Effective Date: July 21, 2020
This End User Agreement (“Agreement”) governs your use of any product or services of SpotMyPhotos, an assumed name of CloudSpotter Technologies Inc., a Delaware corporation (“CloudSpotter”, “we”, “us”, or “our”). By accessing or using the CloudSpotter website, the CloudSpotter service, or any applications (including mobile applications) made available by CloudSpotter (collectively, the “Services”), however accessed, you agree to be bound by this Agreement. By accessing or using the Services, you acknowledge that you have read, understood, and agree to be bound by this Agreement. The Services are owned or controlled by CloudSpotter. If you do not agree to be bound by all of this Agreement, you are not authorized to access or use the Services.
Please read this Agreement carefully – it affects your legal rights and, among other things, designates that arbitration will be the manner for the resolution of any and all disputes, as explained more fully in the Dispute Resolution Section below.
1. GENERAL TERMS
(a) You must be at least 13 years old to use the Services. You agree not to post violent, nude, partially nude, discriminatory, racist, unlawful, infringing, hateful, or obscene photos or other content via the Services. You are responsible for any activity that occurs through your account and you agree you will not sell, transfer, license or assign your account, username, or any account rights. With the exception of people or businesses that are expressly authorized to create accounts on behalf of their employers or clients, CloudSpotter prohibits the creation of an account for anyone other than yourself. You also represent that all information you provide or have provided to CloudSpotter upon registration and at all other times is true, accurate, current and complete and you agree to update your information as necessary to maintain its truth and accuracy.
(b) You agree that you will not solicit, collect or use the login credentials of other users of the Services. You are responsible for keeping your password secret and secure. You agree not to engage in defaming, stalking, bullying, abusing, harassing, threatening, impersonating or intimidating people or entities and you agree not to post private or confidential information via the Services, including, without limitation, any credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public e-mail addresses.
(c) You agree not to use the Services for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (e.g., federal, state, local and provincial laws) applicable to your use of the Services and your Content (as defined below), including but not limited to, applicable copyright laws. You are solely responsible for your conduct and any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials (collectively, “Content”) that you submit, post or display on or via the Services.
(d) You agree not to access CloudSpotter’s private application programming interface (“API”) by means other than those permitted in writing by CloudSpotter. You agree not to create or submit unwanted e-mail, comments, likes or other forms of commercial or harassing communications (also known as “spam”) to any users of the Services. You agree not to use domain names or web URLs in your username without CloudSpotter’s prior written consent. You agree not to interefere or disrupt the Services or servers or networks connected to the Services, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You agree not to inject content or code or otherwise alter or interfere with the way any CloudSpotter page is rendered or displayed in a user’s browser or device.
(e) You agree not to create accounts with the Services through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper. You agree not to attempt to restrict another user from using or enjoying the Services and you agree not to encourage or facilitate violations of this Agreement or any other CloudSpotter terms. Any violation of this Agreement may, in CloudSpotter’s sole discretion, result in the termination of your CloudSpotter account. You understand and agree that CloudSpotter cannot and will not be responsible for the Content provided via the Services and you use the Services at your own risk.
(f) CloudSpotter does not claim ownership of any Content that you post on or through the Services. Instead, you hereby grant to CloudSpotter a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Services in accordance with the permissions you grant through the functionality of the services or the access and use of the Content.
(g) It is CloudSpotter’s policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested and to which certain specific terms, conditions and requirements may apply. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, CloudSpotter does not accept unsolicited materials or ideas, and takes no responsibility for any materials or ideas so transmitted. If, despite this policy, you choose to send us content, information, ideas, suggestions, or other materials, you further agree that CloudSpotter will own such materials and is free to use any such content, information, ideas, suggestions or other materials, for any purposes whatsoever, including, without limitation, developing and marketing products and services, without any liability or payment of any kind to you.
