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A. GENERAL TERMS
2. Hosting Service Terms
THE MATERIALS, INFORMATION AND OPINIONS INCLUDED AND/OR EXPRESSED IN OR ON BULLETIN BOARDS, CHAT ROOMS, COMMUNITY PAGES OR OTHER FORUMS ON THIS SITE ("FORUMS") ARE NOT NECESSARILY THOSE OF FOTO VISURA OR ITS AFFILIATED OR RELATED ENTITIES OR CONTENT PROVIDERS. FOTO VISURA DOES NOT UNDERTAKE TO MONITOR OR REVIEW FORUMS (ALTHOUGH IT RETAINS THE RIGHT TO DO SO), AND THE CONTENT OF FORUMS IS NOT THE RESPONSIBILITY OF FOTO VISURA. FOTO VISURA MAY REMOVE OR MODIFY ANY CONTENT WITHOUT NOTICE OR LIABILITY AT ANY TIME IN ITS SOLE DISCRETION. ANY USE OF THE FORUMS WILL BE AT YOUR OWN RISK AND WILL BE SUBJECT TO THE DISCLAIMERS AND LIMITATIONS ON LIABILITY SET OUT ABOVE.
3. Sales Terms
4. License Agreement
Visura's Platform enables only those persons or entities who own or are otherwise validly authorized to license Photos (the "Content Owner") to post such Photos on the Platform.
5. Copyright And Limited License
The Platform and all photos, text, video, code and other content and materials on the Platform and the selection and arrangement thereof (collectively, the "Platform Materials") are the property of Visura or its licensors or users and are protected by United States and international copyright laws FOR THE SOLE USE OF DISPLAYING ON THE VISURA.CO SITE OR EMBEDDING FROM THE FOTO VISURA SITE.
NOTWITHSTANDING THE FOREGOING, FOTO VISURA INC DOES NOT RETAIN THE RIGHT TO USE IMAGES UPLOADED TO OR DISPLAYED ON the Platform (EXCLUDING THOSE CREATED BY OR OTHERWISE COPYRIGHTED TO FOTO VISURA OR ITS PARTNERS) FOR ANY USE INCLUDING COMMERCIAL OR PROMOTIONAL, OUTSIDE OF VISURA WEBSITES AND MOBILE APPS, WITHOUT PRIOR WRITTEN CONSENT FROM THE COPYRIGHT HOLDER.
1. the collection, copying or distribution of any portion of the Platform, Mobile App, or the Platform Materials;
2. any unauthorized resale, commercial use, commercial exploitation, distribution, public performance or public display of the Platform or any of the Platform Materials;
3. modifying or otherwise making any derivative uses of the Platform or any of the Platform Materials;
4. scraping or otherwise using any data mining, robots or similar data gathering or extraction methods;
5. with the exception of your own photos, or others' photos available for download, the downloading of any portion of the Platform, the Platform Materials or any information contained therein; or
6. any use of the Platform or the Platform Materials other than for their intended purposes.
Any use of the Platform or of any Platform Materials other than as specifically authorized herein, without the express prior written permission of Visura or the Content Owner, is strictly prohibited and will terminate and constitute a breach of the license granted herein.
6. Repeat Infringer Policy
In accordance with the Digital Millennium Copyright Act and other applicable law, Visura has adopted a policy of terminating, in appropriate circumstances and at Visura's sole discretion, account holders who are deemed to be repeat copyright infringers. Visura may also, at its sole discretion, limit access to the Platform and/or terminate any account holders who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
7. Copyright Complaints
If you believe that any material on the Platform infringes upon any copyright that you own or control, you may file a notification of such infringement with our Designated Agent as set forth below.
Designated Agent: Graham Letorney // support@Visura.co
"Visura", the Visura logo, the look and feel of the Platform, and any other Product or Service names, logos or slogans of Visura contained in the Platform are trademarks or other protected intellectual property of Visura (collectively, the "Visura Marks") and may not be copied, imitated or used without the prior written permission of Visura. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Platform are the property of their respective owners.
You may create a text hyperlink to the Platform, provided such link does not portray Visura or any of its Products or Services in a false, misleading, derogatory or otherwise defamatory manner This limited right may be revoked by Visura at any time. Further, you may not frame the Platform without Visura's express written consent.
Visura makes no representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party Web sites accessible by hyperlink from the Platform, or Web sites linking to the Platform. Visura provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation or endorsement of any site or any information contained therein. When you leave the Platform, you should be aware that our terms and policies no longer govern.
