Fotofy Terms of Service
These Fotofy Terms of Service (this “Agreement”) constitute a legal agreement between You (“You,” “Your” or “Publisher”) and Image Protect, Inc. (“Image Protect”) concerning Image Protect’s performance of certain advertising services, which are referred to in this Agreement as Fotofy Ad Services.”
By clicking on the “Accept” button for this Agreement or registering for Fotofy Ad Services, You are indicating acceptance of this Agreement by You and, if applicable, the business entity on whose behalf You receive Fotofy Ad Services and signify Your agreement to be bound by the terms and conditions of this Agreement.
If You are receiving Fotofy Ad Services on behalf of another company, such as Your employer or a client, You represent that You have the authority to bind such company to this Agreement. If You do not agree with all of the terms and conditions of this Agreement, please do not register for Fotofy Ad Services and Image Protect shall have no obligations to You hereunder.
Image Protect may amend this Agreement at any time and any additional or different terms in this Agreement shall be effective upon being posted on this page of Image Protect’s website located at www.ImageProtect.com. Your continued receipt of Fotofy Ad Services and/or acceptance of payment from Image Protect following the posting of any additional or different terms in this Agreement constitutes Your irrevocable acceptance of those additional or different terms.
This Agreement constitutes the entire agreement between You and Image Protect with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof.
ARTICLE I FOTOFY AD SERVICES.
“Advertisement(s)” means advertising in any form or media whatsoever, which may include, among other things, text, video feeds, links to websites, graphic artwork, images, and downloads of third party software applications.
“Fotofy Ad Services” means the advertising services provided by Image Protect serving Advertisements on Publisher Websites in accordance with this Agreement.
“Image Protect Technology” means Image Protect’s proprietary technology that enables Image Protect to serve an In-Image Ad, an In-Screen Ad or a Toolbar Ad.
“Images” means photographic images.
“In-Image Ad” means an Advertisement that is displayed across or adjacent to (e.g., beneath) an Image (other than an animated GIF image) that (i) is at least 250 x 200 pixels, and (ii) is displayed on a page of a Publisher Website.
“In-Screen Ad” means an Advertisement that is displayed at the bottom of a page of a Publisher Website across the entire width of the page.
“Publisher Website(s)” means a website or websites owned and/or operated by Publisher, which may be accessed by various computing devices capable of accessing the Internet including, without limitation, personal computers, tablet computers and mobile phones.
“Served Ad” means an Advertisement, including an In-Image Ad, In-Screen Ad or a Toolbar Ad, served by Image Protect on a Publisher Website.
“Toolbar Ad” means an Advertisement that is displayed in, on or adjacent to a web browser toolbar included on a page of a Publisher Website.
- Fotofy AD SERVICES.
In order to receive Fotofy Ad Services, Publisher must accept this Agreement and register for an account. Upon Publisher’s registration, Image Protect will provide Publisher with a password for accessing its account. During the term of this Agreement, Publisher will be granted access to a Web-based “Control Panel” tool for use in managing Publisher’s account, including specifying from time to time the advertising services that Publisher elects to receive from Image Protect and those advertising services that Publisher elects not to receive from Image Protect.
Publisher is solely responsible for maintaining the confidentiality of its account password and for all activities that occur through the use of Publisher’s account. Publisher shall immediately notify Image Protect of any unauthorized use of the password or Publisher’s account.
Image Protect will not be liable for any loss or damage arising from Publisher’s failure to comply with this article. Image Protect will provide Fotofy Ad Services to Publisher, subject to Publisher’s compliance with all of the terms and conditions of this Agreement. So long as the Image Protect Technology is installed or integrated with Publisher Websites, Image Protect shall have the exclusive right to sell and serve In-Image Ads, In-Screen Ads and Toolbar Ads on such Publisher Websites.
Image Protect reserves the right to refuse to place Advertisements on any Publisher Website if Image Protect determines, in its sole discretion, that such Publisher Website or any content displayed on such Publisher Website is illegal, in violation of this Agreement or an agreement between Image Protect and an advertiser, violates any third party’s rights or Image Protect’s advertising platform policies then in effect. Image Protect assumes no responsibility for the content, functionality, security, services, data usage policies or practices of any third party advertiser or the content, functionality, products or services associated with any Served Ad.
Publisher is responsible for any Internet connection fees that it incurs when accessing Fotofy Ad Services.
