Date of Last Revision: November 20, 2020
Below are SmugMug's Terms of Use. For a more easily digestible summary, see our "Guide to the Terms of Use for Regular People" here.
For Flickr's Terms of Use click here.
PLEASE READ THESE TERMS AND CONDITIONS OF USE ("TERMS OF USE") CAREFULLY. BY ACCESSING OR USING THIS WEB SITE OR APPLICATION, PURCHASING PRODUCTS OR THE SUBSCRIPTION SERVICES, OR CLICKING THAT YOU AGREE WHEN PROMPTED BY SMUGMUG, YOU AGREE TO BE BOUND BY THESE TERMS OF USE.
These Terms of Use contain provisions that govern how claims that you and SmugMug have against each other are resolved (see Section 15 — Dispute Resolution). These Terms of Use also contain provisions requiring you to resolve certain disputes or claims relating to your use of the Services by binding arbitration, rather than in court. If you do not consent to such terms, you are not permitted to use the SmugMug Services.
Welcome to SmugMug! SmugMug.com (the "Site") provides our users with online tools designed to facilitate and share our love of photography and videos and to promote camaraderie. These Terms of Use protect the legal interests of SmugMug, our users and our third party vendors.
This Site is owned and operated by SmugMug, Inc. and our respective employees, agents, affiliates and contractors (collectively, "SmugMug"). These Terms of Use apply to your access to and use of the Site, the Subscription Services (as defined below) and any other online services provided by SmugMug, including SmugMug mobile and Apple TV applications (collectively with the Site and the rest of the foregoing, the "Services"). For example, these Terms of Use apply to your use of the Services to purchase photographic prints, videos or other related merchandise and products ("Products") through SmugMug's approved third party vendors and retailers ("SmugMug Vendors").
Your use of the Services and your purchase of Products is expressly conditioned upon your agreement to these Terms of Use. If you do not consent to these Terms of Use, you are not permitted to use SmugMug or any SmugMug Services. If you access the Services on behalf of a company or other entity, you warrant that you are an authorized representative of such company or entity with the right to bind such company or entity to these Terms of Use.
The Services are not targeted towards, nor intended for use by, anyone under the age of 16. If you are between the ages of 16 and 18, you may use the Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Use.
SmugMug reserves the right to change, modify, revise or otherwise amend any provision of these Terms of Use, and any other terms, policies or guidelines governing your use of the Services, at any time at its sole discretion by providing notice that the Terms of Use have been modified. Such notice may be provided by sending an email, or by posting a notice on the Site, or by posting the revised Terms of Use on the Site and revising the date at the top of these Terms of Use or by such other form of notice as determined by SmugMug. Your continued use of the Services, or your purchase of any Products or the Services following the posting of the revised Terms of Use or other notice will constitute your acceptance of such changes or modifications. Otherwise, any changes or modifications will be effective within thirty (30) days of the posting of the revisions on the Site unless you notify SmugMug within such thirty (30) days that you do not agree to the changes and stop using the Services. Therefore, you should review these Terms of Use whenever you access the Services and at least every thirty (30) days to make sure that you understand the terms and conditions that will apply to your use of the Services.
You authorize SmugMug to collect, use, disclose and otherwise process information about you as set forth in our Privacy Policy. For residents of the UK or European Economic Area, the preceding sentence is not intended to constitute your “consent” to any processing of your own personal data for purposes of the GDPR or local ePrivacy legislation, and SmugMug will seek such consent separately from these Terms of Use where applicable law requires SmugMug to have your consent.
These Terms of Use and the following additional SmugMug terms and policies (as applicable) together constitute a binding agreement between you and SmugMug. All such additional policies are incorporated into these Terms of Use as applicable and collectively govern your use of the Services and/or purchase of Products.
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.
Data Processing Addendum
The SmugMug Data Processing Addendum supplements these Terms of Use and applies with respect to (i) the Media you upload, and (ii) any labels, tags, comments, descriptions or categorizations that you add to that Media. To the extent of any conflict between these Terms of Use and the Data Processing Addendum, the Data Processing Addendum will govern.