2. REMOVAL AND DEACTIVATION OF USERS
CloudSpotter reserves the right, in its sole discretion, to remove, block, edit, move or disable any user account at any time for breach of this Agreement. If we terminate your access to the Services or you use the form detailed above to deactivate your account, your photographs, and all other data will no longer be accessible through your account, but those materials and data may persist and appear within the Services. Upon termination, all licenses and other rights granted to you in this Agreement, if any, will immediately cease.
CloudSpotter may udpate or modify this Agreement from time to time. If CloudSpotter makes material changes, it will provide advance notice to you either by email, by posting a notification through the Services, or by posting an updated Agreement in advance of the effective date of the updated Agreement. Please note that unless otherwise provided by applicable law, your continued use of CloudSpotter following the effective date means that you agree with, and consent to be bound by, the updated Agreement. CloudSpotter may, in its sole discretion and at any time, discontinue any Services or any part thereof or prevent your use of the Services without notice to you.
4. LICENSE GRANT
The Services contain content owned or licensed by CloudSpotter (“CloudSpotter Content”). CloudSpotter Content is or may be protected by copyright, trademark, patent, trade secret and other laws, and, as between you and CloudSpotter, CloudSpotter owns and retains all rights in CloudSpotter Content and the Services. CloudSpotter grants you a personal, limited, non-transferable, non-exclusive license to use the Services. You agree not to copy or download any Services except with CloudSpotter’s prior written approval. In addition, without the prior written approval of CloudSpotter, You agree not to distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sublicesne, decompile, disassemble, reverse engineer, or otherwise make unauthorized use of the Services. You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to or within the Services. Your rights are subject to your compliance with this Agreement as well as any other agreements applicable to the Services you are using. Making unauthorized copies or distribution of the Services may result in the termination of your access to the Services, prohibition on use of the Services, and further legal action. You agree to indemnify CloudSpotter, its affiliates, employees, agents, representatives, licensors or other third party partners from any breach of this Agreement and from any unauthorized or illegal conduct done directly by you or through the use of the Services.
5. ACCOUNT AND ENTITLEMENTS; TERMINATION OF SERVICES
You agree not to allow any third party to use your account. You have the right to cancel your account or a particular subscription to the Services at any time through user account preferences found below any of your personal galleries, the CloudSpotter website, by contacting a CloudSpotter teammate at email@example.com or through other means that CloudSpotter may provide through the Services. You agree that the cancellation of your use of the Services is your sole right and remedy with respect to any dispute with CloudSpotter. Upon the cancellation of your use of the Services, all data and content produced as a result of the usage of the Services will remain in our server for a minimum of 14 days (the “Retention Period”). During the Retention Period, you may request a copy of such data or content provided that the backup fee, as set forth on CloudSpotter’s website, is paid in full and in advance. After the Retention Period, CloudSpotter may remove, delete or destroy any of the data and content stored on its server. The decision to destroy any data or content at any time in accordance with this section is in CloudSpotter’s sole discretion.
6. RULES OF CONDUCT
You agree to the following rules of conduct for the Services:
(a) You will not indicate that you are a CloudSpotter employee or representative, or attempt to mislead users by indicating that you represent CloudSpotter or any other third party related to CloudSpotter.
(b) You may only upload or save information through the Services that you own, have permission to, or a legal right to store or distribute in accordance with this Agreement and the applicable law.
(c) You will not save data nor upload files that contain a virus, worm, spyware, time bombs, corrupted data or other computer programs that may damage, interfere with or disrupt the Services or otherwise interfere with any other person’s ability to use the Services.
(d) You agree not to modify or attempt to modify any part of the Services that CloudSpotter does not specifically authorize you to modify.
(e) You may only use the Services on or through any service that is controlled or authorized by CloudSpotter.
(f) You will not conduct any activities that violate the laws of any jurisdiction including, but not limited to, infringement of intellectual property rights, defamation, invasion of privacy, identity theft, hacking, stalking, fraud and the distribution of counterfeit software.
(g) Specific Services may also post additional rules that apply to your conduct on those Services.
7. COMPLIANCE WITH LAWS
You will obey all federal, state, and local laws, regulations and rules that apply to your activities when you use the Services. CloudSpotter reserves the right to terminate your account and to prevent your use of any and all Services if your account is used to engage in illegal activity or to violate this Agreement.
