User Subscription Agreement
This User Subscription Agreement ("Agreement") is a valid, binding contract between you and Photodex Corporation, a
Texas corporation ("Photodex"). This Agreement provides the terms and conditions of your subscription to one of these
services: ProShow Online SharingTM, ProShow Web FreeTM, ProShow Web PlusTM or ProShow
Web PremiumTM (together, the "Services"). The Services
allow you to create, store and access photographic slide shows through the Photodex website (the "Site").
YOU AGREED TO THIS AGREEMENT BY CLICKING ON THE "I AGREE" BUTTON WHEN YOU CREATED YOUR ACCOUNT.PLEASE READ THIS AGREEMENT CAREFULLY. IT WILL BE A BINDING CONTRACT BETWEEN YOU AND PHOTODEX IF YOU
CLICK ON THE "I AGREE" BUTTON. PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
THIS AGREEMENT AUTOMATICALLY RENEWS. IF YOU HAVE SUBSCRIBED TO A PAID SERVICE, YOU WILL BE AUTOMATICALLY
BILLED FOR RENEWAL SUBSCRIPTION FEES AT THE END OF EACH TERM UNLESS YOU PROVIDE WRITTEN NOTICE TO PHOTODEX THAT
YOU WANT TO TERMINATE THIS AGREEMENT.
- System Access.
- Photodex Services. The ProShow Online SharingTM, ProShow Web FreeTM,
ProShow Web PlusTM or ProShow Web PremiumTM Services are
internet-hosted software applications, content and tools for creating and sharing slide shows (including photos, artwork,
musical compositions, sound recordings, text and videos) (the "System"). As used in this Agreement,
"System" refers to the one Service that you have chosen to subscribe to.
You are permitted access to the System on a non-exclusive basis under to this Agreement.
- Restrictions. Photodex may restrict or condition your access to and use of the System under Section 4, or if at
any time it reasonably believes that your continued access or use will disrupt, degrade or injure the System.
- Equipment, Software and Connectivity Requirements. In order to use the System, you are required, at your own
expense, to select, obtain, install, use and maintain equipment, software, internet connection and system
configuration that meets Photodex's specifications and instructions.
- Modifications and Upgrades. Photodex has the right to substitute, replace, modify or upgrade the System
or any part or aspect of it. All substitutions, replacements, modifications and upgrades are incorporated in and
subject to this Agreement. You will be required to use these substitutions, replacements, modifications and/or
upgrades. Photodex will only be required to support the most recent and current System provided to you, and
not any previous version.
- Restrictions. "Content" means any information, text, links, postings, creative material, photographs, image,
video or audio files that you upload, display, store or process when you use the System. Although Photodex does
not and will not examine or review the Content that you submit or upload to the System, Photodex may delete,
move and edit Content for any reason, at any time, without notice to you. Photodex may restrict the file size and
number of files of Content that you upload to or store on the System.
- Content Ownership and Authorization. You acknowledge that the System may be used to display Content which
is outside of the control of Photodex. By entering into this Agreement, you are representing and warranting to
Photodex that you are the legal owner of all of the Content that you upload, display, store or process with the
System, or that you have received written permission to upload, display, store or process the Content from the legal
- Infringement. Photodex makes no representations or warranties to you about the Content and will not be in
breach of this Agreement if the Content infringes upon or misappropriates the intellectual property rights of any
other person or business entity. By entering into this Agreement, you are agreeing to hold Photodex harmless
from any claims resulting from the Content being displayed, uploaded, stored or processed by the System.
- License And Use Restrictions.
- License to System. Subject to the terms of this Agreement, Photodex hereby grants you a non-exclusive,
non-transferable, revocable license to access and use the System, as it may exist from time to time, within the
United States, for the purposes described in Section 3(b) below (the "Permitted Uses"), under the conditions and
requirements set forth in this Agreement. You must comply with the conditions and requirements of this Agreement
in order to use the System under this license. Use contrary to the provisions of this Agreement is outside the scope
of the license granted in this Agreement and is strictly forbidden.
- Permitted Uses. If you are subscribing to the ProShow Web PremiumTM Services you are permitted to use the
System for commercial purposes and may offer the slide shows created with the System for sale to other people
and business entities. If you are subscribing to the ProShow Web FreeTM or ProShow Web PlusTM Services, you are
permitted to use the System for personal and social purposes only. ProShow Web FreeTM or ProShow Web PlusTM
subscribers are not permitted to use the System for commercial purposes and may not create or offer the slide shows
created with the System for sale to any other people or business entities.
