Website User Agreement
Version 9 (07/12/2011 12:31:04 AM EST)
YOU'VE BEEN SHOT, LLC WEBSITE USER AGREEMENTYou've Been Shot, LLC Website User Agreement
THIS SITE AND RELATED SERVICES ARE PROVIDED SUBJECT TO YOUR AGREEMENT TO, AND COMPLIANCE WITH, THE TERMS AND CONDITIONS SET FORTH BELOW. PLEASE READ THE FOLLOWING INFORMATION CAREFULLY. YOUR USE OF THIS SITE WILL INDICATE YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW AND YOUR CONTINUED USE WILL INDICATE YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS IN EXISTENCE AT THE TIME OF YOUR USE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS, PROMPTLY EXIT THIS SITE.
You've Been Shot, LLC Inc. and youvebeenshot.com will from here on be referred to as "You've Been Shot, LLC". All pages within this website and any material made available for download will from here on be referred to as the "Website."
The term "Visitor" will from here on refer to anyone accessing the Website.
"You" and "Your" will from here on refer to any Visitor of the You've Been Shot, LLC website.
The term "Photographer" refers to those Visitors who have access to the Website in order to upload and/or sell photographs via You've Been Shot, LLC.
The term "Purchaser" refers to any Visitor of You've Been Shot, LLC purchasing photographs or products via You've Been Shot, LLC.
II. INTRODUCTION AND AGREEMENT TO TERMS
You've Been Shot, LLC is an online service where Visitors may browse, sell, or purchase photographs. It is a flexible commerce-enabled showcase of searchable digital images and digital products taken and/or created by Photographers and presented for viewing and acquisition by Visitors. By using this Website, Visitors agree to abide by all the General Terms and Conditions as set forth in Section III, below. In addition, Photographers agree to abide by the Photographer Terms and Conditions set forth in Section IV, below.
III. GENERAL TERMS AND CONDITIONS
You've Been Shot, LLC reserves the right to modify or add additional conditions to the General Terms and Conditions at any time. Please check for updates to the User Agreement. Our User Agreement will indicate the date on which we published it and it came into force. For 30 days after introducing a revised version of the User Agreement we will indicate on our home page and on the account homescreen at login that a revised User Agreement has taken effect and applies to Your use of the Website. Your continued use of the Website shall constitute your acceptance of the User Agreement in effect at the time of your continued use.
Photographers retain their full rights to Content they upload to this Website, including photographs and digital products, and business information created by Photographers and You've Been Shot, LLC shall not acquire any rights of the Photographers by virtue of the uploads except for the following.
1. You've Been Shot, LLC reserves the right to use any uploaded material for promotional purposes.
2. You've Been Shot, LLC reserves the right to use any uploaded material anywhere on the You've Been Shot! website. This includes, but is not limited to, use on the home screen, in examples and tutorials, and as background images.
Except for Photographer Content described above, Visitors grant to You've Been Shot, LLC a royalty-free, perpetual license to use all rights, including copyright, in content that they upload to the Website, such as comments about this Website or about content uploaded by Photographers, or comments submitted as guest entries. You've Been Shot, LLC reserves the right to amend, redact and/or delete comments for any reason.
All other content on this Website, including but not limited to text, graphics, logos, icons, images, audio clips, video clips, digital downloads, data compilations, and software, as well as any compilation consisting of the selection, organization, or arrangement of content on this Website, is the property of You've Been Shot, LLC or its licensors or suppliers.
B. General Restrictions on Use
All pages within this Website and any material made available for download are the property of You've Been Shot, LLC and/or Photographers. The Website is protected by federal and international copyright and trademark laws. No portion of the materials on this Website owned by You've Been Shot, LLC may be reprinted, republished, modified, or distributed in any form without the express written permission of You've Been Shot, LLC. You agree that you shall respect our intellectual property rights and the intellectual property rights of others. You also agree that you shall keep intact any proprietary notices, including copyright notices, contained on any downloaded materials and shall comply with any applicable end user license agreements.
Any rights not expressly granted by these terms and conditions or any applicable end user license agreements are reserved by You've Been Shot, LLC.
