This is an agreement ("Agreement") for professional retouching services ("Service") between your Company ("Customer") and Pixilu Imaging Inc. ("PII"). Any of the following actions constitutes your agreement, without limitation or qualification, to be bound by, and to comply with, the terms of this Agreement: (i) your initialization of the Service by sending of images to Pixilu via email or an FTP directory, or (ii) your signature on a Pixilu Setup Form.
PII will provide Service including image optimization, cosmetic retouching and other features to Customer. Service may vary due to conditions beyond the control of PII including the type and condition of the Customer's original image files. Service is subject to interruption or limitation due to factors such as: network capacity limitations, installation, repair, and modification to the network, PII's efforts to combat fraudulent use, or other legitimate business and operational reasons. Service is furnished on the condition that there will be no fraudulent use or abuse of the Service. Any attempt by Customer to abuse or to fraudulently use Service may result in the immediate termination of Service.
The term of this Agreement begins on the date we activate Service for you. Unless otherwise agreed, the Agreement covers a fixed term of one year. You agree to purchase service on that plan for the full term. After the term expires, this Agreement will continue from month to month until terminated by either party upon 30 days notice.
· Upload, post, email or otherwise transmit any content that is unlawful, harmful, threatening, harassing, defamatory, obscene, vulgar, invasive of another's privacy, hateful, or otherwise objectionable;
· Upload, post, email or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements) or any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
· Upload, post, email or otherwise transmit any material that depicts the harming of minors or animals in any way;
· Forge headers or otherwise manipulate identifiers to disguise the origin of any content transmitted through the ProRetouch FTP account;
· Upload, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software;
· Interfere with or disrupt (or attempt to interfere with or disrupt) the ProRetouch Site or servers or networks connected to or with the ProRetouch Site, or disobey any requirements, procedures, policies or regulations of networks connected to or with the ProRetouch Site;
· Exhibit expressions of abuse, offensive language and imagery, obscenity, or pornography, including, but not limited to, child abuse, child pornography, depictions of minors engaged in sexual conduct or explicitly sexual situations, or any other material that could give rise to any civil or criminal liability under applicable state or federal law, or violating any laws or regulations of any governing body having jurisdiction over Pixilu, its affiliates or Customers.
Unacceptable actions, listed above, will constitute grounds for blocking your access to ProRetouch services, removal of posted photos and non-fulfillment of your order. Moreover, Pixilu reserves the right to disclose any information posted by you to the relevant government authorities to satisfy any law, regulation or government request.
After notice has been issued that photo(s) file(s) are finished and are available for download, the photo file(s) will remain on our servers for a period of 14 days, after which the file(s) will be deleted. If you cannot complete the download of the picture(s), notify us at Support@ProRetouch.com and the file(s) will be made available for an additional 14 day period or an alternate method of delivery will be arranged.
PII has taken reasonable measures to protect your rights and to protect your photos from unauthorized access and display. However, in order for us to provide you with the services you requested, you:
· Agree that we can, solely in connection with providing these services you request, display, modify, transmit or distribute your photos; and
· Acknowledge that you are the owner of the copyrights to the photos you post or transmit to us, or that you have the permission of the copyright owner to post or transmit the photos.
If you believe your copyright in a work has been violated through the ProRetouch services, please contact ProRetouch's agent for notice of claims of copyright infringement who can be reached at AccountService@ProRetouch.com.
ProRetouch does not control the content of any Customer's photos and does not have any obligation to monitor such content for any purpose. All content provided by a Customer of the ProRetouch service is the sole responsibility of that Customer, not PII.
You agree not to use the Service for any unlawful or abusive purpose or in any way which interferes with our ability to provide Service to our customers. You agree not to use the Service for any illegal activities. Resale of the Service, or any part thereof, is prohibited without prior contractual arrangements with us and any required regulatory approvals. If your Service is fraudulently used, you must immediately notify us. We have the right to interrupt or restrict Service to you, without notice to you, if we suspect fraudulent or abusive activity. You agree to cooperate with us in any fraud investigation and to use any fraud prevention measures we prescribe. Upon termination of the Service, Customer's right to use the Service immediately ceases. Customer shall have no right and PII will have no obligation thereafter to forward any unread or unsent messages to Customer or any third party.
