PRIVATE PHOTO VAULT IS A SPECIALIZED MOBILE APPLICATION THAT PLACES CERTAIN IMAGE AND VIDEO FILES BEHIND AN ADDITIONAL LAYER OF PASSWORD PROTECTION ON YOUR MOBILE DEVICE. AS WITH ANY MOBILE APPLICATION WITH LIMITED FUNCTIONS, PRIVATE PHOTO VAULT DOES NOT PROTECT YOUR MOBILE DEVICE OR IMAGE AND VIDEO FILES AGAINST THIRD PARTY UNAUTHORIZED ACCESS.
1. AGREEMENT AND ARBITRATION NOTICE
ARBITRATION NOTICE: DETAILED IN SECTION 22 OF THIS AGREEMENT, BY USING THE SERVICE, YOU AGREE THAT DISPUTES BETWEEN YOU AND PRIVATE PHOTO VAULT WILL BE RESOLVED BY BINDING ARBITRATION UPON THE ELECTION OF EITHER PARTY. THE PARTIES WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT AND ALSO WAIVE THE RIGHT TO PARTICIPATE IN CLASS-WIDE ARBITRATION.
BY ACCESSING AND/OR USING THE SERVICE, INCLUDING BY DOING SO AFTER ACCESSING THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW. Any individual using the Service on behalf of a company further represents and warrants that they are authorized to act and enter into contracts on behalf of that company. This Agreement is void where prohibited.
5. PRIVATE PHOTO VAULT’S ROLE; USE AT YOUR OWN RISK
Without limitation, You agree that You will use the Service at Your own risk, without limitation and pursuant to Section 8: ASSUMPTION OF RISK; RELEASE. While Private Photo Vault enables You to store certain digital photographs on Your mobile device but outside of the iOS photo library, there are no additional code-level security measures that protect Your photographs from third-party data collection or any unauthorized access to Your mobile device, nor does Private Photo Vault take liability attaching thereto. For additional information, please carefully review Section 19: DISCLAIMERS; LIMITATION OF LIABILITY.
Subject to Your compliance with the terms and conditions of this Agreement, Private Photo Vault grants You a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to use the Service. The Service, including any portion of the Private Photo Vault mobile application, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, transmitted, or otherwise exploited for any commercial purpose without the prior, express written consent of Private Photo Vault. All rights not expressly granted herein are reserved by Private Photo Vault. Without limitation, this Agreement grants You no rights in or to the intellectual property of Private Photo Vault pr any other party, except as expressly set forth herein. The license granted in this section is conditioned on Your compliance with the terms and conditions of this Agreement. Your rights under this section will immediately terminate in the event that You breach, actually or potentially, in the sole judgment of Private Photo Vault, any provision of this Agreement.
7. NO RELIANCE ON THIRD-PARTY CONTENT
The Service is provided only as a technology solution. Opinions, advice, statements, or other information made available about the Service by third parties, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Private Photo Vault does not: (i) guarantee the accuracy, completeness, or usefulness of any third-party information about the Service or accessible on or through the Service; or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by a third party about the Service or by means of the Service. Under no circumstances will Private Photo Vault be responsible for any loss or damage resulting from your reliance on information or other content posted through the Service or about the Service, including any information or other content transmitted to or by any third party.
8. ASSUMPTION OF RISK; RELEASE
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SERVICE. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES, AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND, AND INDEMNIFY PRIVATE PHOTO VAULT AND ITS STOCKHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, CONSULTANTS, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “PRIVATE PHOTO VAULT PARTIES”) FROM ANY AND ALL CLAIMS, ACTIONS, OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF PRIVACY, OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, THAT MAY RESULT FROM YOUR USE OF THE SERVICE.
9. ACCURATE USER INFORMATION; YOU ARE RESPONSIBLE FOR ACCESS TO PRIVATE PHOTO VAULT
Private Photo Vault shall not be liable for any loss that You incur as a result of someone else using Your mobile device or accessing Your mobile device, including by accessing Private Photo Vault either with or without Your knowledge. You may be held liable for any losses incurred by Private Photo Vault, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of Your copy of Private Photo Vault.
