A. GENERAL TERMS
Professional Services Terms
Waldo’s professional services (“Professional Services”) provide an online platform that enables our users to upload and share photographs (“Photos”) using the Services. Photos may collectively be referred to herein as “Media”. By subscribing to or using any Professional Services, you agree to be bound by and accept the Professional Services Terms set forth in Section B below.
Terms of Sale
Our Terms of Sale set forth in Section C below contain additional terms, conditions and policies applicable to your purchase of Products through the Services. By ordering Products through the Services, you agree to be bound by and accept the Terms of Sale.
Waldo enables certain users who own or otherwise have the right to license Media (the “Content Owner”) to use Waldo to facilitate the license of their Media to other Waldo users. Please refer to the terms of your Professional Plan to determine whether you are a Content Owner with the right to license your Media through Waldo. All such licenses are made directly between the user and the Content Owner and are merely facilitated by Waldo. The scope of the license rights granted by the Content Owner to the Waldo user under any license will vary depending on the type of license that the Content Owner designates to such Media.
By uploading Media to the Waldo Services and indicating that the Media may be licensed by other Waldo users, Content Owners agree to be bound by and accept the terms and conditions set forth in Section D below. By licensing any Media from a Content Owner through the Services, you agree to the terms of the applicable end user license agreement that has been chosen by the Content Owner (either the Commercial Use License or Personal Use License).
Please note that if you download Media from the Services, you are not automatically granted any license rights by the Content Owner to such Media. Any Media license will be expressly communicated by the Content Owner at the time such Media is downloaded or purchased (e.g., on the Waldo shopping cart page). If you have any questions regarding Media licenses, please contact us at firstname.lastname@example.org.
Waldo respects the intellectual property rights of others and expects its users to do the same. To that end, all Waldo users are subject to the Copyright Policy set forth in Section E below.
The Waldo Services and all images, software, platforms, tools, graphics, data, text, code, the Waldo Marks (as defined below) and other content and materials available on the Services (excluding User Content) and the selection and arrangement thereof (collectively, the “Waldo Materials”) are the property of Waldo or its third party licensors and are protected by United States and international intellectual property laws.
You acknowledge that (i) all right, title and interest in and to the Waldo Materials, including all patents, copyrights, trade secrets, trademarks and other proprietary rights embodied therein or associated therewith, are and will remain with Waldo or its third party licensors; (ii) no right or interest in the Waldo Materials is conveyed other than the limited licenses granted herein; (iii) the Waldo Materials are protected by copyright and other intellectual property laws; and (iv) Waldo asserts that the Waldo Materials embody valuable confidential and secret information of Waldo or its licensors, the development of which required the expenditure of considerable time and money.
3. Waldo Marks
You acknowledge that “Waldo”, the Waldo logo, the look and feel of the Services, and any other Product or Service names, logos or slogans of Waldo contained in the Services are trademarks of Waldo (collectively, the “Waldo Marks”) and may not be copied, imitated or used without the prior written permission of Waldo. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners.
Waldo may provide users with tools to download the Waldo Marks via the Services. If you download or otherwise obtain the Waldo Marks using such tools, Waldo grants you a limited right to (i) use the Waldo Marks for the sole purpose of referencing the Services and (ii) to use only those Waldo Marks that are made available to you by Waldo through such tools. Your use of any Waldo Marks must be consistent with the size, dimensions, color and other characteristics of the Waldo Marks and consistent with any other policies concerning the Waldo Marks that we may post on the Site or otherwise make available through the Services from time to time. You may not (i) alter or change the appearance of the Waldo Marks, (ii) use the Waldo Marks in any manner that suggests Waldo sponsors or endorses a product, service, promotion, contest, or (iii) use the Waldo Marks for any other purpose deemed by Waldo to be inappropriate. Waldo has the right to revoke your right to use the Waldo Marks at any time at our sole discretion.
