END-USER LICENSE AGREEMENT (EULA)

- TERMS OF USE AND CONDITIONS

Last Updated: December 21, 2021

 

Please review the following terms of use (“Agreement”), which govern your use of PhotoWhy (the “App”) and the services (the “Services”) offered on the App. Your use of the App and/or registration for any Services will constitute your agreement to comply with the terms of this Agreement. If you cannot agree to and comply with this Agreement and its requirements, please do not use the Services and exit the App.

 

Apple Acknowledgment

 

You acknowledge that this Agreement also represents an “End User License Agreement” (EULA) which is entered into and agreed upon by you and the App, and not with Apple, and that Apple is not responsible for the App and the content contained therein. This Agreement shall not provide for usage rules for the App that are in conflict with the Apple Media Services Terms and Conditions as of the date upon which you agree to this Agreement, which you acknowledge you have had the opportunity to review.

 

Both the App and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.

 

The App is responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, Apple will refund the purchase price for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App.

 

You acknowledge that Apple is not responsible for addressing any claims of by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.

 

In the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

 

Both you and the App acknowledge that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.

 

Privacy Policy

 

In addition to reviewing this Agreement, you should also read our Privacy Policy ( https://www.photowhy.com/privacy-policy ) to better comprehend how we collect and use your personal information. Your use of the App constitutes your agreement with the terms and conditions of the Privacy Policy.

 

Changes to Agreement and Additional Rules of Usage

 

PhotoWhy reserves the right, at any time and without prior notice, to modify, alter or update this Agreement. The date of the most recent revision will appear on this page. Continued access to the App and use of the Services by you will constitute your acceptance of any changes or revisions to the Agreement.

 

PhotoWhy also reserves the right to post, from time to time, additional rules of usage that apply to specific parts of the App, which may be posted in the relevant parts of the App, and will be clearly identified. Your continued use of the App constitutes your agreement to comply with these additional rules.

 

Suspension or Termination of Your Use

 

Your failure to follow the requirements of this Agreement may result in suspension or termination of your access to the Services, without notice, in addition to PhotoWhy other remedies. PhotoWhy further reserves the right to terminate, without notice, any user’s access to or use of the App for any reason.

 

Ownership of the App and App Information

 

The App is expressly owned and operated by PhotoWhy. Unless otherwise noted, the design, content, and features on the App, including information and other materials, illustrations, product layout and design, icons, navigational buttons, images, artwork, graphics, photography, text, data, audio sound, software and the like, as well as the selection, assembly and arrangement thereof (the “App Information”), are owned by PhotoWhy or its affiliates or are licensed from third party service providers by PhotoWhy. The App, as a whole and in part, is protected by copyright, trademark, service mark, trade name, and other intellectual property and other proprietary rights, and all other applicable rights are reserved. Affiliates, subsidiaries, licensees, and assigns of PhotoWhy shall include any and all third party service providers used at any time and for any purpose by PhotoWhy. Notwithstanding the foregoing, any photograph uploaded to the App by a user remains the property of the user who uploaded the photograph.

 

App Information is Provided “As Is”

 

App Information is provided “as is” with all faults. You use the App Information, as authorized herein, at your own risk. App Information may contain errors, omissions, or typographical errors or may be out of date. The App may change, delete or update any App Information at any time and without prior notice.

 

Use of the Service By You

 

You may view and use the App Information only for your personal use. Except as set forth in this Agreement, the App does not grant to you any right to use, reproduce, copy, modify, transfer, display, publish, sell, license, create derivative works, publicly perform, or distribute by any means, method or process any App Information. Your right to use the App and the Services is personal to you — you may not authorize others to use the App and the Services, and you are responsible for all use of the App and the Services by you and by those you allow to use, or provide access to, the App and the Services.

 

You agree to use the App and the Services only for lawful purposes and you acknowledge that your failure to do so may subject you to civil and criminal liability. You agree that you are solely responsible for any and all posts and content on the App and related Services. You agree that you will not post any photo to the App or any other service provided by or through the App that involves a photograph or any other material that you do not have the full and complete rights to post. You further agree that you retain full rights to any photograph that you have the rights to and post to the App.

