This Agreement was last updated on January 05, 2016 ("Effective Date").
This current contract supersedes all prior versions. To the maximum extent permitted and enforceable under applicable law, SpeakingPhoto reserves the right to modify the terms and conditions of this Agreement at any time, effective upon the posting of an updated version of this Agreement. You are responsible for regularly reviewing this Agreement and your use of the Services after any such changes are posted shall constitute your consent to such changes.
You agree not to copy, download, reverse engineer, or create derivative works of any Content made available from our Services for the purpose of republishing, transmitting in a public form, distributing, licensing, sublicensing, selling or reselling through a business that provides similar products or content as our Services.
Updates to this Agreement will be indicated by the "Effective Date" at the top of this Agreement.
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE USING OR CONTINUING TO USE OUR SERVICES.
Legally Binding Agreement
SpeakingPhoto, Inc. ("SpeakingPhoto," "we," or "us") offers an online interactive audio, video and image display and sharing platform and community through its website located at SpeakingPhoto.com and related domains, mobile features, applications, social network integrations, and other interactive features and services (collectively, the "Services"). You desire to have authorized access to and use our Services. SpeakingPhoto authorizes access and use of its Services subject to the following terms and conditions of use ("Terms"). Your access to and use of the Services are subject to these Terms and SpeakingPhoto will not provide the Services except pursuant to these Terms. This Agreement is void where prohibited.
In consideration for the mutual promises contained herein, you and SpeakingPhoto accept and agree to the following Terms:
Age and Capacity Requirement
You must be at least 13 years old to use our Services. If you are at least 13, but are still a minor depending upon where you live, you must have your parent or legal guardian's permission to use our Services. Please have him or her read this Agreement with you.
NOTICE TO PARENTS AND GUARDIANS: By granting your child permission to use our Services, you agree to these Terms on behalf of your child. You are responsible for monitoring and supervising your child's use of our Services. If your child is using our Services and is either under 13 or does not have your permission, please contact us immediately.
You certify that you have the legal capacity to form a binding contract and are not a person barred from accessing or using our Services under the laws of any applicable jurisdiction.
If you choose or are required to complete a registration process to use, download, install or access certain Services, you certify, represent and warrant that the information you provide is true, accurate, complete, current, and that it belongs to you. You may be asked to register as a user by providing a user name, screen name, password, a valid email address or other similar information. You shall keep your account information complete and up-to-date at all times. Failure to maintain your registration account information may cause your access to or use of the Services to be interrupted, suspended or terminated.
You are responsible for monitoring your account and changing your password periodically. You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You must not allow others to use your account. You must safeguard the confidentiality of your account credentials. If you become aware of an unauthorized access to your account, you must change your password and contact us immediately.
You can add a Premium or Pro subscription to your account (turning your account into a "Paid Account"). From any type of trial account, we'll automatically bill you from the date you convert to a Paid Account and on each periodic renewal until cancellation. You're responsible for all applicable taxes, and we'll charge tax when required to do so.
No Refunds. You may cancel your SpeakingPhoto Paid Account at any time but you won't be issued a refund.
Downgrades. Your Paid Account will remain in effect until it's cancelled or terminated under these Terms. If you don't pay for your Paid Account on time, we reserve the right to suspend it or reduce your storage to lower storage levels.
Changes. We may change the fees in effect but will give you advance notice of these changes via a email message to the email address associated with your account.
Termination and Account Removal
This Agreement begins on the date you first use our Services and continues as long as you have an account with us or use or Services. You may terminate this Agreement or cancel your account at any time. If you wish to terminate this Agreement or cancel your account (if you have one), you may simply stop using our Services. Your account may be removed from our Services by us if you remain inactive for a continuous period of at least six (6) months. Subscription accounts (if you have one), will remain active until the end of the subscription and any renewal term.
SpeakingPhoto may suspend, disable, remove, or delete your account (or any part thereof) or block or remove any Content you submit if we determine that you have violated any provision of this Agreement or that your Conduct or Content would tend to damage SpeakingPhoto's reputation and goodwill. If we remove your account, you may not be able re-register for our Services. SpeakingPhoto may terminate this Agreement at any time, for any reason and without prior notice and you will no longer have access to the system or Services.