You agree that you will not (i) modify or alter the Waldo Materials; (ii) create derivative works of the Waldo Materials; (iii) decompile, disassemble, decode or reverse engineer the Waldo Materials, translate the Waldo Materials or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the Waldo Materials or reduce the Waldo Materials by any other means to a human-perceivable form; or (iv) bypass, delete or disable any copy protection mechanisms or any security mechanisms in the Waldo Materials.
Except as otherwise expressly permitted herein, you may not use the Services or the Waldo Materials to engage in any of the following prohibited activities:
- the collection, copying or distribution of any portion of the Waldo Materials;
- any resale, commercial use, commercial exploitation, distribution, public performance or public display of the Services or the Waldo Materials;
- modifying or otherwise making any derivative uses of the Services or the Waldo Materials;
- scraping or otherwise using any data mining, robots or similar data gathering or extraction methods on or in connection with the Services;
- with the exception of Media made available by users for download, the downloading of any portion of the Waldo Materials or any information contained therein; or
- any use of the Services or the Waldo Materials other than for their intended purposes.
You may create a text hyperlink to the Site, provided such link does not portray Waldo or any of its Products or Services in a false, misleading, derogatory or otherwise defamatory manner. This limited right may be revoked by Waldo at any time. You may not frame the Site or utilize framing techniques to enclose the Site, Waldo Materials, Waldo Marks or other proprietary information without Waldo’s express prior written consent.
As a part of the Services, we may provide you with access to and use of certain personalized pages and corresponding web addresses (“URLs”) that you may customize. Waldo does not guarantee the availability of any particular web page or URL and reserves the right, at any time and at our sole discretion, to reclaim, suspend, terminate and/or transfer any such web page or URL.
6. User Content
The Services may enable you to upload, post and transmit Photos to the Site or other portions of the Services (including to your user photo galleries) and also provide you with access to discussion forums, blogs and other interactive areas in which you or other users may post or transmit Photos, text, messages, information or other content or materials (collectively, including Media, the “User Content”).
You retain all intellectual property rights in and to any User Content you post, upload or otherwise make available through the Services, including the copyright in and to your Media. Waldo does not claim any ownership, right, title or interest in and to your User Content.
Notwithstanding the foregoing, by uploading and/or posting any User Content to the Site or otherwise by using the Services, you grant Waldo a perpetual, nonexclusive and royalty-free right to use the User Content (and the user name that is submitted in connection with such User Content) as is reasonably necessary in order to enable Waldo to provide the Services, including to display the User Content on the Services, to facilitate (at the Content Owner’s direction) the license of Photos, or to process the sale of Products through the Services.
7. Acceptable Use; Disclaimer
You are solely responsible for the User Content that you post or transmit using the Services and you agree not to post, transmit or otherwise publish through the Services any of the following:
- User Content that is unlawful, defamatory, obscene, pornographic, indecent, lewd, sexually suggestive, hateful, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable or harmful, including without limitation: Photos or other User Content containing nudity that would be unacceptable in a public museum where minors visit;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, endanger national security, or that would otherwise create liability or violate any local, state, national or international law;
- User Content that may infringe or violate any patent, trademark, trade secret, copyright or other intellectual or other proprietary right of any party;
- User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
- unsolicited promotions, political campaigning, advertising or solicitations;
- private information of any third party, including, without limitation: addresses, phone numbers, email addresses, social security numbers and credit card numbers;
- viruses, corrupted data or other harmful, disruptive or destructive files; and
- User Content that, in the sole judgment of Waldo, is objectionable, harmful or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Waldo or its users to any harm or liability of any nature.
8. Your Account
9. Account Security
You are solely responsible for maintaining the confidentiality of the passwords associated with your account and for restricting access to your passwords and physical access to your computer while logged into the Services. You accept responsibility for all activities that occur under your user account.
User Content that you post, upload or otherwise make available via the Services may be accessed, used and downloaded by other Waldo users. You understand and acknowledge that any User Content contained in public areas of the Services, including any user galleries or other portions of the Services, is accessible to the public and could be accessed, downloaded, indexed, archived, linked to and republished by others including, without limitation, appearing on other websites and in search engine results. Waldo provides security options and settings for your content available in the settings section of your applicable user account (the “Account Settings”), including the ability for you to designate certain portions of your account as unlisted, private, hidden or password-protected.