10. CONSENT TO RECEIVE ELECTRONIC COMMUNICATIONS FROM PRIVATE PHOTO VAULT
Without limitation, by registering for the Service and providing Your name and email address through the Service, You hereby expressly consent to receive electronic and other communications from Private Photo Vault, over the short term and periodically, including email communications, regarding the Service, new product offers, promotions, and other matters. You may opt-out of receiving electronic communications at any time by (a) following the unsubscribe instructions contained in each communication; or (b) sending an email to SUPPORT [at] PRIVATEPHOTOVAULT [dot] COM.
11. CONSENT TO RECEIVE ELECTRONIC COMMUNICATIONS FROM PRIVATE PHOTO VAULT PARTNER MARKETERS
Without limitation, by registering for the Service and/or by providing Your name and email address through the Service, You hereby consent to receive, and openly and knowingly solicit, electronic communications, including email communications, from Private Photo Vault partner firms which may include third party marketing companies, affiliates, advertising agencies, and data aggregation companies regarding their services, including offers, promotions, and other related matters. You may opt-out of receiving electronic communications at any time by (a) following the unsubscribe instructions contained in each communication; or (b) sending an email to SUPPORT [at] PRIVATEPHOTOVAULT [dot] COM.
12. RESERVED RIGHTS FOR PRIVATE PHOTO VAULT FEES
(a) Reserved Rights for Private Photo Vault’s Fees
You acknowledge and agree that Private Photo Vault reserves the right to charge for access to the Service, in accordance with the Private Photo Vault Fee Policy specified in Subsection (b) of this Section and subject to Private Photo Vault’s amendment as specified in this Agreement. PRIVATE PHOTO VAULT RESERVES THE RIGHT, IN PRIVATE PHOTO VAULT’S SOLE DISCRETION, TO CHANGE THE FEES AND CHARGES IN EFFECT, OR TO ADD NEW FEES AND CHARGES, BY POSTING SUCH CHANGES OR PROVIDING NOTICE TO YOU. ALL FEES AND CHARGES ARE NONREFUNDABLE, AND THERE ARE NO REFUNDS. Private Photo Vault’s decision not to exercise any specific right or require performance of any specific obligation under this Agreement, including without limitation the collection of regularly recurring fees from You, shall not affect Private Photo Vault’s subsequent ability to exercise such right or require such performance at any time thereafter. Nor shall Private Photo Vault’s waiver of Your breach constitute Private Photo Vault’s waiver of any subsequent breach by You or any other user of the Service. By using the Service, You authorize Private Photo Vault, and/or its payment processor, to charge Private Photo Vault’s fees to the credit card, debit card, or other payment method You provide, in addition to applicable sales taxes and other taxes.
(b) Private Photo Vault Fee Policy; Free Version and Premium Version
A limited version of the Service is currently provided at no charge to You. Private Photo Vault may charge a fee for in exchange for Your use of the Service when You purchase the “Premium” version of the Private Photo Vault mobile application (“Paid Goods and Services”). In all cases, fees for Paid Goods and Services are due and collected in full before the goods are delivered or the services are rendered.
13. THIRD-PARTY WEBSITES
The Service is linked with the websites of third parties (“Third-Party Websites”), some of whom may have established relationships with Private Photo Vault and some of whom may not. Private Photo Vault does not have control over the content and performance of Third Party Websites. Private Photo Vault has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on or through Third Party Websites. Accordingly, Private Photo Vault does not represent, warrant, or endorse any Third Party Websites, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third-Party Websites. Private Photo Vault disclaims, and You agree to assume, all responsibility and liability for any damages or other harm, whether to You or to third parties, resulting from Your use of Third Party Websites.