- TERM AND TERMINATION.
This Agreement shall continue in effect until terminated by either party. Publisher may terminate this Agreement at any time by (a) removing the Image Protect Technology from all of the Publisher Websites, (b) terminating Fotofy Ad Services through Publisher’s account or (c) terminating Publisher’s account.
Upon any termination of this Agreement, Publisher shall promptly remove the Image Protect Technology from all Publisher Websites and Image Protect shall have no further obligation to provide Fotofy Ad Services. In addition, Image Protect may immediately suspend Fotofy Ad Services and/or terminate this Agreement if it has reason to believe Publisher has committed a material breach of any provision of this Agreement.
Following termination of this Agreement, Image Protect will perform a final accounting of amounts payable to Publisher hereunder and, subject to Image Protect’s right to offset the earned balance of amounts due to Publisher against paid amounts determined by Image Protect to be in error or the result of fraud or any act by, or at the direction of Publisher, in violation of this Agreement, Image Protect will pay the earned balance of amounts due to Publisher hereunder within approximately ninety (90) days following the last day of the month in which this Agreement is terminated.
Termination of this Agreement shall not prejudice Image Protect’s rights, defenses and limitations of liability provided under this Agreement, which rights, defenses and limitations of liability shall survive termination of this Agreement.
The following articles of this Agreement shall survive termination of this Agreement: Article I, Sections 1, 3, 4 and 5 and Article II, Sections 3 and 6 – 13.
- LIMITATION OF DAMAGES.
To the fullest extent allowed by applicable law, in no event shall Image Protect, its affiliates, directors, officers, shareholders, employees, agents, licensors, licensees or advertisers be liable to publisher or any other party in any way arising out of or relating to Fotofy Ad Services under any contract, tort, strict liability or other legal or equitable theory for any amount in excess of one thousand dollars ($1,000).
Publisher agrees to defend, indemnify and hold Image Protect and its affiliates, directors, officers, shareholders, employees, agents, licensors, licensees and advertisers harmless from and against any and all third party claims, suits, demands, loss, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) arising from or relating to (a) Publisher’s breach of any of the terms and conditions of this Agreement or (b) Publisher’s violation of any applicable law, statute, ordinance, regulation or any third party’s rights including, but not limited to, patent, copyright or trademark infringement, dilution or tarnishment of any third party’s trademark or violation or misappropriation of any other intellectual property rights, or any claim of defamation, libel or slander or privacy violation.
This obligation shall survive the termination and/or expiration of this Agreement.
ARTICLE II GENERAL TERMS AND CONDITIONS
- PUBLISHER OBLIGATIONS.
Publisher will (a) install and integrate the Image Protect Technology in pages of all Publisher Websites in accordance with this Agreement; (b) permit Image Protect to monitor and validate Publisher’s use of the Image Protect Technology; (c) immediately report to Image Protect any problems with the Image Protect Technology; (d) use best efforts to prevent unauthorized use of the Image Protect Technology; and (e) immediately report to Image Protect any violation or alleged violation of Image Protect’s intellectual property rights.
Publisher acknowledges that the Image Protect Technology employs cookies that are stored on computers used by end users who visit Publisher Websites and such cookies transmit navigational, behavioral and tracking information about the end users’ use of such Publisher Websites to Image Protect and Image Protect’s vendors and service providers.
Publisher acknowledges that Publisher, and not Image Protect, is solely responsible for the operation of Publisher Websites (including, without limitation, all content and materials displayed on Publisher Websites and the transmission of data between Publisher Websites and Image Protect) and for the display of, or any failure to display, any Images.
EU Data Protection Obligations.
Publishers shall comply with all data protection laws and regulations, including Regulations (EU) 2016/679 of the European Parliament and the Council of 27 April 2016 (“GDPR”), which requires a freely given, specific, informed, and unambiguous indication of the data subject’s wishes. Publisher is responsible for ensuring that it has obtained all necessary end user consents from EEA end users as required under applicable data protection laws (including the GDPR), and Image Protect undertakes to process such data in accordance with the documented instructions of Publisher (as defined in the Agreement/Insertion Order and/or any other written instructions) as more fully set forth in our Data Processing Agreement.
IAB Framework Consent Signals. Please make sure that you have registered as a Global Vendor in the IAB Europe Transparency & Consent Framework (the “Framework”), so that you can read any consent signals sent via Consent Management Providers (CMPs) based on the Framework.