C. Content Disclaimer, Complaints, and Notifications of Claimed Copyright Infringement
You've Been Shot, LLC makes no representations or warranties as to the accuracy, correctness or reliability of the content posted on this Website or sold by Photographers. You've Been Shot, LLC can not ensure that all persons depicted in the photographs and trademark owners have consented to the display of their image or trademark on this Website. If your photograph or trademark appears on this Website without Your consent and You wish to have it removed, please contact You've Been Shot, LLC by clicking on the "Request Removal" button when previewing photograph in question. Please state the reason why You would like it removed and You've Been Shot, LLC will make a reasonable effort to resolve the issue with the Photographer.
You've Been Shot, LLC is not in a position to determine copyright status of any content uploaded to its site, which may depend upon many facts that are unknown to You've Been Shot, LLC. If You believe that Your copyright rights have been violated by any material or activity on our Website, please send us a notification of claimed infringement that conforms to 17 U.S.C. § 512(c)(3). We expect the following information:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit You've Been Shot, LLC to locate the material, including the URL where the material is located.
4. Information reasonably sufficient to permit You've Been Shot, LLC to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Send the notification to our designated agent to receive notices of claimed infringement as follows: Bradford Bisinger, Attn: Notices, You've Been Shot, LLC., Cherry Hill, NJ 08003; firstname.lastname@example.org. You may also Contact Us online.
You've Been Shot, LLC has a policy of terminating the account of any person who has been determined to be a repeat copyright infringer.
D. Trademark Notice
You've Been Shot, LLC and youvebeenshot.com are logos, trademarks, and service marks of You've Been Shot, LLC. All other trademarks, service marks and logos used in this Site are the trademarks, service marks or logos of their respective owners.
E. Warranty Disclaimer
THE WEBSITE, INCLUDING ANY MATERIAL OR ACTIVITIES CONTAINED WITHIN IT OR ANY SITE-RELATED SERVICE, IS PROVIDED "AS IS," WITH ALL FAULTS, AND "AS AVAILABLE," WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND. You've Been Shot, LLC DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, ACCURACY AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE WEBSITE. You've Been Shot, LLC DOES NOT WARRANT THAT THE PRODUCT DESCRIPTIONS OR OTHER CONTENT ON ITS WEBSITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THIS WEBSITE, ITS SERVERS, OR E-MAIL SENT FROM You've Been Shot, LLC ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR, AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTOIN WITH RESPECT TO YOUR USE OF THIS WEBSITE, SITE-RELATED SERVICES, AND HYPERLINKED WEBSITES.
YOU AGREE THAT You've Been Shot, LLC, ITS AFFILIATES AND ITS SPONSORS ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SITE-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE WEBSITE, AND/OR ANY HYPERLINKED WEBSITE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE WEBSITE, SITE-RELATED SERVICES, AND/OR HYPERLINKED WEBSITES IS TO STOP USING THE SITE AND/OR THOSE SERVICES. THIS LIMITATION OF REMEDIES IS PART OF THE BARGAIN BETWEEN THE PARTIES.
YOU AGREE THAT You've Been Shot, LLC SHALL NOT BE HELD LIABLE FOR THE ACCIDENTAL LOSS OF PHOTOS, CORRUPTION OF DATA SUBMITTED, OR THE COPYING OF PHOTOS BY ITS USERS OR UNAUTHORIZED USERS. IN ANY EVENT THE LIABILITY OF You've Been Shot, LLC, ITS SUBSIDIARIES, OFFICERS, EMPLOYEES, VENDORS AND SUPPLIERS IS LIMITED TO THE LIFETIME AMOUNT PAID BY YOU FOR SERVICE FEES ONLY EXCLUDING ANY PRODUCTS ORDERED THROUGH THIS WEBSITE OR ANY OTHER FEES. THE LIFETIME AMOUNT OF YOUR SERVICE FEES PAID WILL BE DETERMINED AT THE SOLE DISCRETION OF You've Been Shot, LLC.
Although You've Been Shot, LLC attempts to ensure the integrity and accurateness of the Website, it makes no guarantees whatsoever as to the correctness or accuracy of the Website. It is possible that the Website could include inaccuracies or errors, and that unauthorized additions, deletions and alterations could be made to the Website by third parties. In the event that an inaccuracy arises, please inform You've Been Shot, LLC so that we can take appropriate action. Information contained on the Website may be changed or updated without notice.