14. USER CONTENT AND DELETION WARNING
“User Content” is any content, material, or information, not including personally identifiable information (e.g., first and last name, address, phone number, email address, etc.), that You submit, upload, and/or post to, or transmit, display, perform, or distribute by means of, the Service, whether in connection with Your use of the Service or otherwise. This includes without limitation personal photos and videos. Private Photo Vault does not claim ownership of any User Content. You retain all right, title, and interest, including without limitation all worldwide intellectual property rights, in and to Your User Content. You hereby represent and warrant that You: (a) own all rights, title, and interest in and to any and all User Content You submit, or are otherwise authorized to grant the rights provided the Private Photo Vault Parties under this section, OR (b) have written consent, release, and/or permission of each and every identifiable individual person in any User Content You submit to use the name and likeness of each and every such identifiable person in the User Content. Private Photo Vault reserves the right, in its sole discretion, to reject any User Content for any reason. “Objectionable Content” specified in Section 16 and “Prohibited Uses” in Section 17 are not exhaustive lists of content that Private Photo Vault reserves the right to remove or deny.
DELETION WARNING: Please transfer all User Content to your iOS library before You delete the mobile application, because the mobile application will not provide this Service to You automatically.
15. YOUR RESPONSIBILITY FOR DEFAMATORY COMMENTS
You agree and understand that You may be held legally responsible for damages suffered by other users or third parties as the result of Your remarks, information, feedback, or other content posted or made available through the Service that is deemed defamatory or otherwise legally actionable. Under the Federal Communications Decency Act of 1996, Private Photo Vault is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback, or other content posted or made available through the Service.
16. OBJECTIONABLE CONTENT
17. PROHIBITED USES
Private Photo Vault imposes certain restrictions on Your use of the Service. You agree that You will not: (a) “stalk” or otherwise harass any person, or contact any person who has requested not to be contacted; (b) provide false, misleading or inaccurate information to Private Photo Vault; (c) impersonate, or otherwise misrepresent affiliation, connection, or association with, any person or entity; (d) modify or change the placement and location of any advertisement posted through the Service; (e) harvest or otherwise collect information about Private Photo Vault users, including email addresses and phone numbers; (f) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Service for any use, including without limitation use on Third-Party Websites; (g) access content or data not intended for You, or log onto a server or account that You are not authorized to access; (h) attempt to probe, scan, or test the vulnerability of the Service, or any associated system or network, or breach security or authentication measures without proper authorization; (i) interfere or attempt to interfere with the use of the Service by any other user, host, or network, including without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (j) use the Service to send unsolicited email, including without limitation promotions or advertisements for products or services; (k) forge any TCP/IP packet header or any part of the header information in any email or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Service; or (l) attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Private Photo Vault Parties in providing the Service. Any violation of this section may subject You to civil and/or criminal liability.
18. INTELLECTUAL PROPERTY
(a) Compliance with Law
You represent and warrant that, when using the Service, You will obey all applicable laws and respect the intellectual property rights of others. Your use of the Service is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform, or distribute any content, information or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE THE SOLE AND EXCLUSIVE OWNER OF ANY USER CONTENT THAT YOU SUBMIT THROUGH THE SERVICE. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE SERVICE. PRIVATE PHOTO VAULT USERS BEAR THE SOLE BURDEN OF PROVING THAT CONTENT, INFORMATION, OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS.
Private Photo Vault and the “Private Photo Vault logo” (collectively, the “Private Photo Vault Marks”) are trademarks or registered trademarks of Legendary Software Labs, LLC. Other trademarks, service marks, graphics, logos, and domain names appearing anywhere on, through, or in connection with the Service may be the trademarks of third parties. Neither Your use of the Service nor this Agreement grant You any right, title, or interest in or to, or any license to reproduce or otherwise use, the Private Photo Vault Marks or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the Private Photo Vault Marks generated as a result of Your use of the Service will inure to the benefit of Legendary Software Labs, LLC, and You agree to assign, and hereby do assign, all such goodwill to Legendary Software Labs, LLC. You shall not at any time, nor shall You assist others to, challenge Legendary Software Labs, LLC’s right, title, or interest in or to, or the validity of, the Private Photo Vault Marks.
(c) Copyrighted Materials; Copyright Notice
All content and other materials available through the Service, including without limitation the Private Photo Vault logo, design, text, graphics, and other files, and the selection, arrangement, and organization thereof, are either owned by Legendary Software Labs, LLC or are the property of Legendary Software Labs, LLC’s licensors and suppliers. Except as explicitly provided, neither Your use of the Service nor this Agreement grant You any right, title, or interest in or to any such materials.