We use commercially reasonable security measures to protect your account and User Content consistent with your Account Settings. We cannot, however, guarantee absolute security of your account, your User Content or the Registration Data we collect, and we cannot promise that our security measures will prevent third party “hackers” from illegally accessing the Services or their contents. Waldo is not responsible or liable for any third party access to or use of the User Content you post or your Registration Data. You are encouraged to read, understand and use the security settings and mechanisms in your Account Settings to manage how your User Content is accessed and used by the public and other users of the Services. You agree to immediately notify Waldo of any unauthorized use of your account or passwords or any other breach of security, and you accept all risks of unauthorized access to the Registration Data, User Content and any other information you provide to Waldo.
10. Third Party Services
Waldo does not imply affiliation, approval, or control of any Third Party Services by making such Third Party Services available via the Waldo Services. Waldo makes no claim or representation regarding, and accepts no responsibility for, the quality, accuracy, nature, ownership or reliability of Third Party Services. YOUR USE OF ANY SUCH THIRD PARTY SERVICES IS SOLELY AT YOUR OWN RISK AND SUBJECT TO THE APPLICABLE TERMS AND CONDITIONS AND PRIVACY POLICIES APPLICABLE TO SUCH THIRD PARTY SERVICES.
11. Advertisements and Promotions
The Services may contain third party advertisements and promotions generated or posted by Waldo users, Waldo Vendors or other third party service providers.
Your business dealings or interactions with any third parties, including the Waldo users or Waldo Vendors, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. Waldo does not endorse, approve, or control any such products, services, advertising or promotions posted to the Services by its users or the Waldo Vendors. Waldo is not responsible or liable for any loss or damage of any kind incurred as the result of your direct dealings with Waldo users or a Waldo Vendor or otherwise resulting from the presence of advertisements for third party products and services included on the Services.
12. DISCLAIMER OF WARRANTIES
THE SITE, SERVICES, THE WALDO MATERIALS, AND THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WALDO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT AS TO THE SITE, THE SERVICES, THE WALDO MATERIALS, AND THE PRODUCTS.
WALDO DOES NOT REPRESENT OR WARRANT THAT THE WALDO MATERIALS OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SERVICES, ITS SERVERS OR EMAIL SENT FROM WALDO OR THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WALDO IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT, OR PHOTOS. WALDO ALSO MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY, RELIABILITY OR SECURITY OF THE SERVICES AND WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR ANY MODIFICATION, SUSPENSION, UNAVAILABILITY, OR DISCONTINUANCE OF THE SERVICES OR THE PRODUCTS PROVIDED THEREON.
13. LIMITATION OF LIABILITY
IN NO EVENT WILL WALDO OR ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE OR VIEW THE SITE, THE SERVICES, THE PRODUCTS, THE USER CONTENT OR THE WALDO MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, INCLUDING ANY DAMAGES CAUSED BY OR RESULTING FROM YOUR RELIANCE ON ANY INFORMATION OBTAINED FROM WALDO, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY TERMINATION, SUSPENSION OR OTHER FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO WALDO’S RECORDS, PROGRAMS, OR SERVICES.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF WALDO, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE, THE SERVICES, THE PRODUCTS, THE USER CONTENT OR THE WALDO MATERIALS, EXCEED COMPENSATION YOU PAY, IF ANY, TO WALDO FOR ACCESS TO OR USE OF THE SITE OR THE SERVICES OR FOR THE PURCHASE OF PRODUCTS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
15. Dispute Resolution
Interpretation of these Terms and any claim relating thereto shall be governed by the laws of the State of Texas without regard to its conflict of law provisions. This Dispute Resolution section shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16.
Agreement to Arbitrate & Waiver of Representative Actions
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH WALDO AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. IF YOU DO NOT CONSENT TO THE TERMS OF THIS SECTION 15, YOU ARE NOT PERMITTED TO USE THE WALDO SERVICES.