- License to Content. Subject to the terms of this Agreement, you hereby grant to Photodex and its successors and
assigns the worldwide, non-exclusive, transferable, and royalty-free right to use the Content solely for the purpose
of providing the Services. The license to Photodex gives Photodex the right to monitor, store, retrieve, transmit, process,
modify, otherwise prepare derivative works from, copy, distribute, disclose, sublicense and display the Content in any
and all media now existing or that may exist in the future only for the purposes of providing the Services. This license
will terminate six (6) months after the termination or expiration of this Agreement.
- Scope of Use.
- System Restrictions. You agree that you will not use any robot, spider, automatic device, or manual process to
monitor or copy the System. You agree that you will not use any device, software or routine to bypass Photodex's
protections of the System, or to interfere or attempt to interfere with the proper function of the System. Except as
allowed under this Agreement, you agree that you will not copy, reproduce, alter, modify, create derivative works,
or publicly display the System.
- Scope of Use. Photodex, in its sole discretion, will determine whether you have violated any of the restrictions
on the use of the System listed below.
- You may not access or use the System except as permitted under this Agreement.
- You may not sell, sell access to, or sell use of the System.
- Except for the Permitted Uses, you may not rent, sell, lease, retransmit, distribute, publish, transmit or in any
way exploit all or any part of the System to any other person or business entity by any means. Except for the Permitted
Uses, the System and its contents may not be recirculated, redistributed or published by you to any other person or
- You may not use the System to broadcast, rebroadcast, stream, transmit, retransmit or distribute Content by way
of broadcast, cable or satellite television or radio without the prior written consent of Photodex.
- You may not make any enhancements, improvements or modifications, sublicense, copy, record, reproduce, reverse
engineer, reverse compile, recompile, decompile, modify, create derivative works from, or disassemble the System.
- You may not knowingly introduce or permit to be introduced into the System any virus, worm, Trojan horse or other
software routine, program or mechanism to permit unauthorized access into, to disable, to erase, injure or disrupt
- You may not use the System for any illegal or unlawful purpose or in any manner inconsistent with applicable
law or this Agreement.
- You may not use Content provided by Photodex as part of the System in works not created directly by the System.
Such Content, including audio files, is provided only for the purpose of using the system and may not be used
in other works or outside of the permitted use of the system.
- You may not use the System to mislead, harass or interfere with any third party, or in an abusive, deceptive,
pornographic, obscene, defamatory, slanderous, offensive or otherwise inappropriate manner.
- You may not use the System to upload, display, store or process any Content owned by a third party without the written
consent of the owner of the Content. You alone are responsible for any trademark, copyright or other intellectual
property violations that you incur as a result of your activities on the System.
- You must comply with the reasonable policies, procedures and instructions established by Photodex from time to
time concerning access to and uses of the System.
IF YOU VIOLATE THIS SECTION 4 IT WILL BE A BREACH OF A MATERIAL PROVISION OF THIS AGREEMENT, AND PHOTODEX
WILL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND TO SEEK LEGAL ACTION AGAINST YOU.
- Registration and Account Information.
- Account Information. You are required to register an account with Photodex and to provide requested information,
including your name and correct email address. You must provide true, accurate, current and complete information.
You must cooperate and provide prompt, accurate and full responses to any request by Photodex for clarification,
documentation or further information.
- User ID and Password. You are required to select a user name ("User ID") and password in order to access the System.
YOU ALONE ARE RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USER ID AND PASSWORD AND FOR ALL
ACTIVITIES THAT ARE CONDUCTED THROUGH YOUR ACCOUNT.
- Security. You must take reasonable steps to maintain the security of your User ID and password. If you give your
password to another person, you will be responsible for any charges, damages or losses that the other person
incurs. You must notify Photodex immediately if you become aware of any unauthorized use of your User ID or
password. Photodex has the right to change or modify your password or User ID at anytime.
- User Eligibility and Identity.