10. Third Party Content
Visura may host third party content on the Platform ("Third Party Content"). Such inclusion does not imply affiliation, endorsement, approval, or control by Visura of any Third Party Content. Visura makes no claim or representation regarding, and accepts no responsibility for, such Third Party Content or for the quality, accuracy, nature, ownership or reliability thereof. Users use such Third Party Content at their own full risk. All postings on the Platform are subject to our obligations to all third party providers as well.
11. Advertisements And Promotions; Third Party Products and Services;
Visura subscribers (on their own sites) or Visura (on public areas of the Platform) may run advertisements and promotions from third parties on the Platform or facilitate the sale of certain products or services by third parties through the Platform. Your business dealings or interactions with such third parties, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party, and Visura does not endorse, approve, or control any such products, services, advertising or promotions. Visura is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or third party products and services on the Platform.
12. User Content
the Platform includes media hosting and storage services, discussion forums or other interactive areas in which you or other users may post or transmit Photos, text, music, messages, information or other content or materials ("User Content"). You are solely responsible for the User Content you post or transmit and you agree not to post, transmit or otherwise publish through the Platform any of the following:
1. User Content that is unlawful, defamatory, obscene, pornographic, racist, abusive, indecent, lewd, sexually suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable or harmful, including without limitation photographs or other User Content containing nudity that would be unacceptable in a public museum where minors visit;
2. 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;
3. User Content that may infringe or violate any patent, trademark, trade secret, copyright or other intellectual or other proprietary right of any party;
4. User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
5. Unsolicited promotions, political campaigning, advertising or solicitations;
6. Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
7. Viruses, corrupted data or other harmful, disruptive or destructive files;
8. Includes programs which contain viruses, worms and/or 'Trojan horses' or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications; disrupts the normal flow of dialogue, causes a screen to scroll faster than other users are able to type, or otherwise act in a way which affects the ability of other people to engage in real time activities via the Platform; amounts to a 'pyramid' or similar scheme; amounts to 'data warehousing' (i.e., using any web space made available to you as storage for large files which are only linked from other sites). You must provide a reasonable amount of content to accompany such material in order that at least some of the traffic to your site comes directly via us.
9. User Content that, in the sole judgment of Visura, is objectionable, harmful or which restricts or inhibits any other person from using or enjoying the Platform, or which may expose Visura or its users to any harm or liability of any nature.
In addition, you are prohibited from removing any sponsorship banners or other material inserted by Visura anywhere on this Platform (e.g., on any web space made available for your use).
Although Visura has no obligation to screen, edit or monitor any of the User Content posted on the Platform, Visura reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Platform at any time and for any reason without notice. You are solely responsible for creating backup copies of and replacing any User Content you post or store on the Platform at your sole cost and expense.
You retain the copyright in any User Content you post on the Platform. Visura neither has nor wants any ownership of your Content. However, by uploading and/or posting any User Content to the Platform, you grant Visura a perpetual, nonexclusive and royalty-free right to use the User Content and the name that is submitted in connection with such User Content, as is reasonably necessary to display the User Content, provide the Services and to facilitate, at Content Owner's direction, the license of Photos or the sale of Products on the Platform.
You understand and acknowledge that any User Content contained in public postings, including any galleries that are not designated as private or password protected, will be accessible to the public and could be accessed, indexed, archived, linked to and republished by others including, without limitation, appearing on other web sites and in search engine results. Therefore, you should be careful about the nature of the User Content you post. Visura will not be responsible or liable for any third party access to or use of the User Content you post. Visura provides many security options and settings for your content and you should read and understand them all.
13. Your Account.
In order to create an account, you must be 18 years of age or older. By registering, you represent and warrant that you are over 18 and that all information you provide in the registration form ("Registration Data") is complete and accurate. Visura reserves the right to refuse service to anyone at any time, with or without cause in its sole discretion. You agree to keep your registered email addresses and other Registration Data current and complete, as Visura may send important notices about your account or the Services to that email account.
14. Account Security
You are solely responsible for maintaining the confidentiality of the password associated with your account and for restricting access to your password and to your computer while logged into the Platform. You agree to accept responsibility for all activities that occur under your account or from your computer. We endeavor to use reasonable security measures to protect against unauthorized access to your account and to any User Content you designate as unlisted, hidden or password-protected. We cannot, however, guarantee absolute security of your account, your User Content or the personal information we collect, and we cannot promise that our security measures will prevent third-party "hackers" from illegally accessing the Platform or its contents. You agree to immediately notify Visura of any unauthorized use or your account or password, or any other breach of security, and to accept all risks of unauthorized access to the Registration Data and any other information you provide to Visura.