9. EXPORT CONTROL LAWS
CloudSpotter and the Services may be subject to U.S. export controls, and export controls of other jurisdictions. By using or downloading any Services, you warrant that you are not located in any country, or exporting the Services to any person or place, to which the U.S., the European Union, or any other jurisdiction has embargoed goods. You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any Services subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload nor save to the Services any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. The assurances and commitments in this section will survive termination of this Agreement.
10. UPDATES TO THE SERVICES
CLOUDSPOTTER MAY FIND IT NECESSARY TO UPDATE OR RESET THE SERVICES. THESE UPDATES OR RESETS MAY CAUSE YOU SETBACKS WITHIN THE RELEVANT SERVICES AND MAY AFFECT YOUR USE OF SUCH SERVICES. CLOUDSPOTTER RESERVES THE RIGHT TO MAKE THESE UPDATES OR RESETS AND IS NOT LIABLE TO YOU FOR THESE CHANGES OR SETBACKS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICES AND THE INTERNET IS AT YOUR SOLE RISK. THE SERVICES, THIRD PARTY SERVICES, AND PRODUCTS ARE PROVIDED ON AN “AS IS,” “WHEREAS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. NO WARRANTY IS GIVEN ABOUT THE QUALITY, FUNCTIONALITY, ACCURACY, AVAILABILITY OR PERFORMANCE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES. CLOUDSPOTTER DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT CLOUDSPOTTER WILL HAVE ADEQUATE CAPACITY FOR THE SERVICES AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH CLOUDSPOTTER, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OR OTHER THIRD PARTY PARTNERS ARISING OUT OF OR RELATING TO THE SERVICES IS TO STOP USING THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT CLOUDSPOTTER, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OR OTHER THIRD PARTY PARTNERS ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION, USE OR CONTENT ON THE SERVICES.
12. LIMITATION OF LIABILITY
IN NO EVENT WILL CLOUDSPOTTER’S, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OR OTHER THIRD PARTY PARTNERS LIABILITY TO YOU EXCEED THE AMOUNT THAT YOU PAID TO CLOUDSPOTTER FOR THE SERVICES IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABIITY. IN NO CASE WILL CLOUDSPOTTER OR ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OR OTHER THIRD PARTY PARTNERS BE LIABLE FOR INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE SERVICES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, CLOUDSPOTTER, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OR OTHER THIRD PARTY PARTNERS LIABILITY WILL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
Upon CloudSpotter’s request, you agree to defend, indemnify and hold harmless CloudSpotter, its affiliates, employees, agents, representatives, licensors or other third party partners against any claim for any liabilities, damages, losses, judgments and expenses, including attorneys’ fees, that arise from or relate to a breach of this Agreement by you. CloudSpotter reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by you. This section will survive the termination of this Agreement.
14. DISPUTE RESOLUTION
Agreement to Arbitrate (“Agreement to Arbitrate”) and Waiver of Class Action Claims
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
If a dispute arises, our goal is to provide you a neutral and cost effective means to resolve it quickly. Most disputes can be resolved informally. Before filing a claim against us, you agree to try to resolve the dispute by contacting us in writing at 444 N Wells Street – Suite 304, ATTN: DISPUTE NOTICE, Chicago, IL 60654, or by email to firstname.lastname@example.org. Before we file a claim against you, we agree to contact you at the email address associated with your CloudSpotter account. If the dispute is not resolved within 30 days of notice, either you or we may bring a formal proceeding pursuant to the following procedures:
A. GENERAL. YOU AGREE THAT YOU AND CLOUDSPOTTER WILL RESOLVE THROUGH BINDING ARBITRATION ANY DISPUTE, CLAIM OR CONTROVERSY BETWEEN US ARISING OUT OF OR RELATING IN ANY WAY TO CLOUDSPOTTER OR YOUR USE THEREOF, INCLUDING THIS AGREEMENT (collectively, “ARBITRAL CLAIMS”), with a few exceptions set forth below. The arbitrator, and not any court, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement to Arbitrate, including any claim that all or any part of this Agreement to Arbitrate is void or voidable, or whether a claim is subject to arbitration.