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.
License Agreements
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 [email protected].
Copyright Policy
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.
SmugMug Application
SmugMug's mobile application is available for download by users via authorized application stores and other platforms (e.g., the Apple App Store). If you access and use the Services via the SmugMug application or on a mobile phone, tablet or similar mobile device, you are bound by these Terms of Use.
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.
SmugMug hereby grants you a limited, non-transferable, non-sublicensable, revocable license to access and use the SmugMug Materials solely in accordance with these Terms of Use. Except for the limited licenses granted hereunder, SmugMug reserves all rights not expressly granted and no such additional rights may be implied.
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.
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:
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:
Any use of the Services or of any SmugMug Materials other than as specifically authorized herein, without the express prior written permission of SmugMug and the applicable SmugMug user or the Content Owner, is strictly prohibited. Any such unauthorized use may result in the immediate termination of your rights under these Terms of Use and will constitute a breach of the license granted herein.
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.
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, comments, labels, tags, descriptions, categorizations 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 request, and 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 do the following: (1) provide the Services, including to display the User Content on the Services, to facilitate (at the Content Owner's direction) the license of Photos, (2) comply with your instructions pursuant to SmugMug’s Data Protection Addendum; (3) process the sale of Products through the Services; (4) comply with legal requirements, including disclosing User Content in response to legal process from governmental authorities; (5) disclose User Content without any compulsory legal process when SmugMug believes there is a threat to life or limb. In the absence of a legal requirement to do so, SmugMug may refrain from notifying you of SmugMug’s disclosures to governmental authorities where such notification may jeopardize an important law enforcement investigation. SmugMug may engage service providers for assistance with carrying out any obligation or exercising any right under these Terms of Service.
You represent and warrant that (i) you own or otherwise control all of the rights to the User Content that you post or transmit, or you otherwise have the right to post, use, display, distribute and reproduce such User Content and to grant the rights granted herein; (ii) the User Content you supply is accurate and not misleading; and (iii) the use and posting of the User Content you supply does not violate these Terms of Use and will not violate any rights of or cause injury to any person or entity.
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:
Although we prohibit certain activities in these Terms of Use, SmugMug does not make any representation or warranty that the User Content you may encounter through your use of the Services complies with these acceptable use provisions or the Terms of Use. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. These Terms of Use do not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by these acceptable use provisions.
SmugMug reserves the right (but is not obligated) to (i) review or screen any User Content submitted to the Site or otherwise submitted through the Services; (ii) edit any User Content submitted through the Services (but for Media this will consist of mere editing to address the technical characteristics of the Service or of SmugMug Vendors, not artistic authorship); (iii) remove or take down any User Content from the Services for any reason, at any time, without notice, at our sole discretion. SmugMug will have no liability or responsibility to users of the SmugMug Services or any other person or entity for performance or nonperformance of such activities. SmugMug's enforcement of the acceptable use provisions set forth in these Terms of Use with respect to User Content in some instances does not constitute a waiver of our right to enforce such provisions in other instances involving similar User Content.
Certain activities on the Services require you to register and create an account. In order to create an account, you must be 16 years of age or older. By registering for an account, you represent and warrant that you are at least 16 years of age and that all information you provide in the registration form ("Registration Data") is complete and accurate. SmugMug reserves the right to refuse access to the Services to anyone at any time, with or without cause at its sole discretion. You agree to keep your registered email addresses and other Registration Data current and complete, as SmugMug may send important notices about your account from time to time. By registering for an account, you consent to receive communications from SmugMug about the Services by email and/or system messages consistent with the terms of our Privacy Policy.
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 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" or other unauthorized parties 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.
SmugMug may make third party content and services available on or through the Services ("Third Party Services") solely as a convenience to its users, or because a user posted it or made it accessible (for example, links to third party websites, software and other services).
SmugMug does not indicate 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 THIRD PARTY TERMS AND CONDITIONS AND THIRD PARTY PRIVACY POLICIES APPLICABLE TO SUCH THIRD PARTY SERVICES.
