Terms of Use

FotoSpout Terms of Use Agreement

Last updated: April 30, 2016

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THIS SITE.
This is a legal document that affects your rights and obligations. You are encouraged to read this agreement carefully and print a copy of it for your records.

ACCEPTANCE OF TERMS
The FotoSpout website (“Site”) is owned and managed by FlashKite Corporation (“FlashKite” “we” or “us”). By using the Site, you signify your assent to these Terms of Use. If you do not agree to all of these Terms of Use, including the FotoSpout Privacy Policy, you must not use this Site.

This FotoSpout Terms of Use Agreement (“Agreement”) is a legal agreement between you and FlashKite Corporation providing, among other things, the terms and conditions for your use of FotoSpout’s online services, including but not limited to delivery via www.fotospout.com, mobile devices, or otherwise. The Agreement governs your use of the FotoSpout.com website, including, without limitation, the viewing, uploading and downloading of content, photographs or images onto the FotoSpout.com website, access to both public and private online resources, and any and all products and services offered by FlashKite on or through the FotoSpout.com website.

These Terms of Use may be revised and updated by FlashKite at any time. Your continued usage of FotoSpout.com will signify your acceptance of those changes. FlashKite may, in its sole discretion, revise and update these terms from time to time. You must check this page from time to time to take notice of any changes we make, as they are binding on you. Your continued use of the Site following the posting of any revised terms means that you accept and agree to the changes.

SITE DESCRIPTION
FotoSpout.com provides, among other things, an online community for sharing content as well as an online marketplace for uploading and downloading content, composed primarily of photographic images. The Site is divided into two primary sections: publicly-accessible content; and content/functionality restricted to registered members. The public section of the Site allows general users access to view and search for content on the Site and an online process through which they may register to become members of the Site. Only registered members have access to download content or works (free or otherwise); to upload content or works (free or otherwise); to use member-restricted online functionality such as authoring content or commenting on published content through Site blogs and forums; and to access contributor online marketplace tools such as financial and reporting resources.

GENERAL
FlashKite has the right, but not the obligation, to monitor Site activity as well as content published on this Site. FlashKite may investigate any apparent or reported violations of its policies and agreements and take any action that it, in its sole and absolute discretion, deems appropriate, including but not limited to the issuance of warnings; rejection of, refusal to post, or removal of any materials on the Site; and/or denial, restriction, suspension, or termination of your access to any or all part(s) of the FotoSpout.com website at any time. Given the visual nature of Site content, FlashKite expressly reserves the right to remove, screen, or edit any content that FlashKite deems, in its sole and absolute discretion, to violate this Agreement or any applicable law or to be otherwise objectionable. FlashKite may reject, refuse to post, or delete any content for any or no reason, that in its sole judgment violates this Agreement or which may be offensive or illegal, violate the rights of any person or entity, or harm or threaten the safety of any person or entity.

Upon review of the any obvious or reported violations of copyright, License and/or Contributor agreements, FlashKite may permanently suspend your registration for and use of FotoSpout.com products and services. FlashKite may take any or all of the above-stipulated actions at any time, with or without prior notice or explanation, and without liability.

ACCESSING THE SITE
This Site is not intended or designed to attract children under the age of 13. FlashKite does not collect personally identifiable information from any person we actually know is a child under the age of 13. If you allow your minor child or a child for whom you are a legal guardian (a “Minor”) to access this Site, you will be solely responsible for (1) the online conduct of such Minor; (2) monitoring such minor’s access to and use of this Website; and (3) the consequences of any use of the Site by such Minor.

By using this Site, you represent and warrant that (1) all registration information that you submit is truthful and accurate; (2) you will maintain the accuracy of such information; (c) you are 13 years of age or older; and (d) your use of the Site and associated products and services does not violate any applicable law or regulation. Your Site profile may be deleted and your Site membership may be terminated without warning if we believe that you are under the age of 13; if we believe that you are under the age of 18 and you represent yourself as 18 or older; or if we believe that you are over the age of 18, and represent yourself as under 18.

If FlashKite has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your FotoSpout.com Membership and refuse any and all current and future use of the Site and associated products and services (or any portion thereof).

Pursuant to the US law 47 U.S.C. § 230(d) as amended, FlashKite hereby notifies you that parental control protections (such as computer software/hardware, or filtering services) are commercially available that may assist you in limiting access to material and information that is harmful to Minors.