Upon termination, all licenses granted by us will terminate. In the event of account deletion for any reason, Content that you submitted may no longer be available. SpeakingPhoto shall not be responsible for the loss of such Content. All provisions of this Agreement which by their nature should survive termination, shall survive termination.
License to Use Services
You are granted a limited, non-exclusive, revocable, and terminable license to access and use the Services for your own personal, non-commercial purposes subject to this contract and all existing rights, restrictions and limitations. Your license is individual, personal, non-transferable and non-sub licensable. Your license is limited to one authorized user per account and as otherwise set forth in these Terms. Your license includes the right to view Content as made available on or through the Service. This license may not be assigned or sublicensed to anyone else.
You may not use our Service for commercial purposes without the prior written permission of SpeakingPhoto, in which case you may access and use the Services for commercial and non-commercial purposes, unless you are a small-scale independent production company, non-profit, or artist, in which case you may use the Services to showcase or promote your own creative works unless and until otherwise directed by us.
You certify, represent, warrant and agree that you shall access and use the Services and all Content or other information, materials or systems made available through the Services for legal and legitimate purposes and in a manner that complies with all applicable local, state, national and international laws, regulations or conventions at all times.
Licenses Granted by You
As between you and SpeakingPhoto, you own the audio image Content, including your titles and any annotations thereto ("Audio Image") that you submit to us. By submitting an Audio Image, you grant SpeakingPhoto and its affiliates a limited, worldwide, non-exclusive, royalty-free license and right to copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from your Audio Image for the purpose of (i) displaying the Audio Image within the SpeakingPhoto Gallery or otherwise through the Services as authorized, directed or requested by you; (ii) displaying the Audio Image on third party websites and applications through an audio image embed or API, subject to your Content sharing preferences; (iii) allowing other users to play, download, and embed Audio Images on third party websites or platforms, subject to your Content sharing preferences; (iii) promoting our SpeakingPhoto Services, provided that you have submitted the Content to our public Gallery or otherwise have made the Content publicly available; and (iv) archiving or preserving the Audio Image for disputes, legal proceedings, or investigations.
You further grant all users of the Services permission to view and play your Audio Image(s) for their personal, non-commercial purposes, subject to your Content display preferences. This includes the right to copy and make derivative works from the audio images solely to the extent necessary to view and play the audio images. The foregoing licenses are in addition to any license you may decide to grant (e.g., a Creative Commons license).
The above licenses will continue unless and until you remove your Content from the SpeakingPhoto Services, in which case the licenses will terminate within a commercially reasonable period of time. Notwithstanding the foregoing, the license for legal archival/preservation purposes will continue indefinitely. Please note that removed videos may be cached in search engine indices after removal and that SpeakingPhoto has no control over such caching.
Your Other Content
As between you and SpeakingPhoto, you own all other Content (i.e. other than your Video or Audio Images) and information that you submit to the SpeakingPhoto Services (“Other Content”). You grant SpeakingPhoto and its affiliates a worldwide, perpetual, irrevocable, non-exclusive, royalty-free license and right to copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from your Other Content. In addition, you waive any so-called "moral rights" in your Other Content. You further grant all users of the SpeakingPhoto Services permission to view your Other Content for their personal, non-commercial purposes. If you make suggestions to SpeakingPhoto on improving or adding new features to the SpeakingPhoto Services, SpeakingPhoto shall have the right to use your suggestions without any compensation to you.
Intellectual Property and Proprietary Rights
SpeakingPhoto respects the intellectual property and proprietary rights of others. To reach our representative for notice of claims of copyright infringement or other similar claims, please contact our Copyright Agent listed below.
The Services and all Content and information made available through the Services are subject to copyright, trademark, intellectual property, trade secret and other proprietary rights and their use by you beyond the terms of this contract is strictly prohibited without prior express written authorization. All rights are reserved.