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, the SmugMug Vendors or third party service providers. SmugMug is not responsible or liable for any loss or damage of any kind incurred as the result of your dealings with any of them or otherwise resulting from the presence of advertisements for third party products and services included on the Services.
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.
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.
You agree to defend, indemnify and hold harmless SmugMug and its affiliates and subsidiaries (collectively, the "Indemnified Parties"), and the Indemnified Parties' independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys' fees) arising out of or related to any User Content you post or otherwise transmit on or through the Services, your use of or inability to use the Services, the User Content, the SmugMug Materials or the Products, or the licensing of your Media to third parties through the Services, including any actual or threatened suit, demand or claim made against any of the Indemnified Parties and/or their independent contractors, service providers, employees, directors or consultants, arising out of or relating to your User Content, your conduct, your violation of these Terms of Use or your violation of the rights of any third party.
Applicable Law
Your use of the Services is subject to all applicable local, state, national and international laws and regulations. These Terms of Use and your use of the Services will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without regard to its conflict of law provisions.
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.
You and SmugMug agree to arbitrate any dispute arising from these Terms of Use or relating to the Services, Site or SmugMug Materials. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and SmugMug agree: (i) to notify each other of any dispute within thirty (30) days of when it arises; (ii) to attempt informal resolution prior to any demand for arbitration; (iii) that any arbitration will occur in Santa Clara County, California; and (iv) that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association ("AAA"), including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable). The AAA's rules are available at www.adr.org. Other than class procedures and remedies described in these Terms of Use, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Notwithstanding the foregoing, this section does NOT prevent the parties from seeking public injunctive relief in a court of competent jurisdiction, and you and SmugMug are NOT required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents.
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.
Some jurisdictions may limit or prohibit arbitration agreements or class action waivers. If you are a resident of such a jurisdiction, the arbitration agreement and class action waivers above are not applicable to you. Unless you and SmugMug agree otherwise, in the event that a court decides that any part of this Section 15 is invalid or unenforceable, you agree that any claim or dispute that has arisen or may arise between you and SmugMug must be resolved exclusively by a state or federal court located in Santa Clara County, California. The remainder of the Terms of Use will continue to apply. You and SmugMug agree to submit to the personal jurisdiction of the courts located within Santa Clara County, California for the purpose of litigating all such claims or disputes.
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.
These Terms of Use are binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Notwithstanding the foregoing, you may not assign your rights under these Terms of Use without SmugMug's prior written consent. SmugMug will be permitted to assign its rights under these Terms of Use at its sole discretion.
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.
If any provision of these Terms of Use is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms of Use will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the parties' intent.
The terms and conditions of these Terms of Use which by their nature are intended to survive termination or expiration of Services (including, but not limited to, Indemnification, Warranty Disclaimer, Dispute Resolution and the Limitation of Liability) will survive any expiration or termination of these Terms of Use.
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 protected].
You may use the Subscription Services only in accordance with these Subscription Services Terms (and the Terms of Use of which they are a part). In the event of any conflict between these Subscription Services Terms and the other provisions of the Terms of Use, these Subscription Services Terms will control.
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").
If you wish to purchase a Subscription, we will ask you to provide certain information in order to facilitate such purchase, including your credit card number, billing address and any related payment information as required by SmugMug (collectively, "Payment Information"). SmugMug may use a third party payment processor (e.g., Amazon Payments or PayPal) to facilitate your payment of any Subscription Fees. Any Payment Information that you provide will be governed by the terms of our Privacy Policy. By submitting Payment Information via the Services, you warrant that you have the legal right to use any such credit card or other payment mechanism that you provide to facilitate the transaction.
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.
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.
The Subscription Services are intended to be used by SmugMug users for the distribution and sharing of Photos and/or Videos, as permitted under the user's applicable Subscription Plan. SmugMug, at its sole discretion, reserves the right to limit, suspend or terminate your use of the Subscription Services if SmugMug determines that you have violated these Subscription Services Terms or the Terms of Use.
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.