(d) DMCA Policy
As Private Photo Vault asks others to respect Private Photo Vault’s intellectual property rights, Private Photo Vault respects the intellectual property rights of others. If You believe content located on or linked-to by the Service violates Your copyright, you are encouraged to please immediately notify Private Photo Vault by means of emailed notice (“Infringement Notice”), providing the information described herein. If Private Photo Vault takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party that made such content available by means of the most recent email address, if any, provided by such party to Private Photo Vault. Please be advised that You may be held liable for damages based on certain material misrepresentations contained in an Infringement Notice. Thus, if You are not sure content located on or linked-to by the Service infringes Your copyright, You should consider first contacting an attorney.
All Infringement Notices should include the following:
1. A signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf;
2. An identification of the copyright claimed to have been infringed;
3. A description of the nature and location of the material that You claim to infringe Your copyright, in sufficient detail to permit Private Photo Vault to find and positively identify that material;
4. Your name, address, telephone number, and email address; and
5. A statement by You: (i) that You believe in good faith that the use of the material that You claim to infringe Your copyright is not authorized by law, or by the copyright owner or such owner’s agent; and, (ii) under penalty of perjury, that all of the information contained in Your Infringement Notice is accurate, and that You are either the copyright owner or a person authorized to act on their behalf.
Infringement Notices should be sent to SUPPORT@PRIVATEPHOTOVAULT.COM with the subject line “DMCA Notice – [INSERT YOUR NAME OR YOUR COMPANY’S NAME]”.
Private Photo Vault will respond to all such notices, including as required or appropriate by removing the offending material or disabling all links to the offending material.
19. DISCLAIMERS; LIMITATION OF LIABILITY
(a) NO WARRANTIES.
PRIVATE PHOTO VAULT, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICE, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NO ENCUMBRANCE, OR TITLE, IN ADDITION TO ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEITHER PRIVATE PHOTO VAULT NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. PRIVATE PHOTO VAULT DISCLAIMS ALL IMPLIED LIABILITY FOR DAMAGES ARISING OUT OF THE FURNISHING OF THE SERVICE PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT, ERRORS, REPRESENTATIONS, OR OTHER DEFECTS ARISING OUT OF THE FAILURE TO THE FURNISH THE SERVICE, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, OR ANY OTHER DAMAGE OCCURRING. PRIVATE PHOTO VAULT SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER CAUSED BY THE ACTS OR OMISSIONS OF PRIVATE PHOTO VAULT, PRIVATE PHOTO VAULT PARTIES, OR PRIVATE PHOTO VAULT USERS, OR THEIR AGENTS OR REPRESENTATIVES.
(b) YOUR RESPONSIBILITY FOR LOSS OR DAMAGE; BACKUP OF DATA
YOU AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. YOU WILL NOT HOLD PRIVATE PHOTO VAULT OR ITS LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO AND/OR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS, MOBILE DEVICES, INCLUDING WITHOUT LIMITATIONS TABLETS AND/OR SMARTPHONES, OR DATA. THE SERVICE MAY CONTAIN BUGS, ERRORS, PROBLEMS, OR OTHER LIMITATIONS.
IMPORTANTLY, YOU HEREBY ACKNOWLEDGE THAT A CATASTROPHIC DISK FAILURE OR OTHER SIMILAR EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO YOUR ACCOUNT. YOU AGREE AND UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO BACKUP YOUR DATA TO YOUR PERSONAL COMPUTER OR EXTERNAL STORAGE DEVICE AND TO ENSURE SUCH BACKUPS ARE SECURE.
(c) LIMITATION OF LIABILITY
IN NO EVENT SHALL PRIVATE PHOTO VAULT OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO YOU FOR ANY CLAIMS ARISING FROM YOUR USE WITH THE SERVICE, INCLUDING WITHOUT LIMITATION FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO PRIVATE PHOTO VAULT OR ITS LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICE. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN PRIVATE PHOTO VAULT AND YOU. THE SERVICE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
THE ABOVE DISCLAIMERS, WAIVERS, AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN ANY OTHER AGREEMENT BETWEEN YOU AND PRIVATE PHOTO VAULT OR BETWEEN YOU AND ANY OF PRIVATE PHOTO VAULT’S LICENSORS AND SUPPLIERS. PRIVATE PHOTO VAULT’S LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS, AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICE OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
20. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that Your use of the Service will be in accordance with this Agreement and any other Private Photo Vault policies, and with any applicable laws or regulations.