F. Risk of Loss
All items purchased through You've Been Shot, LLC and shipped to Purchaser by Photographer or by You've Been Shot, LLC are subject to a shipment contract under which the risk of loss and title for such items pass to Purchaser upon You've Been Shot, LLC's or Photographer's delivery to a shipping carrier.
You specifically agree to indemnify and hold harmless You've Been Shot, LLC, its subsidiaries, affiliates, successors, assigns, directors, officers, agents, employees, service providers, and suppliers from any claims, demands, causes of action, judgments, liabilities, losses, and expenses arising from (1) Your breach of these terms and conditions or violation of any representations or warranties contained in this agreement; (2) any materials that You submit or post on this Website; or (3) Your misuse of information provided to You by other Visitors. The indemnity provisions contained in this section include but are not limited to reasonable attorney's fees and court costs.
H. Prohibited Material and Activities
You've Been Shot, LLC reserves the right to refuse material and activities or to remove any material and activities from the Website in its sole discretion. All material of any kind that we deem pornographic in our judgment is prohibited from this Web site. You've Been Shot, LLC may, in its discretion, but is not obliged to, allow images that contain nudity if they exhibit artistic or other social value and are not pornographic.
Furthermore, You agree that You shall not (1) transmit or post to You've Been Shot, LLC or the Website any material or conduct any activity with respect to the Website that in any manner violates any law, regulation, or treaty, or infringes on the rights of any third party; (2) transmit or post any material or activity that is defamatory, fraudulent, or obscene, or that may harass or abuse others; (3) transmit or post any materials or comments that can be harmful to the security or integrity of the Website or any of its users, including but not limited to materials such as viruses, software programs, or worms; (4) access any account that does not belong to You without the authorization of the owner of the account; (5) misuse, transfer, sell, or otherwise disclose private information provided to You by other users of the service or visitors; (6) interfere with other Visitors' use and enjoyment of the Services or the Website; (7) modify, adapt, or hack You've Been Shot, LLC or the Website or modify any other website so as to falsely imply or make it appear that the website is associated with You've Been Shot, LLC; (8) spam other You've Been Shot, LLC users or burden them with unwanted communications; or (9) post any materially false or misleading information to the Website or otherwise communicate it to You've Been Shot, LLC users, including but not limited to any false or misleading advertising or coupons.
You agree that You've Been Shot, LLC does not bear the responsibility for policing or determining the legal propriety of any material contributed by others or activity conducted by others on the Website.
You've Been Shot, LLC reserves the right to prohibit access of any Visitor in its discretion.
I. Links To and From You've Been Shot, LLC
You agree not to portray You've Been Shot, LLC or any of the products or Services provided in a false or misleading manner. You further agree not to link to this Website for any purpose or in any way that is defamatory, fraudulent, indecent, or damages the name or reputation of You've Been Shot, LLC.
You've Been Shot, LLC makes no representations whatsoever about any other site that You may access through this Website. When You access a non-You've Been Shot, LLC Website, you understand and agree that it is independent from You've Been Shot, LLC, and that You've Been Shot, LLC has no control over the content on that site. In addition, you understand that a hyperlink to a non-You've Been Shot, LLC site does not mean that You've Been Shot, LLC sponsors, is affiliated with, or endorses or accepts any responsibility for the content, or the use, of the linked site. It is up to You to take precautions to ensure that whatever You select for Your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. You agree to accept all responsibility and any liability stemming from Your following or providing a link to another site, including where Your following or providing a link to the other site may lead to infringement of a copyright owned by another.
J. International Users
You've Been Shot, LLC is located in the United States of America and conducts its transitions in the United States of America. Visitors who reside or do business outside the United States of America specifically agree that their transactions with You've Been Shot, LLC take place in the United States of America. They also specifically agree that they shall, to the extent necessary, comply with all the local laws, rules, and regulations applicable to them regarding the use of this Website, including but not limited to, the transmission of data over the Internet, and applicable tax laws.