Alternative Consent Signals: To the extent Publisher expects to receive or collect any custom consent signals, please contact Image Protect promptly so that we can ensure we can transmit these to you. Please reach out to your account manager if you have any questions about this process.
- PUBLISHER RESTRICTIONS.
Publisher shall not, nor shall it permit any third party to, (a) copy, edit, modify, repurpose or transform, to any extent and in any manner whatsoever, any Served Ad or any link contained within a Served Ad, (b) redistribute any Served Ad, (c) block, obscure, remove, minimize or otherwise interfere with the delivery or display of any Served Ad, (d) insert a link into any Served Ad or otherwise cause an end user to be directed to a web page other than the web page that would be accessed by an end user clicking on the Served Ad, (e) frame any Served Ad within, or otherwise display any Served Ad with, any content other than Images or any website or property other than a Publisher Website or otherwise limit the full and complete display of any web page linked to a Served Ad, (f) insert any code, content or other material between a Served Ad and the web page linked to the Served Ad, (g) directly or indirectly generate impressions of any Served Ad through any automated or other means by a single end user, one or more robots or a software program that attempts to mimic the actions of multiple end users, (h) display any Served Ad on any web page or Publisher Website that contains any pornographic, hate-related, violent or illegal content, (i) spider, crawl, index or otherwise collect information obtained from Served Ads or from end users clicking on Served Ads, (j) place any Advertising within or adjacent to any location on a web page of a Publisher Website on which the Image Protect Technology has been installed or (k) engage in any conduct (through any Publisher Websites or otherwise) that disparages or tarnishes Image Protect’s reputation or goodwill, or that could reasonably be expected to do so.
Publisher acknowledges that any violation of this Section 2 is a material breach of this Agreement and in the event of such violation, without limiting any remedy available to Image Protect, Image Protect may immediately suspend or terminate Fotofy Ad Services and/or this Agreement without allowing Publisher an opportunity to cure the violation.
As between the parties, Image Protect retains sole ownership of all right, title and interest, including all intellectual property and proprietary rights recognized anywhere in the world, in and to Fotofy Ad Services and all software, materials, tools and technology used in connection with Fotofy Ad Services including, but not limited to, the Image Protect Technology and Image Protect’s ad serving technology (collectively, “Image Protect Intellectual Property”). Publisher will not acquire any right, title or interest in or to any Image Protect Intellectual Property, except as expressly set forth in this Agreement.
Publisher retains all right, title and interest, including all intellectual property rights and proprietary rights recognized anywhere in the world, in and to Publisher Websites including, without limitation, all content on or available through Publisher Websites.
- LICENSE GRANT.
Subject to all of the terms and conditions herein, Image Protect grants to Publisher a non-exclusive, non-sublicenseable, non-transferable license to install, integrate and execute the Image Protect Technology on Publisher Websites and use the Image Protect Technology solely for the purpose of receiving Fotofy Ad Services.
Image Protect reserves all rights in the Image Protect Technology not expressly granted in this Agreement.
Publisher shall not, nor permit any third party to, (a) copy, reproduce, modify, adapt, translate, prepare derivative works of, republish, upload, post, transmit, or distribute any Image Protect Intellectual Property; (b) reverse assemble, reverse compile, reverse engineer or in any way derive or attempt to derive from the Image Protect Technology any source code or the structure, sequence or organization of such code; (c) use the Image Protect Technology in connection with any website or content that infringes upon any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any party, or which Publisher does not have the right to display, distribute or transmit under any law, contract, or fiduciary relationship; (d) use the Image Protect Technology to upload, post, email, or otherwise transmit worms, viruses, or any other computer file, code, or program designed to disrupt, interrupt, limit, or disable any of the functionality of the Image Protect Technology, or any hardware, or telecommunications equipment; (e) change the name of any data file included within the Image Protect Technology; (f) use the Image Protect Technology to interfere with the normal functioning of any servers or computer or communications network; (g) use the Image Protect Technology to violate any local, state, national or foreign law or regulation; or (h) sublicense, assign or otherwise transfer the Image Protect Technology, this Agreement or the rights under it, whether by operation of law or otherwise, without Image Protect’s prior written consent and any such attempted transfer without Image Protect’s prior written consent shall be null and void.