SpeakingPhoto Materials and Marks
The Service contains materials and incorporated functionality owned or licensed by SpeakingPhoto ("SpeakingPhoto Materials"). SpeakingPhoto Materials are protected by copyright, trademark, patent, trade secret and other laws, and, as between you and SpeakingPhoto, SpeakingPhoto and our licensors (including other Users) own and retain all rights in the SpeakingPhoto Materials and the Services. Provided that you are an authorized user, and subject to these Terms, you are granted a limited license as described above to use SpeakingPhoto Materials solely for your personal use in connection with using the Services. All rights not expressly granted by SpeakingPhoto are reserved.
You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the SpeakingPhoto Materials and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the SpeakingPhoto Materials, without specific written authorization of SpeakingPhoto or other applicable rights holder.
The SpeakingPhoto name and logos (the "SpeakingPhoto Marks") are trademarks of SpeakingPhoto, and may not be copied, imitated or used, in whole or in part, without the prior written permission of SpeakingPhoto. In addition, all page headers, designs, custom graphics, button icons, scripts, text, and other files, and the selection, arrangement and organization thereof, are the intellectual property of SpeakingPhoto or its licensors, and are service marks, trademarks and/or trade dress of SpeakingPhoto and may not be copied, imitated or used, in whole or in part, without the prior written permission of SpeakingPhoto. Except as explicitly provided, neither the Website nor this Agreement grant you any right, title or interest in or to any such SpeakingPhoto Materials or SpeakingPhoto Marks.
Copyright Policy, DMCA Notice and Copyright Agent
It is our policy to terminate user accounts of any user who repeatedly infringes copyright upon prompt notification to us by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on or through the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information:
- Your name, address, telephone number, and e-mail address.
- An identification of the copyrighted work that you claim has been infringed.
- A description of where the material that you claim is infringing is located on the Services.
- A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
- A statement by you made UNDER PENALTY OF PERJURY that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
You may send a DMCA notice, a DMCA counter-notification, or any other inquiries concerning intellectual Property or Proprietary Rights to our Copyright Agent:
319 Miller Avenue, Mill Valley, CA 94941
Attn: Legal Dept. – Copyright Agent
Except as expressly permitted by us herein or in writing or by use of the Services as intended by SpeakingPhoto, you will not copy, reproduce, duplicate, publish, display, give, sell, trade, resell, market, offer for sale, distribute, redistribute modify, create derivative works from, decompile, reverse engineer, disassemble or otherwise exploit for valuable consideration the Services, any Content (including Audio Images) or information made available through the Services (other than your own Content) without the express written consent of SpeakingPhoto or other applicable rights holders.
You agree and understand that SpeakingPhoto is not obligated to post, keep or use your Content. SpeakingPhoto may remove your Content at any time in its sole discretion. You are solely responsible at your our own cost and expense to create backup copies of your Content (including Audio Images and Other Content). You also acknowledge that the Internet may be subject to breaches of security and should be aware that submissions of Content or other information may not be secure, and you should consider this before submitting any information via the SpeakingPhoto Services.
As the provider of the Services, SpeakingPhoto is only a forum and is not liable for any statements, representations, depictions, or omissions made through you (or other users) Content. Any opinions, advice, purported facts, or recommendations expressed therein are those of the users who make them, and not those of SpeakingPhoto. SpeakingPhoto does not endorse any Content or Conduct or related opinion, purported fact, recommendation or advice expressed therein. It is your responsibility to exercise due care and caution when submitting Content or accessing and using the Services.
You understand that by using any of our Services, you may encounter Content that may be deemed offensive, indecent, or objectionable, which Content may or may not be identified as having explicit language, and that the results of any search may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that SpeakingPhoto shall not have any liability to you for Content that may be found to be offensive, indecent, or objectionable.
Code of Conduct
This section sets forth the SpeakingPhoto Code of Conduct (“Code”). All users and visitors MUST fully comply with this Code at all times. You certify, represent and warrant that you will not violate this Code. SpeakingPhoto has the right, but not the obligation, to monitor all conduct on and Content submitted to our Services.