ARBITRATION IS DIFFERENT FROM COURT. THE RULES, INCLUDING DISCOVERY, ARE DIFFERENT AND NO JUDGE OR JURY IS PRESENT AT AN ARBITRATION. IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COST OF LITIGATION, AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED. THE AWARD IS FINAL AND BINDING AND SUBJECT ONLY TO LIMITED REVIEW BY A COURT. YOU UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, YOU MAY HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
B. ARBITRATION SERVICES AND RULES. The American Arbitration Association (“AAA”) will administer the arbitration using the AAA procedures and rules in effect on the date the Arbitration is filed (“AAA Rules”). In the event the AAA Rules are inconsistent with this Agreement to Arbitrate, this Agreement will prevail. AAA is independent from us, and you may obtain copies of the current AAA Rules, and other related materials, including forms and instructions for initiating arbitration, by contacting AAA at 150 N Michigan Ave #3050, Chicago, IL 60601 or http://adr.org.
C. LOCATION OF ARBITRATION. If your claim is for $7,500 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules, and any in-person hearing will be held in Chicago, IL, or any other location you and we mutually agree to.
D. EXCEPTIONS TO ARBITRAL CLAIMS. Either you or we may bring claims to enforce intellectual property rights without first engaging in arbitration or the informal dispute resolution described in this Section.
E. CLASS ACTION WAIVER. YOU AND CLOUDSPOTTER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE WITH CLOUDSPOTTER THAT NEITHER YOU NOR CLOUDSPOTTER WILL JOIN ANY ARBITRAL CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY IN A LAWSUIT, ARBITRATION OR OTHER PROCEEDING; THAT NO ARBITRAL CLAIM WILL BE RESOLVED ON A CLASS-WIDE BASIS; THAT NEITHER YOU NOR CLOUDSPOTTER WILL ASSERT AN ARBITRAL CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE; AND BOTH PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable or that arbitration can proceed on a class basis, then this Agreement to Arbitrate will be deemed null and void in its entirety and the parties will be deemed to have not agreed to arbitrate disputes.
F. NO RIGHT TO JURY TRIAL. YOU AND CLOUDSPOTTER ALSO HEREBY WAIVE THE RIGHT TO A JURY TRIAL EVEN IF THIS AGREEMENT TO ARBITRATE IS HELD NOT TO APPLY. YOU EXPRESSLY WAIVE YOUR RIGHT TO A JURY TRIAL IN THE EVENT THAT EITHER PARTY SELECTS ARBITRATION TO RESOLVE THE DISPUTE UNDER THIS AGREEMENT.
G. 30 DAY OPT OUT RIGHT. You have the right to opt-out and not be bound by the arbitration and the class action waiver provisions set forth in this Section by sending written notice of your decision to opt-out to the following address: CLOUDSPOTTER, ATTN: Arbitration Opt-out, 444 N Wells Street – Suite 304, Chicago, IL 60654, or by email to email@example.com. For new users, the notice must be sent within 30 days of first registering for CloudSpotter, and for existing users, the notice must be sent within 30 days of the effective date of this policy. If you do not opt-out, you will be bound to the terms in this Section. If you choose to opt-out, CloudSpotter also will not be bound.
15. GENERAL TERMS
You agree that the Agreement are not intended to confer and do not confer any rights or remedies upon any person other than the parties to this Agreement. You also understand and agree that if any part of this Agreement (including any supplemental terms which are incorporated by reference into this Agreement) are held invalid or unenforceable, that portion will be interpreted in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of CloudSpotter, and the remaining portions will remain in full force and effect. The failure of CloudSpotter to exercise or enforce any right or provision of this Agreement will not constitute waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in a writing signed by CloudSpotter. This Agreement (including any other supplemental terms incorporated by reference into this document) and any posted rules or instructions regarding the Services constitute the entire agreement between you and CloudSpotter.