1.1. “Annual Membership” means Subscriber’s agreement to receive access to and use of the Photoboxx app for one (1) year with automatic renewals of such access to and use of the Photoboxx app for successive annual periods until canceled by Subscriber or terminated by Photoboxx, in exchange for payment equal to the then-applicable monthly rate charged by Photoboxx for access to and use of the Photoboxx app.
1.2. “Commencement Date” means the date Subscriber is provided access to the Photoboxx app by Photoboxx.
1.3. “Claims” means any and all claims, debts, losses, liabilities, whether joint or several, obligations, demands, costs, damages, expenses, judgments, fines, settlements and any other amounts arising from any and all claims, demands, actions, suits or proceedings, including all costs incurred in the settlement or defense of such liability or claim and reasonable attorneys’ fees, whether such liability or claim is known or unknown.
1.4. “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party negatively affected, including but not limited to, failures of the internet or any public telecommunications network, hacker attacks, distributed denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars.
1.5. “Intellectual Property” means a commercially valuable product of the human intellect, in a concrete or abstract form, such as a copyrightable work, a protectable trademark, a patentable invention or a trade secret.
1.6. “Monthly Membership” means Subscriber’s agreement to receive access to and use of the Photoboxx app for one (1) month with automatic renewals of such access to and use of the Photoboxx app for successive monthly periods until canceled by Subscriber or terminated by the Photoboxx app, in exchange for payment equal to the then-applicable monthly rate charged by Photoboxx for access to and use of the Photoboxx app.
1.7. “The Photoboxx App” means the hashtag printing Software, analytics dashboard Software, and other accompanying Software made available by Photoboxx to Subscriber via the internet.
1.8. “Software” means the compiled, machine-readable, and/or executable version of computer code as may be improved, Updated, or modified by Photoboxx in the future.
1.9. “Subscriber Data” means any of Subscriber’s information, documents, electronic files, or other data provided to Photoboxx as a result of Subscriber’s use of the Photoboxx app.
1.10.“Term” means the duration of time from the Commencement Date through the last day of the monthly or annual period in which the Subscriber cancelled Subscriber’s Monthly Membership or Annual Membership. In the case of termination of Subscriber’s Membership by Photoboxx, the Term shall cease immediately as of termination by Photoboxx, and shall not continue through the end of the monthly or annual period.
1.11.“Update” means any patch, bug fix, release, version, modification or successor to the Photoboxx app.
1.12.“User” means a named individual to whom Subscriber has granted access to use the Photoboxx app on behalf of and for the sole benefit of Subscriber. Users may include Subscriber’s employees, consultants, contractors or agents provided said individual is using the Photoboxx app for the sole benefit of Subscriber.
2.1. Subscriber’s Photoboxx membership shall commence on the date Subscriber is provided access to the Photoboxx app by Photoboxx (“Commencement Date”) and shall continue for: (A) one (1) month and shall automatically renew for successive monthly periods until canceled or terminated by Photoboxx (“Monthly Membership’); or (B) one (1) year and shall automatically renew for successive annual periods until canceled or terminated pursuant to by Photoboxx (“Annual Membership”).
2.2. If Subscriber enters into a Monthly Membership, Subscriber will be billed each month on the calendar day corresponding to the Commencement Date. For example, if the Commencement Date is August 5, the next monthly payment is due on September 5.
2.3. If Subscriber enters into an Annual Membership, Subscriber will be billed each year on the anniversary of the Commencement Date. For example, if the Commencement Date is August 5, 2016, the next annual payment is due on August 5, 2017.
2.4. If the Commencement Date is on a day not contained in a given month or year, Photoboxx may bill Subscriber on a day in the applicable month or year Photoboxx deems appropriate. For example, if the Commencement Date is January 31st, Photoboxx may bill Subscriber on February 28th.
2.5. Photoboxx reserves the right to change the timing of its monthly and/or annual billing.
2.6. Notwithstanding the foregoing, at the election of Photoboxx, the Monthly Membership or Annual Membership shall not renew if Subscriber is in violation of any of the terms and conditions herein.
2.7. “Billing” shall mean a charge, debit or other payment clearance against the Payment Method.
3. Payment Terms
3.1. With respect to a Monthly Membership, Subscriber agrees to pay Photoboxx the the applicable monthly rate charged by Photoboxx for access to and use of the Photoboxx app. Subscriber authorizes Photoboxx to charge Subscriber’s Payment Method each month at the then applicable monthly rate plus any other charges resulting from Subscriber’s use of the Photoboxx app, such as taxes or transaction fees.
3.2. With respect to an Annual Membership, Subscriber agrees to pay Photoboxx the the applicable annual rate charged by Photoboxx for access to and use of the Photoboxx app. Subscriber authorizes Photoboxx to charge Subscriber’s Payment Method each year at the then applicable annual rate plus any other charges resulting from Subscriber’s use of the Photoboxx app, such as taxes or transaction fees.