You and Waldo agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Service or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right:
(a) to bring an individual action in small claims court; and
(b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (b), an “IP Protection Action”).
Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Waldo with written notice of your desire to do so by email at email@example.com or regular mail at 1317 Rosewood Avenue, Austin, TX 78702 within thirty (30) days following the date you first accept these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Waldo with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (a) and (b) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Waldo with an Arbitration Opt-out Notice, will be the state and federal courts located in the Western District of Texas and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Waldo with an Arbitration Opt-out Notice, you acknowledge and agree that you and Waldo are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action, representative, or private attorney general proceeding. Further, unless both you and Waldo otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class, representative, or private attorney general proceeding. In addition, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and cannot award relief that would affect other users. If this specific limitation on class, representative, private attorney general, or non-individualized declaratory and injunctive relief is held unenforceable as to a particular claim for relief, then that particular claim (and only that claim) shall be severed from arbitration and resolved in court. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration and a separate Demand for Arbitration for California residents) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator will decide all issues, except that issues regarding the arbitrability of claims, including disputes over the interpretation or enforceability of the limitation on class, representative, private attorney general, or non-individualized declaratory and injunctive relief, shall be for the court to decide.
Arbitration Location and Procedure
Unless you and Waldo otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Waldo submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Waldo will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration, unless the arbitrator determines that either the substance of your claim or the relief sought in your Demand for Arbitration is frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for relief does not exceed $75,000 in value, Waldo will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Modification” section above, if Waldo changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Waldo’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Waldo in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
We welcome feedback from our users regarding ideas and suggestions for improvements to the Site, Services and Products. Waldo will be entitled to use any such feedback without restriction, even if you designate such feedback as confidential. You hereby grant Waldo a royalty-free, sublicensable, transferable, perpetual, irrevocable license in and to any feedback to use in any matter related to the operation of our business.
18. International Users
Waldo is located in the State of Texas in the United States of America. If you access the Services from a country other than the United States, you agree that your transactions with Waldo occur in the United States. You are responsible for compliance with all applicable laws, rules and regulations applicable to your use of the Services.
21. Questions or Comments
Waldo is committed to keeping our users happy and satisfied with their use of the Services. If you have any questions, concerns, complaints or comments in any way related to your use of the Services, please contact us at email@example.com.
1. Transactional Plan
The Transactional Plan is available to users (i) who register for a free trial (when available) and (ii) who pay Platform Fees comprising 20% of the gross revenue collected from customers less applicable merchant services fees, taxes, customer credits (“Net Revenue”). This percentage of Net Revenue collected from customers can be changed at the sole discretion of Waldo. The Net Revenue can either be collected fully by Waldo and distributed to users (less of Platform Fees) within thirty (30) days of a transaction, or Waldo can collect the Platform Fees as each transaction occurs.
The Subscription Services may become available to users (i) who register for a free trial (when available) or for a subscription to the Subscription Services (“Subscription”) and (ii) who pay in full the Subscription fees (“Subscription Fees”) applicable to the level of Subscription selected by such user (the “Subscription Plan”).
3. Payment Information
4. Free Trials
When you first register for the Professional Services, Waldo may offer you the ability to use the Professional Services without paying a Platform Fee or Subscription Fee (“Professional Fee”) for a limited trial period (a “Free Trial”). The duration of a Free Trial will be the number of days specified by Waldo at the time of your registration for such Free Trial. You do not need to provide Waldo with a credit card or other Payment Information in order to register for a Free Trial. At the conclusion of your Free Trial, your user account will automatically terminate unless you elect to continue to use the Professional Services by selecting a Transactional or Subscription Plan (“Professional Plan”) and providing Waldo (or our applicable third party payment processor) with valid Payment Information. Upon Waldo’s receipt of your Payment Information, you will be charged for the Professional Fee applicable to your selected Professional Plan. Waldo may offer you the ability to register for a Subscription directly without the need to participate in a Free Trial.