IF YOU ARE BELOW THE AGE OF 18, YOUR PARENT OR LEGAL GUARDIAN MUST REVIEW THIS AGREEMENT AND AGREE TO
THIS AGREEMENT BY CLICKING ON THE "I AGREE" BUTTON. IF YOU ARE BELOW THE AGE OF 18, YOUR PARENT OR
LEGAL GUARDIAN MUST PAY ALL OF THE SUBSCRIPTION FEE ACCORDING TO THE INSTRUCTIONS BELOW. THE SITE AND
SERVICES ARE NOT INTENDED FOR CHILDREN UNDER 13. You affirm that you are either older than 13 years of age, or
possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions,
obligations, affirmations, representations, and warranties in this Agreement, and to comply with the terms and
conditions under this Agreement.
Your account and User ID may not be transferred or sold to another party. If you are registering as a business entity,
you must have the authority to bind the entity to this Agreement.
- Subscription Fees.
Some services may include a Subscription Fee. You will be informed of any Subscription Fee when you make your purchase.
By providing us with your payment information, you authorize and instruct us to bill your credit card account for the amount of the Subscription
Fee. All Subscription Fees are in U.S. Dollars. You are responsible for paying all Subscription Fees and all applicable
- The System and all related Intellectual Property (as defined below) is now and will remain the exclusive property of
Photodex. All derivative works prepared from the System and all related Intellectual Property is now and will remain the
exclusive property of Photodex. Photodex has the right to include a proprietary legend and/or mark on the System and
you may not obscure the legend or mark. "Intellectual Property" means any and all intellectual property associated with
the System and all related designs, formulas, procedures, methods, apparatus, ideas, creations, improvements, works
of authorship, materials, processes, inventions, techniques, data, know-how, show-how, algorithms, programs, subroutines,
tools, trademarks, patents and patentable materials, copyrights and copyrightable materials, and trade secrets.
- The Content and all intellectual property rights associated with the Content are and will remain your exclusive property,
subject to the non-exclusive license granted to Photodex in Section 3(c).
YOU WILL INDEMNIFY, DEFEND, AND HOLD HARMLESS PHOTODEX, INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES,
LICENSORS, SUPPLIERS, INFORMATION PROVIDERS, AND AGENTS FROM AND AGAINST ALL LOSSES, CLAIMS, LIABILITIES, EXPENSES,
DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS' FEES, RESULTING FROM ANY VIOLATION OF THIS AGREEMENT OR
ANY ACTIVITY RELATED TO THE SYSTEM (INCLUDING NEGLIGENT OR WRONGFUL CONDUCT) BY YOU OR BY ANY OTHER PERSON
ACCESSING THE SYSTEM AT YOUR INSTRUCTION, SUCH AS BY USING YOUR ACCOUNT.
- Disclaimer of Warranties.
PHOTODEX MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SYSTEM, MERCHANTABILITY,
FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY YOU. THE ONLY REPRESENTATIONS OR WARRANTIES MADE TO YOU ARE THOSE
EXPRESSLY MADE BY PHOTODEX IN THIS AGREEMENT. OCCASIONAL SYSTEM ERRORS OR OMISSIONS MAY OCCUR. PHOTODEX MAY
MAKE COMMERCIALLY REASONABLE EFFORTS TO CORRECT THESE ERRORS OR OMISSIONS OR CAUSE THE APPROPRIATE THIRD PARTY
SUPPLIER TO CORRECT THESE ERRORS OR OMISSIONS. NEITHER PHOTODEX NOR ITS SUPPLIERS MAKES ANY REPRESENTATION
REGARDING THE ACCURACY, COMPLETENESS OR ERROR-FREE NATURE OF THE SYSTEM. PHOTODEX IS NOT THE CREATOR OF
THIRD PARTY SOFTWARE AND/OR THIRD PARTY DATABASES AND DOES NOT GIVE ANY WARRANTY, EXPRESS OR IMPLIED, IN
RELATION TO THOSE ITEMS. YOU RELEASE PHOTODEX FROM ANY AND ALL RESPONSIBILITY FOR ANY ERRORS, DAMAGES CAUSED
BY THIRD PARTIES OR FAILURE OF THIRD PARTY SOFTWARE OR THIRD PARTY DATABASES. PHOTODEX SHALL NOT BE LIABLE
FOR ANY DELAY, FAILURE IN PERFORMANCE OR INTERRUPTION OF THE SYSTEM RESULTING DIRECTLY OR INDIRECTLY FROM
ANY CAUSE BEYOND ITS REASONABLE CONTROL.