K. Choice of Law and Venue
You enter into this agreement in the State of New Jersey and agree that it shall be governed by and construed in accordance with the laws of the State of New Jersey, exclusive of its choice of law rules. You agree to submit to the exclusive jurisdiction of the state and federal courts sitting in the County of Camden in the State of New Jersey, and the courts having appellate jurisdiction over those courts, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. You agree that, in any action to enforce these terms and Conditions, the prevailing party will be entitled to costs and attorney fees. In the event that any of the terms and Conditions are held by a court or other tribunal of competent jurisdiction to be unenforceable, those provisions shall be limited or eliminated to the minimum extent necessary so that these terms and Conditions shall otherwise remain in full force and effect.
You understand and agree that You've Been Shot, LLC may assign the rights and Conditions under this agreement. You understand and agree that Your personal information may be transferred to the succeeding entity You may not subcontract, assign, or otherwise delegate Your obligations under the Conditions set forth in this agreement without You've Been Shot, LLC's prior written consent.
M. Entire Agreement
These terms and conditions constitute the entire agreement between You've Been Shot, LLC and Visitors who are not Photographers pertaining to the subject matter of this Agreement. In addition to being subject to these terms and conditions, Photographers also are subject to the Photographer Terms and Conditions in Part IV of this document. In its sole discretion, You've Been Shot, LLC may modify these terms and conditions by posting the revised version on this Website as stated above. If any of the conditions in this agreement are found invalid, void, or unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining conditions. Apart from modifications by You've Been Shot, LLC through revised terms and conditions posted on its Website, this agreement with respect to any single person or entity may be further amended only by a writing explicitly supplementing or superseding this agreement containing signatures by both that person or entity and You've Been Shot, LLC. For the purposes of this paragraph, a "writing" does not include an e-mail message, and a "signature" does not include an electronic signature.
IV. PHOTOGRAPHER TERMS AND CONDITIONS
A. Photographer Services
You've Been Shot, LLC may offer different levels of services depending on the Photographer's service plan. It is each Photographer's responsibility to be informed of these terms and conditions, as well as the various levels of services provided by You've Been Shot, LLC.
Subject to the conditions set forth in this agreement, You've Been Shot, LLC may provide Photographers with the services (hereafter referred to as "Photographer Services") described on the You've Been Shot, LLC website.
You've Been Shot, LLC will make reasonable efforts to maintain images, information, media, or data provided by Photographer in the course of operation of the Website, but each Photographer agrees that (1) You've Been Shot, LLC does not provide a "locker" or archive service or otherwise warrant or guarantee that it will succeed in maintaining the images, information or media for the Photographer; (2) the Photographer shall be responsible to maintain back up copies of his or her works at all times; and (3) You've Been Shot, LLC shall not liable for any loss of images, information, media, or data.
B. Photographer Responsibilities
You've Been Shot, LLC shall be responsible for processing and shipping the orders placed for fulfillment by You've Been Shot, LLC directly to Purchasers, in accordance with the terms of the order.
You've Been Shot, LLC shall notify the Photographer electronically of all orders placed within 24 hours. You've Been Shot, LLC shall notify the Photographer of any refunds or fee disputes by any Purchaser. Purchasers pay You've Been Shot, LLC in advance for orders placed for fulfillment by You've Been Shot, LLC.
Each Photographer is responsible for any and all activity that occurs under the Photographer's user name or account. Each Photographer is responsible for obtaining permission and proper release documentation from any person whose image is posted by the Photographer on You've Been Shot, LLC. While You've Been Shot, LLC has the right to refuse or remove any material or activities on its Website in its full discretion, You've Been Shot, LLC specifically reserves the right to censor and delete any images where You've Been Shot, LLC, in its sole judgment, lacks confidence in the documentation of a proper release.
By using You've Been Shot, LLC service Photographers agree to not publicly share, post or sell the Work through any other means.
C. Account Payments and Balances
Photographers agree that You've Been Shot! will collect all payments for any purchases made by Purchasers.
Photographers agree that they will be paid a percentage of the sales profit ("Sales Profit") for every sale. The Sales Profit is determined by subtracting any fees from the final sale price of an order. Fees may include, but are not limited to, PayPal transaction fees, materials cost, and any 3rd party charges. You've Been Shot, LLC reserves the right to modify the percentage paid to the Photographer at any time. However, You've Been Shot, LLC will allow 30 days before the new percentage takes effect. During those 30 days the Photographer may choose to cancel their account at which point all of their photos will be removed from the You've Been Shot, LLC website. Continued use after the 30 days indicates an acceptance on the part of the Photographer of the percentage rate.