5. Subscription Plans
Waldo may offer a variety of Subscription Plans designed to reflect the diverse needs of our users, each with its own features, descriptions, functionality and terms with respect to the use of the Services. By purchasing a Subscription, (i) you agree to pay all applicable Subscription Fees and other charges in accordance with your selected Subscription Plan, pursuant to the renewal and termination provisions described below (including any applicable taxes, such as sales tax), and (ii) you agree that you are only entitled to the features and services applicable to the Subscription Plan that you select at the time you purchase a Subscription.
Each Subscription is personal to the individual Waldo user. You may not transfer or assign your Subscription to another individual, entity or Waldo user unless such transfer or assignment is expressly permitted by the terms of your Subscription Plan.
6. Term and Automatic Renewal
Your Subscription is valid commencing on the date in which Waldo provides you with access to the Services pursuant to its receipt of your valid Payment Information (the “Commencement Date”) and will last for the duration of the Subscription term that you select at the time of your registration for the Subscription Services (the “Subscription Term”).
YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF EACH SUBSCRIPTION TERM FOR SUCCESSIVE SUBSCRIPTION TERMS OF THE SAME DURATION AS THE SUBSCRIPTION TERM ORIGINALLY SELECTED UNLESS THE SUBSCRIPTION IS TERMINATED AND/OR CANCELED BY YOU OR WALDO PRIOR TO THE END OF SUCH SUBSCRIPTION TERM. SUCH RENEWAL WILL OCCUR AUTOMATICALLY ON THE APPLICABLE ANNIVERSARY OF THE COMMENCEMENT DATE. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME PRIOR TO THE END OF THE SUBSCRIPTION TERM THROUGH YOUR ACCOUNT SETTINGS IN THE SUBSCRIPTION SECTION, OR BY SENDING AN EMAIL TO HELP@WALDOPHOTOS.COM PROVIDING CLEAR WRITTEN NOTICE OF SUCH REQUEST. You agree that upon such renewal, the credit card or other designated payment method in your Account Settings will be billed the applicable Subscription Fee for your Subscription Plan then in effect at the time of renewal. If you disagree with these automatic renewal provisions, your sole remedy is to cancel or terminate your Subscription.
You may upgrade your Subscription Plan at any time during the Subscription Term by notifying Waldo using your Account Settings. If you upgrade your Subscription Plan, the credit card or other designated payment method in your Account Settings will be billed for the difference in price, pro-rated for the remainder of your Subscription Term.
You acknowledge that the amount of the recurring charge at the time of Subscription renewal may differ from the Subscription Fees you originally paid for the Subscription Services if: (i) the Subscription Fee for your Subscription Plan changes during your applicable Subscription Term, or (ii) if you change your Subscription Plan or Subscription Term during the previous Subscription Term. Waldo will notify you of any changes to the Subscription Fee prior to the date on which your Subscription Term will renew. You hereby agree to any such revised Subscription Fees and your sole remedy if you disagree with such changes is to terminate your account and stop using the Subscription Services.
Waldo reserves the right at any time, at its sole discretion and without notice, to suspend, modify, discontinue or permanently cancel the Subscription Services or any portions thereof, including the Subscription Plans and any policies, features and terms applicable thereto. If the Subscription Services, or any part thereof, to which you subscribe are permanently discontinued or canceled by Waldo, your Subscription will terminate, and we will have no further liability to you. You acknowledge that the Subscription Services may be interrupted from time to time, with or without notice, for maintenance, upgrades, system updates or in the event of equipment failure or for any other foreseeable or non-foreseeable cause.
WALDO WILL HAVE NO LIABILITY TO YOU FOR ANY INTERRUPTION, SUSPENSION, DISCONTINUANCE OR UNAVAILABILITY OF THE SUBSCRIPTION SERVICES FOR ANY REASON, OR FOR ANY LOSS OR INABILITY TO ACCESS ANY MEDIA OR MATERIALS ON THE SERVICES.