You are responsible for paying all charges to your account for Service, including but not limited to, ProRetouch Premium and Image Optimization services, and quoted charges for any work requested outside of our standard services. During the Term of this Agreement, PII reserves the right to change rates, terms or taxes, on or discontinue its offering of any feature of the Service. At the end of the Term, or during any subsequent month-to-month period, PII reserves the right to change or discontinue any rate plan to Customer.
ProRetouch Premium and Image Optimization services are billed directly to your credit card upon receipt of order, noted by the uploading of image(s) to the FTP directory. Additional fees for requested services outside those included in the base pricing are paid upon the completion of the order. Payment will be deemed made when received by PII. If you have authorized payment by credit card, no additional notice or consent will be required for billings to that credit card or account. You will advise us of any changes to your credit card account, such as account number or expiration date changes. Customer must give PII notice of any disputes regarding charges within 30 days of the date of the disputed charge, in writing, otherwise the charges will be deemed to be correct. If any collection action is taken, Customer agrees to reimburse PII for reasonable attorneys' fees, court costs, and any other costs and fees, including collection agency fees, undertaken to collect past due bills and/or Cancellation Fees. No provision of this Agreement shall require the payment or collection of interest in excess of the maximum permitted by applicable law. If any interest hereby provided for is adjudicated to be unlawful, the provisions of this section shall govern and neither Customer, nor sureties, guarantors, successors or assigns of Customer shall be obligated to pay any amount of interest, or any other sum paid for the use, forbearance, or detention of money, in excess of the lawful amount. If PII receives, collects, or applies as interest any such sum, such amount as permitted by applicable law shall be applied as a payment and reduction of the amount due and owing to PII under this or any other agreement, and if said amount has been paid in full, any remaining excess money shall forthwith be paid to Customer.
Customer shall be deemed to be in default ("Default") of this Agreement if: (a) Customer fails to pay the full amount charged to Customer under this Agreement, or any other agreement between Customer and PII, within 5 days after the due date; (b) you have in the past failed to pay amounts due us or an affiliate of ours; (d) you breach any representation to us or fail to perform any of the promises you have made in this Agreement; (d) you are subject to any proceeding under the Bankruptcy Act or similar laws ; (e) Customer engages in any activity that constitutes illegal or unauthorized use of Service; (f) Customer uses the Service in such a manner that it interferes with or adversely affects PII's service to any other customers, or g) Customer's usage of Service is deemed by PII to be excessive. If you are in default, we may, in our sole discretion and with or without prior notice, suspend or restrict Service and/or terminate this Agreement, in addition to all other remedies available to us. We may require reactivation charges to renew Service after termination or suspension. Upon termination, you are responsible for paying all amounts and charges owing under this Agreement, including any applicable cancellation fee. You agree to pay all costs including attorney’s fees, collection costs and court costs we incur in enforcing this Agreement through any appeal. In the event of a Termination of Service without cause, ProRetouch will refund any monies paid for services that have not been performed.
Customer may terminate this agreement at any time. Customer authorizes PII to terminate Customer's account at the request of persons able to provide Customer's name, FTP account name and password assigned to Customer under this Agreement and who has the Primary Contact privileges. Changes must be submitted in writing or by email to AccountService@ProRetouch.com. Termination shall not impair or discharge any of customer's obligations or liabilities for order made or actions taken by customer prior to the effective date of termination.
PII may terminate its service to you at any time, without cause, by providing written notice. An email sent to the email address that you registered for your Primary Contact shall constitute written notice.
Customer acknowledges that PII has no duty under this Agreement to provide insurance to the benefit of Customer against any losses caused by interruption of service.
Service under this Agreement is subject to sales, use, gross receipts, and other taxes (other than a tax imposed upon the net income of PII), assessments, fees, surcharges, or other governmental charges relating to the services provided, whether or not denominated as a tax, whether imposed now or in the future upon Customer or PII. Taxes, surcharges and assessments may be changed or added in accordance with the applicable taxing authority.