Subject to Publisher’s compliance with all of the terms and conditions of this Agreement, Publisher will be entitled to receive a payment based upon Image Protect’s measurements of the revenue that Image Protect receives from Served Ads.
Publisher acknowledges and agrees that Image Protect’s data and measurements relating to Served Ads including, without limitation, the number of impressions and clicks used in calculating amounts payable to Publisher shall be definitive and Publisher may not raise any objection to such data or measurements.
Image Protect will send payments to Publisher within sixty (60) days after the last day of each month that Served Ads are placed on Publisher Websites if Publisher’s earned balance is $50 or more.
Notwithstanding the foregoing, Image Protect shall have no payment obligation with respect to any Served Ads from which Image Protect does not receive any revenue.
Image Protect reserves the right to withhold payment of, or charge back Publisher’s account, amounts corresponding to Served Ads (y) for which Image Protect has a reasonable belief that it has no payment obligation hereunder due to any of the foregoing circumstances, pending Image Protect’s investigation thereof, or any breach of this Agreement by Publisher, or (z) in the event of an advertiser’s default on payment to Image Protect for Advertisements contained in such Served Ads. To ensure proper payment, Publisher is solely responsible for providing and maintaining accurate address and other contact information as well as payment information associated with Publisher’s account. Publisher is solely responsible for all federal, state, local or other applicable taxes that might apply in respect of payments received by Publisher and any other charges imposed by any government entity in connection with this Agreement or the performance of Fotofy Ad Services (excluding taxes based upon Image Protect’s net income).
If Publisher disputes the amount of any payment made under this Agreement, Publisher must notify Image Protect in writing of such payment dispute within ninety (90) days following the date such payment was received; failure to timely notify Image Protect of a payment dispute shall result in Publisher’s waiver of any claim relating to payable amounts corresponding to the Served Ads for which the disputed payment was made. Amounts payable by Image Protect hereunder shall be calculated solely based on data and records maintained by Image Protect. No other data, measurements or statistics of any kind shall be accepted by Image Protect or have any effect under this Agreement. Publisher’s right to receive payments made under this Agreement may not be transferred or in any manner passed on to any third party unless expressly permitted in this Agreement or authorized in writing by Image Protect in advance (such authorization may be given by email).
Publisher acknowledges that all data, information, documents, software or materials relating to Image Protect, or its shareholders, affiliates, licensors, licensees or advertisers, that is designated as confidential or that a reasonable person would consider to be confidential including, but not limited to, plans, software, technology, programming, specifications, materials, guidelines, processes, products, designs, pricing, promotions, finances, research, development, know-how and trade secrets and documentation relating to the Image Protect Technology, Fotofy Ad Services or numbers of impressions or other information relating to Served Ads provided by Image Protect (“ Confidential Information”) may be disclosed to Publisher in the course of Image Protect’s performance under this Agreement.
Publisher agrees that during and after the term of this Agreement Publisher will not use any Confidential Information other than as necessary to receive Fotofy Ad Services in accordance with this Agreement or to the extent necessary to perform Publisher’s obligations under this Agreement and Publisher will not disclose to any other person or entity any such Confidential Information, except as specifically authorized under this Agreement.
- REPRESENTATIONS AND WARRANTIES.
Image Protect and Publisher each represents and warrants to the other that (a) it has the legal authority to enter into this Agreement, (b) it has all necessary rights to grant the rights and licenses, and to perform its obligations, hereunder and (c) its performance of its obligations under this Agreement will not violate any other agreement between such party and any third party.
Publisher represents and warrants to Image Protect that (i) it has obtained all necessary rights from third parties (including, without limitation, rights from owners of Images) for Image Protect to perform Fotofy Ad Services and (ii) none of the Publisher Websites, nor any content displayed thereon, (w) infringes or will infringe any rights of any third party including, without limitation, intellectual property rights, contract rights and rights of privacy and publicity, (x) violates any applicable laws, rules or regulations, (y) is defamatory, fraudulent, misleading or inaccurate or (z) contains any pornographic, violent or hate-based imagery.
- NO WARRANTY.