8. Termination of Services
You may request the termination of your Subscription or account at any time by canceling your account in the Account Settings, or by sending an email to firstname.lastname@example.org providing clear written notice of such request. When Waldo receives your termination request, Waldo will proceed with the termination and notify you of such termination via email. Waldo may request additional information from you prior to terminating your Subscription. Your Subscription or account is not terminated until you receive confirmation of such termination from Waldo. If you terminate your Subscription or account, such termination will be effective immediately upon your receipt of such confirmation from Waldo, regardless of whether there is any period of time remaining in your Subscription Term. By way of example and not in limitation of the foregoing, if you request the termination of your Subscription and you have two months remaining in your Subscription Term, such termination is effective immediately and you will not have access to the Subscription Services for the remaining two months of such Subscription.
All Professional Fees are nonrefundable. Upon termination, cancellation or discontinuation of your Subscription or account for any reason, you will not be entitled to receive a refund for any Professional Fees or other amounts previously charged to you, or for any unused portion of any Professional Fees if such termination, cancellation or discontinuation occurs prior to the expiration of the applicable Subscription Term.
You may change your email, credit card information or other Payment Information for your account by using the Account Settings available in your user profile. It is solely your responsibility to keep your account information and Payment Information accurate and up-to-date. If the Payment Information for your account is invalid and cannot be billed for the Professional Fees at the time such Professional Fees are payable and due, then Waldo may terminate your account for nonpayment. If Waldo does not have a current, working email address for your user account, then you may not receive important notices from us regarding your account, including notices regarding termination. Waldo cannot guarantee that you will receive notice of the termination of your account.
10. Backup Policy
YOU ARE SOLELY RESPONSIBLE FOR CREATING AND MAINTAINING BACKUP COPIES OF ANY USER CONTENT YOU UPLOAD, POST OR MAKE AVAILABLE THROUGH THE SERVICES DURING ANY APPLICABLE SUBSCRIPTION TERM AT YOUR SOLE COST AND EXPENSE. YOU MAINTAIN RESPONSIBILITY AND LIABILITY FOR ANY LOSSES OR DAMAGES YOU INCUR FOR FAILURE TO MAINTAIN BACKUP COPIES OF YOUR USER CONTENT. WALDO IS NOT LIABLE TO YOU FOR ANY DAMAGES OR LOSSES THAT RESULT FROM THE LOSS OR BREACH OF YOUR USER CONTENT IN CONNECTION WITH YOUR USE OF THE WALDO SERVICES.
Waldo uses third party vendors to host and store any Media that you upload to Waldo through your use of the Professional Services. We may require our vendors to maintain certain standards with respect to your User Content, but Waldo does not guarantee that your User Content will be secure and/or available at all times during the Subscription Term. Waldo does not guarantee that your User Content will be available on the Services after the termination of your Subscription, irrespective of the reason for such termination. It is your sole responsibility to create and maintain backup copies of any such User Content on a regular basis.
Please note that when User Content or other files are deleted (or your account is cancelled), those files will be deleted as soon as reasonable pursuant to Waldo’s data destruction policies and cannot be recovered by Waldo or any third party vendor following deletion (including Amazon S3 if you have subscribed to a WaldoVault account).
11. Use of User Information
12. Independent Contractors
Use of the Waldo Professional Services does not create a partnership, agency, joint venture or any employee-employer relationship between you and Waldo. At all times the relationship between you and Waldo will be that of independent contractors. You are responsible for all state, local, federal or other taxes that you are obligated to pay in connection with your use of the Subscription Services.
C. ADDITIONAL TERMS APPLICABLE TO SALES OF PRODUCTS (“TERMS OF SALE”)
Waldo facilitates your purchase of Photos or Products through the Waldo Services through its relationships with the Waldo Vendors. If you purchase Photos or other Products through the Waldo Services, you acknowledge that the printing of any Photos or creation of other physical medium Products is performed by such Waldo Vendors and Waldo’s role is to assist, facilitate and support such order process pursuant to these Terms of Sale.