PII shall not be liable to customer for interruptions of service, loss of data, omissions or errors of third parties, equipment failures, acts of God, strikes, government actions, or other causes. PII shall not be liable if changes in operations, procedures, or services require modification or alteration of customer’s service. There shall be no reductions, set offs, or credits against the charges for service for downtime or interruption of service. In no event shall PII be liable to customer for incidental, consequential, or punitive damages, including but not limited to lost profits, loss of use, or loss of business opportunity even if PII has been advised of the possibility of such damages. PII shall not be liable for injury to customer, other persons, or property damage through the use of any service provided under this agreement. This limitation of liability applies to all causes of action.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS PII AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES AND ANY UNDERLYING CARRIER, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, EXPENSES OR DAMAGES (INCLUDING ATTORNEYS' FEES), WHETHER KNOWN OR UNKNOWN, ARISING FROM (A) YOUR USE OF THE SERVICE, (B) ANY OTHER PERSON'S USE OF ANY ACCOUNT OR PIN YOU MAINTAIN, REGARDLESS OF WHETHER SUCH USE IS AUTHORIZED BY YOU, OR (C) YOUR PROMISES OR STATEMENTS MADE IN THIS AGREEMENT. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES. NOTWITHSTANDING THE FOREGOING, YOU SHALL NOT BE LIABLE FOR CLAIMS, EXPENSES OR DAMAGES ARISING FROM THE INTENTIONAL OR GROSSLY NEGLIGENT ACTS OF PII OR ITS EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT. Customer agrees to reimburse PII for any and all costs and reasonable attorneys' fees incurred by PII in defending any claims relating to customer's misuse of service or equipment. Customer also agrees to indemnify, hold harmless, and defend PII against any claims relating to the service brought by customer's callers arising from interruption of service, loss of data, interception of any customer telephone call or fax, omission or errors of third parties, equipment failures, acts of god, strikes, government actions, or other causes beyond PII's reasonable control.
The provision of Service under this agreement may be regulated by federal, state, or local authority where the service is provided. PII reserves the right to make changes to this Agreement and to the provision of Service under this Agreement that are necessary to comply with statutes, rules or regulations governing the provision of the Service. THE LAWS OF THE STATE OF OHIO, U.S.A., GOVERN THIS AGREEMENT AND YOUR USE OF THE PIXILU SERVICES, AND YOU EXPRESSLY AGREE THAT THE EXCLUSIVE JURISDICTION FOR ANY CLAIM OR DISPUTE ARISING FROM THE USE OF THE PII SERVICES RESIDES IN THE STATE AND FEDERAL COURTS OF THE STATE OF OHIO, U.S.A. AND YOU CONSENT TO PERSONAL JURISDICTION IN SUCH COURTS WITH RESPECT TO ALL SUCH CLAIMS OR DISPUTES. In the event that any action is filed to interpret or enforce this Agreement, and if any part of this Agreement is held invalid or unenforceable, that portion shall be construed to reflect the parties' original intent, and the remaining portions shall remain in full force and effect. This Agreement constitutes the entire agreement between PII and you with respect to your use of Pixilu services and your PII account, and it supercedes all prior or contemporaneous communications and proposal, whether oral or written, between PII and you with respect thereto. The failure of PII to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any part of this Agreement is found to be invalid or unenforceable, the remaining provisions shall remain valid and enforceable.
PII wants to demonstrate its commitment to our Customers' privacy; it has agreed to disclose its information practices. PII is the sole owner of the information collected. PII collects information from our Customers at several different points on our Web site and during the set up process. Customer information will be used only for the purposes of creating an account and allowing the Customer to place and retrieve orders from us. Photos are considered personal information and will normally only be viewed by individuals involved in retouching and quality control except when we are required by law to report depictions of illegal activity. Photos are temporarily archived until we are confident that the work has been completed to the customer's satisfaction. We store information that we collect through log files, clear gifs, and/or third parties to create profiles of our Customers. Consequently, collected information is tied to the Customer's personally identifiable information to provide offers and improve the service for the Customer. This profile is used to tailor the Customer’s use of our services and to direct pertinent marketing promotions to them. We do not share profiles with third parties.
Third Party Intermediaries. We use a credit card processing company to bill Customers for goods and services. This company does not retain, share, store or use personally identifiable information for any secondary purposes.
Business Transitions. In the event PII goes through a business transition, such as a merger, being acquired by another company, or selling a portion of its assets, Customers' personal information will, in most instances, be part of the assets transferred. Customers will be notified via prominent notice on our Web site for 30 days prior to a change of ownership or control of their personal information. If, as a result of the business transition, the Customers' personally identifiable information will be used in a manner different from that stated at the time of collection, they will be given choice consistent with our notification of changes section.