 

You hereby acknowledge that you are limited to a non-transferable license to use the App on any Apple-branded Products that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that the App may be accessed and used by other accounts associated with you via Family Sharing or volume purchasing.

 

You hereby acknowledge that you must comply with any/all applicable third party terms of agreement when using the App.

 

Non-Commercial Use Only

 

The App is for the personal use of individuals only and may not be used in connection with any commercial endeavors. Organizations, companies and/or businesses may not use the Services, the App Information or the App for any purpose without written consent of or agreement with PhotoWhy. You agree not to make use of App Information by publication, re-transmission, distribution, performance, caching, or otherwise, except as permitted by law or as expressly permitted in writing by this Agreement or PhotoWhy. Illegal and/or unauthorized uses of the App, including efforts to collect usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the App, will be investigated and appropriate legal action will be taken, including without limitation, civil, criminal and injunctive redress.

 

Customer Reviews and Comments

 

PhotoWhy may provide functionality that enables you to provide a review in connection with the App and Services. You acknowledge and agree that you are responsible for any and all reviews and content you otherwise upload and make available in connection with the App and Services and you agree to indemnify PhotoWhy for all Claims (as defined below) resulting from any review or comments you make available. You represent and warrant that (a) you have the authority to grant the rights in any such review or comments as set forth below; (b) such review, and the use thereof, will not violate any term of these Terms of Use; and (c) all opinions and statements contained in such review or comments (i) are true, honest, and an accurate reflection of your opinions about PhotoWhy and its Services, (ii) are not misleading, and (iii) are based on your own actual personal experience. This means you will be responsible for the legality, the accuracy, the appropriateness, the originality, and your rights in any such review or comments.

 

You grant to PhotoWhy, its affiliates, subsidiaries, licensees, and assigns the perpetual, worldwide, royalty-free, nonexclusive and absolute right and license to use, publicly and privately display, reproduce, publish, publicly and privately perform, exhibit, distribute or have distributed, transmit or have transmitted, post, broadcast, sublicense, sell, transfer, store, or otherwise make any commercial or non-commercial use of any review or comments that you make available on the App, in whole or in part, for advertising, publicity, internal presentations, communications and training materials, and any other legal purpose, in any and all media whether now known or hereafter developed, including without limitation, on the internet, without consideration, notice, inspection, review, or approval thereof. For purposes of clarity, the foregoing grant includes the rights to modify, edit, combine with other materials, translate, include in collective works, and create derivative works based on your review or comments. You grant to PhotoWhy the right to use the first name and last initial associated with any review or comments that you make available to PhotoWhy, in whole or in part, provided PhotoWhy shall have no obligation to exercise such right, or to otherwise provide any attribution for any review or comments.

 

Eligibility to Use the App and the Services

 

The App and the Services are not intended for users under the age of 18. To register for any Services offered on the App, you must be 18 years of age or older. If you are a minor under the age of 18, you may only use the App in conjunction with your parents or guardians. PhotoWhy does not knowingly collect personally identifiable information from users under the age of 13. Children under 13 should not use the App. If a child under 13 submits information through any part of the App, and PhotoWhy becomes aware that the person submitting the information is a child, we will attempt to delete this information as soon as possible.

 

You hereby acknowledge that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

 

Disclaimer or Warranty and Limitation of Liability

 

You acknowledge that you are using the App and the services at your own risk. The App, the App information and the services are provided “as is,” and to the full extent permitted by applicable law, PhotoWhy, its affiliates, subsidiaries, licensees, and assigns hereby expressly disclaim any and all warranties, express and implied, including, without limitation, any warranties of accuracy, completeness or reliability, title, noninfringement, merchantability or fitness for a particular purpose, or any other warranty, condition, guarantee or representation, whether oral, in writing or in electronic form. PhotoWhy, its affiliates, subsidiaries, licensees, and assigns providers do not represent or warrant that access to the App and its services will be uninterrupted or that there will be no failures, errors or omissions, or loss or security breach of transmitted information, or that no viruses will be transmitted through access to or use of PhotoWhy.com.