1. Pricing; Payment Terms
In order to purchase Products through the Waldo Services, you are required to provide valid Payment Information as required by Waldo. Waldo may terminate your order for Products and take such other action as appropriate if we are unable to process your Payment Information and you do not provide an alternative form of payment upon Waldo’s request. You agree to reimburse Waldo for any and all costs incurred in collecting amounts owed by you to Waldo or a Waldo Vendor, including, without limitation, attorneys’ fees and costs of collection agencies.
You are responsible for any taxes that you are obligated to pay or that Waldo may collect from you in connection with your purchase of Products. If you do not pay the sales or other taxes or fees on a transaction, you will be responsible for the taxes or fees in the event they are later determined to be payable on the sale, and Waldo reserves the right to collect the taxes or other related fees from you at any time. In certain jurisdictions, Waldo may be required to collect and remit sales tax in connection with your purchase of Products. Any such taxes will be added to the purchase price and reflected on your invoice or receipt.
2. Product Downloads; Shipping Terms and Policies
If you purchase a Photo download, such download will be made available to you through the Services upon Waldo’s receipt of your valid Payment Information.
If you purchase Photo prints or other physical medium Products (i.e., photo books or other photo merchandise), Waldo will use its commercially reasonable efforts (and our Waldo Vendors will use commercially reasonable efforts) to ship all orders for such Products within the estimated delivery time applicable to various methods of shipping available at the time you place your order. Waldo is not responsible for any delays in shipping. Waldo or the Waldo Vendors reserve the right to substitute another carrier of equal or lesser cost to deliver your order at our discretion. All shipping charges are your responsibility. Please see our Shipping Charges for additional detail. Shipping charges will be included in your shopping cart and can be viewed on a summary screen prior to finalizing your order. The shipping charge shown during the Product checkout process is subject to verification and to correction or change without notice, provided that if the actual shipping charge is more than the amount shown in your shopping cart, we will contact you with the correct shipping costs before processing your order, and you will have an opportunity to cancel your order. All orders are shipped FOB shipping point. Title to the physical medium of the Products passes from Waldo to you upon shipment. If an item in your order is temporarily out of stock, we may hold your order until it is complete prior to shipment.
3. Return Policy
Waldo unconditionally guarantees your satisfaction with any Products that you purchase through the Services. If you are unsatisfied with any Photos or other Products you have purchased from Waldo, we will gladly accept the return of any Product you have ordered for any reason within thirty (30) days of your receipt of the Product. Upon completion of the return procedure and receipt of the returned Product, we will resend you the Product or issue you a full refund of the purchase price paid for such Product, whichever you prefer. We do not provide refunds for your original shipping cost unless your order is physically defective in some manner. If you are unsatisfied with a Product that is not in a physical medium form (i.e., a Photo download), then upon your request, we may issue you a full refund of the purchase price paid for such Product at our discretion depending on the circumstances. To request a refund or replacement for any Product, please contact Waldo at email@example.com. Please do not contact your credit card company to dispute a charge before contacting Waldo.
4. Product Availability and Pricing
Waldo or the Waldo Vendors may revise or discontinue Product options at any time without prior notice, and Products may become unavailable even after an order is placed. All prices are subject to change without notice.
5. Product Descriptions; Pricing; Errors
Waldo strives to maintain accurate information in the Services and to eliminate any errors. However, we do not warrant that Product descriptions, Photos, pricing or other Waldo Materials are accurate, complete, reliable, current, or error-free. In addition, all weights and size dimensions are approximate. While we make reasonable efforts to accurately display all details of our Product offerings, including the applicable color, please note that the actual color you will see for a Photo depends on the settings of your computer screen and we cannot guarantee that your computer will accurately display all Photo colors. Waldo or a Waldo Vendor reserves the right to format, manipulate or otherwise modify Photos as may be required to satisfy a particular order. If a Product offered by Waldo is not as described or pictured, your sole remedy is to return the Product in unused condition for a refund within thirty (30) days of receipt. In the event of an error, whether contained in the Services, in an order confirmation, in processing an order or otherwise, we reserve the right to correct such error and charge the correct price or cancel the order, and your sole remedy in the event of such error is to cancel your order. 6. Disclaimer of Warranties
THE FOREGOING RIGHT TO RETURN ANY ORDER WITHIN THIRTY (30) DAYS IS YOUR SOLE AND EXCLUSIVE REMEDY, AND WALDO’S SOLE AND EXCLUSIVE LIABILITY, WITH RESPECT TO THE PURCHASE OF ANY PRODUCTS USING THE SERVICES, AND WALDO EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PURCHASE OF ANY PRODUCTS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
D. LICENSE AGREEMENT
These License Agreement terms apply to Content Owners who have registered for a Professional Plan granting such Content Owner the ability to license Media through the use of the Services. Certain Waldo Pro users may be entitled to license digital versions of such user’s Photos to other Waldo users for an applicable license fee under the terms of such user’s Professional Plan.