You may not submit, contribute, upload, post, share, provide, transfer or transmit (collectively, "submit”) any image, text, audio recording, video, title, annotation, or other similar work, materials or information (collectively, "Content") that:
- You do not have the necessary rights or licenses to contribute.
- Is subject to confidentiality, non-disclosure, non-competition, trade secret or proprietary rights, limitations or restrictions.
- Infringes the copyrights, trademarks, intellectual property rights or other similar proprietary rights of anyone.
- Is defamatory, libelous or invasive of privacy or publicity rights of anyone.
- Is false, misleading, inaccurate, incorrect, incomplete, inexact, outdated or otherwise wrong.
- Is sexually explicit, profane, pornographic, immoral, obscene, vulgar, or otherwise offensive.
- Is violent, dangerous, cruel, harmful, threatening, abusive, harassing, hateful, inflammatory, discriminatory, that incites hatred against any individual or group, or is otherwise objectionable.
- Depicts unlawful acts, extreme violence, or cruelty.
- Exploits minors or solicits information from anyone under the age of 18.
- Promotes fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures.
- Violates any applicable local, state, national or international law, regulation, or convention.
- Is actionable or may subject SpeakingPhoto to legal action or liability of any kind.
- Violates any provision of this Agreement or any other applicable agreement, terms, provisions or policy set forth by SpeakingPhoto.
SpeakingPhoto has no obligation to screen or monitor any Content and does not guarantee that Content accessible through our Services complies with this Code or is suitable for all users. SpeakingPhoto reserves the right, without obligation, to monitor all Content submitted to our Services.
Conduct Restrictions and Limitations
You shall not attempt to or engage in potentially harmful acts that are directed against the Services, users or third-parties, including, without limitation, any of the following acts or conduct (“Conduct”). You will not:
- Harass, bully, embarrass, or stalk anyone.
- Harm or exploit minors.
- Distribute "spam" or similar communications.
- Collect information about others.
- Use the Services in contravention of any other agreement to which you may be a party.
- Advertise or solicit others to purchase any product or service within the Services (unless you are authorized in writing by SpeakingPhoto to do so).
- Use an account that you are not authorized to access.
- Act in a deceptive manner by, among other things, impersonating anyone or causing, allowing or assisting anyone to impersonate you, including by, without limitation, forging screen names, manipulating identifiers, or otherwise misrepresenting your identity or affiliation with any person or entity.
- Emulating or faking usage of the Services.
- Tamper, misuse, disrupt or otherwise interfere with the operation, functionality or the security of the Services, including by, without limitation, means of submitting a virus, overloading, "flooding," "spamming," "mail bombing," or "crashing" the Services or supporting infrastructure.
- Introduce viruses, worms, software, Trojan horses or other similar harmful code into the system.
- Using manual or automated software, devices, machines, scripts robots, other means or processes to access, "scrape," "crawl" or "spider" any portion of the Services without the prior express written permission of SpeakingPhoto.
- Violate or attempt to violate any security features of the Services or to override or circumvent any security or usage rules embedded into the Services or Content permit digital materials to be protected.
- Probe, scan, or test the vulnerability of the Services, or any associated system or network, or breach any security or authentication measures.
- Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services.
- Engage in "framing," "mirroring," or otherwise simulating the appearance or function of the Services.
- Act in any manner that would violate the rights of anyone.
- Act in violation any applicable local, state, national or international law, regulation, or convention.
- Act in any manner that would tend to damage SpeakingPhoto’s reputation and goodwill.
SpeakingPhoto has no obligation to screen or monitor user Conduct and does not guarantee that any user Conduct complies with this Code. SpeakingPhoto reserves the right, without obligation, to monitor all user Conduct.
Suspected Misuse and Penalties
SpeakingPhoto shall be the sole and final arbiter of suspected Code violations, misuse and penalty. Suspected violations may result in penalties for misuse including, without limitation, suspension, termination, personal identification to third parties, legal action. SpeakingPhoto reserves the right to seek civil, criminal or injunctive relief, at its sole discretion and without obligation, to enforce this Code.