The Hosting Services will only be available to users (a) who register for a free trial or for a subscription to the Hosting Services ("Subscription") and (b) who pay in full the Subscription fees ("Subscription Fees") applicable to the level of Subscription you select (the "Subscription Plan"). Visura currently accepts VISA, MasterCard, Discover and American Express credit cards. The various Subscription Plans Visura offers and the services, features and Subscription Fees applicable to such Subscription are available on the Platform. By subscribing, you agree to pay all applicable Subscription Fees and other charges in accordance with the particular Subscription Plan you select. Please note that the foregoing does not apply to the termination of your account in accordance with Section B.4 below.
When you first register with Visura, Visura enables "PRIME MEMBERS" to use the Hosting Services without charge for a 14 day period (a "Free Trial"). "BETA TESTING" not withstanding, all other accounts are required to pay upfront. Visura requires that you provide payment information when you first register.
The Hosting Services are intended to be used by Visura account holders with PRIME and GUILD accounts for limited distribution of photos, videos as well. Visura, in its sole discretion, reserves the right to limit, suspend or terminate your use of the Hosting Services if Visura determines your use of the Hosting Services is a misuse of the Hosting Services.
16. DISCLAIMER OF WARRANTIES
the Platform, the Platform MATERIALS, THE PRODUCTS AND THE SERVICES 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, FOTO VISURA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT AS TO THE PLATFORM, THE PLATFORM MATERIALS, THE PRODUCTS AND THE SERVICES.
FOTO VISURA DOES NOT REPRESENT OR WARRANT THAT the Platform MATERIALS OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT the Platform, ITS SERVERS OR EMAIL SENT FROM FOTO VISURA OR the Platform ARE FREE OF VIRUSES, TROJAN HORSES OR OTHER HARMFUL COMPONENTS. FOTO VISURA IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT OR PHOTOGRAPHY. FOTO VISURA ALSO MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY, RELIABILITY OR SECURITY OF THE PLATFORM AND SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR ANY MODIFICATION, SUSPENSION, UNAVAILABILITY, OR DISCONTINUANCE OF THE PLATFORM OR THE PRODUCTS OR SERVICES PROVIDED THEREON.
17. LIMITATION OF LIABILITY
IN NO EVENT SHALL FOTO VISURA OR ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, 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 PLATFORM, THE SERVICES, THE PRODUCTS, THE CREATIVE LICENSES, THE CONTENT OR THE PLATFORM MATERIALS CONTAINED IN OR ACCESSED THROUGH THE PLATFORM, INCLUDING ANY DAMAGES CAUSED BY OR RESULTING FROM YOUR RELIANCE ON ANY INFORMATION OBTAINED FROM FOTO VISURA, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, TROJAN HORSES,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 FOTO VISURA's RECORDS, PROGRAMS OR SERVICES.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FOTO VISURA, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTEDAND OF WHATEVER DEGREE OR LEVEL), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE the Platform, THE SERVICES, THE PRODUCTS, THE CONTENT, THE CREATIVE LICENSES OR the Platform MATERIALS, EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO FOTO VISURA FOR ACCESS TO OR USE OF THE PLATFORM OR THE SERVICES OR FOR THE PURCHASE OF PRODUCTS.
19. Applicable Law
22. Claims of Infringement
If you believe that any content appearing on this Platform infringes your copyright rights, we at Visura want to hear from you. Please forward the following information in writing to the Copyright Agent at the address listed below.
your name, address, telephone number, and e-mail address;
a description of the copyrighted work that you claim has been infringed;
the exact URL or a description of each place where alleged infringing material is located;
a statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
a statement by you made under penalty of perjury, that the information in your notice is accurate, that you are the copyright owner or authorized to act on the copyright owner's behalf.
1319 Vt. Rt. 128
Westford, Vt. 05494
Visura seeks to preserve any and all exemptions from liability that may be available under the copyright law, but does not necessarily stipulate that it is a “service provider” as defined in USC Section 512(c) or elsewhere.