21. INDEMNITY BY YOU
Without limiting any indemnification provision of this Agreement, You (the “Indemnitor”) agree to defend, indemnify, and hold harmless Private Photo Vault and the Private Photo Vault Parties (collectively, the “Indemnitees”) from and against any and all claims, actions, demands, causes of action, and other proceedings (individually, “Claim,” and collectively, “Claims”), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to Private Photo Vault, including the choice of legal counsel and all related settlement negotiations, arising out of or relating to: (i) the relationship between You and Private Photo Vault, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) Your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) Your access to or use of the Service; (iv) Your provision to Private Photo Vault or any of the Indemnitees of information or other data; (v) Your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) Your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by You of any Claim as to which You are required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. You may not settle any Claim without the prior written consent of the concerned Private Photo Vault Parties.
22. GOVERNING LAW; JURISDICTION AND VENUE
(a) 1-Year Limitations Period
ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE SERVICE, OR THIS AGREEMENT, MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH ABOVE.
(b) Binding Arbitration
If You and Private Photo Vault cannot resolve a Claim through negotiations, either party may elect to have the Claim finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other(s). YOU HEREBY ACKNOWLEDGE THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT WITH A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), as modified by this Agreement, available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Except as otherwise provided for herein, Private Photo Vault will pay the AAA filing, administration, and arbitrator fees. If, however, the arbitrator finds that either the substance of Your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In that case, You hereby agree to reimburse Private Photo Vault for all payments disbursed that are Your obligation to reimburse under the AAA Rules. If You are unable to pay the arbitration fee, Private Photo Vault will pay it directly upon receiving a written request and a sworn statement that You are unable to pay. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to resolve, except that issues relating to the enforceability of the arbitration provision are for a Court of Competent Jurisdiction to resolve. The arbitration may be conducted in person, through document submission, through telephone, or online. The arbitrator will issue a decision in writing, but need only provide a statement of reasons if requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Private Photo Vault may litigate to compel arbitration in court, to stay proceedings pending arbitration, or to modify, confirm, vacate, or enter judgment on the award entered by the arbitrator.
(c) Restrictions Against Joinder of Claims
You and Private Photo Vault agree that any arbitration shall be limited to each Claim individually. YOU AND PRIVATE PHOTO VAULT HEREBY AGREE THAT EACH MAY ONLY BRING CLAIMS AGAINST THE OTHER IN YOUR OR PRIVATE PHOTO VAULT’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. In the event that this specific provision is found to be unenforceable in a Court of Competent Jurisdiction, the Claim will still be finally and exclusively resolved by binding arbitration upon the election of either party, and any election to arbitrate by one party shall be final and binding on the other(s). In addition: (1) no arbitration shall be joined with any other arbitration, and (2) there is no right for any Claim to be arbitrated on a class-action basis or to employ class action procedures, and (3) there is no right of authority for any dispute to be brought in a purported representative capacity on behalf either of the general public or any other individuals.
(d) Remedies in Aid of Arbitration; Equitable Relief
This agreement to arbitrate will not preclude You or Private Photo Vault from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration, or confirm an arbitral award, from a Court of Competent Jurisdiction. Furthermore, this agreement to arbitrate will not preclude You or Private Photo Vault from applying to a Court of Competent Jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. As used herein, “Court of Competent Jurisdiction” means any federal or state court: (1) that has jurisdiction over the subject matter; and (2) that is located in the State of Nevada.
(e) Laws of the State of Nevada
This Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in the State of Nevada and shall be governed by and construed in accordance with the laws of the State of Nevada without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party. THE PROPER VENUE FOR ANY JUDICIAL ACTION ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT WILL BE THE STATE AND FEDERAL COURTS LOCATED IN OR NEAREST TO LAS VEGAS, NEVADA. THE PARTIES HEREBY STIPULATE TO, AND AGREE TO WAIVE ANY OBJECTION TO, THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS, AND FURTHER EXPRESSLY SUBMIT TO EXTRATERRITORIAL SERVICE OF PROCESS.
