflected on your invoice or receipt.
2. Product Downloads; Shipping Terms and Policies
If you purchase a Video or Photo download, such download will be made available to you through the Services upon SmugMug's receipt of your valid Payment Information.
If you purchase Photo prints or other physical medium Products (i.e., photo books or other photo merchandise), SmugMug will use its commercially reasonable efforts (and our SmugMug Vendors will use commercially reasonable efforts) to ship all orders for such Products within the estimated delivery time applicable to various methods of shipping available at the time you place your order. SmugMug is not responsible for any delays in shipping. SmugMug or the SmugMug Vendors reserve the right to substitute another carrier of equal or lesser cost to deliver your order at our discretion. All shipping charges are your responsibility. Shipping charges will be included in your shopping cart and can be viewed on a summary screen prior to finalizing your order. The shipping charge shown during the Product checkout process is subject to verification and to correction or change without notice, provided that if the actual shipping charge is more than the amount shown in your shopping cart, we will contact you with the correct shipping costs before processing your order, and you will have an opportunity to cancel your order. All orders are shipped FOB shipping point. Title to the physical medium of the Products passes from SmugMug to you upon shipment. If an item in your order is temporarily out of stock, we may hold your order until it is complete prior to shipment.
3. Return Policy
SmugMug unconditionally guarantees your satisfaction with any Products that you purchase through the Services. If you are unsatisfied with any Photos, Videos or other Products you have purchased from SmugMug, we will gladly accept the return of any Product you have ordered for any reason within thirty (30) days of your receipt of the Product. Upon completion of the return procedure and receipt of the returned Product, we will resend you the Product or issue you a full refund of the purchase price paid for such Product, whichever you prefer. We do not provide refunds for your original shipping cost unless your order is physically defective in some manner. If you are unsatisfied with a Product that is not in a physical medium form (i.e., a Photo download), then upon your request, we may issue you a full refund of the purchase price paid for such Product at our discretion depending on the circumstances. To request a refund or replacement for any Product, please contact SmugMug at email@example.com. Please do not contact your credit card company to dispute a charge before contacting SmugMug.
4. Product Availability and Pricing
SmugMug or the SmugMug Vendors may revise or discontinue Product options at any time without prior notice, and Products may become unavailable even after an order is placed. All prices are subject to change without notice.
5. Product Descriptions; Pricing; Errors
SmugMug strives to maintain accurate information in the Services and to eliminate any errors. However, we do not warrant that Product descriptions, Photos, Videos, pricing or other SmugMug Materials are accurate, complete, reliable, current, or error-free. In addition, all weights and size dimensions are approximate. While we make reasonable efforts to accurately display all details of our Product offerings, including the applicable color, please note that the actual color you will see for a Photo depends on the settings of your computer screen and we cannot guarantee that your computer will accurately display all Photo colors. SmugMug or a SmugMug Vendor reserves the right to format, manipulate or otherwise modify Photos as may be required to satisfy a particular order. If a Product offered by SmugMug is not as described or pictured, your sole remedy is to return the Product in unused condition for a refund within thirty (30) days of receipt. In the event of an error, whether contained in the Services, in an order confirmation, in processing an order or otherwise, we reserve the right to correct such error and charge the correct price or cancel the order, and your sole remedy in the event of such error is to cancel your order.
6. Disclaimer of Warranties
THE FOREGOING RIGHT TO RETURN ANY ORDER WITHIN THIRTY (30) DAYS IS YOUR SOLE AND EXCLUSIVE REMEDY, AND SMUGMUG'S SOLE AND EXCLUSIVE LIABILITY, WITH RESPECT TO THE PURCHASE OF ANY PRODUCTS USING THE SERVICES, AND SMUGMUG EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PURCHASE OF ANY PRODUCTS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
D. LICENSE AGREEMENT
These License Agreement terms apply to Content Owners who have subscribed to a Subscription Plan granting such Content Owner the ability to license Media through the use of the Services. Certain SmugMug Pro users may be entitled to license digital versions of such user's Photos or Videos to other SmugMug users for an applicable license fee under the terms of such user's Subscription Plan.