Except as expressly set forth in this agreement, the Image Protect technology and the Fotofy Ad Services are provided on an “as is” and “as available” basis and Image Protect makes no representations, warranties or conditions of any kind, express or implied, with respect to the Image Protect technology or the Fotofy Ad Services including, without limitation, any warranty that Fotofy Ad Services will (a) produce a specific amount or level of revenues from Image Protect’s sale of advertising inventory, (b) be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (c) meet publisher’s requirements or expectations, (d) be free from errors or that defects will be corrected, or (e) be free of viruses or other harmful components. to the fullest extent allowed by law, Image Protect expressly disclaims all implied warranties or conditions including, without limitation, warranties and conditions of merchantability, fitness for a particular purpose, and non-infringement. Publisher bears the entire risk as to the results of Fotofy Ad Services.
- LIMITATION OF LIABILITY.
To the fullest extent allowed by applicable law, in no event shall Image Protect, its affiliates, directors, officers, shareholders, employees, agents, licensors, licensees or advertisers be liable under any contract, tort, strict liability or other legal or equitable theory for (a) any indirect, special, consequential, punitive or incidental damages, even if Image Protect was advised of the possibility of such damages, (b) damages for loss of use, profits, data, images, content or other intangibles, (c) damages resulting from viruses, worms, trojan horses, or other contamination or destructive programs, or (d) the cost of procurement of substitute goods, services or technology. these exclusions and limitations of liability in this section 9 shall survive the expiration or termination of this agreement. some jurisdictions do not allow for the limitation or exclusion of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to publisher. in such jurisdictions, the liability of Image Protect or any of its affiliates, directors, officers, shareholders, employees, agents, licensors, licensees or advertisers shall be limited to the maximum extent permitted by law.
- FORCE MAJEURE.
Image Protect shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, act of terrorism, war, explosion, embargo, strike, labor or material shortage, transportation interruption of any kind, work slowdown or any other event or condition beyond Image Protect’s control.
- APPLICABLE LAW.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles. Except as provided in Section 12 below, the parties hereby consent to the exclusive jurisdiction of the California state and U.S. federal courts located in the County of Los Angeles, California for all disputes arising from or relating to this Agreement and/or Image Protect’s performance, or Publisher’s use, of Fotofy Ad Services.
- BINDING ARBITRATION.
12.1 ARBITRATION PROCEDURES.
You and Image Protect agree that, except as provided in Section 12.4 below, all disputes, controversies and claims related to this Agreement (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Section 12 and the JAMS Rules, the terms in this Section 12 will control and prevail.
Except as otherwise set forth in Section 12.4, You may seek any remedies available to You under federal, state or local laws in an arbitration action.
As part of the arbitration, both You and Image Protect will have the opportunity for discovery of non-privileged information that is relevant to the Claim.
The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based.
The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator.
Except as otherwise provided in this Agreement, (a) You and Image Protect may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND IMAGE PROTECT WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration will be conducted in Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.
You and Image Protect agree that any arbitration shall be limited to the Claim between Image Protect and You individually. You and Image Protect agree that (a) there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; (b) there is no right or authority for any dispute to be brought in a purported representative capacity or as a private attorney general; and (c) no arbitration shall be joined with any other arbitration.
12.4 EXCEPTIONS TO ARBITRATION.
You and Image Protect agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of Your or Image Protect’s intellectual property rights; and (b) any claim for equitable relief.
In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
This Agreement may not be modified except by a written instrument signed by both parties. This Agreement will be binding on and will inure to the benefit of each party’s legal representatives, successors and permitted assigns. Publisher shall not assign or delegate any of its rights or obligations under this Agreement without Image Protect’s prior written consent and any unauthorized assignment shall be null and void.
Image Protect may assign this Agreement in whole or in part at any time without Publisher’s consent. Unless otherwise provided in this Agreement, all notices provided under this Agreement shall be (a) in writing and effective upon receipt, if delivered by overnight courier service with tracking capabilities, or within three (3) days after deposit in the mails if delivered by certified mail, return receipt requested, postage prepaid and (b) sent to Publisher at the address provided upon registration for Fotofy Ad Services or to Image Protect at 1401 N. El Camino Real, Ste 203, San Clemente, CA 92672, or such other address for Image Protect as Image Protect may specify in an amendment to this Agreement or for Publisher as Publisher may specify in a notice to Image Protect in accordance with this paragraph. Except as otherwise provided in this Agreement, no failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. If any portion of any provision of this Agreement is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible and the remaining provisions of this Agreement shall remain in full force and effect.
Headings used in this Agreement are for convenience only and have no legal or contractual significance.