APPLICATION END USER LICENSE AGREEMENT (APP EULA) SUPPLEMENT
Notwithstanding any other provisions within these Terms, the following subsections of this Agreement (the “APP EULA Supplement or EULA”) are applicable to only those users who access and use SpeakingPhoto Services on any Apple, Android or other similar device (“Mobile Device”) through an application acquired from the Apple App Store, Google Play or other similar channel (a “SpeakingPhoto App”).
You acknowledge that this SpeakingPhoto App EULA is concluded between you and SpeakingPhoto, Inc., not Apple, Google or any other party, and governs your use of any SpeakingPhoto App, regardless of device hardware, operating system or platform, including particularly, without limitation, any SpeakingPhoto App made available through the Apple App Store. Our SpeakingPhoto App allows you to use certain aspects of the SpeakingPhoto Services, available at, from or directed by www.speakingphoto.com. SpeakingPhoto is solely responsible for the SpeakingPhoto App and its related content (other than user generated content, which will shall remain the sole responsibility of the contributing user at all times). You further acknowledge that the SpeakingPhoto Services may not be used in any manner inconsistent with the App Store Terms of Service, Google Play Terms of Service or other applicable terms of services as of the respective effective rates of such applicable terms.
Scope of License.
SpeakingPhoto grants you a limited, non-exclusive, non-transferrable, revocable license to use the SpeakingPhoto App for your personal, non-commercial purposes on iOS or Android Mobile Devices that you own or control and only as permitted by the Usage Rules set forth in the App Store Terms of Service, the Rights and Restrictions set forth in the Google Play Terms of Service and other applicable terms of service.
Maintenance and Support.
SpeakingPhoto is solely responsible for providing maintenance and support for the SpeakingPhoto Services, as specified in these Terms, or as required under applicable law. You and SpeakingPhoto acknowledge that other parties, including Apple and Google, have no obligation whatsoever to furnish any maintenance and support services with respect to our SpeakingPhoto Services.
SpeakingPhoto is solely responsible for any warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of our SpeakingPhoto Services to conform to any applicable warranty through an application acquired exclusively from the Apple App Store, you may notify Apple, and Apple will refund the purchase price for the Service to you; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of SpeakingPhoto.
SpeakingPhoto, not Apple, Google or any other party, is responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the SpeakingPhoto Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. SpeakingPhoto liability is limited so far as permitted by applicable law.
Intellectual Property Rights.
In the event of any third party claim that the Services or your possession and use of the Services infringes that third party's intellectual property rights, SpeakingPhoto, not Apple, Google or any other party, is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
Third Party Beneficiary.
You and SpeakingPhoto acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms, including particularly this section, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third party beneficiary thereof.
Privacy and Consent to Use of Data:
SpeakingPhoto’s analytics service provider, currently Google Analytics, may collect the following information: your Mobile Device's Unique Device Identifier (UDID), technical information about the App (such as version number), App session information, your preferred language, and your preferred time zone. After collecting such information, SpeakingPhoto’s analytics provider will assign a new unique number to replace the UDID. The information is then aggregated and used by SpeakingPhoto to measure the use and performance of the App. SpeakingPhoto may publicly disclose the aggregate information. SpeakingPhoto will not share the UDID or any other individual App user data with third parties, except in the case of a court order, subpoena, or a lawful government demand.
You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App may not be exported or re-exported (i) into any U.S. embargoed countries or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the SpeakingPhoto App, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
The SpeakingPhoto APP and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
In the event of any conflict, ambiguity or inconsistency between the Terms and specific provisions of this App EULA Supplement, the specific provisions of this App EULA Supplement shall prevail, otherwise the other Terms herein will remain in full force and effect.
Service Changes, Interruption and Errors
SpeakingPhoto may modify, amend, adapt, supplement, suspend, discontinue, terminate or make other similar changes, temporarily or permanently, to the Services, or any portion thereof, at its discretion, with or without notice. SpeakingPhoto, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. SpeakingPhoto may also impose limits on the use of or access to certain Services, in any case and without notice or liability. In no event will SpeakingPhoto be liable for any changes to, limitations imposed or the removal of or disabling of access to any such Services.