Choice/Opt-out. Customers wishing to op-out of any marketing emails may do so by sending an opt-out request to Opt-out@ProRetouch.com.
Surveys. From time-to-time PII requests information from Customers via surveys. Participation in these surveys is completely voluntary and the Customer therefore has a choice whether or not to disclose this information. The requested information typically includes contact information (such as name and shipping address), and demographic information (such as zip code). Contact information will not be shared. Survey information will be used for purposes of monitoring or improving the use and satisfaction of this service. Customers' personally identifiable information is not shared with third parties unless we give prior notice and choice. Though we may use an intermediary to conduct these surveys, they may not use Customers' personally identifiable information for any secondary purposes.
Referrals. If a Customer elects to use our referral service for informing a friend about our service, we ask them for the friend's name and email address. ProRetouch will automatically send the friend a one-time email, and subsequent service call inviting them to use our service. ProRetouch stores this information for the sole purpose of contacting the friend and tracking the success of our referral program. The friend may contact ProRetouch at AccountService@ProRetouch.com to request the removal of this information from our database.
Supplementation of Information. In order for PII to properly fulfil its obligation to Customers, it is necessary for us to supplement the information we receive with information from third party sources.
ID and Address Verification. We use Authorize.Net to verify a Customer's identity and address as part of standard credit card processing.
Enhancement of Marketing Profile. We purchase third party marketing data and add it to our existing Customer database to better target our advertising and provide pertinent offers we think our Customers would be interested in. We use this information to enhance or overlay the 'profile' of individual Customers. This aggregate marketing data is therefore tied to the Customers' personally identifiable information. See also the 'Profile.'
Initial E-mail. We send all new members a welcoming email to verify password and FTP account name. This email requires no response and provides a link to verify the creation of a Customer account.
Service Announcements. On rare occasions it is necessary to send out a strictly service related announcement. For instance, if our service is temporarily suspended for maintenance we might send Customers an email. Generally, Customers may not opt-out of these communications, though they can deactivate their account. These communications are not promotional in nature.
Customer Service. We communicate with Customers on a regular basis to provide requested services and in regards to issues relating to their account. We reply primarily via email or alternately by phone, if there has been no response to the email.
Customer will be furnished with a password-protected ProRetouch FTP account which will be set up and maintained by ProRetouch. You must be logged into your FTP account to transfer or drag & drop files to/from the FTP directory and to create subdirectories. You can use the HTTP access to only download files from the FTP directories. If you give someone access to a directory through the HTTP address, they'll be able to see any/all of the other FTP directories/files on your FTP account.
Because of this, Customer is responsible for all uploading/downloading made through Customer's FTP account. PII normally makes the record for all orders transmitted through Customer's FTP account available on request to Customer.
We may change or modify this Agreement from time to time, but any such change (a) will be made in good faith, and (b) if significant (as determined in the sole discretion of PII), will only be made after first providing you with notice of the change. You can review the most current version of this Agreement at any time at www.proretouch.com/serviceagreement.html. If you do not agree to a significant change, you may terminate this Agreement by giving us written notice within 15 days of receipt of our notice of such significant change. No hand-marked changes on this Agreement or any amendment will be valid unless we accept the changes in writing. Delivery by facsimile transmission (fax) of a copy of a modification of this Agreement shall be effective as delivery of an original. We may assign all or part of our rights or duties under this Agreement in connection with a sale of all or substantially all the assets of PII to a third party without notice to you; provided any such third party shall be obliged to honor the terms of this Agreement. You may not assign this Agreement without our prior written consent.
Notices to you shall be effective when sent by email to the email address provided to us or, at our option, 3 days following the date deposited in the US Mail addressed to your address as kept in our files. You are responsible for notifying us of any changes in your address. Written notice to us shall be effective when directed to our Service Department and received at our address. Your notice must specify your name and FTP account name. Oral notices shall be deemed effective on the date reflected in our records.
THE SERVICES ARE PROVIDED "AS IS." WE MAKE NO WARRANTIES REGARDING THE SERVICE WHATSOEVER AND EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties. If you rely on the representations or warranties of any third persons with respect to the Services (including without limitation by dealers or resellers of the Services) beyond those made by PII, your sole remedy for such reliance is against the third person making such representation or warranty.
You represent and warrant that you are at least 18 years of age and that you possess the legal right and ability to enter into this Agreement.