Not all features, products or services provided or offered through this Site are available to all persons or in all geographic locations. Access to the Site may not be legal in certain countries. If you access the Site from outside the United States or the European Union, you do so on your own initiative and are responsible for compliance with local laws.

FlashKite reserves the right to withdraw or amend any product and/or service offered through the Site at our sole discretion without notice. We will not be liable if, for any reason, all or any part of the Site is unavailable at any time or for any period. From time to time, FlashKite may restrict access by both non-members and registered members to parts of the Site, or the entire Site.

TERM
This Agreement and any revision that may be posted to this Agreement shall remain in full force and effect while you use this Site. You may terminate your Membership at any time, for any reason, by e-mailing crew@fotospout.com. FlashKite may terminate your Membership at any time for any or no reason, with or without prior notice or explanation, and without liability. Even after Membership is terminated, this Agreement, will remain in effect.

USER ACCOUNT CREDENTIALS
During the registration process to become a FotoSpout Member, users will be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password and any other user credentials you may have selected for access to the Site. You agree not to use the account, username, or password of another Member at any time or to disclose your password to any third party. You agree to notify the Site administrative team at crew@fotospout.com immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account.

SITE ACTIVITY
You agree not to use the Site to post or transmit content that is illegal. FlashKite reserves the right to investigate and take appropriate action against anyone who, in our sole and absolute discretion, violates this provision, including, without limitation, removing the offending content from the Site, terminating the FotoSpout Membership of such violators, and/or reporting violators to law enforcement authorities.

Prohibited content includes, but is not limited to, content that in the sole and absolute discretion of FlashKite:

+ solicits personal information from anyone under the age of 18;
+ exploits people in a sexual or violent manner;
+ contains excessive violence or offensive subject matter;
+ contains a link to an adult website, mobile app or offensive subject matter that may be published online or via a mobile app;
+ publicly posts information that poses or creates a privacy or security risk to any person;
+ constitutes or promotes information that you know is misleading or false, or illicit activities or conduct that is abusive, obscene, threatening, defamatory, or libelous;
+ constitutes or promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer software or links to them, or providing pirated music (or other works) or links to pirated music files (or other works);
+ involves the transmission of “junk mail,” “chain letters,” unsolicited mass mailing, instant messaging, or “spamming”;
+ contains restricted or password-required pages or hidden pages/apps or images/video (those not linked to or from another accessible page);
+ furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities, including but not limited to, making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
+ solicits passwords or personal identifying information for commercial or unlawful purposes from other Site users;
+ involves commercial activities and/or sales such as contests, sweepstakes, barter, advertising, or pyramid schemes without the prior written consent of FlashKite;
+ includes a photograph or a video of another person, in a context in which that person had a reasonable expectation of privacy, that you have posted without that person’s consent;
+ violates the privacy rights, publicity rights, trademark rights, copyrights, contract rights, or any other rights of any person; or promotes propaganda and/or symbols of organizations that are unconstitutional or illegal in your country.

COPYRIGHTED CONTENT
FotoSpout.com “Content” shall constitute and be defined as any photographic images, digital files, or text accessible from the FotoSpout.com Site.

Content may be downloaded by members only and are licensed to you by FlashKite Corporation. Materials downloaded by members or Site visitors at large does not transfer any title from this content to you, or any intellectual property rights therein to you.

FlashKite grants you a non-exclusive, non-transferrable license to use, reproduce, modify, publish, display, and distribute the FotoSpout.com Content according to the Terms of Use of the FotoSpout License Agreement.

FlashKite will terminate, in appropriate circumstances and at FlashKite’s sole discretion, members who infringe the intellectual property rights of FlashKite or any third party.