3.3. Photoboxx reserves the right to adjust monthly and annual pricing for the Photoboxx Membership or any of its components in any manner and at any time as Photoboxx may determine in its sole and absolute discretion.
3.4. Subscriber acknowledges that the applicable rate for the Monthly Membership and Annual Membership is subject to change and the amount billed to Subscriber’s Payment Method may vary as a result of a change in the applicable rate for the Monthly Membership and/or the Annual Membership. Any change in the applicable rate will take effect after notice to Subscriber.
3.5. All monthly and annual charges are fully earned upon payment.
3.6. If a payment is not successfully settled for any reason, Subscriber shall remain responsible for any and all uncollected amounts. Subscriber authorizes Photoboxx to continue billing the Payment Method, as it may be updated in order to collect any and all uncollected amounts. If a payment is not successfully settled for any reason, Photoboxx may charge interest on the uncollected amount at the rate of twelve percent (12%) per annum or four percent (4%) above the equivalent coupon issue yield (as published by the Board of Governors of the Federal Reserve System) of the average bill rate for twenty-six week treasury bills as determined at the first bill market auction conducted during the calendar month immediately preceding the date such amount due hereunder became overdue. All accrued but unpaid interest shall be capitalized annually.
If a payment is not successfully settled for any reason, Photoboxx reserves the right to immediately and without notice to Subscriber suspend Subscriber’s access to and use of the Photoboxx app, until all uncollected amounts have been paid in full.
3.8. ALL PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. Upon cancellation, Subscriber shall continue to have access to the Photoboxx app for the remainder of the annual period (Annual Membership) or the monthly period (Monthly Membership).
4. Payment Method
4.1. Subscriber shall provide Photoboxx with a current, valid, accepted method of payment (“Payment Method”). It is Subscriber’s sole and absolute responsibility to ensure the Payment Method is a current, valid, and accepted method of payment. Subscriber may edit Subscriber’s Payment Method at any time.
4.2. For certain Payment Methods, your issuer or provider may charge a foreign transaction fee, currency exchange fee, or other similar fee. Such fees are the sole and absolute responsibility of Subscriber.
5. Use Rights
5.2. Notwithstanding anything herein, Subscriber acknowledges that Photoboxx is agreeing to provide a service and Photoboxx is not agreeing to deliver copies of the Photoboxx app or any other Software to Subscriber.
5.3. Subscriber hereby grants to Photoboxx the right to use, copy, transmit, modify and display Subscriber Data for purposes of Subscriber’s use of the Photoboxx app and Photoboxx’s own uses so long as the Photoboxx app is not selling Subscriber Data.
5.4. Subscriber may use third-party software or applications in connection with Subscriber’s use of the Photoboxx app. Subscriber acknowledges that Photoboxx is not in any way responsible for third-party software or applications used by Subscriber, and Subscriber acknowledges that Subscriber’s use of third-party software and applications is at Subscriber’s sole risk.
6.1. Subscriber shall not, and shall not permit anyone to, directly or indirectly: (i) copy or republish the Photoboxx app or related Software, (ii) make the Photoboxx app or related Software available to any person other than Users, (iii) copy, disassemble, reverse engineer, or decompile the Photoboxx app or related Software, or otherwise attempt to derive the source code, (iv) modify or create derivative software based upon the Photoboxx app or related Software, (v) access the Photoboxx app or related Software to create a competing product or service, (vi) license, sell, rent, lease, transfer, grant, any rights in or otherwise commercially exploit the Photoboxx app or related Software, or (vii) access or use the Photoboxx app or related Software for any purpose that violates any applicable law or regulation.
Photoboxx shall own all right, title, and interest in and to all Intellectual Property, the Photoboxx app, all Software, services, and other products and services, including all modifications, improvements, Updates, derivative works and feedback related thereto and intellectual property rights therein. Subscriber hereby assigns all right, title, and interest it may now have or in the future create or acquire in any of the foregoing to Photoboxx.
7. Cancellation and Termination
7.1. Subscriber may cancel the Monthly Membership or Annual Membership at any time through the the Photoboxx application platform. However, Photoboxx does not provide refunds or any partial monthly or annual period. Photoboxx reserves the right to, in its sole and absolute discretion, grant a refund on a case by case basis.
Photoboxx may immediately and without notice or compensation to Subscriber terminate Subscriber’s Monthly Membership or Annual Membership or suspend Subscriber’s or any User’s access to the Photoboxx app if:
7.2.2. Photoboxx believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of: (A) the Photoboxx app; or (B) Photoboxx’s access to and use of third-party websites, software, application programming interfaces, applications, servers, online services or environments; or
7.2.3. Photoboxx suspects any Subscriber or User is engaged in any illegal or improper use of the Photoboxx app or related Software.