You've Been Shot, LLC will provide, as part of its fulfillment services included in Photographer Services, an account where payments to Photographers from Purchasers will be held. You've Been Shot, LLC will pay out account balances on the first business day of every month. You've Been Shot, LLC will pay account balances to Photographers via PayPal, electronic bank transfer, or bank check. Photographer account balances under $20.00 USD may be withheld until the account balance surpasses $20.00 USD. However, the Photographer may contact You've Been Shot, LLC directly to request a payment. It is left to the discretion of You've Been Shot, LLC to make the payment or not. You've Been Shot, LLC shall have the right to withhold payouts pending investigation of suspicious account activity and to refuse or defer payment for its own protection or for an offset of Photographer's obligations to You've Been Shot, LLC where You've Been Shot, LLC considers account activity to be in bad faith or to violate the User Agreement.
You've Been Shot, LLC reserves the right to pay out all or some account balances at the end of every calendar year, at the sole discretion of You've Been Shot, LLC.
D. Photographer Restrictions on Use
You must be over 13 years of age in order to open an account with You've Been Shot, LLC.
E. Renewal and Termination
Each Photographer agrees that You've Been Shot, LLC may terminate each Photographer's access to and use of the Photographer Services, with or without cause at any time at the sole discretion of You've Been Shot, LLC, for any reason. Violation of the Conditions listed in this agreement may prompt You've Been Shot, LLC to take any necessary action that You've Been Shot, LLC deems appropriate to enforce its right including but not limited to the institution of legal proceedings.
Each Photographer agrees to give You've Been Shot, LLC 30 days notice to terminate a Photographer's account at the Photographer's request.
F. License Granted by Photographers
By delivering or transmitting images or any other media to You've Been Shot, LLC, Photographers grant You've Been Shot, LLC a nonexclusive right to use, reproduce, alter the resolution of, transmit, publicly display, distribute, and make available the images or other media as You've Been Shot, LLC deems appropriate for the sole purpose of providing the Photographer Services. All other rights in transmitted images or media, including copyright, remain with the Photographer.
Each Photographer understands and agrees that You've Been Shot, LLC may (but is not required to) make backup copies of any images, information, or media transmitted by Photographer to You've Been Shot, LLC and may keep archives of them for the purpose of maintaining business records of You've Been Shot, LLC and preserving evidence of its Website activity.
Each Photographer represents and warrants that the Photographer owns or otherwise controls all of the rights to any images, information, or media that the Photographer transmits to You've Been Shot, LLC; that use of the such images, information, or media supplied by the Photographer and the rights that the Photographer conveys to You've Been Shot, LLC does not violate this agreement and will not cause injury to any person or entity; and that the Photographer will indemnify You've Been Shot, LLC for all claims demands, causes of action, judgments, liabilities, losses, and expenses arising from the images, information, media, or data supplied by the Photographer.
Each Photographer agrees that You've Been Shot, LLC has the right in its sole discretion, but not the obligation, to edit or remove any activity or images, information, or media. Each Photographer understands and agrees that You've Been Shot, LLC takes no responsibility and assumes no liability for any images, information, or media posted by the Photographer or any third party.
G. No Employment Relationship
Nothing in this agreement is intended to, or should be construed to, create a partnership, agency, joint venture, or employment relationship between You've Been Shot, LLC and Photographer. Photographers are not entitled to any of the benefits which You've Been Shot, LLC may make available to its employees. Photographers are not authorized to make any representation, contract or commitment on behalf of You've Been Shot, LLC without prior written authorization to do so by an officer of You've Been Shot, LLC. Photographer shall be solely responsible for, and will file, as required by law, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under the Conditions of this agreement. Photographer shall be solely liable for any failure to pay applicable taxes. You've Been Shot, LLC will not withhold any part of Photographers' compensation for the payment of any social security, federal, state or any other employee payroll taxes. You've Been Shot, LLC will report amounts paid to Photographers by filing appropriate forms with the Internal Revenue Service as required by law for independent contractors.