PROCEDURE FOR MAKING CLAIMS OF INFRINGEMENT
If you are a copyright owner or an authorized agent thereof and believe that any member or User of the FotoSpout.com Site has infringed upon your copyrights, you may submit a notification pursuant to the DMCA by filing a notice of infringement with our Copyright Agent. To file a notice of infringement with our Copyright Agent, you must provide a written communication (by regular mail or e-mail) that sets forth the items specified below. Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that a product or activity is infringing your copyrights. Accordingly, if you are not sure whether material available online infringes your copyright, we suggest that you first contact an attorney. To expedite our ability to process your request, please use the following format:

1. Identify in sufficient detail the copyrighted work that you believe has been infringed upon.
2. Identify the material that you claim is infringing the copyrighted work listed in item #1 above or which you claim is the subject of infringing activity. You must identify each separate item of infringing material.
3. Provide information reasonably sufficient to permit FlashKite to locate the material.
4. Provide information reasonably sufficient to permit FlashKite to contact you (email address, telephone number and a mailing address).
5. Provide information, if possible, sufficient to permit FlashKite to notify the user that allegedly stored infringing material (an email address is the preferred communication channel).
6. Include the following statement: “I have a good faith belief that use of the copyrighted materials in the manner complained of is not authorized by the copyright owner, its agent, or the law.”
7. Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
8. Sign the paper.
9. Send the written communication to the any of the following:

FlashKite Corporation
Attn: Copyright Agent
57 West 76 Street – Suite 3
New York, NY 10023

BY EMAIL: team@flashkite.com – with the words “DMCA Complaint” in the subject line.

If you fail to comply with all of the requirements set forth above, your DMCA notice may not be valid.

FLASHKITE AND FOTOSPOUT TRADEMARKS
FlashKite’s and FotoSpout’s name, trademarks, logos and all related names, product and service names, designs and slogans are trademarks of FlashKite, its affiliates or licensors. You must not use such marks without the prior written permission of FlashKite. All other names, brands and marks are used for identification purposes only and are the trademarks of their respective owners.

REPRESENTATIONS AND WARRANTIES
By using this Site, you agree that you have: (1) all necessary licenses and permissions, to upload and share your content or works and (2) the rights necessary to grant the licenses delineated in the Terms of Use and License Agreements.

The Site and all products and services offered through the FotoSpout.com website are provided by FlashKite under these Terms of Use “AS IS” without warranty of any kind, either express, implied, statutory or otherwise, including, but not limited to, non-infringement, the implied warranties of title, merchantability or fitness for a particular purpose. Without limiting the foregoing, FlashKite makes no warranty that: a) the Site will meet your requirements; b) access to the Site will be uninterrupted; c) the quality of content, works or the Site in general will meet your expectations; d) the Site will meet your financial expectations related to the volume of sales generated by works or content you have contributed to the Site; and e) any defects or errors in the Site, services or materials will be corrected.

INDEMNIFICATION
You agree to defend, indemnify and hold harmless FlashKite, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from your violation of these terms or use of this Site, including, without limitation, any use of the Site’s content, services and products other than as expressly authorized in this agreement or your use of any information obtained from the Site.

GOVERNING LAW; JURISDICTION; DISPUTES
This Agreement is governed by and shall be construed in accordance with the laws of the State of New York, without regard to its conflicts of law provisions. You hereby consent to the personal jurisdiction of the state and federal courts located within such state. All actions, controversies and disputes arising from or relating to this agreement shall be heard and decided exclusively before the courts located within the State, County and City of New York and not elsewhere. These Terms of Use shall not be governed by the United Nations Convention on Contract for the International Sale of Goods, the application of which is expressly disclaimed. This agreement shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning of the language hereof. The invalidity or unenforceability of any part of this agreement shall not affect the validity or enforceability of the balance hereof. FlashKite shall have the right to commence and prosecute any legal or equitable action or proceeding before any US or non-US court of competent jurisdiction to enforce these Terms of Use. In any dispute between you and FlashKite Corporation where FlashKite prevails, FlashKite shall be entitled to recover its reasonable attorney fees, court costs, disbursements, and other legal expenses.

GENERAL
(a) No Waiver: Our failure to enforce or exercise any of the terms outlined in this Agreement does not constitute a waiver of that section.
(b) No Class Actions: You acknowledge that you may only resolve disputes with FlashKite on an individual basis. As a result, you may not bring a claim as a plaintiff or a class member in a consolidated, class or representative action.
(c) Severability: If a particular term in this Agreement is not enforceable, the unenforceability of that term will not affect any other terms.

VIOLATIONS
Please report any violations of the Terms of Use Agreement to the FotoSpout team at: crew@fotospout.com

CONTACT
If you have any questions or concerns related to the FotoSpout.com Site, these Terms of Use or posted License or Contributor Agreements, we invite you to contact the FotoSpout team via email at: crew@fotospout.com.