 

PhotoWhy its affiliates, subsidiaries, licensees, and assigns shall not be liable to you or any third parties for any direct, indirect, special, consequential or punitive damages arising out of this agreement, the provision of services hereunder, the sale or purchase of any merchandise ordered through the App, your access to or inability to access the App, App information, or services, including for viruses alleged to have been obtained from the services, your use of or reliance on the services, the App information or materials available through third party Apps linked to the App, regardless of the type of claim or the nature of the cause of action, even if advised of the possibility of such damages. Some states do not allow the exclusion of implied warranties or the limitation or exclusion of liability for incidental or consequential damages, so the above exclusions or limitations may not apply to you. You may also have other rights that vary from state to state.

 

You hereby agree to release PhotoWhy, its affiliates, subsidiaries, licensees, and assigns, and each of their respective directors, officers, employees, and agents from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (“claims”), arising out of or in any way connected with your use of this App and its services. If you are a California resident, you waive California civil code section 1542, which states, in part: a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.

 

Electronic Communications

 

When you visit the App or send emails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email or by posting notices on the App. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

 

Jurisdiction and Governing Law

 

PhotoWhy makes no representation that the App Information, the Services or products offered through the App are appropriate, available or legal in any particular location. Those who choose to access the App Information, the Services and products offered through the App do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You agree that this Agreement, for all purposes, shall be governed and construed in accordance with the laws of the State of Florida and any action based on or alleging a breach of this Agreement must be brought in a state or federal court located in the Southern District of Florida. In addition, both parties agree to submit to the exclusive personal jurisdiction and venue of such courts.

 

 

The App is hosted in the United States.. If you are a non-U.S. user of the App, by visiting the App, using its Services and/or providing us with any Content, you agree to comply with all applicable laws governing the App, its Services, online conduct and acceptable Content. You further agree to comply with all applicable laws regarding the transmission of data exported from the United States or the country in which you reside.

 

In-App Purchases

 

Users may purchase various services through the App. The App does not store any payment information submitted by you, and uses Stripe, Google and ApplePay as third party payment processing services.

 

Trademark Notice

 

PhotoWhy and the App names, logos, and other identifying marks are the property of Photowhy, Inc. Other featured words or symbols, used to identify the source of merchandise or services, may be the trademarks of their respective owners.

 

SMS Short Code Terms & Conditions

 

If you provide your mobile phone number, we may use this information to send you transactional SMS updates about your requests, orders, and treatment via SMS short codes. Number and size of messages will vary per user based on evaluation/treatment length and stages. Reply ‘STOP’ to any SMS message to unsubscribe from SMS updates. Reply ‘HELP’ to get help. PhotoWhy does not charge any users fees to send or receive text messages. However, message and data rates may apply from your mobile carrier. We support the following mobile carriers: AT&T, Sprint, T-Mobile, Verizon Wireless, Metro PCS, Nextel, Virgin Mobile, U.S. Cellular, and others. The wireless carriers are not liable for delayed or undelivered message. PhotoWhy will not be liable for any delays in the receipt of any SMS messages connected with our SMS Gateway. Delivery of SMS messages is subject to effective transmission from your wireless service provider/network operator. PhotoWhy respects your privacy. We will only use the information you provide to transmit text messages to you. Nonetheless, we reserve the right at all times to disclose any information as necessary to satisfy any law, regulation or governmental request, to avoid liability, to protect our rights or property. Text messages through your wireless carrier/service provider are not secure messages through encryption or similar technology, and therefore you should take care to include only the content you wish to share in the texts to our Customer Care agents. PhotoWhy respects your right to privacy. Please review our privacy policy here (https://www.photowhy.com/privacy-policy).