1. Rights Granted by Content Owner
By uploading or posting Photos or Videos to be licensed to SmugMug users, Content Owner hereby grants to SmugMug the right to facilitate the licensing by Content Owner of Photos or Videos posted on SmugMug to a licensee according to the licensing designation (a Commercial Use License or Personal Use License) identified by the Content Owner upon submission of the Photos or Videos.
2. Content Owner Responsibilities
Content Owner is responsible for all Photos or Videos posted to SmugMug through the Services, including without limitation the designation of Photo or Video license types (either personal or commercial) and the setting of license fees (if applicable) through the tools available in Content Owner's Account Settings.
3. Media Submission and Licensing
Photos or Videos designated for commercial license should be free from any distinguishable third party names, trademarks, logos, copyright designs, works of art, architecture, or any other depictions requiring additional rights. Content Owner understands and agrees that all Photos or Videos are licensed directly by the Content Owner subject to the license and the license type and the license fees (if applicable) for Photos or Videos as chosen by Content Owner. SmugMug merely facilitates and enables such license and does not maintain any responsibility or liability for the Photos or Videos.
So long as Content Owner has agreed to make the Photos or Videos available through the Services there will not be any restraint on the licensing of such Photos or Videos through the Services to any SmugMug users to the fullest extent possible, according to the type of license provided by the Content Owner.
4. Representations and Warranties of Content Owner
Content Owner represents and warrants to SmugMug that:
- Content Owner owns (or has legal right to represent and license) all intellectual property rights, title and interest in and to all Photos or Videos, including applicable copyrights, submitted through the Services and has the right to grant all licenses granted herein without violating the rights of any third party;
- All information concerning all Photos or Videos provided by Content Owner to SmugMug through the use of the Services is, to the best of Content Owner's knowledge, true and accurate; and
- All Photos or Videos submitted or posted by Content Owner have all necessary releases, consents and permissions required to grant the licenses granted under the applicable license, including, without limitation, valid Model Releases and Property Releases for Photos or Videos depicting recognizable people (living or dead) and private properties, permissions regarding posting Photos or Videos containing individuals under the age of 18, and all written permission regarding all distinguishable trademarks.
"Commercial Use License" means a licensing type in which the licensee is entitled to use the Photos or Videos subject to the commercial use license.
"Model Release" means a written release signed by or on behalf of any living person or the estate of a deceased person who is depicted in whole or in part in any Photos or Videos.
"Personal Use License" means a licensing type in which the licensee is entitled to use the Photos or Videos subject to the personal use license.
"Property Release" means a written release from the owner and/or occupier of any property that is depicted in whole or in part in any Photos or Videos.
E. COPYRIGHT POLICY
In accordance with the Digital Millennium Copyright Act of 1998 ("DMCA"), the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/pl105-304.pdf, and other applicable laws, SmugMug has adopted a policy of terminating, in appropriate circumstances and at SmugMug's sole discretion, the accounts of users who are deemed to be repeat infringers. SmugMug may also, at its sole discretion, limit access to SmugMug's website and services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. SmugMug will respond to claims of copyright infringement committed using SmugMug that are reported to SmugMug's Designated Copyright Agent, identified in the sample notice below.
If you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the SmugMug Services by completing the following DMCA Notice of Alleged Infringement and delivering it to SmugMug's Designated Copyright Agent.
Upon receipt of the Notice as described below, SmugMug will take whatever action, at its sole discretion, it deems appropriate, including removal of the challenged material from the SmugMug Services.
DMCA Notice of Alleged Infringement ("Notice"):
- Identify the copyrighted work that you claim has been infringed, or if multiple copyrighted works are covered by this Notice you may provide a representative list of the copyrighted works that you claim have been infringed.
- Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the SmugMug Services where such material may be found.
- Provide your mailing address, telephone number, and, if available, email address.
- Include both of the following statements in the body of the Notice: (i) "I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)"; and (ii) "I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
- Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to SmugMug's Designated Copyright Agent:
Designated Agent Nick Wilson Address of Designated Agent SmugMug Inc.
67 E Evelyn Avenue
Mountain View, CA 94041
Email Address of Designated Agent firstname.lastname@example.org