8. Subscriber Data and User Data
8.2. Subscriber agrees to comply with all intellectual property, data privacy, privacy, data, and all other laws and regulations applicable to Subscriber, Subscriber Data, and Subscriber’s use of the Photoboxx app or any third-party websites, software, application programming interfaces, applications, servers, online services or environments.
9. Disclaimer of Warranties, Limitation of Liability, and Interruptions
9.1. The Photoboxx app and all content and Software associated therewith, are provided “as is” and “as available” with all faults and without warranty of any kind. Photoboxx does not guarantee, represent, or warrant that Subscriber’s use of the Photoboxx app will be uninterrupted or error-free.
9.2. To the maximum extent permitted by applicable law, Subscriber agrees to hold harmless and indemnify Photoboxx and its employees, officers, directors, agents, and other partners from and against any all Claims, including but not limited to, third party Claims arising from or in any way related to Subscriber’s access to and/or use of any third-party Software, website, application, or the Photoboxx app.
9.3. To the maximum extent permitted by applicable law, Subscriber agrees that in no event shall Photoboxx or its employees, officers, directors, agents, and other partners, be liable (jointly or severally) to Subscriber for damages of any kind.
9.4. Subscriber represents and warrants to Photoboxx that Subscriber has the legal right to obtain, transmit, display, use, transfer, or otherwise disseminate any and all Subscriber Data and other data transmitted, directly or indirectly, by Subscriber to Photoboxx or any third-party.
9.5. By accessing and using the Photoboxx app, Subscriber represents and warrants that Subscriber is of sufficient legal age to enter into a legally binding Monthly Membership or Annual Membership.
9.6. Subscriber acknowledges the Photoboxx app receives data from third parties, such as Twitter and Instagram, and that the receipt of such data is central to the functionality of the Photoboxx app. Subscriber acknowledges the Photoboxx app is hosted via third-party servers.
9.7. Subscriber agrees that Photoboxx is not responsible or liable for the content, policies, practices, lack of availability or access (whether temporary or permanent), of any third-party websites, software, application programming interfaces, applications, servers, online services or environments.
9.8. Subscriber’s access to or use of the Photoboxx app may on occasion be interrupted, with or without prior notice. Such interruption may be within the control of Photoboxx and be to ensure or improve the integrity or functionality of the Photoboxx app. Such interruption may be outside of Photoboxx’s control. Subscriber agrees that Photoboxx will not be liable for any damages of any type allegedly resulting from any interruption of Subscriber’s access to or use of the Photoboxx app, whether such interruption was within Photoboxx’s control or not. Subscriber acknowledges and agrees that Subscriber will not be entitled to any refunds of fees or other compensation for any interruption of service.
9.9. Subscriber agrees that in the event of loss of any Subscriber Data, Photoboxx will not be liable for any purported damage or harm arising therefrom.
10. Support and Updates
10.1. Photoboxx aims to provide high quality and responsive support to Subscriber. Accordingly, Photoboxx shall provide help desk support to Subscriber during normal business hours in the Pacific Time Zone.
10.2. Photoboxx aims to provide the highest quality Software. Therefore, Photoboxx reserves the right to Update or change the Photoboxx app at any time without giving Subscriber notice of such Update or change.
11.1. By using the Photoboxx app, Subscriber consents to receiving electronic communications from Photoboxx, including by email to the email address provided during registration and in Subscriber’s account information contained within the Photoboxx app. Subscriber agrees that any notices, agreements, disclosures or other communications sent by Photoboxx to Subscriber electronically shall satisfy any legal communication requirements, including that such communications be in writing. Subscriber also consents to receiving other communications pertaining to the Photoboxx app from Photoboxx, such as promotional announcements, customer surveys, and other similar communications. Subscriber may unsubscribe from such communications either via clicking the unsubscribe link in any email communication or through the Photoboxx app communication preference settings.
11.2. Subscriber should be mindful of any communication requesting Subscriber submit credit card or other sensitive or private information that could be used to compromise the security of Subscriber’s identity, financial assets, or internal systems. Always access sensitive information through the Photoboxx app and not through a hyperlink in an email, tweet, or other electronic communication, even if it appears to have come from Photoboxx.
12. Prohibited Images and Content
12.1. Subscriber agrees to hold harmless and indemnify Photoboxx and its employees, officers, directors, agents, and other partners from any and all Claims and violations of law resulting from any and all images or content uploaded or posted with a hashtag promoted or marketed, directly or indirectly, by or for the benefit of Subscriber when such images or content are discriminatory or contain hate speech, threats, pornography, sexually explicit material, nudity, partial nudity, or gratuitous violence.
14. Choice of Law
15. Acts of God/Force Majeure
15.1. Neither Party shall be responsible for failure to fulfill its obligations due to the occurrence of a Force Majeure Event, so long as such Party is using commercially reasonable efforts to remedy such failure or delays.