(a) BY PRIVATE PHOTO VAULT
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, PRIVATE PHOTO VAULT RESERVES THE RIGHT TO, IN PRIVATE PHOTO VAULT’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY USE OF THE SERVICE TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR ANY BREACH OR SUSPECTED BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION.
(b) AUTOMATIC TERMINATION UPON BREACH BY YOU
This Agreement shall automatically terminate in the event that You breach any of this Agreement’s representations, warranties, or covenants. Such termination shall be automatic, and shall not require any action by Private Photo Vault.
(c) BY YOU
You may terminate this Agreement and Your rights hereunder at any time, for any or no reason at all, by providing to Private Photo Vault notice of Your intention to do so, in the manner required by this Agreement.
(d) EFFECT OF TERMINATION
Any termination of this Agreement automatically terminates all rights and licenses granted to You under this Agreement, including all rights to use the Service. Upon termination, Private Photo Vault may, but has no obligation to, in Private Photo Vault’s sole discretion, rescind any services and/or delete from Private Photo Vault’s systems all Your Personal Information and any other files or information that You made available to Private Photo Vault or that otherwise relate to Your use of the Service. Upon termination, You shall cease any use of the Service. Subsequent to termination, Private Photo Vault reserves the right to exercise whatever means it deems necessary to prevent Your unauthorized use of the Service, including without limitation technological barriers such as IP blocking and direct contact with Your Internet Service Provider.
(e) LEGAL ACTION
If Private Photo Vault, in Private Photo Vault’s discretion, takes legal action against You in connection with any actual or suspected breach of this Agreement, Private Photo Vault will be entitled to recover from You as part of such legal action, and You agree to pay, Private Photo Vault’s reasonable costs and attorneys’ fees incurred as a result of such legal action. The Private Photo Vault Parties will have no legal obligation or other liability to You or to any third party arising out of or relating to any termination of this Agreement.
Upon termination, all rights and obligations created by this Agreement will terminate, except that Sections 1, 2, 4-9, and 13-26 will survive any termination of this Agreement.
All notices required or permitted to be given under this Agreement must be in writing. Private Photo Vault shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to Private Photo Vault. You agree that any notice received from Private Photo Vault electronically satisfies any legal requirement that such notice be in writing. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH PRIVATE PHOTO VAULT IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY PRIVATE PHOTO VAULT OF AN EMAIL TO THAT ADDRESS. You shall give any notice to Private Photo Vault by means of email to SUPPORT [at] PRIVATEPHOTOVAULT [dot] COM.
25. PARTIAL INVALIDITY
Should any part of this Agreement be declared invalid, void, or unenforceable by a Court of Competent Jurisdiction, such decision shall not affect the validity of any remaining portion hereof, which shall remain in full force and effect, and the parties hereby acknowledge and agree that they would have executed the remaining portion hereof without including the part so declared by a Court of Competent Jurisdiction to be invalid, void, or unenforceable.
This Agreement constitutes the entire agreement between Private Photo Vault and You concerning Your use of the Service. This Agreement may only be modified by a written amendment signed by an authorized executive of Private Photo Vault or by the unilateral amendment of this Agreement by Private Photo Vault and by the posting by Private Photo Vault of such amended version. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. This Agreement and all of Your rights and obligations hereunder will not be assignable or transferable by You without the prior written consent of Private Photo Vault. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns. You and Private Photo Vault are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Except for the Private Photo Vault Parties and to the extent set forth in Sections 8, 14, 17, 19, 21, and 23(e), and in this paragraph, and Private Photo Vault’s licensors and suppliers as—and to the extent—expressly stated in this Agreement, there are no third-party beneficiaries to this Agreement. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by You would cause irreparable injury to Private Photo Vault and Private Photo Vault’s licensors and suppliers, and would therefore entitle Private Photo Vault or Private Photo Vault’s licensors or suppliers, as the case may be, to injunctive relief. The headings in this Agreement are for the purpose of convenience only and shall not limit, enlarge, or affect any of the covenants, terms, conditions or provisions of this Agreement.