- Limitation of Liability.
- Type. PHOTODEX, AND ITS RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, SERVICE PROVIDERS, THIRD PARTY
LICENSORS AND/OR SUPPLIERS WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF USE, DATA, OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED
TO (I) THE USE OF THE SYSTEM, (II) THE DELAY OR INABILITY TO USE THE SYSTEM, (III) THE PROVISION OF OR FAILURE TO
PROVIDE THE SYSTEM, (IV) LOST, DAMAGED, OR DESTROYED E-MAIL OR ELECTRONIC DATA CONTENT OR THE FAILURE TO
DELIVER ANY E-MAIL OR ELECTRONIC DATA CONTENT, OR (V) OTHERWISE ARISING OUT OF THE USE OF THE SYSTEM, WHETHER
BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF PHOTODEX, OR ANY OF ITS SUPPLIERS
HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
- Amount. THE TOTAL CUMULATIVE LIABILITY OF PHOTODEX, ITS RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES,
SERVICE PROVIDERS, THIRD PARTY LICENSORS AND/OR SUPPLIERS WITH RESPECT TO THIS AGREEMENT OR THE SYSTEM, WHETHER
UNDER CONTRACT LAW, TORT LAW OR OTHERWISE WILL NOT EXCEED THE SUBSCRIPTION FEES ACTUALLY RECEIVED BY PHOTODEX
IN THE 12 MONTH PERIOD PRIOR TO THE DATE THE LEGAL CAUSE OF ACTION (OR MOST RECENT CAUSE OF ACTION, IF MORE
THAN ONE) AROSE UNDER TO THIS AGREEMENT.
- Time. NO LEGAL ACTION, REGARDLESS OF FORM, RELATING, DIRECTLY OR INDIRECTLY, TO THIS AGREEMENT OR THE SYSTEM
MAY BE BROUGHT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ARISEN, EXCEPT THAT AN ACTION FOR NONPAYMENT
MAY BE BROUGHT WITHIN TWO YEARS AFTER THE DATE OF THE MOST RECENT PAYMENT.
Photodex may update, revise, supplement, modify or amend this Agreement at any time. Any updates, revisions,
supplements, modifications or amendments will be effective when they are posted on the Site. You agree that this Agreement
is binding on you if and when it is updated, revised, supplemented, modified, or amended, whether you have been given
notice of, and whether you have used or continue to use the System after, the updates, revisions, supplements, modifications
- 13. Term.
- Initial Term. This Agreement will be in full force and effect from the time that you click on the "I Agree" button
below (the "Effective Date") until one year after the Effective Date ("Initial Term") for yearly subscriptions and free subscriptions.
For monthly subscriptions this Agreement will be in full force and effect from the time that you click on the "I Agree" button
below (the "Effective Date") until one month after the Effective Date ("Initial Term").
- Renewal Term. When the Initial Term expires, this Agreement will automatically renew for periods of one year for yearly subscriptions and
free subscriptions or one month for monthly subscriptions ("Renewal Term"). WHEN THIS AGREEMENT RENEWS, YOU WILL BE AUTOMATICALLY BILLED FOR THE SUBSCRIPTION FEE.
THE SUBSCRIPTION FEE CHARGED WILL BE THE FEE CHARGED BY PHOTODEX FOR THE SERVICES AT THE TIME OF THE RENEWAL,
WHICH MAY BE DIFFERENT FROM THE SUBSCRIPTION FEE LISTED ABOVE.
- Non-Renewal. This Agreement will not automatically renew if either you or Photodex gives written notice that it
will not renew within the 30 days before the preceding term expires. IF YOU DO NOT WANT THIS AGREEMENT TO RENEW
AFTER THE INITIAL TERM OR ANY RENEWAL TERM, EMAIL OR MAIL WRITTEN NOTICE OF NON-RENEWAL OF THIS AGREEMENT
TO PHOTODEX AT THE ADDRESS LISTED IN SECTION 18.
- By Photodex. Photodex may terminate this Agreement at any time during the Initial Term or any Renewal Term (i)
with 30 days' prior written notice or (ii) immediately with written notice if you breach this Agreement.