B. ADDITIONAL TERMS APPLICABLE TO MEDIA HOSTING SERVICE ("HOSTING SERVICE TERMS")
23. Term and Upgrades
All Subscriptions are provided for a one (1) year term, WHICH TERM WILL AUTOMATICALLY RENEW EACH TERM UNLESS THE SUBSCRIPTION IS TERMINATED AND/OR CANCELLED BY YOU OR FOTO VISURA PRIOR TO THE END OF SUCH TERM IN ACCORDANCE WITH SECTION B.4 BELOW. Upon such renewal, the credit card designated on your account will be billed the applicable Subscription Fee then in effect at the time of renewal. If you notify Visura (via the Settings accessible from your Visura profile page) that you wish to upgrade to a higher subscription level, then the credit card designated on your account will be billed for the difference in price, prorated for the remainder of your term.
24. Interruptions or Discontinuation of Hosting Services; Changes to Hosting Services and Terms of Service.
Visura reserves the right at any time, in its sole discretion and without notice, to suspend, modify, discontinue or permanently cancel the Hosting Services, or portions thereof; and the Subscriptions and Subscription Plans, including making changes to any policies, features and terms applicable thereto. If the Hosting Services, or any part thereof, to which you subscribe are permanently discontinued or canceled by Visura, your Subscription will terminate, and we will have no further liability to you. In addition, there may be occasions when the Hosting Services are interrupted such as for maintenance, upgrades, system or equipment failure or otherwise. Visura WILL HAVE NO LIABILITY TO YOU FOR ANY INTERRUPTION, SUSPENSION, DISCONTINUANCE OR UNAVAILABILITY OF THE HOSTING SERVICES FOR ANY REASON OR AT ANY TIME, OR FOR ANY LOSS OF OR INABILITY TO ACCESS ANY PHOTOS OR OTHER MEDIA OR MATERIALS STORED ON the Platform. YOU ARE SOLELY RESPONSIBLE FOR MAKING AND SAFEKEEPING, BACKUP COPIES OF PHOTOS OR OTHER MEDIA OR MATERIALS YOU POST TO the Platform.
25. Termination of Services.
You may request termination of a Subscription at any time by creating a Cancellation Request (Settings > Subscription), or by sending an email to support@Visura.co that provides clear written notice of such request, including the "account name" you provided to Visura at the time you ordered your Subscription. When Visura receives your termination request, Visura will terminate your Subscription if it has the necessary information to do so. Visura will notify you of termination via email. Visura may request additional information from you prior to terminating your Subscription(s). A Subscription is not terminated in this manner until you receive confirmation of termination from Visura.
All Subscription Fees are nonrefundable, and upon termination, cancellation or discontinuation of a Subscription for any reason, you will not receive a refund for any Subscription Fees or other amounts previously charged to you, or for any unused portion of any Subscription. Upon termination, any User Content you have stored on the Platform may no longer be retrieved, so you should make a backup copy of any such User Content on a regular basis and before terminating your account.
You may change your email or the credit card information for your account by using the Subscription Page or by sending an email to email@example.com that provides clear written notice of the requested change, including the "nickname" currently associated with your Visura Subscription. If the credit card designated on your account is invalid and cannot be billed for the renewal Subscription Fee, then Visura may terminate your account for nonpayment. If Visura does not have a current, working email address, then you may not receive important notices from us regarding your account, which may include notices regarding termination. If your account is terminated and Visura cannot reach you due to an invalid email address or for any other reason, then Visura will (subject to Section B.4) endeavor to retain your User Content on the Platform for at least 30 days after termination. However, Visura cannot guarantee that your User Content will remain on the Platform after termination or that you will receive notice of such termination, so you should make a backup copy of any such User Content on a regular basis.
26. Use of User Information.
"Commercial Use License" means a licensing type in which the licensee is entitled to use the Photos 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.
"Personal Use License" means a licensing type in which the licensee is entitled to use the Photos 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 Photo.
28. Class Action Waiver
If permitted by applicable law, each party waives the right to litigate in court or an arbitration proceeding any Dispute as a class action, either as a member of a class or as a representative, or to act as a private attorney general.
29. Binding Arbitration
Binding Arbitration. If you and Visura are unable to resolve a Dispute through informal negotiations within 30 days after receipt of the Notice of Dispute, either you or Visura may elect to have the Dispute finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. You understand that by this provision, you and Visura are foregoing the right to sue in court and have a jury trial. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, or if you send Visura a notice to the Notice of Dispute address above indicating that you are unable to pay the fees required to initiate an arbitration, then Visura will promptly pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator shall make a decision in writing, and shall provide a statement of reasons if requested by either party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. You and Visura may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.