From time to time, SmugMug may provide certain users with complimentary Subscriptions. Any user accessing the Services by using a free Subscription is bound by the Terms of Use and any applicable terms and conditions of these Subscription Services Terms (including SmugMug's right to terminate or cancel such Subscriptions).
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 [email protected] 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.
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 [email protected] 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 upon your receipt of confirmation and you will not have access to the Subscription Services for the remaining two months of such Subscription.
SmugMug may terminate a Subscription, or any user's access to and use of the Subscription Services, at any time for any reason at its sole discretion, which such termination will be effective immediately. If you violate the Terms of Use, SmugMug at its sole discretion may (i) require you to remedy any violation thereof and/or (ii) take any other actions that SmugMug deems appropriate to enforce its rights and pursue available remedies.
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.
SmugMug provides its users of the Subscription Services with the opportunity to obtain a "SmugVault" account for increased storage capability. The SmugVault service is provided through Amazon.com's Simple Storage Service ("Amazon S3") and is governed by the terms of service for Amazon S3, in addition to these Terms of Use. If you choose to utilize the SmugVault service, you should review Amazon.com's terms of service, as well as its policy regarding privacy and data gathering practices, and any other applicable policies, prior to use of the SmugVault service. In order to utilize the SmugVault service, you must sign up for and obtain an Amazon S3 account. The agreement pertaining to your Amazon S3 account is directly and strictly between you and Amazon.com, and SmugMug is not a party to that agreement. Accordingly, any questions regarding your Amazon S3 account must be directed to Amazon.com, including but not limited to questions regarding billing. The ability to use the Amazon S3 service in connection with the SmugMug Subscription Services is provided solely as a convenience to you and does not imply endorsement, approval, control or adoption by SmugMug of Amazon S3. SmugMug makes no claim or representation regarding, and accepts no responsibility for, your use of Amazon S3, or for the quality, accuracy, nature, ownership or reliability thereof. Your use of Amazon S3 and SmugVault is solely at your own risk.
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).
In the event that you obtain access to any SmugMug user information, whether directly from SmugMug or otherwise, including user names and emails (e.g., through the purchase of your Products by a SmugMug user) (collectively the "User Information"), you agree that you may not use any such User Information in any manner except as may be specifically authorized by SmugMug to carry out the purpose for which such User Information was provided. Without limiting the foregoing, you may not share such User Information with any third parties. Further, you agree not to use such User Information in any manner that would be in violation of SmugMug's Privacy Policy or applicable law. In no event will SmugMug be obligated to provide you with any such User Information. You agree that this provision will apply both during and after the term of your Subscription.
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.
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.
Profit Payments
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.
SmugMug is entitled to withhold payment of current or future earned fees under the Profit Program, recover any refunded, disputed or changed Profit Payments as set forth above (including any amounts owed by you to SmugMug arising out of the use of coupons, discounts, branding tools, boutique packaging and other services as set forth above) and/or suspend or terminate your participation in the Profit Program if you violate these Terms of Use or otherwise use the Profit Program (i) in violation of applicable law, (ii) in a manner that is misleading, fraudulent or deceptive or (iii) for the purpose of perpetrating any scam or other illicit purpose.
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.
Taxes
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.
These Terms of Sale form a part of the Terms of Use applicable to your purchase of any Photos, Videos, or other Products through the SmugMug Services. Other than as specifically provided in any separate written agreement between you and SmugMug, these Terms of Sale may not be altered, supplemented, or amended by the use of any document, such as purchase orders, and all sales are expressly conditioned upon your agreement to these Terms of Sale. In the event of any conflict between these Terms of Sale and the other provisions of the Terms of Use, these Terms of Sale will control.
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 protected]. 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 Vendors, and SmugMug, acting on behalf of the Content Owner, reserve 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.
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
As set forth in the Terms of Use, Photos or Videos submitted to SmugMug through the Services may be rejected or removed from the Services at any time for any reason or for no reason at SmugMug's sole discretion.
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:
5. Definitions
Capitalized terms used but not defined in these Terms of Use above will have the following meanings:
"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.
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 https://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"):
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