- No Refund. IF PHOTODEX TERMINATES YOUR ACCESS TO THE SYSTEM BECAUSE YOU HAVE BREACHED THIS AGREEMENT,
YOU WILL NOT BE ENTITLED TO ANY REFUND OF SUBSCRIPTION FEES.
- Licenses. When this Agreement terminates, all licenses and rights granted by Photodex to you in this Agreement
will terminate immediately and automatically. If you use the System after the expiration or termination of this
Agreement it will be a misappropriation of Photodex's property.
- Content. Photodex may delete all Content that you upload and the slide shows that you create with the System
at any time, when this Agreement terminates or expires.
- System Suspension.
You understand that from time to time, Photodex may be required to temporarily suspend the System for technical,
emergency or maintenance reasons or to maintain its servers, platform, network, or any other facilities. The timing
of any suspension of the System will be determined by Photodex. Maintenance windows will typically be conducted
between 10:00 pm to 5:00 am.
This Agreement supplements the Site's Legal Notices, which may be accessed by clicking here. If there is any conflict
or contradiction between this Agreement and the Legal Notices, this Agreement will be controlling. Additionally, the
Site, which may be accessed by clicking here.
- Force Majeure. Neither you nor Photodex will be responsible for any delay or failure to perform the obligations in
this Agreement if the delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil
or military authority, act of God, third party vendors, failure of telecom systems not owned or directly leased by
Photodex, or other similar causes beyond your control or Photodex's control.
- Entire Agreement. This Agreement is the entire agreement between you and Photodex about your use of the System.
There are no other representations, warranties, terms, agreements or conditions, written or oral, made about your
use of the System.
- Assignment. You agree that you will not assign, sublease or transfer this Agreement, nor any rights under it, in
whole or in part, without Photodex's prior written consent. Photodex may assign this Agreement and any obligations
under this Agreement.
- Survival. All provisions of this Agreement relating to ownership, limitation of liability, warranty disclaimer,
obligations upon termination, indemnification, governing law and jurisdiction or provisions that are meant to survive
termination, will survive the termination of this Agreement.
- Governing Law; Venue; Waiver of Right to Jury Trial. This Agreement, and the relationship between you and Photodex,
and any litigation between you and Photodex (whether grounded in contract, tort, statute, law or equity) shall be governed
by, construed in accordance with, and interpreted under the laws of the State of Texas, without giving effect to its
choice of laws principles. You and Photodex agree that venue for any litigation or legal proceedings under this
Agreement will be in Travis County, Texas. YOU AND PHOTODEX HEREBY AGREE TO WAIVE RIGHT TO A JURY TRIAL FOR ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is intended to
be all encompassing of any and all disputes that may be filed relating to the relationship between you and Photodex
relating to this Agreement, including contract claims, tort claims, breaches of duty, common law and statutory claims.
- Severability. If any part of this Agreement is held to be invalid or unenforceable by a court, arbitrator or a regulatory
agency, or as a result of advice of legal counsel for Photodex, the invalidity or unenforceability will not affect or impair
the validity and enforceability of the remainder of this Agreement. You and Photodex agree that the arbitrator or court
making the determination will have the power to alter or amend the provision so that it will be enforceable or, in the
case where an arbitrator or court is not involved, you and Photodex will, in good faith, renegotiate valid and enforceable
substitute provisions, and the provisions will reflect as closely as possible the intent of the original provisions of this
- Compliance with Laws. You will comply with all applicable domestic and international laws, statutes, ordinances
and regulations regarding your use of the System. In particular, you (i) represent that you are not a party identified on
any government export exclusion list, including the U.S. Denied Persons, Entity and Specially Designated Nationals Lists,
nor will you transfer software, technology, and other technical data via the System to parties identified on such lists; (ii)
agree not to use the System for military, nuclear, missile, chemical or biological weaponry end uses in violation of U.S.
export laws; and (iii) agree not to transfer, upload, or post via the System any software, technology or other technical
data in violation of U.S. or other applicable export or import laws.
- Notices and Contact Information.
You may contact Photodex to provide written notice and with comments, questions or requests by email, fax or mail.
You acknowledge and agree that Photodex will provide you with written notice under this Agreement via email.
- E-mail Form: http://www.photodex.com/company/contact
- Fax: (512) 452-6825
- U.S. Mail: Photodex Corporation
11100 Metric Blvd, Suite 400
Austin, Texas 78758