1. Rights Granted by Content Owner
By uploading or posting Photos to be licensed to Waldo users, Content Owner hereby grants to Waldo the right to facilitate the licensing by Content Owner of Photos posted on Waldo to a licensee according to the licensing designation (a Commercial Use License or Personal Use License) identified by the Content Owner upon submission of the Photos.
2. Content Owner Responsibilities
Content Owner is responsible for all Photos posted to Waldo through the Services, including without limitation the designation of Photo license types (either personal or commercial) and the setting of license fees (if applicable) through the tools available in Content Owner’s Account Settings.
3. Media Submission and Licensing
Photos designated for commercial license should be free from any distinguishable third party names, trademarks, logos, copyright designs, works of art, architecture, or any other depictions requiring additional rights. Content Owner understands and agrees that all Photos are licensed directly by the Content Owner subject to the license and the license type and the license fees (if applicable) for Photos or as chosen by Content Owner. Waldo merely facilitates and enables such license and does not maintain any responsibility or liability for the Photos.
So long as Content Owner has agreed to make the Photos available through the Services there will not be any restraint on the licensing of such Photos through the Services to any Waldo users to the fullest extent possible, according to the type of license provided by the Content Owner.
4. Representations and Warranties of Content Owner
Content Owner represents and warrants to Waldo that:
- Content Owner owns (or has legal right to represent and license) all intellectual property rights, title and interest in and to all Photos, including applicable copyrights, submitted through the Services and has the right to grant all licenses granted herein without violating the rights of any third party;
- All information concerning all Photos provided by Content Owner to Waldo through the use of the Services is, to the best of Content Owner’s knowledge, true and accurate; and
- All Photos submitted or posted by Content Owner have all necessary releases, consents and permissions required to grant the licenses granted under the applicable license, including, without limitation, valid Model Releases and Property Releases for Photos depicting recognizable people (living or dead) and private properties, permissions regarding posting Photos containing individuals under the age of 18, and all written permission regarding all distinguishable trademarks.
“Commercial Use License” means a licensing type in which the licensee is entitled to use the Photos subject to the commercial use license.
“Model Release” means a written release signed by or on behalf of any living person or the estate of a deceased person who is depicted in whole or in part in any Photos.
“Personal Use License” means a licensing type in which the licensee is entitled to use the Photos subject to the personal use license.
“Property Release” means a written release from the owner and/or occupier of any property that is depicted in whole or in part in any Photos.
E. COPYRIGHT POLICY
In accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”), the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/pl105-304.pdf, and other applicable laws, Waldo has adopted a policy of terminating, in appropriate circumstances and at Waldo’s sole discretion, the accounts of users who are deemed to be repeat infringers. Waldo may also, at its sole discretion, limit access to Waldo’s website and services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. Waldo will respond to claims of copyright infringement committed using Waldo that are reported to Waldo’s Designated Copyright Agent, identified in the sample notice below.
If you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorney’s’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Waldo Services by completing the following DMCA Notice of Alleged Infringement and delivering it to Waldo’s Designated Copyright Agent.
Upon receipt of the Notice as described below, Waldo will take whatever action, at its sole discretion, it deems appropriate, including removal of the challenged material from the Waldo Services.