SpeakingPhoto does not guarantee that the system or Services will be uninterrupted or error-free. The Services may be interrupted, delayed or unavailable for your access from time to time for reasons including, but not limited to, the following: routine data compilation, service and maintenance; attacks, interference or interruption by the acts of third parties; earthquake, flood, fire, storm or other natural disaster; war, terrorism, armed conflict; labor strike, lockout or boycott; power failure or blackout; or other unforeseen or unavoidable events. SpeakingPhoto shall not be liable to you or to any third party for routine, unforeseen or unavoidable interruption, delay or unavailability.
Securing Member Information
SpeakingPhoto uses commercially reasonable business practices to secure its system. SpeakingPhoto does not guarantee the security of information and shall not be responsible for infiltration, provided that commercially reasonable practices have been used.
Reliance and Assumption of Risk
Use of the system and Services is at your sole discretion and risk. You have independently evaluated the desirability of using Services. You are not relying on any representation, guarantee, or statement other than this contract. You shall not rely on the accuracy, completeness, usefulness or legality of the Services or any Content or information made available through the Services at any time. You shall bear all risks of and are solely responsible for your use of the system and Services and all Content or information made available to you through Services.
Location data provided through the Services or by any third party is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither SpeakingPhoto, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data displayed by any Services.
The SpeakingPhoto Services and third party materials that may be accessed and used may not be not available in all languages or in all countries. SpeakingPhoto makes no representation that Speaking Services or related third party services will be appropriate or available for use in any particular location. To the extent, you choose to access and Services, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws.
Third Party Services and Web Sites
The SpeakingPhoto Services may enable access to third party services, networks, platforms, applications and web sites (collectively and individually, "Third Party Sites"). Third Party Sites and related links are provided solely as a convenience to you. Use of Third Party Sites may require Internet or network access and that you accept additional terms of service. You are solely responsible for your use of Third Party Sites. By using our Services, you acknowledge and agree that the SpeakingPhoto does not control and is not responsible for any aspect of Third Party Sites. SpeakingPhoto does not warrant or endorse any Third Party Site and does not assume and will not have any liability or responsibility to you or any other person for any Third Party Sites.
You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the SpeakingPhoto Service.
THE SERVICES, CONTENT AND ALL OTHER INFORMATION MADE AVAILABLE THROUGH THE SERVICES ARE PROVIDED ‘AS IS’ AND AS AVAILABLE. SPEAKING PHOTO MAKES NO REPRESENTATION, GUARANTEE OR WARRANTY, EXPRESS OR IMPLIED, RELATED TO THE SERVICES, THE CONTENT OR INFORMATION MADE AVAILABLE THROUGH THE SERVICES OR THEIR RESPECTIVE USES. THE SERVICES AND THE CONTENT AND INFORMATION MADE AVAILABLE THROUGH THE SERVICES MAY CONTAIN ERRORS AND/OR BUGS AND MAY PRODUCE UNEXPECTED RESULTS. ANY AND ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
We make no warranty that the Services will be available on an uninterrupted, timely, secure, or error-free basis. We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communication by or between users. We are not responsible for any problems or technical malfunction of any hardware and software due to technical problems on the Internet or the Services or combination thereof, including any injury or damage to users or to anyone's computer or device related to or resulting from participation or downloading materials in connection with the Services. Under no circumstances shall we be responsible for any loss or damage, including personal injury or death, resulting from use of the Services or from any Content, or any interactions between users of the Services, whether online or offline.
APPLICABLE LAW OF SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
Limitation of Liability
YOU EXPRESSLY ACKNOWLEDGE, UNDERSTAND AND AGREE THAT SPEAKINGPHOTO SHALL NOT BE LIABLE FOR ANY GENERAL, SPECIAL, CONSEQUENTIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, INFORMATION, BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES) WHATSOEVER ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SYSTEM, INCLUDING THE CONTENT OR CONDUCT OF ANY THIRD PARTY, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT SPEAKINGPHOTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Notwithstanding anything to the contrary contained herein, our liability to you for any damages arising from or related to your use of the Services (for any cause whatsoever and regardless of the form of the action), will at all times be limited to the greater of fifty U.S. Dollars ($50) and the amounts you paid to us in the twelve (12) months prior to the accrual of the claim.
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from jurisdiction to jurisdiction.
You agree to indemnify, defend, and hold SpeakingPhoto harmless against any loss, damage, cost, allegation, liability, expense, claim or demand, including court costs and reasonable fees for attorneys or other professionals, made by any third party resulting from your use of our Services or any Content or information made available through the Services.
Legal Inquiries and Requests
In response to a verified request by law enforcement or other government officials relating to a criminal investigation or alleged illegal activity, you agree and authorize SpeakingPhoto to disclose information about you without a subpoena.
SpeakingPhoto, at its sole discretion, may assist third parties to protect their rights in the event of illegal or improper Conduct or in the event that illegal or improper Content or information is submitted to or made available through the Services or Content or information made available through the Services is used for illegal or improper purposes. SpeakingPhoto may disclose information about you as required by law or to comply with legal process, to report suspected illegal activities or to protect the rights, property or interests of SpeakingPhoto. SpeakingPhoto reserves the right and discretion, without obligation, to enforce this contract by any appropriate legal means available.
Choice of Law, Jurisdiction, Forum and Remedies
Changes to this Agreement
SpeakingPhoto may change this contract at any time. Changes to this contract will be prominently posted to the Services. The most current version of these Terms can be reviewed by clicking on the "Terms of Service" or similar link located at the bottom of the pages on SpeakingPhoto.com. The most current version of these Terms will supersede all previous versions. Changes shall take effect, unless otherwise indicated immediately after posting (unless a longer notice period is required by applicable law). If any modified terms and conditions are not acceptable to you, your sole remedy is to cease using the Services and if applicable, cancel your account. By continuing to access or use the Services after we make any such revision, you agree to be bound by the revised Terms.
No Third Party Beneficiary
Except as specifically set forth hereinabove, this contract is only for the benefit of you and SpeakingPhoto and no third party has any right, claim or interest under this contract as a third party beneficiary.
You may not assign or transfer your rights or obligations under this contract.
Delay or failure to enforce any terms or provisions of this contract is not a waiver of such terms or provisions.
This Agreement incorporates the following documents by reference, as if fully set forth herein at length:
- Apple App Store Terms of Service
- Apple Licensed Application End User License Agreement
- Google Play Terms of Service
In the event of any conflict, ambiguity or inconsistency between this Agreement and any other policy, provisions, agreement or other document which may be incorporated herein by reference or annexed hereto, the terms of these Terms shall prevail and govern, unless such incorporated or annexed document expressly states that it supersedes these Terms by name. This Agreement constitutes the entire understanding between SpeakingPhoto and you concerning the subject matter hereof and supersedes all prior agreements and understandings regarding the same.
Severability of Terms
If any provision of this Agreement shall be determined by an arbitrator or any court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be severed from this Agreement and the remaining provisions shall continue in full force and effect to the fullest extent as allowed by law.
Course of Conduct
Neither the course of conduct and/or course of dealing between the parties nor trade practice shall act to modify any provision of this Agreement.
SpeakingPhoto may assign its rights and duties under this Agreement to any party at any time without notice to you. Your rights and duties under this Agreement are not assignable.
Headings are used for convenience and are not to be used for meaning or intent.
Correspondence and Notices
All notices required by this agreement may be sent by email to or by registered mail to:
319 Miller Avenue, Mill Valley, CA 94941
Notices are effective upon receipt.
I HAVE READ THIS CONTRACT. I UNDERSTAND, ACKNOWLEDGE AND ACCEPT ITS TERMS. I CONSENT AND AGREE TO BE HELD TO THESE TERMS.